Police v Siaki [2012] WSSC 114 (2 August 2012)

SUPREME COURT OF SAMOA

Police v Siaki [2012] WSSC 114

Case name: Police v Talosaga Siaki

Citation: [2012] WSSC 114

Decision date: 2 August 2012

Parties: POLICE (prosecution) and TALOSAGA SIAKI female of Moamoa and Alamagoto

Hearing date(s): 16 – 19 July 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
E Niumata for prosecution
D Clarke for defendant

Catchwords: theft as a servant

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss.23(i)(b)(c)(d), 85, 86(g), 90

Cases cited:
R v Baskerville [1916] 2 KB 658
Tumahole v R [1949] AC 253
R v Stanley [1998] 7 Tas. R 357

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
TALOSAGA SIAKI female of Moamoa and Alamagoto
Defendant

Counsel: E Niumata for prosecution

D Clarke for defendant

Hearing: 16 – 19 July 2012

Reasons for Decision: 2 August 2012

Charge: Theft As A Servant (x16)

REASONS FOR DECISION OF SLICER J

1. The defendant was charged jointly with Mapuni Toia, with 16 counts of Theft As a Servant, contrary to the Crimes Ordinance 1961 (“the Ordinance”) sections 85, 86 (a). The acts of theft were said to be $54,943 committed between 18 September 2010 and 28 March 2011. Mapuni Toia (“Mapuni”) pleaded guilty shortly before trial, was sentenced and subsequently gave evidence against Talosaga Siaki (“Talosaga”) at trial.
2. The prosecution relied on the provisions of the Ordinance section 23 (i)(b)(c) and (d) in support of its case alleging that:
   • (1) there was a common intention between the defendant and the co-accused to commit an unlawful act;
   • (2) the defendant did or omitted an act for the purpose of aiding the co-offender to commit the offence; and
   • (3) the defendant abetted the co-offender in the commission of the offence.
3. There are many common law cases decided by Samoan Courts defining the operation of section 23 and it is unnecessary to repeat them. The law is clear and this case involves issues of fact rather than law.
4. Mapuni and Talosaga were co-employees of a family company, Vailima Distributors Limited (“the Company”) which operated from premises in Apia. Its operation involved the wholesale supply and/or distribution to customers, primarily alcohol and cigarettes. It operated a warehouse inside of which was an enclosed office with an adjacent work space for two desks. The remainder of the premises was used as a warehouse and depot. The company was effectively managed by Tai Molio’o (“Tai”), a family member and assisted by her sister, Vaelei Vaai (“Vaelei”), who attended during times when she was not lecturing in Business Management at the National University of Samoa.
5. Talosaga was originally appointed as a receptionist. She had had previous experience as an employee of a business which was contracted with or controlled by British Tobacco. In 2010, Tai became ill and spent varying times undergoing treatment and recuperation periods in New Zealand, and Talosaga was promoted to the role of bookkeeper and acted as such for the period which is the subject of these charges. Whilst Tai was absent through extended illness, Talosaga was required to report to Vaelei, the sister, who would ordinarily come in after she had finished her university lecturing, usually after 1 p.m.
6. The business operated three regular delivery vans, recorded in the records as T1, 2 and 3, with a fourth AA available for unexpected or urgent deliveries. Each van carried a sales representative, a driver and, depending on the weight and quantity of the items, a loader and carrier. Each van had a regular set of customers and presumably routes or areas. The number of deliveries for each vehicle per day varied according to demand but an average of 3 – 4 would not be unusual.
7. Mapuni was employed as a sales representative at all relevant times and had been a trusted employee for over 10 years. His duties included the taking of orders for the supply of products, assistance with their delivery, the provision of an invoice, the collection of payments and the production of a receipt to the client. He would return to the office with any payments collected from the customers, the receipt book recording payment and, presumably, any future orders requested by the customer.
8. The method of deceit used by Mapuni was to place some paper between the original (handed to the client) and the carbon copies used for the company’s records. He would complete the original with the correct amount paid but falsified the copies. He did so with only one client, Kalala, a retail business in Apia. In some instances when Kalala had paid for two invoices at the same time, only one of the payments would be recorded on the copy. In other incidents, the copy would show receipt of a lesser amount of money said to have been received from a different client; fictitious or otherwise. Mapuni would hand over a lesser amount of money to the company which accorded with the falsified copy. Talosaga would enter the falsified receipt into her ledger.
9. The prosecution’s case is that the fraud was only possible if the defendant was a party to the scheme and called Mapuni as a witness at trial, who claimed that it was Talosaga who had initiated the scheme and that it would have been impossible to conceal the defalcation without her complicity. The defence contends that Talosaga was equally duped and only recorded the transactions as recorded in the duplicate receipts. Specifically, the defendant relied on three amounts incorrectly recorded and entered by Vaelei on 22, 25 and 28 March.
10. Tai, because of absence and illness, had not fully supervised Talosaga’s work during mid-2010 and early 2011.
11. A separate debtors card system was used which recorded the invoices and payments received from regular clients. Tai would allocate a credit limit for approximately 100 regular customers which could verify underpayments. A letter would be sent to any client who had exceeded the credit limit and delivered by the sales representative or, in some instances, by the defendant. It was Talosaga’s responsibility, in Tai’s absence, to prepare and send a ‘form’ letter to the customer.
12. In early 2011, Tai and her brother became concerned in the ‘cash flow’ position of the company and commenced an investigation as to what was its cause. She was able to use the ‘debtors’ card’ records but found one, Kalala’s, to be missing. She and her sister Vaelei began to reconstruct the Kalala account using the debtors’ books or ledgers for the period 7 July 2010 until 4 May 2011.
13. The reconstruction showed that in July and August, Kalala rarely exceeded its credit limit which Tai said was fixed at $10,000 and if so, for only a small amount and period. As at 10 September 2010, his debit balance amounted to $7,545 but that was followed by two cash payments of $3,700 and $3,845 made on 14 and 16 September 2010, respectively.
14. The reconstruction showed that thereafter the Kalala debit regularly increased and the credit limit greatly exceeded. The first act of defalcation alleged was on 18 September 2010. The following figures selected by the Court show the increased debt.

23 September $23,490

22 October $33,084

26 November $42,394

22 December $44,329

22 January $59,737

26 February $79,204

12 March $108,446

15. Tai approached BJ Slade, a representative of Kalala, who denied the debt and produced the original receipt for each transaction. Mapuni was dismissed and further investigations undertaken which implicated this defendant. Theft of stock was eliminated. Talosaga was temporarily transferred from her ‘finance’ role to that of a sales representative working a separate vehicle.
16. Each original receipt given to Kalala was received in evidence as was each false copy and the relevant ledgers.
17. On 18 April, Tai confronted the defendant, telling her of Mapuni’s claim that he was involved with Talosaga in the frauds and that the two had colluded in the fraud and shared the proceeds. In Tai’s words the defendant had replied:

“What I am going to relate to you, you won’t believe me. I think the allegation of Mapuni you will never believe me again. For this morning, I apologise for what happened. I ask my God, be within you and when I need your help assisted me and I pray for you forgive me error, for being dishonest given the trust placed on me while working with the company.”

18. Tai told the defendant the Mapuni had been arrested and that she would report the matter to police.
19. The answer is ambiguous or at least confusing. But there was no denial of involvement and an ambiguous apology for causing harm.
20. Tai was extensively cross-examined and agreed that it was family policy not to allow employees to handle money. But the company employed over 30 persons and also ran a retail section. She confirmed that the company operated a computerized Excel programme but a more sophisticated system had proved to be unsatisfactory. She trusted Talosaga who was under her supervision. Except during her absence she would count the money which would amount to over $50,000 in one day. But it was not the money counted which was the problem. It was the withholding of the money by Mapuni and the entry of false receipts which was the method of fraud. It was the defendant’s responsibility to maintain the individual debtors’ cards and if the limit was grossly exceeded, to report to management. The Court does not accept the defendant’s claim that no credit limit had been set for Kalala. If, as claimed, she was but an innocent dupe, she would have reported the defaults to either Tai or Vaelei. She did neither, a matter from which the Court could draw in support of an inference of guilt. That Vaelei had also recorded incorrect data on two occasions does not assist the defence. It was the interconnection of the invoices, receipts, ledgers and the debtors’ card which led to the loss of the money.
21. In her account, Tai said that the crucial debtor’s card of Kalala was missing. It was that card which connected the other documents.
22. Tai said that she had asked for debtors’ reports from the defendant and two undated reports were produced. They prove that the defendant had control of the cards and did report to management. They would have provided cogent proof of dishonesty but were undated and the marking of $60,000, being a land purchase by the company, weakens the import of their dates. The Court accepts the first proposition that it was for the defendant to report but gives little weight on the second, namely that they related to the relevant period. One, at least, can be shown, by inference, of its coincidence with the reconstruction document (Folder 2, Tab 2) to have been made on either 25 August or 10 September 2010, eight days prior to the first alleged defalcation.
23. Tai had made three requests for the defendant to return the individual debtors’ cards. On the third occasion, she had sent an employee to the defendant’s house to collect them. Talosaga returned to hand them to Tai or Vaelei. Neither could locate the Kalala card. It was in the interest of both to find and make use of the card, and it is a reasonable and strong inference that it was the defendant who removed it before returning the box of cards to her employers. When retrieved from the defendant, only one was found to be missing; that of Kalala.
24. Mapuni gave evidence implicating Talosaga as the instigator and accomplice. She had devised the scheme and the two had shared the proceeds equally. He said that without her involvement the scheme could not have worked. Kalala had been chosen as it had a lot of credit and paid on a regular basis by cash. He confirmed that on occasions the two had collected money in the defendant’s car (a matter agreed to by the defendant) and often kept the individual debtors’ cards at her home. He said that they shared the proceeds equally. When the defendant was transferred, the defendant told him to continue with two transactions since the scheme would continue to work, as it did with Vaelei’s entry of those transactions based on false receipts. He claimed that the defendant communicated with him through cryptic text messages, in a form and content described as ‘faatosina’.
25. His evidence is to be treated with caution. He was an accomplice and his evidence ought not be accepted unless corroborated.
26. Two tests have been propounded as to the form of corroboration. The first is that independent evidence tending to verify any part of the testimony of the accomplice would suffice. The second is that the evidence should not only show that part of the accomplice’s evidence is true, but it should also implicate the accused. In R v Baskerville [1916] 2 KB 658, Viscount Reading CJ favoured the latter, stating at 667:

“evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime...The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, ‘implicates the accused’, compendiously incorporates the test applicable at common law in the rule of practice.”

(See also Tumahole v R [1949] AC 253).

27. Mapuni had no expectation of benefits from giving evidence adverse to the defendant at trial. He had pleaded guilty and received an appropriate sentence. The Court did not give him a lesser sentence on the condition that he implicate the defendant and give evidence favourable to the prosecution at trial (as an example see: R v Stanley [1998] 7 Tas. R 357; a case where the Court of Appeal subsequently reviewed and increased the sentence on an offender who had indicated, as a mitigating matter, that he would continue to assist by giving evidence against his co-offenders at trial. At trial, he refused to give evidence and the prosecution was abandoned. His sentence was increased. It is unlikely that Samoan legislation would permit such a review and such was the case here). Mapuni had no expectation for a reduced sentence for giving false evidence favouring the prosecution.
28. Vaelei Vaai, also a member of the family business, was a lecturer at the National University of Samoa in accounting and business studies. She would supervise the defendant and check the documentation. She would sometimes review the debtors’ cards but more often would receive a verbal report on debtors’ accounts. She never received a debtors’ request or report on Kalala. She was engaged in the reconstruction and agreed that she completed the ledger on 18 and 25 March, based on the false receipts. She had, at that time, no reason to doubt them. Although she was able to retrieve the debtors’ cards if they were on the defendant’s adjoining desk but she rarely did so. She confirmed that the letters to customers were generated by computer based on the Excel balances.
29. The evidence of Leiloa Mili does not assist the prosecution.
30. At the completion of the prosecution’s case, the evidence was but circumstantial.
31. The defendant elected to give evidence. She denied that she had any involvement in the fraud. She claimed she had a limited and work-related relationship with Mapuni. She stated that she had no part or knowledge in his acts of dishonesty. She claimed to have acted solely on the basis of the false documentation of the sales representative and did nothing but enter his documentation in the ledgers and books of account, kept in her desk cupboard. In her evidence in chief, she said that they were kept in that desk after hours. She agreed she would report on overdue accounts and cause them to be given to customers or deliver them herself. She claimed that the last time she had seen the debtors’ cards was when she was transferred to work as a sales representative on Vehicle 1 in March 2011, when she handed them to Tai or Vaelei, claiming both to have been present.
32. Her evidence was significantly weakened during examination in chief. She denied that Tai had set and posted a credit limit for Kalala. She claimed that management had failed generally to notify her of credit limits. Both of those matters were contrary to the evidence of Tai and her sister, Vaelei.
33. That evidence was further weakened in cross-examination. She maintained her denial that she ever knew of the existence of credit limits. She admitted that she had prepared and written on a summary of customer transactions (“Exhibit P27”) but denied that her entry C meant that the customer was below the credit limit and that A/C meant a long overdue account but was simply for her own use. The document shows Kalala’s entry to be $7,545, which is identical to the reconstruction figures as at 2 August or 10 September 2010.
34. The defendant claimed she had told Tai and Vaelei of her concerns about the rising and large debt owed by Kalala; matters refuted by both. She denied Mapuni’s claim that he had never been asked to deliver a letter of demand for payment to Kalala of an outstanding debt. She said that on at least 8 occasions Tai and/or Vaelei had been told that such letters had been sent. Mapuni had denied delivering any letters to Kalala and both Tai and Vaelei were adamant that neither had seen nor signed or authorised the sending of eight letters. It is a reasonable and strong inference that no such letters were prepared and sent. The non-sending of the letters was a device by the defendant to avoid complaint by Kalala and detection of the scheme.
35. Talosaga denied that Tai had asked her three times for the return of the cards. She was internally inconsistent in her explanation concerning the demand for the debtors’ cards as the following exchange illustrates:

“Pros now with the debtors card, the original card of Kalala customer, isn’t it right that Tai asked you 3 times for it and you never handed it over all of the cards, is that correct?

Wit that’s not true.

Pros on all 3 occasions that she asked you, you just disappeared without giving her any of the cards, isn’t that correct?

Wit could you repeat your question?

Pros on all 3 separate times or occasions that Tai had asked you, to please give me all the debtors cards, you never gave it to her; she’d come and find that you had gone home, is that correct?

Wit no, that’s not true.

Pros isn’t it correct that you only handed over the cards when she actually sent an employee to your house to enquire about the cards?

Wit that was on the third time.

Pros so it took an employee to come to your house to get the cards from you in order for you to come to the company and hand over the cards, is that what you’re saying?

Wit yes.

Pros now are you saying that when you handed over the debtors card to Vailei and Tai that included the Kalala store card?

Wit yes, it was.

Pros so you’re saying that Vailei and Tai lost the card?

Wit am I saying that?

Pros bcoz it’s either you or them that?

Wit I do not know.”

36. She agreed that on the third occasion, an employee came to her house to collect the cards which she had taken home to update, and contradicted her evidence in chief that she had given the cards over on the day she was transferred to work as a sales representative on Vehicle 1. She also admitted that the requests had been made in February and March.
37. Her explanation about her differing versions namely,

“first time she asked me the cards were just on the desk; I left that day they were left there; the second time she asked me I gave it to her; gave her all the ledgers and the debtors cards which she told me that she’ll be working on it; on the previous day I returned back to normal duties the debtors card and the ledger were still sitting where I left the previous day; on the third occasion she asked me I took all the receipts and the invoices, the ledger and the debtors cards box with me so that I can get them updated bcoz I didn’t have time that day; it was a pretty busy day that day and then on my way home my mom called me and told me where I was; I was still in town after work and she was shouting at me, accusing me, telling me what the exact story, words from one of the staff that Tai sent over to get the debtors cards and the ledger, accusing and telling my mom that Tai wants these right now otherwise she’ll send the police that you’ve been stealing money from the company, which it rose anger in my mom and she was accusing me which I returned back to the office with all the stuff that I had and that’s when I went straight to Tai and complained about the stuff that one of the staff told my mom.”

is unsatisfactory.

38. Later in cross-examination, she stated her relationship with Mapuni to be:

“not really friends, it was just an employee relationship that we had.”

but conceded that she had received large amounts of money from him on three occasions: in December and in March, amounting to $2,000. The transcript of 16 July 2012 shows her answers to be:

“Wit March 2011 and the third time which it was $500 was near the end of March 2011.

Pros why did Mapuni give you this cash; why did he give you the first $1,000?

Wit [no reply].

Pros how much did you receive from each of the 3 occasions?

Wit $1,000 the first time; second time was $500 and the third time was $500.

Pros why did Mapuni give you $1,000 the first time?

Wit I do not know; probably it was a gift.

Pros how about the second time he gave you cash: $500?

Wit he just told me it was a tip.

Pros and on the third occasion when he also gave you $500?

Wit the third occasion I asked him for money; I had a loan overdue with Rowlen Financial and they were trying to contact me before they bring me in court so I text Mapuni during that day if he’s got money and if I could borrow money off him and he text me that I have to wait until after work then asked me how much I wanted and I text him back it was $500; if I could borrow off him and he told me that he’ll give it to me straight after work.”

39. Her explanation for the third occasion was unsatisfactory. She conceded that Mapuni earned less money than she did ($220 per week) and she believed that he had given her the money because he was attracted to her; a relationship she had previously denied. Her explanation that he was able to obtain money especially the third, at short notice, was because he was a Mormon Bishop, is likewise unsatisfactory.
40. The Court does not accept the defendant as a credible witness. That combined with the prosecution’s case persuades me beyond reasonable doubt that the defendant is guilty of each of the acts of theft as a servant.
41. The defendant relies on transactions 14 – 16 as proof that Mapuni continued to act dishonestly after she had been transferred from finance to sales representative, which supports her claim that Mapuni acted alone. It is accepted that Vaelei entered the false receipts into the ledger but it was not suggested that she was a party to the frauds.
42. Talosaga claimed that the defendant had told him that he could continue with the deception in March as she could still protect him. There is no doubt that Mapuni continued with his fraud after the defendant’s transfer. The questions are whether:
    • (1) The defendant was guilty by instigation;
    • (2) She remained a party who received her share; or
    • (3) She is guilty of an alternate crime of receiving contrary to the Ordinance section 90 through the operation of the Criminal Procedure Act section 39.
43. The defendant gave evidence that she received money from Mapuni in March claiming it to be a gift. The Court finds that it represented a share of the money taken by Mapuni after her transfer and that she remains guilty as instigator of offences 14 –16.
44. If the Court is wrong on this point, it would convict her of the crimes of 14 – 16 as set out in the Informations as ones of receiving contrary to the Ordinance section 90.
45. The prosecution did not press its allegations of false accounting and accordingly each will be regarded as an alternative charge and will be dismissed.
46. The Court finds the defendant guilty of the 16 charges of Theft As a Servant as alleged in Informations S511 – 516/11, S518 – 525/11 and S406/11.
    

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(JUSTICE SLICER)