Police v Edwards [2013] WSSC 114 (9 July 2013)

SUPREME COURT OF SAMOA

Police v Edwards [2013] WSSC 114

Case name: Police v Edwards

Citation: [2013] WSSC 114

Decision date: 9 July 2013

Parties: POLICE (prosecution) and NOAH EDWARDS male of Lepea and EMI TAUMATEINE female of Nofoalii

Hearing date(s): 4 – 7 June 2013 and 10 – 11 June 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
L Taimalelagi for prosecution
T Leavai for first named defendant
K Enari for second named defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss.23 (2), 85, 86 (g)(1)

Cases cited:
R v Chainey [1913] UKLawRpKQB 187; [1914] 1 KB 137
Attorney General’s Reference (No.1 of 1975) [1975] EWCA Crim 1; [1975] 2 All ER 684
R v Johnston [1962] NZPoliceLawRp 24; [1963] NZLR 92
Darkan v The Queen [2006] HCA 34; (2005) 227 CLR 373
Police v Papalii [2011] WSSC 130
R v Higgins [1801] EngR 444; (1801) 2 East 5
Young v Cassels (1914) 33 NZLR 852
R v McKewan [1973] 2 NZLR 603
R v Bullock [1955] 1 All ER 15
R v Broadfoot [1976] 3 All ER 753
R v Cooper [1833] EngR 447; 5 C & P 535
Brennan v R (1936) 55 CLR 235
R v Malcolm [1951] NZLR 471
Anderson and Morris v R (1966) CLR 110
Loversey and Peterson [1976] 1 QB 352
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

NOAH EDWARDS male of Lepea and EMI TAUMATEINE female of Nofoalii

Defendants

Counsel: L Taimalelagi for prosecution

T Leavai for first named defendant

T K Enari for second named defendant

Hearing: 4 – 7 June 2013 and 10 – 11 June 2013

Ruling: 9 July 2013

Charges: Theft As a Servant, Party to Theft As a Servant

REASONS FOR DECISION OF SLICER J

1. Emi Taumateine (“Emi”) has been charged with 16 crimes of Theft As a Servant, contrary to the Crimes Ordinance 1961 sections 85, 86 (g)(1); said to have been committed between 28 October and 1 November, and likewise Noah Edwards (“Noah”) with 22 identical charges between the same dates.
2. The evidence suggests that a culture of dishonesty had grown up within the staff of the Ah Liki supermarket at Fugalei. In November 2011, senior staff began an investigation and reported acts of dishonesty, by many of the staff members, to police. The evidence is that between 33 – 35 staff members were investigated, most of whom were dismissed for misconduct.
3. Emi and Noah denied any involvement in or knowledge of the culture or systemic acts of dishonesty.
4. The supermarket was open to the public at set hours and many staff worked on a roster basis. At the end of each working period, staff were able to make their purchases from the store and required to pay for such purchases in the normal manner. The Court accepts that on occasions, staff would be permitted to purchase a perishable bakery item, which would not be suitable for sale the following day at a reduced rate but such allowances were controlled by management.

Procedures and Accounting

5. Farmer Joe’s used a commercial electronic check-out system. Goods would be placed on a counter or bay on the ‘pack side’ of the cashier’s position. The customer would enter the aisle, controlled by the cashier. Most items were bar-coded and the cashier would take the item and pass it over an electronic beam which would create a ‘bip noise’ and record the nature and price of the item, recording the transaction and displaying the information on a screen which could be viewed by both the cashier and the customer. The scanned item would be transferred to the outer-section of the bay or counter, and could be packed by either a staff member or the customer, or if few items collected by the customer. The process would be repeated for the next item.
6. In some instances, the operator could enter the transaction manually in cases such as fruits or vegetables which had not been electronically coded. In some instances, the operator could enter the quantity of identical items to avoid needless repetition.
7. On completion the machine, at the command of the cashier, would print out details of the identity and quantity of the purchase, the price charged and the sum of the transaction. The programme would record the payment tendered by the customer and automatically calculate the change, if any, payable to the customer. A copy of the completed transaction would be printed and given to the customer.
8. The operation is employed throughout the world and well known to customers.
9. Two mechanisms would alert both cashier and customer to any fault in the system or failure, or inadequacy in the scanning process. There would be no identifying ‘bip’ and no display on the screen of the processed item.
10. It was also possible to identify the work station from which the information was recorded.
11. The computer-generated returns were retrieved by management and reconciled with cash returns. A generated return would record:
    • - type of transaction, date and time of transaction;
    • - name of cashier and invoice number;
    • - code and description of item sold;
    • - summary of sales, VAGST component and total of transaction;
    • - amount paid for purchase and change returned to customer; and
    • - net running total for the station.
12. Management was able to prepare estimates for future orders of stock, comparative sales and turnover figures and compare items sold against income received. As with any system, human ingenuity found ways to get around the system.
13. The cashier was required at the end of the trading day or period to reconcile the sum of the money received with the totals recorded by the machine.
14. Management could then reconcile the computer-generated returns with the actual receipts of the cashiers.

Security

15. The premises was equipped with a large number of security cameras with colour displays. Relevant to these proceedings are cameras placed at or near each check-out or cashier station, focused both inwards to the station and the shelves of the corresponding aisles and outwards to the exit area. Further relevant cameras covered the areas and the liquor section, and the ‘bag’ or storage area outside of the trading area where staff and customer bags and the like could be stored.
16. The baggage system allowed customers to leave personal items, not subject to search, upon entry into the store, protecting the company and the privacy of the customer and protected the company from hidden ‘shop lifting’.
17. The Court was able to watch the recode replay of the activities giving rise to these charges. There was a time difference of 1 hour between the camera recorded time and the computer system due to the annual daylight saving adjustment and a further 5 – 6 minutes difference between the ‘server’ setting and real or recorded time on the check-out units. With that allowance one could accurately time the recorded video image with the electronic print out. The parties, witnesses and the Court were able to recognize each defendant.
18. Each camera could record the events for a 24 hour period and would then erase the record and repeat the operation. The impugned transactions in these cases were recorded for the period of 28 October and 1 November, presumably to cover the recording and rest period, monitored during the investigation. The quality of the recordings was excellent, enabling the Court to view and identify specific transactions and the items passing through the cashier’s station. In most instances the prosecution provided camera and/or electronic printouts of customer transactions immediately before and after the one which was the subject of the prosecution. This was done to show that there had been no error, electronic or otherwise, in the transactions complained of. At trial, the prosecution was able to compile and retrieve the impugned transactions and show concurrently the images from different cameras.

Reliability

19. There had been no record of complaints made that particular scanning equipment was faulty or subject to error. Each transaction corresponded with the electronic and printout documentation generated by the system, both at the station and the accounts section.

Methods of Avoidance

20. Evidence at trial suggested 4 main methods of avoidance, namely
    • (1) items would be transferred across the cashier’s bay but not scanned before being placed in the out or packaging area;
    • (2) items were carried through the exit aisle and not placed on the cashier’s tray;
    • (3) multiple identical items (e.g. packets of twisties) would be understated; and
    • (4) items would be keyed as damaged and a lower price recorded without certification by a supervisor.
21. The Court is engaged in separate trials since each defendant was charged with different offences. The evidence in each trial requires separate consideration although within each trial similar fact evidence might strengthen the case as against the particular offender.

Informations

22. Noah was charge with 22 offences amounting to a claimed misappropriation of $684.19. Emi was charged with 16 offences amounting to a sum of $302.70. Each was charged in identical terms alleging breaches of the Crimes Ordinance 1961, sections 85, 86 (g).
23. Noah was charged with theft on his own account on 5 Informations; S3004, S3005, S3006, S3007 and S3008 of 2011. On each of the other Informations he was charged with ‘inciting, counseling and procuring’ another employee in the commission of the crimes.
24. Emi was charged on each offence as ‘inciting, counseling and procuring’ a fellow employee.
25. Neither counsel sought particulars from the prosecution concerning the form of the Informations. Neither counsel sought amendment to the Information or an election as to the form of incitement, counseling or procuring relied on by the prosecution. The provision of particulars is a procedural not substantive provision of law. It is a means of providing a fair trial and avoiding prejudice. Nor did counsel enquire whether or not the prosecution intended to rely on the provisions of the Ordinance section 23 (3).
26. It is the responsibility of counsel, if there is confusion or prejudice, to raise such matters at the commencement of the proceedings or when the prejudice becomes obvious.
27. Appellate Courts will not necessarily intervene when a matter not raised at trial is claimed as a ground of appeal.

Legal Principles

28. The defendants contend that the prosecution has not established that either defendant incited, counseled or procured another to commit a crime. The evidence was that the dishonesty was part of the culture and there was no need for specific communication at each occurrence.
29. Incitement has been held to mean ‘knowingly allow’ (R v Chainey [1913] UKLawRpKQB 187; 1914 1 KB 137). The term procure has likewise been given a wide meaning. In Attorney General’s Reference No. 1 [1975] EWCA Crim 1; [1975] 2 All ER 684, the Court of Appeal stated at 686:

“To procure means to produce by endeavor. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take.”

30. The New Zealand Courts have likewise given a wide meaning to the term (R v Johnston [1962] NZPoliceLawRp 24; [1963] NZLR 92). There is a useful decision of the High Court of Australia in Darkan v The Queen [2006] HCA 34; 2005 227 CLR 373, on the history of accessories and in particular the meaning of ‘common purpose’, counseling and probable consequence.

Incitement

31. Counsel for Noah relied on the decision of the learned Chief Justice in Police v Papalii [2011] WSSC 130, and in particular his wording:

“...Inciting involves an element of persuasion, inducement, coercion or pressure beyond encouragement.”

32. Here it could be said that, given the culture of mutual assistance between the staff, the defendants incited others to defraud the company through their own conduct or inaction. In R v Higgins [1801] EngR 444; (1801) 2 East 5, Le Blanc J stated:

“A solicitation or inciting of another, by whatever means it is attempted, is an act done; and that such an act done with a criminal intent is punishable by indictment has been clearly established.”

33. In New Zealand, the term has been defined to include ‘to rouse, stimulate, urge or spier on’ (Young v Cassels (1914) 33 NZLR 852).
34. However, in this determination, for the purpose of consistency, the Court will apply the approach taken in Papalii (supra) and uphold the defence contention that there is insufficient evidence to establish that either defendant incited the co-employees to commit the actual crimes of theft.

Counsels

35. The definition provided by Oxford 3 Ed. includes ‘to take counsel with others, to deliberate.’ It does not require the use of specific words. Actions or inactions might themselves convey permission, encouragement or suggestion. In R v McKewan 1973 2 NZLR 603, the Court of Appeal described the term as an old form of ‘accessory before the fact.’ Where a person has control over a thing and permits another person to use it, knowing that it is intended to be used to commit an offence, this is sufficient (Bullock [1955] 1 All ER 15).
36. Here each defendant had control of items owned by the company and equipment, and permitted others to take those items from the store. Implicit within the conduct was the counseling of the co-employees.
37. The conduct of each defendant on the prosecution’s case, if proved on the evidence, would constitute acts of counseling.

Procures

38. Reference has already been made to the English decision of Attorney General No. 1 ((supra); see also R v Broadfoot [1976] 3 All ER 753). Procurement may be personal or through the intervention of a third party (R v Cooper [1833] EngR 447; 5 C & P 535). It can be direct or indirect, by evincing an express liking, approbation or assent to another’s criminal design of committing an offence (see generally: Archbold 39 Ed. 4140).
39. The above approach has been taken in Samoa in Papalii (supra) where Sapolu CJ stated the ordinary meaning to imply achievement of the result intended here the economic gain of the employees with the causal link being the procuring and the offence in the sense that the offence was committed ‘in consequence’ of the procuring.

Common Purpose

40. The prosecution relies on the provisions of the Ordinance section 23 (2) in support of its case. That subsection provides:

“Where 2 or more persons form a common intention to prosecute any on lawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was or ought to have been known to be a probable consequence of the prosecution of the common purpose.”

41. Liability through common purpose has been the subject of many authorities (Brennan v R 1936 55 CLR 235; Malcolm 1951 NZLR 471, Anderson and Morris v R 1966 CLR 110; Loversey and Peterson 1976 1 QB 352) and requires no further detailed analysis. The frequency of the transactions, the common factor of the involvement of staff members, mutuality of conduct and that each stood to gain with the assistance of others clearly establishes common purpose and criminal responsibility of each involved in a common transaction.
42. The causing or bringing about dishonest conduct even if carried out in another country is sufficient to constitute common purpose. A probable consequence, here economic benefit, of the perpetuation of an unlawful purpose is objective and to be determined by the ‘fact finder’ either assessors or trial Judge (Stuart v The Queen [1974] HCA 54; 1974 134 CLR 426). A person might be convicted even for a unintended or undesired consequence as in some cases involving death to a victim.
43. In this case each defendant was involved in a common purpose to defraud, through others, the common employer.

Emi Transaction

44. Emi was hired as a cashier on 17 July 2011. The evidence was that new staff would undertake an initial training session and received assistance from other more experienced operators. The cashier’s duties included
    • Serving customer purchases through the cash register;
    • Ensure all items presented by all customers, including staff members, for purchase are scanned and recorded in the cashier register;
    • Ensure the correct amount is paid by all customers for their purchases and that the correct change is paid back;
    • Ensure all monies received are kept in the cash register;
    • Responsible for safekeeping of all monies received;
    • Attend to customer queries;
    • Report and/or refer any customer complaints or any other matter brought to their attention to the Store Manager or Supervisors.
45. There were two shifts operating between 6:00 a.m. and 9:00 p.m. Staff could conduct their own shopping at the conclusion of the night shift.
46. Tania Lui, the finance manager since 2009 and employed since 2006, conducted much of the investigation. She compiled a computer reconstruction showing each transaction. A summation of her evidence is that each case involved another employee.

Information	Date	Item	Occurrence
S3055	31 October	Shasta Soda $1.80	No scan or recording.
S3052	31 October	Bag of Toast $6.00	Staff packer passes item to security officer; no scanning or payment.
S3041	31 October	Bag of Rice $51.30	Security officer carried bag through aisle; no scanning or payment. Later collected by Noah from baggage area.
S3042	31 October	Packet of Cereal $19.60	4 packets of Krissy snacks; scanned. Cereal transferred without scanning or payment. Packed by staff and taken by another.
S3043	31 October	$19.60	1 Devondale milk recorded for staff. Cereal taken by staff straight to packing area in sight of defendant. Change given.
S3044	31 October	$3.45	A number of items were presented by a co-employee and two packets of chips and one of biscuits not scanned or recorded.
S3045	31 October	$24.00	Incomplete scanning and passing of noodles and chips without attempted scanning; other employees involved.
S3046	31 October	$16.60	Assisted former co-employee in recording baby wipes valued at $17.10 as a damaged goods charged at $00.50; no authorisation.
S3047	31 October	$12.80	Co-employee returns and removed, in presence of defendant, 2 bowls of noodles; 1 packet keke recorded as damaged items without authority.
S3048	31 October	$15.80	2 items, scanned and paid by co-employee; 2 items – sugar and hair conditioner not scanned or paid.
S3049	31 October	$4.50	3 identical items not scanned or recorded; divided with 2 co-employees.
S3050	31 October	$6.00	10 items scanned; 2 including butter, not scanned and passed to co-employee.
S3051	31 October	$7.80	Item scanned and paid. 1 packet of biscuits not scanned; and transferred to co-employee.
S3040	31 October	$6.00	2 items purchased and paid. Chili choc and daisy bun un-scanned and unpaid. Defendant claimed supervisor advised no charge for old bakery objects.
S3053	31 October	$17.60	1 item scanned and paid by co-employee. Bushtail diapers handed directly to co-employee for packing; no scan or payment.
S3054	31 October	$87.87	Items not scanned.

47. The names of the co-employees have not been stated since it may be that their cases have not been determined. The Court accepts the video evidence and the admissions made by the defendant in her caution statement, made on 8 November 2011. In that statement she stated that she had followed the practice of the other female cashiers.
48. In most cases, the prosecution led evidence of the purchase transactions made immediately before or after the one which was the subject of the charge, in order to show that there could not have been an error or carry over of the item which was the subject of the charge. The Court accepts that there were no faulty transactions caused by electronical failures.
49. The Court is satisfied by the evidence, both direct and inferential, of the guilt of the defendant in each case. It is satisfied beyond reasonable doubt in each instance that the defendant both procured the crime and was a party by virtue of the Ordinance section 23 (2).

Noah Edwards

50. Noah was originally engaged as a part time employee while he was still at school, and employed full time between 22 September and 9 November when he was dismissed.
51. The prosecution evidence was similar to that led in Emi’s case and requires little repetition.
52. Noah was charged as a party in his own right on 5 occasions and 17 jointly with a co-employee or, in one instance, a friend or relative of a co-employee.

Information	Date	Item	Occurrence
S3004/11	29 October	2 Bottles of Vailima $11.60	Customer purchase liquor from liquor section; presents receipt to defendant who uses same document to obtain Vailima for own use.
S3009	29 October	$82.65	Customer with friend or family of security purchased goods. Many items not scanned or paid for. Change given to customer.
S3010	29 October	$57.24	Staff member involved. Items not scanned.
S3011	29 October	Misc. $66.50	Defendant presses price enquiry only. 8 items transferred; two scanned; change given.
S3005	29 October	Infant Formula $56.20	Defendant passes formula to co-employee; removed to bag counter. Later collected by defendant.
S3012	29 October	Bag of Rice $51.30	Security officer carries bag of rice through aisle without scanning; defendant passes it to packing area.
S3014	29 October	Infant Formula $47.10	Tin placed on defendant’s counter, who passes it without scanning to second employee, and removed by third employee.
S3013	29 October	Krissy Snacks and Chicken $23.00	Those items not scanned and passed to employee.
S3015	29 October	Sausages $32.00	These items not scanned.
S3016	29 October	Shasta Soda and Bakery $17.60	4 items scanned; 3 items not scanned.
S3008	1 November	Rice $51.30	Bag of rice taken past counter by employee; kept on bag shelf and later collected by defendant.
S3017	31 October	Margarine $5.50	Entered as damaged item. No authorization. Defendant does not leave station to obtain authority.
S3018	1 November	Chips and Vailima $12.30	Number of Vailimas Taken and stored with chips in a box kept at the bag section. Divided by employees including defendant. Sequence followed by cameras.
S3019	1 November	Chips $18.60	Forms part of transaction in S3018.
S3007	1 November	$38.70	4 Bottles of Vailima and 5 packets of Mr Chips, shared with other employees.
S3020	1 November	Milk and Twisties $16.20	Milk and twisties not scanned with other items.
S3021	1 November	Pizzas and Juice $30.50	Items not scanned with other transactions; denied negligence.
S3022	1 November	Toiletries $7.05	Soap and toothpaste; not scanned.
S3006	1 November	Bread and Tuna $11.75	4 bread and 1 tuna; not scanned. Customer not employee. Defendant took money; did not record it and placed it in drawer; gave change.
S3023	1 November	Bakery Products $18.50	1 bread; not scanned and other items.
S3024	1 November	Misc. $9.10	9 items supplied; 2 properly recorded. 2 recorded as damaged items. Remaining items not scanned. Cash of $5.00 tendered and change given.
S3025	1 November	Chili Chocs $10.50	Recorded as damaged items without authorization.

53. The defendant declined, as was his right, to answer questions under caution. He gave evidence at trial. The Court does not accept the accuracy of his account. It was internally inconsistent and complicated with the clear observations recorded by the cameras. He was never seen to leave his station to consult with a supervisor on the question of damaged goods. He was seen physically handing the items in a manner designed not to activate the scanner. He made eye contact with purchasers. It would be impossible not to see any failure of the ‘check out’ procedure to show up on the screen even if there had been a failure of the ‘noise’ recording.
54. The sheer volume of the transactions excluded negligence or carelessness from the possibility of error. His claim that some of the items seen in the outside area were brought by employees before the shift lacks common reason. His attempt to blame others whilst professing ignorance of a dishonest work culture is not credible.
55. In almost every case the preceding and succeeding transaction was admitted into evidence to negate any possibility of error by the electronic system.
56. The Court is able to rely on:
    • (1) direct evidence of the cameras;
    • (2) direct evidence from the computer printouts;
    • (3) similar fact evidence;
    • (4) the volume of the transactions, and the size and value of the omissions; and
    • (5) inferential reasoning.
57. The Court is satisfied beyond reasonable doubt that the defendant is guilty of each Information.

ORDERS:

(1) Emi Taumateine is found guilty to the requisite degree of Informations No. S3040, S3041, S3042, S3043, S3044, S3045, S3046, S3047, S3048, S3049, S3050, S3051, S3052, S3053, S3054 and S3055, amounting to $302.72; and
(2) Noah Edwards is found guilty to the requisite degree of Informations No. S3004, S3005, S3006, S3007, S3008, S3009, S3010, S3011, S3012, S3013, S3014, S3015, S3016, S3017, S3018, S3019, S3020, S3021, S3022, S3023, S3024, S3025 of 2011, amounting to $684.19.

..............................

(JUSTICE SLICER)