Police v Faamausili [2013] WSSC 115 (22 July 2013)

SUPREME COURT OF SAMOA

Police v Faamausili [2013] WSSC 115

Case name: Police v Faamausili

Citation: [2013] WSSC 115

Decision date: 22 July 2013

Parties: POLICE (prosecution) and TOGA FAAMAUSILI male of Malie

Hearing date(s): 9 – 12 July 2013 and 15 July 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
E Niumata for prosecution
T I Ponifasio for defendant

Catchwords:

Words and phrases:

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

Cases cited:
Police v Faisauvale [2010] WSSC 55
Failsauvale v Police [2010] WSCA 8
Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521
Assopardi v R [2001] HCA 25; (2001) 205 CLR 50
Shepherd v The Queen (1990) 170 CLR 513
Thomas v R 1972 NZLR 34
R v Melrose 1989 QB R 572

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

TOGA FAAMAUSILI male of Malie

Defendant

Counsel: E Niumata for prosecution

T I Ponifasio for defendant

Hearing: 9 – 12 July 2013 and 15 July 2013

Reasons for Decision: 22 July 2013

Charge: Theft As a Servant (22 Counts)

REASONS FOR DECISION OF SLICER J

1. Toga Faamausili (“Toga”) has been charged with 22 counts of Theft As a Servant, contrary to the Crimes Ordinance 1961, sections 85, 86 (1)(g). Before trial, the prosecution indicated that it would offer no evidence in support of Information S312/12 and it was dismissed. These Reasons concern the remaining 21 charges.
2. Toga was, at all relevant times, an employee of Farmer Joe Supermarket (“Farmer Joe”) which itself was owned by the company Ah Liki. Ah Liki operated as a wholesaler for Farmer Joe and other trading concerns. It was the main supplier of trade goods to the supermarket from its warehouse at Palisi. The Defendant had been employed by the wholesaler but was transferred to Farmer Joe, some time before these offences, to work as a driver.
3. Among his duties was the collection and delivery of goods ordered by Farmer Joe from the wholesale warehouse to the supermarket.
4. An order would be generated usually in a document called an OD but sometimes in handwritten form from the meat and ‘cold goods’ section. In some instances, requiring an immediate response, an order would be made by telephone. If such occurred, it would remain necessary for a document to be created recording the order. Reconciliation of the tax invoices with documentation held by the supermarket was essential and central to the prosecution’s case.

Legal Principles

5. The prosecution was required to prove:
   • (1) Toga was an employee of Farmer Joe, and this is not a matter disputed by the parties;
   • (2) The goods were the property of Farmer Joe. No issue was taken at trial on this ingredient; and
   • (3) The defendant stole the items identified in each Information.
6. The prosecution’s case was that the defendant was only authorised to take and deliver goods on the instructions of the receiving officers or managers of Farmer Joe. The defendant is alleged to have ordered goods without authority and caused a person working in the finance section to create a tax invoice identifying the items and their value, and obtained possession of those items from the delivery section of the warehouse but failed to deliver such items for his benefit, either by sale to others or his personal use. The conduct was said to have taken place between July and December 2011 and the value of the items amounted to SAT$46,443.91.
7. The defendant made no admissions. However, the prosecution relies on his failure to return to work as indicative of a guilty mind.
8. The case against him is circumstantial. The Court is required to consider whether there is a reasonable hypothesis consistent with innocence and, if so, ought give the defendant the benefit of the presumption of innocence. The test has been applied in Samoa by this Court in Police v Faisauvale [2010] WSSC 55 and the Court of Appeal in Failsauvale v Police [2010] WSCA 8.

Procedures

9. Toga was the primary driver responsible for the loading and delivery of items from the Palisi warehouse to the supermarket. A sales representative or manager would order replacement stock on a regular basis and any new or special products. Special orders were usually the responsibility of the manager or authorised officer responsible for meat and other perishable products.
10. In many cases, a supervisor or responsible officer would check the warehouse to see if the desired items were in stock. Irrespective of whether it was a routine re-supply or a special order, the system required the production of a tax invoice by a cashier through a computerized system: SMS. In 2011, there were four such machines, assigned to a particular staff member. That person was provided with a password enabling access to the machine.
11. The tax invoice generated by SMS provided:
    • (1) Transaction number, Account (here: FARJ001);
    • (2) Date, time, name of cashier and register number;
    • (3) Billing and shipment information;
    • (4) Item code, description, quantity and price;
    • (5) Total including VAGST amount; and
    • (6) A reference entry stating the name of the intended driver.
12. SMS would produce 3 copies. The original would be taken to the loading bay at which the consigned goods were stacked and the delivery vehicle loaded with a check made by a supervisor who, if satisfied, would stamp the invoice with the words ‘supplied, date and Ah Liki Wholesale’, certifying the loading. The driver, here Toga, would deliver the consignment to the warehouse where the receiving officer would check the unloaded items and, if satisfied, would initial the invoice, certifying delivery. A separate copy would be provided to the finance section.
13. There was a further document referred to as a ‘tick’ docket for checking the items supplied and received.
14. A reconciliation of the documents held by Farmer Joe and Ah Liki would be made, at regular intervals, by a finance officer who would stamp the invoice as ‘received’ and a ‘posted’ notation which included the date of posting. Thus the reconciliation would ensure that items consigned were delivered and the appropriate amount charged to Farmer Joe would be paid. If the finance officer could not find an appropriate document, he or she would contact Farmer Joe and obtain its copy for reconciliation. Any genuine errors could be remedied by the issue of a debit or credit adjustment.
15. In December 2011, a finance officer noticed a pattern of irregularity between the documentation generated by Ah Liki and the returns by Farmer Joe. The pattern concerned the frequency of tax invoices generated at Palisi and their non return or receipt at the supermarket. The pattern concerned three major items: eggs, lamb flaps and cooking oil. An investigation was undertaken under the supervision of Tania Lui, the finance manager and eventually the defendant was prosecuted.
16. The discrepancies were that the tax invoices generated at Palisi could not be located at Farmer Joe showing receipt of the goods; no document trail of receipts and the coincidence of the items and the time regularity of the taking.
17. The defendant did not give evidence and no adverse inferences can be drawn from that exercise of right. The defence approach was that there had been systematic failures in the SMS entries compounded by staff errors. The prosecution’s case was comprehensive and designed to show a consistent pattern, the centrality of the defendant to the transactions and the coincidence of items. It produced all documentation for each impugned period to show that systematic procedures were followed for items actually delivered and the centrality of the defendant in cases where there was evidence of irregularity.
18. The critique of the defence was that the claimed coincidences were repeated in other transactions when the goods were delivered to the supermarket. It is convenient to consider each of the charges in the manner set out below. Each Information was lodged in 2012 and each allegation is said to have occurred in 2011.
19. The amounts stated include the VAGST component which was paid by Farmer Joe.
20. In some instances relating to the same date, but alleged in separate Informations, the tax invoice stated both items from the one transaction.

Impugned Transactions

Information No. Date	Cashier, Register & Transaction	Item Value	Reference Supply Mark	Reception
310 2 July	Vagai No.1 160127	Eggs 15 Cases $809.90	Nil Yes	Nil
311 25 July	Maiava No.4 162646	10 x 20 kg of Lamb Flaps $2,501.01	Toga Yes	Nil
313 17 August	Maiava No.4 165064	5 Bags of Cabbage $349.95	Nil Yes	Nil
314 17 August	Maiava No.4 165064	10 x 20 kg of Lamb Flaps $2,501.01	Written Yes	Nil
315 1 September	Maiava No.4 166585	10 x 18 Litres of Sania Oil $930.00	Written Yes	Nil
316 7 September	Maiava No.4 167230	10 x 18 Litres of Sania Oil $930.01	Nil Yes	Nil
317 14 September	Tafunai No.4 677911	20 x 18 Litres of Sania Oil $1,860.01	Toga Yes	Nil
318 20 September	Tafunai No.4 168638	15 Cases of Lamb Flaps $3,751.70	Toga Yes	Nil
319 28 September	Taunuuga No.3 169384	10 Cases of Lamb Flaps $2,501.10	Toga Yes	Nil
320 6 October	Maiava No.1 170194	20 Cases of Lamb Flaps $5,022.20	Toga Yes	Nil
321 14 October	Taunuuga No.3 171073	10 Cases of Lamb Flaps $2,501.10	Toga Yes but Different Date	Nil
322 14 October	Taunuuga No.3 171073	20 x 18 Litres of Sania Oil $1,860.00	Toga Yes but Different Date	Nil
323 24 October	Tafunai No.4 172034	20 x 18 Litres of Sania Oil $1,860.00	Nil Yes	Nil *additional note by Westerlund for eggs.
324 9 November	Tafunai No.1 173406	15 Cases of Lamb Flaps $3,631.95	Toga Yes	Nil
325 1 December	Maiava No.4 175506	10 x 5 Litres of Cooking Oil $1,022.60	Handwritten Yes	Nil
326 1 December	Maiava No.4 175506	1 x 20 kg of Lamb Flaps $3,631.95	Handwritten Yes	Nil
327 7 December	Taunuuga No.1 176125	20 x 15 doz Eggs $1,500.00	Toga Yes	Nil
328 9 December	Taunuuga No.1 176337	20 x 5 Litres of Sania Oil $2,045.20	Toga Yes	Nil
329 12 December	Taunuuga No.1 176684	20 x 15 doz Eggs $1,500.00	Toga Yes	Nil
330 17 December	Tuimaseve No.3 177296	20 x 20 kg of Lamb Flaps $4,690.00	Nil Yes	Nil
331 19 December	Tuimaseve No.3 177581	20 x 10 Litres of Sania Oil $1,044.20	Nil Yes	Nil

Delivery and Receipt of Goods at Farmer Joe

21. The Court accepts the evidence of Atinae Tagataese and Talu Viliamu that the delivery or supply stamps were properly entered showing that the items left the warehouse at Palisi and that they were received and verified on arrival at the supermarket. The omission of the ‘received’ stamp and the initials of Talu Viliamu show that the items were not received by Farmer Joe.

Evidence of Cashiers

22. The prosecution, with one exception Sefulu Vagai called the cashiers who had generated a relevant tax invoice, namely

Sefulu Vagai Register 1 1 occasion

Ana Maiava Registers 1 and 4 8 occasions

Paulina Tafunai Register 4 4 occasions

Taunuuga Salafaitele Register 4 6 occasions

Junior Tuimaseve Register 3 2 occasions

23. Each of the cashiers deposed that:
    • (1) They could not generate a tax invoice without authorisation;
    • (2) The SMS system performed automatic calculations of the code, calculations and the name and number of the cashier;
    • (3) A tax invoice would only be provided to the delivery person or the person with an order number;
    • (4) Tax invoices could be generated verbally by an authorised person or a specialist employee in charge of a cool room or meat section of the supermarket; and
    • (5) The invoice would be handed to the sales representative or driver ‘face to face’ and each recalled handing the impugned invoices to the defendant.
24. The Court accepts the witnesses as honest and reliable employees. Each cashier had no opportunity to falsify the invoices, unlawfully collect the items and dispose or deliver them unlawfully unless complicity with a co-employee. There was no suggestion by the defence that a cashier had engaged jointly with Toga to defraud the company.
25. The above finding does not itself prove a circumstantial case. In some cases the invoice contains no order number solely attributed to the defendant or his name as the recipient of the tax invoice. In some instances there is no identification of the name of the recipient as generated by SMS. In four instances Toga’s name has been handwritten onto the invoice. There is varying evidence on this latter point. There is disagreement with respect to Information S313 of the identity of the writer and in another instance no evidence of when the writing was made. A witness stated that in relation to Informations S314, 315, 325 and 326 the writing was added to the invoice at the loading bay to verify the consignment.
26. The Court is required in a circumstantial case to acquit if there is a reasonable hypothesis consistent with innocence. Although here the Court would be entitled to pay regard to similar fact evidence to strengthen the prosecution’s case, the Court will give the benefit of the doubt to the defendant in those cases were Toga’s name was not entered through the SMS system. Although Toga was the primary driver, the records show that others made deliveries between Palisi and Farmer Joe.
27. Informations 310, 313, 316, 330 and 331 have no SMS record of the person for or to whom it was delivered. There is evidence that the items were dispatched from Ah Liki but the missing component is crucial to the case. In Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521 and in the following case of Assopardi v R [2001] HCA 25; (2001) 205 CLR 50, the High Court stated:
    • (1) that guilt should not only be a rational conclusion but the only rational conclusion that can be drawn from the circumstances; and
    • (2) an immediate conclusion of fact in the inferential process constitutes an ‘indispensable link in a chain of reasoning towards an inference of guilt’ (Shepherd v The Queen (1990) 170 CLR 513) such fact itself be proved beyond reasonable doubt.
28. The same principles have been applied by the New Zealand Courts (Thomas v R 1972 NZLR 34).
29. Information S323 has a further complication. Dee Ann Westerlund, an authorised officer had added, in handwritten form, an additional order for eggs which were required to replace some which had been broken. Given the notation it is a reasonably open hypothesis that the items were delivered. No receipt stamp is shown on either the Palisi or Farmer Joe document and it may be that the urgency of the supply of broken eggs caused a breach of required procedures. Although there were tick or X marks showing checking and a delivery stamp entered onto the invoice, those matters do not establish receipt or delivery by the defendant.
30. It follows that Informations 310, 313, 316, 323, 330 and 331 ought be dismissed and verdicts of acquittal entered.

Handwritten Entries

31. In the transactions comprised in Informations 314, 315, 325 and 326, the name of the defendant was handwritten onto the invoice. It is said that the omission of the SMS entry had been noticed at the loading bay and the name of the driver entered manually. Such might be the case but there was some conflicting evidence as to the identity of the writer and the difficulty of memory that a dispatcher could remember a specific transaction long after the event.
32. The Court takes the same approach as in the preceding section, paragraphs 27. The defendant is given the benefit of a reasonable hypothesis consistent with innocence in relation to Informations 314, 315, 325 and 325, and each ought be dismissed and verdicts of acquittal returned and entered.
33. The above conclusion is not to be seen as a suggestion of impropriety on the part of any of the delivery or finance staff. No question of integrity was raised at trial or entertained by the Court. The errors were human and require greater care to detail.

Date of Stamps

34. The defendant made something of the difference between supply stamps and the SMS date. There is a simple explanation namely, that the differences are minor and reflect the change of a manual implement ‘the date stamp’ and an electronic programme. It is also relevant that deliveries were made on a Saturday although the finance section may have not returned until a Monday. Change of date stamp may be an additional factor.
35. It does not assist the defence in its critique of the prosecution’s case.

Reasonable Hypothesis Consistent with Innocence

(1) Goods misplaced by receiving officers and received by Farmer Joe. Not open on the evidence;
(2) Stolen by receiving officers. Rejected by the Court in acceptance of evidence of receiving officers. Not open on the evidence;
(3) Goods bypassed the delivery procedures and directly stored in the Farmer Joe premises. Not open on the evidence; and
(4) Systematic failures. Already addressed by the Court with dismissal of some of the charges.

Coincidence

36. The following are matters relevant to the claim of coincidence:
    • (1) None of the documentation records the receipt of any of the items at Farmer Joe;
    • (2) All of the tax invoices have a delivery or supply slip showing that the items had been checked out;
    • (3) With one exception (Information S313), the impugned items were similar namely, eggs, lamb flaps and Sania cooking oil;
    • (4) There was a regular supply intervals between deliveries and quantities supplied;
    • (5) Toga was the allocated and regular driver for Farmer Joe;
    • (6) There was no ‘received’ stamp on any of the impugned invoices;
    • (7) In one case, only (Information S310 dismissed for other reasons) was the initial of the receiving officer not placed on the invoice document; and
    • (8) All other transactions for the period or day on which the transaction was made proved both delivery and receipt event if there was a minor error in the document.

Flight

37. The defendant took sick leave and did not return to work. He gave no explanation for failure to return after the period stated in the original medical certificate. He did not take part in the investigation undertaken by the company. The defendant had provided a medical certificate towards the end of 2011 but did not return to work even after 3 weeks beyond the time stated in the certificate. The failure provides some but slight support for the prosecution’s case (R v Melrose 1989 QB R 572).

Circumstantial Case

38. The documentation for the remaining transaction is sufficient to establish a circumstantial case on the remaining Informations. The items were consigned in accordance with a tax invoice generated from the defendant or at least entrusted to his custody. Those same items were checked and loaded into the work vehicle driven by Toga. Those items were neither delivered to nor unloaded at the supermarket. There is no other reason why or how they went missing between the two points. Toga has custody of the items.
39. That reasoning is strengthened by the matters identified 1 – 8 stated above in paragraph 36.
40. The Court is satisfied beyond reasonable doubt that the defendant is guilty of theft as a servant as alleged in the following matters:

Information	Date	Value
311	25 July	$2,501.01
317	14 September	$1,860.01
318	20 September	$3,751.70
319	28 September	$2,501.10
320	6 October	$5,022.20
321	14 October	$2,501.10
322	14 October	$1,860.00
324	9 November	$3,631.95
327	7 December	$1,500.00
328	9 December	$2,045.20
329	12 December	$1,500.00
Total SAT		$28,674.27

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

(JUSTICE SLICER)