Police v Tiatia [2013] WSSC 116 (22 July 2013)

SUPREME COURT OF SAMOA

Police v Tiatia [2013] WSSC 116

Case name: Police v Tiatia

Citation: [2013] WSSC 116

Decision date: 22 July 2013

Parties: POLICE (prosecution) and MATILA TIATIA female of Puipaa and Gataivai

Hearing date(s): 15, 16, 19 – 23 November 2012, 3 – 7 December 2012 and 10 December 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
L Taimalelagi and E Niumata for prosecution
R Schuster for defendant

Catchwords:

Words and phrases:

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

Cases cited:
Browne v Dunn (1893) 6 R. 67, H.L

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

MATILA TIATIA female of Puipaa and Gataivai

Defendant

Counsel: L Taimalelagi and E Niumata for prosecution

R Schuster for defendant

Hearing: 15, 16, 19 – 23 November 2012, 3 – 7 December and 10 December 2012

Written Submissions: 14 May and 5 June 2013

Reasons for Decision: 22 July 2013

Charge: Theft As A Servant

REASONS FOR DECISION OF SLICER J

1. The Court has undertaken the trial involving two other persons, heard together, concerning Matila Tiatia (“Matila”), Risati Niko (“Niko”) and Vaililigi Tavita (“Tavita”) and involving allegations of Theft As a Servant contrary to the Crimes Ordinance 1961, sections 85 and 86(1)(g) (“the Ordinance”). Both trials involved the conduct of Matila as an employee of Ah Liki Wholesale (“the Company”) over a lengthy period between May 2008 and July 2009. Each involved another member of the staff, who had been jointly charged with their part in the separate series of conduct but whose cases have been disposed of before or at the commencement of these proceedings. Each of those persons gave evidence at trial and each will be regarded, for the purpose of evidence, credibility, corroboration and the like, as an accomplice.
2. The trials will, for the purpose of convenience and clarity, be referred to as the ‘Niko’ and ‘Tavita’ transactions. Each trial concerned the misappropriation of money and the falsification of documentations connected with the supply of goods owned by the Company, acting as a wholesaler and their delivery or otherwise to retail customers. Each involved the same corporate system and protocols, and differing methods, common to the Niko and Tavita transactions, employed in the defalcations.
3. Much of the evidence especially that of systems, documentation, auditing and the like, was common to both cases and evidence corroborating the accomplices likewise admissible and relevant.
4. There were over 1,000 Informations laid against the Defendants. During the trials some were found to be duplex or ineffective and in others the documentary evidence found to be insufficient, ambiguous or the supporting evidence found to be insufficient to warrant a finding, to the requisite degree, of guilt. In such instances they were withdrawn and dismissed or dismissed by the Court instantly. They will be separately identified in these Reasons.
5. In written information supplied to the Court by the Prosecution, the following Informations were withdrawn during the trial.

Niko Transactions	Tavita Transactions
Informations	Informations
5163	2622
3771	2623
3983	2624
3292
3351
5140
3428
3430
3443

6. These were Informations which had no or insufficient numbering to properly identify the allegation. The Prosecution contends that 22 Informations (including the ones above identified) were either dismissed or withdrawn in the Niko transactions and 11 similarly disposed of in the Tavita transactions.
7. In cases where the Court is not satisfied of other errors, the Defendant will be given the benefit of the doubt.

Principles of the Substantive Law

8. The Ordinance relevantly provides:

Section 85(1)(a) – (1) Theft or stealing is the act of fraudulently or dishonestly taking, or converting to the use of any person, anything capable of being stolen, with intent: (a) to deprive the owner or any person having any property or interest therein permanently of such thing or of such property or interest; and

Section 86(1)(g) – (1) Everyone who commits theft is liable to imprisonment for a term not exceeding: (g) seven years if the property stolen is anything stolen by a clerk or servant which belongs to or is the possession of his employer.

9. The allegations are that in the two series of transactions the Defendant shared some of the money with another. A defendant remains criminally responsible even if he or she does not receive the whole of the misappropriated property (The Ordinance section 23).
10. The Prosecution is required to prove:
    • (1) Matila was employed by the Company;
    • (2) The Company owned the money or goods, or was entitled to the proceeds of any property ‘sold’ or provided to a customer;
    • (3) In cases where a client operated an account with the Company, the Company was entitled to the debit entered onto the account following the delivery of its property to the client; and
    • (4) Matila was a party to the theft of such money. In most cases involving an account, the client paid money to the employee which was not passed on but stolen through receipt and non delivery to the Company.
11. The Prosecution case is that in each impugned transaction, the money was paid to a co-employee and divided between that employee and the Defendant. As such, the Prosecution is required to prove, to the requisite degree, that the Defendant either/or:
    • (1) Formed a common intention with either Tavita or Niko to commit the unlawful act of stealing;
    • (2) Did or omitted an act for the purpose of aiding Tavita or Niko to commit the act of stealing; or
    • (3) Abetted Tavita or Niko to commit the act of stealing.
12. There was no issue that the three persons were, at the relevant times, employees of the Company nor that the Company was the owner of the property. The terms aid and abet can be dealt with as one. Matila either assisted or she did not. That she, by her presence, may have provided additional resolve to either or both of the others is irrelevant if she did nothing to facilitate the acts of dishonesty.
13. There were no significant differences between the parties as to the law relevant to these proceedings.

Principles of Evidentiary Law

14. The trials encompassed more than 3,000 documents. The compendium of Prosecution exhibits, each comprising numerous documents and folders, is recorded “Exhibit P1 – P146”. The trials themselves were conducted over some 3 weeks. The Defendant gave evidence and denied any wrongdoing. On her case, each of the other employees committed the offences, absent her knowledge or involvement. Her credibility would be lessened on proof of any or a number of the Informations.
15. The Prosecution relied strongly on the fact that Matila was the only employee who was common to each act and that Niko and Tavita undertook different duties, worked apart and were not complicit with each other. On its case, the schemes were impossible to undertake without the knowledge and participation of the one employee through whom each transaction passed, processed and was forwarded to the central finance and compliance officers. There was no suggestion at trial that other officers of management were responsible for the defalcations.
16. Neither did the Prosecution confine its case to ‘word on word’. It called as witnesses Risati Niko and Vaililigi Tavita but did not seek to prove its case solely on their testimony. It relied on documents, certifications by Matila, her writings, calculations and returns, and the accounts of other employees and their investigations and the nature of its systems, computerized and manual, to show culpability.
17. The Court applies the following evidentiary and judicial principles in reaching its determination:
    • (1) It must be satisfied beyond reasonable doubt on each of the Informations before any finding is made adverse to the Defendant;
    • (2) The pleas or convictions of the other Defendants are irrelevant to the process, except as to their credit;
    • (3) The Court can have regard to similar fact evidence in considering a specific charge;
    • (4) The Court will not consider whether or not to accept the evidentiary principle that the evidence of one accomplice might corroborate that of another. Evidence of an accomplice, here, ought be corroborated independently. Nevertheless, corroborated joint conversation or presence at a particular time, might be more readily acceptable if the general evidence has been corroborated;
    • (5) Coincidence and systematic evidence is relevant in support of the Prosecution’s case;
    • (6) Inference may be drawn by admissible documentation, the position held by Matila and her initials or writing on;
    • (7) The Defendant’s conduct subsequent to inquiry or investigation is relevant to the case; and
    • (8) The Prosecution case is mixed, consisting of direct oral evidence, voluminous documentation, systems comparison between documents, and inferences to be drawn from the position held by the Defendant and her signature, initials or certification (confirmed by other witnesses) by the Defendant. Given the complexity of the case and the number of impugned transactions, the Court will treat the whole of the case (the sum of the evidentiary pieces) as a circumstantial case. If, on the evidence, an innocent explanation or hypothesis consistent with innocence, or absence of a particular piece of evidence especially documentation, the Court will apply the presumption of innocence and acquit the Defendant on that Information. That approach is to the advantage of the Defendant.

Sales and Delivery System

18. The Company operated a wholesale and delivery system. It divided its customer base into areas and allocated a vehicle and staff team to each area. Ordinarily, the team would consist of a sales representative (also described as the Delivery Supervisor), a driver and loader. At the customer site, goods previously ordered or requested at the premises would be supplied. The sales representative would issue a delivery invoice which would be checked and acknowledged by the customer. The sales representative would receive and account for payment, or if there was a credit facility record the transaction for later entry into the central accounting system. The sales representative was authorized to receive payments for goods previously delivered and account for such money in a separate part of a summary document.

Sales Representative Procedures

19. The sales representative used an invoice book with 3 leaves, with a carbon sheet for copying. The primary receipt was provided to the customer, the second removed and provided to the Accounts Section and the third remained fixed to the invoice book. The invoice records each individual item sold, its price and total. When the customer pays on delivery it is marked. Any corrections made are to be reported to a supervisor who is authorized to confirm the alteration before referral to the Accounts Section. The sales representative is personally responsible for alteration between their making and non-authorisation or confirmation. Here the Prosecution case is that both Niko and Tavita would alter the invoices so as to falsify the amount owed and paid so as to accord with the cash delivered to the cashier. The Prosecution case is that such could not be carried out without complicity by a member of the Accounts Section, in this case, the Defendant. The Prosecution further contends that on many occasions Matila would advise Niko and Tavita on the alterations to be made so as to make her entries and reconciliations more consistent and credible. Although Niko and Tavita operated separately, the scheme could not operate without the guidance and assistance of the one person who controlled the end result, namely the Defendant.

Return and Restocking Procedures

20. On return from the delivery round, the sales representative was responsible for an initial reconciliation of the sales invoices and money received for past accounts or on the daily sales. Concurrently, the vehicle would be restocked, by a separate unit, with replacement items and, if necessary, for any special orders made through the Company. Absent exception it would be equipped with the same quantity and variety of goods carried on a regular basis. The restocking procedure would itself be subject to reconciliation processes to be separately considered.
21. The sales representative would then prepare a Daily Summary document recording the sales transactions, debts collected and credit sales which would be provided to the cashier together with the money received. It was not the cashier’s responsibility to check or query alterations to invoices. Such would be time consuming (given the number of vehicles, deliveries and sales representatives) and logistically impossible. The cashier would confirm that the cash deposited accorded with the amount recorded in the appropriate section of the Daily Summary document. The cash would be counted in the presence of a supervisor. The signed Daily Summary document and cash were forwarded to the Accounts Section. In this case, originally involving more than 1,000 instances, the documentation was forwarded to Matila for further processing.
22. Concurrently, the sales representatives would total the cash or negotiable instruments (if any) and deposit the same with a cashier whose operations were undertaken at a different location from the Accounts Section. Such was both a security protocol and a means of preventing confusion between the sales representative and a number of accounting staff. Likewise it will be separately considered. It remained the initial responsibility of the sales representative to check and reconcile the money received with the sales documentation. Collusion between the representatives and the cashier would be impossible since the procedures required further reconciliation and auditing by the Accounts Section. The ‘restocking’ process was also separate from the sales representative / primary cashier process.
23. The documentation would be then transferred to the Accounts Section.
24. Niko and Tavita were sales representatives who worked different routes and from different vehicles. They had little, if any, employment contact except occasionally when in the same room, reconciling their daily receipts and records. The persons who had common contact would be the receiving cashier and primarily Matila as the responsible accounts officer.

Load List

25. The above procedures were accompanied by a third operational mechanism intended to facilitate the operation and act as an additional security system designed to prevent fraud and misappropriation. Ms Temukisa, a witness at trial, or a delegate in her absence prepared a Daily Load List for each vehicle. The list stated all of the items loaded onto each vehicle for the day’s delivery. The original list was retained by the warehouse manager or supervisor and a copy given to the sales representative who was also referred to in evidence as the delivery supervisor. On the return of each vehicle the manager or supervisor would conduct a stock list of the items and the sold items replaced and entered onto a stock list. In turn it would be delivered to Matila or Tinousi (another accountancy employee) or if either was unavailable, directly to the Accounts Section for processing. In this manner accounts could reconcile the Load List with the Daily Summary Sheet or if necessary with the invoices themselves. If there was unaccounted stock, delivery and payment could be checked.

Great Plains System

26. The system did not rely solely on a manual processing and reconciliations. The Company used a computer programme called the Great Plains System. The system had restricted access and required a username and password specific to each operative. The system provided two reports, namely –
    • (1) A summary of all invoices issued on a specific date with the total cost of each individual invoice. The entry of each invoice would alert the operator to any amendments or alterations to each invoice; and
    • (2) A report stating each individual goods and price on each invoice.
27. Those reports were used to compare the results to the balances with each relevant Daily Summary Sheet and the Load List already referred to. That reconciliation would identify:
    • (1) Any stock shortages;
    • (2) Stock oversupplied; and
    • (3) Disparity, if any, between the cash received or debits posted to credit accounts and the goods sold.
28. From those reports Matila was required to reconcile the recorded data with the Truck Delivery Reconciliation.
29. During the relevant period, only two employees, Matila and Tinousi, had access to username (recorded within the machine) and code specific to that machine. Tinousi was called as a witness at trial and no suggestion was made that she had falsified entries, reports or other documentation. Temukisa, the supervisor, had access only to view the reports. She had no access to make entries into the system.
30. Any entry to the programme was recorded by the machine in the name of the person making the entry.

Matila’s Duties

31. Matila was responsible for the accounts of both Niko and Tavita. There were a few entries made on their returns by Tinousi, possibly in the absence or sickness of Matila but they are irrelevant to these proceedings.
32. Matila was responsible for:
    • (1) Receiving, directly or in some cases indirectly when the Load List report was left at her work station, the warehouse Loading List;
    • (2) Receiving the Niko and Tavita invoices;
    • (3) Entering the details of those invoices onto the Great Plains System;
    • (4) Reporting any discrepancies, including alterations, to the sales or delivery supervisor and request that officer to make inquiry and a report;
    • (5) Reporting any unexplained or cash shortages to the finance manager;
    • (6) Receiving the Daily Sales Summary and checking it against the records and reconciliation and if (4) checking the response with her own records;
    • (7) Checking the stock returns with the Load List if her own supervisor had not already done so;
    • (8) Preparing the Truck Delivery Reconciliation; and
    • (9) Prepare a record to be made in the documentation for any money paid to members of the delivery team for lunch or other expenses incurred. Those amounts are minor and not challenged. They are irrelevant to these proceedings.
33. Evidence was called at trial by the Company’s officers relevant to duties (3), (4) and (5) and on their accepted evidence no referral had been made on any of those matters. Even if, as the Defendant claims, there was systemic failure or repeated acts of dishonesty by others, it is implausible to accept that the responsible officer made no complaint or sought explanation.
34. There are two further matters, adverse to the Defendant which arise from the above.
35. In some instances, Matila made the alterations to the invoices or totals herself. Credible witnesses who had long known her and were co-employees attested to her handwriting on some of the invoices provided by Niko and Tavita. Such belies her account that at no time was she complicit in any act of dishonesty, dereliction of duty or complicity.
36. In many instances, not only did Matila complete the reconciliations and attendant documentation but she certified the result, thus verifying the material provided by Niko and Tavita.
37. The evidence of those witnesses is accepted by the Court.

Mode of Proof

38. The Prosecution claims that 352 impugned transactions were committed jointly with Niko of which 23 were withdrawn and dismissed.
39. It claims that 225 impugned transactions were committed jointly with Tavita of which 11 were dismissed during the trial.
40. The Defence agrees with the above.
41. The numbers do not accord with the Court records of the number of Informations filed. In its opening the Prosecution indicated that it would proceed with 287 Informations involving the Niko transactions and a further number involving the Tavita transactions in a document to be later provided. That document comprised 225 allegations.
42. The total sum said to have been stolen was said to amount to SAT$103,640.00.
43. The discrepancy may be explained by the number of Informations filed and those decided upon as not suitable for trial. The Court will, for the purpose of this determination, accept the above figures and enter ‘dismissal’ entries on each Information which is not found to be adverse to the Defendant. Informations which have not been found, at trial, to be adverse to the Defendant will be separately recorded.
44. The Prosecution followed different evidentiary form of proof. In relation to the Niko matters it called Temukisa who took the Court through each transaction separately. The process was complex and time consuming. At the suggestion of the Court, the Prosecution employed a different methodology in relation to the Tavita matters, more suited to the availability of computerized technology. A spreadsheet was prepared containing details of the Information, dates, amounts and a compilation of identified witnesses who could attest to their handling or processing of the relevant documentation and any necessary cross-referencing to other employees involved in the processing of documentation. Each supporting witness could confirm or otherwise their connection with the documentary trail. Both methods were proper forms of proof and trial. The latter accorded with modern practice in other jurisdictions and more efficacious. Defence Counsel was more able to cross-examine on clearly identified matters or documentation and all parties more readily able to identify exhibits and the like.

Common Evidence

45. Some of the evidence was common to Niko and Tavita transactions.
46. Alex Brunt was the General Manager of the Company. He explained the general setup of the sections within the organisation. He confirmed that the delivery teams consisted of 3 employees of whom the sales representative was primarily responsible. The Company operated between 6 – 7 vehicles at any one time, each team with the same duties and responsibilities. He outlined the internal procedures already recounted and the security or auditing processes. Matila had commenced her employment in March 2007 and left in August 2009. Tavita commenced work in June 2007 and was dismissed in August 2009, whilst Niko had worked between January 2002 and was likewise dismissed in August 2009.
47. Brunt told the Court that the Company employed several hundred persons. In July / August 2009, he initiated enquiries concerning financial discrepancies. He took part in the investigation including a meeting with the Defendant’s father and husband. Matila did not present herself for interview and she was dismissed.
48. It appears from the evidence that a customer had complained about an ‘overdue account’ notice and could show that he had paid cash to the sales representative and produced the original documentation. The Company began to collect original documentation from customers which differed from the invoices and further inquiry revealed widespread discrepancies.
49. Ula Bourne confirmed her writing on some of the loading sheets and that other unauthorized amendments had been made. Additional evidence of such unauthorized alterations was given by Valelia Simone, a warehouse superintendent who gave evidence to the same effect.
50. Dee Ann Westerlund was the dispatch officer at the relevant times who averred that many of the entries or alterations in Books T1 to T5 were not in her writing, which could only have been made after the documentation had been forwarded to the Accounts Section. She agreed that on occasions another employee, Kisa and the Defendant had printed out copies of the Load Lists from the computerized programme.
51. Laefale confirmed delivery of the documentation to the Accounts Section and that some of the entries had not been made by her. She also identified the initials of other employees whose references appeared in the document trail.
52. The Court accepts the evidence of the above witnesses in full. None were shaken in cross-examination.
53. The evidence of Temukisa and Tavita will be separately considered.
54. Tinousi Faiauga worked in the Accounts Section with Matila and Temukisa. She did not know Matila’s password but was aware that Temukisa, as supervisor, could access Matila’s system to view reports. If a computer unit was left open, she agreed further data could be entered by another. She confirmed that on occasion each of the three employees would use the Load List, a matter denied by the Defendant. Tinousi confirmed that certain invoices had been altered by Matila since she recognized the handwriting. Examples of those alterations are:

T1	No.2	Tab 3	Inv. 276654	Items 20, 21
T2	Alterations made by Matila – 301070, 305520, 304872, 315790, 315848.
T3	106, 108, 109, 110, 119, 121, 125, 128, 129, 134, 144, 145, 146 and 148 – 151. Inv. 308223, 308318.

55. She conceded that most entries were made by Tavita.
56. Tinousi gave further evidence identifying Matila’s writing on Invoice 309845, 312764, 312751, 307934, 308005, 308024 and connected those items with the respective Informations.
57. Tinousi continued her evidence on 6 December when she gave further evidence of Matila’s involvement with the invoices documentation. She told the Court that she recognised Matila’s writing in relation to 2615 Invoice 309845, dated 8 May, was amended by Matila. She gave similar evidence in relation to:

Information	Invoice	Dated
2625	312764	16 May
2626	312751	16 May
2636	307934	23 May
2638	307988	25 May
2639	308005	25 May
2640	308024	25 May

58. Tinousi was not shaken in cross-examination and presented and an honest and reliable witness. There was no evidence at trial suggesting that she was, in any way, involved in the defalcations.
59. Tinousi corroborated the evidence of the other prosecution witnesses. She denied that she had assisted any of the three persons charged.
60. The Court accepts her evidence in full and finds that in no way, directly or negligently did she assist any person in the defalcations.

Imaleta Tuanai

61. Imaleta Tuanai was the head cashier and banking officer for the Company. She had been employed there since 2003. She would complete or assist in the invoices or dealing with Load Lists. Imaleta was authorised to alter entries to the Daily Summary Sheets in cases of mathematical error but not to initial any documentation of a sales representative.
62. Her evidence did not assist the Defendant.

Dee Ann Westerlund

63. Dee Ann was a dispatch officer and supervisor. She was involved in the preparation of some of the Load Lists. She would deliver her Load Lists to the Accounts Section. She confirmed that amended entries in Exhibit Books T1 – T5 were not in her writing.

Valelia Simone

64. Valelia Simone also worked as a warehouse supervisor. She would deliver Load Lists to the Accounts Section to either Matila or Temukisa. If neither was present, she would leave them in a designated box. She confirmed that item identified alterations in Court Books T1 to T5 were not in her writing.
65. Ula Bourne gave similar evidence in relation to Court Books T1 to T5.

Risati Niko

66. Risati Niko gave evidence on behalf of the Prosecution. He had pleaded guilty to his involvements in the thefts which commenced in 2008. He claimed that Matila had initiated the scheme and advised that she would prepare the necessary documentation and arrange for a solution to the ‘stock returns’.
67. Niko fully admitted his responsibility and pleas of guilty to the charges against him. His pleas had been referred to a different Judge. He denied that he hoped for a lesser sentence for giving false evidence against Matila. His evidence is that of an accomplice and not accepted unless corroborated.
68. When he returned from his deliveries, on many occasions, he would alter the invoices and hand them and the corresponding money to the cashier. On some occasions Matila would enter the room and hand him a slip of paper on which was written the amount to be retained. On some occasions Matila would use a Stock Return Sheet to determine the amount, and in some instances alter the Return Sheet in his presence. On other occasions Matila would herself alter the invoices before referral to the cashier. On his estimate, approximately $300 – $400 was taken on most trading days, the money being shared between Matila and himself.
69. There was no evidence that Niko collaborated with Vaililigi Tavita nor that he was aware of a separate scheme.
70. Tavita said that when management commenced an investigation Matila called him and warned ‘we were caught’.
71. The Court accepts that portions of his evidence is ‘of late invention’ made shortly before a court hearing. He made a caution statement to Police on 4 August 2009, which was received into evidence. If his version was invented to assist him it was done at an early time.
72. Niko was taken through a number of exhibits, identifying his own writing and indicating examples of when Matila had herself altered the invoices. Examples of those instances are stated from the different sets of documentation:

Folder 2

Date	Invoice No.
16 March 2009	325, 327
6 April	301428
6 March	301430
9 April	300528, 300548, 300530
11 April	315434, 315435, 315431
16 April	296343, 296318, 296323, 296338
17 April	305262, 305263, 296348
18 April	305308, 305317, 305314, 305318
24 April	315530, 315525, 315524, 315527
27 April	304447

Folder 3

Date	Invoice No.
1 May	306084, 306087
2 May	309257, 309286, 309285, 309258
4 May	309292, 309312, 309308, 309316, 309301, 309295
7 May	309369, 309356, 309364, 309363, 309364, 309371, 309386
8 May	301609, 309392, 310610, 310608
9 May	310633, 310637, 310631, 310667
12 May	310697, 310706, 310689
14 May	310719, 310738, 310749, 310744, 310717, 310735, 310738
16 May	312148, 312179, 312171
19 May	312240, 312220, 312219, 312233, 312237
22 May	306878, 302879, 306929, 306883, 306898, 306885
23 May	306921, 306945, 306940, 306956, 306955, 306923

73. Niko was not shaken in cross-examination. He agreed he had a good relationship with customers and knew Tavita. His route differed from Tavita and the two were rarely in the cashier’s section.
74. Niko had admitted his criminal conduct immediately when interviewed by management officers Laefale in June when the investigation commenced. He denied he had attempted to implicate Matila to help himself. However, at no stage had he denied his own conduct and admitted responsibility.
75. The Court accepts his evidence where corroborated by a witness or documentation.
76. Niko’s evidence is corroborated in a number of ways:
    • (1) It is obvious that the invoices were changed and in the instances identified it is apparent that the writing is not Niko’s;
    • (2) It would have been impossible for Niko to have taken part in the scheme, given its volume and quantity without complicity of a person working within the Accounts Section;
    • (3) His evidence of alterations and Matila’s writings or notations are directly corroborated by Iva;
    • (4) There is direct evidence by Temukisa as to the alterations by Matila which corroborates Niko’s account; and
    • (5) The volume and repetition of the alterations support generally the Prosecution case.

Niko Transactions

77. Central to the Prosecution’s case on both sets of transactions was the evidence of Temukisa Tofilau (“Temukisa”) who had been employed by the Company between September 2005 and April 2010, at its Palisi branch where these events occurred. She was in charge of the data entry system of the Accounts Section. She gave general evidence concerning procedures, responsibilities and the like already summarised.
78. There were two data entry personnel: the Defendant and Tinousi Faiugo (“Tinousi”). She had been involved in the investigation and personally examined all of the documentation relevant to these proceedings. She was able to identify the writing and initials made by the Defendant because of the length of time the two had worked together. She confirmed that Matila’s signature and/or initials appeared on many of the relevant documents. She was able to identify the many and systematic alterations to the invoices, summaries and reconciliations. She had recognised an obvious error or alteration entered on VT MT 080109 entered as $724.70 instead of the invoiced $1,024.00 and returned it to Matila for correction. That was done but the $300.00 unaccounted for. This had increased her suspicion. She was unable to obtain an explanation since Matila did not return to work.
79. The Court does not intend to set out, in these Reasons, each and every detail of the transaction. Common to each is the alteration to the invoice by Niko and processing and reconciliation by the Defendant. In some cases Informations relate to the same date.

Information	Notations		Amount
5153/09	Invoice 281526 8 January	P1	$300.00
5154/09	12 January	P2	$ 18.00
3536	15 January	P3	$100.00
5151	16 January	P4	$165.00
3543	17 January	P5	$136.50
3544	All documentation not available. Dismissed.
3546	19 January	P6	$278.00
3547	19 January	P6	$100.00
5157	21 January	P7	$ 10.00
3555	22 January – Stock Load List altered by Defendant.		$100.00
3557	23 January	P8	$171.00
3558	23 January Matila signed Summary.		$546.00
3560	24 January	P9 Stock Sheet in Matila’s writing.	$110.00
3562	24 January		$ 36.00
3563	24 January		$100.00
3575	29 January	P10	$100.00
3578	29 January	P10	$100.00
3580	29 January	P10	$100.00
3579	29 January	P10	$136.50
3583	30 January	P11	$330.00
3584	30 January	P11	$226.00
5159	3 February	P12	$ 7.70
3599	7 February Matila completed.	P13	$100.00
3618	16 February Invoice 293872	P14	$ 33.50
3614	13 February	P20	$200.00
5160	Documents confined and insufficient. Dismissed.	P20	$159.00
3625	20 February Receipt is cash. Matila completed.	P15	$200.00
3968	21 February	P16	$183.00
3630	21 February	P16	$200.00
3629	21 February	P16	$176.00
5161	21 February	P16	$ 17.00
3637	23 February Date of receipt altered. No stock shortage.	P17	$176.00
3646	26 February Delivery copy of Load List.	P18	$300.00
3647	27 February (Original; see 3614 for copy).	P19	$195.00
3653	16 March Invoices 301332 and 301325 altered by Matila.	P21	$125.42
3652			$250.80
3654			$176.00
3655			$295.00
3662		P22	$195.00
3663	Alterations by Matila	P22	$176.00
3665	19 March	P23	$176.00
3669	19 March	P23	$176.00
3670	19 March Matila charged Invoice.	P22	$ 97.50
3671	Matila completed Cash Summary.	P21	$ 97.50
3763	20 March Loading List missing. Invoice verified.	P24	$352.00
3762			$250.80
3678	21 March Reconciliation and Summaries confirmed by Matila.	P25	$125.00
3695	30 March	P26	$250.00
3694	30 March	P26	$ 99.50
5163	31 March Insufficient documentation. Information dismissed.	P27	$ 21.50
3698	2 April	P28	$176.00
3694	30 March	P26	$ 99.50
3701	2 April Stock column altered. Matila completed other documentation.		$199.00
3699			$297.50
3697	2 April	P28	$117.30
3702	3 April 2 sets of Load Lists; difference in writing of another; not Matila’s. Information dismissed.	P29	$176.00
3714	6 April Different writing on Invoices, including Matila.	P30	$238.00
3713			$117.30
3715			$ 99.50
3718	9 April Documentation by Matila.	P31	$352.00
3716			$ 99.50
3717			$234.60
3724	11 April use made of Niko’s load report; entries made by Matila.	P32	$ 99.50
3723			$176.50
3725			$ 99.50
5165	16 April Documentation in Matila’s handwriting.	P33	$176.50
5167			$180.00
3732			$234.60
3733			$239.60
3731			$298.50
3742	17 April Matila involved in one of alterations. Completed reconciliation.	P34	$199.00
3737			$176.50
3735			$ 60.00
3736			$ 99.50
3734			$351.90
3740	18 April use made of Risati’s copy of document. Documentation completed by Matila.	P35	$176.50
3746			$180.00
3747			$176.50
3745			$120.00
3749			$106.90
3748			$234.60
4852	24 April Documentation and reconciliation performed by Matila.	P36	$351.90
3762			$469.40
3760			$199.00
3759			$180.00
3758			$353.00
3761			$ 99.50
3757			$120.00
3764			$ 99.50
3763			$176.50
			$117.30
5172	25 April	P37	$ 50.00
3765			$117.30
5771	27 April Information S5571 dismissed. Duplex with 5174.	P38	$176.50
3768			$ 99.00
5174			$176.50
3777	28 April Changes made. Information 3775; inadequate documentation and/or duplex.	P39	$276.50
3776			$ 99.00
3775			$ 99.00
3774			$176.50
3778	1 May Inadequate documentation. No initials of checking signatures or initials. Only 1 item undersupplied. Each Information dismissed.	P40	$275.50
3784			$176.50
3789			$351.90
3792	2 May Documentation completed by Matila. Court satisfied. No duplicity.	P41	$120.00
3794			$117.30
3795			$117.30
3796			$117.30
3802	4 May	P42	$120.00
3797			$ 99.00
3799			$ 99.00
3805			$ 60.00
3803			$234.60
4899			$243.60
3806	7 May Evidence of undersupply. Duplicity 3864	P43	$ 99.00
3807			$180.00
3811			$117.30
3808			$ 60.00
3810			$ 99.00
3864			$117.30
3817	8 May Last 7 invoices altered by Matila. Evidence of undersupply. Load List unavailable.	P44	$295.00
3821			$ 99.00
3826			$ 60.00
3824			$176.50
3823			$120.00
3822			$234.00
3825			$ 99.00
3828	9 May Matila’s writing on alteration to invoices. Use of Niko’s Load List.	P45	$ 99.00
3827			$176.50
3834			$351.90
3837			$117.30
3836			$180.00
3829			$176.50
3840	16 May Matila’s writing. Use of Niko’s Load List.	P46	$ 99.00
3836			$176.50
3841			$ 99.00
3839			$117.30
3860	16 May Cash Summary by Matila. Use of Niko’s copy of Truck Loading Sheet. Account’s copy missing.	P48	$117.30
3861			$117.30
3863			$216.30
3862			$117.30
3864	19 May Information 3857 moved to allegations 9 May. Court not satisfied. S3857 dismissed. Use of Niko’s Lost List. Office copy missing.	P49	$119.30
3857			$176.50
3858			$176.50
3866			$ 99.00
3867			$ 99.00
3869			$179.40
3874	21 May The documentation is by Matila. Use was made of Niko’s Load Sheet. Office copy missing.	P50	$234.60
2873			$176.50
3881			$176.50
3876			$ 60.00
3880			$119.60
3882	22 May A copy of Niko’s copy of the Load List was used. The reconciliation showed no short of items. Documentation was completed by Matila.	P51	$176.50
3822			$176.50
3889			$117.30
3892			$176.50
3894			$119.60
3884			$ 99.00
3898	23 May Use made of Niko’s Load List. Matila altered the amounts.	P52	$198.00
3893			$174.80
3897			$ 99.00
3898			$119.60
3900			$117.30
3904			$117.30
3905	25 May Use made of Niko’s Load List. Matila altered invoices and initialed Daily Cash Return.	P53	$174.80
3908			$174.80
3909			$174.80
3913	26 May Insurance component.	P54	$189.00
3911			$ 83.50
3912			$ 83.50
3919	28 May Use made of Niko’s Load List.	P55	$179.40
3914			$120.00
3917			$189.00
3918			$189.00
1916			$249.00
3920	29 May	P56	$189.00
3922			$351.00
3927	30 May No Cash Summary or Load List. Entered by Tinousi. Insufficient documentation. Information dismissed.	P57	$193.20
3923	2 June Stock List shows no item.	P58	$ 41.40
3936	4 June Matila filled out old Load List. System changed. Matila completed last invoice.	P59	$289.90
3937			$234.60
3939			$195.00
3940			$ 97.50
3943	5 June 2 Load Lists (new system). Old system not completed.	P60	$351.90
3944			$351.90
3946	6 June Both Load Lists used.	P61	$189.00
3948	8 June Matila and Niko altered $49.50.	P62	$193.20
3949			$193.20
3950			$145.90
3951			$ 66.70
3955	9 June No handwriting on 3955. Information dismissed.	P63	$289.90
3956			$ 66.70
3957			$189.00
3959	11 June Tinousi completed Great Plains. Information dismissed.	P64	$ 85.50
3960			$ 8.00
3960	12 June Confusion of number entered by Matila.	P65	$ 57.00
3964	13 June Invoice altered by Matila.	P66	$ 57.00
3967	15 June	P67	$ 57.00
3970	16 June Matila altered S3972.	P68	$177.60
3971			$ 85.50
3972			$292.50
3973			$ 88.90
3981	19 June Not entered in Great Plains System. Matila performed cross account reconciliation. Stock Sheet missing some items.	P69	$266.40
3977
3982	20 June Documentation inadequate for S3983. Information S3983 dismissed.	P70	$ 97.50
3983			$ 97.50
3987	23 June	P71	$444.00
3991	26 June BJ Load System used for reconciliation. Old system still used at warehouse.	P72	$ 88.00
3992			$177.60
3993			$195.50
4000	29 June Great Plains report by Tinousi. Information dismissed.	P73	$199.50
4005	23 July Matila prepared reconciliation and Great Plains entry.	P74	$197.00
4042			$195.00
4047	24 July Documentation insufficient. Informations S4047, S4045 dismissed.	P75	$197.00
4045			$300.00
4051	25 July Some documentation missing. Great Plains report by Matila. Sufficient reconstruction.	P76	$300.00
4052			$195.00
4049			$195.50
4048			$195.50
4041	27 July Some documentation missing. Great Plains report by Matila. Sufficient reconstruction.	P77	$ 98.50
4040			$ 86.80
4039			$397.00
4030			$174.00
3932	2 July Error and insufficient documentation. No exhibit number. Information dismissed.		$ 48.00
3299	18 July Documentation prepared by Matila.	P78	$152.90
3298			$135.60
5091	19 July Great Plains report completed by Tinousi. Matila completed Great Plains report. Not satisfied to requisite degree. Information dismissed.		$271.00
5092	21 July Matila checked Daily Summary and Great Plains System.	P80	$135.50
5093	24 July	P81	$135.50
5094	25 July	P82	$271.00
5096	26 July 2008	P83	$271.00
Book 5 2008
5098	2 August 2008 Great Plains report by Matila. Insufficient documentation. Information dismissed.	P84	$135.50
5099	7 August 2008	P85	$271.00
3351	12 August Information S3351 insufficient evidence. Information dismissed.	P86	$199.20
5100			$205.29
3356			$152.90
3358			$159.00
3353	13 August Documentation by Matila.	P87	$132.80
3359	14 August Documentation by Matila. Money repaid by Niko. Possible explanation. Information dismissed.	P88	$152.90
5102			$135.50
3362	15 August Documentation by Matila.	P89	$271.00
5104	18 August	P90	$135.50
3372	19 August	P91	$135.50
3373	30 August	P92	$ 74.80
5108	13 September Great Plains entry by Matila.	P94	$ 6.40
5109	18 September	P95	$ 25.70
5110	20 September Carbon paper removed. Great Plains return by another. Information dismissed.	P96	$ 21.00
5111	27 September	P97	$ 17.70
5112	29 September	P98	$135.50
5113	30 September	P99	$164.50
3390	3 October	P100	$ 10.00
3393	4 October	P101	$ 51.80
5117	7 October	P102	$155.50
3407	9 October Documentation and invoice in Matila’s writing.	P103	$135.50
3410	10 October	P104	$ 30.20
3414	14 October Daily Summary and Reconciliation by Matila.	P105	$281.20
3415			$248.10
3418	15 October No customer account.	P106	$413.20
3440	22 October No stock alterations.	P107	$271.00
3409	24 October	P108	$135.50
3358	27 October Invoices dated 28 October but witness confirms correct date 27 October.	P109	$255.00
3357			$153.00
5130	1 November Matila checked Daily Summary and reconciled.	P110	$271.00
3374	3 November No immediate documentation. Information dismissed.	P111	$ 88.00
3373			$ 81.70
3377	6 November	P112	$103.50
5131			$ 92.50
3383	7 November	P113	$407.50
5132			$ 11.80
5134			$370.00
3384	10 November	P114	$153.00
3386	11 November	P115	$153.00
3385			$155.40
3387	14 November No Great Plains record. All other documentation reconciled; show deficiency.	P116	$ 13.40
3388	15 November	P117	$ 92.50
3889			$153.00
3390	17 November Matila completed and reconciled.	P118	$ 81.70
5136			$271.00
3391	18 November	P119	$ 77.00
3394	20 November Matila’s notation on invoice.	P120	$243.00
3395			$174.80
3396	25 November	P121	$153.00
5139			$ 13.66
3393			$135.50
3397	27 November	P122	$153.00
3398			$163.00
5141			$ 11.70
3399			$153.00
3400	28 November	P123	$570.00
3403	1 December	P124	$234.00
3402			$ 81.50
3409	2 December	P125	$153.00
3406			$163.00
5143			$ 11.80
3413	4 December	P126	$100.00
3412			$244.50
3414			$200.00
5146	5 December No summary or reconciliation. Information dismissed.	P127	$ 11.70
3427	7 December Insufficient documentation for 3428, 3430. Information dismissed.	P129	$153.00
3426			$271.00
3428			$153.00
3430			$271.00
5147			$ 11.80
5148	9 December	P130	$271.00
3438	Insufficient documentation.		$153.00
3434	Information dismissed.		$131.10
3440	11 December	P131	$157.00
3443	Duplex Information 3443. Information dismissed.		$157.00
5149	16 December Insufficient documentation. Information dismissed.	P132	$406.50
5140	18 December	P133	$406.50
3475	19 December Insufficient documentation. Information dismissed.	P134	$506.50
3477	20 December	P135	$135.50
5151	Insufficient documentation. Information dismissed.		$271.00
3486	22 December	P136	$148.00
3489			$542.00
3485	No reasonable inference consistent with innocence.		$ 66.70
3488			$148.00
3487			$133.90
5152	23 December	P137	$592.00
3498	27 December	P138	$154.50
3502	29 December	P139	$254.00
3501	Insufficient evidence.	P139	$373.00
3551	30 December	P140	$298.50
3518	31 December	P141	$100.00

Cross-Examination of Temukisa

80. In cross-examination Temukisa agreed that certain documentation especially during the period 2007 could not be located. She had commenced with the Company in 2005 and moved into the Finance Section in 2007.
81. Temukisa maintained that the Load List were supplied to Matila and would be read to check the prices and in some instances because the invoice entries were difficult to read. The Load List were important because at the end of each day the entire contents of the vehicle would be unloaded and replaced. The delivery employees would complete a Daily Summary Sheet in the presence of the sales representative. Invoices were not provided to the cashier but directly to the Finance Section.
82. Temukisa maintained that it was not her responsibility to read, enter or balance the invoices. Her evidence as to the handwriting was not shaken during cross-examination. She could not recall when Matila was on maternity leave and would have obtained a password at that time. She found no false entries in data but nor was she conducting an inquiry at that time. She denied that there had ever been suspicion concerning her integrity.
83. The Court accepts the accuracy of the witness.
84. Each item has not been annotated. Certain items are notarised when a significant matter is raised. Absence of notation is a reflection of a usual process or procedure from which inferences are drawn.

Dismissal

85. The reasons for dismissal have been stated above. There remains suspicion concerning those matters dismissed but such is insufficient to meet the requirement of satisfaction beyond reasonable doubt and/or that there is a reasonable hypothesis consistent with innocence.
86. Informations dismissed are S3544, S3555, S3614, S5160, S5163, S3702, S3775, S3778, S3784, S3789, S3857, S3882, S3833, S3889, S3892, S3894, S3884, S3927, S3955, S3959, S3960, S3983, S4000, S4047, S4045, S3932, S5091, S5098, S3351, S3359, S5102, S5110, S3374, S3373, S5146, S3428, S3430.
87. The total number of Informations dismissed is 41.

Tavita Transactions

88. The Prosecution approached these transactions in a different manner. The defence agreed that this was preferable. The Court was provided with a spreadsheet which set out the documentation with the identification of the person who had completed the relevant document undertaken the reconciliation and processing of the returns. A copy of that document was tendered as Exhibit P142 and was accompanied by court books, containing the relevant documentation as T1 – T5 recorded as Exhibit P142 – P146 respectively. It is not necessary to consider each transaction separately as was undertaken in the Niko transactions except where there is specific characteristic. Precis will be included in these Reasons. Evidence was given at trial in accordance with the document by Kisa.
89. The Court accepts the material contained in court books T1 – T5 and the accuracy of the compilation. Vaililigi was referred to during the trial as Tavita and the latter name will be used.
90. Laefale Toaleapai prepared the tables relevant to these charges. Laefale identified the following abbreviations as:

UB Ula Bourne Witness 10

VS Valelia Simone Witness 9

LT Laefale Toaleapai Witness 8

AS Atoa Suge An Unavailable Witness

91. She identified Vaililigi as Tavita (Witness 3) who was the sales representative.
92. The Court notes that the document shows that Matila is identified as the author of the alterations on 23 occasions. It accepts the evidence of the identification of her writing or amendment.
93. For convenience the Court sets out the document used in relation to the Tavita transactions. Rather than set out each transaction in the manner adopted in the Niko transactions the Court will set out the précis referred to in these Reasons paragraph 89. The Court has deleted items 10 – 15 since no Information number was provided for the transactions between 3 December and 31 December 2008, and items 26 and 27 of 16 and 17 January 2009. The Prosecution abandoned those items during the trial and those dismissals are in addition to those referred to in paragraph 6. For technical reasons, the table will be affixed as an annexure since it cannot be formatted to an A4 setting.
94. The Court will give the benefit of the doubt and/or accept as a hypothesis consistent with innocence, with one exception to those matters where no Daily Summary Sheet has been found and tendered. The exceptions in Information 4894, 2602, 2599, 2600, 2601, 2656, 2657, 2658, 2659, 4526 are dismissed. In instances Matila had altered the invoices thereby separately providing sufficient proof.
95. The Court notes that items 10 – 15 are not the subject of charges and were withdrawn before trial. This has been referred to in these Reasons.
96. Vaililigi Tavita gave evidence for the Prosecution. Much of his evidence as to the methods employed was consistent with Niko’s. He had worked with the Company for over 2 years and admitted his involvement in the scheme. He had pleaded guilty to his involvement and stood little to gain in giving evidence against Matila. His ability to commit the thefts could not have been carried out without the complicity of a person working within the finance section. The person with the primary task of recording and processing his returns was Matila. He was consistent with his account when subject to cross-examination.
97. His evidence was corroborated by other credible witnesses. His evidence was further corroborated by the sheer volume of transactions, alerted entries by Matila and the records themselves.

Defendant’s Evidence

98. The Defence denied any knowledge of or involvement in the course of criminal conduct.
99. She denied using Load Lists in her entries and stated that all her actions had been undertaken in the presence of Temukisa. She claimed that her only writing on any of the invoices was the mathematical correction of totals. She denied any alteration to a Load List. Her evidence on these two matters are not accepted.
100. There is no record of any complaint or referral of concern made by her to management other than her claim concerning a person no longer in Samoa.
101. In cross-examination she claimed that she had reported irregularities to Temukisa. The Court accepts Temukisa as an honest and reliable witness, nor had she ever filled out a return. She had attempted but failed to contact Niko and Tavita although there was some inconsistency in that account.
102. Brunt, the General Manager had said he was unable to interview Matila since she had not returned to work following the investigation. She denied any attempt by Brunt to interview her. The Court prefers Brunt’s version. She was taken by Police on or about 24 June. She also denied that her father and husband met with Brunt and that she had simply told them that she was not involved. Matila told the Court that she was on maternity leave between 3 and 21 July 2008 and during that time she gave Temukisa her password. She had told neither of the Company’s supervisors of new suspicions. The Court finds her version to be unsatisfactory especially in the light of Brunt’s evidence. It may be that was done but there was no direct suggestion that Temukisa committed the crimes. Incidental to that evidence is the fact that no defalcations are alleged during that period.
103. The Court does not accept that:
     • (1) The invoices were balanced before the documentation were given to her. The cashier would have recorded and counted the money but no comparison was made internal to the invoices.
     • (2) There were larger differences with the totals keyed into the Great Plains System and the oversupply figures in the Load List sheets.
     • (3) Matila made referral to other officers about disparities with the Load List sheets.
     • (4) All checking was made solely by Temukisa.
     • (5) Matila was authorised to amend invoices without reference to another superior officer.
     • (6) Matila confronted both Niko and Tavita and mentioned the confrontations to Angelina, an employee no longer resident in Samoa. Her evidence on that point was inconsistent as to the time of its making.
     • (7) She never received any Load Lists and witnesses called at trial are wrong in their assertions.
104. Matila did not return to work after enquiries had commenced. She did not meet with the General Manager or other senior staff. That evidence can be used as showing ‘consciousness of guilt’.
105. The Prosecution, as permitted by Browne v Dunn was permitted to call rebuttal evidence from Brunt. Brunt had no recollection of Dequito ever referring a complaint by Matila as to irregularities noted or recorded by a named employee Evangeline Dequito now living in the Philippines.
106. Matila’s evidence is added to the other evidence and forms part of the evidence given at trial. Her evidence of denials of responsibility, non involvement or non complicity are not accepted. She is not accepted as a credible witness.

The Defence

107. Counsel for the Defence concentrated on specific transactions especially when there was incomplete documentation. Those specific criticisms are reflected to the verdicts of acquittal. The Court does not accept that the only alterations made by Matila were to correct additions or incorrect calculations. The schemes could not have worked except with the active separate participation by the Defendant.
108. In one instance the evidence suggests that Niko repaid the money. But that was after the arrest. The defalcation had already occurred.
109. A further suggestion by the Defence is that the Company did not investigate other possibilities or suspicions concerning other employees. Such is rejected. A detailed investigation was undertaken, essential witnesses called at trial, and all indications pointed to the three persons charged. Two of those Defendants were unaware of the other’s separate involvement.
110. For these reasons the Court is satisfied beyond reasonable doubt that the Defendant is guilty of those offences identified in this judgment. She is acquitted on those Informations named separately within these Reasons. The Niko and Tavita acquittals have been identified by reference to the respective Informations.
111. Counsel will deal with the mathematical equation of the amount stolen in their written submissions on sentencing.
     

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

(JUSTICE SLICER)