Police v Aperila [2013] WSSC 127 (22 August 2013)

SUPREME COURT OF SAMOA

Police v Aperila [2013] WSSC 127

Case name: Police v Aperila

Citation: [2013] WSSC 127

Decision date: 22 August 2013

Parties: POLICE v ATAPANA APERILA male Talimatau and Tufutafoe Savaii.

Hearing date(s): 13 August 2013

File number(s): Criminal

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
L Taimalelagi for prosecution
T K Enari for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
General v Kolio [2008] WSCA 7
R v Newcastle-upon-Tyne Justices ex parte Hindle [1984] 1 All ER 770, 778
Auckland City Council v Wotherspoon supra, 92

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution
AND
ATAPANA APERILA male Talimatau and Tufutafoe Savaii.
Defendant

Counsel: L Taimalelagi for prosecution
T K Enari for defendant
Hearing: 13 August 2013
Judgment: 22 August 2013

ORAL JUDGMENT OF NELSON J

(No case to answer application)

1. The defendant faces three counts of theft as a servant and three corresponding counts of falsifying invoices in order to avoid detection of the thefts. At the time the defendant was alleged to have been employed by Chan Mow Wholesale Company Limited as a supervisor on ones of its delivery trucks. As such he was responsible for taking customers orders, receiving payment therefore and issuing receipts. Thefts are alleged to have all occurred on 20 January 2009. And in respect of goods purchased by one of its customers namely KK Mart of Togafuafua according to the information.
2. At the close of the prosecution case the defendant submitted there is no case for him to answer. As there was no evidence identifying him as an employee of the complainant company or identifying him as the supervisor of the truck in question and the person to whom KK Mart paid the relevant sales proceeds.
3. Prosecution called two witnesses. First the credit controller of Chan Mow who testified that in 2009 the company employed a man by the name of “Atapana Aperila” as a delivery supervisor on one of its trucks. She said he was the person charged with the issuing of receipts and collection of sale proceeds. At the end of each day he was required to account to the company office and reconcile the days sales and takings with the relevant receipts.
4. One such customer of the company was KK Mart whose store is located at Matautu-uta. The documents did not balance up in respect of the 20 January 2009 sales to that customer. After investigating she discovered the customers copy of the relevant receipt did not accord with the companys copies. She went through and identified in her evidence the documents in question.
5. While she did not specifically identify the defendant to be Atapana she did identify Atapanas handwriting Atapanas initial and Atapanas signature on the documentation. And she did answer questions in cross examination by counsel which accepted that Atapana referred to the defendant. And in which the terms “the defendant” and “Atapana” were used interchangeably. So that there was no doubt that the reference to Atapana was a reference to the defendant. For example at the beginning of counsels cross examination on page 21 he asked:

“Question: As I understand your evidence the procedure is the truck arrives at KK Mart and the supervisor that’s the defendant goes to the store and gets some order from the store.

Answer: yes that’s right”

6. That pattern endured right throughout cross examination. Right up till the end when counsel was given an opportunity by the court to ask an additional question. His question was as recorded on page 34 of the transcript:

“Question: What was the defendants job at the time that this happened?

Answer: he was a delivery supervisor

Question: what does that mean?

Answer: he writes the receipt and receives the cash for the receipts he wrote.

Question: he’s the guy on the truck?

Answer: yes”

7. In my view that sufficiently identifies the defendant as the delivery supervisor of the Chan Mow truck in question. And as the person who issues and signed the relevant receipts to KK Mart of Matautu-uta. Had the questions been phrased differently or there been no such cross examination the position may well have been different. Especially since the second of the two prosecution witnesses, the manager of KK Mart when asked to look around the court and identify the man to whom she gave the purchase money said the following quoting from page 41 of the transcript:

“Question: do you remember the person that you paid the cash to?

Answer: yeah if I see him I know.

Question: do you recognize his face?

Answer: yeah

Question: do you see him in this court room?

Answer: not here, its an old man

Question: an old man?

Answer: old man”

8. At this stage the court is only required to consider if there is a prima facie case against the defendant. Applying the Galbraith standard the test is whether the evidence is such that a reasonable tribunal might convict the defendant. Reference can be made to the observations of our Court of Appeal in Attorney General v Kolio [2008] WSCA 7 at paragraph 23 which sets out the appropriate test:

“The judge at first instance is required to ask not whether, if compelled to do so, he or she would have convicted or acquitted but whether the evidence was such that a reasonable tribunal might have convicted: Practice Note [1962] 1 All ER 445; R v Newcastle-upon-Tyne Justices ex parte Hindle [1984] 1 All ER 770, 778; Auckland City Council v Wotherspoon supra, 92. For this purpose it will not be appropriate to make credibility choices between conflicting witnesses unless the evidence of a witness is so patently absurd that it is beyond belief. At this stage of the case it is to be assumed that it will be open to the trier of fact to accept the evidence of those witnesses most favourable to the prosecution case and to reject the evidence of witnesses to the contrary.”

9. Based on the questions and answers in cross examination of the Chan Mow Credit controller and notwithstanding the lack of formal identification of you in the dock I find there is sufficient evidence identifying you as the supervisor of the Chan Mow delivery truck in question. The truck that on 20 January 2009 sold goods to its customer KK Mart and in respect of which there occurred a shortage of funds. On this basis the no case submission made by your lawyer fails.
10. Ona o tulaga ia Atapana o lea o le a faataatia le mataupu sei fai se lua feiloaiga ma le alii loia o loo tula’i mo oe. Toe valaau lau mataupu i le potu numera 4 i le ta o le 10:00 i le taeao o le aso Gafua. Fa’auau pea lau nofo taofia e faatalitali ai le faaiuga o le mataupu lenei.
    

........................
JUSTICE NELSON