Police v Fiti [2013] WSSC 93 (22 May 2013)

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Decision date: 22 May 2013
Parties:
POLICE (Prosecution) v ATALILI FITI male of Fagafau Savaii and Falevao. (Defendant)

Order:
Representation:
Ms L Taimalelagi and F E Niumata for prosecution
Ms T Leavai for defendant

Counsel: Ms L Taimalelagi and F E Niumata for prosecution
Ms T Leavai for defendant

[1] The defendant faces 182 charges of theft as a servant alleged to have occurred over a ten day period in August 2011 while he was employed as a supervisor on the Savaii run for Punjas Samoa Limited (“Punjas”) a local wholesaler of groceries. To all charges the defendant pleaded not guilty and witnesses were heard in both Upolu and the island of Savaii where many of them reside.

[2] At the relevant time the defendants position was sales assistant for Punjas. As such he was responsible for delivery of goods to Punjas Savaii customers and collection of sale monies from said customers. On these trips he was accompanied by a stock loader as well as the driver of the Punjas truck. The defendant was primarily responsible for issuing receipts for sales.

[3] His practice was where a customer was unable to pay immediately for purchases the sale money would be uplifted on the next round of deliveries by the truck. In this way customers were extended temporary credit and allowed time to sell their goods before paying. The truck would usually do two rounds of Savaii every trip which was normally Tuesday to Friday and Saturday to Tuesday. On Fridays the monies collected would be handed in to the head office in Apia.

[4] At the time the goods were delivered each customer would receive a pink receipt detailing the purchase and if on credit marked “NP” meaning “not paid”. When payment was made the defendant or the customer would then mark the receipt “paid”. For those customers who paid the purchases on the spot they would merely be given a receipt. More often than not monies were handed over to the defendant without his marking the relevant receipt “paid”. A small quantity of the pink receipts were retrieved from the relevant Punjas customers and were produced into evidence. Most customers however no longer had their receipts.

[5] On his return to Apia the defendant would hand over the duplicate yellow copy of the receipt together with a reconciliation of the monies collected to the cashier. The cashier would mark it as received from ‘TC’ or “Truck C” as Punjas named their trucks A, B, C, D etc. TC was the Savaii truck. And the cashier would enter details of the receipts into the companys system. The third copy of the receipt remained in the receipt book and each receipt book was used in the next round of deliveries until fully utilised. All the yellow receipts relevant to the charges were produced into evidence.

[6] The prosecution case was that the defendant would keep the sale monies of the “not paid” receipts. He would only turn into the cashier the money for those receipts marked “paid” or those receipts not marked at all. In this way the prosecution say the defendant was able to piecemeal embezzle a substantial amount of money from Punjas. Eventually however company representatives noted that the income from their Savaii truck was declining. So they investigated. Company representatives were sent to Savaii to accompany the defendant on his run. After they reported their findings to head office the defendant was interviewed in the presence of an interpreter because the principal managers of Punjas are Fijian Indians. A written confession wherein the defendant admitted his theft was produced as Exhibit “P-101” for the prosecution. The defendant has challenged that confession saying that he did not understand what he signed and that he was coerced into making these admissions.

[7] The prosecution called a large number of Punjas Savaii customers to prove that during the defendants Savaii rounds of 16 to 18 August and 23 to 26 August they received goods from the defendant and his crew on credit. Goods which they eventually paid the defendant and his crew for. All of the witnesses were adamant that they no longer owed Punjas any money for said goods.

	Names	Information Number	Date	Receipt Number	Amount	Exhibit Number
1	Fale Matatumua of Salelologa	S2164/11	17 August 2011	239813	$ 92.00	“P - 1”
2	Tapaau Faalava of Salelologa	S2251/11	17 August 2011	239816	$ 54.00	“P - 1”
3	Tapaau Faalava Salelologa	S2242/11	24 August 2011	240417	$ 85.00	“P - 2”
4	Fale Matamua Salelologa	S2312/11	26 August 2011	240497	$ 65.00	“P - 3”
5	Kalala Matamua Salelologa	S2159/11	17 August 2011	239808	$139.00	“P - 4”
6	Sosopo Tualagi Sapapalii	S2157/11	16 August 2011	239805	$ 19.00	“P - 4”
7	Kalala Matamua Salelologa	S2205/11	24 August 2011	240411	$ 76.00	“P - 5”
8	Sosopo Tualagi of Sapapalii	S2173/11	17 August 2011	239822	$ 38.00	“P - 6”
9	Tupai Laveina of Sasina	S2203/11	18 August 2011	239861	$ 23.80	“P - 7”
10	Tugaga Fili of Safune	S2204/11	18 August 2011	239862	$ 36.60	“P - 7”
11	Tugaga Fili of Safune	S2179/11	25 August 2011	240460	$ 150.00	“P - 8”
12	Pusi Anderson of Saleia	S2208/11	18 August 2011	239866	$ 69.60	“P - 12”
13	Faatuia Aipovi of Satupaitea	S2259/11	24 August 2011	240426	$1,006.00	“P - 13”
14	Faatuia Aipovi of Satupaitea	S2175/11	17 August 2011	239824	$ 992.00	“P - 14”
15	Komesi Tiotala of Falelima	S2291/11	18 August 2011	239833	$ 150.00	“P - 15”
16	Komesi Tiotala of Falelima	S2245/11	18 August 2011	239834	$ 32.00	“P - 16”
17	Hinemoa Tiaina of Auala	S2189/11	18 August 2011	239847	$118.80	“P - 17”
18	Hinemoa Tiaina of Auala	S2287/11	25 August 2011	240452	$ 40.00	“P - 18”
19	Umusaga Vaitulia of Sagone	S2294/11	25 August 2011	240443	$ 66.00	“P - 19”
20	Mataafa Taua of Palauli	S2273/11	17 August 2011	239823	$ 60.00	“P - 20”
21	Auvaa Paulo of Falealupo	S2172/11	18 August 2011	239838	$ 121.20	“P - 21”
22	Maee Iosefo of Vaipu'a	S2293/11	25 August 2011	240444	$ 157.60	“P - 22”
23	Tasipale Stowers of Lefagaoalii	S3335/11	18 August 2011	239863	$ 76.00	“P - 23”
24	Tasipale Stowers of Lefagaoalii	S2432/11	25 August 2011	240461	$ 52.00	“P - 24”
25	Tafale Alovao of Sataua	S2249/11	25 August 2011	240449	$ 50.20	“P - 25”
26	Tafale Alovao of Sataua	S2428/11	18 August 2011	239842	$ 48.00	“P - 26”
27	Blessing Pagaialii of Lefagaoalii	S2206/11	18 August 2013	239864	$ 41.60	“P - 27”
28	Pulou Setu of Siufaga	S2236/11	23 August 2011	240403	$ 24.60	“P - 28”
29	Simeauli Fiu of Salelologa	S2170/11	17 August 2011	239819	$ 84.80	“P - 29”
30	Simeauli Fiu of Salelologa	S2270/11	23 August 2011	239992	$193.00	“P - 30”
31	Pati Gaiga of Safotu	S2289/11	25 August 2011	240462	$1,236.00	“P - 31”
32	Pauli Faafetai of Salelologa	S2221/11	24 August 2011	240418	$ 505.60	“P - 32”
33	Amalia Trevor of Palauli	S2311/11	26 August 2011	240489	$1,403.40	“P - 33”
34	Peter Tervor of Palauli	S2310/11	26 August 2011	240490	$ 302.00	“P - 34”
35	Amalia Trevor of Palauli	S2430/11	26 August 2011	240491	$ 160.00	“P - 35”
36	Maria Leuelu of Lalomalava	S2234/11	24 August 2011	240404	$ 127.20	“P - 36”
37	Maria Leuelu of Lalomalava	S2231/11	24 August 2011	240408	$ 33.60	“P - 37”
38	Rasera Tulia of Letui	S2201/11	18 August 2011	239859	$ 127.40	“P - 38”
39	Rasera Tulia of Letui	S2192/11	18 August 2011	239860	$ 15.00	“P - 39”
40	Asenati Mareko of Satupaitea	S2327/11	26 August 2011	240484	$ 314.00	“P - 40”
41	Asenati Mareko of Satupaitea	S2326/11	26 August 2011	240485	$ 69.00	“P - 41”
42	Vaasili Pule of Vaipua	S2253/11	25 August 2011	240445	$ 100.00	“P - 42”
43	Ropeti Paulo of Tapueleele	S2299/11	23 August 2011	239985	$ 170.00
44	Polini Pine of Faiaai	S2429/11	17 August 2011	239829	$ 112.00	“P - 43”
45	Taualai Sini of Fogatuli	S2315/11	25 August 2011	240446	$ 105.00
46	Me Mua of Asau	S2282/11	25 August 2011	240457	$ 31.00	“P - 44”
47	Me Mua of Asau	S2283/11	25 August 2011	240456	$ 125.00	“P - 45”
48	Me Mua of Asau	S2193/11	18 August 2011	239851	$ 80.00	“P - 46”
49	Finau Kalolo of Iva	S2171/11	17 August 2011	239820	$ 142.40	“P - 47”
50	Finau Kalolo of Iva	S2280/11	17 August 2011	239821	$ 32.00	“P - 48”
51	Finau Kalolo of Iva	S2236/11	23 August 2011	239995	$ 306.00	“P - 49”
52	Lesa Betham of Lelepa	S2209/11	18 August 2011	239867	$ 42.60	“P - 50”
53	Lesa Betham of Lelepa	S2288/11	25 August 2011	240463	$ 81.00	“P - 51”
54	Seloa Alo of Vaitoomuli	S2277/11	25 August 2011	240472	$ 250.00
55	Seloa Alo of Vaitoomuli	S2276/11	25 August 2011	240473	$ 124.80	“P - 52”
56	Seloa Alo of Vaitoomuli	S2268/11	25 August 2011	240474	$ 137.60	“P - 53”
57	Mealofa Sulutolu of Auala	S2183/11	18 August 2011	239839	$ 107.50
58	Mealofa Sulutolu of Auala	S2190/11	18 August 2011	239848	$ 594.00	“P - 54”
59	Mealofa Sulutolu of Auala	S2191/11	18 August 2011	239849	$ 640.00	“P - 55”
60	Mealofa Sulutolu of Auala	S2250/11	25 August 2011	240448	$ 960.00
61	Mealofa Sulutolu of Auala	S2284/11	25 August 2011	240455	$1,700.00	“P - 56”
62	Vasa Kalapu of Satupaitea	S2601/11	26 August 2011	240488	$3,000.00	“P - 57”
63	Kupita Suniula of Fogapoa	S2262/11	25 August 2011	240468	$ 145.00	“P - 58”
64	Kupita Suniula of Fogapoa	S2213/11	17 August 2011	239817	$ 64.00	“P - 59”
65	Tapatele Sinivao of Foalalo	S2297/11	25 August 2011	240440	$ 133.00
66	Vaiema Tuimaseve of Salelologa	S2154/11	26 August 2011	240496	$ 120.00	“P - 60”
67	Tepa Memea of Salelologa	S2160/11	17 August 2011	239809	$ 112.00
68	Tepa Memea of Salelologa	S2323/11	25 August 2011	240465	$ 85.00	“P - 61”
69	Tepa Memea of Salelologa	S2252/11	26 August 2011	240494	$ 105.00
70	Taiva Tofa of Salelologa	S2275/11	23 August 2011	239998	$ 358.00
71	Taiva Tofa of Salelologa	S2274/11	23 August 2011	239999	$ 98.00
72	Pipi Tavita of Salelologa	S2278/11	25 August 2011	240471	$ 475.00
73	Lausiva Tausolo of Salelologa	S2219/11	24 August 2011	240420	$ 109.00	“P - 62”
74	Aiso Lapi of Salelologa	S2229/11	24 August 2011	240414	$ 205.00	“P - 63”
75	Tuli Lio of Sapapalii	S2347/11	24 August 2011	240405	$ 460.40	“P - 64”
76	Tuli Lio of Sapapalii	S2233/11	24 August 2011	240406	$ 388.60	“P - 65”
77	Tuli Lio of Sapapalii	S2232/11	24 August 2011	240407	$ 186.40	“P - 66”
78	Makerita Tufuga of Asau	S2162/11	16 August 2011	239804	$ 32.00	“P - 67”
79	Apetone Fidow of Gataivai	S2258/11	24 August 2011	240427	$ 82.00	“P - 68”
80	Apetone Fidow of Gataivai	S2176/11	17 August 2011	239825	$ 230.00	“P - 69”
81	Maria Lamositele of Falealupo	S2167/11	25 August 2011	240447	$ 54.00
82	Fuasetapu Letoi of Gataivai	S2316/11	26 August 2011	240493	$ 170.00	“P - 70”
83	Ala Tauese of Sagone	S2296/11	25 August 2011	240441	$ 451.00	“P - 71”
84	Ala Tauese of Sagone	S2295/11	25 August 2011	240442	$ 136.40	“P - 72”
85	Oliva Tamala of Taga	S2230/11	24 August 2011	240413	$ 120.00	“P - 73”
86	Sootaga Tusi of Gataivai	S2330/11	26 August 2011	240481	$ 323.40	“P - 74”
87	Sootaga Tusi of Gataivai	S2329/11	26 August 2011	240482	$ 212.00	“P - 75”
88	Sootaga Tusi of Gataivai	S2328/11	26 August 2011	240483	$ 66.00	“P - 76”
89	Sootaga Tusi of Gataivai	S2215/11	18 August 2011	239877	$ 201.20	“P - 77”
90	Sootaga Tusi of Gataivai	S2214/11	18 August 2011	239878	$ 48.00	“P - 78”
91	Fiavaai Tiatia of Taga	S2256/11	24 August 2011	240429	$ 204.00	“P - 79”
92	Fiavaai Tiatia of Taga	S2177/11	17 August 2011	239826	$ 320.00	“P - 80”
93	Ringo Masoe of Asau	S2182/11	18 August 2011	239850	$ 74.00	“P - 81”
94	Faanu Samuelu of Taga	S2433/11	16 August 2011	239806	$ 57.60	“P - 82”
95	Faanu Samuelu of Taga	S2158/11	17 August 2011	239807	$ 74.00	“P - 83”
96	Faanu Samuelu of Taga	S2279/11	25 August 2011	240476	$ 85.00
97	Laulau Faletuai of Lano	S2272/11	23 August 2011	239997	$ 130.00	“P - 84”
98	Tusitala Tuipea of Samata	S2320/11	25 August 2011	240477	$ 346.20	“P - 85”
99	Tusitala Tuipea of Samata	S2319/11	25 August 2011	240478	$ 152.00
100	Luama Suniula of Salelologa	S2248/11	24 August 2011	240416	$ 32.00	“P -86”
101	Malele Fepuleai of Fagamalo	S2210/11	18 August 2011	239868	$ 446.40	“P - 87”
102	Malele Fepuleai of Fagamalo	S2211/11	18 August 2011	239869	$ 670.80	“P - 88”
103	Malele Fepuleai of Fagamalo	S2202/11	18 August 2011	239870	$ 141.20	“P - 89”
104	Malele Fepuleai of Fagamalo	S2212/11	18 August 2011	239871	$ 225.00	“P - 90”
105	Luamanu Ta Him of Salelologa	S2220/11	24 August 2011	240419	$ 168.00
106	Asalemo Muliulu of Salelologa	S2239/11	23 August 2011	239989	$ 60.00
107	Asalemo Muliulu of Salelologa	S2269/11	23 August 2011	239990	$ 130.00	“P - 91”
108	Asalemo Muliulu of Salelologa	S2271/11	23 August 2011	239991	$ 130.00	“P - 92”
109	Fafo Suniula of Salelologa	S2156/11	25 August 2011	240469	$ 32.00	“P - 93”
110	Vaila Pili of Salailua	S2244/11	24 August 2011	240432	$ 31.20	“P - 94”
111	Pati Burgess of Neiafu	S2165/11	17 August 2011	239814	$ 129.00
112	Pati Burgess of Neiafu	S2181/11	18 August 2011	239837	$ 63.40	“P - 95”
113	Faamanu Vaituutuu of Safotu	S2207/11	18 August 2011	239865	$ 114.00	“P - 96”
114	Esau Sakaio of Auala	S2286/11	25 August 2011	240453	$ 84.00
115	Esau Sakaio of Auala	S2318/11	25 August 2011	240454	$ 21.60
116	Eteuati Sulutolu of Falealupo	S2183/11	18 August 2011	239839	$ 107.50	“P - 97”
117	Eteuati Sulutolu of Falealupo	S2200/11	18 August 2011	239840	$ 36.00	“P - 98”
118	Eteuati Sulutolu of Falealupo	S2185/11	18 August 2011	239841	$ 18.00	“P - 99”
119	Rosalina Ah Sue of Faga	S2264/11	23 August 2011	240000	$ 85.00	“P - 100”
120	Tapito Vaai of Sataua	S2188/11	18 August 2011	239844	$ 414.40	“P - 102”
121	Tapito Vaai of Sataua	S2247/11	25 August 2011	240451	$ 144.00

[9] As well as those 121 witnesses the prosecution also called the then branch manager for Punjas Samoa Mr Kalpesh Kumar of Suva, Fiji. His evidence was that the defendant began working for the company as a delivery boy but worked his way up the ranks and in July 2011 was appointed sales representative responsible for the Savaii run. His working crew comprised Vaaiga Autagavaia as driver of the truck and Tato’i Silipa as delivery man and stock loader. The defendant was responsible for the collection of monies and for the issuing of the receipts for sales to customers.

[10] Kumar said that the flow of money from the Savaii runs slowed down in July and August 2011 and when questioned the defendant said many customers had not paid for their purchases. But that he would collect the outstanding monies. So they gave him a chance to do so. Some weeks the defendant would spend most of his time in Savaii and communicate with them only by mobile telephone. Matters however did not improve resulting in a team from head office travelling to Savaii and accompanying the defendant and his crew on their rounds. These investigators were told by all customers that they had paid the defendant and no further money was owed to Punjas.

[11] Consequently at their hotel in Savaii in the evening of 4 October 2011 they questioned the defendant. Where the defendant admitted to them that he had been taking money. They therefore adjourned matters to Upolu for further interview and a meeting was held the following day at their Matautu head office.

[12] That meeting was attended by the defendant and one of their sales representatives Falauega Lafi who acted as interpreter. Falauega had been one of those who travelled to Savaii as part of the investigating team. At that meeting the defendant admitted to taking sale monies from Punjas customers and he signed the written confession produced as Exhibit “P-101”. Prior to the defendant signing Kumar said that Falauega had explained the contents of the document to the defendant. He also said no undue or other influence was exerted on the defendant, he was just told to tell the truth. Kumar disputed the defendants suggestion that they forced him to sign “P-101” and that the defendant was ignorant of what he was signing. “P-101” is in English and he said the defendant well knew what he was signing. It was the fact that the defendant spoke reasonable English that led to the company employing him as supervisor for Savaii.

[13] Kumars evidence was supported by the evidence of Falauega who said that the defendant admitted his guilt at the initial meeting in Savaii. But when they reconvened the next day at Matautu the defendant had changed his mind. However after further discussion he relented and again admitted his theft of company money. He said that he drew up “P-101” and after it was read to the defendant, the defendant signed it. He denied pressuring the defendant or exerting any influence on him to sign and rejected the suggestion that the defendant was told to sign and “that would be the end of the matter”. The amount referred to in “P-101” is in excess of $100,000.00 and he said that was obtained from the companys records. When asked why no written confession was signed at the Savaii meeting he explained that they were not prepared and had no typewriter or other such facility available. Neither had they ascertained from the company records the exact extent of the shortage.

[14] The evidence of the other two members of the defendants crew essentially confirms the prosecution case. They said the defendants strategy was to deliver goods on credit during the first round of the island to those who could not pay and uplift payment when the truck made its return round. The defendant was in charge of the truck and the receipt book and wrote out all the receipts. All monies collected by them were handed over to the defendant. They also mentioned that the defendant kept a red book in which were entered the names of the “NP” or unpaid customers. This book had since vanished.
The defence case:

[15] The defendant elected to give evidence. He said he was originally a casual labourer for Punjas but became the sales representative for Savaii responsible for collection of monies and issuing receipts to customers. He accepted that he alone was responsible for collecting the money and that on the return of the truck to Upolu he would hand it over to the company cashier on duty at the time. The cashier would reconcile it with the receipt book.

[16] In testimony that was never put to the prosecution witnesses the defendant testified about being rung by a member of the Upolu office in October 2011 and being told there was a shortage from his previous round. Why this was not put to the prosecution witnesses is not clear. But he told the office that only $30,000.00 was outstanding. The office disputed this and accordingly sent a team on or about 4 October 2011 to Savaii to investigate. This was the team of Kumar, Lafi and company.

[17] They visited the various customers and collected some money but there remained a shortage. In the evening they held a meeting at their hotel. Where he admitted to them that he had stolen some of the money. But he did so because it had been a very long day and he did it so that he could rest. Page 28 of his evidence:

“ua leva ona matou tauivi ma le aualii ia ia faapea ia ou tali atu ioe. Ona o a’u foi ile taimi lea na fai ai matou suesuega ua fiu le aualii e fai mai ua ese foi lo’u mafaufau. Ia na iu lava ina fai fai a pei o le tala lea na fai mai ana faapea ua ou ioe ua leva ona matou malolo. Ia na ou ioe atu a matou malolo loa. Ia ae le’i faapea na ou ioe ma so’u atoatoa faapea oute ioeina lea moliaga.”

[18] He gave a similar explanation in relation to “P-101”. He said he signed because he was told by Lafi that the letter was for the company bosses in Fiji. And that he was not to worry he would still keep his job. Again on page 28 he says in relation to the Upolu meeting:

“Ia o lagona lava ia e tasi. Na’o le pau le suiga na ia te a’u sa tau oso ai ou lagona fiafia faapea au ai e faamaoni le tala lea a le tamaloa lea o Lafi na faamalamalama mai ia a’u le uiga o le tusi. Fai mai o le tusi e ave i Fiti, e na’o na ave e fai ai le latou ripoti ae o’u sau a’u ia oute faigaluega e leai se mea oute popole ai.”

He was surprised when he turned up for work the next day to be confronted by the police.

[19] In other evidence he testified that on two occasions in August 2011 he gave large amounts of cash to Mr Kumar. $30,000.00 was delivered at the wharf on a Sunday night as per his instructions to help with payment of company wages and close to $50,000.00 was delivered to Kumar at his home again on a Sunday night as per Kumars instructions.

[20] There were various other matters not put to the prosecution witnesses that the defendant referred to in his evidence. Such as being advised by head office in October 2011 that the shortage was $140,000.00 then being advised subsequently it was $70,000.00 and then further being advised that there was no shortage at all. But as this particular issue was not put to the prosecution witnesses and as it was not referred to by any of the other witnesses either for the prosecution or the defence I ignore this part of the defendants evidence.

[21] For the same reason I ignore his testimony about being yelled at by his interrogators and about Kumars wife placing a bible on the desk and requiring him to swear on the bible that he did not take any money. These matters were not put to Kumar or to Lafi or to any other witnesses.

[22] The essence of this case is simple as most of the factual evidence is admitted by the defendant. He agrees he was in charge of the Savaii truck, he agrees he received monies from Punjas Savaii customers, he agrees that some of them were unable to pay and were given the goods on credit and that the money would subsequently be collected. And that he was solely responsible for the issuing of receipts and collecting the money. He agrees he supervised the two runs that are the subject of the charges. Alot of time, energy and expense was wasted on having to hear over one hundred witnesses most of whom live in Savaii on factual matters which could have been admitted.

[23] This case also shows that it is not necessary for the prosecution to lay over one hundred separate informations. Representative charges could instead have been brought. That would have been sufficient for the court to draw its conclusions as to the totality of the offending. These matters become more acute where a defendant is represented on legal aid.

[24] Consequently a straight forward case was torturously prolonged by both the prosecution and the defence at considerable expense to the tax payer. This was also a case where “P-101” the crucial written confession could have usefully been produced and argued about as Exhibit “P-1”. Not after one hundred other exhibits and countless witnesses. “P-101” is a key component of the prosecution case and its early production may have resolved this case quicker.

[25] The document is a written confession of theft of a substantial amount of company money. It is alleged to have been signed voluntarily and without compulsion by the defendant at the companys Apia office the day after the investigating team returned from Savaii having obtained admissions from the defendant as to the thefts. “P-101” also relevantly states that the defendant was given an opportunity to check the relevant documents which he did but he “found nothing”. The inference being that he found nothing untoward or which would assist him in his defence.

[26] The defendant claims he did not understand what he signed as his English is poor. I am sorry Atalili I do not believe you. It is inconceivable that non-Samoan speaking managers would place in charge of their Savaii operation a person with whom they could not readily communicate. Companies like Punjas are here to make money, that is their core business. In terms of the documents produced it is clear the Savaii sales were substantial. I do not accept that a company like this would put in charge of such an operation somebody with whom they could not talk except through an interpreter. The defendants ability to well understand English was also unwittingly demonstrated by him during his evidence when he interrupted and clarified in Samoan a matter I was discussing with his counsel in English. I noted that at the time and have a clear recollection of it. I have no doubt the defendant well understands the English language. And there is no suggestion that he cannot read English.

[27] As to the defendants assertion that he was coerced into signing ‘P-101” and making the relevant admissions of guilt: in Savaii there was no evidence that he was under pressure to admit his guilt or wrong doing. There is no evidence that somebody stood over him or forced him to confess or placed any duress or undue pressure on him. The defendants explanation that he admitted stealing a substantial sum of company money because he was tired is not convincing. I have seen and heard you Atalili give your evidence to the court. You do not strike me as gullible or an unintelligent fellow. Far from it.

[28] I make the same sort of observations in relation to the meeting held in Upolu resulting in “P-101”. In my assessment the defendant was well aware of the magnitude of his theft although not necessarily down to the last dollar and sene. And he confessed because he knew full well he had been helping himself to the monies collected from the Savaii runs. His admission of guilt in Savaii and in “P-101” is consistent with all the other evidence adduced by the prosecution.

[29] His testimony about the two large cash payments given to Mr Kumar does not help him greatly for the following reasons: firstly it is difficult to accept that he would be walking around with such large sums of cash. And if he had such cash why had he not turned it in to the company cashier? Secondly the evidence does not establish when in August 2011 these two large cash payments were given to Kumar. Was it before or after the dates covered by the charges? And lastly the evidence does not establish whether these amounts were not already taken into account by the company in calculating the extent of the defendants defalcation even assuming that what he says is true.

[30] If what he is trying to suggest is this money was stolen by Mr Kumar and the matter is now being blamed on him, he faces two problems. Firstly there has been no evidentiary foundation laid to that effect namely, establishing that such sums were part of the missing monies. And secondly if that was the case why did he not mention it to his interrogators when they questioned him in Savaii and again the next day in Upolu? If he was afraid to mention it to his interrogators because of Kumar why did he not mention it to the police when they began investigating? There is no evidence that he told anyone about the large cash payments. The court cannot accept the evidence on just his say so without some sort of corroborative testimony.

[31] Considering the totality of the evidence that has been adduced by the prosecution I am satisfied to the required standard that the defendant stole money from his employer as alleged. And I find the following 90 of the 182 charges against him have been proved beyond reasonable doubt: charges numbered 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 29, 31, 32, 33, 34, 35, 36, 37, 40, 41, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 58, 59, 61, 62, 66, 68, 73, 74, 75, 76, 77, 78, 79, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 98, 100, 101, 102, 103, 104, 107, 108, 109, 110, 112, 113, 116, 117, 118, 119, 120 involving a total sum of $22,527.10.

[32] The following thirty one (31) charges are dismissed: charge number 2 because the witnesses evidence was of poor quality and she said their shop does not buy coffee from Punjas, the relevant receipt in that case being for purchase of coffee; charge number 9 because there was insufficient evidence identifying the defendant; charge number 23 because the evidence adduced does not accord with the details contained in the information; charge number 27 because the witnesses evidence is all hearsay; charge number 28 because the witnesses evidence was contradictory and because he also said he paid a Punjas employee by the name of Eugene who was not part of the defendants crew; charge number 30 because the witness was unsure if the defendant was part of the crew that took the payment; charge number 38 because the witness was unsure about the relevant receipt and the quality of her evidence was generally poor, no doubt because she had only recently emigrated from American Samoa; charge number 39 because this involved the same witness as charge 38; charge number 43 because the witness could not identify the relevant receipt; charge number 45 who was the wife of the store owner and who was never given any receipts and therefore could not identify the relevant receipt; charge number 54 because the evidence did not accord with what is in the information, the relevant receipt being dated May 2011; charge number 57 because the witness could not identify the relevant receipt. She thought it was for their family store at Falealupo; charge number 60 for the same reason; charges numbered 63 and 64 because the witness said the sale monies were paid to Tato’i because the defendant was in Apia; charge number 65 because the witness said the money was paid to a large unidentified person and that the defendant came subsequently looking for the money and she told him she had already paid her bill; charges 67 and 69 because the witness could not identify the relevant receipt. He thought it belonged to his auntys shop; charges 70, 71 and 72 because the evidence adduced did not accord with the details in the information; charge number 81 because the witness was unable to identify the defendant or any of his crew; charge number 96 because the witness was unable to identify the relevant receipt; charge number 97 because the evidence adduced did not accord with the details in the information; charge number 99 because the witness said payment was made to people who came accompanied by a police officer and there was no evidence the defendant was one of that group; charge 105 because the witness is not a Punjas customer and could not therefore identify any receipt; charge number 106 because the witness is not the person named in the relevant receipt and had no relationship to the person named in the receipt; charge number 111 because the witness was unable to identify the relevant receipt; charges 114 and 115 because the witness could not identify the defendant and charge 121 because the witness was unable to identify the relevant receipt.

[33] The remaining sixty one (61) charges were not the subject of any evidence and are therefore also dismissed. All in all 90 charges have been found by the court to be proven. The remaining 92 charges against the defendant are dismissed.

[34] For completeness of the history in this matter I would add that in respect of the charges that were the subject of evidence a large number specified the wrong place of the alleged offending. Originally I was not mindful of granting the prosecution application to amend but as this was not objected to by defence counsel I allowed the amendments. As the case unfolded I also noted that the place of the offending was not the basis of the defendants defence which explained to me why counsel did not object to the applications to amend the place of the alleged offending. By the time counsel decided to make an issue of it the trial was half-way completed. It was too late and accordingly I allowed all place amendments.

[35] The court has found you guilty of 90 counts of theft as a servant of varying amounts over a 10 day period in August 2011. The amounts involved vary from the lowest of $18.00 to the highest of $3,000.00. The majority are amounts less than $1,000.00 but they total up to a sum of $22,527.10. Which is considerably less than the amount in the written confession that you signed.

[36] The courts sentencing policy for the offence of theft as a servant is well defined and enunciated. Its prevalence and seriousness almost always leads to a penalty of imprisonment especially where the amounts involved are substantial and the breach of trust is great. The evidence shows that you supervised the Savaii runs on behalf of your employer over the two weeks involved in the charges. And that you were exclusively responsible for collecting the sale proceeds on behalf of your employer. You misapplied these monies to your own personal use and you did this not once or twice but in accordance with the charges proven 90 times. There is therefore multiplicity of offending in your case. And the court does not overlook the fact that a certain degree of planning had to go into what you did.

[37] Each count of theft as a servant carries a 7 year maximum penalty. Penalties for this offence have just this month been increased by Parliament to 14 years in prison. But in your case the offending occurred under the old law and you will be dealt with on the basis of the previous maximum of 7 years.

[38] An appropriate start point for sentence considering all the relevant factors is 4 years in prison. Taking into consideration the fact that you are a first offender and also the matters that your lawyer has placed before the court on your behalf in mitigation; and that includes the reference provided by the pastor whose presence the court acknowledges this morning; because of all those factors I will make a deduction from the start point of sentence of 1 year imprisonment. That leaves a sentence of 3 years imprisonment.

[39] For these offences Atalili you are convicted and sentenced to 3 years in prison. That is the sentence in respect of all 90 charges.

Supreme Court of Samoa

Police v Fiti [2013] WSSC 93 (22 May 2013)