Police v Tagilima [2015] WSSC 173 (19 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Tagilima and Reed [2015] WSSC 173

Case name:	Police v Tagilima and Reed
Citation:	[2015] WSSC 173
Decision date:	19 October 2015
Parties:	Police (prosecution) and Silauniu Tagilima (first defendant) and Melaia Reed (second defendant)
Hearing date(s):	2, 3, 4, 5 February 2015
File number(s):	S1512/14,S1510/14, S1513/14, S2554/14, S2556/4, S2557/14, S2558/14, S2559/14, S2560/14, S2561/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Samoa
Judge(s):	Justice Vaai
On appeal from:
Order:	All informations against the both defendants are dismissed.
Representation:	L Su’a-Mailo for prosecution D Kerslake for first defendant A P Faasau for second defendant
Catchwords:	Theft as a servant -
Words and phrases:
Legislation cited:
Cases cited:	R v Lewis (1975) 1 NZLR 222; Larkins v Police (1987) NZLR 282; R v Curtis [1987] NZCA 230; (1988) 1 NZLR 734.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Appellant

AND:

SILAUNIU TAGILIMA and MELAIA REED
Defendants

Counsel:
L Su’a-Mailo for prosecution
D Kerslake for first defendant
A P Faasau for second defendant

Judgment: 19 October 2015

JUDGMENT OF THE COURT

Introduction

1. Both defendants have been charged with the theft of stationery from the Ministry of Education, Sports and Culture where they were both employed at the relevant time. There is one individual charge against Silauniu alleging theft of 1 box of ring binder between the 1^st February 2011 and 28^th February 2011. Both defendants are jointly charged with two counts of theft of stationery between February 2013 and March 2013. Defendant Silauniu is also jointly charged with one Junior Seumanutafa, her assistant, with one count of theft of stationery in February 2011, and eight counts of theft between February 2013 and April 2013. Junior Seumanutafa has pleaded guilty to those nine charges as well as other charges of theft.
2. Silauniu was employed as the Senior Asset Manager within the Corporate Service of the Ministry. Her duties and responsibilities include inter alia the storage of stationery received by the Ministry from its overseas suppliers, and their distribution to government schools throughout the country.
3. Melaia was the Principal Accountant within the Corporate Service to whom Silauniu reports to. Melaia in turn reports to the Acting Chief Executive Officer of the Corporate Service division who in turn reports to the Chief Executive Officer of the Ministry.

Storage and Distribution of Stationery

4. Containers of stationery upon arrival at the Ministry are checked by Silauniu and her team outside the old main office of the Ministry. This old main office has been turned into the main, one door, warehouse for the storage of stationery, as well as the office for Silauniu which is located near the door.

After checking, the stationery is then stored in the main warehouse as well as other buildings and shipping containers scattered within the compound in close proximity to the main warehouse.

5. Two trucks, owned by the Ministry, are used to cart the stationery from the main warehouse to the other storage facilities. Casual workers are hired particularly to sort, cart, store, distribute the stationery, under the supervision of Silauniu and her assistant Junior Seumanutafa (Junior) referred to in paragraph 1.
6. Distribution of the stationery to the government schools in Upolu is conducted at the beginning of the year at the main warehouse and office of Silauniu where distribution forms are completed by the school principals and Silauniu. The supply of orders for each school is monitored by Silauniu and the school principal. Stationery required from the other storage facilities to supply school orders are carted to the main warehouse by Junior and the casual workers as instructed by Silauniu. Team of casual workers is led by Junior. Each school provide its own transport.
7. As for the government schools in Savaii, two delivery trucks are hired to deliver the stationery. The trucks of Mr Faafisi and Mr Polataivao were hired in 2013 to do the deliveries to Savaii as they were adequately covered and therefore safe to cart the stationery.

Re supply of Stationery

8. Some of the schools sometimes request the Ministry for more stationery after the original distribution. These requests, normally made around mid-year, are directed at the Chief Executive Officer whose approval must be granted. If approval is given, the stationery is delivered by the Ministry’s delivery vehicle as the quantities are usually small.

End of Distribution and Re-Supply

9. At the close of distribution of stationery to the government schools throughout the country, Silauniu and Junior conduct a stock take of all stationery to account for and record all stationery distributed and those left in the storerooms.

Ideally this asset register should show the balance of the stock from the previous year, plus the new stock for the current year, less all stock distributed to schools leaving a balance or remaining stock. This format was recommended by the Auditor after his investigation in March 2013.

10. During the weekend, 8^th to 10^th March 2013, there was a break-in into one of the storerooms and stationery was stolen. As no stock taking was done before then, the quantities and nature of the stationery stolen could not be accurately identified. On the 12^th March 2013 Silauniu and Junior did the stock take.

Joint Charges against Silauniu and Junior

11. On the 2^nd April 2013 the Auditor, together with Silauniu and Junior did another stock take of the stationery as part of the auditors agenda to review the systems and procedures of the Ministry.

Eight items of stationery recorded at the first stock take of the 12^th March 2013 but were missing and therefore not recorded in the second stock take of the 2^nd April 2013 are the subject of the eight joint charges against Silauniu and Junior. The eight informations allege that between the 11^th March 2013 and 3^rd April 2013 Silauniu and Junior being servants of the Ministry of Education, Sports and Culture stole stationery of particular quantity and value, the property of the Ministry.

The ninth information alleges that between the 1^st February 2011 and 28^th February 2011 Silauniu and Junior stole 70 boxes of A4 papers valued at NZ$1,837.05 the property of the Ministry.

I will now deal with this information alleging theft between the 1^st and 28^th February 2013.

Prosecution’s Case against Silauniu (Information 1512/14)

12. Junior remembered the year 2011 as the year the Ministry shifted to its new headquarters. Its old main office became the main storeroom and office for Silauniu. Junior told the court that one late afternoon in the month of February 2011 he was instructed by Silauniu to take 70 boxes of A4 papers to the office of the Principal of the Apia Primary School, a short distance away and within the same compound as the Ministry. He went outside of the office and called to the truck driver, Eteuati, to take the truck to one of the storeroom. He and Silauniu then walked to the storeroom and Junior opened the door with the keys given to him by Silauniu. After Junior and truck driver loaded the 70 boxes onto the truck, the room was locked and Junior and truck driver delivered the stationery to the office of the Principal. It was after 5pm. The room of the Principal was unlocked when Junior and arrived to deliver and store the stationery inside.
13. Eteuati, the truck driver, was employed by Toleafoa, whose truck was hired by the Ministry to deliver stationery to Savaii as described in paragraph 7. This witness however told the court that the truck was hired to carry the stationery from the containers to the storage rooms.

In examination in chief he was asked: (page 28 transcript of 2/5/2015.)

Question: For the 8 years you have been working for Toleafoa Fa’afisi was there any time the vehicle was used by the Ministry of Education?
Answer: Yes
Question: Can you state the reason why this vehicle of Toleafoa was being used?
Answer: To carry stationery.
Question: Carry from where?
Answer: From the containers to where they are stored.
Question: Where are these containers?
Answer: The field of the school compound.

14. In relation to the alleged offence, this witness told the court that he drove the truck to the store room on orders from Junior. Silauniu then gave the keys to Junior to open the storeroom. When asked where Silauniu was when he and Junior were loading the boxes he said:
    • “Junior and Silauniu came over and unlocked the storeroom, me and Junior were the ones that loaded the boxes. Silauniu returned to the office.

Discussion of Information 1512/14

15. Prosecution contended that the testimony of Junior who admitted and pleaded guilty to the theft of 70 boxes of A4 papers was corroborated by Eteuati, the truck driver.
16. I have very serious doubts as to the reliability of the testimony of the truck driver. In the first place, the truck he was driving was one of the trucks hired by the Ministry to deliver stationery to Savaii. I have averted to that fact in paragraph 7 above. It was also confirmed by the Auditor in his testimony during examination in chief that the trucks hired by the Ministry were for the purpose of delivery to Savaii. He was asked: (page 11 transcript 4/2/2015) (my translation)
    • Question: Can you explain who owns the trucks used for your work?
    • Answer: The Ministry own two trucks to load orders from the containers, the only time different trucks are hired by the Ministry is when stationery are taken to Savaii.

The testimony of the Auditor is confirmed by the testimony of Junior who told the court (Page 44, 2/2/15)

“The process of supplying these schools at the beginning of the year is that Savaii is supplied first, trucks are hired to supply the schools, only when Savaii has been supplied then we supply the schools in Upolu”.

17. Secondly, if Savaii schools are supplied first as Junior testified, then by the time of the alleged theft, the deliveries to Savaii should have been completed and there was no need for the truck to be at the Ministry’s compound, particularly in the late afternoon when the 10 casual workers appeared to have finished work for the day leaving only Junior and the truck driver to load the 70 boxes.
18. More importantly the truck driver under cross examination admitted that in his police statement he told the police he did not see Silauniu on the day the 70 boxes were loaded.

Part of his statement was read to him in which he said to the police that when he backed the truck to storeroom he only saw Junior standing outside but did not know if Silauniu was inside the office.

In response to question under cross examination he told the court that the reason he told the police he did not see Silauniu was because he was not asked by the police if he saw Silauniu. He confirmed that in his police statement Silauniu was not present. Prosecution counsel in re-examination unsuccessfully attempted to place Silauniu at the scene of the crime.

“Question: Eteuati when I asked you before you said you saw Silauniu but when my friend asked you, you said you did not see Silauniu that day, what is your correct evidence?
Answer: Silauniu was in the office with Junior.
Question: What about during the evening when those boxes were being loaded, did you see Silauniu?
Answer: Yes I saw her.
Question: Where did you see Silauniu?
Answer: Silauniu was inside her room.

19. If I were to draw any reasonable inference from the testimonies of Junior and Eteuati, that inference is that Eteuati made the truck available to facilitate the theft by Junior of the 70 boxes of A4 papers. I also cannot accept that the 70 boxes were delivered to the office of the Principal of Apia Primary School.
20. As a consequence the charge has not been proven to the required standard and is dismissed.

Eight Informations against Silauniu and Junior (2554/14, 2556/4, 2557/14, 2558/14, 2559/14, 2560/14, 2561/14)

21. The remaining eight informations allege the theft of various stationery between the 11^th March 2013 and the 3^rd April 2013. Although Junior admitted the thefts, his testimony did not relate to any of the thefts alleged in the eight informations. He was not asked nor questioned on how these eight thefts were committed; in particular he was not asked if Silauniu had participated in any of those thefts either as a principal or as a party.
22. In alleging theft against Silauniu as a party it was contended by the prosecution that since the distribution of stationery to schools had been completed before the 11^th March 2013, all the stationery should have been securely locked away in the storage rooms and the keys to all storage rooms were with Silauniu in her office. If Junior did open the storage rooms to commit the several incidents of theft of stationery, he could only have done so either by Silauniu giving him the keys, or by Junior taking the keys with Silauniu’s knowledge.

Discussion of the eight informations of theft as a party against Silauniu

23. To prove the charges against Silauniu, the prosecution must prove that the defendant was a party in terms of section 23(1) Crimes Act 1961, by:

(a) actually committing the offences, or

(b) did or omitted an act for the purpose of aiding Junior to commit the offences; or

(c) incited, counselled or procured Junior to commit the offences.

24. As to the mens rea requirements to establish liability under section 23(1) this is usually described as an intention to help or encourage the principal party. This general requirement is well established by a line of authority dealing with liability for aiding or abetting by being present at the scene of the crime: R v Lewis (1975) 1 NZLR 222; Larkins v Police (1987) NZLR 282; R v Curtis [1987] NZCA 230; (1988) 1 NZLR 734. There must be proof of both help or encouragement and an intention to help or encourage.
25. There is not the slightest of evidence that the defendant Silauniu knew of the many thefts committed by Junior. The eight informations should be dismissed and are dismissed.

Information 1510 alleging theft of 1 box of ring binder by Silauniu between 1st February 2011 and 28th February 2011

26. Prosecution evidence to support the allegation of theft of the box of ring binder is the testimony of one Fa’alefu Tumutalie, a casual employee hired by the Ministry in 2013. His testimony related the alleged theft of a box of ring binder in February 2013. He was not employed in February 2011 when the theft was alleged to have happened. The information is dismissed.

Joint charges against defendants Silauniu and Melaia (Informations 1513 and 1514

27. Information 1513 alleges theft by the two defendants of 3 boxes hard covered books and 5 boxes Pall pen between the 1^st March 2013 and 31^st March 2013. Information 1514 alleges theft of 2 reams cardboard and 2 boxes 2 B8 books between 1^st February 2013 and 28^th February 2013.
28. Fa’alefu Tumutalie, the casual employee told the court that he and another casual worker, Wiskti, were ordered by the defendant Silauniu to take 2 boxes of 2 B8 books and 2 reams of cardboard to Melaia’s car which they did. Melaia and Silauniu were inside Silauniu’s office. Melaia’s daughter was inside Melaia’s car parked outside Silauniu’s office. Wisti confirmed the evidence of Fa’alefu. Both boxes of books and the reams of cardboard were placed inside Melaia’s car.
29. Defendant Melaia did not deny driving away with the stationery. Evidence given by defence witnesses established that the stationery was supplied by Silauniu to Melaia after Melaia had obtained the approval of Acting Chief Executive Officer, Polataivao, for the use of the stationery in the Ministry’s forthcoming budget refresher training which Melaia and her team were organising. The stationery was taken to Melaia’s office for that purpose.
30. The prosecution however contended that the supply of the stationery to Melaia was contrary to Ministry’s policy that the stationery was for schools only as the Ministry has already catered for its own stationery in the Ministry’s budget. Both the Chief Executive Officer and the Auditor of the Ministry testified. They told the court the staff of the Ministry were never allowed or permitted to use school stationery for office use. The so called policy however was not put in writing.
31. Counsel for the prosecution submitted that although there was no written policy in the Ministry prohibiting employees from using the school stationery, there was a general understanding and knowledge that the stationery is for government schools. It was submitted that the taking of the stationery contrary to the Ministry’s policy and rules tantamount to dishonest taking.

Discussion of information 1513 and 1514

32. No evidence was called to support information 1513 and is accordingly dismissed.
33. Despite the testimonies of the Chief Executive Officer (CEO) and of the Auditor, the Acting Chief Executive Officer (ACEO) in her testimony was adamant that she gave her approval to Melaia to obtain stationery for the Ministry’s pending training because there have always been internal requests within the Ministry to either the CEO or ACEO of the Corporate Service section for the use of stationery by the employees of the Ministry, for the activities of the Ministry. This practice has been in place since the ACEO joined the Ministry, and during her testimony she cited several similar requests, one of which came to her through the CEO.
34. Whether there was a policy or not is irrelevant. Melaia got the approval from the ACEO. Her taking of the stationery was not dishonest. She used the stationery for the Ministry’s training course. The information 1514 is dismissed.

Result

(1) All informations against the both defendants are dismissed.

JUSTICE VAAI