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Police v Burgess [2017] WSSC 106 (21 July 2017)

IN THE SUPREME COURT OF SAMOA
Police v Burgess [2017] WSSC 106


Case name:
Police v Burgess


Citation:


Decision date:
21 July 2017


Parties:
POLICE (Informant) and RUTA BURGESS female of Vaitele & Tualele (Defendant)


Hearing date(s):
14-15 June 2017


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Mata Keli Tuatagaloa


On appeal from:


Order:
The court finds as follows:
The charges of theft in a special relationship (volunteer) are proven beyond reasonable doubt.
The alternative charges of theft are dismissed.
The charges of false accounting and forgery are not proven beyond reasonable doubt and are therefore dismissed.


Representation:
L Su’a-Mailo for Prosecution
Defendant appears in Person


Catchwords:
Theft in a special relationship – volunteer


Words and phrases:


Legislation cited:
Crimes Act 2013 ss. 162; 172(2)(a); 172(2)(b);


Cases cited:


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E
Informant


AND:


RUTA BURGESS, female of Vaitele & Tulaele
Defendant


Counsel:
L Su’a-Mailo for Prosecution
Defendant appears in Person


Hearing: 14-15 June 2017
Decision: 21 July 2017


DECISION OF TUATAGALOA J

The charges

  1. The defendant, Ruta Burgess is charged with the following:
  2. The defendant is alleged to have created two Vehicle Agreements under the names Feagaiga Memea and Si’ulagi Paialii. The vehicle agreements have the make and type of vehicle hired, the registered license plate and the rate allocated according to the type of vehicle hired, i.e., van, pickup or bus. The defendant is alleged to have received the payments (cheques) for the said vehicles as in the Vehicle Agreements.
  3. The cheque #00857 in the amount of $4,450 is for the Vehicle Agreement under the name of Feagaiga Memea for a 15-seater vehicle, white with license plate T846. The cheque #00858 in the amount of $4,100 is for the Vehicle Agreement under the name Si’ulagi Paialii for a 15-seater van, white with license plate 4562. Such vehicles are alleged by the prosecution to not exist.

The background

  1. The Samoa Youth Commonwealth Games Authority (SYCGA) was set up to run and facilitate the hosting of the Commonwealth Youth Games that was held in Samoa in September 2015. The defendant together with two other volunteers Fiapa’ipa’i (Pa’i) and Salote were allocated to the Transport Division of SYCGA under the supervision of Seiuli Seti Ah Young (Transport Officer) and his assistant Ailini. Seiuli Seti and his assistant were paid staff.
  2. The SYCGA put out an advertisement for vehicle owners to express interest to have their vehicles hired during the Games. The evidence is, the vehicles that were hired were not only those who put in Expressions of Interest (EOI) but also included those who did not put in any EOIs. The vehicle owners had to sign Vehicle Hire Agreements (hereinafter referred to as ‘contracts’) with the Transport Officer Seiuli Seti. The list of vehicles that were used as mentioned in the evidence of Angela Ula was always updated electronically from the Transport Officer or by flash drive hand carried to the Finance Section by anyone of the three volunteers.
  3. The transport volunteers were to make sure that the vehicle owners or providers signed the vehicle log book noting the times their vehicles were used. After the SYCG the transport volunteers assisted in collating the information (log sheets) to process payments.

The evidence

  1. Prosecution called five (5) witnesses – Vitolio Lui (CEO, SYCG), Ferila Lokeni (Finance Manager), Seiuli Seti (Transport Manager), Angela Ula (Relations Officer) and James Ah Wai (Land Transport Authority). The defendant waived her right not to give evidence.
  2. The evidence not disputed are:

A. Theft in a Special Relationship: (S.162).

  1. The Crown must prove beyond reasonable doubt that the defendant:
  2. The Crimes Act 2013 or section 162 does not define ‘special relationship’ but the case law referred to in Adams on Criminal Law would include the defendant as a volunteer with the Samoa Commonwealth Youth Games as a ‘special relationship’.
  3. The learned authors of Adams on Criminal Law made the following commentaries on the elements of this offence:

Feagaiga Memea (cheque #00857)

  1. The first element of the offence is proven beyond reasonable doubt because the defendant does not dispute that she received the cheque #00857 in the name of Feagaiga Memea for the amount of $4,450. She conceded that she cashed and used the money but said she thought it was payment for her services with the SYCG. This is ludicrous and a far-fetched understanding on the part of the defendant and the court does not accept this understanding on her part. The defendant knew she was a volunteer and she also understood when cross-examined by counsel for the prosecution that as a volunteer she does not get paid. There is also evidence that she signed the back of the cheque and wrote her mobile number (7742154) which is the number listed to her name in the contact list of volunteers.
  2. In regards to element (b), Prosecution alleges element (b)(iii) that the defendant had an obligation to deal with the property in accordance with the terms of the Vehicle Hire Agreement, which is to pay for the hireage of vehicle T846. Prosecution’s case is that the defendant created the vehicle hire agreement by signing the agreement for hireage of a 15-seater van registered number T846 when in fact there is no such vehicle. The prosecution submits that the defendant failed to account for the cheque received (00857) for the reason that it was paid out for the hired vehicle T846 when such a vehicle does not exist. For reasons provided later on in this judgment the court finds that there was no evidence direct or circumstantial to prove that the defendant created the documents alleged by the prosecution.
  3. Ferila Lokeni who was the Finance Manager for SCYG gave evidence (which is accepted) and not disputed by the defendant, that the defendant came and said to her that Feagaiga Memea (cheque #00857) was a relative of hers and she (Feagaiga) had asked her to uplift the cheque. Ms Lokeni released the cheque to the defendant because she knew her as a volunteer with SCYG and therefore trusted her. The inference from Ms Lokeni’s evidence is that the defendant will pass on or give the cheque to the person named Feagaiga Memea. At this point, Ms Lokeni (or any of the prosecution witnesses) did not know that Feagaiga Memea and the defendant was one and the same person. Instead of handing over or giving the cheque to the person named Feagaiga Memea, the defendant herself cashed and used the money and by doing so she has failed the requirement in which the cheque was released to her by Ferila Lokeni at the time it was released.
  4. The theft in a special relationship by the defendant of the cheque number 00857 for Feagaiga Memea is proven beyond reasonable doubt.

Si’ulagi Paialii (cheque #00858)

  1. The defendant does not dispute that she went to Ferila Lokeni who looked after the Finance Section for the Samoa Commonwealth Youth Games 2015 and uplifted or signed out the cheque # 00858 for Si’ulagi Paialii but said that she gave the cheque to Pa’i who was also a volunteer with the Transport Section. The defendant said she only uplifted the cheque because she was asked to by one of the volunteers named Pa’i. She went with Pa’i to Ferila Lokeni of the Finance section and she signed out or uplifted the cheque which she gave Pa’i who would give it to the person named Si’ulagi Paialii.
  2. Ferila Lokeni said the defendant came on her own and told her that Si’ulagi Paialii was a relative of hers and if the cheque could be released to her (defendant). For the same reason that she released the cheque under the name Feagaiga Memea to the defendant, she (Ferila) also released this cheque to the defendant without authorization from the person whose name the cheque is made out to.
  3. Vitolio Lui, CEO of SCYG 2015 sent a letter (Exhibit P1) to the defendant regarding the two cheques and requested a meeting with the defendant. The letter was sent on 07 December 2015 and Mr Lui said the defendant met with him on 08 December 2015. He told the defendant of his disappointment in her and then asked her what she has done with the money. Mr Lui said that the defendant said to him that she had used it. He then gave her 7 days to pay the money back. Mr Lui said that was the last time he saw the defendant until this morning in Court.
  4. The defendant gave evidence that the money she said to Mr Lui she used was the payment for Feagaiga Memea. She put it to Mr Lui that he only asked her about the cheque for Feagaiga Memea and that was the money she responded to but not the money or cheque for Si’ulagi Paialii. Mr Lui responded that the letter she (defendant) received was in relation to the two cheques and his question to her was very clear that it was about the two cheques and her response was also very clear that she had used it. Furthermore, Mr Lui said the defendant never said to him that she never received or used the money for Si’ulagi Paialii. The Court accepts the evidence of Mr Lui over that of the defendant.
  5. The person named Pa’i did not give evidence. Why the volunteer Pa’i did not pick up the cheque herself if she knew or is related to the person named Si’ulagi Paialii cast doubt on the evidence of the defendant after all Pa’i herself is a volunteer like the defendant. The evidence of the defendant mentioning the other volunteer is too convenient and is therefore doubtful. In any event, the court does not believe the evidence of the defendant relating to this cheque.
  6. The evidence of Ferila Lokeni and Mr Lui of his meeting with the defendant are accepted by the court. The court on the evidence of Ms Lokeni and Mr Lui draws the conclusion that the defendant had used the money instead of giving the cheque or the cash to the person named Si’ulagi Paialii.
  7. The evidence for the prosecution regarding cheque #00858 in the name of Si’ulagi Paialii is that the defendant uplifted the cheque and had used the money. The signature at the back of the cheque for Si’ulagi Paialii is different from the signature on the contract. The mobile number written at back of the cheque is not the same as that listed to the defendant. Whoever cashed the cheque in the court’s view does not affect the evidence accepted by the court that the defendant had used the money and thereby failed to deal with the said cheque accordingly.
  8. The charge of theft in a special relationship by the defendant of cheque number 00858 is proven beyond reasonable doubt.

B. There is no need to consider the alternative charges of theft as the Court has found the charges of theft in a special relationship proven beyond reasonable doubt.
C. False Accounting

  1. The elements of the offence to be proven by the prosecution beyond reasonable doubt are:
  2. ‘Deception’ is defined under s.172 (2) as the offence of obtaining by deception. The meaning under (a) or (b) is relevant to the circumstances of this offending.
  3. The prosecution allege that the defendant made or caused to be make false entries into the Invoice TR056 (relating to cheque #00857) dated 17 September 2015 and Invoice TR016 (relating to cheque #00858) with intent to obtain by deception, money.
  4. The false entries into the Invoices alleged by the prosecution are obtained from the information contained in the Vehicle Hire Agreements and the log sheets. The prosecution is alleging that the defendant created these false documents.

Processing of payments

  1. To process payments, an Invoice for each vehicle hired must be prepared, signed off by the Transport Officer, Seiuli Seti, and then passed on to the Finance Section (Ferila Lokeni) to process cheques. The Transport Officer, Seiuli Seti was responsible for preparing the Invoices. The witness, Angela Ula who was the SYCG Relations Officer said she also assisted in preparing some of the Invoices. The supporting documents to prepare the Invoices is collated by the transport volunteers which documents include the log sheets for each vehicle (from the Vehicle Log book), the rates for each vehicle used and the last page of the signed Vehicle Hire Agreement, which page has the signature of the vehicle owner and Transport Officer, Seiuli Seti, date of agreement and the description of the vehicle.
  2. The payments were only processed after the SCYG on 23 September 2015. A lot of the payments were made on 25 September 2015.
  3. The defendant concedes to using the money relating to cheque # 00857 but denies any involvement with the fictitious documents relating to Invoice TR056 (payment to Fegaiga Memea). The fictitious documents referred to by the prosecution are the Vehicle Hire Agreement under the name Feagaiga Memea which agreement refers to hiring of a vehicle that does not exist, signing the vehicle log book which records the dates and times a vehicle was used, the log sheet (EXH P14) which information and times to calculate payment is obtained from the Vehicle log book (EXH P17).
  4. In relation to cheque # 00858 the defendant said she only prepared the log sheet for Si’ulagi Paialii.
  5. Seiuli Seti said that the vehicle owners would sign in front of him before he signed. He cannot remember everyone who came and signed the vehicle agreements because there were too many of them. He said if agreement is signed by him then the vehicle owner actually turned up and signed. He knows the defendant and said he certainly did not sign a contract with her. But he also said he can’t remember everyone that signed because there were too many.
  6. The evidence is there were two contract documents for Feagaiga Memea and also for Si’ulagi Paialii. For Feagaiga Memea they were dated 02 September and 03 September 2015. Both of these contracts were signed by Feagaiga Memea and Seiuli Seti. For Si’ulagi Paialii they were 31 August and 02 September 2015. The 31 August 2015 document is not signed by Seiuli Seti while the contract dated 2nd September 2015 has Seiuli Seti’s signature with that of the vehicle owner. With Si’ulagi Paialii, Angela Ula said that the last page of the contract submitted to process payments is signed by Seiuli Seti but the original contract in the file was not signed by Seiuli Seti. Seiuli Seti confirmed his signature appearing on the said agreements.
  7. The defendant said that she never signed or created the vehicle agreements under the names Feagaiga Memea and Si’ulagi Paialii. Her evidence is that it could be one of the other volunteers in transport that created the agreements.
  8. There is also no evidence that the defendant signed the Vehicle Log Book under the name Feagaiga Memea or Si’ulagi Paialii. Seiuli Seti’s evidence is that the transport volunteers were responsible for the Vehicle Log book. He did not specifically say who of the three volunteers but said all of them. There is no evidence that it was the defendant that was mainly tasked to look after the vehicle log book. If it was so, it would then be open to the court to infer that the defendant had signed the names of Feagaiga Memea and Si’ulagi Paialii in the book in which the log sheets were prepared from in order to prepare the invoices for payments. As for the log sheets, Seiuli Seti cannot say who of the three volunteers prepared which log sheets. He cannot or does not know who prepared the log sheets for Feagaiga Memea or Si’ulagi Paialii. The witnesses Angela Ula and Ferila Lokeni also cannot say as to who of the three volunteers with transport (including the defendant) brought the invoices up to Finance to process cheques.
  9. Seiuli Seti said that his right hand Ailini and the three volunteers Ruta Burgess (a.k.a Feagaiga Memea), Fiapa’ipa’i and Salote prepared or collated the information for him to prepare the invoices. He does not remember which one of the four prepared or collated the information for Feagaiga Memea or Si’ulagi Paialii.
  10. Angela Ula said that she also helped prepare some of the invoices and assisted Ferila Lokeni with processing payments. Her evidence is consistent with Seiuli Seti that the transport volunteers including the defendant collated the information to prepare the invoices. She does not remember which invoices she prepared or the volunteer who collated the information for Feagaiga Memea or Si’ulagi Paialii. The other important part of Angela Ula’s evidence which is contrary to what Seiuli Seti said is that the vehicles hired by the Samoa Commonwealth Youth Games were not just of those who put in Expressions of Interest. She said that the master list of vehicles used was always updated, electronically sent to them (Finance) by Seiuli Seti or delivered to them on flash drive by the volunteers including the defendant.
  11. The log sheet for Feagaiga Memea (EXH P14) was prepared from the vehicle log book labeled Samoa College (EXH P17). Angela Ula said that on the master list (EXH P15) the vehicle under Feagaiga Memea and Si’ulagi Paialii were not allocated to any team yet the vehicle log book signed by Feagaiga Memea is labeled Samoa College. This presumably means that Feagaiga Memea’s vehicle was stationed at Samoa College or was allocated to transport teams accommodated at Samoa College. There is no evidence or certainly the prosecution did not put to their witnesses whether each station, that is, where the teams or countries were staying would have its own labeled vehicle log book.
  12. The defendant said she prepared the log sheet for Si’ulagi Paialii. The log sheet is prepared from the vehicle log book. The prosecution did not provide or tender a vehicle log book for this vehicle or owner as it was with Feagaiga Memea. The prosecution said that Si’ulagi Paialii did not sign the vehicle log book (EXH P17) that Feagaiga Memea signed therefore the log sheet prepared by the defendant for Si’ulagi Paialii is false. The prosecution is to prove the charges beyond reasonable doubt and they should have put it to their witnesses these issues as questions instead counsel have automatically assumed that there is only one vehicle log book when the evidence is that there were more than 300 vehicles that were hired. The conclusion by the prosecution cannot be sustained because of the lack in their evidence.
  13. There is no direct evidence that the defendant signed any of the Vehicle Hire Agreements which means that she did not provide the false information about the vehicles hired under those agreements. The vehicles, as confirmed by James Ah Wai of Land Transport Authority do not exist under the said registered license plates of 4562 and T846 or 842; and Feagaiga Memea and Si’ulagi Paialii do not have any vehicles registered to their names because they do not appear on their system.
  14. The prosecution submits that on circumstantial evidence the Court can draw the inference that the defendant signed the vehicle log book; collated the information; signed the contracts for Feagaiga Memea and Si’ulagi Paialii and photocopied the pages of the contract – which all of it the Prosecution said were all false. These fictitious or false documents were referred to Finance to prepare the invoices and cheques. I accept what Wilson J said in Police v Pio[1] on circumstantial evidence:

“The strength of circumstantial evidence lies in the number of circumstances which all point in the same direction and in the absence of any circumstance which points in the opposite direction. If one circumstance shows that what is alleged to be a fact cannot be (or is most likely to be) true, then, of course, the whole pattern is destroyed. As to the weight to be given to circumstantial evidence, that is a matter for the trier of facts (in this instance, me). As I have said, the circumstantial evidence may be strong or it may be weak. That depends upon the circumstances of the particular case.”

“I am not permitted to draw inferences of guilt from doubtful facts. As a matter of commonsense, it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt.......I can draw inferences only from facts which are clearly proved.”

  1. The problem with the prosecution’s argument is that it was not only the defendant who collated the information and passed it on to the relevant people. If it was only the defendant who was responsible for all this, then it would have been open to the Court to draw the inference.
  2. The mobile numbers on the agreements are different from the defendant’s number listed to her name on the volunteers list. There is absolutely no evidence linking the defendant to the creation or signing of the agreement under the name of Feagaiga Memea or any of the documents like the vehicle log book or the log sheets. The same is said about the agreement under the name of Si’ulagi Paialii. The only evidence is that of the defendant who said she prepared the log sheet for Si’ulagi Paialii which I have referred to in paragraph [34].
  3. The circumstantial evidence is also very much in doubt and the charge therefore cannot be proven beyond reasonable doubt on circumstantial evidence.
  4. The two charges of false accounting fail or are not proven beyond reasonable doubt.

D. Forgery: the defendant is also charged for signing the name Si’ulagi Paialii:

  1. On the Vehicle Hire Agreement for Si’ulagi Paialii there is no direct evidence that the defendant signed the agreement under the name Si’ulagi Paialii. Seiuli Seti’s evidence is that all Vehicle Hire Agreement’s with the providers were signed before him. If he signs then that means the provider or owner of the vehicle had appeared and signed before him because he only signs after the vehicle owner has signed.
  2. There were two contracts alleged for Si’ulagi Paialii. The one dated 02 September 2015 was not signed by Seiuli Seti and only Si’ulagi signed. The second contract dated 31 August 2015 was signed by both Si’ulagi Paialii and Seiuli Seti. It is obvious that the contract not signed by Seiuli Seti is invalid while the one signed is the valid one. Mr Seiuli’s evidence is that he cannot remember singing a contract with the defendant as there were so many contracts that were signed before him. If the prosecution is alleging forgery against the defendant for signing the name Si’ulagi Paialii then there is actually a person named Si’ulagi Paialii whose name the defendant signed. Such a person did not appear to give evidence nor is there any evidence that such a person existed. If a fictitious person, then how can the defendant commit forgery for signing a name of a person who does not exist? A document containing false information does not mean the documents have been forged.
  3. For the same reasons provided for false accounting in relation to the documents said to be created by the defendant are the same reasons applicable to this charge. There is no direct or circumstantial evidence to prove this charge beyond reasonable doubt.
  4. The charge of forgery is also not proven beyond reasonable doubt.

The conclusion

  1. The court finds as follows:

JUSTICE TUATAGALOA


[1] [1999] WSSC 50 (12 April 1999)

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