Police v Tietie [2017] WSSC 68 (28 April 2017)

THE SUPREME COURT OF SAMOA
Police v Tietie and Pulotu [2017] WSSC 68

Case name:	Police v Tietie and Pulotu
Citation:	[2017] WSSC 68
Decision date:	28 April 2017
Parties:	POLICE (Prosecution) v PAGAMALIE EVAGELIA TIETIE male of Vailima and ESEKIA PULOTU male of Vailima Accused
Hearing date(s):	4 April 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	The one charge of theft as a servant is proven beyond reasonable doubt against Esekia Pulotu (S3952/15). Both accused will be sentenced on 31 May 2017 at 12.30. Pre-sentence Reports are ordered for both.
Representation:	L Sio for Prosecution Accused in Person
Catchwords:	Theft as a servant
Words and phrases:
Legislation cited:	Crimes Act 2013 s,161 and 165(e)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PAGAMALIE EVAGELIA TIETIE male of Vailima and Siuma and ESEKIA PULOTU male of Vailima
Accused

Counsel:
L Sio for Prosecution
Accused in person

Decision: 28 April 2017

RESERVED DECISION

The Charges

1. The accused Pagamalie Evagelia Tietie pleaded not guilty to three joint charges of theft as a servant pursuant to sections 161 and 165(e) of the Crimes Act 2013. The accused Esekia Pulotu pleaded not guilty to two joint counts of theft as a servant and guilty to one joint count.
2. The Prosecution alleges that at Vaitele-Uta on 26 November 2015, 27 November 2015 and 7 December 2015, both accused together with a third co-accused, being employees of Ott Transport Company Ltd, stole on each of those dates, 4 bags of concrete cement, valued at SAT$21.50 each, the property of their employer.
3. The accused Esekia pleaded guilty to the theft on 7 December 2015.
4. At trial, the Prosecution called 5 witnesses. The Accused both chose to give evidence.
5. The third co-accused pleaded guilty and has been sentenced for this offending.

Relevant Law

6. Section 161 defines theft or stealing as the dishonest taking of property with intent to deprive any owner permanently of the property. If the property stolen is taken by a clerk or servant, in effect, an employee, and the property belongs to his or her employer, that offence is generally referred to as ‘theft as a servant’. The relevant parts are as follows;

Section 161. Theft or stealing – (1) Theft or stealing is the act of:

(a)Dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or

(3)For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Section 165. Punishment of theft – A person who is convicted of theft is liable as follows:

(e) if any property stolen by a clerk or servant which is owned by his or her employer or is in the possession of his or her employer, to imprisonment for a term not exceeding 10 years;”

7. Therefore the elements of the offence which the prosecution must prove beyond reasonable doubt are:
   1. The accused dishonestly took property ;
   2. Belonging to his or her employer;
   3. Without the employer’s consent;
   4. With Intention to permanently deprive the employer of that property.
8. The onus is on the Prosecution to prove a Defendant’s guilt through establishing each element, of each offence, beyond reasonable doubt.

The Evidence

9. Tauaaletoa Rudolph Ott gave evidence as the manager of Ott Transport at Vaitele that employed Pagamalie as supervisor of the section making concrete slabs, and Esekia as labourer working under Pagamalie in that same section. He had been informed by a neighbour that cement bags were being removed from workshop and loaded into a taxi. He reported this to Police and 4 bags of cement were returned as a result of Police investigations.
10. This evidence was unchallenged as the accused had no cross-examination.
11. The second Prosecution witness Launiu Time works in the same section as both accused and the third co-accused. He says that he recalls on 7 December 2015, he arrived back from going to SNPF and Pagamalie was asking Esekia and the third co-accused who told them to take the bags of cement. They replied it was on their own accord. Neither of the accused challenged this evidence.
12. Pe’a Alofa was the person who was sold the bags of cement. He lives at Vaitele-Fou. He confirms that on three separate occasions, he paid SAT$60.00 for four bags of cement. He could only recall the face of the third co-accused, as others he came with would wait in the car. He could not recall the face of either of the accused in Court.
13. Iukalisi Loli was the taxi driver in whose taxi the bags of cement were transported from next to Silva Transport to Vaitele-Fou on 7 December 2015. He could not recall the faces of those who put the bags of cement into his car or who went with him to take the bags.
14. Isaia Pio is the third co-accused who has been sentenced for this offending. He is the main Prosecution witness. In 2015, he worked for Ott Transport in the cement section together with Pagamalie, Esekia and Launiu. Pagamalie was the supervisor. When he joined the section, he was the newest member of the section. He admits taking the cement bags on three occasions, each time 4 bags. On the first occasion he and Esekia loaded the bags into a taxi and he took the bags alone in the taxi. Pagamalie told them to take the bags to a fale piliki at Vaitele Fou and showed them where to go. He received SAT$60.00. He used it to buy them smokes, ava and food which he gave to Pagamalie when he returned to work.
15. On the second occasion, Pagamalie also told him to take the bags of cement. Esekia was not present. He alone took the bags to the same place. He received SAT$60.00 which he used to buy smokes, ava and food which he took back to Pagamalie.
16. On the third occasion, Esekia came to him and said for them to take the bags for smokes and ava. He says Pagamalie saw them and asked Esekia where they were taking the bags. Esekia replied for smokes and aka. Then he and Esekia took the bags and received SAT$60.00 from the same place. They bought smokes, ava and food which he gave to Pagamalie. Pagamalie told him to mix the ava. He says Launiu was never around on any of these occasions.
17. Upon being questioned by Esekia, Isaia said that Esekia only helped him take the bags of cement once to sell on the third occasion, but on the first occasion, he helped him to load the bags into the taxi.
18. Pagamalie gave evidence in his own defence that he had been with Ott for 6 months prior to this happening. There were only 4 of them in this section. He only knows of the incident on 7 December 2015 because he was asleep during lunch and woke up to see Esekia walking out the back of the workshop. He called out to him but Esekia kept walking. So he walked around the back and saw a tear in the fence wire. Esekia and Isaia were not around. When they came back he asked them where they went and they said to take the bags of cement to sell. He then asked them on whose authority did they take the bags of cement, and they replied on their own authority.
19. He gave evidence that he would scold Isaia and Esekia every day about their poor performance. He says he had to be vigilant in keeping an eye on them as their performance was often an issue.
20. Under cross examination, Pagamalie conceded that he was the supervisor of their section although not formally appointed by the employer. But he denied that he had ever given instructions to Isaia to take the bags and sell them to a fale piliki at Vaitele. He does say that he did not report the theft he discovered to the company but instead said to Isaia and Esekia “e le mafia ga le maua oulua aua e kele fale faigaluega ga e kilokilo mai i fafo”.
21. Esekia gave evidence that he only knows about the incident on 7 December 2015 to which he has pleaded guilty. He did not help Isaia load the bags into the taxi on the first occasion. He did concede under cross examination that selling bags of cement is not a new practice within their section. When he started at the section, it was a well-known practice. The supervisor Pagamalie has on previous occasions given instructions to go and sell the bags of cement. He was always present to hear these instructions by Pagamalie but he went for the first time on 7 December 2015.

Discussion

22. At the end of Esekia’s evidence, Prosecution made an application to withdraw the joint charge s3951/15 against Esekia which concerned the theft of the bags of cement on 27 November 2015. This charge was withdrawn by leave and dismissed. One charge remains against him for 26 November 2015 and three against Pagamalie.
    
23. It must be proven beyond reasonable doubt that Pagamalie and Esekia;

1. Dishonestly took property ;

2. Belonging to their employer Ott Construction;

3. Without Ott Construction’s consent;

4. With Intention to permanently deprive Ott Construction of that property.

24. There is no doubt that during all three occasions, both Pagamalie and Esekia worked for Ott Construction at Vaitele. There is also no doubt that the bags of cement taken belonged to Ott Construction. These were taken without the consent of Ott Construction.
25. The issue with Pagamalie is whether although he did not physically move the property, did he cause the property to be moved through his instructions to Isaia and/or Esekia on 26 November 2015, 27 November 2015 and 7 December 2015.
26. I found the evidence of Isaia and Esekia to be convincing and compelling in relation to the part played by Pagamalie in this offending. They are part of only 4 people working in the cement section of Ott Construction at Vaitele. There is nothing that they do within this workshop that the others do not know about, and in particular their supervisor Pagamalie. Unless they are not physically present as in the case of Launiu who I accept was not present during all three occasions.
27. I accept that this workshop engages in selling bags for smokes, ava and food, without the knowledge and consent of the owner being Ott Construction. It was apparent in the evidence of Isaia and also in the evidence of Esekia that this is not a new practice but rather a well-known practice.
28. Although it is a well-known practice, the issue is whether Pagamalie caused the property to be moved on these dates, 26 November 2015, 27 November 2015 and 7 December 2015 by giving instructions to take the bags to sell.

7 December 2015

29. I will deal with 7 December 2015 first. Isaia has already been sentenced for his offending and Esekia has pleaded guilty to his involvement on 7 December 2017. The only reliable evidence concerning Pagamalie is his questioning of Isaia and Esekia on whose authority did they take the bags. Both Isaia and Pagamalie gave evidence that they took the bags. Even though there was evidence that Pagamalie was given the goods bought with the money from the bags of cement afterwards, I am not satisfied that he gave instructions to Esekia or Isaia on 7 December 2015 to take the bags. I accept that was the reason why he questioned them. He questioned them because they did this on their own accord and without his instructions. This questioning was witnessed by Launiu.

26 November 2015 and 27 November 2015

30. However on the two earlier occasions, being 26 and 27 November 2015, I accept that Pagamalie gave instructions to Isaia to take the bags. The issue here with Esekia is whether he was involved in the taking of those bags on 26 November 2015.
31. I accept that Isaia was helped by Esekia on 26 November 2015 to load the bags into the taxi. On the second occasion being 27 November 2015, Isaia took the bags also on the instructions of Pagamalie. Esekia was not present. Prosecution rightly withdrew the charge against Esekia for 27 November 2015 as there was no evidence of his involvement.
32. I find it easy to believe Isaia because he was the newest member of the team. It is hard to contemplate that he would take the bags of cement without anyone’s knowledge, within a workshop of only 4 workers. I heard evidence from Pagamalie that although he was not formally appointed as the supervisor he told the boys off every day in relation to their performance, which indicates to me that he watched over them and monitored their work carefully. I was not impressed with Pagamalie’s evidence in relation to the taking of the cement bags on these two occasions. I found him to be evasive.

Result

Pagamali Evagelia Tietie

33. I find that it has been proven beyond reasonable doubt Pagamalie dishonestly took property by causing it to be moved on 26 and 27 November 2015, through his instructions to Isaia and Esekia to take the bags to sell. This property belonged to Ott Construction, his employer. The bags were taken without the consent of Ott Construction. The bags were sold to a fale piliki and the money used to buy smokes, ava and food on his instruction. This is indicative of an intention to permanently deprive Ott Construction of the bags of cement.
34. I do not find that Pagamalie gave any such instruction on 7 December 2015, therefore I do not find this charge proven beyond reasonable doubt against him. This charge is dismissed.
35. I therefore find two charges of theft as a servant against the accused Pagamalie Evagelia Tietie ( S3952/15 and S3951/15) proven beyond reasonable doubt.

Esekia Pulotu

36. I find that it has been proven beyond reasonable doubt that Esekia was involved in the taking of the bags of cement on 26 November 2015, at a time when he was an employee of Ott Construction. The bags of cement belonged to Ott Construction. He helped Isaia to load the bags into the taxi without the consent of Ott Construction. His intention is apparent from these actions as he knew that the bags would be taken to be sold.
37. The one charge of theft as a servant is proven beyond reasonable doubt against Esekia Pulotu (S3952/15).
38. Both accused will be sentenced on 31 May 2017 at 12.30. Pre-sentence Reports are ordered for both.

JUSTICE TAFAOIMALO TUALA WARREN