Police v Saunoa [2019] WSSC 67 (15 November 2019)

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Case name:	Police v Saunoa

Citation:	[2019] WSSC 67

Decision date:	15 November 2019

Parties:	POLICE v HILDA MOELASI SAUNOA female of Tulaele and Salelologa.

Sentencing date(s):	15 November 2019

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- On the evidence and for the foregoing reasons, I find the Prosecution has failed to prove the charge beyond a reasonable doubt and it is accordingly dismissed.
Representation:	V Faasii and M Alai for Prosecution Accused self-represented

Catchwords:	Theft as a servant; dishonest; case dismissed.

Words and phrases:
Legislation cited:	Crimes Act 2013;

Cases cited:

Summary of decision:

[1] The accused is charged with one charge that at Tafaigata on the 7th October 2016, she being a servant of the Samoa Prison and Correction Service stole five (5) cases of cans of fish valued at $43.50 each to a total value of $217.50, being the property of her employer namely, the SPCS

.3 (S2947/16). The offending is alleged to have occurred at the old Tafaigata Prison.

[2] The charge against the defendant is brought pursuant to section 161 and 165(f) of the Crimes Act 2013. Section 161 and 165(f) relevantly provide:

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

(b) dishonestly, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

(2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that:

(b) any owner is likely to be permanently deprived of the property or of any interest in the property.

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

[3] ‘Dishonestly’ is defined in section 159 of the Crimes Act 2013 as follows:

“dishonestly”, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give the consent or authority”

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

(e) if the property stolen is 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;”

[5] Section 2 of the Crimes Act 2013 defines ‘property’ to mean “real and personal property, and any estate or interest in any real and personal property, money, electricity and any debt, and anything in action, and any other right or interest.”

[6] The ingredients of the offence of theft as a servant which the prosecution must prove beyond reasonable doubt are:

[7] Prosecution called 4 witnesses. These were Taitosua Edward Winterstein, Douglas Fereti, Alisa Pitovao and Vaioleti Stowers.

[8] Mr Winterstein is the Commissioner of Prisons and held this position in October 2016. Mr Fereti was the Acting Manager of the Prisons and Corrections Service at the relevant time. Their evidence was general in nature. They said that the Prison rations is one can of tin fish between two prisoners. The stores were kept in the store room in the administration building, the same building in which Mr Winterstein’s office was located. Mr Winterstein said that the store room was a locked room. The office girls had a key to the store room and that there should be a log book for the store room for the stores kept.

[9] A complaint was lodged from the Women’s Prison about there not being enough rations. The allegation was that tin fish had been sold for ice cream. In his evidence, Mr Winterstein was not aware of what type of elegi the accused is alleged to have stolen.

[10] Mr Fereti similarly said that a written complaint had been received from Vaioleti Stowers about there being not enough food. It was a serious complaint because it had to do with rations. He spoke to Ms Stowers about the complaint but he did not raise it with the accused. The matter was referred to the Commissioner. He could not say what the date of the complaint was nor could he say how many boxes of tin fish were involved.

[11] In her evidence, Vaioleti Stowers said that on the 17th October 2016, she had asked the Commissioner of Prisons whether Prison Officers are able to buy and sell rations. It was not a complaint but a question because she said that five (5) boxes of tin fish had been taken from their cupboard. She explained that the tin fish rations are brought from the main office. Where there were extras, these were kept in a cupboard in the Women’s Prison.

[12] She recalled that there was a day in tin fish was placed into five (5) boxes and taken to Alosa Pitovao’s private car. Alisa Pitovao was a Prisons Officer. She was told to take it to the car by the accused. Ms Stowers took the cases of tinned fish with two other females. Alisa Pitovao then left with the tin fish around 10.00am and returned later with ice cream, tang and biscuits. These items were then given to the prisoners. She could not recall whether the accused went with Alisa in the car. It was not usual for the tin fish to be taken in this way nor was it usual for the tang, ice cream and biscuits to be given to the prisoners. There was change left over given to the accused but she did not know what the accused did with the change.

[13] In her evidence, Alisa Pitovao said that she was a Prison Corrections Officer from 2015 to February 2017. She recalls the 7th October 2016. It was a day when there was a visit to the Prison from a New Zealand group. She was at the prison at 7am to 8.00am, starting work at 8.00am. She did not attend the briefing that morning.

[14] She was directed to take five (5) boxes of tin fish that day and to get ice cream and drinks for the female prisoners. She can’t recall who took the five (5) boxes of tin fish to the car. She went together with the accused to Princessa Supermarket Vaitele down from Maota Samoa. While she waited in the car, the accused took the boxes of tin fish into the shop. They returned to the Prison with a big ice cream, a large plastic bag with biscuits and packets of tang. When they arrived back at the prison, the visiting New Zealand group was at the prison. The ice cream, tang and biscuits were given to the female prisoners for their sports day.

[15] The accused elected to give evidence. She said that it was the Friday of the White Sunday Long Weekend. She said that the five (5) boxes of tin fish belonged to three of the prisoners. She had been approached by the women matai of the Prison to sell these five (5) boxes of tin fish and to get morning tea (vai malu). She explained that some of the prisoners were going out on the weekend so she agreed for the boxes of tin fish taken and exchanged to get morning tea with it. She received $175.00 for the boxes of tin fish. She then used that money to buy ice cream, arrowroot biscuits and tang which was then given to the female prisoners that day for their sports day. She denied that the tin fish was from the prison rations and said in her evidence that the female prisoners were only fed the tin fish once a week. She said she had the authority to sell the tin fish as it belonged to the female prisoners and these were kept in the office. She said the prisoners tin fish are not kept in the prison cells.

[16] Loeina Mamaia gave evidence on behalf of the accused. In October 2016, she was a prisoner serving a term for attempted murder. She was a matai in the prison. She said she was asked to approach the accused if the tin fish belonging to the prisoners can be sold for ice cream for the sports day. The accused agreed. A large box of ice cream was bought with biscuits, kool aid and cigarettes. She recalled that this was the day that there was a visit from a New Zealand group.

[17] On or about the 7th October 2016, there is no dispute on the evidence before this Court that the accused together with Corrections Officer Alisa Pitovao took from Tafaigata Prison five (5) boxes of tin fish to Frankies Super Market, Vaitele. There, she sold the five (5) boxes of tinned fish and returned to the Prison with ice cream, biscuits and tang. She may also have brought back cigarettes for the female prisoners. These items were then given to the female prisoners for their Sports Day. There is no suggestion on the evidence that the accused kept the goods or personally benefitted from her actions.

[18] I am satisfied that at all material times, the accused was an employee of the Prisons and Corrections Service. The key question is whether or not the five (5) boxes of tin fish taken by the accused was the property of the Samoa Prisons and Corrections Service.

[19] I am not satisfied beyond a reasonable doubt that the cases of tin fish sold by the accused to Frankies Supermarket belonged to the SPCS. In his evidence, the Commissioner of Prisons could not say what type of tin fish the accused is said to have sold. No such evidence was also led from Mr Fereti. Importantly, there was no inventory record showing that the boxes of tin fish sold by the accused belonged to the SPCS. Indeed, the prosecution case was wholly devoid of any inventory records to prove the ownership of the tinned fish sold by the accused and indeed, the Commissioner himself was not certain that such inventory records themselves were kept or existed, only that they should. The inventory records, if any, appear to have been very loose.

[20] The only direct evidence supporting the allegation that the boxes of tinned fish belonged to the SPCS was the evidence of Vaioleti Stowers. She said that the boxes of tinned fish were from the leftover prisoner rations that were leftover and which were stored in a cupboard at the Women’s Prison.

[21] There was no evidence from Mr Winterstein and Mr Fereti as to the existence of this arrangement where excess stock was stored in a cupboard in the Women’s Prison.

[22] In her evidence, the accused said that boxes of tinned fish are also given by the prisoner’s families. The tin fish she sold belonged to certain prisoners who asked for them to be sold for the vai malu for the sports day.

[23] Whilst I do not doubt that Ms Stowers believed the boxes of tinned fish belonged to the SPCS, she is a prisoner who does not have access to or control of the cupboard or the goods stored in the cupboard at the Women’s Prison. She also cannot reliably know the source of where the tin fish kept in that cupboard comes from. In her evidence, Alisa Pitovao who is a Corrections Officer herself could not say where the boxes of tin fish came from. There is a lack of cogency and reliability in the prosecution evidence itself as to who owns the boxes of tin fish that was sold by the accused such as to leave me in real doubt over this question. I certainly do not place such weight on the evidence of Ms Stowers to find this question proven beyond a reasonable doubt.

[24] In light of the accused evidence that food items including tin fish was given to prisoners and that the tin fish she had taken to Frankies Supermarket was tin fish belonging to prisoners who wanted it to be exchanged for ice cream and other goods, this simply further adds to the real doubt over the ownership of the tin fish that I have.

[25] On the separate question of the alleged dishonest taking, even if the boxes of tinned fish belonged to the SPCS, which I do not accept, I am also not satisfied that the prosecution has proven beyond a reasonable doubt that that she acted dishonestly. In this context, that she acted dishonestly in that the accused acted without a belief that there was express or implied consent or authority for her to sell the boxes of tinned fish.

[26] The accused sold five (5) boxes of tinned fish and from the proceeds of that sale, she purchased ice cream, biscuits and tang for the female prisoners sports day. There is no suggestion as I have said earlier that she personally benefitted from the sale of the boxes of tinned fish or that she used it for herself. The proceeds of the sale were re-applied for the direct benefit of the female prisoner on their sports day. The accused was the Principal Corrections Officer for the Women’s Prison. One might say that the treat of ice cream, tang and biscuits for their sports day would have been a welcome treat and a relief from the heat by the female prisoners.

[27] In the absence of the accused personally gaining from the sale of the boxes of tinned fish and the accused on the evidence clearly using the proceeds of that sale to treat the female prisoners on their sports day and on a weekend that other prisoners were to be released, the bringing of this prosecution against the accused is frankly bereft of any common sense. It was fundamentally an employment issue that should not have been prosecuted through the criminal Courts and an ordeal that she should not have been put through in the circumstances of this case. It was also in the end also not supported by the evidence for the reasons that I have set out.

[28] It is regrettable for you Hilda that you have had this prosecution hanging over your head for almost three (3) years and that you have been put through this lengthy court process. I have made my views clear on the prosecution that has been brought against you and I will be dismissing the charge against you.

[29] On the evidence and for the foregoing reasons, I find the Prosecution has failed to prove the charge beyond a reasonable doubt and it is accordingly dismissed.

Supreme Court of Samoa

Police v Saunoa [2019] WSSC 67 (15 November 2019)