Police v Ie'u [2023] WSSC 36 (26 June 2023)

IN THE SUPREME COURT OF SAMOA
Police v Ie’u [2023] WSSC 36 (26 June 2023)

Case name:	Police v Ie’u
Citation:	[2023] WSSC 36
Decision date:	26 June 2023
Parties:	POLICE (Informant) v PENINA IE’U female of Papauta and Neiafu Savaii (Accused)
Hearing date(s):	06 June 2023
File number(s):	Amended Charging Document 2 dated 5/6/22 Amended Charging Document 4 dated 5/6/22
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	(a) I find the accused not guilty of the first charge concerning theft of $1,400 from her employer Apia Finance Company. That charge is accordingly dismissed. (b) I find the accused guilty of the second charge concerning theft of $50 from her employer Apia Finance Company; (c) The accused is remanded to next Friday 7 July 2023 for a pre sentence report and sentencing.
Representation:	V. Faasii for the Prosecution M. Lemisio for Accused
Catchwords:	Theft as a servant – theft – occurred multiple times.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss.161 & 165 (e).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

PENINA IE’U female of Papauta and Neiafu Savaii

Accused

Counsel: V. Faasii for the Prosecution

M. Lemisio for Accused

Judgment: 26 June 2023

JUDGMENT OF JUSTICE ROMA

Charges

1. By an amended charging document dated 5 June 2023, prosecution proceeded against the accused on 4 counts of theft as a servant contrary to ss161 & 165(e) Crimes Act 2013. At the commencement of trial, they withdrew one leaving three remaining charges. At closing submissions, they sought to withdraw another leaving just 2 remaining charges, the particulars of which are as follows:
   • (a) Between 14 January 2021 and 31 May 2021, she stole $1,400 in monies being property of her employer Apia Finance Company with intent to permanently deprive it of the said property;
   • (b) Between 1 April 2021 and 30 April 2021, she stole $50 in monies being property of her employer Apia Finance Company with intent to permanently deprive it of the said property.

Evidence

2. Prosecution called 6 witnesses – four from the complainant Apia Finance Company including its General Manager Angel Chan Tung, senior accounts and human resource officer Agamalu Vaepule, senior loans officer Margaret Schuster and senior recoveries officer Silia Sio. The 2 remaining witnesses were Melania Selu, a project coordinator with the Ministry of Health and Filifili Talitonu who works at the Western Union Money Transfer. Both were customers of Apia Finance Company.
3. The accused was employed as one of four officers in the recoveries section of Apia Finance from January 2020 to 17 June 2021. Their section was responsible for contacting debtors and following up loan payments including visiting them at their work places to collect payments. The company has 3 receipt books, one for its main office, one for their TATTE branch and one for the recoveries team.
4. The policy is that when the recoveries team go out, they would take the receipt book from which receipts are issued for any payments. When back in the office, the receipts are tallied with cash collected for banking. Payments are subsequently posted and deducted from the respective customers’ loan balances. It was conceded by prosecution witnesses that despite the policy, it was possible that the receipt book for some reason will not be with the recoveries team when going out, in which case any payments collected are taken to the office for receipts to be issued.
5. In June 2021, the accused was suspended following a discovery that she lied about a family funeral to obtain leave. According to the company General Manager Ms Chan Tung, there was no intention at the time to terminate her employment but for the accused to realise the seriousness of what she did. It was during the suspension that some customers contacted the company to check their payments and found no record of such being made.

14 January – 31 May 2021 - $1,400

6. According to Melania Selu, a project coordinator with the Ministry of Health and a customer of Apia Finance Company, the accused first visited her at work on 14 January 2021. The accused gave her a summons and told her that she must make payment. Melania then gave the accused $200 and asked for a receipt but was told that she would first go to see other clients and return with the receipt.
7. The second occasion was 29 April 2021, over 3 months after the first visit. The accused again went to Melania’s workplace with a letter saying that if she did not pay, she would have to appear in court. According to Melania, she gave the accused $200 and told her she would try and make a further payment later. About 2.45pm the same day, Melania called the accused back and gave her $500 to avoid appearing in court. When she asked for a receipt, the accused again told her that she would see her other clients first before she returned with a receipt.
8. The third meeting was on 13 May 2021, almost a month after the second. Melania had called the accused to come and pick up her payment whilst she had money. The accused came and Melania gave her $500 and further told her not to make any payments for June. When asked for a receipt, the accused responded that she would go back to the office and update her account before she contacts her again.
9. On 1 June 2021, Melania received a call from an officer of Apia Finance who was unhappy with the status of her loan payments. That officer happened to be Silia Sio. Melania told Silia that the accused had collected her payments and that the payments were up to date. Silia however confirmed that no such payments were showing on the company’s system.
10. Melania told the Court further that in the end, she repaid to Apia Finance the sum $1,400 which the accused had collected from her but which was not received by the company.
11. Under cross examination, Melania maintained that she made the 4 payments totalling $1,400, she was never issued receipts and she trusted the accused to account for her payments. Apart from her oral testimony based on brief statement to police on 28 July 2021, she concedes having kept no record in any form of the dates she made payments and the amount for each payment.

April 2021 - $50

12. Another customer of Apia Finance was Filifili Talitonu who works at Western Union Money Transfer. She told the Court that the accused was her loans officer and she would call her from time to time regarding her payments and loan balance.
13. On one occasion in March 2021, she called the accused that she was unable to come to the office and asked if she could instead pick up her payment. The accused came as they were preparing to go on an office walkathon. She saw the accused’s car outside in a queue looking for parking. Filifili then gave her $100. She was not given a receipt.
14. On the second occasion, the accused again came to her workplace at the Western Union office. She gave her $50 but again no receipt was issued.
15. The third occasion was in April 2021 when the accused again collected from Filifili $50. When asked for a receipt, the accused said that the receipt book was in the car. Filifili then asked her to send her a receipt and statement when she got back to the office. Neither a receipt nor a statement was sent to Filifili as requested.
16. Later when Filifili called Apia Finance to inquire about her loan balance, she spoke to Silia and disputed her account given payments the accused had collected from her. She later met with Silia and paid $1,000 in reduction of her loan.
17. Silia Sio, a senior recoveries officer with Apia Finance confirms having spoken to both Melania and Filifili about their loan accounts as both accounts had been referred to legal. According to Silia, Melania insisted that her loan balance had been cleared and told her about the accused visiting and collecting payments to a total of $1,400.

Receipts & Daily Cash Reports

18. Margaret Schuster, a senior loans officer with Apia Finance is responsible for handing out the receipt books in the morning and collecting them before 3.30pm each day. She would then tally receipts issued against cash payments received before posting in the lodgement book.
19. For the charge relating to payments by Melania Selu, she produced the daily cash reports for January 2021 (Exhibit P1), April 2021 (Exhibit P3), May 2021 (Exhibit P5) and the corresponding receipts for January 2021 (Exhibit P2), April 2021 (Exhibit P4) and May 2021 (Exhibit P6). Clearly from the documents, no payments were received towards Melania’s account in January, April and May 2021.
20. In fact, Melania’s loan statement (Exhibit P10) shows that the only cash payment received in 2021 was $250 on 19/08/21. The statement further shows a balance of $1,125 with a note “Bal CF to Loan #4” on 04/11/21. In the absence of any explanation, it seems that the $1,125 loan balance was transferred to another account.
21. In respect of the charge concerning the $50 payment by Filifili Talitonu in April 2021, Margaret also produced the daily cash report for March 2021 (Exhibit P7) and the corresponding receipts (Exhibit P8) confirming that no receipts were issued to Filifili. Her loan statement (Exhibit P9) shows that for April 2021 only one cash payment was received on 07/04/21. The statement further shows cash payments of $50 on 26/02/21, $100 on 12/03/21, $1,000 on 04/06/21 and $115 on 01/07/21.
22. The accused elected not to call any evidence.

Discussion

23. For each of the charges, prosecution must prove beyond reasonable doubt that:
    • (i) the accused was employed by Apia Finance Company;
    • (ii) she took monies in the amounts charged being property of Apia Finance Company;
    • (iii) she intended to permanently deprive Apia Finance Company of its interest in the property.
24. There is no dispute that the accused was under the employment of Apia Finance. The main dispute relates to her taking of the monies.

14 January – 31 May 2021 - $1,400

25. Prosecution submits that on the evidence of Melania that on 4 occasions in January, April and May 2021, the accused collected payments of $200, $200, $500 and $500 from her workplace without issuing her receipts, and of Margaret that the company’s daily cash report and receipts, and loan statements do not reflect any such payments, the accused would have taken the monies for her own purposes. They contend that despite not having record of payments being made, Melania was unmoved under cross examination and maintained her evidence as to the amounts of payments and the dates she made them to the accused.
26. The defence on the other hand argues that Melania’s evidence is unreliable and cannot on its own prove to the required standard that the accused took any monies.
27. I have carefully listened to the testimony of Melania. I do not doubt that Apia Finance did not receive any payments in reduction of Melania’s loan account for January to May 2021. I accept also Melania’s evidence that the accused paid her visits at work concerning the status of her loan and to collect payment. I also accept that during those visits, Melania would have made payment to the accused.
28. But I cannot safely rely on her testimony to find with any certainty the number of times the accused visited her office, the dates of such visits and the exact amounts she paid to the accused on each occasion.
29. Firstly, she kept no record of each date and time and amount of payment if any was made. Yet months later in a brief statement to police on 28 July 2021, she was specific on the dates and on one occasion the times, and amounts of payments she made to the accused. Secondly I find it difficult to accept that someone of Melania’s position, would have simply allowed the accused to receive significant sums of monies from her on 4 separate occasions without receipts, and not taken steps to at least inquire with Apia Finance whether her payments had in fact been accounted for or to confirm the status of her loan.
30. Whilst I accept parts of Melania’s evidence, I am left in doubt whether the accused visited her on each of the 4 occasions alleged; whether she made payment on each occasion; and whether the payments if any are in the exact amounts she claims. The accused is charged on the total amount of 4 alleged payments being $1,400. The onus is on prosecution to prove the amount charged beyond reasonable doubt. I am not satisfied on Melania’s evidence that it has. The benefit of the doubt must be exercised in favour of the accused. The charge is accordingly dismissed.

April 2021 - $50

31. Prosecution submits on the evidence of Filifili that of her 3 payments made to the accused, only 2 were accounted for and appear on the company’s system – a payment of $100 in March 2021 which was the subject of charge no. 3 that prosecution withdrew; and $50 in April 2021. The other $50 made also in April 2021, they argue was not issued a receipt and taken by the accused with the intention of permanently depriving Apia Finance of its interest in the property.
32. I find no reason to doubt Filifili’s evidence that on 2 occasions in April 2021, she made payments of $50. She was not issued receipts for both payments, one is reflected in her loan statement, the other I find was taken by the accused with intent to permanently deprive her employer of its interest therein.
33. I find that prosecution has proven the second charge beyond reasonable doubt.

Result

34. For the above reasons I conclude as follows:
    • (a) I find the accused not guilty of the first charge concerning theft of $1,400 from her employer Apia Finance Company. That charge is accordingly dismissed.
    • (b) I find the accused guilty of the second charge concerning theft of $50 from her employer Apia Finance Company;
    • (c) The accused is remanded to next Friday 7 July 2023 for a pre sentence report and sentencing.
      

JUSTICE ROMA