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Police v Eteuati [2005] WSSC 10 (10 June 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FAAFETAI ETEUATI
Accused

Counsel: K Koria for prosecution
K Ainuu for accused

Hearing: 12, 13, 14, 19, 20 April 2005 and 30 May 2005
Judgment: 10 June 2005

JUDGMENT OF SAPOLU CJ

The accused was originally charged with sixteen charges of theft as a servant under ss.85 and 86(1)(g) of the Crimes Ordinance 1961 and twenty four charges of falsifying accounts under s.98 of the same Ordinance. At the commencement of the trial on 12 April 2005, counsel for the prosecution, with the leave of the Court, withdrew twenty six of those charges. There was, as expected, no objection from counsel for the accused. That left seven charges of theft as a servant and seven charges of falsifying accounts.

For convenience, I have decided to deal with the charges of theft as a servant first and then with the charges of falsifying accounts. I have also decided that in dealing with the charges of theft as a servant, I will deal with the charges contained in informations s.787/02, s.793/02 and s.794/02 together, the charges contained in informations s.568/03 and s.575/03 together, and the charges contained in informations s.570/03 and s.569/03 individually. A substantial portion of the evidence in this case relates to the charges of falsifying accounts. I do not propose to refer to that evidence in detail in dealing with the charges of theft as a servant except to the extent that it is relevant to those as a servant charges.

Charges of theft as a servant contained in informations s.787/02, s.793/02 and s.794/02

In information s.787/02, the accused is charged that on 16 January 2002 whilst she was a servant of Polynesian Airlines Ltd, she did steal $800 in money which was the property of her employer. In information s.793/02, the accused is charged that on 11 February 2002 whilst she was a servant of Polynesian Airlines Ltd, she did steal $400 in money which was the property of her employer. And in information s.794/02, the accused is charged that on 24 February 2002 whilst she was a servant of Polynesian Airlines Ltd, she did steal $300 in money which was the property of her employer.

The evidence shows that at the material times the accused was employed as accounts clerk in the accounts receivable section of the finance department of Polynesian Airlines Ltd (PAL). The accounts receivable section consisted of three staff members. They were the accused as accounts clerk, a senior accounts clerk and a supervisor. They were responsible to the manager financial services and the general manager of the finance department. Their responsibilities included the preparation of credit travel forms for approval by the manager financial services or the general manager of the finance department. What this means is that if any person wants to travel on a Polynesian flight but does not have the funds to pay for his airfare, he may make a request to the accounts receivable section for approval to travel and pay for his airfare later. It appears from the evidence that in practice a member of the public who wanted credit travel would make a request to anyone of the three staff members of the accounts receivable section. The staff member to whom the request was made would then fill in a credit travel form with the requisite details and submit it to the manager financial services or the general manager of the finance department for approval. If the approval was granted, that would be taken to the ticketing department of PAL where the airline travel tickets would be issued. At the material times, PAL’s policy with regard to credit travel was that any person who was approved credit travel must pay a deposit equivalent to fifty per cent of his total airfare before any travel ticket was issued to him. However, it appears from this case that that policy might not have been observed in some cases.

After a ticket had been issued on credit by the ticketing department, a copy is sent to the accounts receivable section which would put it into a computer. The computer would then generate an invoice showing the name of the person to whom credit travel had been granted, the credit ticket number and the amount of the airfare. The evidence relating to this part of the case is quite technical and it is not necessary here to go into it in any detail. Suffice to say that there is on the invoice a number called a “batch number” and there is a document called a “user ID record” showing the same batch number and the name of a particular staff member of the accounts receivable section, all generated by the computer. That information shows who of the staff members of the accounts receivable section had fed into the computer the data from which the computer had generated a particular invoice. The invoices would subsequently be posted to an accounts transaction ledger together with any receipts for payments and credit notes. This was done by feeding those documents into the computer and the computer would then produce the accounts transaction ledger showing the balances of the various credit accounts. The evidence shows that all three staff members of the accounts receivable section, including the accused, were involved in the posting of the accounts transaction ledger in the sense that all of them would put data into the computer from which the computer produced the accounts transaction ledger. However, whilst there is a “batch number” and a “user ID record” from which one can identify the particular staff member who supplied the data into the computer from which an invoice was generated, there is no similar information from which one can identify the particular staff member who supplied into the computer the data from which the computer produced an account shown in the accounts transaction ledger.

With regard to the payments made by customers of PAL for credit travel, the evidence of the witness Agnes Pouafe who was at the material times the internal auditor for PAL but now its revenue accountant is that, the company’s policy is that all payments for credit travel accounts are to be made to the cashier at the accounts payable section of the finance department who would issue receipts for such payments. As it appears from the evidence of the accused and the defence witness Onosai Nofoaiga, at the material times the staff members of the accounts receivable section were accepting payments from customers for their credit travel accounts. The accused and the witness Onosai Nofoaiga testified that the accounts receivable section issued receipts, using the same receipt book used by the cashier in the accounts payable section, for payments made by customers for credit travel to the accounts receivable section. This was contrary to company policy mentioned by the witness Agnes Pouafe that all payments, including payments for credit travel, were to be made to the cashier who would issue receipts. It is also clear from the evidence that no receipts were issued by the accounts receivable section for the credit travel payments made directly to the accused for which she has been charged with theft as a servant.

How the present charges came about was that in May 2002, the witness Daisy Roebeck was appointed as the new manager financial services for PAL’s finance department. She wanted an audit inquiry to be carried out into the operations of the accounts receivable section before she took up her duties and responsibilities as manager financial services. That audit inquiry was conducted for the period 1998 to 2002 by the witness Agnes Pouafe who was then PAL’s internal auditor. Agnes Pouafe testified that in the course of her audit inquiry she came across an invoice dated 17 January 2002 for credit travel under the name of one Barbara Carter in the amount of $1,500. This was for a travel ticket issued on credit. When Agnes Pouafe checked the transaction ledger she found a balance of $800 in the account under the name of Barbara Carter. She then contacted Barbara Carter that there was an outstanding balance of $800 in her account with PAL. The response by Barbara Carter was that she had paid that $800 to the accused and she had also made other payments totalling $700 which cleared her account. In other words, Barbara Carter was saying that she had paid her account in full and as far as she was concerned she owed nothing to PAL.

At the same time, Agnes Pouafe carried out a reconciliation of the account under the name of US Postal Services because the customer who owns that account had disputed an invoice for credit travel charged to that account as it does not have an account for credit travel with PAL. It was discovered that the amount of $700 for the invoice under the name of Barbara Carter had been charged to the account of US Postal Services.

So what the audit inquiry by the witness Agnes Pouafe showed was that there was an invoice under the name of Barbara Carter in the amount of $1,500 for credit travel. The transaction ledger showed an outstanding balance of $800 for that account. Agnes Pouafe then contacted Barbara Carter about the outstanding balance of her account. Barbara Carter replied that she had already paid that amount to the accused and that she had also made other payments totalling $700 which cleared the full amount of her account. However, when Agnes Pouafe carried out a reconciliation of the US Postal Services account she found that an amount of $700 for the invoice issued under the name of Barbara Carter had been charged to that account. This raises the question of where the $1,500 Barbara Carter told the witness Agnes Pouafe she had paid had gone to.

The witness Agnes Pouafe had also testified that when she checked the relevant invoice and user ID record, they showed that the staff member who had fed the data into the computer from which the computer had generated the invoice under the name of Barbara Carter was the accused. I find unconvincing and unacceptable the suggestion by defence counsel that some other staff member might have been responsible for putting into the computer the data from which the computer generated the invoice under the name of Barbara Carter. The witness Agnes Pouafe also testified that she asked the accused if there were any receipts issued for the payments made by Barbara Carter as she could not find any receipts for such payments. In reply the accused admitted to Agnes Pouafe that she had received the cash payments from Barbara Carter. The two of them, according to the evidence of Agnes Pouafe, then checked through the receipt books but they could not find any receipts that had been issued for the payments made by Barbara Carter.

Barbara Carter was called as a witness by the prosecution. She said that in January 2002 her husband had to travel to New Zealand for a family funeral. As she and her husband did not have enough money to pay for his full return airfare at the time, Barbara Carter requested the accused on 16 January 2002 for credit travel for her husband to travel to New Zealand. Her request was granted and she then paid $800 deposit to the accused; the balance of the airfare to be paid when her husband returned from New Zealand. This witness also said in evidence that the accused did not give her a receipt and as she trusted the accused as a friend she did not bother to ask for a receipt. She was also quite happy at the time as her husband had been issued a ticket to travel to New Zealand.

Barbara Carter further testified that on 24 February 2002 she paid another $300 to the accused for her husband’s credit travel and she was not given a receipt. On 6 February 2002 she had made another payment of $300 for which she was given a receipt. She also made another payment of $100 on an unspecified date to a different member of the staff of the accounts receivable section for which she was not given a receipt. The police has charged the accused with theft of the sums of $800 and $300 paid to her by the witness Barbara Carter for which no receipts were issued.

The evidence of Barbara Carter also shows that sometime in February 2002 she herself travelled on credit to New Zealand on a PAL flight. One of the payments she made for her credit travel was for a sum of $400 which she paid on 11 February 2002 to the accused. She was not issued with a receipt for that payment. The police has also charged the accused with theft of that money.

When the accused gave evidence, she testified that the monies which were paid to her for credit travel by customers were passed on to the senior accounts clerk or the supervisor who were the other two staff members in the accounts receivable section at the time. The senior accounts clerk had previously been charged by the police and prosecuted but was finally acquitted. He was not called as a witness in this case. The supervisor was called by the defence in this case as a witness. His evidence is that if the accused had given him any monies paid for credit travel he would have issued receipts for such payments. The evidence of the witness Agnes Pouafe, as earlier mentioned, is that the accused admitted to her in the course of her audit inquiry that she received cash payments from Barbara Carter but when she and the accused checked through the receipt books they did not find any receipts which had been issued for those payments.

After consideration of the evidence, I am satisfied that the sums of $800, $400 and $300 which were paid for credit travel to the accused by her friend Barbara Carter for which no receipts were issued were taken by the accused and used for her own purposes. I do not accept the evidence of the accused that she passed on those monies to the senior accounts clerk and supervisor in the accounts receivable section of PAL. Accordingly, I find that the accused did steal those monies which were the properties of her then employer PAL. The charges of theft as a servant contained in informations s.787/02, s.793/02 and s.794/02 have therefore been proved beyond reasonable doubt.

Charges of theft as a servant contained in informations s.568/03 and s.575/03

In information s.568/03, the accused is charged that on 26 April 2002 whilst she was a servant of Polynesian Airlines Ltd, she did steal $1,200 in money which was the property of her employer. In information s.575/03, the accused is charged that between 31 March 2002 and 1 May 2002, she did steal $1,332 in money which was the property of her employer.

As the evidence adduced by the prosecution in relation to these two charges shows, the witness Agnes Pouafe during her aforesaid audit inquiry into the accounts receivable section came across an invoice dated 26 April 2002 under the name of one Valasi Fata c/- Lottie Fata of Vaimea in the total amount of $2,532 for three airline travel tickets issued on credit. From the batch number shown on that invoice and the batch number and the accused’s name shown on the relevant user ID record, Agnes Pouafe concluded that the staff member of the accounts receivable section who had put into the computer the data from which the computer generated that invoice was the accused. There is no evidence that any other staff member had put the relevant data into the computer from which the computer generated that invoice. Any suggestion to the contrary is not supported by the evidence and is unconvincing. Agnes Pouafe then checked the transaction ledger but she could find no account there in the name of Valasi Fata. She then called Lottie Fata and told her to come to the office of PAL as she had an outstanding account for credit travel tickets with PAL which had not been paid. Lottie Fata then went to the office of PAL where Agnes Pouafe and the witness Daisy Roebeck showed her the invoice under the name of Valasi Fata c/- Lottie Fata of Vaimea. Lottie Fata told Agnes Pouafe and Daisy Roebeck that she had paid that invoice in full to the accused.

Agnes Pouafe testified that when she asked the accused about this matter, the accused admitted to her that she had actually received the money from Lottie Fata but she could not recall whether she gave it to the supervisor or the senior accounts clerk of the accounts receivable section. The supervisor and the senior accounts clerk were then questioned by Agnes Pouafe. The supervisor, who was called as a witness by the defence, denied to Agnes Pouafe that he had been given any money by the accused. I had excluded as hearsay the evidence by Agnes Pouafe as to what the senior accounts clerk said to her because the senior accounts clerk was not called as a witness. Agnes Pouafe also testified that she and the accused checked through the receipt books but they did not find that any receipts had been issued for the payments made by Lottie Fata.

Lottie Fata was called as a witness by the prosecution. She testified that at sometime in April 2002, she called the accused, who is a friend for credit travel for three of her relatives who were to travel to New Zealand. The accused replied she would call back if it could be done. Later on the accused called back and informed Lottie Fata that it could be done. Lottie Fata further testified that she called the accused again and asked the accused to meet her at the cappuccino vineyard café at the ACB building and that she had $1,200 for the airfares of her relatives. The exact date as to when that happened is not clear from Lottie Fata’s evidence. What is clear is that when Lottie Fata met the accused at the cappuccino vineyard café at the ACB building she gave $1,200 to the accused. No receipt was given for that payment. Lottie Fata also testified that when she made the second payment she called up the accused that she was coming to make another payment for her relatives credit travel. She then went by car to make that payment. However, she cannot recall whether she paid the money to the accused in the car or in the office of PAL. Her evidence was also obscure as to how much she paid on that occasion. What is clear from the witness’s evidence is that no receipt was issued to her for that payment and that after this second payment was made, the outstanding balance of the account was $700, which she paid off at a later date. If this is correct, and there is no evidence to contradict this part of Lottie Fata’s evidence, then the second payment must have been for $632. This is because the total amount of the invoice was $2,532 and the amount of $1,200 had already been paid, which was the first payment. If the third payment of $700 cleared the account, then the second payment must have been for $632. In reply to a question from the Court, counsel for the prosecution advised that the accused was not being charged with the amount of the third payment. This being so, the amount of $1,332 with which the accused is being charged in information s.575/03 should be reduced to $632. Information s.575/03 is amended accordingly.

The accused in her evidence did not deny the payments the witness Lottie Fata said she had made to her. What the accused said was that she cannot recall whether she had passed on the money to the supervisor or senior accounts clerk in the accounts receivable section. The senior accounts clerk, as earlier mentioned, was not called as a witness in this case. The supervisor was called as a witness by the defence and he testified that if any monies had been given to him by the accused he would have issued receipts. The audit inquiry conducted by Agnes Pouafe found no receipts had been issued for these payments made by the witness Lottie Fata to the accused.

After consideration of the evidence, I am satisfied that the sums of $1,200 and $632 which were paid to the accused by Lottie Fata and for which the accused has been charged were taken by the accused and used for her own purposes. I do not accept the accused’s evidence that she passed on those monies to the senior accounts clerk or supervisor in the accounts receivable section of PAL. I find that the accused did steal those monies as alleged by the prosecution. Accordingly, the charges of theft as a servant contained in information s.568/03 and information 575/03, as amended, have been proved beyond reasonable doubt.

Charge of theft as a servant contained in information s.570/03

In information s.570/03, the accused is charged that on 10 January 2002 whilst she was a servant of Polynesian Airlines Ltd, she did steal $3000 which was the property of her employer.

The evidence of the witness Agnes Pouafe in relation to this charge was that during her audit inquiry, she came across an invoice dated 10 January 2002 under the name of Toleafoa Gutu Faasau for the total amount of $3,000 for two airline travel tickets issued on credit. From the batch number shown on that invoice and the batch number and the accused’s name shown on the relevant user ID record, Agnes Pouafe concluded that it was the accused who had put the data into the computer from which the computer generated that invoice. The relevant data consisted of the copies of the two airline travel tickets issued to Mr and Mrs Faasau. When the transaction ledger was checked for this credit account, it did not appear in the transaction ledger. Agnes Pouafe with the assistance of the accused then checked the receipt books but they found no receipts had been issued to show that that account had been paid. Upon further investigation, Agnes Pouafe found that the invoice under the name of Toleafoa Gutu Faasau had been posted to the account of Summit Cargo (Samoa) Ltd another customer of PAL. When the accused was asked about this account, she admitted to Agnes Pouafe that the customer had paid that account to her. The discrepancy was then reported to management and at a meeting with the general manager finance, the newly appointed manager financial services, Agnes Pouafe and the accused, the accused admitted that she had actually received the money for that account from the customer. The question then is where had that money gone to.

In her evidence, the accused testified that the money was paid to her but she cannot recall whether she had passed on the money to the supervisor or senior accounts clerk in the accounts receivable section. The senior accounts clerk, as already mentioned, was not called as a witness but the supervisor who was called as a witness by the defence testified that if any monies had been given to him by the accused he would have issued receipts. The audit inquiry by Agnes Pouafe found no receipts had been issued for any payment to this account.

After consideration of the evidence, I am satisfied that this account had been paid off to the accused but she had used the money for her own purposes even though that money belonged to her employer PAL. Accordingly, the charge of theft as a servant contained in information s.570/03 has been proved beyond reasonable doubt.

Charge of theft as a servant contained in information s.569/03

In information s.569/03 the accused is charged that on 17 January 2002 whilst she was a servant of Polynesian Airlines Ltd, she did steal $518 in money which was the property of her employer.

The evidence of the witness Agnes Pouafe in relation to this charge was that during her audit inquiry, she came across an invoice issued under the name of one Saua Pulemau for the total amount of $518 for two PAL airline travel tickets issued on credit. These airline tickets were for Fagalii, Pago, Fagalii. From the batch number shown on that invoice and the batch number and the accused’s name shown on the relevant user ID record, Agnes Pouafe was able to conclude that it was the accused who supplied the data, namely, copies of the said airline tickets, into the computer from which the computer generated that invoice. When Agnes Pouafe checked the transaction ledger, this account did not appear in it. However, when she checked the US Postal Services account, she found that the invoice which had been issued under the name of Saua Pulemau had been posted to that account.

There is a real difficulty with regard to this evidence in terms of proving this charge of theft. The difficulty is that there is no evidence to show that the accused had taken any money in relation to the invoice issued under the name of Saua Pulemau. It is true that there is evidence to show that it must have been the accused who supplied the data into the computer from which the computer generated the invoice issued under the name of Saua Pulemau. It is also true that the transaction ledger does not show an account under the name of Saua Pulemau notwithstanding the existence of a credit invoice. It is also true that the invoice under the name of Saua Pulemau was posted to the transaction ledger in the account of US Postal Services. However, there is no evidence that the accused had taken any money in relation to that invoice. In fact there is no evidence that any money had been paid towards that invoice. So it is not possible to conclude that the accused had stolen any money in connection with that invoice.

I am therefore not satisfied that this charge has been proved. Accordingly, the charge of theft as a servant contained in information s.569/03 is dismissed.

Charges of falsifying accounts contained in informations s.578/03, s.17/03, s.576/03, s.73/03, s.74/03, s.75/03, s.581/03

The charges of falsifying accounts contained in informations s.578/03, s.17/03, s.576/03, s.73/03, s.74/03, s.75/03 and s.581/03 have been laid by the prosecution under s.98 of the Crimes Ordinance 1961. Section 98 provides:

“Everyone is liable to imprisonment for a term not exceeding 5 years who, with intent to defraud:

(a) Makes any false entry or any alteration in any accounts kept by any Government Department or public body, or by any bank, being accounts of any public money within the meaning of the Public Money Act 1964, or of any other public fund;

(b) In any manner wilfully falsifies any such accounts as aforesaid; or

(c) Makes any transfer of any interest in any stock, debentures, or debt, in the name of any person other than the owner of that interest.”

Section 98 is cited in all the abovementioned informations as the charging provision but at the commencement of the trial, counsel for the prosecution advised the Court that the prosecution was relying only on paragraphs (a) and (b) of s.98.

At the conclusion of the evidence, it was pointed out by the Court that there were difficulties in bringing the present charges of falsifying accounts under s.98(a) and (b). One of these difficulties is that the Public Money Act 1964 specified in s.98(a) has been repealed. Thus when the written submissions by counsel for the prosecution were filed, they contain, as later clarified by counsel, a submission that if the evidence does not support the charges of falsifying accounts under s.98(a) and (b), then those charges be amended to s.99 of the Ordinance. Section 99 provides:

“Everyone is liable to imprisonment for a term not exceeding 5 years who, being or acting in the capacity of an officer or a clerk or servant, with intent to defraud:

(a) Destroys, mutilates, alters, or falsifies any book, account, valuable security, or document belonging to or in the possession of his employer, or received by him for or on behalf of his employer, or concurs in so doing; or

(b) Makes or concurs in making any false entry in, or omits or alters, or concurs in omitting or altering, any material particular from or in any such book, account, valuable security, or document.”

In seeking to amend the informations from s.98 to s.99, counsel for the prosecution relied on s.36 of the Criminal Procedure Act 1972 which provides:

“(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge, the Court may amend the information in any way at any time during the trial.

(2) Without limiting the generality of the powers conferred by subsection (1) of this section, the Court may amend an information by substituting one offence for another.

(3) Where, under the foregoing provisions of this section any charge is amended or substituted during the trial, the following provisions shall apply:

(a) Before the trial is continued, the charge as amended or substituted shall be stated to the defendant and he shall be asked how he pleads;

(b) The trial shall proceed as if the defendant had originally been charged with the amended or substituted offence, and any evidence already given shall be deemed to have been given in and for the purposes of the trial of the charge as amended or substituted, but either party shall have the right to recall and examine or cross-examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged;

(c) If any offence is amended or substituted to one which must be heard in another Court, the Court shall forthwith make an appropriate order for a transfer of the proceedings to that other Court.

(4) The Court may, at the request of the defendant, adjourn the trial if it is of the opinion that he would be embarrassed in his defence by reason of an amendment or substitution made under this section.

(5) In any circumstances to which sections 37, 38 or 39 of this Act applies, it shall not be necessary for the Court to amend the information."

In support of his submissions that it is still open to the Court under s.36 of the Criminal Procedure Act 1972 to entertain an application from the prosecution to amend an information even though the evidenced had been completed in a criminal trial, counsel for the prosecution referred to the decision of the New Zealand Court of Appeal in the case of Jones v Police [1998] 1 NZLR 447. In that case, the accused was charged with extortion under s.238(3) of the Crimes Act 1961 (NZ). After the evidence was completed and the trial Judge reserved his decision, it occurred to the Judge while reviewing the evidence that the facts as he found them would more properly support a charge of extortion in a slightly different form from that alleged in the information. The Judge then decided that, subject to hearing submissions from counsel, he would amend the information relying on s.43 of the Summary Proceedings Act 1957 (NZ) which is very similar in wording to s.36 of the Samoa Criminal Procedure Act 1972. After hearing submissions from counsel, the Judge amended the information. The accused appealed the decision by the trial Judge to amend the information. In dismissing the appeal, the New Zealand Court of Appeal said at p.451:

“Whatever way one looks at the issue, we are satisfied that the hearing does not irretrievably end at the moment the Judge reserves decision. Mr Zindel’s submission to that effect cannot succeed.

The policy behind s.43 is that amendments should be allowed when appropriate and subject to the procedural safeguards contained in the section. Whether to allow an amendment will usually involve striking a balance between the interests of the prosecution and the policy of the section on the one hand, and what, if any, prejudice there may be to the defendant on the other.”

Further on at p.452, the Court said:

“We are satisfied, both as a matter of construction and as a reflection of the policy of s.43, that the hearing for the purposes of s.43(1) runs beyond the point when the Judge reserves decision and lasts until that decision is given.....To treat the hearing as continuing until the point of decision does not unnaturally strain the word ‘hearing.’”

In the case of Higgon v O’Dea [1962] WAR 140, cited in Jones v Police, Hale J in the Supreme Court of Western Australia said at p.144:

“[The] hearing does not end when the last witness leaves the box or when the last address has been made nor even when the reasons for judgment have been given but it extends up to the time when judgment is pronounced.”

On the basis of these authorities cited by counsel for the prosecution, I have decided that in terms of s.36 of the Criminal Procedure Act 1972, the Court has jurisdiction to entertain an application made by the prosecution to amend an information even though the evidence at the trial has closed and the Court has reserved its decision as the trial lasts until the Court’s decision is given. It follows that I cannot accept the submission by counsel for the accused to the effect that for the purposes of s.36(1) of the Criminal Procedure Act 1972, a trial comes to an end when the evidence has closed so that it would be too late for the prosecution to seek an amendment to an information after that point in time. Unfortunately, that is not the end to the difficulties in this case.

The prosecution has sought to amend the charges of falsifying accounts by amending the informations from s.98 to s.99 of the Crimes Ordinance 1961. Such an amendment can be easily done by changing the charging provision from s.98 and s.99. However, that still does not solve the problem for the prosecution. Section 99(a) which appears to be relevant contains certain ingredients which would constitute an offence under that provision. Those ingredients are: (a) the accused at the material time must have been an officer, or clerk or servant or acting in any of these capacities, (b) the accused must have had an intent to defraud, (c) with that intent the accused must have falsified an account, and (d) such account must have belonged to or in the possession of the accused’s employer. Those ingredients are not shown in the informations even if they are considered under s.99. To take as an example to illustrate what I mean here, information s.581/03 charging the accused with falsifying account states:

“At Matafele on the 26^th day of April 2002, the abovenamed defendant wilfully falsified an account, namely, the Polynesian Airline Company Ltd, by failing to issue a receipt to confirm payment of invoice number 989689 with the amount of $2,532 with intent to defraud funds belonging to her employer, Polynesian Airlines Ltd.”

As that particular information is framed, it does not show whether at the material time the accused was an officer or servant or acting in any of those capacities. Secondly, the words “intent to defraud” relate to a person whether an individual or a legal entity, for example, a company. They do not relate to a non-living object such as money. One intends for the purpose of s.99 to defraud another person even though the method by which that is to be achieved is by falsifying an account. This is clearly implicit from such English cases as R v Wines [1953] 2 A11 ER 1497; R v Eden [1971] 55 Cr App R 193; and R v Williams [1899] 19 Cox 239 referred to in Adams Criminal Law (1992) vol 1, at paras CA 253.04 and CA 253.05. As information s.581/03 is presently framed, the accused is alleged to have intended to defraud funds. Thirdly, the account which is alleged in information s.581/03 to have been falsified by the accused is “Polynesian Airlines Ltd” which is not an account at all but the name of the accused’s former employer. Fourthly, it is not alleged in information s.581/03 that the account alleged to have been falsified belonged to the accused’s employer. What is alleged is that the accused intended to defraud funds belonging to her employer. Similar defects appear in the other informations charging the accused with falsifying accounts. In my view, none of these informations states in substance an offence.

Section 18 of the Criminal Procedure Act 1972 provides:

“(1) No objection to an information shall be taken by way of demurrer, but if an information does not state in substance a crime the prosecutor or the defendant may move the Court to amend it, or the defendant may move the Court to quash it or in arrest of judgment, as provided in this section.

(2) If the motion is made before the defendant pleads, the Court shall in its discretion either quash the information or amend it.

(3) If the defect in the information appears to the Court during the trial, the Court may if it thinks fit amend it, or may in its discretion quash the information or leave the objection to be taken in arrest of judgment.”

It is not necessary to consider the third alternative about leaving the matter to be taken in arrest of judgment. I will only consider whether the informations charging the accused with falsifying accounts should be amended or quashed. In saying this, it is important for counsel to have in mind s.18 when dealing with charges of theft as a servant and falsifying accounts where the evidence is quite technical and complex as it is in this case.

In considering whether to amend or quash the informations charging the accused with falsifying accounts, I have come to the conclusion that in the circumstances these informations should be quashed. To grant an amendment by bringing these charges under s.99 would involve not only amending the changing provision from s.98 to s.99 but would also require substantial redrafting to make each information state in substance an offence even though it is not clear how the prosecution would have liked the informations to be recorded. It also appears that the extent of any redrafting to be done would mean that new informations might as well be filed by the prosecution to substitute the present informations and any ensuing steps necessary to ensure a fair trial to the accused be followed. However, nearly all the charges of falsifying accounts relate to the charges of theft as a servant which have been proved. If the charges of falsifying accounts are amended or substituted and found to be proved, any penalties imposed on those charges would probably be made concurrent with any penalties imposed for the charges of theft as a servant which have been proved. The penalties for the charges of theft as a servant which carry a maximum penalty of seven years imprisonment would not be less than any penalties imposed for the charges of falsifying accounts which carry a maximum penalty of five years imprisonment. Even though counsel for the accused did not complain that the accused’s defence had been prejudiced by the way the informations charging the accused with falsifying accounts have been framed, it is clear that the wording of the informations would not have helped the defence. If anything it would have misled or confused the defence. That would have been so even if the informations were originally laid under s.99 instead of s.98. The wording of informations in criminal trials is an important matter to the defence.

In the circumstances, I have decided for the foregoing reasons that the best course to take is to quash the informations charging the accused with falsifying accounts relying on s.18 of the Criminal Procedure Act 1972. For the same reasons, I would have refused an amendment under s.36.

This has been a difficult case. As already mentioned, the evidence has been quite technical and complex. The state of the informations charging the accused with falsifying accounts only made this case more difficult. In fairness to present counsel for the prosecution who at this early stage of his career at the bar conducted the case for the prosecution quite ably and admirably, it is clear that he was not responsible for the preparation of the informations in this case.

Conclusions

The charges of theft as a servant contained in informations s.787/02, s.793/02, s.794/02, s.568/03, s.575/03 and s.570/03 have been proved by the prosecution beyond reasonable doubt. The charge of theft as a servant contained in information s.569/03 has not been proved beyond reasonable doubt and is therefore dismissed.

The informations charging the accused with falsifying accounts are quashed.

This case is adjourned to Monday, 27 June 2005, at 9.30am for a probation report and sentencing. Bail to continue.

CHIEF JUSTICE

Solicitors:
Attorney-General’s Office for prosecution
Meredith and Ainuu Law Firm for accused