Judge refuses to accept affidavit
Supreme Court Justice, Leiataualesa Darryl Clarke has denied an application by the prosecution submitting an affidavit as evidence in lieu of a complainant’s physical appearance in court.
The complainant lives off island.
The matter is in connection with a criminal case against a former bank teller who allegedly stole $16,000WST from a customer’s bank account.
The motion was made in court on Wednesday this week by prosecutor Lucy Sio in the criminal case against, Talamua Naotala who is charged with theft as a servant.
According to the Police Summary of Facts, in 2015 a customer opened an account with the Bank of South Pacific, and deposited $7,000 USD which is equivalent to $16,000WST.
The accused was the alleged teller at the Vaitele branch of the bank.
The complainant was given a receipt for the deposit.
The Police report says that the complainant, who lives off island, returned a year later to find out that the first payment of $7,000 USD was not reflected in the bank statement. Then an official complaint was launched which led to the investigation by the Police.
The hearing was scheduled to start on Wednesday, however when the prosecution moved to admit the affidavit by the complainant as evidence, it was denied.
The application that was made by the prosecution for the complainant's statements to be admitted as evidence, cited Section 10 of the Evidence Act.
“The full record of my decision and reasons will be made available in due course,” Leiataualesa said.
Following the denial of the motion, prosecutor Sio moved to postpone the matter in order to make arrangements to bring the complainant over, noting that he is the first witness in the case.
Justice Leiataualesa granted the adjournment and pointed out the need to proceed with this case as it has been in court for a very long time.
Meanwhile, the teller, who no longer works at the bank, is out on bail.
Prior to the closing of the case, Leiataualesa asked Naotala if she had any questions for the case and she replied that she does have questions for when the hearing happens.
The prosecution had several witnesses ready to testify including a number of officials from the bank.
EVIDENCE ACT, SECTION 10
Admissibility of hearsay in business records - Subject to sections 10(2) and 12, a hearsay statement contained in a business record is admissible if:
(a) the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b) the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since the person supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information the person supplied; or
(c) the Judge considers that undue expense or delay would be caused if that person were required to be a witness.”