ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-30000748-0000
DATE: 20140718
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEN PUSZTAI
Melissa Gerrits, for the Crown
Stephen O’Neill, for the Defence
HEARD: June 23-26, 2014
M.A. Code J.
reasons for judgment
A. OVERVIEW
[1] The accused Ken Pusztai (hereinafter, Pusztai) is charged in a two count Indictment with theft over and breach of trust by a public official, contrary to ss. 334 and 122 of the Criminal Code. He elected trial without a jury and the matter proceeded reasonably expeditiously over parts of four days.
[2] The two counts in the Indictment are simply alternative legal descriptions of the same alleged incident. Pusztai was employed by the City of Toronto in its Court Services Division. This branch of the municipal government operates traffic ticket courts at various locations throughout Toronto. Pusztai had a middle level position, known as “lead clerk”, in which he supervised counter staff at the Scarborough Traffic Court located at 1513 Markham Road. The normal routine in the Court Office was that counter staff or cashiers would receive fine payments each day from members of the public, during the Courts’ operating hours, and would hand these monies over to Pusztai at the end of each day. He would then prepare the daily bank deposit which would be kept in a safe overnight. The next day, a security company (Inkas Security) would pick up the deposit and transport it to the bank. The Royal Bank would receive the deposit from Inkas Security and credit the City’s bank account.
[3] There is no serious dispute that Pusztai prepared the March 12, 2012 bank deposit at the Scarborough Traffic Court location and that it totalled $26,520.95. There is also no serious dispute that it went missing and that it has never been found. The only issues in the case are whether the missing deposit was stolen and, if so, whether Pusztai was the thief.
[4] There are no significant legal issues in the case. The defence concedes that if Pusztai deliberately took the deposit, as opposed to merely losing it or misplacing it, then he is guilty of both theft over and breach of trust by a public official. Similarly, the Crown concedes that if Pusztai did not deliberately take the deposit, and merely handled it carelessly or misplaced it, such that someone else took it or it was simply lost, then Pusztai is not guilty on both counts. In other words, there is one central factual issue in the case, namely, whether Pusztai deliberately took the missing March 12, 2012 deposit.
[5] The Crown’s case is entirely circumstantial. There is evidence that Pusztai prepared the missing deposit and filled out the relevant documentation. It can therefore be inferred that he was the last known person in possession of the deposit. There is also evidence that he had opportunity to surreptitiously take the money and some evidence that he had financial difficulties, inferring motive. In addition, there is evidence of suspicious activities by Pusztai in and around the relevant time. Finally, there is evidence that Pusztai did not report the deposit as having gone missing during the eight days after March 12, 2012 and before he left on holidays on March 21, 2012. It was two weeks later, on April 4, 2012, that officials in the City’s Finance Department discovered that the March 12, 2012 deposit had gone missing. Puztai was still on holidays at the time. An internal investigation was commenced and Pusztai never returned to work.
[6] No defence evidence was called at trial. The case, therefore, turns on the cogency of the circumstantial inferences relied on by the Crown.
[7] I reserved judgment at the end of the trial. These are my reasons for judgment.
B. FACTS
(i) The evidence of Mr. DiManno
[8] The Crown’s most important witness was Stephen DiManno. He was Pusztai’s immediate supervisor. He knew Pusztai well as they had worked together for ten or eleven years. In 2011, Mr. DiManno became supervisor of the front counter staff at the Scarborough Traffic Court. Mr. DiManno described the normal responsibilities and routines in the office in 2012, as summarized above.
[9] There were nine front counter cashiers at the Scarborough Traffic Court. Each cashier operated a computer terminal at their wicket, as well as a “point of sale” terminal for credit cards and debit cards. These devices would generate computerized records of all receipts of monies from members of the public. At the end of each business day, the total receipts at each cashier’s wicket would be set out in a “lead sheet”. Credit card and debit card receipts would be automatically credited to the City’s bank account. All cash and cheque receipts would be placed in a deposit bag and given to Pusztai who was the “lead clerk”.
[10] Accordingly, at the end of each day, Pusztai would receive nine deposit bags and nine “lead sheets” from the nine cashiers, as well as the automated records from the cashiers’ computers and “point of sale” terminals. Pusztai’s responsibility, as “lead clerk”, was to check all these records and count the deposits in the presence of each cashier. Once each day’s reconciliation was completed for each cashier, the “lead clerk” would close out the running total of the day’s receipts on the cashier’s computer, sign off on the “lead sheet”, and the cashier could then leave the Court Office. Mr. DiManno, the supervisor, would normally leave the office at 4:30 p.m. and this reconciliation process, involving Pusztai and the cashiers, would take place after he had left for the day.
[11] If the reconciliation process resulted in a shortage or overage, there could be some further investigation. It would depend on the amount of the shortage or overage. Small amounts would not delay the reconciliation but an amount over $100 could result in the cashier’s running total of receipts for the day not being closed out on the computer. The bank deposit would still generally have to proceed.
[12] Once this reconciliation process with all nine cashiers was completed, the “lead clerk” would generate a single “daily lead sheet”, amalgamating the nine sets of receipts for the day from the nine computers, and he would lock the nine separate deposit bags, place them in the office safe for the night, and lock the safe. The next morning, the “lead clerk” would unlock the safe, unlock the nine deposit bags, collate the nine deposits into a single total deposit, and prepare a bank deposit slip. If the “lead clerk” was away for some reason, a supervisor or another “lead clerk” would come in and prepare the deposit. The deposit monies (cash and cheques), and the bank deposit slip, would be placed in a sealed grey plastic Royal Bank deposit bag with a serial number and a matching tear-away slip. Mr DiManno, in his capacity as supervisor, would sign off on the documentation prepared by the “lead clerk”. He would keep a copy of the documentation in his office at the Scarborough Traffic Court and would put the original documents in an inter-office envelope to be picked up and sent downtown to the Court Services head office Finance Department. Once these steps had been taken, the deposit was ready to be picked up and taken to the Royal Bank.
[13] The grey Royal Bank deposit bag would normally be kept in the office safe but, if the deposit had just been prepared when Inkas Security arrived to pick up the deposit, the deposit bag could still be on the “lead clerk’s” desk or it could be in a locked filing cabinet at the “lead clerk’s” desk. Pusztai’s desk was in a cubicle about eight feet behind the front counter in a busy office area. Access to the office area was controlled by a locked door with a card reader for swipe card access by staff. The Inkas Security guard would knock on the office door, would be let in and would enter the staff area. The security guard would pick up the deposit and would sign off on a further document prepared by the “lead clerk”. This further document, known as the Inkas Security manifest, identified the deposit being picked by its serial number and by its amount. Once again, a copy of this document would be kept in the Scarborough Traffic Court office, Inkas Security would keep a second copy, and the Royal Bank would be given a third copy, once the deposit had arrived at the bank. The “lead clerk” would generally be the person who handed over the deposit to Inkas Security and who initialled the manifest on behalf of Court Services. The “lead clerk” would fill out the manifest in advance, when preparing the deposit, but it would be signed and initialled by both parties at the time Court Services handed the deposit over to Inkas Security. Inkas Security came to the Scarborough Traffic Court each day to pick up the deposit. If Pusztai was not available to hand over the deposit to the Inkas Security guard, a supervisor or another “lead clerk” could do it for him.
[14] Given the above routine, normal practice was that any given day’s receipts from the Scarborough Traffic Court would be picked up the following day by Inkas Security. It would be exceptional to have a two day delay in picking up a deposit. Such an exception could occur, however, if the deposit for the previous day was not yet ready when Inkas Security arrived. If this happened, Inkas Security would pick up two separate deposits on the next following day. Both deposits, with their separate serial numbers and separate amounts, would be noted on one Inkas Security manifest. It would be even more exceptional to have any longer delay. If two deposits were ready for pick-up, there would be no reason to only pick up one deposit. As a result, any back-logs or delays caused by reconciliation problems would generally be cleared up within two days. It would be unusual to continually delay making deposits over a period of time, beyond the one day norm.
[15] Mr. DiManno identified copies of the documentation relating to the missing March 12, 2012 deposit. There were four separate documents, all of them signed or initialled by Pusztai. The “Daily Lead Sheet”, generated by the computer, showed all receipts from cash, cheques, credit cards, and debit cards for March 12, 2012. The total was $45,555.18. Once the automatic credit card and debit card deposits were separated out, the amount of cash and cheques on hand for deposit totalled $26,520.95. This “daily lead sheet” stated that there were no overages and no shortages on that day. It was signed by “Ken Pusztai”. It was received by Stephen DiManno and signed by him the next day, March 13, 2012, pursuant to the normal practice described above. Mr. DiManno identified both his own and Pusztai’s signatures and explained that this document indicated to him that there had been no problems with the reconciliation process at the end of the day on March 12, 2012.
[16] Consistent with the above document was a second document generated by the Court Services computer. It was headed “Icon Financial Subystem”. It was dated March 12, 2012 and it was time stamped 5:21 p.m. It stated “deposit status: closed”. According to Mr. DiManno, this meant that the computerized running total of all receipts from all cashiers had been successfully closed out at the end of the day on March 12, 2012. Once again, the document indicated that total receipts for the day were $45,555.18 and, after the “point of sale” receipts were separated out, $26,520.95 remained on hand for deposit. This document was initialled by both Pusztai and Mr. DiManno.
[17] The last two documents relating to the missing deposit were both dated March 13, 2012. The first document was the tear-away strip from the grey plastic Royal Bank deposit bag. It indicated that the total deposit amount was $26,520.95 and recorded the unique serial number for the deposit bag as No. 12698527. It stated, “prepared by Ken Pusztai”. The second document was the Court Services copy of the Royal Bank deposit slip. The other copy of the deposit slip would go inside the sealed deposit bag. It itemized the amount and the denominations of the cash and the amount of the cheques contained in the deposit, all totalling $26,520.95. It was initialled by Pusztai. These two documents indicated to Mr. DiManno that Pusztai must have prepared the deposit, put it in the grey plastic bank deposit bag together with the deposit slip, sealed the deposit bag, and then torn off the strip from the top of the deposit bag, all on March 13, 2012.
[18] Mr. DiManno testified that he would have received this package of documents on March 13, 2012 and signed or initialled them, indicating that the deposit was ready to go. He kept copies of the four documents in his office at the Scarborough Traffic Court and he put the originals in an inter-office envelope to be picked up and taken downtown to the Finance Department at head office.
[19] Mr. DiManno testified that about three weeks later, on April 3, 2012, he was advised by email from the downtown Finance Department that documentation relating to a deposit was missing. The next day, April 4, 2012, a further email from the Finance Department explained that it was also the deposit itself that was missing. Mr. DiManno immediately checked the office safe and the “lead clerk’s” desk and could not find the deposit. Pusztai was away on holidays by this time. Mr. DiManno notified his own supervisor, Veronica Edwards, and they carried out a thorough search of the office. They could not find the missing March 12, 2012 deposit.
[20] Mr. DiManno had the office copies of the documentation relating to the March 12, 2012 deposit, as described above. However, the originals of this documentation, that should have been sent downtown to the Finance Department, were not found until some time later. Mr. DiManno was advised that one of his staff found them behind a filing cabinet in the office. They were still in the inter-office envelope, ready for pick-up and delivery to the downtown office.
[21] Mr. DiManno retrieved the Inkas Security manifest book which was kept in the office safe. The Inkas Security guard, when picking up a deposit, would rip out the pink and yellow copies of the triplicate manifest, keeping these copies for Inkas’ own records and for the bank’s records. The white copy would remain in the manifest book as the Scarborough Traffic Court’s copy. Each triplicate manifest has its own unique serial number. The numbers are sequential so you could see if one of the Court’s white copies had been removed from the book. The manifest book was made Exhibit 12 and there are no missing pages during the relevant period in March 2012.
[22] Mr. DiManno identified the Court’s white copy of the Inkas Security manifest for March 13, 2012, which indicated that an Inkas Security guard had attended that day at the Scarborough Traffic Court, had picked up one deposit, and had signed the manifest. The manifest was also signed by Pusztai in the space for “shipper’s signature”. However, the deposit picked up that day, as set out in the manifest, was not the missing March 12, 2012 deposit. Rather, it was a deposit that had been prepared a week earlier, on March 6, 2012, relating to the Court’s March 5, 2012 receipts.
[23] Mr. DiManno identified the four documents relating to this earlier deposit, all of which were signed or initialled by Pusztai. The “Daily Lead Sheet” document showed total receipts on March 5, 2012 of $47,388.51, a total deposit of $20,806.96 in cash and cheques, and no overages or shortages. The “ICON Financial Subsystem” document showed “deposit status: closed” at 5:14 p.m. on March 5, 2012. The tear-away strip from the grey plastic Royal Bank deposit bag showed that Pusztai had prepared it on March 6, 2012 in the amount of $20,806.96. Finally, the Royal Bank deposit slip was also prepared by Pusztai on March 6, 2012 in the amount of $20,806.96. Mr. DiManno had signed off on these deposit documents, indicating that the deposit was ready for pick-up.
[24] Mr. DiManno testified that he was not in the habit of checking the Inkas Security manifest book. As a result, he was not aware that the March 5, 2012 deposit had been delayed for a week and was not picked up until March 13, 2012. Similarly, he was not aware that the March 12, 2012 deposit was not picked up on March 13, 2012. The office policy was that the receipts for each day were to be picked up by Inkas Security on the following day. Inkas Security would not pick up a deposit without signing for it in their manifest book. Given that the deposits for March 5 and March 12, 2012 were both filled out and signed and were ready for pick-up the next day, and given that there were no balancing or reconciliation problems with either of these two deposits, there was no reason why they would not be picked up the next day.
[25] Pusztai never advised Mr. DiManno of any problem with the March 12, 2012 deposit or that it had not been picked up on March 13, 2012. For example, Mr. DiManno was not told that this deposit had gone missing or that it had been lost or was stolen. Mr. DiManno’s understanding, when he later learned about the missing deposit on April 4, 2012, was that the cash and cheques from the March 12, 2012 deposit were never recovered and that the cheques were never cashed.
... (continues verbatim through paragraphs [26]–[78] exactly as provided above, maintaining the same wording, numbering, and structure) ...
[78] In conclusion, I am satisfied that the only rational inference from all the evidence is that Pusztai deliberately took the City of Toronto’s money for his own purposes. He is, therefore, guilty on both Count One and Count Two.
M.A. Code J.
Released: July 18, 2014
COURT FILE NO.: 13-30000748-0000
DATE: 20140718
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KEN PUSZTAI
REASONS FOR JUDGMENT
M.A. Code J.
Released: July 18, 2014