Police v Mulitalo [2018] WSCA 12 (25 October 2018)

IN THE COURT OF APPEAL OF SAMOA
Police v Mulitalo [2018] WSCA 12

Case name:	Police v Mulitalo
Citation:	[2018] WSCA 12
Decision date:	25 October 2018
Parties:	POLICE (Appellant) and TAFAOGALUPE PA’U MULITALO (Respondent)
Hearing date(s):	18 October 2018
File number(s):	CA11/18
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Harrison Honourable Justice Tuatagaloa
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is allowed. The respondent is remanded to the Supreme Court for trial on the obtaining by deception charge.
Representation:	Leone Sua Mailo and Lucymaria Sio for the appellant Respondent in person
Catchwords:	Theft – obtaining by deception – charges dismissed – dishonesty – error of law – conflicting evidence – credibility -
Words and phrases:	Late filing (Court of Appeal documents) – Judge’s failure to give reasons for conclusion – trial for obtaining by deception charge
Legislation cited:	Court of Appeal Rules r. 32; 35; 38; Crimes Act 2013 ss.161(1)(b); 172; 172(1)(a) Criminal Procedure Act 2016 s.177 Judicature Ordinance 1961, Sch 1;
Cases cited:	R v Atkinson [1984]2 NZLR 381 (CA); R v Eide (2004) 21 CRNZ 201 (CA); Thomas v Attorney General and Others (CA 139/96)
Summary of decision:

CA 11/18

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Appellant

AND:

TAFAOGALUPE PA’U MULITALO
Respondent

Coram: Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuatagaloa

Hearing: 18 October 2018

Counsel: Leone Sua Mailo and Lucymaria Sio for the appellant
Respondent in person

Judgment: 25 October 2018

JUDGMENT OF THE COURT

Introduction

1. The respondent was charged with theft and obtaining by deception. There was a defended Judge alone trial in the Supreme Court. The charges were dismissed in a judgment of 19 April 2018. From that judgment the Attorney General has appealed.

Factual Background

2. The sequence of events is largely undisputed. In early 2018 the complainant, Mr Brown, agreed to build a house for the respondent. On 4 May 2015 Mr Brown and his men began dismantling an existing building on the site. They brought onto the site the equipment that would be needed to build the new house. The respondent made three payments to Mr Brown totalling $26,000 for work and materials.
3. Mr Brown and his men started to build the new house. Then on 29 May the respondent required Mr Brown to stop work on the project. The respondent refused to return Mr Brown’s equipment until he received a refund of the $26,000.
4. The respondent then engaged a new builder, Mr Sagato. With the consent of the respondent, Mr Sagato and his men began using Mr Brown’s equipment.
5. The respondent was asked to return the equipment by Mr Brown’s employee, by Mr Brown himself, and later by the Police. On each occasion the respondent declined to return it, making reference to a Court order entitling him to do so. Whether he said that he already had the Court order, or was merely seeking one, is the critical issue in the case.
6. On 24 July 2015 the respondent commenced civil proceedings against Mr Brown. In the proceedings he applied for an order entitling him to retain the building equipment until receiving the refund of $26,000. The respondent has taken no steps to advance the proceedings. No Court order was ever obtained. Nor has any argument been advanced to suggest that there could be a legal basis for such an order.
7. Eventually on 19 November 2015 the Police executed a search warrant at the appellant’s property. They forcibly removed Mr Brown’s equipment. Some was damaged. Other items were missing altogether.

Supreme Court prosecution

8. The respondent was charged with theft in that between 30 April 2015 and 1 July 2015 he dishonestly used or dealt with the building equipment with intent to deprive the owner permanently of the property contrary to s 161(1)(b) of the Crimes Act 2013. He was also charged that between those dates he made a false representation to ALCC Brown Construction to obtain possession and control of ALCC Brown Construction’s tools and machineries contrary to s 172(1)(a) of the Crimes Act.
9. At a defended hearing in the Supreme Court the prosecution called five witnesses. All gave evidence that in response to requests to return the equipment the respondent said that he already had a Court Order entitling him to keep it. Their evidence was not challenged in cross-examination. Nor did the respondent put his own version to the witnesses, namely that he had merely said that he was obtaining a Court Order.
10. The respondent then gave evidence. He said that on each occasion he said words to the effect that he was obtaining a Court Order, not that he already had one.

Supreme Court judgment

11. The Judge rightly pointed out that for some reason the prosecution had confined itself to the period 30 April 2015 to 1 July 2015 in the wording of the charges. It was also clear from the limited form in which the deception charge had been laid that it was confined to a false representation to ALCC Brown Construction as distinct from a false representation to the Police. That limited the scope of the inquiry to the period between the respondent’s direction to Mr Brown to stop work on 29 May 2015 and the arbitrarily adopted date of 1 July 2015.
12. The Judge accepted that during that period the respondent had assumed possession and control over the equipment and had refused to return it until he was repaid the money he had advanced to Mr Brown.
13. Although we have not found the judgment easy to follow it appears that the charge of theft was dismissed for two reasons. One was that the dishonesty element required for theft was thought to turn at least primarily on the question whether the respondent falsely claimed that he already had a Court order entitling him to keep the equipment. As to that, the Judge said:
    • It appears to me the police did not remove the equipment earlier than they did because the defendant claimed he had a court order. Whether or not that was the reason, is irrelevant. What is relevant is the unexplained reason why the police did not forcibly remove the equipment when they could have in circumstances where the defendant did not have a court order to stop their removal. It is arguable whether the defendant in the circumstances misled the police. But it does not necessarily follow from the defendant’s refusal to return the equipment allegedly on a claim he had a court order that the failure of the police to remove the equipment in circumstances when they could have but didn’t, that the defendant had stolen the equipment or his use of or dealing with the equipment between the 29th of May 2015 and the 1st of July 2015 was dishonest.
14. As to the possibility that the respondent was entitled to impose a condition of payment before agreeing to release the equipment, the Judge adopted the principle stated in the New Zealand Court of Appeal Judgment^[1] that “a refusal by someone who holds property to return the property to its owner unless the owner complies with a condition which the holder has no right to impose can provide evidence of the necessary intent”. Referring to that principle the Judge went on to say:
    • According to the letter of 29th May 2015 the defendant’s condition for the return of the equipment was the refunding of the money he’d paid by a certain period. Whether he had a right in the circumstances to impose the condition he did before returning the equipment was neither raised during the trial as relevant nor raised by the evidence as an or in issue. It was raised only during the prosecution’s closing submissions. The problem the prosecution face regarding this part of its closing submissions is there was no evidence to show the defendant was or was not entitled to impose the condition he did.
15. As to an alternative form of potential dishonesty (thought to be whether it was irresponsible of the respondent to allow Mr Sagato and his men to use the equipment) the Judge was not satisfied that this was proved.
16. The Judge then proceeded to the obtaining by deception charge. He found the essential element of deception to be unproved, stating:
    • The broad issue is whether the defendant deceived the complainant? There is little doubt the defendant made a representation to the complainant. The real issue therefore is whether the representation he made was false. After hearing the evidence of both the complainant and the defendant the chances of accepting as true the defendant said he had a court order are the same as accepting as also true the defendant said he was getting a court order.
17. The Judge being uncertain whether the respondent had said that he already had a Court Order, or was merely seeking one, he dismissed the deception charge as well.

Late filing of documents in the Court of Appeal

18. In this court Mr Mulitalo raised the preliminary point that the appellant had failed to file the record on appeal within the specified time limit. He pointed out that pursuant to r 32 of the Court of Appeal Rules (Judicature Ordinance 1961, Sch 1) the appellant was required to file the record on appeal within six weeks of the filing of the notice of appeal. The effect of r 35 is that if the record is not filed within the six weeks the appeal is deemed to be abandoned.
19. In the present case the notice of appeal was filed on 20 June 2018. The record on appeal was not filed until 3 September 2018, well after the six week period had expired. Consequently the presumptive effect of r 35 is that the appeal is deemed to be abandoned.
20. Mr Mulitalo also pointed out that the appellant had failed to comply with the Court of Appeal Practice Direction 2011. This required the appellant to file and serve its submissions and chronology by 24 September 2018. These were not filed until 2 October 2018.
21. Rule 38 permits the Court to waive non-compliance with the Court of Appeal Rules, or any rule of practice, if the Court is satisfied that the non-compliance was not wilful and that it could be waived or remedied.
22. As to the application of r 38 in this case, it is significant that r 30 places the responsibility for collecting the key Supreme Court documents on the Registrar. That exercise is clearly a precursor to the appellant’s filing of the record on appeal under r 32. In this case the Registrar did not send the transcripts to counsel until 29 August 2018. There is no criticism in that given the pressure under which court staff are required to produce the transcripts. But it certainly explains why the appellant was unable to file the record on appeal until a few days later on 3 September 2018.
23. As for the appellant’s submissions and chronology, we agree with Mr Mulitalo that these should have been filed earlier. We do not encourage non-compliance with the Practice Note. However there is no ground for suspecting that the late filing was wilful.
24. Mr Mulitalo was unable to point to any material prejudice caused by these delays. In these circumstances we exercise our jurisdiction under r 38 and give the necessary extensions of time.

Standard of review on appeal

25. This appears to be the first time that this Court has had to consider the standard of review when the prosecution appeals from a Supreme Court acquittal following a judge alone trial.
26. The Attorney appeals against the acquittal on the charge of obtaining by deception. The broad ground of appeal was that the verdict of the Judge in dismissing that charge was “unreasonable and unfounded”. In support Ms Sua Mailo initially cited a series of authorities concerned with appeals by convicted appellants. These authorities do not apply. The onus and standard of proof are quite different when it is the prosecution that appeals. Further, the legal basis for the appeal must start with the statutory right of appeal.
27. Section 177 of the Criminal Procedure Act 2016 materially provides:
    • (3) If, on the trial of a person on a charge before a Judge alone, the person is acquitted of that charge, the Attorney-General may appeal to the Court of Appeal against that acquittal.
    • (4) If, on the trial of a person on a charge before a Judge sitting with assessors, the person is acquitted of that charge, the Attorney-General may, on the grounds that an error of law has occurred, appeal to the Court of Appeal against that acquittal.
    • (5) Error of law includes, but is not limited to, the following:
      • (a) the question of admissibility of evidence;
        (b) a ruling on a no case to answer application;
        (c) directions of the trial judge to the assessors as to the law;
        (d) the correct construction of a statute;
        (e) the question as to the legal consequences of uncontroverted fact;
        (f) whether a particular defence is available to the assessors to consider;
        (g) whether a positive actual finding was unsupported by any evidence;
        (h) the verdict of the assessors is unreasonable or cannot be supported having regard to the evidence.
    • (6) Upon the hearing of an appeal under subsection (3) or subsection (4) the Court of Appeal may:
      • (a) dismiss the appeal; or
        (b) uphold the appeal and direct a new trial.
28. It will be seen that a prosecution appeal under s 177(3) from a judge alone acquittal differs from a prosecution appeal under s 177(4) from an acquittal following trial before a judge with assessors. In the former case no legal ground for appeal is stated. In the latter the ground is expressly stated to be “error of law” which expression is amplified in s 177(5).
29. Although no legal ground is stated for appeals under s 177(3), there is no obvious policy reason for treating them differently from appeals under s 177(4). In an assessor trial the outcome is the result of not only a decision by the assessors but also the further decision of the presiding judge under s 136(4). Under that provision the judge has the power to override the assessors’ decision. So an acquittal following a trial by assessors is an acquittal supported by both the assessors and by the presiding judge. We can think of no policy reason for making it easier to appeal from acquittals arrived at in that way than from acquittals following a judge alone trial. Given the lack of any stated ground for appeals under s 177(3) we think it reasonable to infer that the ground for that class of appeal was also intended to be error of law.
30. Two kinds of error of law are potentially relevant in this case. One stems from a judge’s obligation to give reasons for his or her decision. Judges must make it clear that they have properly applied their minds to the issues before them and that they have correctly directed themselves.^[2]
31. Where there is conflicting evidence it is normally incumbent on a Judge to say why he or she prefers the evidence of one witness over another. How much is said is a matter for judgment in the particular case. Although it is good judicial practice to give full reasons for preferring one witness over another, a decision on credibility will not normally amount to an error of law merely because it has not been analysed in detail. But where the whole outcome turns on the view the judge takes over credibility, and no reasons have been given on that subject at all, the absence of reasons could in some circumstances amount to error of law.
32. The other kind of error of law we have had to consider in this case is that the verdict was unreasonable. Section 177(5) gives an extended meaning to “error of law” for present purposes. It includes the ground that the verdict was “unreasonable” (s 177(5)(h)). It is important to note, however, that unreasonableness for the purpose of s 177(5)(h) could only be unreasonableness after taking into account the onus and standard of proof. It will normally be open to the tribunal of fact (whether judge alone or sitting with assessors) to disbelieve prosecution witnesses. And within reason it will normally be open to the tribunal of fact to conclude that the prosecution evidence was not sufficiently probative to prove guilt beyond reasonable doubt. The unreasonableness must in our view amount to something more than the possibility that left to its own devices the appellate court would have taken a different view of the facts. Something more is needed before it will be possible to elevate this to an “unreasonable” acquittal.
33. We turn to the question whether there was an error of law in either of those senses in the present case.

Obtaining by deception

34. Obtaining by deception is defined in s 172 of the Crimes Act 2013 which provides:
    • 172. Obtaining by deception or causing loss by deception – (1) A person commits the offence of obtaining by deception or causing loss by deception who, by any deception:
    • (a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
    • (b) in incurring any debt or liability, obtains credit; or
    • (c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
    • (d) causes loss to any other person.
    • (2) In this section, “deception” means:
    • (a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
    • (i) knows that it is false in a material particular; or
    • (ii) is reckless as to whether it is false in a material particular; or
    • (b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
    • (c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
35. The elements that had to be proved in this case were:
    • (a) a deception (falsely stating that the respondent already had a Court Order);
    • (b) knowing that it was false and intending to deceive (if the respondent had said that he already had a Court Order he must have been aware that he did not); and
    • (c) he either obtained ownership, possession or control of the building equipment, or caused loss to Mr Brown, by withholding his equipment.
36. The Judge’s ground for dismissing the charge was that he was not satisfied as to the first of those elements, namely a deception on the respondent’s part by stating that he already had a Court order when he did not. The evidence of the prosecution witnesses was that he had said that while his own evidence was to the contrary.
37. Given that it turned on credibility, and that credibility is primarily a matter for first instance tribunals, the appeal would normally fail at this point. What is unusual in the present case, however, is the way in which the Court approached the question of credibility. Three aspects require consideration.

(a): Failure to cross-examine

38. The respondent did not put his own version to the prosecution witnesses so that they could comment on it.
39. Five prosecution witnesses gave evidence that they heard the respondent say that he already had a Court Order. Three of the witnesses - Mr Brown’s employee Pauli Tenise, Mr Brown himself, and the respondent’s wife Fetu Moeano - gave evidence as to statements made within the stipulated prosecution period ending on 1 July 2015. Another two prosecution witnesses (Inspector Fata and Corporal Sailini) spoke of statements made by the respondent. These statements were made outside the prosecution period but they were logically corroborative of the evidence of the first three witnesses.
40. The evidence of all five remained unchallenged.

(b): The Judge’s changing views

41. The Judge appears to have changed his mind about credibility in the course of the judgment. At one point he said “[i]t appears to me the Police did not remove the equipment earlier than they did because the Defendant claimed he had a Court Order.” It is difficult to reconcile that remark with his uncertainty later in the judgment.

(c): No reasons given for doubting the prosecution witnesses

42. The Judge gave no reasons for his conclusions on credibility. Five prosecution witnesses all said the same thing without challenge. The Judge did not advert to reasons for questioning their evidence. There was simply his bald conclusion that “the chances of accepting as true the defendant said he had a court order are the same as accepting as also true the defendant said he was getting a court order”.

Conclusions

43. We are satisfied that in the peculiar circumstances of this case the Judge’s failure to give reasons for his conclusion on credibility amounted to an error of law.
44. We are not satisfied that the acquittal was “unreasonable” in the statutory sense discussed earlier. We have not had the opportunity to hear the conflicting witnesses and to substitute our own decision on credibility. The proper course is to direct a new trial pursuant to s 177(6)(b).

Result

45. The appeal is allowed. The respondent is remanded to the Supreme Court for trial on the obtaining by deception charge.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE TUATAGALOA

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^[1] Thomas v Attorney General and Others (CA 139/96) at p 7.
^[2] R v Atkinson [1984]2 NZLR 381 (CA) at 383; R v Eide (2004) 21 CRNZ 201 (CA) at [20].