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Attorney General v Sepelini [2019] WSCA 11 (19 September 2019)

IN THE COURT OF APPEAL OF SAMOA
Attorney General v Sepelini & Anor; Sepelini v Attorney General [2019] WSCA 11


Case name:
Attorney General v Sepelini & Anor
Sepelini v Attorney General


Citation:


Decision date:
19 September 2019


Parties:
Attorney General (Appellant) v Mataafa Sepelini & Anoanoai Pepe Lafai (Respondents); Mataafa Sepelini (Appellant) v Attorney General (Respondent)


Hearing date(s):
13 September 2019


File number(s):
CA15/19; CA19/19


Jurisdiction:
CRIMINAL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuala-Warren


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
Mr. Sepelini’s appeal against conviction on all charges is dismissed. We uphold the appeal, set aside the verdict in the Supreme Court acquitting Ms. Lafai on all charges and direct that the proceeding be remitted to that Court for a new trial. 49. The Attorney-General’s appeal against the Judge’s decision dismissing the theft by a servant charge against Ms. Lafai and refusing to reserve a question of law is dismissed.


Representation:
Leone Su’a-Mailo & Vei Faasii for the Attorney General
Patrick Fepuleai for the Defendants


Catchwords:
dishonesty offences – misuse of rights of access to computer based records – altering a document with intent to defraud – using an altered document – appeal against conviction – appeal against acquittal – forgery – using a forged document – altering, concealing, destroying or reproducing documents with intent to deceive – damaging or interfering with and forgery of electronic data – theft as servant – vehicle registration – transfer of ownership -


Words and phrases:


Legislation cited:


Cases cited:
Finau v Police (2018) WSCA 7 (25 October 2018);
Police v Mulitalo (2018) WSCA 12 (25 October 2018);
Police v Poufa & Anor (unreported judgment) 04 March 2019 of Tuatagaloa J.


Summary of decision:

CA15/19
CA19/19


IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


ATTORNEY GENERAL
Appellant


A N D:


MATAAFA SEPELINI & ANOANOAI PEPE LAFAI
Respondent


BETWEEN:


MATAAFA SEPELINI
Appellant


AND:


ATTORNEY GENERAL
Respondent


Court: Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuala-Warren


Hearing: 13 September 2019


Counsel: Leone Su’a-Mailo & Vei Faasii for the Attorney General
Patrick Fepuleai for the Defendants


Judgment: 19 September 2019


JUDGMENT OF THE COURT

Introduction

  1. Mataafa Sepelini Poufa and Pepe Lafai were at all relevant times senior employees of the Land Transport Authority (the LTA). That government agency is responsible for maintaining registration and ownership details of commercial vehicles. The police charged Mr. Poufa and Ms. Lafai separately with a range of dishonesty offences relating to misuse of their rights of access to the LTA’s computer based records.
  2. Both defendants pleaded not guilty. They were tried together but not jointly in the Supreme Court before Tuatagaloa J sitting as a Judge alone[1]. The Judge found Mr. Sepelini guilty and convicted him of two charges of altering a document with intent to defraud and four charges of using an altered document. She acquitted him of four charges of forgery, four charges of using forged documents and two charges of altering with intent to deceive. Mr. Sepelini appeals against his conviction on the six charges. Before us Ms. Su’a-Mailo withdrew the Attorney-General’s cross appeal against Mr. Sepelini’s acquittal on the remaining charges.
  3. The Judge acquitted Ms. Lafai on all charges of forgery; using a forged document; altering, concealing destroying or reproducing documents with intent to deceive; damaging or interfering with and forgery of electronic data. The Attorney General appeals against Ms. Lafai’s acquittal on all charges.
  4. Ms. Lafai also faced one charge of theft as a servant. The Judge dismissed the charge on the first day of trial following her refusal to sever and adjourn its trial. She also refused to reserve a question of law on appeal. The Attorney General appeals both decisions[2]
  5. Tuatagaloa J delivered a single reasoned reserved decision on all charges against both defendants.

Background.

  1. Mr. Sepelini was the assistant manager of the LTA with responsibility for Savaii. Ms. Lafai was the manager of its legal division. Both had privileged rights of access to the agency’s Road Transport Administrative System or RTAS. This was its computer generated record of ownership and registration details of commercial vehicles. Mr. Sepelini’s access rights allowed him to amend or edit information of vehicle details. Ms. Lafai’s lesser right was to change or transfer vehicle ownership details with consent from the previous and current owners.
  2. In January 2018 the Cabinet of the Samoan Government issued a directive that all commercial vehicles over 15 years old could no longer be re-registered in that capacity. As a consequence, a certain number of commercial vehicles would necessarily become ineligible for re-registration each year as they fell outside the 15 year period.

Sepelini.

T-454 and T-1588.

  1. The Judge found Mr. Sepelini guilty of two charges of altering a document with intent to deceive and two charges of using a document relating to two taxis., T-454 and T-1588. She outlined the prosecution evidence as follows:
  2. The Judge was satisfied that the charges of altering with intent to deceive were proved beyond reasonable doubt. She found the prosecution evidence “overwhelming”[3] that Mr. Sepelini had in fact changed the dates of first registration of both taxis, respectively of T-454 in February 2018 from 2000 to 2005 and of T-1558 in December 2017 from 2001 to 2005. While ownership of T-454 was registered in Mr. Sepelini’s wife’s name, the Judge was satisfied that he in fact operated both vehicles as his own[4]; and that Mr. Sepelini changed the years of registration for his own pecuniary benefit of re-registering commercial vehicles which were otherwise ineligible[5]
  3. Tuatagaloa J was also satisfied that the charges of using the altered documents with intent to deceive were proved. She found that Mr. Sepelini made the changes with intent to deceive others into believing that the changed dates were in fact the correct ones. He used the altered documents to continue registration of both vehicles[6]
  4. On appeal Mr. Fepulea’i accepted the Judge’s factual findings that Mr. Sepelini made the changes to the dates of registration; and that he used the documents for this purpose. He challenged her verdicts on one ground. He said the prosecution failed to prove the mental element of intent to deceive common to all charges for the two taxis. That is because there was no evidence that the changes made by Mr. Sepelini to the years of ownership were false or lacked authenticity.
  5. This argument must fail. Both vehicles were imported from Japan: T-454 was first registered on 12 January 2008 with 2000 recorded on the certificate as the date of first registration (in Japan); the same details for T-1558 were 16 March 2009 and 2001 respectively. The vehicle inspection records recite the same dates of registration. On their face, as public records, they were correct. There was nothing to raise a doubt about their accuracy. Mr. Sepelini did not claim at trial that the dates of first registration were in error. His defence was that he was not responsible for the changes.
  6. Mr. Sepelini had a financial interest in obtaining re-registration of both vehicles when they were otherwise ineligible. He would be able to continue operating them as taxis for his financial benefit. On both occasions he omitted to include any editorial explanation in the comments box provided for the very purpose of recording the reason for a change. The changes were made within close proximity to the Cabinet directive. The reasonable inference was available to the Judge that the changes were false, and false to Mr. Sepelini’s knowledge, and made with intent to obtain the pecuniary benefit which he enjoyed from re-registration
  7. Mr. Sepelini’s appeal against his conviction on these two charges must fail.

T-167 and T-1032.

  1. Tuatagaloa J found Mr. Sepelini guilty of charges of using a document with intent to deceive relating to two other taxis, T-167 and T-1032. She acquitted him of two charges of altering a document with intent to deceive relating to the same vehicles. She outlined the prosecution evidence in this way:
  2. The Judge was satisfied that these charges were proved.[9] She relied on Mr. Sepelini’s admission that he had in fact made the changes. She found that he used the altered documents to enable re-registration of the taxis in the name of a third party. Her factual reasoning was closely analogous to her findings on the charges relating to T-454 and T-1558.
  3. Mr. Fepulea’i challenged Mr. Sepelini’s conviction on these charges on the same ground as on the T-454 and T-1558 charges. For the reasons given already we dismiss this ground.
  4. However, Mr. Fepulea’i relied on two other grounds. First, he referred to the Judge’s finding that:
  5. We agree with Mr. Fepulea’i that the Judge erred in law in this finding. The burden of proof remained throughout on the prosecution. Mr. Sepelini was not obliged to corroborate his defence. However, this error does not of itself impugn the verdicts. The question is whether the Judge’s findings are supported by the prosecution evidence which she accepted.
  6. Second, Mr. Fepulea’i relied on the Judge’s finding when dismissing the two charges of altering with intent to deceive relating to these two taxis. She said this:
  7. Mr. Sepelini cannot take further advantage of an error of law in the Judge’s reasoning which resulted in his acquittal on other charges. Proof of the charge of altering a document with intent to deceive did not require evidence that it was Mr. Sepelini who received a pecuniary advantage. He was charged with acting with intent to “...obtain any pecuniary advantage.” It is sufficient if the advantage accrues to a third party. The only inference available from the evidence was that the owner of the taxis received a financial benefit. The charge was proved in law.
  8. We add that it would have been open to the prosecution to argue that the evidence on all charges was cross admissible on each on a propensity basis. Mr. Sepelini secured the benefit of the omission to take this step.
  9. Mr. Sepelini’s appeal against conviction on all charges is dismissed.

Lafai.

  1. As noted above,[10] Ms. Lafai faced a range of charges relating to her conduct on 13 March 2018. All the charges alleged her criminal complicity in changing the date of registration of a taxi, T-337, in the RTAS. Her authority was limited to changing or transferring ownership details in the system.
  2. Semo Siaosi is a senior IT officer in the LTA. He gave evidence at trial that on
    13 March 2018 he changed the year of registration of T-337 from 2003 to 2006.[11] He said that he acted on Ms. Lafai’s telephoned instructions. He recorded the details including Ms. Lafai’s identity contemporaneously in the comments box. He also informed a colleague, Julianna Ah Yek, of the circumstances of the direction. Her evidence was that she overheard part of Mr. Siaosi’s telephone discussion but did not know the identity of the other party.
  3. Ms. Lafai denied Mr. Siaosi’s account of their telephone call[12]. She said that she never instructed him to change the year of the vehicle’s registration. She said that she did not know of the existence of T-337 until 21 March 2018, some eight days after the change. She said on that day the vehicle owner, Talana’i Paleso’o, came to her house. He asked for a loan of $WS 2000. He needed $WS1600 for general purposes, and $WS400 to cover his re-registration casts. Ms. Lafai agreed to advance $WS1600 and said she would herself pay the balance of $WS 400 for re-registration costs. The loan was conditional upon his agreement to change the registered ownership of the taxi into her name as security for repayment. T-337 was inspected officially on 23 March, and a warrant of fitness was issued on 28 March.
  4. Both Ms. Lafai and Mr. Paleso’o asserted that the terms of the agreement had been honoured. He has repaid the loan. She was asked whether she had re- transferred ownership of the taxi back to Mr. Paleso’o. Ms. Lafai answered equivocally “...I gave him a letter confirming my consent that I had no further interests...”
  5. Tuatagaloa J preferred the evidence of Ms. Lafai and Mr. Paleso’o to that of Mr. Siaosi and Ms. Ah Yek[13]. She was satisfied that it was more credible and plausible. She found the evidence of the two prosecution witnesses “... at best wanting and at times incoherent”[14]. She provided reasons in support. The Judge’s verdicts on all charges were underpinned by her finding of fact that Ms. Lafai did not direct or authorize the change made by Mr. Siaosi on 13 March 2018. Guilt on each charges depended on proof of Ms. Lafai’s active participation in the process of altering the public record. The direct factual conflict between the key witnesses could only be resolved by the Judge’s evaluation of credibility.
  6. Ms. Sua-Mailo mounted a sustained challenge to the Judge’s findings. She submitted that the verdicts were unreasonable. The result was attributable to a material error of law, allowing the prosecution to advance an appeal against Ms. Lafai’s acquittal[15] Ms. Sua-Mailo acknowledged this Court’s reluctance to interfere with credibility findings made by the first instance Judge who had enjoyed the particular benefit of presiding at trial.[16] However, she submitted that in these particular circumstances the Judge’s approach to the credibility analysis and her reasoning were so flawed as to amount to an error of law.
  7. Ms. Sua-Mailo referred us to relevant extracts from the oral and documentary evidence adduced at trial. We agree with her submission that much of it raises serious doubts about the plausibility of Ms. Lafai’s account. We refer to some material elements of the Judge’s reasoning which cause us concern.
  8. First, the Judge dismissed Mr. Siaosi’s evidence as incoherent. However, the transcript does not lend support to that conclusion. In response to repeated challenges from Mr. Fepulea’i, Mr. Siaosi was consistent throughout that it was Ms. Lafai who instructed him to make the change. His evidence did not waver or equivocate. It was not suggested that he had a motive for acting of his own volition. He can only have acted at a third party’s request or direction.
  9. Second, there is the coincidental proximity of the alleged start of the commercial relationship between Ms. Lafai and Mr. Paleso’o. Both asserted that it commenced a week after the change was registered. The Judge accepted their timeline of events. In this respect Ms. Sua-Mailo noted Ms. Lafai’s apparent willingness to lend a stranger WST$1600 when she was then unable herself to afford the cost of re-registering her own taxis. Ms. Lafai’s own cheque for these costs was dishonoured, suggesting that she was then in financial difficulties.
  10. Serious questions arise about the alleged commercial relationship between Ms. Lafai and Mr. Paleso’o. Its timing and circumstances raise suspicions about its existence and terms. It also seems highly irregular for a senior LTA employee to lend funds to a taxi driver for the express purpose of enabling him to re-register his vehicle.
  11. Third, Ms. Sua-Mailo referred to documentary evidence that ownership of T-337 remains registered in Ms. Lafai’s name, contrary to her account at trial; and that, contrary to her employee rights, Ms. Lafai arranged for payment for the re-registration costs for this vehicle on the LTA staff debtor scheme. This last point is significant. The staff debtor policy is a privilege accorded to certain LTA employees. It allows them to pay for registration of their own vehicles by deductions from their wages instead of by cash. It is a time payment system. Ms. Lafai admitted under cross-examination that she knew her entitlement was limited to private vehicles only. She obtained authority from a fellow employee on the basis that she did not then have sufficient funds to register the vehicle. She did not disclose that she owned the vehicle as a creditor pursuant to a commercial arrangement. On its face, Ms. Lafai’s conduct in using the scheme to arrange payment of Mr. Paleso’o’s registration costs, and for a commercial vehicle, was dishonest.
  12. Fourth, the Judge considered that it was nonsensical to change the taxi’s registration date from 2003 to 2006 if the purpose was to circumvent the Cabinet directive. The earlier date still fell within the 15-year eligibility period. We do not share this view. The earlier date was on the cusp if not outside the cut-off point. There was an apparent uncertainty among the LTA witnesses about whether a vehicle registered in 2003 qualified for re-registration. Moreover, a change to 2006 would guarantee the owner’s right to re-register for at least two or three more years.
  13. Fifth, the Judge also placed considerable weight on Mr. Siaosi’s erroneous note in the comments box that date of the vehicle’s registration was 2002, not 2003.[17] Mr. Siaosi admitted that he made a typographical mistake. The Judge was unable to understand why the error was not corrected. We do not share her view. The comments box has no formal status. Its contents are only a record of an explanation. They do not purport to affect the accuracy of the RTAS record. The failure to correct the contents box did not impugn the credibility of Mr. Siaosi’s account.
  14. The principles on which the Court of Appeal will interfere with a finding on credibility at first instance were outlined recently in Police v Mulitalo and Finau v Police.[18] On a prosecution appeal this Court will not normally interfere with such a finding. That is because It is not normally possible to characterise a criticism of a credibility finding at first instance as an “error of law”.
  15. However as we also acknowledged in Mulitalo,[19] there could be exceptional cases. One arises where no reasons were given for the finding on credibility. Another arises where, even after taking into account the onus and standard of proof, an acquittal could properly be characterised as “unreasonable”. As to the latter we said this:[20]
  16. In the present case the Judge did not base her credibility finding on an assessment of demeanour in the witness box. Instead she appropriately traversed a series of independently verifiable facts from which she drew an inference as to credibility. As these facts are equally available to us on appeal, we are in a position to revisit the inference she drew.
  17. By this point we have traversed five of the principal factors which were directly relevant to the Judge’s finding on credibility. It will be apparent that in our view none support the conclusion the Judge came to. On the contrary, in our view the conclusion that the prosecution witnesses, Mr. Siaosi and Ms. Ah Yek, were telling the truth is simply irresistible. It is not simply a case in which we would come to a different view. It is a case in which it was not reasonably open to the Judge to find against the prosecution for the reasons she gave.
  18. Our conclusion is reinforced by the fact that on a direct credibility conflict the Judge preferred Ms. Lafai’s evidence at trial (1) where she admitted her apparently dishonest conduct in taking unlawful advantage of her privileged rights under the staff debtor scheme relating to the very vehicle which was the subject of the falsely altered registration details a few days earlier; and (2) where the totality of the surrounding circumstances raised serious doubts about her denial.
  19. We are troubled by a further consideration. The judgment at first instance leaves the impression that it was Mr. Siaosi alone who was responsible for changing the record without prompting from others and for nefarious reasons of his own. To allow that impression to continue would be to perpetuate a grave injustice.
  20. For these reasons we consider this to be one of those exceptional cases in which this Court must intervene on a matter of credibility. The finding at first instance, and in consequence the acquittal of Ms. Lafai, were “unreasonable” for the purpose of s 177 of the Criminal Procedure Act. We uphold the appeal, set aside the verdict in the Supreme Court acquitting Ms. Lafai on all charges and direct that the proceeding be remitted to that Court for a new trial.
  21. By way of brief postscript, we note that the prosecution introduced an unnecessary degree of complexity to this case by its decision to charge Ms. Lafai with multiple offences all stemming from the one single event. All were going to stand or fall on one central finding of fact. It may be preferable at the retrial to lay a single charge, or perhaps two at most in the alternative.

Theft as a servant.

  1. As noted, the prosecution also charged Ms. Lafai with the offence of theft as a servant. All charges were set down for trial together. There were no applications for severance. The trial date of 7 December 2018 was set on 14 August. At all subsequent callovers the prosecution confirmed its readiness to proceed.
  2. On the morning of the trial the prosecution applied to sever and adjourn trial of the theft charge. Its basis was that two witnesses had left Samoa for extended periods, on 14 September and 1 November respectively. The prosecution had given no prior notice of their departures to Ms. Lafai or her counsel.
  3. The Judge was satisfied that an adjournment of trial of the theft charge would be contrary to interests of justice. She dismissed the theft charge given the prosecution’s inability to proceed without the two absent witnesses. Ms. Sua-Mailo conceded that an adjournment would not have been in Ms. Lafai’s interests. While she accepted the prosecution’s shortcomings, she said that the community’s wider interests in securing justice should have prevailed.
  4. Tuatagaloa J was exercising a judicial discretion.[21] The decision to refuse an adjournment was not only open to her, it was inevitable even though it means the community may have to pay the price for the prosecutor’s serious failures. Moreover, the Judge’s decision was of a factual nature. It could not possibly have given raised an issue of law such as might possibly justify reserving a question for this Court. We add also that the charge seemed rather pointless. It would not likely have succeeded if the other charges had failed.
  5. The Attorney-General’s appeal against the Judge’s decision dismissing the theft by a servant charge against Ms. Lafai and refusing to reserve a question of law is dismissed.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON

[1] Police v Poufa & Anor (unreported judgment) 04 March 2019 of Tuatagaloa J.
[2] Police v Poufa & Anor (unreported judgment) 05 March 2019 of Tuatagaloa J.

[3] At para [127]
[4] At para [128]
[5] At para [130]
[6] At paras [140 and [141]
[7] EXH P24 – P29
[8] Evidence of Mata’afa Sepelini
[9] At paras [142] and [143]
[10] At para [4] of this judgment
[11] At paras [44] and [45]
[12] At paras [47] –[50]
[13] At paras [51] – [54] and [57- 59]
[14] At para [54]
[15] Police v Mulitalo [2018] WSCA 12 ( 25 October 2018)
[16] Finau v Police [2018] WSCA 7 (25 October 2018)
[17] At paras [51] and [52]
[18] Above fn 16 and 17.
[19] At paras 30 to 32.
[20] Mulitalo at [32]
[21] s94 Criminal Procedure Act 2016

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