Police v Nagaseu [2014] WSDC 10 (14 March 2014)

DISTRICT COURT OF SAMOA
Police v Nagaseu [2014] WSDC 10

Case name:	Police v Nagaseu
Citation:	[2014] WSDC 10
Decision date:	14 March 2014
Parties:	POLICE v Magele Fiti Nagaseu male of Salelavalu and Salelologa
Hearing date(s):	17 February 2014
File number(s)
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:
Representation:	L Taimalelagi and B Faafiti Lo Tam for prosecution
	Papalii L T Masipau for defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

POLICE v Magele Fiti Nagaseu male of Salelavalu and Salelologa
Defendant

Counsel: L Taimalelagi and B Faafiti Lo Tam for prosecution

Papalii L T Masipau for defendant

Sentence: 14 March 2014

DECISION OF DCJ VAAI

• [1] The defendant is from Salelavalu Savaii where his parents operate a business under the trade name Queen Maggie. Queen Maggie also operated a second branch in Salelologa. It was the sole distributor of Vailima Breweries products in Savaii. As such the distribution of beer and other products bottled by the Breweries formed a major part of Queen Maggie’s business operations and the defendant ran mainly the distribution side of the business.
• [2] On Thursday the 14^th of June 2012 police officers Detective Sergeant Koroseta Uati, Corporals Paul Tauaa and John Faanuualii from the Head Office in Apia travelled to Savaii to execute a search warrant at the Queen Maggie’s premises in Salelologa. The search was to find documents pertaining to a scam in which the police suspected collusion between employees of the Breweries in Upolu and employees of Queen Maggie in Savaii to defraud the Breweries by falsely reporting truckloads of crates of empty bottles returned by Queen Maggie to the Breweries at its depot at Vaitele.
• [3] When the police officers arrived at the Queen Maggie premises at Salelologa the defendant was not present, only his wife. She informed the defendant of the police presence and he arrived a little while later. Detective Sergeant Uati informed the defendant the purpose of the visit before continuing the search. The search was completed around 6.00pm and the officers left for the Jet Over hotel in Salelologa where they stayed. At the hotel, they enjoyed the evening breeze relaxing over a few beers in the open area near the swimming pool. Not long after they started drinking the defendant turned up. After introductions he joined the officers at their table.
• [4] When they had had a few drinks with the defendant, the defendant made a speech during which he placed $1000.00 in cash on the table and prodded it in the direction of Detective Sergeant Uati explaining, the money was to help with the expenses of the evening’s festivities. He followed this up by handing in the direction where Corporal Faanuualii sat, $500.00 for him to buy something for his children. He similarly handed towards Corporal Tauaa’s direction another $500.00 but to help Tauaa with his boat fare to Apia the next morning. He wound up his speech by telling the officers to let him know if they ever needed his help the next time they were in Savaii. He is also alleged to have asked the officers for their help when “considering his matter” (“lana mataupu”).
• [5] Detective Sergeant Uati being senior in rank replied on behalf of the other two and thanked the defendant for such benevolence. He politely refused to accept the money however and nudged all the cash that was on the table back in the direction of the defendant. The defendant responded by similarly prodding the money back towards Detective Sergeant Uati. Prodding of the money between Detective Sergeant Uati and the defendant happened two to three times before Detective Sergeant Uati eventually gave up. The reason he gave up was to avoid any appearance of being impolite on their part. He advised the defendant however he would be informed on a later date about his matter. The defendant asked the officers again to help him with his matter before he left.
• [6] After the defendant left Detective Sergeant Uati instructed both Corporals Tauaa and Faanuualii to hold on to the money each officer was given until their return to Apia. He further told the other two to prepare individual reports of their trip to Savaii when they were back in Apia. In the reports of the trip, all three officers mentioned the money the defendant gave each one of them and the circumstances and reasons each amount was given. Their reports were handed to a senior officer together with the money each officer received in Savaii.
• [7] The defendant confirmed much of the same as the police officers said about the money and the reasons except he denied asking the officers to keep in mind or for their help with a case he was suspected of being involved in. Instead, he claimed the money he handed over was for “lafo” and admitted to the respective amounts given to each officer as they claimed. He admitted introducing himself to the three police officers at the Jet Over implying he did not know any of them before he met them that evening. He does not deny the police officers rejected the money at least twice before they finally acquiesced through their spokesman Detective Sergeant Uati. When prompted by his counsel the reason he gave the officers’ lafo, he said he did it because he was showing off (“ua ou mimita”), claiming he had on him the proceeds of a bus he apparently sold to a hotelier in Sapapalii. When asked about the excessiveness of the amounts he gave the

reasons he gave the money and the fact he had only just met the three police officers, the defendant said it was because he was drunk.

• [8] He denied saying to the officers to help him in a case by the Breweries against him because he initially said he did not fully understand why the police came to Savaii. He believed the purpose of the officers coming to Savaii was to execute the search warrant and to investigate two truck drivers employed by Queen Maggie. He changed positions entirely under cross examination however when he admitted he knew exactly what the police investigation in Savaii was about at the time he went to have a drink with the officers at the Jet Over at Salelologa on the night in question.
• [9] He staunchly denied that he gave each police officer the respective amounts he gave with an intention to influence them regarding any suspicions of his involvement in the scam the police were investigating.

Charges

• [10] The defendant faces three separate counts of bribing a member of the Police Service pursuant to Section 35(a) of the Police Service Act1977.
• [11] Information D4785/12 alleges....at Salelologa on the 14^th day of June 2012, the defendant of Salelavalu and Salelologa, who not being a member of the Police Service give a bribe of $500.00 to Corporal John Faanuualii, a member of the Police Service to induce him in a way to forgo his duty.
• [12] Information D4786/12 alleges....at Salelologa on the 14^th day of June 2012 the defendant of Salelavalu and Salelologa, who not being a member of the Police Service give a bribe of $1,000.00 to Detective Sergeant Koroseta Uati, a member of the Police Service to induce him in a way to forgo his duty, and
• [13] Information D4787/12 alleges....at Salelologa on the 14^th day of June 2012 the defendant of Salelavalu and Salelologa, who not being a member of the Police Service give a bribe of $500.00 to Corporal Paul Tauaa, a member of the Police Service to induce him a way to forgo his duty.

The Law

• [14] Section 35 of the Police Service Act 1977 states: Every person who, not being a member of the Police Service:
  • (a) Gives or offers or promises to give to any member of the Police Service, any bribe, pecuniary or otherwise, or makes any agreement with any member of the Police Service to induce him or her in any way to forgo his or her duty commits an offence.

Issues

• [15] Before the defendant could be found guilty of the charges the prosecution must prove first, the defendant is not a member of the Police Service. Second, whether or not he gave a bribe. If he gave a bribe the third issue is whether he gave it to a police officer. The final issue is whether or not he gave the bribe to induce the officer in any way to forgo his duty.

Discussion

• [16] There is little difficulty in answering the first three issues. The defendant is not a police officer. He admits giving the respective sums of money referred to in the charges to each officer. He also knew all three men he gave money to were police officers.
• [17] The only issue therefore that needs discussing is the required intent on the part of the defendant at the time he gave the money. The real question is whether the defendant’s intention in the circumstances in which he gave the money was to induce each officer to forgo his duty.
• [18] Before discussing the remaining issue I mention in passing a point raised by counsel for the defendant during his cross examination of Detective Sergeant Uati. Counsel appeared as he tried to distinguish between bribing and shouting a police officer, he wanted the witness to agree with his view that if a police officer was given money while on duty that could be considered a bribe. But if a police officer was given money while off duty as in the circumstances of this case it was arguably a shout. The view is fallacious because it misconceives the issue of intent. An enquiry under Section 35 of the Police Service Act looks only at the intent of the giver when giving the money not whether the receiver was on duty or not.
• [19] To induce someone means to either persuade, or encourage, or tempt, or influence that person to do or refrain from doing something. In the circumstances of the charges in this case, the prosecution must prove that when the defendant gave the money his intention was to persuade the police officers to forgo their duty. The question which arises is, what was the police officers’ duty the defendant wanted them to forgo?
• [20] According to Detective Sergeant Uati and Corporal Tauaa they did not know the defendant. Their meeting during the search of the Queen Maggie’s premises earlier that day was the first time they saw him. Detective Sergeant Uati also said when the defendant gave them money that evening, some of the Breweries employees involved in the scam they were investigating had already pleaded guilty to charges of defrauding their employer and were as a consequence serving imprisonment terms in Apia. As already explained the scam was in regard to the involvement also of certain Queen Maggie employees in Savaii. That was part of the reason the officers went to Savaii with the search warrant.
• [21] The reason therefore Detective Sergeant Uati rejected the money was because he considered the money the defendant gave as a means of trying to influence them in their investigation. Even if the defendant did not spell out specifically what he sought the officers’ help for, Detective Sergeant Uati was clear in his own mind the defendant was trying to persuade them to conceal any incriminating evidence the officers may discover in their investigation into the scam, against him. It is true there is no evidence any of the officers told the defendant he was one of the Queen Maggie employees under suspicion of involvement in the scam. But, there is little doubt in my mind the defendant knew at the time he gave the money, the police officers trip to Savaii was to investigate employees of Queen Maggie the police suspected of being involved in the scam. Given therefore his involvement in Queen Maggie’s operations in distributing the Breweries products in Savaii, and given also he knew the nature and purpose of the police officers trip to Salelologa it is not difficult to conclude or infer, the reason he gave the officers money at Salelologa on the 14^th of June 2012 was not really for lafo, but to persuade each or all of them to forgo from their investigation into the scam what they were duty bound not to.
• [22] I prefer the evidence of the police officers who gave evidence and conclude that I have little doubt of the defendant’s intentions at the time. He knew precisely what the police investigating in Salelologa was about. Despite therefore his denials I find him guilty on all three counts of bribing the three named police officer in each respective charge.
  

Judge Vaepule Vaemoa Vaai