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Comptroller of Customs v Ainuu [2014] WSDC 7 (28 March 2014)

THE DISTRICT COURT OF SAMOA
Comptroller of Customs v AINUU & VAAI [2014] WSDC 7


Case name:
Comptroller of Customs v AINUU


Citation:


Decision date:
28 March 2014


Parties:
Comptroller of Customs (Plaintiff) v Christine Ainuu (First Defendant) & Levaopolo Talatonu Vaai (Second Defendant) and between POLICE (Informant) v Christine Ainuu (Defendant)


Hearing date(s):
18th - 21st November 2013, 9th – 13th December 2013


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata Keli Tuatagaloa


On appeal from:


Order:


Representation:
Ms Leinafo Taimalelagi for the Plaintiff
Mr Toleafoa Solomona Toailoa for the First Defendant
Mr Te’o Richard Faaiuaso for the Second Defendant


Catchwords:



Words and phrases:
defrauding customs – false declaration – liability of principal –


Legislation cited:
Customs Act 1977 s 218(c), s 221. s 209, s 227(1) & (2),
Oaths, Affidavits and Declarations Act 1963 ss 19-21, s 231, s 187,
Samoan Customs Act 1977 s 209, s 206
New Zealand Customs Act 1966 s 231, s 234


Cases cited:
Autocrat Sanyo Ltd v Collector of Customs [1985] 2 NZLR 707
John v Humphreys [1955] 1 All ER 793
Robertson v Police [1957] NZPoliceLawRp 12; [1957] NZLR 1193 (CA)

Civil Aviation Dept v Mackenzie [1983] NZLR 78
Millar v MOT [1986] NZLR 78
Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1
Garrett v Arthur Churchill (Glass) Ltd & Another [1970] 1 QB 92
Summary of decision:
All charges against both defendants, Christine Ainu’u and Levaopolo Talatonu brought by the Comptroller of Customs and charges by the Police are dismissed.
Charges D1609, D1610, D1611 & D1612 are dismissed against Christine Ainu’u.
Charges D4112, D4113, D4114 & D4115 are all dismissed against Christine Ainu’u.
The court finds that there was no or not enough evidence to prove beyond reasonable doubt that the documents were falsely created or forged. It naturally follows that the offence of uttering forged document cannot be sustained.
The charges filed under the Crimes Ordinance 1961 - D1613, D1614, D1615, D1616, D1617, D1618, D1619, D1620, D1621, D1622, D1623 & D1624 are all dismissed.
Both defendants are acquitted of all charges.

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


COMPTROLLER OF CUSTOMS
Plaintiff


AND:


CHRISTINE AINU’U
female of Malifa.
First Defendant


LEVAOPOLO TALATONU VAAI
trading as “Island Freight” a registered business located at Vaimoso-uta
Second Defendant


AND:


BETWEEN:


P O L I C E
Informant


A N D:


CHRISTINE AINU’U
female of Vaitele/Malifa.
Defendant


Counsel:
Ms Leinafo Taimalelagi for Comptroller of Customs/Police
Mr Toleafoa Solomona Toailoa for Christine Ainu’u
Mr Te’o Richard Faaiuaso for Levaopolo Talatonu


Hearing: 18th - 21st November 2013, 9th – 13th December 2013


Decision: 28th March 2014

DECISION OF DCJ TUATAGALOA

The Offences:

  1. The Comptroller of Customs brought several charges against both Defendants under sections 218(c), 221 & 209 of the Customs Act 1977. Christine Ainu’u is charged with sections 218(c) (defrauding Customs) & 221 (willful false declaration) and Levaopolo Talatonu is jointly charged by way of section 209 (liability of principal).
  2. Police charges under sections 107 (forgery) & 108 (uttering forged document) of the Crimes Ordinance 1961 are only filed against Christine Ainu’u. These charges which arise out of the same facts as the charges under the Customs Act 1977 were heard or prosecuted together by the Attorney General’s Office.

The Background:

  1. Mr Levaopolo Talatonu is a sole trader operating or trading under the name Island Freight. The Island Freight operates business as a customs carrier and/or freight station. It means that they can store goods in a Customs licensed or bonded warehouse until cleared by a Custom’s officer. Ms Christine Ainu’u is employed by Island Freight as office manager.
  2. The charges were filed as a result of an investigation by the Customs Division concerning brands of whiskey called VAT999 and Democrats Scotch. The matter was first brought to Customs attention when one of their Customs officer Mika Su’esu’e went to clear goods from Island Freight warehouse on 7 February 2013 and saw a man giving two whiskey bottles from container BHCU3078686 at Island Freight compound to another man. On 15 February 2013 the Customs received complaints from the public that these whiskies were being sold in various stores around town. The Customs Division then focused its investigation on Island Freight concerning container BHCU3078686 consigned to Island Freight and released to them on 19 December 2012. The Customs found that these brands of whiskey are not manufactured locally and they also have no record of any significant consignment of whiskey being imported in to the country around December 2012/January 2013. They saw that the goods brought in container BHCU3078686 were personal effects which appeared outstanding on the system. This meant that they have not been cleared and therefore should still be at Island Freight compound. On 22 February 2013 the Customs issued a Notice of Seizure and seized about 900 cases of whiskey from a house at Lotopa said to belong to someone named Francis Westerlund.
  3. As a result of the Customs investigation the defendants were charged with intent to defraud the revenue of Customs and making false declarations in relation to the goods that were brought in container BHCU3078686. The defendants are not charged with illegal or unlawful importation of any whisky.

The Law:

  1. Before considering the facts I think it is convenient to look at the passages that are relevant in the legislation.

Q. What is ‘declaration’ as in the Customs Act?

  1. There is the understanding by Customs officers and ACEO Legal that “declaration” in the Customs Act 1977 is both verbal and/or written. This understanding is on the premise that this interpretation is more practical to the nature of work of Customs.

Oaths, Affidavits and Declarations Act 1963

22. Manner of making declarations outside Samoa

  1. ‘Declaration’ is defined under the Customs Act as ‘a declaration made in accordance with the provisions of this Act in that behalf ’. Section 277 of the Customs Act 1977 is clear that a ‘declaration’ required and authorized under the Act shall be a ‘declaration’ made in the prescribed form. By ‘form’ it is then referring to a ‘declaration’ in writing made before the Comptroller or other officer of Customs. No such ‘form’ for declaration is provided under the Customs Act 1977 but such ‘form’ for declaration is referred to under section 19 and Third Schedule of the Oaths, Affidavits and Declarations Act 1963.

Section 19(2) of the Oaths, Affidavits and Declarations Act 1963 apply to ‘declarations’ made in Samoa which must subscribe in the manner and form provided for under sections 20 and 21 of this Act. This includes ‘declaration’ under the Customs Act.

Q. Does s.209 of Customs Act 1977 apply to defendant, Levaopolo Talatonu?

  1. Section 209 of the Customs Act says that a principal is liable for the acts of his/her agent as follow:
  2. There is no definition of ‘agent’ in the Customs Act; however section 206 (1) of the Act provides:

(1) No person shall act as agent for any other person in the report, entry or clearance of ships, aircraft or goods, or otherwise for the purposes of the Customs Act in relation to ships, aircraft or goods, unless the person so acting is either:

a servant or clerk in the exclusive employment of that other person; or

a Customs agent duly licensed under this Act; or

a servant or clerk in the exclusive employment of a licensed Customs agent, and approved as such by the Comptroller in accordance with regulations.

(2)..................

  1. There was difference in opinion by Customs officers who gave evidence as to the status of Island Freight whether it was a Customs agent, Freight Forwarders or Customs carrier.
  2. Tanuvasa Iosefo said Freight Forwarder not a customs carrier because it does not have a ship. Komisi Koria said Freight Forwarder, that is, Island Freight has a license to hold a control customs area within their compound at Vaimoso and they are not a Customs agent or Customs carrier.
  3. Rima Ulu, ACEO of Boarder and Protection division with Customs who had also worked with Australia Customs based in Sydney said that Island Freight is not a Customs agent but a Freight Forwarding company. She said that Customs agents submit entry and classify goods in terms of tariff but Freight Forwarding companies are Customs Carrier with a warehouse with a bonded area for goods to be cleared only by a Customs officer.
  4. The Business License of Island Freight (EXH D10) says that Island Freight is licensed to carry out the business of support activities for transportation. Island Freight is a freight forwarding or Customs carrier who has a license to hold a control customs area within their compound or a bonded area for goods to be cleared only by a customs officer. In any event the status of Island Freight whether it is a Customs agent, Customs carrier or Freight forwarding is irrelevant for the purposes of section 209.
  5. Section 209 (liability of principal for acts of agent) of the Samoan Customs Act 1977 is very similar or identical to section 234 of the New Zealand Customs Act 1966 and section 206 (who may act as agent) is also very similar to section 231 of the New Zealand Customs Act.
  6. The case of Autocrat Sanyo Ltd v Collector of Customs [1985] 2 NZLR 707 is a case on this issue and His Honour Hillyer J at p.715:

“It is clear from section 231 that a servant or clerk in the exclusive employment of the appellant (i.e. Autocrat) could be an agent. There is no doubt in my view, that the actions of Mr Munro were the acts of an ‘agent in the course of his agency in relation to the....entry, or clearance of ....goods, or otherwise in relation to the Customs Acts’. His acts therefore, in relation to the entry of the video recorders, were deemed by s.234 to have been made or done by the appellant. The appellant therefore would be liable for all penalties imposed by the Customs as a result of those acts, as though Mr Munro had been the brains of the appellant...”

  1. The defendant Levaopolo Talatonu is charged under section 209 that as principal of a business he is liable for the actions of his agent. Levaopolo Talatonu confirmed that he owns and trades under the name Island Freight “licensed to carry out the business of support activities for transportation” (EXH D10). He also confirmed that the defendant Christine Ainu’u was and still is employed as Office Manager by Island Freight. Levaopolo gave evidence that day to day running of the office was left with Christine Ainu’u including the paperwork for clearance of any of their containers and goods. The defendant Christine Ainu’u therefore was, at all material times, a clerk or servant in the exclusive employment of the defendant Levaopolo Talatonu. Under s.206 (1)(a) of the Act, Christine Ainu’u was an ‘agent’ in the sense of s.209 and as such s.209 applies to the defendant Levaopolo Talatonu.

Q. Is section 273 of the Customs Act 1977 constitutional? What is standard of proof if onus is reversed?

  1. One of the legal issues that arose was with s.273 (Burden of Proof) in proceedings under the Customs Act. Section 273 places the burden of proof upon the defendants instead of the prosecution:

In any proceedings under the Customs Acts instituted by or on behalf of or against the Comptroller or the Government (other than a criminal prosecution in the Supreme Court) every allegation made on behalf of the Comptroller or the Government in any statement of claim, statement of defence, plea or information, and relating to the identity or nature of any goods, or to their value for ad valorem duty, or to the country or time of their exportation, or to the fact or time importation, or to the payment of any duty on them, or to any act done or omitted with respect thereto by any person, shall be presumed to be true unless the contrary is proved.

The said presumption shall not be excluded by the fact that evidence is produced on behalf of the Comptroller or the Government in support of any such allegation.

For the purposes of this section a prosecution in the District Court for an offence against the Customs Act shall be deemed to be a proceeding instituted on behalf of the Comptroller or Government.

For the purposes of this section, every proceeding instituted by or against the Comptroller or Government in which any question arises as to the rights, powers, obligations or liabilities of the Comptroller or the Government or any other person under the Customs Acts shall be deemed to be a proceeding under those Acts.

The provisions of this section shall extend and apply to proceedings in which the existence of an interest to defraud the revenue of Customs is in issue.

  1. Mr Toailoa for defendant Christine Ainu’u raised that section 273 because it reverses the onus of proof by shifting the burden of proof to the defendants is therefore unconstitutional. That is, section 273 violates the presumption of innocence protected under Art.9 (3) of the Constitution.
  2. All Counsels involved did not address this issue in their final written submissions. Perhaps because Counsels would refer it to the Supreme Court by way of Case Stated or perhaps Counsels have simply overlooked it in the volume of the evidence and exhibits tendered in the trial. In any event, the court would address this issue as it affects the charges brought against the defendants under s.218(c) of the Customs Act but would leave the issue as to its validity or unconstitutionality for Counsels to refer by way of Case Stated to the Supreme Court.
  3. It is not uncommon for statutes to provide that certain facts shall be deemed to exist until the contrary is proved. The onus of proof of certain matters is placed upon the party to the proceedings other than the Comptroller where any question arises as to (i) place where goods came from,(ii) whether or not duty has been paid, (iii) whether the goods are of the description or nature alleged in the process, (iv) whether or not any goods have been lawfully imported or lawfully unloaded from any ship or aircraft and vice versa, (v) whether or not any goods are or were subject to any prohibition or restriction on their importation or exportation. (see Halsbury’s Laws of England (Fourth Edition), Vol.12, para.656)
  4. If the importation of goods is prohibited save under licence, the onus of proving the existence of the licence and that the goods were covered by it is placed upon the person who alleges the importation was legal. (see: John v Humphreys [1955] 1 All ER 793)
  5. The fundamental principle is that it is always for the prosecution to prove the guilt of a defendant beyond reasonable doubt. This principle is subject to three exceptions:
  6. Section 218 of the Customs Act fall within exception (iii) that the offences are of regulatory nature. In the case of Civil Aviation Dept v Mackenzie [1983] NZLR 78 it was held that an important feature of the defence of absence of fault is that the burden of proving it has been placed on the defendant, on the balance of probabilities. (see also Millar v MOT [1986] NZLR 78). This has been justified on the basis that it is more consistent with the object of regulatory legislation than the Woolmington rule which would allow the defense to succeed if the evidence raises a reasonable doubt on the issue. Mackenzie provides a common law rule which places the burden of proof on the defendant in relation to a matter of defense, not an element of the offence. The majority in Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1 (SC) held in the context of s.6(6) of the Misuse of Drugs Act 1975, that the objectives of the reverse onus “rule” in Mackenzie can be adequately achieved by the imposition of an “evidential” burden on the defendant.
  7. The authorities say reverse onus exists usually or is not uncommon where the legislation are of a regulatory nature (as in Customs Act) and where there is a reverse onus provision it is an “evidential” burden on a balance of probabilities and the prosecution still has to prove beyond reasonable doubt the elements of an offence.
  8. In Garrett v Arthur Churchill (Glass) Ltd & Another [1970] 1 QB 92 on the issue of whether the burden on negativing intent should be on the defendant held that the burden of proving the requisite knowledge and intent in the offence remains on the prosecution.
  9. Both defendants gave evidence that the goods in the container were personal effects and the documents relating to the container and goods were received from overseas. The defense also called witnesses Bean Faalogo and John Sala who gave evidence confirming the goods they unloaded from the container to be of personal effects.

The Facts:

  1. The container BHCU3078686 was consigned to Island Freight and it arrived in Samoa on 19 December 2012 on the ship Southern Lilly Voyage # 1095. The goods brought in the container as on the Bill of Lading were:

“1 x 20 GP STC: 10 PKGS ASSORTED USED FURNITURE & 2 PKGS USED WASHING MACHINE & GENERAL GOODS”

  1. To clear the container from the wharf the following Bills or documentations are required by Customs – Bill of Lading, Transfer, Cargo Manifest and House Bills. The hard copies of the Bill of Lading (Exh D1), Transfer (Exh D2), Cargo Manifest (Exh P2) and 5 House Bills a.k.a Way Bills (Exh P4 – P7) were provided to the Customs by an Island Freight employee named Wanda to clear the container BHCU3078686 from the wharf. These documents were entered or lodged on the Customs computer system called ASYCUDA and the hard copies were checked with what was already received by the Customs on the system.
  2. The documentations for the release of the container from the wharf were in order and a Customs Release Advise was signed by Principal Customs Officer Nanai Su’a releasing container BHCU3078686 to Island Freight. The container BHCU3078686 was cleared and released from the wharf but the goods in the container were not cleared unless and until a Customs Officer attended to the Island Freight warehouse to clear and release the goods.
  3. The container was cleared from the wharf ‘not sealed’. The difference between a ‘sealed’ and ‘not sealed’ container is a ‘sealed’ container can be released from the wharf but the goods cannot be de-vanned or taken out of the container and released to the people who own them except in the presence of and by a Customs officer. A container that is ‘not sealed’ can also be released from the wharf and the goods can be de-vanned or taken out of the container and store in customs licensed warehouses but cannot be released to the people who own them except by a Customs officer.
  4. According to Nanai Su’a who signed the Customs Release Advise for the container there was no need to ‘seal’ the container because the goods declared on the Bill of Lading (EXH D1) and Cargo Manifest (EXH P3) were personal effects and were not of any risk.
  5. These goods appeared outstanding on the ASYCUDA system which means that they had not been cleared or released and should therefore still be at the Island Freight Warehouse. The ASYCUDA is a computer system used by Customs that can be accessed on line by licensed customs agents, customs carriers, freight forwarders and shipping companies to lodge shipping bills or documentations.

Customs Process in clearing containers from the wharf:

  1. Tanuvasa Iosefo said to clear a container from the wharf the Bill of Lading and Cargo Manifest are received on line on the Customs ASYCUDA system from the shipping agent. The customs agents or shipping companies receive the Bill of Lading and Cargo Manifest from their overseas agent. These documents are then forwarded by the shipping companies or agents to the consignee of the container. The consignee is responsible for providing the Transfer (EXH D2), Consolidated Manifest (EXH P3) and House bills (EXH P4-P7). These documents including the Bill of Lading and Cargo Manifest are required by Customs for the release of a container from the wharf.
  2. The Customs Trade Division checked the hard copies with the electronic version on the ASYCUDA system to make sure that the information on the hard copies are the same as those electronically received before they referred it to the Cargo and Boarder division. The Cargo and Boarder division also checked the hard copies with the system who afterwards returns the Bill of Lading (EXH D1) and Cargo Manifest (EXH P2) back to the Trade division while the Transfer (EXH D2) remains with them. A Customs Release Advise (CRA) is signed to release the container from the wharf to Island Freight when all documentations checked out with the system.
  3. Customs officer, Ituau Uele received the documents both in hard copies and e-copies on a flash drive sometime in December 2012 for Island Freight from a girl named Wanda. She only identified the Transfer (EXH D2) as that was the document on the top which she stored or lodged on the system and left the rest of the documents on Faivavale Fuiava’s desk the Customs officer who was responsible for registration of documents on the system
  4. Faivavale Fuiava confirmed she received from Ituau Uele the Bill of Lading (EXH D1) she referred to as master bill, Transfer (EXH D2) and 5 House bills (EXH P4 – P7). She checked the hardcopies with the information on the ASYCUDA system and the information checked out, she registered the documents, stamped and referred to the Cargo and Boarder division who is responsible with Transfers. EXH D16 is a print out of what it looks like after it has been registered on the Customs system.

How are goods cleared from the ASYCUDA system?

  1. There seems to be different understanding among the Customs officers who gave evidence as to when goods are cleared from the system. Some say that they are cleared from the system once Baggage Sufferance (BS4) declaration for personal goods have been assessed and/or modified. Josephine Hunt said after clearing goods at warehouses she will go back to the office and enter all the necessary information on the system, assess it, enter date and number of assessment and it is cleared from the system. Until then, the goods will remain outstanding on the system. Others say only cleared from the system when duty is paid.
  2. There has been evidence that even though goods have been assessed they still appeared outstanding on the system (EXH D8). Ietitaia Iosia said there are various reasons why goods will still appear outstanding on the system although everything have been paid and one of those reasons could be because there is a variation in the information. It also appears that if the information is not entered on the system by Customs officers of the goods they clear at warehouses, the goods will also appear outstanding on the system.

The Allegations behind the Charges:

  1. The allegations by the Comptroller/Police are that Christine Ainu’u forged the house bills by putting fictitious people with the intent to defraud the revenue of Customs and forging Customs officer Josephine Hunt’s signature on the house bills by way of photocopying her signature so it looked like she had cleared and released the goods. All these implied that the actual content of the container were whiskey bottles and not the goods that were declared on the Bill of Lading and on all the documentations or bills as personal effects as follow:

“1 x 20 GP STC: 10 PKGS ASSORTED USED FURNITURE & 2 PKGS USED WASHING MACHINE & GENERAL GOODS”

  1. None of the Customs officers who gave evidence for the prosecution could say that the whiskey bottles were actually brought in container BHCU3078686. The defense called two witnesses Bean Faalogo and Ioane Sala who unloaded the container on Friday, 21 December 2012 testified that the container was fully loaded with goods in pallets and boxes, used furniture and washing machines. Their evidence was that there were no whisky bottles in the container.
  2. There is no evidence that the whiskey bottles seized by Customs were imported through Island Freight container BHCU3078686. The charges filed against the defendants relate to the goods as they appear on Bill of Lading and Cargo Manifest to be personal effects.

S.218 (c) (Defrauding Customs) under Customs Act 1977

  1. The defendant, Christine Ainu’u is charged with 4 counts under s.218(c) of the Act for knowingly produced false documents namely:

purporting to bear the signature of Josephine Hunt (a Custom’s officer) with intent to defraud the revenue of customs.

  1. Section 218(c) of Customs Act provides:

“218. Defrauding the revenue of Customs – If any person contravenes any provision of this Act, or does any other act, with intent to defraud the revenue of Customs:

..............................., or

................................., or

in any other manner whatsoever in relation to any goods, or

...................................... “

  1. The defendant Levaopolo Talatonu is jointly charged by way of s.209 (Liability of principal for acts of agent) under the Act.
  2. The Comptroller/Police case is that Christine Ainu’u created false house bills under names of people who do not even exist in Samoa with intent to defraud the revenue of Customs. They also alleged that Christine by way of forgery photocopied Customs officer Josephine Hunt’s signature onto the house bills. The Comptroller/Police is therefore alleging that Christine Ainu’u knew that the 4 house bills (EXH P4 – P7) were false when she presented them to the various Customs officers. The false house bills with the forged signature made it looked like the goods were actually cleared and released by Customs officer Josephine Hunt. The intent to defraud is when Christine allegedly created the false house bills including forging Josephine Hunt’s signature.
  3. The Defence case is the house bills originated from overseas and therefore cannot have been created by Christine Ainu’u. Christine strongly denied that she forged Josephine Hunt’s signature on the house bills which allowed for the release of the goods.
  4. The issues are:

The Evidence:

Were the house bills and consolidated manifest falsely created by Christine Ainu’u?
Did Christine Ainu’u forge Customs officer Josephine Hunt’s signature?

  1. The evidence established that the Bill of Lading and Cargo Manifest originated from overseas. These documents are not in issue. The Assistant Chief Executive Officer for Customs Tanuvasa Iosefo said the Bill of Lading (EXH D1) and Cargo Manifest (EXH P2) originate or come from overseas shipping company. Vae Setu and Ferina Seumanutafa of Transam shipping company which owned container BHCU3078686 consigned to Island Freight gave evidence that the Bill of Lading (EXH D1) and Cargo Manifest (EXH P2) were received by them from their overseas agent.
  2. Tanuvasa Iosefo one of the main witnesses for the Comptroller/Police has been working for Customs for 38 years and has extensive knowledge of the general procedures of clearing goods from the wharf, from freight stations and also the Customs ASYCUDA computer system to which licensed Customs Agents, Freight Forwarders and Customs Carriers have access.
  3. Tanuvasa said that the Consolidated Manifest and House bills can originate from overseas shipping company or shipper but they can also be prepared and/or created by the local consignee. He said the house bills can only be created according to the information received from overseas shipping companies, agents or shipper.
  4. He believed that the Consolidated Manifest and the House bills in this case were created by Christine Ainu’u of Island Freight because there is nothing to confirm that they actually originated from overseas i.e. Australia because there was no stamp or signature on these documents.
  5. Ituau Uele, Customs officer of 7 years experience when asked as to her knowledge of whether manifests and house bills she receives are prepared by local customs agents and companies or received from overseas replied at p.7 of her evidence:

“Pros: lea ete taua ole manifesi lea e tuuina atu ile tou vaega e tapenaina ele IF poo se isi manifesi, - e tapena ele comp pe e sau mai fafo

Wit: tusa e tapena mai e comp mai i latou agent mai fafo”

  1. Ituau’s response could mean that the documents are prepared by the companies accordingly to what is received from their overseas agents or that the companies put it together as they received it from their overseas agents.
  2. A Senior Customs Officer Ietitaia Iosia (“Ieti”) was the key Comptroller/Police witness. He went with Customs officer Moimoi Tauave on 7 March 2013 on routine inspections and enquiries to Island Freight. Ieti and Moimoi met with Christine Ainu’u twice on 7 March 2013 at Island Freight in the morning and in the afternoon.
  3. Ieti’s evidence was that Christine Ainu’u created the Cargo Manifest and the 4 house bills and forged Customs officer Josephine Hunt’s signature on the house bills to make it look like the goods were cleared by Customs through Customs officer Josephine Hunt.
  4. He said on their second visit to Island Freight on the same day in the afternoon that Christine told him that she created the Consolidated Manifest and the 4 house bills from the information on the Bill of Lading. The people on the Manifest and house bills are fictitious names that she made up. Christine also told him that she cut out Josephine Hunt’s signature from a document that she signed on “22/02/12” clearing some goods from Island Freight on that day; twinked the “0” and wrote “1” so the date turned out to be “22/12/12”. She then pasted this cut out on to the house bills and photocopied it. He said that Christine told him she had to photocopy it a couple of times to eliminate the edges of the cut out. Ieti said that Christine told him that she only realised that 22/12/12 fell on a Saturday after she had done the photocopying. One of the house bills is missing a date. He said that Christine tried to bribe him by signing a $200 cheque.
  5. Ieti told the court that he told Moimoi when they went back in the afternoon to wait downstairs and that he went in alone and met with Christine. He said the reason was that Christine may open up and tell him the truth if he goes in alone. Ieti said before Christine confessed he raised with her some of his concerns as follow:
  6. Moimoi Tauave confirmed that he went with Ietitaia Iosia to Island Freight on 7 March 2013 on a routine check and to enquire about goods brought through Island Freight for National Health Services and Apia Traders and also container BHCU3078686. They asked Christine for the Customs Release Advise (CRAs) for National Health Services and Apia Traders before they asked about the goods brought in container BHCU3078686. Christine told them that the goods have already been cleared by Customs officer Josephine Hunt and the container had been returned to Transam. He asked Christine about the date on the house bills that Josephine allegedly cleared the goods as the date “22/12/12” fell on a Saturday and Customs do not clear goods from freight stations or warehouses on Saturdays. He said Christine replied that it was Josephine’s mistake.
  7. Moimoi also confirmed that he was only present in the meeting with Christine in the morning but was not present in the meeting with Christine in the afternoon as he was asked by Ieti to wait outside while he went in alone. Moimoi told the court when asked by Mr Toailoa that he was surprised and did not expect to be asked by Ieti to stay outside. Moimoi said when they left Island Freight in the morning they left on the understanding that Christine will call them in the afternoon when she had located or obtained from NHS and Apia Traders the Customs Release Advise (CRAs) that they wanted.
  8. Customs officer Josephine Hunt went and saw Chrsitine Ainu’u on 4 March 2013 after she saw Tanuvasa at the office regarding her signature on the 4 house bills. She asked Christine for the originals of the house bills meaning the house bills with her original signature so she could confirm whether she actually signed the 4 house bills. Christine told her that the originals were lost and that she should not worry as she would not be affected.
  9. Josephine said she never signed any of the 4 house bills although she said that the signature on the house bills looked like her signature. She said that a “C” number usually handwritten should have appeared on top of each of the house bills (EXH P4-P7). A “C” number is a customs declaration number a.k.a. Baggage Sufferance Number (BS4). The ‘C’ number means that freight had been paid. She said that Customs procedure for clearing goods from warehouses is that the Custom officer writes the receipt number or ‘C’ number on the house bills before they sign and put the date of when they cleared the goods. She cannot clear any goods without sighting the “C” number on the house bills which she records on the copy of receipt issued for the goods cleared. She said that she could not have cleared the goods meaning that she could not have signed the house bills because the copies of the 4 house bills do not have any “C” numbers on it. EXH D22 show the C# on the receipts but not on the house bills. Komisi Koria said personal effects are not subject to duty.
  10. Josephine said that Customs don’t work on Saturdays to clear any goods from warehouses or freight stations. The date “22/12/12” appearing on the house bills with her signature was a Saturday that she allegedly cleared the goods from Island Freight warehouse. She said that on Saturday, 22 December 2012 she was at her mother in law’s unveiling. She also said that she checked her receipt book that she took with her to clear the goods in December 2012 and saw that the last day she cleared any goods in that week was Friday, 21 December 2012.
  11. Josephine denied receiving any calls from Christine on Friday, 21 December 2012 or talking to her on same date and saying to Christine that she would go to Island Freight to clear the goods. She said that 7714978 was her new mobile number used in January 2013 but her mobile number used before January 2013 was 7773126.
  12. Christine Ainu’u gave evidence and denied evidence by Ieti that she created the Consolidated Manifest (EXH P3) and the 4 House Bills (EXH P4 – P7). She said the 4 house bills were received by email from Jonah Lee who resides in Sydney, Australia attached as pdf on 11 Dec 2012 (EXH D16). She said the only document they are responsible for or to prepare is the Transfer (EXH D2). Christine also denied forging signature of Customs officer Josephine Hunt by photocopying. She said they cannot photocopy anything pasted on paper because their machine is a fax/photocopy machine and documents get stuck if photocopied. Their office fax/photocopy machine only photocopies laterally and not horizontally as is with normal photocopying machine.
  13. She said that Ieti never raised with her any of the concerns he said in his evidence that he did. She said she had a general conversation with Ieti on his second visit and he talked mainly about the Customs office and he mentioned a reward Customs officers can receive. Ieti said to her that if she admits to him that the container BHCU3078686 consigned to Island Freight brought the whiskey in to the country he would give her part of the reward. Christine also denied trying to bribe Ieti with a cheque of $200 saying that she does not have a personal cheque account and that she co-signed the company’s cheque account with defendant, Levaopolo Talatonu.
  14. Christine said that she was not at Island Freight on Friday, 21 December 2012 when the goods were cleared but a casual employee named Tepora Asuasu was present when the goods were cleared. Christine was adamant that Josephine Hunt cleared the goods because she rang Josephine twice on that Friday on her mobile number 7714978 and spoke with her. Josephine said to her that she would go and clear their goods after clearing two more goods at Transam. All she knew that it was Josephine Hunt’s signature on the house bills which meant that she cleared and released the goods.
  15. Christine confirmed that Josephine came and saw her and asked for the originals of the house bills so she can confirm her signature. She told Josephine that the originals were given to the clients and they keep the copies. Christine agrees that it is normal Customs practise to record “C” number or Baggage Sufferance number on house bills but she said that Josephine at most times cleared goods without a receipt book and therefore no “C” number is written on the house bills. She said that she reminded Josephine when she came to see her that she usually signed on the house bills if she did not have a receipt book with her when she clears goods and Josephine agreed to what she said and left.
  16. The clearance of goods is claimed by Christine to have been cleared on Friday, 21 December 2012 although the date on the house bills is “22/12/12”. She also said that Tepora Asuasu was at Island Freight on Friday, 21 December 2012 when the goods were cleared.
  17. Levaopolo Talatonu gave evidence and said that the Bill of Lading and Cargo Manifest are received from overseas shipping company via the local shipping agents like Transam but other documents like the Consolidated Manifest and House Bills are received by Island Freight via email from the shipper or overseas agent.
  18. He gave evidence that he was in New Zealand until January 2013 when Christine rang him in December 2012 that Jonah Lee came to ask for space to store his goods. He asked Christine for space in the warehouse and Christine told him there was no space but there was an empty container in the yard and so he told Christine to let Jonah use the container. Levaopolo said it is not unusual for same person to be shipper and consignee. Most of the business people go overseas and buy goods so they have their names as shipper and consignee (see EXH D22).
  19. Mr Ah Kuoi for the Samoa Immigration confirmed that Levaopolo Talatonu travelled to New Zealand on 19 December 2012 and returned on 20 January 2013. He also confirmed Jonah Lee’s movements in and out of Samoa that he arrived on 15 December 2012 departed on 5 January 2013 for Sydney, Australia came back on 3 February 2013 and departed again on 7 March 2013 for Sydney, Australia. (see EXH P9)
  20. Levaopolo said that the Consolidated Manifest and house bills were received from Jonah Lee in his email of 11 December 2012. Apart from Tepora Asuasu the names on these two documents could be Samoan people born and living overseas. As is sometimes the case they send goods in their names and their families in Samoa collect them. Customs officer Moimoi Tauave said that when he clears goods as long as families in Samoa turn up and say the name the goods are brought under and pay the duty the goods are released.

Discussion:

  1. The evidence is clear that the Bill of Lading and Cargo Manifest are documents received by the local shipping agents from overseas shipping companies. The Bill of Lading (EXH D1) and Cargo Manifest (EXH P2) for container BHCU3078686 were received by local shipping agent Transam from overseas shipping company PDL International Pte Ltd. These documents were entered on the ASYCUDA system by Transam and also forwarded to Island Freight whom the container is consigned to.

Consolidated Manifest and House Bills:

  1. The Comptroller /Police case rely heavily on the evidence of Ietitaia Iosia that the Consolidated Manifest and house bills were falsely created by Christine Ainu’u. To support the Comptroller/Police case evidence was provided by senior officers from National Provident Fund, Samoa Immigration and Births, Deaths and Marriages Registry that the people listed on these documents do not exist. In her defence Christine Ainu’u denied these charges saying that the documents were received by email (EXH D16) from Jonah Lee (whose matai title is Toalepai) who also paid for the container from Sydney. The email sent from Jonah Lee on 11 December 2012, seven (7) days before the ship or container arrived. The documents were emailed as attachments in PDF (Protected Document Format) and it says:

“Attachments: Manifest and bills for container BHCU3078686.pdf”

  1. It is common knowledge to those who send documents via email as attachment that documents sent in pdf cannot be altered or changed. This is the whole point of pdf format is to prevent people altering or changing documents.
  2. The house bills (EXH P4-P7) also referred to as sub-manifests or non-negotiable waybills are individual bills to each person listed on the Consolidated Manifest. The house bills are not only in a standard format but was also sent in pdf making it very hard for anyone to create or alter such a document. It also says on each house bill that they were issued in Sydney, Australia.
  3. The Consolidated Manifest is headed “Port of Sydney” (EXH P3) and contains all the information consistent with Bill of Lading and Cargo Manifest as to shipper, customs agent, ship and voyage, container number and then lists the names of the people who own the goods brought in the container. Unlike the house bills which say the place they were issued the Consolidated manifest does not say where it was issued. This document is said to have been attached by Jonah Lee in his email to Christine Ainu’u on 11 December 2012 (EXH D16). The Consolidated manifest is dated “20/12/12” and attached to Jonah Lee’s email of 11/12/12. The Consolidated Manifest (EXH P3) together with the house bills (EXH P4-P7) and Transfer (EXH D2) were all received by Customs on 19 December 2012. No one ever picked up on the date on the Consolidated Manifest. The court can only go on the evidence before the court minus the date on this document.
  4. I accept that the Consolidated Manifest was attached in the email from Jonah Lee but with that date. The date could not be changed as the document was in pdf form. These documents in evidence of Customs officers (Ituau Uele and Faivavale Fuiava) were received and entered on the system on 19 December 2012.
  5. It seemed to be the general belief by Customs officers that the House bills were created or can be created here in Samoa but no one could testified that they actually saw these documents being created here by local agents or called evidence from some local agents to say that they can be created and/or are created here by them to base their belief or knowledge upon. The Customs officers said that the house bills can be created but if created here by customs agent, customs carrier or freight forwarding companies they can only do so on the information received from the overseas shipper or shipping agent. If so, Christine could not have fabricated or falsely created these documents because the information is received from overseas shipping company or shipper or overseas agent.

Forged signature by way of photocopying:

  1. Ieti told the court of how Christine forged Josephine Hunt’s signature. How Christine went about forging the signature not only is time consuming, meticulous in that she cut Josephine’s signature from some other document, pasted it on each house bill, twinked the edges of the cut out signature and photocopying it several times to turn out like a normal copy of an original. It also suggests the work of a professional who has special knowledge, training and experience in this sort of forgery. No evidence was provided that Christine Ainu’u has such experience, knowledge or training. This sort of allegation calls for expert evidence whether such is possible and that anyone can do it without any special knowledge training or experience. Christine not only denied that she ever said or confessed to Ieti but she also said that the machine used by Island Freight for photocopying is a fax/photocopy machine that does not allow or would get stuck if something is pasted on a paper to be photocopied. This means that it would be hard or impossible to do the photocopying as told by Ieti.
  2. Josephine Hunt confirmed that the signature on the house bills looked like her signature. She also confirmed the signature on copies of Bill of Ladings (EXH D12) to look like that of her signature. She could only say that it looked like her signature because the bills were copies and she could only confirm that it was her signature if she had sighted the originals of these bills. To the ordinary eye all these signatures are the same.
  3. Copies of Bills of Lading (EXH D12) were given to Josephine Hunt with her signature on it of goods she cleared. Josephine confirmed the signature looked like her signature. These goods supposedly to have been cleared still appear outstanding on the system.
  4. Josephine said she did not go to Island Freight on Friday, 21 December or Saturday, 22 December 2012 to clear any goods but she did confirm that she cleared goods on Friday, 21/12/12 just not at Island Freight. She was able to confirm this from her receipt book which was not provided as evidence in court. Josephine also said that she went and saw Christine on ‘4 March 2013’ after she had spoken with Tanuvasa. She could not have seen Christine on 4 March 2013 because Tanuvasa Kalolo and Komisi Koria met with Christine Ainu’u on 5 March 2013 and it was only after this meeting that Tanuvasa went back to the office and spoke with Josephine.
  5. The defence raised some issues with the way Josephine Hunt had carried out her duties that puts her credibility in issue. She confirmed all the signatures on the house bills to look like her signature but denied having signed it. She also confirmed the signature on Bill of Ladings ( EXH D7 & EXH D12) to look like her signature of goods that she had cleared and released on 31/10/11 and 11/01/12 without “C” numbers and yet these goods still appear outstanding on the Custom system. If there is doubt the defendants should have the benefit of the doubt.
  6. There is the alleged confession by Christine Ainu’u to Ietitaia Iosia.

Concerns about the alleged confession to Ietitaia Iosia:

  1. Ietitaia and Moimoi Tauave went to Island Freight on 7 March 2013 already knowing and suspicious of the container’s possible link to the whiskies. Ieti and Moimoi would have been the 3rd or 4th lot of people from Customs who had been to meet with the defendants, in particular Christine Ainu’u about the container and the goods that were brought in it.
  2. The Customs officers – Mika Su’esu’e, Tanuvasa Solia and Komisi Koria were all told by Christine Ainu’u that the goods have been cleared and house bills were shown. These officers together with Faafetai Luatua who met with Levaopolo Talatonu on 20 February 2013 were told that the goods brought in container BHCU3078686 have been cleared and the container was used by a Jonah Lee to store his goods. This Jonah Lee went and met with ACEO/Legal Adviser for Customs Komisi Koria after the whiskies were seized from a house at Lotopa on 22 February 2013 and told Mr Koria that he was the owner of the whiskies and that he bought the whiskies in Samoa from a palagi man.
  3. Ietitaia at first until pressed by Mr Toailoa said they did not take with them any copies of house bills but that Christine showed or gave it to them. He also said that when Levaopolo got to the office Christine then told them to leave as she did not want Levaopolo to know about the matter they were talking about but that she would call in the afternoon. This is not accurate because Levapolo was already aware of the matter having met first with Faafetai Luatua on 20 February 2013 and then with Tanuvasa Iosefo and Komisi Koria on 5 March 2013.
  4. Moimoi said they took with them copies of the Transfer a.k.a. Consolidated Manifest (EXH P3) and 4 house bills (EXH P4 – P7) and he never heard Christine said for them to leave when Levaopolo got to the office saying that she did not want Levaopolo to know what they were talking about. He said that Christine only said to them when Levaopolo arrived that they will talk later.
  5. In Ieti’s evidence in chief not once did he mention that they also enquired about NHS and Apia Traders until questioned by Mr Toailoa. I somehow feel that Ieti used NHS and Apia Traders as a guise of putting pressure on Christine Ainu’u to locate the CRAs for these organisations saying that he needed it for his report to be submitted later on the day. He never filed a report. He also used it as an opportunity to question or meet with Christine some more over container BHCU3078686 even though Christine had answered his and Moimoi’s queries over this container when they first met in the morning. This second opportunity was when Christine called in the afternoon that she had obtained the CRA for Apia Traders and still waiting on NHS for their CRA. It is when Ieti went back with Moimoi in the afternoon that the alleged confession was made by Christine.
  6. Apart from the doubts I have of this witness I am also concerned with the alleged confession by Christine Ainu’u to this Customs officer. The first concern I have was why Ieti told Moimoi Tauave to stay outside while he went in and spoke with Christine alone? If he had not told Moimoi to stay outside, Moimoi would have corroborated his evidence of the alleged admission or confession by Christine.
  7. Why would Christine Ainu’u confess to Ietitaia Iosia and not confess to Mika Su’esu’e who went by himself or even to Tanuvasa Solia one of the most senior Customs officers or Komisi Koria the Customs Legal Adviser? Christine did not even confess or make a statement to the Police.
  8. I do not accept his explanation for going in to see Christine saying that she may find it easier to talk to him alone and then he came with a confession from that meeting. For someone with 37 years of service and experience he should have known better. Customs officers are enforcement officers under the Customs Act.
  9. The method by which this alleged confession was obtained affects how much weight the court would give to it rather than its admissibility.

Collateral Issues:

Does Tepora Asuasu exist?

  1. The Customs officers who gave evidence have never met this employee of Island Freight. Josephine Hunt said she has never met this person at Island Freight when she has been to clear goods.
  2. The evidence from NPF, Births, Deaths and Marriages Registry and Immigration Services have no record of a person named Tepora Asuasu to be a NPF contributor, to have been born in Samoa and Immigration Services do not have any record of any such person ever having entered the country or issued with a Samoan passport. Mr Ah Kuoi did not say how far back his search was. Obviously Tepora Asuasu is not a NPF contributor and that could be because Island Freight did not pay for her NPF and she may have been born overseas and migrated to Samoa when she was young. There is the fact that Tepora may have other names she is registered under and this is her calling name and last name “Asuasu” could be her married name or father’s name but she is registered under her father’s last name. For example, my birth name is Mataomaile Annealise Tuatagaloa but I could be known and use the name Annealise Keli. Keli being my father’s first name. These could be reasons why there may not be any records of a Tepora Asuasu with NPF, Immigration Services and Births, Deaths and Marriages Registry.
  3. Both defendants say that there was an employee at Island Freight named Tepora Asuasu at least that was her name they know her by and she was from Vailele. They said that Tepora was a casual employee and only comes to work when she is needed, that is, when the office is busy or when they have a container to unload and/or goods to clear. They also said that this employee never came back to work when they started work in 2013.
  4. The witnesses Bean Faalogo and Ioane Sala who live behind the Island Freight confirmed that there was a Tepora Asuasu who worked for Island Freight apart from another employee named Wanda and a man they know as Mikey apart from Christine. They said that Tepora was present on Friday, 21 December 2012 when they unloaded the container. They described her as “paee tau umi uliuli” (slim a bit tall and dark).

Who keeps the originals?

  1. There is a different understanding between the Customs officers and Island Freight as to who keeps the originals of the documents. Customs say Island Freight keeps the originals and Island Freight say they give the originals to their clients and they keep the copies.
  2. Customs officers, Josephine Hunt, Mika Su’esu’e, Ietitaia Iosia and Moimoi Tauave say that the originals of house bills are left with the freight forwarders and are not given to clients.
  3. Tanuvasa (supported by Komisi Koria), Ietitaia and Josephine said that Christine told them when they asked about the originals of the house bills that they were lost. Christine on the other hand denied being asked about the originals and denied ever saying to the Customs officers that the originals were lost. She told the court that the originals are given to their clients and they only keep copies.
  4. The house bills are not like a receipt from a receipt book with a carbon copy, that you write the original and give it to customers and the copy remains in the book. The evidence does not say that the house bills were given to the Customs officers with copies or duplicates that when Customs officers sign on one it will appear on the duplicate as in the case of a receipt book. The ‘original’ they refer to is the house bill with their original signature. The evidence of the Customs officers especially those who attend to clear goods from warehouses is that the house bills they have signed releasing the goods are left with customs agents, i.e., Island Freight because they do not take any with them back to Customs. Both Levaopolo and Christine insisted that the procedure at Island Freight is that they release the originals to the clients and they keep copies.
  5. What is clear from the evidence is that the Customs officers leave the house bills with the customs agents or freight forwarders, i.e., Island Freight after they signed releasing the goods. The original house bills are then given or released by Island Freight to their clients and they keep copies. The evidence does not say at what point or when these originals are released by Island Freight to their clients.
  6. As to who called Levaopolo Talatonu for space to be used by Jonah Lee to store his goods whether it was Christine or Jonah does not matter. What is clear from the evidence is that container BHCU3078686 at the time Levaopolo was contacted on 24 December 2012 was empty because the goods that were brought in the container had already been cleared and released either on Friday, 21 December or Saturday, 22 December 2012.

Section 221 (Wilfully false declaration) under Customs Act and section 108( uttering forged document) under Crimes Ordinance 1961

“221. Wilfully false declarations – A person who knowingly makes any false declaration under this Act commits an offence and is to imprisonment for a term not exceeding 2 years.”

  1. Christine Ainu’u is charged with 4 counts of wilfully making false declarations as follow:

Information D4112/13 – False declaration to Mika Su’esu’e

  1. The alleged false declaration by Christine Ainu’u to Mika Su’esu’e was that the container BHCU3078686 sighted by Mika on Island Freight compound on 7 February 2013 was an empty container but currently used by Jonah Lee to store his goods.
  2. The evidence established that container BHCU3078686 was consigned to Island Freight and which brought in goods of personal effects that were either cleared on Friday, 21 December or Saturday, 22 December 2012 and was then used by Jonah Lee to store his goods from 24 December 2012. At the time of Mika’s visit on 7 February 2013 the goods that were brought in the container had already been cleared and released from Island Freight warehouse. As to the issue of clearing it from the customs system that is a different issue as Christine would have no idea as to whether it has been cleared from the Customs system or not and Mika at the time did not know that the goods had not been cleared from the Customs system. Christine’s response to Mika’s question was in relation to the container that he had asked about and not whether they have been cleared from the customs system.
  3. The following information is discussed together as they relate to the same evidence.
  4. The alleged false declaration was Christine Ainu’u saying to Tanuvasa that goods have been cleared by Customs officer Josephine Hunt.
  5. The alleged false declaration to Ietitaia was the goods have been cleared by Josephine Hunt as per her signature on the house bills.
  6. The court has discussed the issue of falsely creating the Consolidated Manifest and House bills and forging Josephine Hunt’s signature on the house bills in detail and is not satisfied of the evidence provided by Comptroller/Police that Christine forged the signature in the way that she allegedly did for the reasons already provided. The court has found that the Consolidated Manifest and House bills were received from overseas by email dated 11 December 2012 from Jonah Lee. The evidence established that the goods have been released from Island Freight compound.
  7. The evidence of Josephine Hunt and Christine Ainu’u are poles apart as to whether the goods were cleared by Josephine Hunt and if so whether they were cleared on Friday, 21 December 2012 instead of “22/12/12” as dated on the House bills. The only person that could have shed some light on this issue was Tepora Asuasu an employee of Island Freight whose existence was questioned by the Comptroller/Police but whom the court on the evidence concluded that there is a person or was a person named Tepora Asuasu employed by Island Freight in 2012. This person never returned to work when work started in 2013 and she could not be located. Without her evidence there is that gaping hole in the Comptroller/Police case and therefore there is doubt which has not been discharged.
  8. The alleged false declaration was Christine Ainu’u saying to Josephine Hunt that the originals were lost when in fact there were no originals.
  9. I have discussed the issue as to originals in detail earlier in this decision. I found that the originals are released by Island Freight to their clients. The conclusion reached on the basis of the evidence is that Customs officers who clear goods from the warehouses signed and leave the originals with the companies as in the case of Island Freight. These originals are then given to the clients or customers of Island Freight by Island Freight. The defendants say that this is their normal practise or company procedure that the clients get the originals. This is as one would think normal practise that the customers or clients take the original and the office keep the copies for their records. The evidence of Christine Ainu’u and Josephine Hunt are poles apart it therefore comes down to credibility and the court has raised concerns it has of the witness Josephine Hunt.
  10. There is no false declaration.

Charges under Crimes Ordinance 1961:

  1. The defendant, Christine Ainu’u is also charged with 5 counts of forgery under s.107 and 6 counts of uttering forged documents under s.108(b) of the Crimes Ordinance 1961:
  2. Christine Ainuu is alleged to have knowingly made the following false documents between 1st December 2012 and 8th March 2013 under each name and inserting the named signature on it, with intent that it be used or acted upon.
  3. She is further alleged to have used these forged documents causing the Customs officers Faivale Fuiava and Nanai Malaeliua (a.k.a. Nanai Su’a) to act upon it. Faivale Fuiava registered the documents on the system after she had checked it with the information on the system to be in order and she then referred it to the Cargo & Boarder division where Nanai Malaeliua signed the Customs Release Authority (CRA) releasing the container from the wharf to Island Freight. Nanai signed the CRA after he had checked the documentations to be in order.
  4. As discussed earlier on in this decision there is not enough evidence to prove beyond reasonable doubt that the documents were false or have been forged.

Conclusion:

(i) The Consolidated Cargo (EXH P3) and house bills (EXH P4-P7) were not created by Christine Ainu’u but were received by Christine on email from Jonah Lee on 11 December 2012. The issue as to fictitious people on the Consolidated Manifest and house bills become obsolete.
  1. The forgery charge D1601/13 refers to forging “Cargo Manifest” also known as “Consolidated Manifest” between 1st December 2012 and 6th March 2013”. Cargo Manifest and Consolidated Manifest are two different documents or bills. Cargo Manifest definitely was forwarded from overseas and the Consolidated Manifest also originates from overseas as via email from Jonah Lee.
  2. The house bills were sent from Jonah Lee via his email dated 11 December 2012. These house bills were issued in Sydney, Australia and sent in pdf form and cannot be altered or changed in any way. The Consolidated Manifest (EXH P3) was one of the documents said to be attached together with the house bills (EXH P4-P7). If so, it was sent with the date “20/12/12” which means that the date could not be altered as it is was sent in pdf form.
  3. I am not convinced beyond reasonable doubt that Josephine Hunt’s signature was forged and in the manner that it was said to have been forged.
  4. All charges against both defendants, Christine Ainu’u and Levaopolo Talatonu brought by the Comptroller of Customs and charges by the Police are dismissed.
  5. Charges D1609, D1610, D1611 & D1612 are dismissed against Christine Ainu’u.
  6. The court finds that Christine Ainu’u did not make “declarations” according to the law. Alternatively, I also did not find enough evidence to prove beyond reasonable doubt that Christine Ainu’u by saying what she said to the Customs officers was false and she knew it to be false.
  7. Charges D4112, D4113, D4114 & D4115 are all dismissed against Christine Ainu’u.
  8. The charges filed under the Crimes Ordinance 1961 - D1613, D1614, D1615, D1616, D1617, D1618, D1619, D1620, D1621, D1622, D1623 & D1624 are all dismissed.

...................................
Judge Mata Keli Tuatagaloa


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