Police v Fuiavailili [2014] WSDC 9 (7 March 2014)

DISTRICT COURT OF SAMOA
Police v Fuiavailili [2014] WSDC 9

Case name:	Police v Fuiavailili
Citation:	[2014] WSDC 9
Decision date:	7 March 2014
Parties:	POLICE v FAAMAILE KAPISA FUIAVAILIILI male of Tulaele and Afega
Hearing date(s):	30 January 2014
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:	- The defendant is accordingly found guilty of the charges of obtaining from the complainant by false pretences in Informations D92/12, D93/12, D94/12, D97/12, D98/12 and D99/12.
Representation:	Sergeant Richard Ah Ching for prosecution
	L T Malifa 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

FAAMAILE KAPISA FUIAVAILILI male of Tulaele and Afega
Defendant

Counsel: Sergeant Richard Ah Ching for prosecution

L T Malifa for defendant

Sentence: 7 March 2014

DECISION OF DCJ VAAI

Background

• 1 The complainant Iokapeta Maeli was excited by the announcement in July 2010 she and her child were included in the New Zealand Government’s Quota Scheme. The defendant whom she met in October 2010 offered to help with the travel arrangements. As a woman of little means the complainant called her parents in New Zealand to help in paying the cost of the travel documents and air fares. Her mother responded by sending a sum of money to help with the cost of the trip. When she received the money she gave differing amounts to the defendant to prepare the relevant documents for the trip from December 2010 when she received the money to January 2011. The trip was delayed twice, in April and again in May 2011. For each delay the reason given by the defendant was the travel papers weren’t ready.
• 2 After the trip had been delayed the second time, the complainant suspected in mid May 2011 that she had been duped because the defendant no longer answered his phone or return her calls. It also dawned on her she had lost all the money she gave him. It became apparent also that the defendant never prepared the travel documents for her and her child.
• 3 She travelled to Savaii in late May 2011 to try to find the defendant. She sought the help of her family at Satupaitea to find him. Her efforts were not successful. She therefore contacted the police and lodged a complaint against the defendant in August 2011.

Charges

• 4 The defendant faces eight counts of theft of the complainant’s property pursuant to Sections 85 & 86(c) Crimes Ordinance 1961. The charges are:
  • Info. D1486/13 - On the 20^th day of December 2010 at Savalalo steal ST$700.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
  • Info. D1487/13 - On the 18^th day of January 2011 at Savalalo steal ST$300.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
  • Info. D1488/13 - On the 21^st day of December 2010 at Savalalo steal ST$500.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
  • Info. D1489/13 - On the 28^th day of December 2010 at Savalalo steal ST$1,200.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
  • Info.D1490/13 - On the 31^st day of December 2010 at Savalalo steal ST$500.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
  • Info. D1491/13 - On the 10^th day of January 2011 at Savalalo steal ST$700.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
  • Info.D1492/13 - On the 11^th day of January 2011 at Savalalo steal ST$200.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa, and
  • Info.D1493/13 - On the 12^th day of January 2011 at Savalalo steal ST$700.00 in money, the property of Iokapeta Maeli female of Nuusuatia and Moataa.
• 5 The defendant also faces eight alternative counts of defrauding the complainant by obtaining from her certain sums of money through false pretences pursuant to S.89 of the same Ordinance. The alternative charges are:
  • Info.D92/12: On the 20^th day of December 2010 at Savalalo with intent to defraud obtained from Iokapeta Maeli $700.00 in money by means of certain false pretence namely “sei faaulu ai pepa malaga,” such representation was known to him to be false.
  • Info.D93/12: On the 21^st day of December 2010 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $500.00 in money by means of certain false pretence namely, “e ave e fai ai pepa fanau,” such representation was known to him to be false.
  • Info.D94/12: On the 28^th day of December 2010 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $1,200.00 in money by means of certain false pretence namely, “e totogi ai le loia o loo faagaioia pepa malaga,” such representation was known to him to be false.
  • Info.D95/12: On the 31^st day of December 2010 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $500.00 in money by means of certain false pretence namely, “sei fai ai lana saofai I Falelima i Savaii,” such representation was known to him to be false.
  • Info. D96/12: On the 10^th day of January 2011 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $700.00 in money by means of certain false pretence namely, “e totogi ai lou pasese,” such representation was known to him to be false.
  • Info. D97/12: On the 11^th day of January 2011 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $200.00 in money by means of certain false pretence namely, “sei fai ai le pasese o lau tama,” such representation was known to him to be false.
  • Info. D98/12: On the 18^th day of January 2011 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $300.00 in money by means of certain false pretence namely, “e faaliliu se tupe ia maua se $200.00NZ e ave e faaali ile ofisa o Niu Sila,” such representation was known to him to be false, and
  • Info. D99/12: On the 12^th day of January 2011 at Savalalo, with intent to defraud did obtain from Iokapeta Maeli the sum of $700.00 in money by means of certain false pretence namely, “e send i lou uso o PJ I Niu Sila o ia lea na te faagaioia le faiga o pepa i Niu Sila,” such representation was known to him to be false.

Evidence

• 6. The complainant said she first met the defendant in October 2010. At the time, she was working at a place in town called ‘Indoors’. She became acquainted with the defendant through her cousin Line Taiofeite. She and Taiofeite lived at Moataa at the time. Taiofeite worked for Blue Sky Ltd at its head office at Maluafou in Customer Services.
• 7 In her evidence, Taiofeite said a man telephoned her at her place of work sometime in the middle of 2010 and introduced himself as Pita. Pita told her he was from Falelima in Savaii. After that first phone call Taiofeite said Pita called her regularly until he eventually became one of her Blue Sky customers. She and Pita became acquaintances through telephone conversations because she never met him in person until much later the same year.
• 8 On an unspecified date in October 2010 the man Talaofeite recognised by voice as Pita phoned her and asked if she could arrange a cell phone for his use. She agreed. But the cell phone she decided to give him was not at her work but at home at Moataa. That is the reason she asked the complainant to take with her to work the next day the phone and charger she had decided to give Pita. She further instructed the complainant that Pita’s brother named Lavi would call at her work to pick up from her the phone and charger.
• 9 The following morning the complainant took with her the phone and charger to work. The same day a man who identified himself to the complainant as Lavi collected the phone and charger from her at work. He apparently told the complainant that his brother Pita was her cousin Line Taiofeite’s man friend. Lavi also asked the complainant for her cell phone number. She gave it to him before he left. Three days later the complainant received a call on her cell phone from Lavi. He said he was calling from Savaii.
• 10 After two weeks had passed, Lavi called her again. This time he asked if she could go and see his brother Pita who was staying at the Tatiana Motel at Fugalei. She did. Before reaching the motel however, she received a call from Pita describing to her what he was wearing for ease of indentifying him when she arrived. Significantly, she said that the number of the cell phone Pita called from which appeared on her cell phone screen was the same number Lavi called her with from Savaii. It appeared also when she arrived at the Motel that Pita who she was meeting for the first time and wearing the clothes he described on the phone looked the same as Lavi who picked up the phone and charger at Indoors. After that day Lavi no longer called her. Only Pita whom she met at the Tatiana Motel did. I will divert momentarily here to Taiofeite’s evidence and then return to the complainant’s evidence later.
• 11 According to Taiofeite, when she agreed to provide Pita with a cell phone, he told her his brother Lavi would pick it up for him. That is why she told the complainant to expect a man by the same name to collect from her the phone and charger at her place of work.
• 12 On another unspecified date still in October 2010 after the complainant had given the phone and charger to Lavi, Taiofeite said the complainant who she was with in front of the Development Bank building in Town pointed Lavi out to her. He was introduced to her that day. He told her he was Lavi, Pita’s brother.
• 13 Later still the same year, Pita called Taiofeite at work and asked her to meet him at the National Bank branch at Fugalei. She agreed and went. Before they met up though, Pita called and described to her what he was wearing so that she could identify him. When she saw the man wearing the clothes Pita described, she felt that the face of the man she was meeting looked the same as Lavi whom she met before in front of the Development Bank building.
• 14 Taiofeite discovered the defendant’s true name only when she saw his picture in the Observer Newspaper. She said that Pita she referred to in her evidence and the man whose picture she saw in the newspaper was the same person.
• 15 Returning to the complainant’s evidence, her and her child’s names were as already mentioned drawn for the NZ Government Immigration Quota sometime in July 2010. The conversations between the defendant and the complainant about the defendant’s help with the travel documents for the trip started only after they met at the Tatiana motel.
• 16 The complainant’s father Li’omatua Tuimavave Tavita Alama was in Samoa the day the money was sent from New Zealand. He arrived in Samoa before the money was sent and stayed with his daughter at their house in Alafua. He said he came to ensure the travel arrangements for his daughter and her child were properly taken care of. He wanted to meet his daughter’s male friend so he could ‘check him out’. He was introduced to his daughter’s friend Pita at Alafua.
• 17 His daughter gave him the impression she had ‘feelings of affection’ for Pita. He said the defendant also told him that his affections for his daughter were reciprocal and true. He himself was further persuaded to let Pita help with his daughter’s travel arrangements because Pita also claimed being in the business of preparing travel documents for those wishing to travel overseas. He said he trusted Pita after he had promised to help his daughter. He identified the defendant as the man his daughter introduced him to at Alafua.
• 18 The morning following the Alafua meeting the money sent from New Zealand arrived. It arrived on the 20^th of December 2010. The amount of the money sent was ST$6090.00 and sent in the name of the complainant. The complainant was accompanied by Pita when she went to the money transfer agency to get the money. That day the complainant said Pita asked her for $700.00 to register the forms at the NZ Office (“e fa’aulu ai forms i le ofisa o Niu Sila”). She gave him the $700.00 he asked for at the Flea Market at Savalalo.
• 19 Pita again asked the complainant on an unspecified date in December 2010 for $500.00 to prepare the birth certificates (“e ave e fai ai pepa fanau”). She gave the defendant $500.00 he asked for again at the Flea Market at Savalalo.
• 20 On the 28^th of December 2010 Pita phoned the complainant and asked for $1200.00 to pay for the lawyer doing the travel documents (“e totogi ai le loia o loo faagaioia pepa malaga”). She gave him the $1200.00 he asked for.
• 21 Pita again phoned the complainant on the 31^st of December 2010 and asked for $500.00 to help with conferring of his matai title (saofa’i) at Falelima in Savaii. She gave him the $500.00 he sought.
• 22 On an unspecified date in January 2011 Pita phoned again and asked for $200.00 to pay for the air fare of the complainant’s child (“se’i fai ai le pasese o lau tama”). She gave him the $200.00 he asked for.
• 23 On another unspecified date in January 2011 Pita also phoned the complainant and asked for $700.00 to be sent to his relative “PJ” in New Zealand who the defendant claimed was helping with the paper work in NZ (“e send i lo’u uso o PJ o ia lea na te faagaioia le faiga o pepa i Niu Sila”). She gave Pita the $700.00 he asked for.
• 24 On yet another unspecified date in January 2011 Pita called the complainant and asked her to prepare a cheque for the sum of NZ$200.00. He told her the cheque was to be shown to the NZ Office (“e ave e faaali i le ofisa o Niu Sila”). The complainant gave Pita ST$300.00 in lieu of money in NZ currency he asked for.
• 25 The complainant furthermore testified that before it appeared she was being duped by the defendant, he texted her several times and asked her to buy cash power top ups for a meter in the name of a person called Tanielu Utumapu at Vaitele. She did not know who Utumapu was but dutifully complied with Pita’s requests. She paid for topping up the units in the cash power meter under the name Tanielu Utumapu several times.

The complainant like her cousin Taiofeite was only able to find out the true identity of the man she knew as Pita when she recognised him in his picture with his daughter published by the Observer newspaper. Both women confirmed as much to the police.

• 26 The defendant vehemently denies any knowledge of the complainant, her cousin Taiofeite and her father Li’omatua T. Alama. He denies ever asking or receiving money from the complainant. He denies ever having met the complainant’s father Li’omatua Alama at Alafua. He also strongly denies texting the complainant for cash power top ups for the cash power meter registered under the name of Tanielu Utumapu. He admitted however in his cautioned statement which was produced by consent and on oath that the cash power meter at his home at Vaitele went not under his name but under the name of Tanielu Utumapu.

Law

• 27 For the defendant to be found guilty on a charge of theft as charged, the prosecution must prove he took the money fraudulently or dishonestly from the complainant with an intention to deprive her of it permanently.
• 28 For the defendant to be found guilty of a charge of obtaining by false pretences the prosecution must prove that each time he obtained money from the complainant his intention was to defraud her by representing to her that the money she was giving him will be used for a purpose he knew was false.

Issues

• 29 For the charges of theft, the first issue is whether or not the defendant on each occasion he is charged took money from the complainant. If he did, the second issue is whether or not he did it fraudulently or dishonestly. If he did it fraudulently or dishonestly, the third issue is whether or not he intended to deprive the complainant of such property permanently.
• 30 For the charges of obtaining by false pretence, the first issue is whether or not the defendant obtained any money from the complainant. If he did, the second issue is whether or not he had an intention to defraud her. If his intention was to defraud the complainant the third issue is whether or not he defrauded her through a representation he made and which was known to him to be false.

Discussion

• 31 Despite the defendant’s strong denials he knew the complainant, I am satisfied from the totality of the evidence heard, the defendant knew both the complainant and her cousin Line Taiofeite. I am equally satisfied the defendant met the complainant’s father Li’omatua Tavita Alama at Alafua.
• 32 The defendant has given no satisfactory explanation why the complainant and her relatives would make up stories to frame him as he claims.

For a start, the complainant’s story that she was befriended by a man she knew as Pita, and who turned out to be the defendant whom she identified from the picture she saw in the Newspaper is supported by the evidence of both Taiofeite and the complainant’s father. The complainant was unequivocal that the number of the cell phone Lavi called her with was the same number Pita used for the same purpose. Notwithstanding therefore the defendant’s attempts to deny the cell phone number which appeared on the complainant’s cell phone screen as his, it does not necessarily follow from such denial that the defendant did not meet the complainant at the Tatiana Motel. It also does not necessarily follow from the defendant’s denial of the cell phone number that he did not ask the complainant for money the complainant claimed she gave.

• 33 In addition, the modus operandi used by the defendant of describing on the phone each time he met the two women for the first time the clothes he wore is consistent and the same. I am unable to consider the manner he used for the two women to identify him on different occasions as merely coincidental.
• 34 The Court finds even stronger support for the fact the defendant knew the complainant from his own admission that the cash power meter at his home registered under the name of Tanielu Utumapu was the same meter the top ups the complainant said she paid for was credited into. Logically, the only connection between the unit top ups the complainant said she paid for and the meter into which the same units were credited was the defendant whose house it was, the meter was located. On its own this evidence might be seen as a coincident. But in the context of the rest of the complainant’s evidence, it is again hardly mere coincidence.

Decision

• 35 The complainant appeared when she gave evidence to be hard working and kind hearted but also somewhat naïve. In my considered view, the defendant in the circumstances of this case took advantage of the complainant’s trust. She undoubtedly developed feelings of affection for him after he skilfully wove his way into her life. Once he knew the complainant felt their relationship was such that he had earned her trust, he knew also then that she was vulnerable. He unashamedly took advantage of and preyed on her vulnerability especially when he knew the complainant was expecting money from her mother in New Zealand.

(a) Theft Charges:

• 36 I do not find the defendant guilty on all eight counts. First, there is no evidence to support the accusation in Information D1491/13 that the defendant took $700.00 from the complainant on the 10^th of January 2011 to pay for her air fare.
• 36 Second, even though there is evidence the defendant took money from the complainant on seven other occasions the prosecution has not discharged the burden of proving that the defendant took the money from the complainant fraudulently or dishonestly on each of the seven occasions he did. Furthermore, there is no evidence from which an inference could reasonably be drawn that the defendant each time he took money from the complainant had the requisite intent to permanently deprive her of her property. For these reasons all the charges of theft against the defendant are dismissed.

(b) Obtaining by false pretences:

• 38 Like the theft charge alleging the defendant took $700.00 from the complainant to pay for the complainant’s air fare on the 10^th of January 2011 there is no evidence to support the corresponding charge in Information D96/12 of obtaining by false pretence on the same occasion for the same amount and purpose. Accordingly Information D96/12 of obtaining from the complainant by false pretence the sum of $700.00 to pay for her air fare is not proven and is accordingly dismissed.
• 39 As for the charge in Information D95/12 alleging that the defendant took from the complainant $500.00 to help with his saofa’i on the 31^st of December 2010, I have taken the view the prosecution evidence falls short of proving the defendant had an intention to defraud the complainant whether or not he was planning a saofa’i and/or whether a saofa’i took place. The reason is because the complainant could have denied the request for the simple reason it was unrelated to the preparations for the trip to New Zealand. In other words, the payment was gratuitous in nature. It was neither related to the trip the defendant was helping out with nor a loan to be repaid back. For this reason I am not satisfied the defendant is guilty of this charge. Accordingly Information D95/12 is also dismissed.
• 40 For the following six remaining charges in Informations D92/12 - $700.00 faaulu ai pepa i le Ofisa o NiuSila on the 20^th Dec 2010, D93/12 - $500.00 e ave e fai ai pepa fanau on the 21^st December 2010, D94/12 - $1200.00 e totogi ai le loia o loo faia pepa on the 28^th December 2010, D97/12 - $200.00 se’i totogi ai le pasese o lau tama on the 11^th Jan 2011, D98/12 - $300.00 mo le siaki NZ$200.00 on the 18^th Jan 2011and D99/12 - $700.00 e lafo mo PJ i Niusila on the 12^th Jan 2011, I have little difficulty in finding the defendant guilty as charged on each count. This is because the prosecution evidence is overwhelming to the extent the defendant obtained money from the complainant with an intention to defraud her by representing to her on each of the six occasions a specific purpose for which the money he took from her was for, knowing such purposes were on each occasion false.
• 41 The defendant is accordingly found guilty of the charges of obtaining from the complainant by false pretences in Informations D92/12, D93/12, D94/12, D97/12, D98/12 and D99/12.
• Judge Vaepule Vaemoa Vaai