Police v Malu [2015] WSDC 2 (30 March 2015)

DISTRICT COURT OF SAMOA
Police v Malu & Vaili [2015] WSDC 2

Case name:	Police v Malu & Vaili
Citation:	[2015] WSDC 2
Decision date:	30 March 2015
Parties:	POLICE (Informant) v VAILI MALU & SUITUPE VAILI male and female of Faleula-Uta (Defendants)
Hearing date(s):	13 March 2015
File number(s):	D3036/14 , D3038/14
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata Keli Tuatagaloa
On appeal from:
Order:	I find Suitupe Vaili guilty of the offence of obtaining by deception. I find Vaili Malu also guilty of the offence of obtaining by deception by way of s.33(2I find information D3034/14, D3035/14, D3036/14 and D3038/14 proven beyond reasonable doubt against both defendants Vaili Malu and Suitupe Vaili. I dismissed information D3037/14 as there was no text from mobile [phone] to Eterei Faatupunuu’s digifix 8485438 on 2 September 2014 recorded on Exhibit P1.
Representation:	Superintendent Leulua’i for Prosecution Mr Pau Tafa Mulitalo for Defendants
Catchwords:
Words and phrases:	obtaining by deception – causing loss by deception
Legislation cited:	Crimes Act 2013 s 172(1)(d), s 172(2)(c), s 173(c), s 33(2); Crimes Ordinance 1961 s 96; New Zealand Crimes Act 1961 s 240(1)(a), s 240(1)(b), s 240(1)(c), s 240(1)(d); s 66(1)(a), s 66(1)(b), s 66(1)(c), s 66(1)(d), s 66(2).
Cases cited:	R v Morley [2009] NZCA 618 R v Curtis [1987] NZCA 230; [1988] 1 NZLR 734 (CA) R v Zanini [1967] SCR 715.
	R v Nathan [1981] 2 NZLR 473.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

VAILI MALU and SUITUPE VAILI
male and female of Faleula-uta.
Defendants

Counsel:
Superintendent Leulua’i for Prosecution
Mr Pau Tafa Mulitalo for Defendants

Hearing: 13 March 2015.

Decision: 30 March 2015.

DECISION OF DCJ TUATAGALOA

The Charges:

1. The defendants are jointly charged with five (5) counts of obtaining by deception or causing loss by deception under section 172 (1)(d),(2)(c), section 173(c)& section 33(2) of the Crimes Act 2013 as follow:
   • D3034/14: 1 September – 20 September 2014 cause the loss of $210 by deception
   • D3035/14: 1 September – 20 September 2014 cause the loss of $200 by deception
   • D3037/14: 2 September 2014 cause the loss of $100 by deception
   • D3036/14: 3 September 2014 cause the loss of $250 by deception
   • D3038/14: 22 September cause the loss of $300 by deception

The Background:

2. The victim/complainant knows both defendants. She got to know the female defendant Suitupe Vaili when Suitupe’s nephew was being healed (fofo) by the victim’s grandmother. Vaili Malu the male defendant is Suitupe Vaili’s husband.
3. The victim/complainant is from Laulii and was in a de facto relationship with a man named Tommy Skelton who since 2012 is now in a de facto relationship with a woman named Lagi who happens to be very (or used to be) good friends with the defendants.

The Evidence:

4. The Prosecution called four (4) witnesses and defense called three (3) with both defendants also opted to give evidence.

Maima Samau:

5. Maima Samau who handles complaints for the mobile company Digicel and is the company liaison with the Ministry of Police provided the court with details for mobile number 7735788 from their Customer Records Management System (CRM) (refer EXH P1). The records confirmed that mobile number 7735788 is registered to Suitupe Mose of no known address. The records provided 7735788 activities for the month of September 2014 to which the charges related.
6. Maima gave evidence that when a customer reports a lost mobile phone, they first verify the person’s name to confirm that he or she is the registered owner according to the company’s records. Once verified they then asked the customer whether they want the lost number blocked. She said there was no record found on their system of 7735788 having been reported lost.

Eterei Faatupunuu:

7. Eterei Faatupunuu is the victim/complainant in this matter. Her evidence is that she received several texts in the month of September 2014 to her phone number 8485438 from mobile number 7735788. The texts seemed to be from Tommy Skelton and it always asked for money and for such monies to be given to Suitupe Vaili. Every time she received a text she went and personally gave the money to Suitupe as follows:
   • $210 – between 1 September – 20 September. She gave money to Suitupe at NPF Plaza.
   • $200 - between 1 September – 20 September 2014. She gave it to Suitupe at the Savalalo Market with Vaili present.
   • $250 – 3 September 2014. She gave it to Suitupe at the Taufusi Market with Vaili present
   • $80 – 9 September 2014. She gave it to Suitupe at Taufusi Market.
   • $300 – 22 September 2014. She gave it to Suitupe at the Savalalo Market with Vaili present.
8. Eterei said that her mother towards the end of September found out about the monies she was giving and beat her. She received a text from 773 5788 still thinking it was Tommy telling her to go with her baby to Suitupe’s family at Faleula and he will come there after work. She went with her baby and they only stayed at Faleula with the defendants for about a week. She testified that Vaili at one day told her to look in Suitupe’s phone and she would come across Lagi’s (who is now living with Tommy) number, to call the number and she would find out where Tommy is. Vaili told her to go back to her family at Laulii and he would come there and tell her everything.

Tommy Skelton:

9. Tommy confirmed that he had a relationship with Eterei Faatupunuu and that they have a son. He told the court that he left Eterei in 2012 and he had never been in contact nor seen her until outside court in the morning of the trial. He confirmed that he is currently in a relationship with a woman named Lagi who was very good friends with the defendants. He said the defendants used to live at Lagi’s family at Vaivase-uta until 2013.
10. His evidence was that he never received any of the monies that Eterei said she gave to Suitupe. He has never used 773 5788 to text Eterei for money nor have any contact with the defendants when they left Lagi’s family at Vaivase-uta in 2013. He only knew of the matter when Eterei’s mother stopped him at Matautu sometimes in 2014 and said ‘ua ou faavaleaina lana tama i mea tau tupe..’ and he told her he did no such thing and told her he does not have a phone. Tommy said that the number 773 5788 was Vaili’s number.

Apelu Maliko:

11. Apelu Maliko is also from Laulii and he stayed with his brother and his wife at Faleula in September 2014. His brother’s wife is a niece of the defendant Suitupe.
12. He testified that Vaili told him when he was cooking (saka) with Vaili that he (Vaili) felt sorry for Eterei and all the money that she had given Suitupe that is being used to buy food for their family.

Seaina Sepulona:

13. Seaina Sepulona is the taxi driver for Togo Aasa taxi Stand from Moataa. He said that he usually takes Eterei to take or drop money off to Suitupe. He could not remember the amounts and the dates they took the money. The only amount he remembers was $300 in September because it was a big amount and it was him who personally gave it to Suitupe. He said Vaili was not present when he gave this money to Suitupe.

Suitupe Vaili:

14. Suitupe Vaili confirmed that mobile [phone] was her number but she lost that phone end of August 2014. She had it replaced with 727 8065. Therefore she denied ever having texted Eterei. She said that she reported her lost phone to Digicel and spoke to someone named Peka who told her that she could not have her number blocked because 773 5788 was not registered to her. This person Peka was never asked by the defense or Maima Samau of Digicel who gave evidence for the prosecution as to whether there was such an employee with Digicel.
15. Suitupe only consented to receiving $300 from Eterei sometime in April 2014 to pay off her loan which she was willing to pay back but Eterei told her not to. She also agreed to receiving $200 from Eterei sometime in September 2014 but said the money was given to her by Eterei to help look after her father who was sick. She testified that she never texted Eterei nor received any money from her or the taxi driver Seaina Sepulona.
16. She implied that it was Tommy that may have been using her lost phone to text Eterei because she was suspecting that Tommy and Eterei were still seeing each other regardless of the fact that Tommy was living with Lagi. She confirmed knowing Eterei when she took her nephew to fofo by Eterei’s grandmother at Laulii.

Vaili Malu:

17. Vaili Malu also testified that 773 5788 was Suitupe’s phone but that she lost it end of August 2014. He said that 727 8065 was his phone and that he does not know how to text but only use it for calls. He told the court that he and Suitupe never received any money from Eterei. He also denied ever saying to Eterei to look in to Suitupe’s phone for Lagi’s number or any of the things that Eterei said in evidence he said to her. Vaili also denied that he said to Apelu Maliko what Apelu said in his evidence that he told him when they were doing the saka.

Aukusitino Mose:

18. Aukusitino Mose is Suitupe’s brother. His house from his evidence is located behind his father’s house whose house is located behind Suitupe’s house. He said that he was at the outside kitchen with Vaili and Apelu in the morning they were doing the saka and never heard Vaili say what Apelu said in his evidence. He confirmed that Apelu stayed at their family for two (2) weeks because his brother is married in to their family.

The Law:

19. Section 172 (1)(d) & (2)(c) of the Crimes Act 2013(‘the Act’) says:
    
    • “172. Obtaining by deception or causing loss by deception – (1) A person commits the offence of obtaining by deception or causing loss by deception who, by any deception:

(a) ...............

(b) ...................

(c) .........................

(d) causes any loss to any other person.

(2) In this section “deception” means:

(a) ...............

(b) ..................

(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.”

20. Section 173(c) provides the penalty for the offence of not more than one
    (1) year imprisonment if the loss caused or the value of what is obtained or sought to be obtained does not exceed $500.
21. Section 172 of the Act differs significantly from its predecessor offence of obtaining credit by fraud (section 96) in the Crimes Ordinance 1961. Section 172 is similar if not the same as section 240 of the New Zealand Crimes Act 1961. Because the Samoa Crimes Act 2013 is fairly recent compared to New Zealand and this is the first time that someone has been charged under section 172 before the District Courts the New Zealand authorities will greatly assist.
22. The leading authority of R v Morley [2009] NZCA 618, [2010] 2NZLR 608 (referred to in Adams on Criminal Law at CA240.01) held at [15]-[16] that:
    • “Section 240 creates two different kinds of offences. First, in subs (1)(a), (1)(b) and (1)(c) there are three similar offences involving the obtaining of property, credit or the execution etc of a document. These first three offences require proof of a defined outcome, that is, the defendant must either obtained ownership, possession or control of something of value. Secondly, subs (1)(d) is a significantly different offence of causing loss by deception. That is, the victim must suffer loss.”
23. The learned authors of Adams on Criminal Law at [CA240.01] state:
    • “The important element is that the defendant must have practiced a deception. The requirement brings into play subs (2) which provide three different forms of deception in subs (2)(a), (2)(b) and (2)(c) all of which require an intention to deceive.”
24. The learned authors went on to say at [CA240.02] that R v Morley [2009] NZCA 618 as to the element of deception in section 240(1)(d) held that:
    • “...while an intention to deceive is needed, there was no requirement that the defendant had deliberately intended to cause the loss. However, some more than trivial loss must be reasonably foreseeable. If the loss arising from a deliberate deception is unexpected and not reasonably foreseeable, the offence is not committed. In this regard therefore subs (1)(d) is an offence of negligence.”
25. The defendants are also charged under section 33(2) of the Crimes Act 2013. Section 33(2) of the Act is “Parties to Offences” and sub-section (2) says:
    • “(2) Where two (2) or more persons form a common intention to carry into effect any unlawful purpose and to assist each other in that object, each of them is a party to every offence committed by any one of them in carrying into effect that unlawful purpose if the commission of that offence was or ought to have been known to be a probable consequence of carrying into effect that common purpose.”
26. Section 33 is in very similar terms with section 66 of the New Zealand Crimes Act 1961, Adams on Criminal Law states at CA66.01:
    • “The provision treats all participants as “parties” and makes them equally liable to the penalties prescribed for the substantive offence. Subsection (1) is the primary provision and covers two general categories of parties: those who commit offences (s.66(1)(a); and those who help or encourage persons who commit offences (s.66(1)(b) – (d). Subsection (2) provides a supplementary basis for determining party liability for offences committed in carrying out a common unlawful purpose.”
27. The learned authors of Adams on Criminal Law state at CA66.23:

“Section 66(2) applies only where there was a ‘common intention’ between the parties ‘to prosecute any unlawful purpose, and to assist each other therein’. If the provision is to be invoked there must therefore be evidence of a common intention to which the accused was a party: R v Curtis [1987] NZCA 230; [1988] 1 NZLR 734 (CA).”

28. Further on at CA66.24 of Adams on Criminal Law the learned authors state:
    • “For secondary liability to arise under s.66(2) there must be proof that one of the parties to the common intention committed the offence charged, although that person need not have been convicted of the offence: R v Zanini [1967] SCR 715. For example if s.66(2) is invoked to sustain a charge of murder in a case involving several persons, the particular elements of murder as charged must be established against one before there is any basis for attaching secondary liability to the others: R v Nathan [1981] 2 NZLR 473. “

Discussion:

29. The evidence is consistent that:
    • Mobile [phone] is Suitupe Vaili’s phone;
    • The defendants know the victim/complainant Eterei Faatupunuu;
    • The defendants also know Tommy Skelton who was in a de facto relationship with Eterei Faatupunuu.
30. The prosecution alleged that the defendants on various days in September 2014 texted Eterei Faatupunuu from mobile [phone] pretending to be Tommy Skelton and asking for money.
31. The defense case is that mobile [phone] was lost at the end of August 2014. Therefore, it could not have been Suitupe Vaili who texted Eterei Faatupunuu in September 2014. As such, the defendants never received any money from Eterei.
32. The charges are from 1 September – 22 September 2014. The texts were received by Eterei on her digifix phone [phone] from mobile [phone]. Some of the texts received by Eterei mentioned the names of either defendant. She said in evidence that she would then go and give the money to Suitupe Vaili and sometimes Vaili Malu was with Suitupe when she took the money.
33. There is evidence before the court which confirmed that mobile [phone] was in use in the month of September 2014. There were calls and texts made from 7735788 to digifix number 8485438. Maima Samau of Digicel told the court that there was no complaint noted on their system of mobile [phone] being lost.
34. The defendant Suitupe Vaili told the court that she does not know Eterei Faatupunuu’s phone number. She also seemed to imply that it was Tommy Skelton who was secretly texting Eterei using her lost mobile number. Tommy told the court that he never got in contact with Eterei when he left her in June 2012. He also told the court that he only became aware of this matter when Eterei’s mother told him sometimes in 2014 and I suspect that it was then that the matter was lodged with the police.
35. The defendant Suitupe told the court that the only amount she received was $200 sometime in September 2014 from Eterei but it was given to her by Eterei to help look after her sick father and a $300 she received in April 2014 for her loan repayment. Other than those two amounts she never received any other amounts from Eterei or taxi driver Seaina Sepulona sent by Eterei.
36. There is the evidence of Seaina Sepulona a taxi driver who either drove the complainant/victim Eterei Faatupunuu to take money to the defendant Suitupe Vaili or he alone would go to take the money to Suitupe. His evidence corroborates the evidence of Eterei Faatupunuu. Their evidence is that the money was always given or received by Suitupe sometimes with Vaili Malu present.
37. I believe the defendant Vaili Malu that he does not know how to text using the mobile phone. I believe the evidence of Apelu Maliko that Vaili said what he told the court. This evidence is consistent with what Eterei said of what Vaili was trying to tell her.
38. I find the witness Suitupe Vaili not a credible witness. Her evidence is implausible. Suitupe knew how Eterei still feels about Tommy Skelton because she told the court that Eterei shared to her about Tommy.
39. For Vaili Malu to be found a party in terms of s.33(2), it is crucial for the prosecution to show beyond reasonable doubt that there was ‘common intention’ formed between Vaili Malu and his wife Suitupe Vaili ‘to prosecute any unlawful purpose and to assist each other therein’.
40. I find that there was common intention between the defendants for Suitupe to text Eterei Faatupunuu pretending to be Tommy Skelton and asking for money. The defendant Vaili Malu knew what his wife was doing. The witness Apelu Maliko testified to what Vaili said to him that he (Vaili) felt sorry for Eterei and all the money that she has given being used to buy food for his family. Eterei also testified of what Vaili said to her implying what was going on or what Suitupe was doing. There is also the evidence that he was mostly present when the money was being dropped off with his wife Suitupe Vaili.

Conclusion:

41. I find that mobile [phone] was not lost but that Suitupe Vaili was using it to text Eterei Faatupunuu pretending to be Tommy. I find Suitupe Vaili guilty of the offence of obtaining by deception.
42. I find Vaili Malu also guilty of the offence of obtaining by deception by way of s.33(2).
43. I find information D3034/14, D3035/14, D3036/14 and D3038/14 proven beyond reasonable doubt against both defendants Vaili Malu and Suitupe Vaili.
44. I dismissed information D3037/14 as there was no text from mobile [phone] to Eterei Faatupunuu’s digifix 8485438 on 2 September 2014 recorded on Exhibit P1.
    

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