Police v Fonoti [2017] WSDC 18 (24 July 2017)

THE DISTRICT COURT OF SAMOA
Police v Fonoti [2017] WSDC 18

Case name:	Police v Fonoti
Citation:	[2017] WSDC 18
Decision date:	24 July 2017
Parties:	POLICE (Prosecution) v EMELINE FONOTI, female of Apia and Malololelei (Defendant)
Hearing date(s):	03 July 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa RosellaViane Papalii
On appeal from:
Order:	- Prosecution has not proven beyond a reasonable doubt the elements of receiving for which the Defendant is charged. - Accordingly Defendant is found not guilty of the offence and the charge against her is dismissed.
Representation:	I Atoa for Prosecution P Mulitalo for Defendant
Catchwords:	Receiving Stolen Property
Words and phrases:
Legislation cited:	Crimes Act 2013 sub section . 167 (1) & 168 (a) NZ Crimes Act 1961. sub section.246 (1) (3) and 247 (a) Sentencing Act 2016
Cases cited:	Cullen v R [2012] NZCA 413 at 23 Marino v Police [2017] NZHC 1348 R v Lucinsky [1935] NZLR 575 Smith v Police [2016] NZHC (25 October 2016) Robertson Finn, Adams on Criminal Law (2013 Student edition
Summary of decision:

THE DISTRICT COUR OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

EMELINE FONOTI, female of Apia and Malololelei
Defendant

Counsel:
Ms I Atoa for Prosecution
Mr P Mulitalo for Defendant

Hearing: 03 July 2017
Judgment: 24 July 2017

RESERVED DECISION OF JUDGE ALALATOA PAPALII

THE CHARGE

1. The Accused, Emeline Fonoti (“Emeline”) in the amended information^[1] is charged under ss. 167 (1) & 168 (a) Crimes Act 2013 that on 18 October 2016, she received 20 2 x 3 timbers valued at ST$30.00 each, and 25 2x8 timbers valued at ST$78.00 with a total value of ST$2550.00 and that she was reckless as to whether or not the property had been stolen or so obtained.
2. Emeline pleaded not guilty to the charge on 6/12/16 and the matter proceeded to hearing on 3/07/17. Counsel requested time to file submissions and this was received on 5/07/17. I delivered my conclusions on 24/07/17 and this is the full reasoning

LAW

3. Section 167 (1)& 168 (a) provides as follows

“167. Receiving – (1) A person commits the offence of receiving who receives any property stolen or obtained by any other crime knowing that property to have been stolen or so obtained or being reckless as to whether or not the property had been stolen or so obtained.

(3) The act of receiving any property stolen or obtained by any other crime is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession or control over the property or helps in concealing or disposing of the property.

“168. Punishment of receiving – A person who is guilty of receiving is liable as follows:

If the value of the property exceeds $1000 to imprisonment for a term not exceeding 7 years.”

4. The above provision mirrors that of ss.246 (1) (3) and 247 (a) of the NZ Crimes Act 1961.
5. The law governing crimes of the nature is set down in the NZ Court of Appeal case of Cullen v R ^[2]where it said that the elements of the offence prosecution must prove beyond a reasonable doubt are:
   1. There was stolen property;
   2. The Accused received from someone the relevant property ;
   100. At the time the Accused received the property, he or she knew that it had been stolen or dishonestly obtained or was reckless as to that possibility. The category that the property falls into by value must be identified
6. In regards to the first element, the property must have been obtained by some other crime such as theft. For the second element the property received must be from someone else, either the person who stole it or someone other than the receiver, and it must be the property stolen not some other item for which the property stolen was exchanged for.^[3]
7. In regards to recklessness as alleged here, Cullen^[4] explained as follows:

“The second issue concerns proof of recklessness. This is the basis on which the crown put its case in the indictment. If an accused does not know that the property has been stolen, to be guilty of receiving stolen property, he or she must be reckless as to whether or not the property had been stolen or so obtained. In context the element of recklessness does not appear to have been considered judicially by this Court. Generally the concept of the term recklessness is regarded in NZ criminal law as a conscious taking of an unreasonable risk a complete indifference about where the goods were or were not stolen would itself be enough if seem reasonably clear that someone receives property, the source of which is unknown, then a conscious risk is taken in determining not to make further inquiries”

8. Adams on Criminal Law^[5] had this to say about recklessness:

“The circumstances commonly relied upon as evidence of guilty knowledge include purchase at a gross under value, secrecy in the receiving, receipt at unusual time or place, or in an unusual way, concealment of goods, removal of identification marks or lying statements as to the source f the goods and date of acquisition. While no one of this will necessarily be conclusive, they are matters which the Judge or jury could take into account and some combination of them may establish, to a sufficient standard the necessary knowledge or recklessness.”

9. The above principles have been followed in a number of NZ cases including Smith v Police.^[6] Recently in the case of Marino v Police [2017] NZHC 1348 a judgment of Gendall J, he reiterated the elements that must be proven as follows:

“The three elements of receiving under s.246 CA 1961

1. The property was stolen (or otherwise illegally obtained)
2. The defendant received the property from another person; and
3. The defendant received the property knowing it to be stolen (or obtained illegally) or being reckless to that possibility.
4. Prosecution must also allege and establish the value of the property received as that value determines the maximum penalty available”

THE EVIDENCE

Prosecution

10. Prosecution called one witness, Timusolia Sila of Matautu Falelatai (“Timusolia”) and currently unemployed. He testified he used to work as a hammer hand for a Chiinese company (“the Company”) could not quite recall the name of the company. I understand this is also the victim.
11. He commenced working there on 19/08/16. At the time of the incident, the subject of the offence, the company was constructing a project for a customer by the name George Stowers at Vailima (“the Site”)
12. Prior to 18 October 2016 the date of the incident, he and others were allowed to sleep over night at the site. But on this particular date, they were forbidden from doing so due to alleged missing items from the site. So he asked “Siona” whom I take to be the co-accused who is still on the run at the moment, if he could spend the night at his house at Fagalii as he had no bus fare to go home to Falelatai.
13. After work at about 5 to 6pm, he and Siona were dropped off by their foreman at Malifa where Siona coaxed for them to return to the site to steal some stuff. He said he pleaded with Siona three times not to do so. But at the end, he willing went with Siona to the site. He said this was at about 12am to 1am.
14. Not long after they arrived on site, a phone call was received by Siona and he overheard him talking to someone. A few minutes later, a white Dyna truck (“the Truck”) pulled up driven by a person he later identified as Emeline.
15. He, Siona and Emeline then loaded the truck with timber. At first he said all timber were new and he saw about 20 2x 8 and 25 2 x 3 timbers being loaded on the truck. Later, in his evidence in chief, he changed his evidence and said the 2x8 timber was old and used as planks for the scaffolds.
16. In regards to the 2 x 3s he told the Court that he saw 20 2 x 8 earlier that day during working hours which the person he referred to as the “saiga” delivered. Asked about the name he did not know.
17. According to Timusolia, after the truck was loaded he and Siona accompanied Emeline to her house at Malololelei. Siona sat at the front of the truck with Emeline driving whilst he sat at the back on the tray. After they unloaded the items at Emeline’s house, he and Siona then left and Siona gave him $100.
18. During cross examination and questions from the Court, his evidence swayed and he said he was unsure about the number of timber taken. For 2 x 3 he said maybe 20 and he remembers this because Siona had unloaded the load the “Saiga” brought and he overheard him count 20 2x 3s. But at the time they loaded the truck he was uncertain about the approximate number.
19. He confirmed he saw Emeline collecting off cuts or what is referred to in the evidence as “lapisi”. He was asked to give an approximate description of a 2x3 and 2 x8. For 2 x 3 it was about 2 inches in length and an inch for the width and about 17 feet long. The 2 x 8s were not of the same length as some shorter than others as these were planks for the scaffolds.
20. He was also asked about the price allocated to each 2x 3 and 2x 8 and he confirmed he had no idea what the price for each item should be.
21. He was also questioned about his two statements to Police; one done on 25/10/16 where he denied any liability or knowing anything as he was not at Vailima with Siona on 18/10/16 and another taken on 27/06/17 where he described in detail the incident on 18/10/16. Questioned about the different versions he admitted under oath he lied in his first statement as he was scared. But he insisted he was at Vaiima on 18/06/16. But on the next day the “Saiga” came and took him to Vaiusu.
22. Timusoloia was convicted and fined in the Supreme Court for theft as a servant.

Defence

23. The defendant elected to give evidence. She said that on 16/10/16 she received a call from Siona regarding what she called (“lapisi”) the workers wanted to sell for $700. She told him she was not interested. The next day he rang again and she told him she did not need these.
24. On 18/10/16 she again received a call from Siona in the evening again asking her if she could buy the “lapisi” as he and his work mates needed to get rid of the “rubbish” as their job was near completion.
25. Emeline told the Court she believed Siona as in her experience having run a construction company with her deceased husband, they usually give away to their workers the off cuts to use. She believed Siona when he said it was for the workers.
26. I am very mindful that Siona was not called by Police to give evidence and this was basically hearsay.
27. In any event, according to Emeline, on the basis of the conversation with Siona, she then made her way to the site having received directions. When she arrived at the site, the gate was open and saw two men there. The time according to her recollections was about 7.30pm to 8pm.
28. She said she could still see clearly around the site. She observed the building was nearly finished and it seemed the company was working on double walling. There was a pile of “lapisi” of irregular sizes and some were broken. She explained irregular as meaning knotted and could not be used for any building as it would easily break.
29. Emeline also told the Court that at the time she was building her house and purchased her own 2 x 8 timber. She had completed the structure of her house including the ceiling which used the 2 x 8s but she had no need for 2 x 3s. But she knew she could use the off cuts she for form work. The two men she rode with to her house off loaded the load then she gave them $700 and dropped them off.
30. According to Emeline she received the 2 x 8s used for scaffoldings but not the 17 feet long 2 x 3s described by the witness Timusolia. She consistently said that what she did receive were broken 2 x 3 of various length. But she also said she bought her own new 2 x 3s stacked on the side of the house and had given Police receipts for these.
31. According to her evidence, Police had confiscated her timber as well.

DISCUSSION

32. Essentially this matter boils down to the issue of whether all elements of offence have been proven beyond a reasonable doubt and the credibility of the witnesses.
33. Having heard both sides, I prefer the evidence of Emeline. I must say I was not impressed with the evidence of Timusolia. He was shifty and inconsistent. It did not help that he was an accomplice.
34. On the first element, this is met as the property at stake was stolen. Siona and Timusolia were both charged in the Supreme Court. Siona is on the run but Timusolia has already been sentenced with a fine. So the property was obtained by the crime of theft committed by Siona and Timusolia. The latter’s conviction confirms this.
35. In terms of the second element, Emeline did receive the stolen property but not as particularised by the Prosecution in the charge.
36. As to the third element, I am not satisfied beyond a reasonable doubt that Emeline knew the property was stolen or that she was reckless as to whether or not the property was stolen or so obtained. I explain this below.
37. Prosecution argued that Emeline ought to have known the property was stolen but she consciously took an unreasonable risk in receiving the items without further inquiries. Prosecution relies on the manner and timing of the pickup, the secrecy in the telephone communications, the failure by Emeline to make further enquiries with the company rather she took Siona’s word as gospel, the undervalued cost paid for the timber and the fact Emeline was building her own home which implied she benefited in that sense.
38. With respect, I am far from satisfied on the evidence adduced this element is met. As I said above, I prefer the evidence of Emeline to that of Timusolia. Emeline consistently told the Court that she thought all along Siona and his partner in crime, Timusolia had permission to sell her the off cut timber. She paid them money for it. She believed that Siona and his workmates owned the off cuts as from her own personal experience when she ran their construction company with her husband they also gave away the off cuts from their projects to their workers. So when Siona induced her to buy the off cuts she fell for it.
39. There is other evidence which can be inferred as rendering support to the belief Emeline had and why she was not suspicious. Firstly when she arrived at the site, the gate was unlocked and opened. Had the gate been locked, it could have raised alarm bells. She drove the truck onto the site. The pick up was from the site so I accept there was probably no need for Emeline to be suspicious. According to Emeline there was already a pile (she referred to this as “heap”) of “lapisi”) so she, Siona and Timusolia loaded the truck.
40. Emeline was able to see clearly around the site and could observe the building was up to double walling and nearly finished. She was also able to see the irregular sizes of the wood and even the knots she noted on some of them. This infers that the pick up time she testified to of around 7.30pm to 8pm would have been more believable as opposed to 12am to 1pm as Timusolia testified. At the time too it was daylight savings.
41. I find that the Emeline was not reckless at all. If anything she was conned by Siona and suffered as a consequence. I accept that having resided overseas for a number of years she naïvely believed Siona when he said the “lapisi” belonged to the workers. I am sure that if she had an ounce of an idea or suspicion she would not have parted ways with her $700 she paid in good faith to Siona and Timusolia.
42. Apart from the above, one important elements of the offence is for the Prosecution to allege and establish the value of the property received as it determines the maximum penalty available^[7]. But the Prosecution also failed on this point.
43. Emeline confirmed in her evidence she received 2 x 8s but not the number particularized. Furthermore these were old and used. As for the 2 x 3s she did receive some but of various irregular lengths.
44. Timusolia guessed the number of 2 x 3s and 2 x 8s loaded on the truck to be about 20 and 25. But then he later recanted and admitted he neither counted nor recall the approximate number. He had no idea what the price for each item was.
45. On Timusolia’s evidence alone, I find it highly suspect that he changed his statement to Police at the last hour with the latter statement canvassing more specific details. He admitted he lied to police on the first occasion but told the truth in the latter statement. On that admission, I have every reason to doubt the truthfulness of his evidence.
46. Apart from the above, he was shifty during cross examination and his description of the sizes and approximate number of the so called timbers loaded on the truck raises a reasonable doubt in my mind. At best his evidence was mainly speculative based on guess work and therefore unreliable. The Court simply cannot rely on his sole evidence to prove this charge against Emeline.
47. Police could have done more for this case, including calling the complainant to give evidence to give the approximate number of timber ordered and delivered to the site, a tally of the timbers used and those left by the end of day on 18/10/16.
48. Also, receipts could have been produced to confirm the price of the timbers but this was not done. No photos were produced of the site and timbers allegedly stolen. But Police relied solely on Timusolia’s evidence to substantiate the charge.
49. Timusolia however does not know anything about this as he is a hammer hand. It might have helped if one of his duties included tallying the orders received on site. But he clearly told the Court he is a hammer hand and he did not count the order. So I simply cannot accept his speculations on the number of 2 x 3s brought on site and those loaded on Emeline’s truck.
50. Furthermore his evidence is the 2 x 8s were old planks of wood used for scaffolds but again he could not recall the approximate number loaded on the truck. So the price allocated for this item particularized on the information is highly inaccurate. Timusolia quite rightly said he knew nothing about the price for the items.
51. As set out above, it is crucial that the Prosecution prove each element of the offence of receiving. They have not done so.

CONCLUSION

52. Prosecution has not proven beyond a reasonable doubt the elements of receiving for which Emeline is charged.
53. Accordingly Emeline is found not guilty of the offence and the charge against her is dismissed.
    

JUDGE ALALATOA ROSELLA VIANE PAPALII

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^[1] Amended by consent on 3/07/17
^[2] Cullen v R [2012] NZCA 413 at 23
^[3] Adams on criminal Law (2013 Student edition); also see R v Lucinsky [1935] NZLR 575 for comparison
^[4] Supra n 2
^[5] Ibid at CA.246.05 pg 395
^[6] Smith v Police [2016] NZHC (25 October 2016)
^[7] Robertson Finn, Adams on Criminal Law (2013 Student Edition) at 393