Police v Senara [2019] WSDC 2 (4 July 2019)

DISTRICT COURT OF SAMOA
Police v Senara [2019] WSDC 2

Case name:	Police v Senara
Citation:	[2019] WSDC 2
Decision date:	4 July 2019
Parties:	THE POLICE (NPO) v REVEREND TAUTIAGA SENARA AND OTHERS (ministers of religion)
Hearing date(s):	1 – 3 July 2019
File number(s):	D4134/18.D4135/18.D4136/18.D4137/18.D4138/18.D4139/18.D4140/18. D4141/18.D4142/18.D4143/18.D4144/18.D4145/18.D4146/18.D4147/18. D4148/18.D4149/18.D4150/18.D4151/18.D4193/18.D4194/18.D4195/18. D4196/18.D4197/18.D4198/18.D4199/18.D4200/18.D4201/18.D4202/18. D4203/18.D4204/18.D4205/18.D4206/18.D4207/18.D4208/19.D4209/18. D4210/18.D4211/18.D4212/18.D4213/18.D4214/18.D4215/18
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	- I therefore conclude applying both approaches in R v Galbraith (1981) 73 Cr App R 124 p.127 and Auckland City Council v Jenkins [1981] 2 NZLR 363, p.365 that there is no case to answer in respect of both charges against each of the twenty (20) individual accused.
Representation:	Mr A Tumua and Mr Talouli for prosecution Mr A Su’a and Ms Faasili for accused
Catchwords:	No case to answer
Words and phrases:
Legislation cited:	Income Tax Act 2012, 93A(3) Tax Administration Act 2012, s. 70(1)
Cases cited:	Police v Toamua [2015] WSSC 50 (19 May 2015)
	Attorney General v Tavui [2014] WSCA 3,
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE (NPO)
Prosecution

A N D

REVEREND TAUTIAGA SENARA AND OTHERS (ministers of religion)
Accused

Counsel:

Mr A Tumua and Mr Talouli for prosecution

Mr Su’a and Ms Faasili for accused.

Decision: 4 July 2019

DECISION OF DCJ SCHUSTER

The charges

1. I had handed down my oral ruling on the 4 July 2019 as to the application of no case to answer submitted by Mr Su’a on the 3 July 2019 and indicated that my reasons will be provided at a later date. I now provide written reasons for my ruling.
2. The twenty (20) accused are individually charged with 2 charges. The first charge relates that “on 15 February 2018, 15 March 2018, 16 April, 15 May 2018 and 15 June 2018 the abovenamed defendants who, without reasonable excuse, failed to file salary and wage tax return by the aforementioned due dates pursuant to section 93A(3) of the Income Tax Act 2012, thereby committing an offence against section 70(1) of the Tax Administration Act 2012.
3. The second charge states that “on 15 February 2018, 15 March 2018, 16 April, 15 May
   

2018 and 15 June 2018 the abovenamed defendants failed to withhold tax (excluding penalties) under section 93(3) of the Income Tax Act 2012 thereby committing an offence against section 71(a) of the Tax Administration Act 2012.

4. The prosecution called three witnesses: (1) Matafeo Avalisa Viali Fotuali’i, CEO of the Ministry of Revenue (hereinafter referred to as CEO); (2) Siaana Ioane Laumatia, ACEO - Ministry of Revenue; and (3) Ian Filemu – ACEO Enforcement and Collections, Ministry of Revenue.

Submission of no case to answer

5. At the end of the evidence for the prosecution, defence counsel made a submission of no case to answer in respect of both charges against all 20 accused. Mr Su’a submits that there was no evidence by the prosecution to identify any of the twenty (20) Defendants individually nor was there evidence to prove that that the defendants were Ministers of Religion. Mr. Su’a further submits that even if there were evidence of identification of his clients, the evidence was so weak and vague taken at its highest is such that a jury or judge sitting alone properly directed could not properly convict on the evidence.
6. The approach adopted and applied by this Court to a submission of no case to answer in a trial before a panel of assessors is well established in Samoa applying the English Court of Appeal case of R v Galbraith (1981) 73 Cr App R 124. For Samoan cases, see Police v Ah Sui [1999] WSSC 37; Police v Senio [2000] WSSC 7; Police v Pouvi [2000] WSSC 43; Police v Meli [2000] WSSC 56; Police v Nauer [2007] WSSC 39; Police v Samau [2010] WSSC 106 and the Court of Appeal in Attorney General v Kolio [2008] WSCA 7, paras 24, 25; Attorney General v Taioalo [2010] WSCA 3, para 4; and Attorney General v Tavui [2014] WSCA 3, para [24].
7. Defence counsel challenges the Informants case on the first element that there was no evidence at the close of the Informants case leading to the identification of the defendants as ministers of religion thereby deeming them as taxpayers. Defence counsel further argued that even if there was evidence leading to the identification of the accused persons, he submits that the prosecution’s evidence, taken at its highest, could not properly lead to a conviction of the 20 accused persons on both charges against them. As this is a Judge alone trial, I would refer to Police v Sione [2001] WSSC 8 where the Supreme Court referred to the Auckland City Council v Jenkins [1981] 2 NZLR 363 and Police v Toamua [2015] WSSC 50 (19 May 2015) which were cases concerned with criminal proceedings before a Judge alone and a submission of no case to answer.

The evidence

8. The evidence is straight forward so far as the prosecution decided to approach this case. The CEO testified that she has been with the now called Ministry of Revenue (hereinafter referred to as “MOR”) for 27 years. She was involved with the consultations for the amendment of the Income Tax Act 2012 (ITA) and Tax Administration Act 2012 (TAA) so far as to remove the category of “ministers of religion” from exemption since 1974 as taxpayers and to include them under the ITA. The review and consultations commenced in July 2016. The relevant amendments to the ITA was passed in June 2017 and came into force in January 2018.
9. Since the coming into force of the relevant amendments, by the end of May 2018 less than 10 ministers of religion from the Congregational Christian Church of Samoa (CCCS) had complied despite consultations and reminders undertaken by MOR. MOR sought from the CCCS to voluntarily submit a list of names of the CCCS ministers of religion or “faifeau tausi nuu” (FTN) but never eventuated. The MOR however obtained “a list of names” from an unnamed source. The source was not called by the Informants. The CEO’s evidence under examination in chief did not refer to the individual identification of any of the 20 accused persons.
10. Under re-examination by Prosecuting counsel, the CEO only testified identifying “... taitai o le susuga ia Senara ...” as having been present in awareness programs but prior to charges being laid. The second witness for the prosecution Ms Siaana Ioane Laumatia a fourteen years public servant as MOR-ACEO Tax Payers Services. Siaana testified when asked by the Court whether she knew Reverend Faauuga Matautia on Exhibit P2 page 4, her response was:

HH Ile assign-ina o tax numbers ia, sei silasila ane ile pepa lea, sei vaai ane ile itulau 4,

Wt Ia

HH Rev. Faauuga Matautia,

Wt Ia maua atu

HH E te silafia lea tagata

Wt Leai lau afioga

HH Ete leiloa

Wt Sao lelei lava

HH Ete lei vaai foi iai

Wt Leai”

11. Prosecutions third witness was Ian Filemu, ACEO Collection and Enforcement. Ian tendered Exhibit P5 (1 – 20) for the Prosecution which are individual demand letters all dated 28 August 2018 and allegedly sent out to the all the defendants. When asked by the court as to his knowledge of one of the names on Exhibit P5, he testified:

“HH Ian sei vaai ane ile pepa lea P5(1) Rev Ioane Petaia, ete silafia lea tagata.

Wt Lau afioga e leai.

HH Ete silafia pe leai.

Wt Leai.

HH Ole tusi lea o oe na kilivaina, le tusi lea ia Ioane Petaia.

Wt Lau afioga e leai.

HH E le o oe

Wt E leai.

HH Ae a uma isi tusi ia e iai I pepa nei.

Wt E mafai na ou tali atu sa ou vaai I nisi ile kilivaina o tusi.”

12. Counsels for the Prosecution and defendants were given the opportunity to ask any questions arising from the courts questions above but both counsels declined.

Discussion

13. I find the prosecution’s evidence on identification very vague and not sufficiently specific that taken at its highest is such that a jury properly directed could not properly convict on it. There was no evidence corroborating the evidence of the CEO, Siaana and Ian from the MOR officers who actually went out and allegedly obtained personal details relating to the 20 defendants. The CEO, Siaana and Ian testified that the personal details of the defendants were obtained from their “source” but the source was never called.
14. The Prosecution tendered Exhibits P3, P4 and P5 allegedly containing the names of the defendant and their allocated unique tax numbers. However, the prosecutions own evidence from Siaana and Ian showed that the personal details were not voluntarily obtained from the defendants themselves. In fact, there was no evidence as to how the information was obtained only that MOR officers went out and returned with information but were not called as witnesses.
15. Consequently, the CEO, Siaana and Ian could not make any evidential link in relation to Exhibits 3, 4 and 5 and the alleged 20 defendants. As His Honor the Chief Justice stated in Pol v Toamua, it makes it difficult to link the evidence together in a meaningful and effective way.
16. I therefore conclude applying both approaches in R v Galbraith (1981) 73 Cr App R 124 p.127 and Auckland City Council v Jenkins [1981] 2 NZLR 363, p.365 that there is no case to answer in respect of both charges against each of the twenty (20) individual accused.

Mata’utia Leota Raymond Schuster

District Court Judge