Police v Samau [2010] WSSC 106 (5 October 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

SEMI SAMAU,
male of Lotopa
Defendant

Presiding Judge: Justice Slicer

Counsel: L Su'a-Mailo and L Taimalelagi for prosecution
S Perese and S Tuala for defendant

Hearing: 23-30 September, 1, 4 and 5 October 2010
Ruling: 5 October 2010

Charge: Theft As A Servant, Forgery and Falsifying Documents

RULING OF SLICER J
(no case to answer application)

1. The defendant has submitted that there is no case to answer in relation to fifteen informations alleging acts of dishonesty involving conduct as the legal officer of a financial institution.

2. The traditional approach is that before an issue can be submitted to assessors, the trial Judge must be satisfied that there is sufficient evidence in support of the proponent's contention for their consideration and, if the Judge is of the opinion that the evidence is insufficient, the Judge must decide the issue in favour of the opponent. In criminal cases, whether tried summarily or with assessors, the defendant is not put to election before a ruling is made on a 'no case submission'.

3. The test is whether there is no evidence upon which the assessors could lawfully convict. In Samoa, where many trials are conducted by Judge alone, the test is the same. The question is whether the person or collective body responsible for the verdict could return a verdict of not guilty. It is not based on the question of weight of evidence or whether a verdict is unsafe given that weight. Despite some English authority, since recanted, it is not based on whether the evidence is unreliable or a belief that some of the witnesses may be lying.

4. In Doney v R [1990] HCA 51; (1990) 171 CLR 207, the High Court of Australia stated:

"If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the factors. That would be contrary to law."

5. The law in Samoa is as stated by the Court of Appeal in Attorney General v Kolio and others WSSC CA 03/08. In determining a submission of 'no case to answer' it is not appropriate for a trial Judge to make credibility choices between conflicting witnesses unless the evidence of a witness is so patently obscure that it is beyond disbelief. The Court followed the English decision in R v Galbraith 1981 73 Cr. App. R 124, a case consistent with Doney (supra). The question is whether, taken at its highest, the evidence could have properly led to a conviction by a properly directed panel of assessors or in the case of trial by Judge alone, the finder of facts.

6. I reject the submission that Kolio is authority for the proposition that there are separate tests for a trial by assessors and one held by a judicial officer alone.
   
7. I do not accept that the test of a .summary trial is that based in the discarded English test of unsafe or unsatisfactory verdict.
   
8. That statement of principle applies to summary trials.
   
9. In this case, there are fifteen informations. Central to each is an ingredient of dishonesty. The informations comprise five transactions said to be dishonest dealings with a bank. Some of the charges are framed as alternatives to the primary allegation of stealing or fraud. It is not appropriate at this stage to provide detailed reasons based on credibility, permitted inferences or assessment of the weight of the evidence.
   
10. The Court accepts the central tenant of the defendant's contention that mere negligence, carelessness or mistake cannot give rise to criminal culpability. But the evidence advanced by the prosecution goes beyond that. It remains for the 'fact finder' to assess and consider the weight of that evidence.
    
11. The five transactions said to be unlawful differ in their nature. Each involved the sale or mortgaged of land. It is alleged that each involved the taking of money for personal gain, and each constituted the crime of stealing. It is said that, consistent with the decision of the New Zealand Court of Appeal in R v Wilkinson [1999] 1 NZLR 403, there has been no evidence that the defendant withdrew money from the financial institution and as such there has been no asportation. Even if that proposition was accepted it would not preclude a fact finder from determining that there has been a forgery or dishonest dealing. Here the prosecution alleges either the receipt of cash which was not passed on to the employer or a partial payment only. In one instance the prosecution has called evidence from a witness who avers that she had no account with the Bank that she has delivered $120,000 to the defendant who was acting as an agent for that bank and that an account opened in her name was false. If accepted, withdrawals from that account would constitute asportation.
    
12. These issues remain ones open to the fact finder.
    
13. In Wilkinson (supra), there had been no appeal against convictions of using a document with intent to defraud. In that case the Court was concerned, not with sufficiency of evidence, but whether an entitlement to draw funds from a bank was a 'thing capable of being stolen'. Here, even if the Court did not accept the reasons of the dissenting Judge, Thomas J, there is evidence sufficient to permit a fact finder to infer that the defendant obtained a personal gain from the transactions, by reason of the withdrawal of money from an account or withholding payment of money due to the institution. Dishonesty in the execution of a transaction or one of its components rather than carelessness or breach of a contractual duty, might suggest that personal gain. Here the components of the five transactions can be considered in the light of the evidence, whilst each of the informations must be regarded as a unit. In effect, there are five separate trials, not fifteen. In each of the five transactions differing verdicts might be returned. In some it would not be necessary to return a verdict on a charge stated as an alternative.
    
14. This is a 'no case' submission not an adjudication. It does not involve a 'weight of evidence' consideration.
    
15. The submission is rejected. There is a case to answer on each of the five transactions as stated in the informations.
    

(JUSTICE SLICER)