Police v Toleafoa [2016] WSSC 207 (16 December 2016)

IN THE SUPREME COURT OF SAMOA
Police v Toleafoa [2016] WSSC 207

Case name:	Police v Toleafoa
Citation:	[2016] WSSC 207
Decision date:	16 December 2016
Parties:	POLICE (Prosecution) and KETI TOLEAFOA male of Siusega. (First Defendant) and EVILEMALOTA MANO male of Utualii and Tufulele (Second Defendant) and KOLISI TUPU male of Afega (Third Defendant).
Hearing date(s):	-
File number(s):	S264/16, S265/16, S267/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Evidence of such an agreement is lacking. Tacit unspoken agreement to a course of conduct should not be inferred because there are cases such as the present one where defendants may disagree with an instruction but nevertheless feel compelled to give it effect. The act of obedience does not necessarily translate into agreement to a course of action. Accordingly an essential ingredient of the charge has not been proven beyond reasonable doubt, information S264/16 is dismissed. The evidence is that the Police Occurrence Book is a record of the happenings during a particular shift. Nothing whatever to do with financial transactions or accounts are recorded in the Book. While it constitutes an “accounting” in a very general sense about the events of the police shift, it does not meet the “accounting purposes” criteria of section 198. This information S127/16 is accordingly also dismissed. The end result is there is insufficient evidence that Poutoa was driving with excessive breath alcohol. The proof beyond reasonable doubt standard has not been attained in relation to an essential element, this charge too must be dismissed.
Representation:	L Sio for prosecution L R Schuster for first defendant P Mulitalo for second and third defendant.
Catchwords:	- conspired to prevent or pervert the course of justice - false accounting - accessories after the fact - incriminating admissions – voire dire – Breathalyzer.
Words and phrases:
Legislation cited:	Crimes Act 2013 Police Service Act 2009 Evidence Ordinance 1961
Cases cited:	Ibrahim v R [1914] AC 599 R v Ali [1999] NZCA 242 R v McDermott (1948) 76 CLR 501, 511 Tofilau v R [2007] HCA 59 Police v Sua [2007] WSSC 85 Deokinanan v R [1968] 1 AC 20, 33 Police v Vandlierde [2010] WSSC 158 R v Dixon (1992) 28 NSWLR 215 R v Lane CA 289/05 (01 December 2005) Police v Vailopa [2009] WSSC 69 Police v Masame [2007] WSSC 66 Police v Taito (unreported) 15 December 2008 R v Convery [1967] NZCA 37; [1968] NZLR 426, 438
	Police v Nauer [2000] WSSC 10 Police v Wright [2016] WSSC 195 Standfield v NPO [2016] WSCA 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

KETI TOLEAFOA male of Siusega.
First Defendant

AND:

EVILEMALOTA MANO male of Utualii and Tufulele.
Second Defendant

AND:

KOLISI TUPU male of Afega.
Third Defendant

Counsel:
L Sio for prosecution
L R Schuster for first defendant
P Mulitalo for second and third defendant.

Sentence: 16 December 2016

ORAL DECISION OF NELSON J

1. The defendants face three charges: firstly information S264/16 alleging that they conspired to prevent or pervert the course of justice in this matter. Secondly information S267/16 that they made false entries in the Police Occurrence Book of the Traffic Section and did thereby commit the offence of false accounting. Thirdly that they were accessories after the fact in relation to this matter that is information S265/16. To all charges the defendants have pleaded not guilty.
2. Prosecution evidence as no defence evidence was called is that on the night of Saturday, 16^th August 2015 a “poloka” or road block to check for drunk drivers was held in front of the Police Traffic Office in Apia. Manning the roadblock was Constable Fetulele Safiu, Constable Lawrence and Constable Kolisi Tupu the third defendant. The shift was under the control of Sergeant Evilemalota Mano the second defendant who was on duty inside the Traffic Office. All officers were under the general supervision of Inspector Keti Toleafoa the first defendant who was the ranking officer in charge of all Police shifts that evening.
3. The evidence of Constable Safiu (Constable Lawrence was not called) was that the third defendant pulled over a red Prado and breathalysed its driver a Mr George Poutoa. He then instructed Poutoa to follow him to the office to undertake a second test, the Evidential Test because “ua ova au micro kalama” (transcript page 19).
4. On the way they met the first defendant who stopped and conversed with Poutoa before they proceeded into the Traffic Office. The first defendant continued walking to the main General Policing building. As there was no further traffic on the road Constable Safiu walked to the Traffic Office. Upon entering he observed the third defendant holding the Evidential Test receipt while the second defendant was on the telephone. He said he was not close enough to hear the conversation but when it concluded he clearly heard the second defendant instruct the third defendant:

“Lea e fai mai le ta’ita’i ia Keti (the first defendant) e release le tama lea ona o sona tei, tuu le taavale e loka ii i le ofisa, ae enter faalaititi ia micro kalama” (page 20 of the transcript).

The Constable said he was taken by surprise so he asked the second defendant “o le a le faaiuga?” Second defendant repeated the instruction from the first defendant.

5. He then returned to the roadblock and did not see anything that occurred subsequently. But at about 2:00 or 3:00 a.m. that morning while loading traffic cones onto a Police vehicle for early morning Market duty, he saw the first defendant and Poutoa talking and heard the first defendant say to Poutoa:

“E tatau ona e fiafia i le faaiuga lea ua fai atu, alu i le fale sei aulia taeao ona e sau lea e avatu le taavale” (transcript page 21).

6. When asked in cross examination why he did not report these events until required to do so one month later by the inquiring Police Professional Standards Unit (‘PSU’) the witnesses response was quoting from page 25 of the transcript:

“E le nofo nofo a leoleo fai se lipoti e aunoa ma se fa’atonuga. A’o fa’agasolo foi galuega a le Ofisa o leoleo e le mafai ona lue atu e le si’usi’u le ulu. O le a lava le fa’atonuga e fai e le ulu, e le mafai e le si’usi’u ona lue atu luga.

E iai le agaga masani ai le Ofisa o Leoleo na ou ulufale mai le Ofisa o Leoleo ua ou faalogo iai. O le faatonuga lava e avatu e le ta’ita’i, pe sa’o pe sese, a sese sese i luga o le ta’ita’i, a sa’o sa’o i luga o le ta’ita’i, pau le mea o le usita’i.”

7. Further on in his evidence at page 26 when speaking about the direction that came from the first defendant he said,

“Pei ona ou taua i le taimi ua mavae i la’u tala tusia ma la’u molimau, o lea ou te fa’alogo atu ua pasi le fa’atonuga a Evile ia Kolisi, o la e fai mai Keti, o la e fai mai Keti. O le fa’atonuga lea o lea ou te tilotilo atu iai ma fa’alogo ai o pasi e Evile ia Kolisi o la e fai mai Keti. O a’u foi lenei sa ou toe fesiligia Evile, o le a ea le fa’aiuga? Tali Evile, o la e fai mai Keti enter fa’alaititi micro kalama, release le tama lea aveta’avale ae loka le ta’avale i le ofisa.”

8. The other notable aspect of the Constables evidence is found also at page 26 of the transcript where he talks about the Police Occurrence Book as being the record kept of the events that occur during a police shift. Be they complaints or otherwise. Significantly there is no mention by him of the Book as being a record for any accounting transaction or financial purpose.
9. The evidence of constable Safiu is substantially corroborated by the driver Poutoa who was also called to testify. He recalls driving home that night after consuming a few beers. Naturally he cannot remember how many he had. But was pulled over by the police at the roadblock and breathalyzed.
10. In cross examination he said he had been smoking beforehand but had thrown his cigarette away when he was stopped. Smoking in the two minutes prior to being breathalysed is according to the Users Manual for the hand-held SD400 Lion Alcometer Breathalyzer Unit not recommended as it would affect the machine reading. Although he was not certain as to the particular unit used on the night in question, the evidence of the Police expert on Breathalyser Machines Detective Senior Sergeant Ituau Ale was that these were the units being used by the Police at the time. But because they were an older less satisfactory model that required re-calibration in Australia every 6 months, the Police changed to the newer hand-held Drager 7110 machine which only required re-calibration every 12 months. And that when one set of units were sent to Australia for re-calibration the other type was used.
11. Poutoas further evidence was he requested the police and the first defendant in particular whom he knew well to be allowed to go home as his wife was all alone. Their response was to lock his car in front of the office and for him to take a taxi home which he did. Next day he uplifted his vehicle and thanked the first defendant.
12. Further corroboration of Constable Safiu’s evidence was provided by the testimony of Senior Sergeant Sekai Liuteine. He said that on the Monday following the incident he was approached by an unhappy second defendant about the matter:

“ma faailoa mai e Evile le mataupu e le o fiafia ai sa tupu i le po o le aso Toonai o lana tiute” (transcript page 49).

13. He related what had happened and how he was instructed by Inspector Keti to release the driver and to enter a reduced alcohol level reading in the Police Occurrence Book, 42 micrograms for the road test and 36 for the Evidential Test, instead of the 75 purportedly measured by the third defendants Evidential Test. He told the Senior Sergeant how unhappy he was with the instruction “talanoa mai i le le fiafia lea i le fa’aiuga ua faia i lea po” but complied with it anyway “peita’i ane, o lea sa fa’ataunuuina le fa’atonuga na tuuina atu ia te ia” (page 52 of the transcript).
14. His response to the second defendant was:

“e leai se isi mea e mafai ona fai leaga o Keti lea sa ta’ita’ia le tiute atoa a le Ofisa o leoleo i le po lea, e leai la se isi fa’atonuga e sili atu, ma e leai se isi mea e mafai ona toe faia leaga o lea ua fai le fa’aiuga a Keti i le mataupu” (page 55 of the transcript).

15. The Senior Sergeant produced the relevant entry in the Police Occurrence Book said to have been made by the second defendant as per instructions from the first defendant. And of the Book his evidence was at page 53 of the transcript:

“Sa’o lelei, o loo iai le api e taua o le Occurrence Book poo le api lea e fa’amaumau ai mataupu uma e lipoti atu i le ofisa, vaega o taavaleafi, o le api lea e fa’amau ai le suafa o le tagata e avatu i le ofisa, tagata e molia, o le tagata o lea e tagi faasaga i le ua molia, e faamauina ai le taimi, le aso na tupu ai le mataupu faatasi ma le aotelega o le mataupu na tupu, o vaega uma ia e faamaumau i totonu o le api lea pei ona ou taua o le Occurrence Book.”

16. Central to the police case in this matter is the Evidential Test reading entered into evidence by the Expert Senior Sergeant Ituau Ale as Exhibit “P-2” for the prosecution. That reading is said to be a re-generated copy of the original Evidential Test result carried out by the third defendant but which was subsequently misplaced by the Police. A surprising development given its importance in a case involving alleged criminal behaviour by police officers, some of senior rank.
17. The difficulty I have with “P-2” is that all the evidence establishes Poutoa was evidentially tested in the Traffic Office sometime around midnight Saturday, 15 August 2015. The informations allege that this offending was committed on or about Sunday 16 August 2015. But “P-2” is dated 15 August 2015 at 13:59 hours which is 1:59 p.m. In other words Saturday afternoon. And the document itself reads “Selftest Correct” and “Zerotest Correct” at 14:01 hours or 2:01 p.m. in the afternoon of 15 August 2015. In other words that the machine has as it is programmed to do verified its own accuracy as being in all manner “Correct.” Furthermore the machine did this at 14:01 hours and at 14:02 hours or 2:02 p.m. as indicated at the bottom of “P-2”. In other words it has certified its reading as correct not only once but twice. And yet the reading does not accord with the timeline established by all of the other Police evidence.
18. Both Senior Sergeant Ituau Ale and Constable Shristan Schwenke a machine operator called by the Police went to great lengths to try and explain this anomaly. I however remain unconvinced that the court can rely on such a contradictory piece of evidence as establishing anything. It may well be as conceded by Constable Schwenke in cross examination that these errors are due to a failure of the machines battery. Perhaps so, but it was also the Constables evidence that the date and time cannot be altered by the machine operator and a reprint would always show the correct date and time as per the original entry. Clearly there was a problem with the date recorded by this machine and it would in my view be most unwise for the court to rely on any information it purports to provide. For the purposes of these proceedings I therefore ignore completely any evidentiary value of Exhibit “P-2” for the prosecution.

The defendants statements

19. The prosecution sought to tender into evidence certain reports made by the defendants to the Police PSU investigators during the enquiry into this incident. As admissibility of these reports was contested this became the subject of a voire dire conducted during the course of the trial. At the completion thereof and after hearing submissions, I ruled the reports inadmissible and indicated reasons would be given as part of the final judgment.
20. It is established law that incriminating admissions and confessions are only admissible against an accused person if made voluntarily. The classic pronouncement is found in the judgment of Lord Sumner in Ibrahim v R [1914] AC 599:

“It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecutor to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

21. In New Zealand the test was formulated thus by the Court Appeal in R v Ali [1999] NZCA 242:

“At common law, no statement made by an accused is admissible unless it is affirmatively shown to have been made voluntarily. It has to be made voluntarily in the sense of not being made by fear of prejudice or hope of advantage exercised or held out by a person in authority; and in the broader sense of being made in the exercise of the accused’s own free choice. As Dixon CJ said in the R v McDermott (1948) 76 CLR 501, 511:

If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary.”

22. The entirety of the Dixon passage approved by the High Court of Australia in Tofilau v R [2007] HCA 59 and the New Zealand Court of Appeal in Ali and this court in decisions such as Police v Sua [2007] WSSC 85 is instructive:

“A confessional statement made out of Court by an accused person may not be admitted in evidence against him upon his trial for the crime which it relates unless it is shown to have been voluntarily made................ This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by which means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.” (emphasis mine)

23. As to what constitutes a “person in authority”, the Privy Council in Deokinanan v R [1968] 1 AC 20, 33 said this:

“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe...”

24. I referred to this passage in Police v Vandlierde [2010] WSSC 158 also citing the New South Wales Court of Criminal Appeal:

“As to who constitutes a “person in authority” see the Court of Criminal Appeal in R v Dixon (1992) 28 NSWLR 215 where the court held that at common law:

A person in authority includes any person concerned in the arrest detention or examination of the accused, or who has an interest in respect of the offence or who otherwise is seen by the accused by virtue of his position as capable of influencing the course of the prosecution or the manner in which he is treated in respect of it” (again, emphasis is mine).

25. In Vandlierde I extended the definition to include the servant of an investigating employer:

“Incriminating admissions or confessions made to investigating employers by suspected employees are subject to the same rules of admissibility as admissions or confessions made to the police. A servant of the investigating employer is in my respectful view a person in authority in accordance with established traditional common law rules and tests.”

26. The prosecution in reliance on the New Zealand Court of Appeal decision in R v Lane CA 289/05 (01 December 2005) argue the existence of an employer-employee relationship is insufficient by itself to render statements made to an inquiring employer involuntary. The Court of Appeal stated:

“It cannot follow that wherever there is a perceived imbalance of bargaining power that any statement made is involuntary. That ignores the common law test of what constitutes voluntariness and all established case law... (paragraph 32).

The existence of an employment relationship did not change that position. There was no obligation on the applicant to give the answers that he did. The duty of mutual trust and confidence between an employer and employee cannot in itself be said to give rise to an obligation to make statements contrary to interest. There was nothing in the conduct of Ms Read or Mr Blackwood that caused the applicants to make statements contrary to interest. Thus the Judge was entitled to find the applicants statement voluntary” (paragraph 33).

27. I am in respectful agreement with the New Zealand Court of Appeal. The test is not inequality of position but whether the rules as to voluntariness have been proven to the required standard to have been observed. In the present case I am of the view that standard has not been achieved.
28. The evidence in this case is clear. The defendants reports were submitted as a result of a specific request from Sergeant Tomasi Tuua the investigating officer of the Professional Standards Unit assigned to this matter by Inspector Samuelu Afamasaga the Unit Head. Sergeant Tomasi said he received the relevant instructions on 08 September 2015. He accordingly notified the defendants and requested reports as is the normal practice. Over a span of about one month and after follow-ups he received the defendants reports. In the case of the first defendant more than one report. The Sergeant completed his investigation and forwarded his recommendation to the Head of Unit which was to charge only the first defendant. This was reviewed by the Unit Head who concluded only disciplinary charges were warranted subject to a final review by the Attorney Generals Office. Which review resulted in the present criminal charges being laid.
29. Significantly the investigating officers evidence in cross examination was that the defendants were required to submit reports. In answer to questions from Mr Schuster for the first defendant he said on top of page 28 of the transcript

“Schuster: O le uiga la o lau mau, e le o se mea foi lea e faapea ai ia Keti e fai sana lipoti pe leai, e tatau ona fai sana ripoti i lalo o lau faatonuga e sa’o?

Witness: Sa’o lelei

Schuster: a le faia sana lipoti, o le a le mea e oo iai, ua ia le usitaia le faatonuga a le tagata o la e iai le malosiaga a le tulafono e faatonu e sa’o?

Witness i lalo o le tulafono a Leoleo Faatonutonu 2010 i le puipui (g) o loo faapea mai ai e aafia se leoleo pe a faapea e musu pe le auai pe fesoota’i agai i se faamasinoga poo se suesuega.

Schuster o lona uiga a le comply ma le lipoti e iai foi leisi mea e oo atu ai, e iai foi seisi moliaga e ono molia ai pe a le comply ma le lipoti e sa’o lea?

Witness sei vagana ua faailoa mai e le manao e fai sana lipoti poo sana faamatalaga pe a faapea e iai ni mafuaaga.

Schuster ae pei o le mamafa lena o le mea lea e te fai mai ai a ua avatu loa le faatonuga e fai mai lipoti o lona uiga e tatau ona fai mai lana ripoti i le faatonuga, a le faia mai o lona uiga ua ia le usitaia le faatonuga a se tagata iai le malosiaga i lalo o le tulafono a Leoleo e fai ai le faatonuga lea e sa’o?

Witness e tatau ona tuuina mai sana faamatalaga e faamalamalama ai tuuaiga pei ona faamalamalama ma logo iai i le taimi na logoina ai i le aso 8 lea.”

30. I note also section 50(2)(c) of the Police Service Act 2009 makes it misconduct to fail to obey lawful orders.

“50. Conduct amounting to breach of duty –

(2) A sworn member of the Service commits a breach of duty amounting to misconduct if the member;

(a) breaches a provision of this Act, or any Regulation or Instruction under this Act;

(b) commits any criminal offence;

(c) fails to obey a lawful order given to, or applying to the member.”

For which a police officer can be prosecuted and potentially dismissed pursuant to sections 51 to 54.

31. It these circumstances it cannot be said the statements furnished by the defendants were voluntarily given. They were duty bound to respond and subject to sanctions if they refused or failed to do so. No express threat of prosecution need be made. It is sufficient the power to punish non-compliance exists. All police officers including the defendants were well aware of their obligation to comply with Sergeant Tomasis request. The defendants evidence given at the voire dire confirmed this.
32. Even if I am in error in these views I would nevertheless rule the statements inadmissible on the ground of unfairness. This is also a well established basis for rejection. The following passage is from Police v Vailopa [2009] WSSC 69:

“At common law a voluntary statement could nevertheless be excluded in the courts discretion if it was unfairly obtained or “obtained by improper or unfair methods” R v Ali [1999] NZCA 292. The principles and exercise of this discretion were recently reviewed by this court in Police v Masame [2007] WSSC 66 and have been applied in many cases, e.g. Police v Taito (unreported) 15 December 2008. The relevant issue is as was stated by the New Zealand Court of Appeal in R v Convery [1967] NZCA 37; [1968] NZLR 426, 438:

Whether the course of the inquiry, as proved in evidence, makes it unjust that the statement should be received. In answering this inquiry the Court may consider not only the case immediately before it, but also the necessity of maintaining effective control over police procedure and the generality of cases.

The court in Ali cited this passage and then concluded at paragraph 51:

It is then a matter of looking at the totality of the police conduct. What is important is the overall question of the fairness of the police methods and the issue of fairness is determined by the judge as a matter of judgment rather than by reference to the onus of proof.”

33. As stated by the Court of Appeal in Ali “even though a confession is held to be voluntary the trial Judge may exclude it if it has been obtained by improper or unfair methods.” In my respectful view it would be unfair to make admissible statements made to an investigating officer under an unstated but nevertheless real threat of prosecution. These were statements given only because the defendants considered themselves duty bound to do so. This was not an exercise of free choice on their part. It would in my judgment be unfair that they now be used as evidence against them. Given these conclusions it is not necessary for me to consider section 18 of the Evidence Ordinance 1961 as requested by the prosecution.
34. The onus of proving voluntariness lies on the prosecution. The standard required is beyond reasonable doubt. Many authorities accept this to be the case for example Police v Masame [2007] WSSC 66.
35. The prosecution have not proven beyond reasonable doubt the statements were voluntarily made or that even if they were, it would be fair to enter them into evidence against the defendants. The challenge succeeded, the statements were accordingly ruled inadmissible. And it can be taken that for the purposes of the voire dire the court accepted that all statements contained incriminating admissions of one kind or another.

The Charges

36. I deal firstly with the major charge - conspiracy to prevent or pervert the course of justice. The elements of which were helpfully reviewed by the Chief Justice in Police v Nauer [2000] WSSC 10:

“In my opinion the offence of conspiracy to defeat the course of justice consists of two elements which have to be proved by the prosecution. The first element is that there must have been between the conspirators an agreement whose object is defeat the course of justice. Such object of a conspiratorial agreement is referred to in some of the case law as the conspirators common design. Mere intention in the minds of the conspirators without more will not be sufficient. Their intentions to defeat the course of justice have to be translated into an agreement. The agreement is the actus reus of the offence and is the essence of the offence. The second element is that the conspirators must have had the intention to carry out their agreement. But the agreement need not be actually carried out. It is sufficient if the conspirators intended to carry it out.”

37. The core element of the offence is the existence of a conspiracy i.e. an agreement amongst the parties. Therein lies the difficulty. There is no evidence of the existence of any express or implied agreement amongst the defendants. It may have been the first defendants intent to pervert or defeat the course of justice but that is not what he has been charged with. The information alleges he conspired with his co-defendants to prevent or pervert the course of justice. There is no evidence the first defendants intent was shared by his co-defendants. The evidence indicates the co-defendants were obeying the instructions of a superior officer. Throughout the whole of his evidence the main police witness Constable Safiu referred to what was told to the second defendant by the first defendant as an instruction (“fa’atonuga”). Unquestioning obedience to such instructions is unfortunately in accord with the undesirable but apparently widespread Police culture of “blind obeisance” to superiors noted by this court recently in Police v Wright [2016] WSSC 195. In the case of the second defendant, obeyed reluctantly hence his raising it on the Monday with Senior Sergeant Liuteine.
38. As noted by Sapolu in Nauer:

“Mere intention in the minds of the conspirators without more will not be sufficient. Their intentions to defeat the course of justice have to be translated into an agreement.”

39. Evidence of such an agreement is lacking. Tacit unspoken agreement to a course of conduct should not be inferred because there are cases such as the present one where defendants may disagree with an instruction but nevertheless feel compelled to give it effect. The act of obedience does not necessarily translate into agreement to a course of action. Accordingly an essential ingredient of the charge has not been proven beyond reasonable doubt, information S264/16 is dismissed.
40. I now deal with the false accounting charge. The prosecution have correctly summarized the elements of this offence. That the defendants with intent to deceive made or caused to be made a false entry. However they have overlooked a vital ingredient. Section 198 requires that such false entry be made in a book “required or used for accounting purposes”: subsection (a). This imports into the offence an accounting ingredient namely that the book or document in question must be one used for accounting purposes.
41. In its ordinary and natural meaning this means a book or document containing or dealing with financial information and conclusions to be drawn therefrom. “Accounting” in my view is here used not in the sense of generally accounting for events that occurred for example during a police shift but to mean a financial record relied upon or kept by an organization. It was this very issue that led the Court of Appeal in Standfield v NPO [2016] WSCA 1 at paragraphs 44 and 45 to hold that a Telegraphic Transfer Form was not a document required or used for accounting purposes.

“On the other hand, we have concluded that Mr Gianno’s appeal against the two convictions for false accounting must succeed. This is because the two ANZ International Telegraphic Transfer Application forms cannot properly be said to be “documents required or used for accounting purposes” in terms of s.198 of the Crimes Act. It is evident that their purpose is compliance with Samoan exchange control rules, not the keeping of ANZ’s financial accounts. They would not be required for the latter purpose nor has it been proved that they are relied upon by ANZ for accounting purposes.”

42. The evidence is that the Police Occurrence Book is a record of the happenings during a particular shift. Nothing whatever to do with financial transactions or accounts are recorded in the Book. While it constitutes an “accounting” in a very general sense about the events of the police shift, it does not meet the “accounting purposes” criteria of section 198. This information S127/16 is accordingly also dismissed.
43. The final charge against the defendants is being accessories after the fact. I have some difficulty with this charge as well. In particular the requirement of knowledge that Poutoa was “a party to an offence” which by virtue of section 33 (1)(a) includes being a principal offender. The evidence in this regard is most unsatisfactory. The testimony of Constable Safiu is after breathalysing Poutoa with a hand-held machine most probably the Lion Alcometer SD 400, the third defendant instructed Poutoa to accompany him to the office for the second Evidential test because “ua ova ou micro kalama.” Whether this meant over by one microgram or 10 micrograms or more is not known. But the reliability of the SD 400 has been questioned. And paragraph 4 of its Hand book specifically requires in the least a 2 minute gap between smoking and breath testing. Furthermore paragraph 8 of the Manual headed ‘Dos and Donts’ says:

“Don’t test the subject if he may have been drinking or eating in the last 20 minutes or smoking in the last 2 minutes.”

44. Poutoas evidence was he was smoking a cigarette which he threw away when pulled over at the Police roadblock. There is nothing to suggest the 2 minute interval was observed before he was breathalyzed. Neither did the relevant officer question him as to whether he had been smoking or eating and drinking in the previous 20 minutes. It is accordingly entirely possible the machine reading was tainted. This is probably why police traffic practice requires a second test on the more sophisticated Evidential Breathalyzer kept in the Traffic Office. The only record produced of that Evidential Test is Exhibit “P-2” for the prosecution. As observed earlier I do not consider that can be safely relied upon.
45. The end result is there is insufficient evidence that Poutoa was driving with excessive breath alcohol. The proof beyond reasonable doubt standard has not been attained in relation to an essential element, this charge too must be dismissed.
    

JUSTICE NELSON