Police v Pauli [2016] WSSC 60 (15 April 2016)

SUPREME COURT OF SAMOA
Police v Pauli [2016] WSSC 60

Case name:	Police v Pauli
Citation:	[2016] WSSC 60
Decision date:	15 April 2016
Parties:	POLICE v PAULI KALOLO and LEILOA PAULI KALOLO both of Salelologa, Savaii
Hearing date(s):	10, 11 March 2016
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	(a) The charge of theft by conversion has been proved beyond reasonable doubt. (b) The charge of obtaining by false pretence in information s.3285/15 has also been proved beyond reasonable doubt. (c) The charge of obtaining by false pretence in information s.3259/15 is inappropriate and is dismissed.
Representation:	L Sua-Mailo for prosecution S Leung Wai for accused
Catchwords:	Theft by conversion – obtaining by false pretence - elements of the offences – reservation of title clause – Romalpa clause – false representation
Words and phrases:
Legislation cited:	Crimes Ordinance 1961 s.86 (1) (d), s. Crimes Act 2013
Cases cited:	McNicholl v Police (1990) 6 CRNZ 603; R v Coombridge [1976] NZCA 2; [1976] 2 NZLR 381, R v Firth [1998] 1 NZLR 513, para 7. R v Nottingham [1992] 1 NZLR R v Williams [1984] NZCA 96; [1985] 1 NZLR 294, pp15-16; 395
Text Books Summary of decision:	Adams on Criminal Law (1992), CA 220.05, vol 1. Principles of Criminal Law para 19.4.1, 2nd ed by AP Simester and WJ Brookbanks

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PAULI KALOLO and LEILOA PAULI KALOLO both of Salelologa, Savaii.
Accused

Counsel:
L Sua-Mailo for prosecution
S Leung Wai for accused

Hearing: 10, 11 March 2016

Submissions: 17 March 2016

Judgment: 15 April 2016

JUDGMENT OF SAPOLU CJ

The charges

1. The accused Pauli Kalolo (Kalolo as he was referred in the evidence) and his wife Leiloa Pauli Kalolo (Leiloa) stood trial on one joint charge of theft by conversion, contrary to s.85 of the Crimes Ordinance 1961, which carries a maximum penalty of 5 years imprisonment pursuant to s.86 (1) (d), and one joint charge of obtaining by false pretence, contrary to s.89 of the Ordinance, which carries a maximum penalty of 3 years imprisonment. The accused Kalolo also stood trial on one individual charge of deception laid pursuant to s.89 of the Ordinance. The individual charge of deception against Pauli Kalolo was brought before this Court under the Crimes Act 2013 which has repealed the Crimes Ordinance 1961 when it should have been brought under the Ordinance. This is because the offences with which the accused are charged are alleged to have occurred before the enactment of the 2013 Act. The appropriate amendments were sought by the prosecution to have the individual charge brought under the Ordinance. Defence counsel did not object to this Court hearing that charge as amended.
   

The elements of the offences charged

2. The offence of theft by conversion under s.85 of the 1961 Ordinance consists of three elements which the prosecution must prove beyond reasonable doubt in order to succeed. These are: firstly, the accused must have converted an item of property to the use of another person; secondly, the act of conversion was dishonest; and thirdly, the accused had an intention to deprive the owner permanently of the item of property.
3. “Conversion” in the context of s.85 of the 1961 Ordinance is not identical with the tort of conversion. Generally speaking, conversion consists of an act inconsistent with the rights of the owner of the goods unless the acts done are done in accordance with the actual authority of the owner or with his prior consent: McNicholl v Police (1990) 6 CRNZ 603; Adams on Criminal Law (1992), CA 220.05, vol 1.
4. The offence of obtaining by false pretence under s.89 of the 1961 Ordinance also consists of three elements which the prosecution must prove beyond reasonable doubt in order to succeed. These are: firstly, an obtaining, that is to say, the accused must have gained possession or ownership of an item of property; secondly, by any false pretence, that is to say, a false representation made to another person with a fraudulent intent to induce that person to act on it; and thirdly, with intent to defraud, that is to say, an intent to deprive by deceit.
5. For the purposes of the offence of obtaining by false pretence, a “false representation” is a statement of a matter of fact, or about a future event or about an existing intention, opinion belief, knowledge or other state of mind. It also includes a promise. It is false if it is known to the person making it to be false.

Sale and purchase agreement

6. On 23 August 2010, the accused Kalolo and his wife Leiloa went to the Original Car Warehouse Ltd at Lotopa, a company whose business includes on selling motor vehicles, to buy a car. They decided to buy a Toyota Hiace van. They then went into the office with Mr Bruce Mansell (Mr Mansell) the director of the company to discuss and fill in a sale and purchase agreement as Kalolo and Leiloa did not have enough money to pay for the full purchase price of the van. The agreement is in English. Mr Mansell who is a New Zealander speaks only English and does not speak Samoan.
7. While Mr Mansell and Kalolo were at Mr Mansell’s desk going through the agreement, Leiloa was sitting only a few metres away in the same room. The agreement shows the price of the van as $33,000, the deposit as $13,000 which Kalolo said was a loan they had obtained from the Housing Corporation to build a house, weekly instalment payments towards the $20,000 being the balance of the purchase price as $400, the total period for repayments as sixty one weeks, and a flat interest of 18%. An important clause of the agreement for the purposes of this case is the reservation of title clause which provides that ownership of the goods remains the property of the Original Car Warehouse Ltd until full and final settlement. This type of clause is sometimes referred to as a Romalpa clause. The sixty one weeks for the weekly instalment repayments was to end on 24 October 2011. The agreement then shows the signatures of Kalolo, Leiloa and Mr Mansell. Attached to the agreement is an application form which is also in English and filled in by Kalolo and Leiloa. This form shows the accused’s first names, surnames, marital status, mobile phone number, address, occupations, and personal references. It also shows the signatures of Kalolo and Leiloa as applicants.
8. Mr Mansell testified that he discussed and explained the agreement to Kalolo in English and there was no language problem. He was also talking with Kalolo in English all the time. Mr Mansell also said Kalolo’s English was very good; it was perfect.
9. Under cross-examination, Mr Mansell maintained that Kalolo speaks and understands English. He said that he and Kalolo were speaking English all the time and he had no problem understanding Kalolo. He had also read and explained the sale and purchase agreement in English to Kalolo before the agreement was signed by Kalolo and Leiloa. Defence counsel then asked Mr Mansell if it is correct that Kalolo said to him that the van has no licence plate and Mr Mansell said that is correct. That statement by Kalolo to Mr Mansell that the van has no licence plate must have been made in English because Mr Mansell does not speak Samoan but only English.
10. Under cross-examination, Mr Mansell also gave evidence about discussions on the phone with Kalolo about the arrears on the weekly instalment repayments for the van and about some of the staff of the Original Car Warehouse Ltd going to Savaii to sell raffle tickets and staying in the house of Kalolo and Leiloa. All those discussions must have been in English because Mr Mansell does not speak Samoan. Mr Mansell also said under cross-examination that he had a meeting with Kalolo at Salelologa where Kalolo gave him $200. The discussion at that meeting must also have been in English.
11. When Kalolo gave evidence, he said that he does not understand English and at the time he was face to face with Mr Mansell regarding the sale and purchase agreement, Mr Mansell was speaking to him in English and he was simply nodding his head as he did not understand everything Mr Mansell was saying. He also said that Mr Mansell did not explain to him that ownership of the van remains with the Original Car Warehouse Ltd until full and final settlement so that when he and his wife took the van away from the company’s premises, he thought the van belonged to him and his wife as owners.
12. I must say that I find this part of Kalolo’s evidence totally incredible. The application form which Kalolo filled in is in English and attached to the agreement. In the application form, Kalolo filled in his first name, surname, marital status, mobile phone number, address, occupation, and personal references. He also signed his name where the English words “1st Applicant Signature” appear. Under examination in chief by defence counsel, Kalolo said that he told Mr Mansell that the van does not have a licence plate which must have been in English because Mr Mansell does not speak Samoan. Kalolo also said that he did not understand the agreement because it is in English. All he understands are the amount of “$400” and the number “61” which appear in the agreement. After giving some evasive answers to questions from the Court, he conceded that he understood the $400 was the weekly instalment payment he and Leiloa had to make towards the balance of the purchase price of the van. The payments schedule kept by the Original Car Warehouse Ltd shows that nearly all the payments made by Kalolo and Leiloa were weekly payments. At p.101 of the transcript, when Leiloa was examined by defence counsel, she said that when they returned to Savaii with the van, her husband Kalolo told her the weekly payment for the van is $400 for sixty one weeks which confirms that Kalolo understood the condition about the payments and the period for the payments that is in the agreement. The agreement is also not expressed in difficult English. Kalolo and Leiloa also provided customary land at Salelologa as collateral for the balance of the purchase price of the van which must have done in English for Mr Mansell to understand as Mr Mansell does not speak Samoan. Furthermore, Kalolo’s evidence that the $13,000 they paid as the deposit for the van was a loan they had obtained from the Housing Corporation to build a house does not help to inspire any confidence in his credibility.
13. I have decided to believe the evidence of Mr Mansell that Kalolo’s English is very good and at the time of the sale of the van he was talking with Kalolo all the time in English and there was no language problem. I therefore reject Kalolo’s evidence that he does not understand English and did not understand the agreement. I have also decided to accept Mr Mansell’s evidence that he read and explained to Kalolo the agreement including the reservation of title clause which says that ownership of the van remains which the Original Car Warehouse Ltd and Kalolo appeared to understand. As it will appear later in this judgment, Kalolo and Leiloa subsequently resold the van to one Saina Seumanutafa (Saina) and his sister Sisi Seumanutafa (Sisi) who paid a deposit and entered into an agreement to pay off the balance by instalments. This was before Kalolo and Leiloa had paid the full purchase price of the van to the Original Car Warehouse Ltd. The evidence given by Kalolo and Leiloa is that as far as they were concerned, ownership of the van remained with them until Saina and Sisi had paid the full purchase price. This contradicts Kalolo’s evidence that when he and Leiloa took the van away from the premises of the Original Car Warehouse Ltd after paying the deposit, he thought that they were the owners of the van at that time.
14. Leiloa testified that the sale and purchase agreement was not explained to her by Mr Mansell before she signed it. She said that Mr Mansell simply gave her a pen and then she signed the agreement. If this is correct, the agreement was explained by Mr Mansell to Kalolo while Leiloa was sitting a short distance away. Leiloa also said that she finished school at Year 12 at Leifiifi, one of the well regarded secondary schools in Apia, and while she understands some simple English words, she does not understand most of the English words. The impression Leiloa seems to be trying to convey is that she would not have understood the agreement even if Mr Mansell had explained the agreement to her because her command of English is of a low standard. She also said that when she and Kalolo took the van away from the premises of the Original Car Warehouse Ltd, she believed that they were the owners of the van at that time. This is in spite of the fact that at that point in time Leiloa and Kalolo had paid only a deposit of $13,000 and $20,000 was still outstanding on the purchase price of the van. It is also inconsistent with Leiloa’s evidence that when they resold the van to Saina and Sisi, and Sisi and Saina paid only a deposit leaving the balance of the purchase price to be paid by instalments, as far as she and Kalolo were concerned, ownership of the van still remained with them until Saina and Sisi had paid the full purchase price. This is no different from the situation when Leiloa and Kalolo purchased the van from the Original Car Warehouse Ltd and paid only a deposit leaving the balance of the purchase price to be paid by weekly instalments.
15. I do not believe the impression that Leiloa was trying to convey that her command of English is so low that she would not have understood the agreement even if Mr Mansell had explained it to her. I also do not believe Leiloa’s evidence that when she and Kalolo took the van away from the premises of the Original Car Warehouse Ltd they believed the van belonged to them as owners.
16. Attached to the agreement that was signed by Leiloa and Kalolo is an application form which is also in English. In that application form, Leiloa filled in her first name, surname, marital status, mobile phone number, address, occupation, and personal circumstances. She also signed her name where the English words “2^nd Applicant Signature” appear. Leiloa also said that she understands some simple English words and the agreement is not expressed in difficult except for the word “warranties”. Even though Leiloa said that Mr Mansell did not explain the agreement to her but simply gave her the pen and she signed the agreement, she was in the same room a short distance from where Mr Mansell was explaining the agreement to her husband Kalolo. It is difficult to imagine that she did not hear and understand what Mr Mansell was explaining to Kalolo. I also do not accept the impression that Leiloa was trying to convey that her command of English is so low that she would not have understood the agreement even if it was explained to her. Apart from the application form that Leiloa filled in, there is evidence of a meeting held in the office of the solicitor for Original Car Warehouse Ltd which was attended by Mr Mansell, Adele Luamanuvae (Adele), the company’s manager, the solicitor for the company, and Leiloa. Because Mr Mansell does not speak Samoan, the said meeting must have been conducted in English with Leiloa present and she appeared to understand what was discussed in the meeting. The invoice that was prepared by Kalolo and Leiloa for food and accommodation, hire of the van, petrol, and fixing the rust on the back door of the van and which was produced in evidence is also in English.
17. I also do not believe Leiloa’s evidence that when she and Kalolo took the van away from the premises of the Original Car Warehouse Ltd she believed they had become the owners of the van even though the full price of the van had not been paid. This is because of her evidence that when she and Kalolo resold the van to Saina and Sisi only a deposit was paid leaving the balance to be paid later and as far as she was concerned, ownership of the van had not passed to Saina and Sisi until the full price of the van had been paid. This is no different in principle from the situation when Leiloa and Kalolo purchased the van from the company paying only a deposit with the balance to be paid off by weekly instalments. At p.105 of the transcript of the evidence when Leiloa was examined by defence counsel, she says that the reason why she and Kalolo resold the van to Saina and Sisi was because they thought they were the owners of the van after they paid off the purchase price in full. This is also inconsistent with Leiloa’s evidence that when they took the van away from the premises of the company, she believed they had become owners of the van even though only the deposit had been paid and not the full purchase price. Furthermore, the fact that the $13,000 that Leiloa and Kalolo used to pay the deposit to the company was a loan they had obtained from the Housing Corporation to build a home also does not help to inspire confidence in Leiloa’s credibility.

Instalment payments for the van

18. As already mentioned, the purchase price of the van from the Original Car Warehouse Ltd is $33,000. Kalolo and Leiloa paid a deposit of $13,000 leaving a balance of $20,000 to be paid by weekly instalments of $400. The flat interest is 18%. And the period of payment is sixty one weeks commencing 30 August 2010 and ending the week commencing 24 October 2011. As the evidence shows, the weekly instalment payments by Kalolo and Leiloa were irregular and they were in default on numerous occasions. As a result, at the end of the sixty one week period to complete the weekly payments of the balance on the purchase price of the van, there was still a substantial outstanding balance to be paid.
19. According to the evidence of the prosecution witnesses Mr Mansell and Adele, after the agreement was executed between the Original Car Warehouse Ltd and Kalolo and Leiloa on 23 August 2010 and the deposit of $13,000 was paid, the first weekly instalment payment was made a week later on 30 August 2010. Two weeks then went past without any further payments. Then on 20 September 2010, 27 September 2010, 4 October 2010, 11 October 2010, and 18 October 2010, Kalolo and Leiloa made five weekly payments of $400. Four weeks then went past without any further payments. On 22 November 2010, Kalolo and Leiloa made another weekly payment of $400. Two more weeks went by without any more payments. On 13 December 2010, Kalolo and Leiloa made another weekly payment of $400. In the following week, no payment was made. On 27 December 2010, another weekly payment of $400 was made. Then for the next three weeks, there were no payments made. On 24 January 2011, Kalolo and Leiloa made another weekly payment of $400. The following week, no payment was made. On 7 February 2011, another weekly payment of $400. The following week, no payment was made. On 7 February 2011, another weekly payment of $400 was made. In the following week, no payment was made. On 21 February 2011, Kalolo and Leiloa made another weekly payment of $400. For the next fourteen weeks, no further payments were made. Then in the week commencing 6 June 2011, the Original Car Warehouse Ltd credited the account of Leiloa and Kalolo with the amount of $2,860. This was for the accommodation and meals of the company’s staff who went to Savaii to sell raffle tickets and stayed for two nights a week for eleven weeks at the house of Kalolo and Leiloa. It also included the costs for the use of the van to take the company’s staff around Savaii to sell raffle tickets. The number of the company’s staff that went to Savaii to sell raffle tickets varied from two, three, or four a week. For the next ten weeks from 13 June 2011 to 15 August 2011, Kalolo and Leiloa made no further payments.
20. In other words, for twenty four weeks from 28 February 2011 to 15 August 2011, Kalolo and Leiloa had made no weekly payments towards the outstanding balance of the purchase price of the van. Then on 22 August 2011, they made a lump sum payment of $2,000. For the next nine weeks up to 24 October 2011 when the sixty one week period to pay off the outstanding balance of the purchase price of the van ended, Kalolo and Leiloa made no further weekly payments. At that time, according to the company’s records, the amount of $14,740 was still outstanding on the purchase price of the van. Then on 3 February 2012, about three months later, Kalolo and Leiloa made a further payment of $800. If that $800 is deducted from the outstanding balance of $14,740, there will still be an outstanding balance of $13,940 which is a substantial amount.

Payment for the use by the company’s staff of the van and the house of the accused in Savaii.

21. According to the evidence of Leiloa, members of the staff of the Original Car Warehouse Ltd stayed in their house in Savaii for two nights a week for eleven weeks from 24 March 2011 to 2 June 2011 to sell raffle tickets in Savaii. The number of staff members varied from time to time from two, three, or four. The house of Kalolo and Leiloa has three bedrooms. When the company’s staff come to Savaii, they stayed in two of the bedrooms while Kalolo and Leiloa would stay in the third bedroom. Apart from food and accommodation, the company’s staff used the van sold by the company to Kalolo and Leiloa to travel around Savaii to sell raffle tickets. The undated invoice that was prepared by Leiloa and produced in evidence shows that the daily hire of the van was $300, daily petrol was $100, and food and accommodation for two nights was $400. The total amount charged for the eleven weeks in the undated invoice for the hire of the van, petrol, food and accommodation is $12,100. The amount of $850 is then added on for fixing the rust to the back door of the van. This makes the total amount of the invoice $12,950. Leiloa and Kalolo said that this amount of $12,950 when added on to the weekly instalment payments they had made would cover the total amount of the balance that was outstanding on the purchase price of the van. So Leiloa says at p.105 of the transcript of the evidence that when they resold the van to Saina and Sisi, they thought they had become the owners of the van because they have finished paying off its full price. As mentioned earlier, this is inconsistent with the earlier evidence of Kalolo and Leiloa that when they took the van away from the premises of the Original Car Warehouse Ltd after executing the sale and purchase agreement and paid the deposit they thought they had become the owners of the van at that time even though there was a significant outstanding balance on the purchase price.
22. Leiloa also said that the $400 shown in their undated invoice for two nights a week includes $200 for accommodation and $200 for food. This is the same amount shown in the invoice for each of the eleven weeks that the company’s staff went to Savaii and stayed in the house of Kalolo and Leiloa. It is not clear, as Leiloa was somewhat evasive in her answers, why the same amount was charged all of the time for food and accommodation even though the number of the company’s staff that went to Savaii and stayed in the house of Kalolo and Leiloa varied from time to time from two, three, or four. I have not found Leiloa to be a credible witness.
23. Leiloa also testified that the said invoice was given to Mr Mansell and Adele in a meeting held at the office of the company’s lawyer in Apia. Present at that meeting were Mr Mansell, Adele, Julie a staff member of the company’s lawyer, and Leiloa. Leiloa said this meeting was held in October 2011 but she could not recall the exact date in October. If this is correct, then the invoice was given to Mr Mansell and Adele before Kalolo and Leiloa resold the van on 19 December 2011 to Saina and Sisi. This falls into place with the contention by defence counsel that the accused did not intend to obtain monies from Saina and Sisi by false pretence or commit theft by conversion because at the time the van was resold, Kalolo and Leiloa believed they had paid off the van and they had therefore become the owners of the van.
24. However, Mr Mansell in his evidence in chief said that the meeting at the office of the company’s lawyer was on 8 October 2012. It was at that meeting that Leiloa gave him a copy of the invoice and he rejected the invoice straightaway. Mr Mansell also said that in the course of the meeting Leiloa agreed that the company’s figures of $130 a week for the company’s staff to stay at the house of Kalolo and Leiloa in Savaii were the correct figures. Adele, the company’s manager, was adamant in her evidence that the meeting at the office of their company’s lawyer was held on 8 October 2012 and not October 2011. It was at that meeting the invoice was given to her and Mr Mansell. It was also at that meeting that they learnt for the first time from Leiloa that she and Kalolo had sold the van to Saina Seumanutafa and Sisi Seumanutafa for $20,000. Leiloa then apologised for reselling the van.
25. I find the evidence of Mr Mansell and particularly that of Adele convincing and believable. I therefore accept that the meeting at the office of the company’s lawyer was in October 2012 and not October 2011 as Leiloa testified. This being so, the reliance by defence counsel on the invoice being given to Mr Mansell and Adele at the meeting said to have been held in October 2011 so that when Kalolo and Leiloa resold the van on 19 December 2011 they believed they had become the owners of the van after paying off its full purchase price is without foundation. I find as a fact that the said meeting was held in October 2012 about ten months after Kalolo and Leiloa had resold the van to Saina and Sisi. So Kalolo and Leiloa could not have based on the invoice any honest belief that they had acquired ownership of the van before they resold it on 19 December 2011. This is because the invoice must have only come into existence after Kalolo and Leiloa resold the van.
26. Furthermore, if it is assumed for the sake of argument that the company owed Kalolo and Leiloa the amount of $12,950 claimed in their invoice, the records of the company show that as of 19 December 2011 the outstanding balance on the purchase price was $14,740. Subtract the $12,950 in the invoice from $14,740 and what is left is $1,790. Add on the amount of $2,860 which was credited on 6 June 2011 to the account of Kalolo and Leiloa and the balance outstanding on their account as of 19 December 2011 would be $4,650 which is not an insignificant amount.
27. In addition, Kalolo and Leiloa made a further payment to the purchase price of the van on 3 February 2012 after they had resold the van on 19 December 2011. This suggests that Kalolo and Leiloa could not have honestly believed that when they resold the van to Saina and Sisi, ownership had already passed to them because they have paid off the full balance that was outstanding on the purchase price. By making a further payment of $800 on 3 February 2012 implies that they must have known that they had not paid off the full purchase price of the van when they resold it on 19 December 2011. I disbelieve the evidence of Kalolo and Leiloa that when they resold the van to Saina and Sisi they believed that they were already the owners of the van.

Resale of the van

28. The prosecution witnesses Saina and Sisi are brother and sister. Sisi testified that in December 2011 she and her brother Saina, who had just returned from American Samoa with $10,000, were looking for a car to buy for their parents in Savaii. At that time, a van was being advertised for sale on one of the radio stations. She called the phone number given in the advertisement and talked to Leiloa whom she had not known or seen before. Leiloa gave her name as “Faapale” which is the name used by Leiloa in all her dealings with Saina and Sisi. When Sisi enquired about the van and its price, Leiloa replied it is $30,000. So Sisi told Leiloa that she does not have enough money as she has only $10,000 and hung up the phone. About five minutes later, Leiloa called Sisi and agreed to drop the pirce to $15,000 but Sisi replied she would look for another car as she does not have enough money. About ten minutes later, Leiloa called Sisi again and told her that she has talked to her husband and they have agreed to sell the van to her for $15,000 with Sisi handing over the $10,000 she has as a deposit and the balance of $5,000 to be paid by instalments. Kalolo in his evidence did not deny that he was also involved in the sale of the van to Sisi and Saina. At p.77 of the transcript of the evidence, he said that he and Leiloa advertised the van for sale at $20,000 and it was him and Leiloa who sold the van to Saina Seumanutafa of Safa’i. At p.93 of the transcript, he said that he sold the van to Saina. Kalolo’s subsequent actions in relation to the van further shows that he was as much involved in the sale of the van to Saina as Sisi as Leiloa was. This was in spite of the fact that Kalolo and Leiloa were well behind with their payments of the purchase of the van to Original Car Warehouse ltd and the fact that in the sale and purchase agreement explained by Mr Mansell to Kalolo, ownership of the van remains with the company until the full purchase price has been paid.
29. Sisi further testified that when she went with Saina to the house of Kalolo and Leiloa at Lalovaea to buy the van, only Leiloa was at the house. They then went with Leiloa to test drive the van. When they returned to Leiloa’s house, Sisi and Saina asked Leiloa as to where they had obtained the van from. Leiloa replied that she and her husband had bought the van with money they had won from the lotto. When Leiloa was further asked as to why they were selling their van, she replied that her family were relocating to New Zealand and they needed money for their airfares.
30. Saina gave the same evidence as Sisi. He said that Leiloa sold the van to him and his sister for $15,000 and they paid $10,000 as deposit with the balance of $5,000 to be paid later by instalments. Saina also said that Leiloa told him and his sister that the van belongs to her and her husband and they had bought the van with money they had won from the lotto. Leiloa also told them that they were selling their van as their family were relocating to New Zealand. At no time did Leiloa say that the van was purchased from the Original Car Warehouse Ltd and that she and Kalolo had not finished paying off the purchase price of the van.
31. Leiloa in her evidence denied that she said to Saina and Sisi that she and Kalolo had bought the van with money they had won from the lotto or that their family were relocating to New Zealand. She also said that the van was sold to Saina and Sisi for $20,000 and not $15,000. I also disbelieve this part of Leiloa’s evidence. Saina and Sisi appeared to be honest witnesses who have no reason to lie about what Leiloa had said to them. What Leiloa had said to Saina and Sisi was false. Leiloa and Kalolo did not buy the van from any money they had won from the lotto and they had no plans to relocate to New Zealand.
32. About two weeks after the van was sold, Leiloa went to the family of Saina and Sisi in Savaii and asked for the van back to be insured. She then brought the van back to Apia and kept it for a week. Saina accompanied Leiloa to Apia and stayed in Apia for a week for Leiloa and Kalolo to insure the van. It is not clear whether Leiloa insured the van or why it took one week to do the insurance.
33. When Saina and Sisi were behind with the payment of the balance of the purchase price of the van, Kalolo repossessed the van in June 2012. According to Kalolo and Leiloa, ownership of the van remained with them until Saina and Sisi paid the full purchase price. Kalolo and Leiloa were also claiming through their lawyer that the purchase price of the van is $20,000 and not $15,000 and the outstanding balance was $10,000 and not $5,000. Saina paid the $10,000 because he was desperate to get the van back for his parents. Kalolo then signed the papers for the transfer of ownership to Saina and had them registered. In October 2012, the Original Car Warehouse Ltd repossessed the van from Saina’s family in Savaii because Kalolo and Leiloa by that time had still not paid the outstanding balance of the purchase price of the van and they were seriously in arrears with their payments. So Saina and Sisi were without a car and the $20,000 paid to Kalolo and Leiloa.
34. The prosecution witness Atinae Seumanutafa (Atinae) who is the older brother of Saina and Sisi testified that on 6 September 2015, Kalolo came and apologised to their family regarding the van and promised to pay back $10,000 by 19 September 2015. Up to now Kaolo has not paid back any money. On 24 September 2016, Kalolo and Leiloa were charged by the police with obtaining by false pretence and obtaining by deception and on 12 November 2015 they were further charged with theft by conversion.
35. At p.81 of the transcript of the evidence, Kalolo denies that he apologised to the family of Atina’e. He said he went and talked with Atina’e’s family and informed them about the money to be paid. I must say that I have found Kalolo not to be credible witness. I do not believe what he said. I prefer Atinae’s evidence. It is also not clear what was the money to be paid that Kalolo was referring to.

Discussion

(a) Theft by conversion

36. I will now relate the evidence to each of the elements of the charge of theft by conversation which the prosecution must prove beyond reasonable doubt in order to succeed. As to the first element of the charge, namely, that the accused must have converted an item of property to the use of another, conversion in this context consists of an act inconsistent with the rights of the owner of the goods unless the acts done were done in accordance with the actual authority of the owner or with his prior consent: McNicholl v Police (1990) 6 CRNZ 603; Adams on Criminal Law ( 1992), CA 220.08, vol 1.
37. In terms of the sale and purchase agreement that was executed by the Original Car Warehouse Ltd and the accused Kalolo and Leiloa, ownership of the van was to remain with the company until the full purchase price was paid. The agreement including the reservation of title clause was explained by Mr Mansell to Kalolo while Leiloa was sitting close by. So Kalolo was actually aware of the agreement and its contents. In all the circumstances, it would also be unrealistic to think that Leiloa was not aware of the contents of the agreement including the reservation of title clause. I conclude that Leiloa was also aware that ownership of the van was to remain with the company until the purchase price was paid in full. However, Kalolo and Leiloa resold the van to Saina and Sisi before they had paid the full price to the company and while they were seriously in arrears with their weekly instalment payments. This was clearly inconsistent with the rights of the company to the van under the agreement. I am therefore satisfied that the prosecution has proved the first element of the charge beyond reasonable doubt.
38. In respect of the second element of the charge, namely, that the act of conversion was dishonest, the accused resold the van knowing that they had no right to do so because ownership remained with the company until the purchase price was paid in full. They were also seriously in arrears with their payments of the purchase price. The undated invoice which was produced to show their claim for what they allege the company owed them was an attempt to cover up for their wrongdoing. I am also satisfied that the accused did not have any honest belief at the time they resold the van to Saina and Sisi that they were already the owners of the van. They knew that ownership of the van remained with the original Car Warehouse Ltd until the purchase price had been paid full. They must also have known that they had not paid the full purchase price of the van and that they were seriously in arrears with their payments. Leiloa also lied to Saina and Sisi that the van was bought with money they had won from the lotto and that they were selling their van because her family were relocating to New Zealand. At the meeting in the office of the employer’s lawyer, Leiloa also apologised to Mr. Mansell and Adele for having sold the van without the knowledge or authority of the company. I am satisfied that the conversion of the van committed by the two accused was dishonest. The second element of the charge has therefore been proved beyond reasonable doubt.
39. For the defence of honest belief relied upon by both accused, I refer to R v Coombridge [1976] NZCA 2; [1976] 2 NZLR 381, para 7; R v Williams [1984] NZCA 96; [1985] 1 NZLR 294, pp15-16; R v Firth [1998] 1 NZLR 513, para 7. For relevant textbook discussions, see Principles of Criminal Law para 19.4.1, 2nd ed by AP Simester and WJ Brookbanks; Adams on Criminal Law CA 220.06, 2nd ed. For a case where honest belief was raised as a defence in the context of a reservation of title clause as it is in this case, see R v Nottingham [1991] NZCA 80; [1992] 1 NZLR 395.
40. The third element of the charge is that the accused must have had an intention to deprive the owner permanently of the property. The resale by the accused of the van to Saina and Sisi and the transfer of ownership of the van to Saina and Sisi is sufficient evidence of a clear intention on the part of both accused to deprive the Original Car Warehouse Ltd of the van permanently. I am therefore satisfied that the prosecution has also proved the third element of the charge beyond reasonable doubt.
41. All in all then, the prosecution has proved the charge of theft by conversion beyond reasonable doubt.

(b) Obtaining by false pretence – information s3585/15

42. With the charge of obtaining by false pretence in information s. 3585/15, the first element is that there must be an obtaining, that is to say, the accused must have gained possession or ownership of an item of property. Kalolo and Leiloa had sold the van to Saina and Sisi for $20,000 which was paid. So Kalolo and Leiloa gained possession and ownership of that money. The prosecution has therefore proved the first element of the charge beyond reasonable doubt.
43. With the second element of the charge, namely, by any false pretence, which is to say, a false representation made to another person with a fraudulent intent to induce that person to act on it, it is clear that both Kalolo and Leiloa were involved in the advertisement of the van over the radio for sale. They were also both involved in the actual sale of the van to Saina and Sisi. Even though Kalolo was not present at the time of the sale, he was consulted on the phone about it by Leiloa. The false representations made by Leiloa to Saina and Sisi were that she and her husband were the owners of the van, they bought the van with money they had won from the lotto, and they were selling the van because her family were relocating to New Zealand. It is evident that Leiloa made those false representations in order to induce Saina and Sisi to buy the van. If she had told the truth to Saina and Sisi that the van was purchased from the Original Car Warehouse Ltd and that ownership remained with the company until the purchase price had been paid in full and that she and Kalolo have not paid the full purchase price, Saina and Sisi would certainly have not purchased the van. I am also satisfied that the prosecution has proved the second element of the charge beyond reasonable doubt.
44. With the third element of the charge, namely, with intent to defraud, it is evident that both Kalolo and Leiloa advertised the van for sale as if it is their own van. After consulting with Kalolo on the phone, Leiloa misled Saina and Sisi about how she and Kalolo acquired the van and why they were selling it. The apology by Leiloa to Mr Mansell and Adele in the office of the company’s lawyer for selling the van without the knowledge or authority of the company shows that what Leiloa said to Saina and Sisi that she and her husband were the owners of the van was false. Kalolo’s subsequent apology to the family of Saina and Sisi after the van was repossessed by the company and his promise to refund $10,000 also suggests that Kalolo must have known all along that he and Leiloa were deceiving Saina and Sisi into buying the van. I am also satisfied that the prosecution has proved the third element of the charge beyond reasonable doubt.
45. As all three elements of the charge of obtaining by false pretence in information s.3585/15 have been proved beyond reasonable doubt, this charge has been established.
    

(c) Obtaining by false pretence – information s.3259/15

46. Information s.3259/15 is laid pursuant to s.89 of the Crimes Ordinance 1961 which created the offence of obtaining by false pretence. This information charges that the accused Kalolo by deception sold the van without making full payment to the Original Car Warehouse Ltd. The information does not disclose an offence. It also appears that to an extent it is trying to repeat the charge of obtaining by false pretence in information S.3585/15. Information S.3259/15 is inappropriate and unnecessary. It is dismissed.
    47. Before leaving this part of my judgment, I should point that an accused or defendant is not an element of an offence as the prosecution seems to suggest in its submissions. An offender is different from an offence which is prescribed in the provisions of the Crimes legislation. And the question of the identity or identification of an accused is not to be confused with the elements of an offence.

Conclusions

48. (a) The charge of theft by conversion has been proved beyond reasonable doubt.

(b) The charge of obtaining by false pretence in information s.3285/15 has also been proved beyond reasonable doubt.

(c) The charge of obtaining by false pretence in information s.3259/15 is inappropriate and is dismissed.

CHIEF JUSTICE