Police v Lavea [2017] WSSC 146 (24 November 2017)

SUPREME COURT OF SAMOA
Police v Lavea [2017] WSSC 146

Case name:	Police v Lavea
Citation:	[2017] WSSC 146
Decision date:	24 November 2017
Parties:	POLICE (Prosecution) AND HAWAII LAVEA, male of Moataa. (Defendant)
Hearing date(s):	28 – 31 August 2017 & 05 September 2017
File number(s):	S3600/15, S3645/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The ingredients of the first charge have been made out he is guilty of forging saofa’i certificate number 292. For similar reasons he is also guilty of the second charge of using this forged saofa’i certificate to register his name with the Registrar of the Land and Titles Court. He knew the document was a false document and by law therefore a forgery, he used dealt with it and acted upon it (“uses, deals with or acts upon”) as if it were genuine by lodging it for registration with the Land and Titles Court who did rely upon it as genuine. He also caused the Registrar of the Court to “use, deal with or act upon it” as if it were genuine by publishing particulars of same in the Savali of 28 March 2014. The only correction that needs to be made is to the place where this offence was allegedly committed. It was not at Moataa on the 10th of February 2014 as alleged but at Mulinuu on 10 February 2014 when he lodged the certificate with the court. He is accordingly found guilty in respect of the second information as well. Even if the prosecution had been unable to prove the document in question was not a false document, the court would have still found him guilty pursuant to section 93 of the Criminal Procedure Act 2016 of the lesser offence of wilfully supplying false information to the pulenu’u and to the Registrar of the Land and Titles Court in contravention of 24(a) of the Land and Titles Act 1981. Culpability under section 24(b) would probably also have followed but given the result in this proceeding it is unnecessary to travel down that path.
Representation:	L Su’a-Mailo for prosecution R Schuster for defendant
Catchwords:	Forgery – using a false document – act upon as if it were genuine – ingredient – satisfied beyond reasonable doubt -found guilty
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016 Land and Titles Act 1981
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

HAWAII LAVEA, male of Moata’a.
Defendant

Counsel:
L Su’a-Mailo for prosecution
R Schuster for defendant

Decision: 24 November 2017

ORAL DECISION OF NELSON J

Charges

1. In a poorly worded information number S3645/15 defendant has been charged that at Moata’a on 16 January 2012, he made a false document namely pepa saofa’i number 292 for the purpose of registering his matai title ‘Toafaiga’ in the village of Moata’a with the Registrar of the Land and Titles Court. And that he caused said Registrar to act upon it as if it were genuine, and has thereby committed the crime of forgery contrary to section 194(2) of the Crimes Act 2013.
2. Second charge against him by information S3600/15 is that at Moata’a on 10 February 2014, he knowingly used this false saofa’i certificate to register his title ‘Toafaiga’ with the Registrar. And he caused said Registrar to act upon this document as if it were genuine and thereby committed the crime of using a false document contrary to sections 195(1) (b) and 195(1) (c) of the Crimes Act 2013.

Background

3. The defendant is a 47 year old matai holding the title ‘Fofogamua’ in the village of Moata’a. He holds other titles in other villages. He is a member of the Leuluaialii family of Moata’a whose sa’o at the relevant time was Asi Leulu’aiali’i Feagaiga Iva who passed away on 08 February 2013. He was by his own testimony the leader of their side of the family. According to the defendant the family had been divided for some time but in or about December 2011 they reconciled. And it was decided to have a matai title conferral ceremony to cement the occasion. This was scheduled for Saturday 24 December 2011 and each side attended to choosing their respective new title-holders.
4. On Thursday 22 December 2011 the two sides came together to finalise plans for the event and on Friday 23 December 2011, the saofaga of each matai and the various branches of the family were combined as per normal cultural practice. In the evening the village pastor Reverend Taipisia Leilua was summoned to perform the Lotu for the new nofos and on Saturday 24 December 2011, saofa’i’s were held at the village of Moata’a.
5. The occasion was covered by the Samoa Observer which reported on the event in these terms:

“Titles bestowed at Moata’a

The Asi Leulua’iali’i family of Moata’a will never forget this Christmas season. Last Saturday, the family blessed 24 new matai (chiefs) to serve the family, church and the village.

The titles bestowed included A’emalo, Fofogafa, Falepauga, Taliauala, Toafaiga, Mua’avasa, Fanuasa and Pugalilo. Rev Dr Taipisia Leilua of the Moata’a Congregation Christian Church of Samoa blessed the new titleholders during a special ceremony on Friday night. This was followed by traditional festivities on Saturday.

Fofogamua Albert Lavea said the title bestowal ceremony brought together their family for Christmas. The timing was planned so that everyone can be in Samoa to celebrate the festive season.

“It’s a celebration of oneness and it’s also preparation to celebrate Christmas this year,” Fofogamua said.

The new titleholders come from as far as Australia, New Zealand, United States of America and American Samoa. Local members of the family were also bestowed the honour.”

Prosecution evidence

6. The evidence of Reverend Leilua was he was surprised at the familys request to have the Lotu the night before the saofa’i’s were held. Usually it is held on the day of the ceremony at the same time as the blessing (“fa’apaiaina”) of the new nofos. However he accepted the request and performed the Lotu on the Friday evening. He recalled there were many people in attendance.
7. He also clearly recollects being given by a senior member of the Asi Leulua’iali’i family a List of Nofos titled “Lisi o Nofo – 24/12/2011” produced as Exhibit “P-1” for prosecution. That List contained the names of the twenty four (24) new title-holders in order of customary seniority as follows:

“1. Tasalautele Felila (Augafa’apae)

2. Fa’ifa’imea Ulatifa (To’oto’o Faiupu)
3. (Alii) (Matai Tautua)
1. Leulua’iali’i Luisa
2. Leulua’iali’i Sialafia
3. Leulua’iali’i Pouvave
4. Leulua’iali’i Katesa
5. Leulua’iali’i Tine
6. Leulua’iali’i Lolovai
7. Leulua’iali’i Gase
8. Leulua’iali’i Peni
9. Leulua’iali’i Al Harry
10. Leulua’iali’i Ma’anaima
11. Leulua’iali’i Fa’apale

(Tulāfale)

1. Falepāuga Fa’afaō
2. A’emalemalo Misipusi
3. Matamata Mataio
4. Fofogafā Isa’ako
5. Toafaigā Junior
6. Punalilo Ioane
7. Fanuasā Alu
8. Muavasā Iopu
9. A’emalemalo Haseni
10. Sili’aga Alapati
11. Taliauala Palota”
8. Significantly, the defendants name and his Toafaiga title was not on the List. Which refers to his son Junior as the only recipient of the Toafaiga title. List would have been used for the purposes of the Lotu and the fa’apaiaina of the new nofos on the Saturday. The Reverend added that as per his usual practice he made a note of the event and placed the List in his diary. Where it remained until requested by the Police for this case.
9. The Reverend was certain there was no revised or other List of Nofos given to him by anyone. He said he knows the defendant well but cannot recall seeing him as both the Lotu and saofa’i were crowded. Because there were so many nofos and space was limited, the saofa’i blessing on the Saturday was bestowed as a general one over all the kneeling title-holders. Not individually to each nofo.
10. As to the events on the Saturday, the prosecution called a number of witnesses consisting primarily of matais of the village:
    1. Leulua’iali’i Ma’anaima Patu
    2. Toatelegese Punefu
    3. Nua Palala
    4. Falepāuga Fa’afaō
    5. Safanua Tapu
    6. Tamapua Iosefa
    7. Tulatoa Ulafala
    8. Leulua’iali’i Lefu Feagaiga Iva
    9. Reverend Taipisia Leilua
    10. Fa’ifa’imea Ulatifa and
    11. Vaagi Samoa
11. All of them except Falepauga Fa’afaō agreed the defendant was not conferred the Toafaiga title on the day in question. There was division among the witnesses as to where exactly the defendant was seated. Whether inside the maota or elsewhere and as to whether his earlier banishment from the village for unrelated misconduct was revoked that day prior to the saofa’i ceremony. But 9/10 of the witnesses including the tuua of the village Tamapua Iosefa who delivered the keynote speech (“lauga”) that day said the defendant did not receive the Toafaiga or any other title. Only his son Toafaiga Junior. Some of these nine (9) such as Leulua’iali’i Ma’anaima Patu and Nua Palala (a particularly credible witness) are related to the defendant. No reason for them to lie in their evidence and they did not appear mistaken or unable to recall what happened.
12. As for Falepāuga Fa’afaō I was not impressed with his evidence. He only mentioned this key point in cross examination and he is related to the defendant. Furthermore, he is one of the new nofo of the defendants side and is a “fai-avā” nominated by the defendant for a title.
13. At all material times, the pulenu’u of Moata’a was Taele Sitivi who held office from 15 June 2011 to 15 June 2013 and was present at the saofa’i’s on Saturday 24 December 2011. His evidence was shortly after saofa’i’s finished, he was sent for by Asi Leulua’iali’i who requested saofa’i certificates for his two sisters Leulua’iali’i Sialafia and Leulua’iali’i Luisa who were returning to New Zealand the next day. He said he went to Asis house and completed saofa’i certificate number 272 for Leulua’iali’i Sialafia and saofa’i certificate number 273 for Leulua’iali’i Luisa. See Saofa’i Certificates Book Exhibit “P-10” for prosecution. The forms were filled in and signed by each title-holder in his presence and he added his signature and details at the bottom. He also said the sa’o of the family signed the certificates which is apparent from the forms.
14. Taele went on to say sometime in January 2012 after Christmas and New Year he went around to obtain the particulars and signatures of the other new title-holders. Arriving at the defendants house, he found no-one except for the defendant. Defendant asked if could keep the saofa’i book and leave it to him to fill in the details for members of his family. The defendant reassured him all would be well as he too used to be a pulenu’u and he knows the procedure. The evidence indicated the defendant was a former pulenu’u of the neighbouring village of Vaiala. He obviously knew what needed to be done.
15. Taele went on to testify that the next day he returned to uplift the Book but the defendant was not at home. So he travelled to the defendants family at Vailele where the defendant gave him the Book with various completed and signed entries namely saofa’i certificate numbers 278 to 296 of “P-10”. He also said the signature of the sa’o appeared on all the certificates, although this signature is not apparent on the copies of 278 to 296 in “P-10”.
16. He said defendant told him he had completed these forms as they were all matais of his family. All that was required was his signature as the pulenu’u. When he queried one of the certificates, the defendant threatened him in a loud voice three times and told him to just “sign”. He was frightened and intimidated so he did. In his evidence in chief he initially said the query was in relation to saofa’i certificate number 278 regarding Leulua’iali’i Al Harrington, the defendants brother. But when questioned further by the prosecutor, he said it was saofa’i certificate 292 for the defendants Toafaiga title that he queried resulting in the threats.
17. When shown the original of saofa’i certificate 292 produced as Exhibit “P-9” for the prosecution the witness noted the difference between the original and the copy in his Book. Firstly the signature of the ‘fa’apogai’ of the nofo and sa’o of the family Asi Leulua’iali’i appeared on the original only, not on the copy in the Book. Similarly the words “Fofogamua H” appear under ‘fa’apogai o le nofo’ on the original but not in the copy in “P-10”. This suggests these two matters were added only to the original after it had been removed from the Book. In all other respects the original and the Book copies are identical.
18. The witness stressed that his only contribution to the document was his signature, everything else he says was filled in by the defendant. He also disputed the part reading ‘Suafa Fa’avae’. He said the ‘Toafaiga’ title is not a suafa fa’avae of Moata’a. This is the first time it has been created and as pulenu’u he should know this. His further evidence was the usual procedure is that the candidate fills in his own details in front of him then he signs. For example saofa’i certificate 276 for Fa’ifa’imea Ulatifa, he filled in his details before him then as pulenu’u he signed.
19. As for the originals of the certificates his testimony was the defendant tore them out of the Book and told him not to worry, he would take those for his “tei” to the Registrar for registration purposes. Curiously I noted pages 277, 286 and 295 are missing from “P-10” but the witness was unable to explain why. No answer can be found from the rest of the evidence either as to what happened to those pepa saofa’i.
20. The final prosecution witness was Deputy Registrar Sa’u Isara of the Land and Titles Courts Division responsible inter alia for registration of matai titles. He said each saofa’i certificate has three copies, the original white copy is for the Registrar, the second copy is for the new title holder and the third blue copy remains in the Book as the pulenu’us record. Once full the saofa’i book is returned to the Land and Titles Court office, the original is used as the basis for publication of the saofa’i in the Savali newspaper as required by law. If no objections are received within three months of publication the title is registered in the Register of Matais.
21. In relation to saofa’i certificate 292 which is at the centre of this case, he confirmed it was only received by the office on 10 February 2014 some two years after the saofa’i was held. This is well in excess of the fourteen day time limit for lodging such documents prescribed by law. But he stated the office does not enforce this time limit and routinely accepts late lodging of saofa’i certificates. This is an illegal practice fraught with dangerous implications and is not one to be encouraged.
22. The evidence also establishes that after the saofa’i certificate was lodged, the details were published in the Savali edition of 28 March 2014 Exhibit “P-2” for prosecution particularized as follows:

“Village: Moata’a,

Title: Toafaiga,

Taulealea names: Albert H Richard Tuimalealiifano Lavea

Faapogai: Asi Leulua’iali’i Fofogamua Feagaiga Iva, Fofogamua H”

The defendants evidence is Albert Richard Tuimalealiifano are his other names.

23. Objections were lodged to this title and Deputy Registrar Sa’u confirmed it was invalidated or “soloia” by a subsequent decision of the Land and Titles Court.

The defence evidence

24. Defendant was adamant in his evidence that he was conferred the Toafaiga title on the day in question. He said an extra seven (7) titles were added the morning of the saofa’i ceremony. He explained that at the request of the sa’o, the titles Leulua’iali’i Ma’anaima and Taliauala Palota both of which appear on the Reverends “P-1” List were to be added. He agreed to these additions and to foregoing of a “saogamea” (contribution) from these matais but added five additional nofos from his own side. These five were himself and his son Junior for the Toafaiga title, two Fofogamua titles for his other sons Chris and Des and Punalilo Ioane for his taxi driver friend.
25. Of these only Toafaiga Junior and Punalilo Ioane appears on the Reverends “P-1” List. For these extra nofos he contributed an additional $2,000 to the saogamea “mo le fa’amoemoe”. Because this latter aspect had not been put in cross examination to the prosecution witnesses, it was correctly objected to by counsel for the prosecution.
26. Defendant also testified that his banishment from the village was terminated prior to the saofa’i’s being held at the request of Asi Leulua’iali’i as accepted by Tamapua Iosefa. And he therefore properly participated in the ceremony and was properly conferred the Toafaiga title.
27. Contrary to the evidence of all the prosecution witnesses he said he drank a cup of ava for his title and for the absent title holders, his brothers Leulua’iali’i Al Harrington and A’emalemalo Haseni. In relation to the saofa’i certificates he said the family had a celebratory to’onai on Sunday, 01 January 2012 where he obtained all the relevant details from the new title-holders which he passed to the pulenu’u Taele a few days later.
28. On 16 January 2012, the family gathered again at the request of the sa’o at the family maota, all certificates had been filled in and signed by the sa’o and the pulenu’u and only required the signature of the new nofos. This was done and that concluded the matter. He expressed surprise at the subsequent objections to his title and said they are maliciously founded. He was surprised at these proceedings. He rejected the faifeaus evidence about the List saying this was not the correct List and he denies the evidence of all the prosecution witnesses about no title being conferred upon him.
29. Initially in cross examination he also denied the prosecution evidence that he talked to the Samoa Observer reporter. He said it was Fa’ifa’imea Ulatifa and another matai Motupua’a who did this. Upon further questioning in cross examination and it being pointed out he was quoted by the Observer in their report, he then changed his evidence and accepted he had talked to the Observer but only to the extent of the quote attributed to him.
30. As for the late submission of saofa’i certificate 292 his explanation was he forgot as he was pre-occupied with other matters. He denied the suggestion that he only lodged 292 after he discovered the sa’o of the family died in 2013.
31. The defendant also called two witnesses in support, his nephew Fofogafā Isaako and his mother Leulua’iali’i Fa’apale who were two of the title-holders at the saofa’i . Both agreed with the defendants version of events.

Analysis

32. I come now to an analysis of all these evidences. The prosecution case is the defendant filled in the details of saofa’i certificate 292 including the false representation that he was conferred the Toafaiga title. Further that he forged the signature of the sa’o Asi Leulua’iali’i on the “P-9” 292 original. The prosecution attempted to provide evidence from a number of witnesses including Asi Leulua’iali’is son Leulua’iali’i Lefu Feagaiga as to his father’s signature and how it differed from that appearing in “P-9”. This evidence was far from convincing as the signature in the documents he reportedly signed and that on “P-9” are not in my view radically different.
33. If the prosecution seriously contended this, they should have subjected “P-9” and the other relevant documents to forensic scrutiny by an appropriately qualified expert. Absent that I reject such unqualified opinion evidence as inadequate and not proof beyond reasonable doubt the signature of Asi Leulua’iali’i on “P-9” was forged and that it was forged by the defendant.
34. I have no difficulty however in accepting the prosecution evidence on other matters -namely that “P-1” correctly represents the nofos agreed upon by the family and that this List was duly given to Reverend Taipisia on the Friday evening before the saofa’i s for the purposes of the Lotu. And was the operative List used the next day at the saofa’i ceremony. In this respect the evidence of the prosecution witnesses is overwhelming consistent and persuasive.
35. I reject the testimony of the defendant which had no ring of truth of any kind. For example it is simply not credible that he would pay an extra $2,000 over and above the saogamea already provided and for titles added by the other side of the family. And if he was conferred the Toafaiga title why would the speaker of the day and tu’ua of the village plus the pulenu’u of the village plus the other matais of the village not be aware of this? This simply does not occur in a saofa’i ceremony. Especially one involving high ali’i titles of an afio’aga. He may have been fa’aa’e that day prior to the ceremony, on this issue the witnesses were divided. But that is a separate issue to whether he was conferred the Toafaiga title. On that all prosecution witnesses except for one were in unison.
36. There is also the matter of the Samoa Observer report which he initially denied but in cross-examination changed his evidence to agreeing he did talk to the Observer. The newspaper report is significant in a number of respects. Firstly it points out contrary to what the defendant says that there were twenty four nofos in total. Second it refers in the caption to the photo and in the body of the article to the new title-holders by their new matai titles. When referring to the defendant there is no mention of him having the Toafaiga title. One would expect the defendant would be proud of his new title and would emphasise this to the reporter. The newspaper report is now good and admissible evidence and it favours the prosecution case.
37. I also do not see why as per the defendants evidence the family had to gather again on 16 January 2012 some two weeks after the first gathering to sign their saofa’i certificates. The same result could have been easily achieved by summoning one person, the pulenu’u to the family gathering on New Year’s Day the 01 January 2012 family to’onai to complete the necessary formalities. One wonders if the overseas visitors referred to in the Observer article would still even have been in Samoa by that day.
38. Furthermore a perusal of the “P-10” saofa’i book indicates quite clearly that certificates 278 to 281 and 289 to 296 were filled in by the same person, whereas those numbered 282 to 288 by a different person. The first group includes the saofa’i certificates issued for the defendants mother, his brothers and sons and also 292 which is alleged to be a false document. This is strong evidence the defendant was the one responsible for these particular saofa’i certificates, no-one else. The pulenu’u was certainly not in a position to have knowledge of details pertaining to members of the defendants immediate family.
39. There has also been no explanation by the defendant why if in fact it is true that his title and that of his other sons were only added on the morning of the saofa’i and not when these nofos were planned by the parties. As we are all aware preparations for such occasions are usually done meticulously and well in advance to avoid any last minute surprises on what is usually a hectic day for the family and for the village. There are also pre-ceremony preparations every title holder has to attend to for example in relation to dress, customary adornments, etc.
40. As for the defendants supporting witnesses his nephew Fofogafā Isaako was one of the 24 December 2011 title-holders who said the defendant was conferred the Toafaiga title that day. But this witness also admitted in cross examination he told the police a different story. In a written statement dated 09 November 2015 he told the police the defendant was not bestowed the Toafaiga title only his son. In answer to my questions he said he knew this was wrong but he did it anyway in compliance with instructions from the Moata’a village elders. The evidence of a self confessed liar is to be treated with great caution and circumspection especially one closely related to the defendant. It is also significant that when he was asked in re-examination by defence counsel to cite the nofos added on the Saturday morning he did not include the defendants Toafaiga title or even the defendants name.
41. The defendants second witness was his 76 year old mother Leulua’iali’i Faapale another of the 24 December 2011 title-holders. Naturally she supported her son but by no stretch of the imagination can she be regarded as unbiased or independent. And in cross-examination her answers were evasive on critical issues for example regarding the number of nofos and the status of the sa’o in their family. When it was pointed out to her that her evidence differed from that of her son on the issue of when the money to fa’aa’e the defendant was presented to the village, her answer was “e sa’o uma mea na e lua!” Not a witness that inspires any confidence.
42. I prefer the evidence of the prosecution. The remaining question is whether that evidence establishes the charges against the defendant beyond reasonable doubt.

Conclusions

43. The defendant is charged with an offence under section 194(2) of the Crimes Act 2013 which provides:

“(2) A person is liable to imprisonment for a term not exceeding 10 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in Samoa or another country, as genuine.”

44. It can be seen the ingredients of the charge are firstly the defendant must have made a false document. Secondly the defendant must have known it to be false and thirdly, the defendant intended it be used or acted upon in Samoa or elsewhere as genuine. A false document is defined by section 193 and the prosecution here seems to be relying on section 193(a) which relevantly provides:

“false document” means a document:

of which the whole or any material part purports to be made by any person who did not make it..............”

Pursuant to section 194(3), the offence is complete as soon as the false document is made with the necessary intent.

45. I am satisfied beyond reasonable doubt the defendant and no other was responsible for saofa’i certificate number 292. I accept the evidence of the pulenu’u Taele Sitivi to that effect and it is as noted earlier consistent with the details of “P-10” the saofa’i book which shows it is part of the batch relating to the defendants side. It matters not that what the pulenu’u did was in flagrant and serious breach of his duties and responsibilities as a pulenu’u, he is not the one on trial here.
46. As to whether the document 292 is a false document, the prosecution argued that because many of its particulars are false it is therefore a false document. They say what is false is that the Toafaiga title was bestowed on the day in question on the defendant and the title was a ‘suafa fa’avae’ of the village. Also wrong is that the sa’o of the family was at the time using his Fofogamua orator title. A matter that his son Leulua’iali’i Lefu denied in his evidence pointing out that it would be unusual in the fa’asamoa for an alii to continue using his orator title. Also false that the defendant was a ‘fa’apogai’ of his own title as evidenced by his adding his name “Fofogamua H” to the original of 292. Also false that the sa’o signed the document, they say the defendant forged the sa’os signature and it is false that the defendant at the time also bore the name ‘Tuimalealiifano’ as contained in the document.
47. I agree some of the particulars of 292 are patently false; but not all. Thus it is clear beyond reasonable doubt the Toafaiga title was not bestowed on the defendant at the saofa’i ceremony of 24 December 2011. There is also clear evidence the title is not a ‘suafa fa’avae’ of the village. A number of matais testified to this effect. This is the first time it was created and I reject suggestions from the defendant and one of the prosecution witnesses to the contrary.
48. As to whether the family sa’o was at the time using his Fofogamua title is open to question. This may be unusual but is not an unknown practice in our culture. Many ali’is use their oratorical titles when convenient or suitable to the particular occasion. There is not necessarily any falsity in this assertion.
49. What is definitely a cultural no-no is for a person to be a ‘fa’apogai’ of his own nofo particularly a tulafale title. That is unheard of in our fa’asamoa and I have no difficulty in concluding the defendant added “Fofogamua H” to the original 292 for nefarious purposes of his own. No-one else would have reason to do so and the defendant by his own evidence had ample opportunity to so do prior to lodgment of the saofa’i certificate with the court.
50. As to whether the sa’os signature was forged, as observed earlier I am uncertain about this. Absent any expert evidence I am not prepared to find beyond reasonable doubt the defendant did this.
51. I express no view as to the last particular relied on by the prosecution regarding the Tuimalealiifano name as the evidence on that issue was unconvincing.
52. The real significance of “P-9” and the core of this matter is that as a document it purports to be a certification by the pulenu’u that on the day in question the defendant was properly bestowed the Toafaiga title in the usual customary manner. That it was done with the blessing of the family sa’o and a saofa’i in the village of Moata’a was duly held on 24 December 2011 for inter alia that purpose. And on 16 January 2012 the pulenu’u of Moata’a village signed off on “P-9” confirming all these matters. “P-9” is the certification that the Registrar of the Land and Titles Court was entitled to and did rely upon in advertising in the Savali as required by law the particulars of the nofo.
53. In that regard it is a false document because the whole of it as well as some of its material parts purport to have been made by the pulenu’u when in fact it was not. It was made by the defendant who bullied the pulenu’u into signing. In terms of the classic pronouncement “P-9” is a document “which tells a lie about itself”.
54. I am also satisfied beyond reasonable doubt the defendant well knew when he generated the document that the whole of it including those material parts referred to were false and that he intended the Registrar of the Land and Titles Court to act upon it as if it were genuine. He did not dispute the evidence of the pulenu’u that he personally lodged “P-9” with the Land Titles office, indeed the office receipt “P-13” is made out to him in his “new” title name.
55. The ingredients of the first charge have been made out he is guilty of forging saofa’i certificate number 292.
56. For similar reasons he is also guilty of the second charge of using this forged saofa’i certificate to register his name with the Registrar of the Land and Titles Court. He knew the document was a false document and by law therefore a forgery, he used dealt with it and acted upon it (“uses, deals with or acts upon”) as if it were genuine by lodging it for registration with the Land and Titles Court who did rely upon it as genuine. He also caused the Registrar of the Court to “use, deal with or act upon it” as if it were genuine by publishing particulars of same in the Savali of 28 March 2014. The only correction that needs to be made is to the place where this offence was allegedly committed. It was not at Moataa on the 10^th of February 2014 as alleged but at Mulinuu on 10 February 2014 when he lodged the certificate with the court.
57. He is accordingly found guilty in respect of the second information as well.
58. Even if the prosecution had been unable to prove the document in question was not a false document, the court would have still found him guilty pursuant to section 93 of the Criminal Procedure Act 2016 of the lesser offence of willfully supplying false information to the pulenu’u and to the Registrar of the Land and Titles Court in contravention of 24(a) of the Land and Titles Act 1981. Culpability under section 24(b) would probably also have followed but given the result in this proceeding it is unnecessary to travel down that path.
59. Pei ona fa’ailoa atu Fofogamua o le fa’aiuga tusitusia o le mataupu lenei o le a fa’amae’a ona ta ma momoli le kopi i le alii loia lea e tulai mo oe. Pei ona e fa’afofoga foi ua fa’amaonia e le fa’amasinoga moliaga e lua lea e fa’asaga i lau susuga tusa ai ma mau na valaau i luma o le Fa’amasinoga. O lau mataupu lea o le a tolopo i le aso 11 o Tesema mo se faaiuga. O le tulaga lea e tatala ai oe i tua e fa’aauauina pea. Ae tatau ona e vave oo i le ofisa Fa’anofo Va’ava’aia e tapena mai sau lipoti, e aoga tele le lipoti lena e fesoasoani ia oe mo le fa’aiuga a le Fa’amasinoga. E tatau foi ona logo le alii loia o Leota i le aso lea ua tolopo iai, o le aso 11 o Tesema mo se fa’asalaga.
    

JUSTICE NELSON