Police v Mulitalo [2018] WSSC 60 (19 April 2018)

SUPREME COURT OF SAMOA
Police v Mulitalo [2018] WSSC 60

Case name:	Police v Mulitalo
Citation:	[2018] WSSC 60
Decision date:	19 April 2018
Parties:	POLICE v TAFAOGALUPE PAU MULITALO male of Lalovaea, Samatau and Saoluafata.
Hearing date(s):	15 and 16 February 2018
File number(s):	S3876/15 and S01/18
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa Mulinuu
Judge(s):	Justice Vaepule Vaai
On appeal from:
Order:	It is obvious from the above discussion and the reasons given that the charges of theft and obtaining by deception against the defendant are not proven and are accordingly dismissed.
Representation:	Ms L. Sio for Prosecution Mr Lealiifano I. Tanielu for defendant
Catchwords:
Words and phrases:
Legislation cited:	Crimes Act 2013 s.161(b) & 165(b) and s.172(1)(a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TAFAOGALUPE PAU male of Aele and Auala Savaii
Defendant

Counsels:
Ms L. Sio for Prosecution

Mr Lealiifano I. Tanielu for defendant

Hearing: 15 and 16 February 2018
Decision: 19 April 2018

DECISION OF JUSTICE VAAI
Background

1. The complainant in these proceedings is Alapati Brown builder and owner of a company called ALCC Brown Construction. The defendant Pa’u Tafaogalupe Mulitalo is a Barrister.
2. The defendant wanted to build a house on a property he owns at Lalovaea. He became acquainted with the complainant and found out he was a builder when he represented him in court proceedings in early 2015. While celebrating the outcome of the case the defendant asked the complainant if he was willing to build a house for him on his property at Lalovaea. It was to be partly a shop and partly a law office. The complainant agreed but he and the defendant did not agree to a price for the work or a time for the work to be completed. He did not sign the contract either which was prepared by the defendant for the building work.
3. Workers for the complainant started work at the Lalovaea site on or about the 4^th of May 2015. They started by dismantling a faleapa (tin roof open house) on the building site first. Around the same time the tools and equipment (“the equipment”) required by the workers for the foundation work was moved to the site. Work started and progressed smoothly. The complainant did not comply with the plan the building permit was granted for. He followed instead the specifications the defendant and his wife wanted. As a result, the house the complainant built was bigger than the plan on which the building permit was issued, a fact confirmed by the defendant’s estranged ex-wife Fetu Moeono. Four weeks into the building work the defendant suddenly stopped it and told the workers at the site not to remove the equipment they brought.
4. The complainant confirmed he had received $26,000.00 from the defendant when the work was stopped. He had also spent it to buy materials used for the building and labour costs.
5. By a letter of 29^th May 2015 (exhibit “P1”) the defendant informed the complainant he and his workers were no longer permitted onto the building site. Furthermore he was considering suing him for reasons which are not necessarily relevant to the present proceedings. For the purposes of the present proceedings however, the letter also said the equipment on site would not be returned until the money the defendant had paid was refunded by the following week. Notwithstanding the letter the complainant asked the defendant to return the equipment. The defendant refused initially because he wanted the money he paid refunded. Later he accepted a refund of only $13,000. The complainant refused to do both. When he refused, the defendant then according to the complainant claimed the reason he refused to return the equipment was because he had a court order stopping their return. This confirmed to the complainant what the defendant’s letter to him of the 29^th of May 2015 meant.
6. The defendant denies that he said he had a court order. Instead he had told the complainant he was seeking a court order to stop the removal of the equipment.
7. The complainant then sought the assistance of the police to return the equipment. He lodged a complaint and gave the police a list of the equipment the defendant refused to return - exhibit “P3”. He said the defendant had also been shown the same list. Corporal Sailini Iopu who investigated the complaint said he became aware of the complaint against the defendant in May 2015. He did not clarify when in May 2015 he became aware and whether he meant he was only aware of the complaint or he was aware and also investigated the complaint. I assume he meant the latter.
8. Meanwhile about a week after the defendant stopped the work he hired another builder Fanualelei Sagato to complete the building work. Sagato and his men used the equipment the defendant refused to return to finish the building of the house.
9. When Corporal Iopu first spoke to the defendant when he visited him about the complaint thedefendant told him he had a court order barring the release of the equipment. It was not clear when he visited the defendant but the defendant apparently gave the same explanation on another visit he and other police officers made regarding the return of the equipment. On both visits Cpl Iopu asked the defendant to see a court order. On both occasions he did not see or was shown an order.
10. The defendant denied he told Corporal Iopu he had a court order. He said he told him he was getting a court order just as he had told the complainant.
11. On or about the 24^th of July 2015 the defendant filed suit against the complainant seeking (inter alia) an order to prohibit the removal of the equipment from his premises.
12. A search warrant issued on the 19^th of November 2015 was executed by the police whereupon they searched the defendant’s premises at Lalovaea and removed the items of equipment the complainant confirmed in his evidence had been returned.
    

Facts

13. For the purposes of the discussion which follows I accept the following as established facts: the equipment listed in the theft charge (S3876/15) were in the possession and control of the defendant from when he stopped the work until the police removed them in November 2015; ownership of the equipment is not disputed; police attempted to remove the equipment from the defendant’s premises at least twice before they searched it; a civil suit filed against the complainant by the defendant on or about the 24^th July 2015 sought (inter alia) an order to stop the removal of the equipment from his premises; the outcome of the civil suit filed is not known; the defendant did not have a court order barring the return of the equipment; Sagato and his workers used the equipment to complete the building of the house with the defendant’s permission; some of the equipment on the list (exhibit “P3”) were recovered damaged or not recovered at all.

Charges

14. Despite defense counsel’s objection to amending the theft charge by deleting “took” after the word dishonestly and substituted with “used or dealt with” leave was granted. There was no factual or evidential basis proposed by Mr Tanielu to satisfy the Court the amendment sought would prejudice or likely to be prejudicial to his defence.
15. The defendant is charged with theft - Information S3876/15 (as amended) as follows;
    • “Between the 30th April 2015 and 1st July 2015 at Lalovaea he dishonestly used or dealt with 2 extension leads valued at $30.00ST each, 1 large square valued at $50.00ST, 1 wheelbarrow valued at $185.00ST, 1 wheelbarrow valued at $380.00ST, 1 sledge hammer valued at $120.00, 4 bolt hammers valued at $90.00ST each, 1 heavy duty bar valued at $180.00ST, 1 hack saw and blade valued at $55.00ST, 3 trowels valued at $55.00ST each, 1 trowel rectangular valued at $55.00ST, 3 split levels valued at $85.00ST each, 3 scribers valued at $35.00ST each, 1 small bolt cutter valued at $90.00ST, 1 L. mesenry drill and bitts in box valued at $1,400.00ST, 1 plate compactor valued at $600.00ST, 2 picks valued at $50.00ST each, 2 shovels valued at $65.00ST each, 1 scaffolding set valued at $6,500.00ST, 2 pliers valued at $35.00ST each, 1 pull float and 3 handles valued at $760.00ST, boxing timber (6x2) and plywood 3x2, 4x2 valued at $2,200.00ST, 2 bins bar valued at $45.00ST each, 1 makita skill saw valued at $1,200.00ST, 1 large bolt cutter valued at $$650.00ST, and 1 small drill (green) valued at $950.00ST, all to a total value of $16,760.00, the properties of the ALCC Brown Construction at Vaivaseuta, with intent to deprive the said owner permanently of the said properties” under S. 161(1)(b) Crimes Act 2013.
      
16. The defendant is also charged with obtaining by deception (Information S01/18) as follows;
    • “On or between the 30^th of April 2015 and 1st July 2015 at Taufusi he made a false representation to ALCC Brown Construction to obtain possession and control of ALCC Brown Constructions tools and machineries” pursuant to S. 172(1)(a) Crimes Act 2013.
      

Law

17. Theft is defined in section 161(1)(b) Crimes Act 2013 as:
    • “dishonestly using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of or control over the property in whatever manner”Intent to deprive any owner permanently of property under Section 161(2) of the Act includes an intention to deal with property in such a manner that:
      • (a) The property cannot be returned to any owner in the same condition; or
      • (b) Any owner is likely to be permanently deprived of the property or of any interest in the property.
        
18. Obtaining by deception is defined in section 172(1) Crimes Act 2013: “A person commits the offence of obtaining by deception or causing loss by deception who by any deception;
    • (c) Obtains ownership or possession of, or control over any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration directly or indirectly, or
    • (d) Causes loss to any other person;
      
19. Section 172(2) defines “deception” as meaning;
    
    • (a) A false representation whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and
    • (b) Knows that it is false in a material particular; or
    • (c) Is reckless as to whether it is false in a material particular; or
    • (d) An omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
    • (e) A fraudulent device, trick, or stratagem used with intent to deceive any person.
      

Issues and Discussion

1 Theft charge

20. Before the defendant can be convicted of the theft he is charged with the prosecution must prove:
    • (i) he dishonestly used or dealt with the complainant’s property between the 30^th of April 2015 and the 1^st of July 2015;
    • (ii) he intended to deprive the complainant permanently of the equipment or interest in the property after obtaining possession of or control over the said equipment.

21. The first issue is whether the defendant “dishonestly used or dealt with the equipment” between the 30^th of April and the 1^st of July 2015. There is little doubt the defendant assumed control over the equipment when he stopped the work and refused their return. The defendant does not deny using or dealing with the equipment between the 29^th May and 1^st July 2015. He however denies any dishonest use of the equipment at the time the charge says he did or when he is alleged to have said he had a court order barring their return.
22. The prosecution’s argument regarding the dishonest use of or dealing with the equipment seemed two-fold. First, the defendant dishonestly used the equipment when he refused to return them between the 30^th of April and 1^st July 2015 allegedly claiming he had a court order when he didn’t. Second, the defendant dishonestly dealt with the equipment because he did not look after them responsibly when he permitted their use by Sagato and his men between the 30^th of April and the 1^st of July 2015.
23. The first difficulty with the prosecution argument is the period within which the defendant is alleged to have dishonestly used or dealt with the equipment. The charge says the defendant dishonestly used or dealt with the equipment “between the 30^th of April 2015 and 1^st July 2015.” The evidence does not fully support the time period because the complainant said a faleapa on the site was dismantled first before the foundation work started on or about the 4^th of May 2015. Therefore from the 30^th of April 2015 to about the 3^rd of May 2015 the equipment was not yet on the defendant’s premises. Additionally, the evidence further shows that the equipment was taken to the building site on or about the 4^th of May 2015, and remained there until the defendant informed the complainant of his refusal to return them around the 29^th of May 2015. There is again no evidence the defendant used or dealt with the equipment from the 4^th to the 29^th of May 2015 let alone doing so dishonestly. The only evidence therefore relevant to a dishonest use or dealing with the equipment in terms of the charge is the period from the 29^th of May 2015 to the 1^st of July 2015, which was likely the period Sagato and his men used the equipment to complete building the house.
24. With regard therefore to the argument the defendant dishonestly used the equipment when he refused to return them on the claim he had a court order, the broad issue is whether the defendant’s use of the equipment between the 29^th of May and the 1^st of July 2015 was dishonest. The prosecution says it was dishonest because the defendant didn’t have a court order when he claimed he did. The defendant says his use was not dishonest because his refusal to return the equipment did not depend on whether he claimed he had a court order (which he denies), but on the complainant’s acceptance of refunding the money he had paid or the civil suit he referred to in his letter of the 29^th of May 2015. In other words, his refusal to return the equipment was not dishonest because he told the complainant and the police he was seeking, not he had a court order. The real issue therefore turns not on whether the defendant had a court order, but on whether his use of the equipment between the 29^th of May 2015 and the 1^st of July 2015 if based on the claim he said he had a court order was dishonest. The evidence of Fetu Moeono and Police Inspector Fata Pemita on this point helps.
25. Ms Moeono remembered being with the defendant at Lalovaea on a day the complainant phoned him to return the equipment. She heard the defendant say he had a court order stopping their removal. She asked him after if there was a court order because if there wasn’t he should get one. She did not clarify the defendant’s response to her enquiry. But if the defendant told her he did not have a court order, she did not make clear either whether she was aware when she asked him, of a suit in contemplation or filed by her then husband against the complainant, or if she was aware of a suit, whether she was also aware of an order sought in the suit regarding the equipment.
26. Inspector Pemita said he became aware sometime after the complaint had been lodged the defendant had filed a suit against the complainant related to the building of his house and the equipment on his premises. It is not clear whether Inspector Pemita became aware of the civil suit from having seen the defendant’s letter of 29^th of May 2015, or from the complainant or from the defendant himself. What is clear is after the complaint was lodged Inspector Pemita said he explained to the defendant (on a date which was not made clear) the nature of the complaint and advised him to return the equipment while awaiting the outcome of the suit he filed against the complainant. The defendant did not accept the Inspector’s advice to return the equipment. In fact he said the defendant told him on that occasion that he had a court order. When he pressed him to produce a copy of the order the defendant responded “i se tali filemu” (in a peaceful answer or manner). Whatever “tali filemu” was meant to convey Inspector Pemita did not see a court order.
27. It appears to me the police did not remove the equipment earlier than they did because the defendant claimed he had a court order. Whether or not that was the reason, is irrelevant. What is relevant is the unexplained reason why the police did not forcibly remove the equipment when they could have in circumstances where the defendant did not have a court order to stop their removal. It is arguable whether the defendant in the circumstances misled the police. But it does not necessarily follow from the defendant’s refusal to return the equipment allegedly on a claim he had a court order that the failure of the police to remove the equipment in circumstances when they could have but didn’t, that the defendant had stolen the equipment or his use of or dealing with the equipment between the 29^th of May 2015 and the 1^st of July 2015 was dishonest.
28. According to the letter of 29^th May 2015 the defendant’s condition for the return of the equipment was the refunding of the money he’d paid by a certain period. Whether he had a right in the circumstances to impose the condition he did before returning the equipment was neither raised during the trial as relevant nor raised by the evidence as an or in issue. It was raised only during the prosecution’s closing submissions. The problem the prosecution face regarding this part of its closing submissions is there was no evidence to show the defendant was or was not entitled to impose the condition he did.
29. On the alternative argument the defendant’s use of/dealing with the equipment between the 29^th May 2015 and 1^st of July 2015 was dishonest because he was careless or irresponsible, the defendant does not deny he allowed Sagato and his men to use the equipment. The relevant period in discussing dishonest use of/dealing with the equipment in terms of this argument is again from the 29^th May 2015 to 1^stJuly 2015.
30. Arguably, there might be a case against the defendant for a breach of some authority he imagined he assumed when he refused to return the equipment, or breach of a duty of care when he permitted Sagato and his men to use the equipment. His actions may also be unjustified in the circumstances he allowed Sagato and his men to use the equipment given that some equipment was recovered in either damaged condition or not at all. But these factors should be considered and assessed as matters of law in civil proceedings, which the present proceedings are not. They might be useful in determining the defendant’s guilt but conduct in the present case can only be said to have been criminally dishonest if the prosecution proves that to be so in accordance with the criminal standard of proof.
31. The wider issue the court must look at in determining the defendant’s guilt on this element of theft is not whether he had a court order or whether the police believed he had a court order as the basis for refusing to return the equipment between the 29^th May 2015 and the 1^st July of 2015. Instead, it is whether his use of/dealing with the equipment during the relevant period was dishonest because he said he had a court order when he didn’t, or because he was irresponsible when he permitted Sagato and his men to use the equipment. In the context of the issue as defined the prosecution must prove beyond a reasonable doubt that the defendant dishonestly used or dealt with the equipment between the 29^th of May 2015 and the 1^st of July 2015. I am not satisfied it has done that.
32. This means the charge of theft against the defendant must fail. It also means it is not necessary for me to determine whether the defendant had an intention to permanently deprive the complainant of the equipment. In fairness to the prosecution which referred to the New Zealand Court of Appeal decision in Thomas v The Attorney General & ors (CA139/96) in its closing submissions, I will comment briefly on intention to permanently deprive an owner of his property. The facts of Thomas are quoted from the COA decision as follows:

• “On the 6^th of March 1994 Thomas’s wife sold a car to one Gary Nichol. She agreed to allow Mr Nichol to take possession of the vehicle without payment of any deposit, and required him to make full payment on or before 6 September 1994. At the end of that period he had made no payment. Mr and Mrs Thomas after tracking down the vehicle arranged for it to be towed back to their property. On the evening of 12 September 1994 there followed three visits to the Thomas property, the first by Mr Nichol and a friend, the second by two police officers, and the third by those two police officers and three others.
• When Mr Nichol arrived he made it clear to Mr and Mrs Thomas that he was not challenging their right to repossess the vehicle. Rather he wished to remove from the car his personal belongings valued at approximately $500. There is some dispute about what was said on that occasion between Mr and Mrs Thomas and Mr Nichol, and in particular about the interpretation to be placed on what was said. (Mr Nichol’s friend did not get involved in the oral exchanges). According to Mr Nichol, the Thomases would not return his property unless he both returned the keys to the car and paid the $143 which the Thomases had spent in getting their car back. According to the Thomases they were requiring only the keys in exchange for the personal belongings. At the forceful invitation of the appellant, Mr Nichol left with his friend, keeping with him the car keys.
• Mr Nichol then telephoned the Henderson Police Station to ask what steps he should take.

33. As a result two constables then went to the Thomas property. There was some evidence one of the constables told Mr Thomas something to the effect that he could not put a condition on the return of the property and that if he failed to give it back he would be committing theft. That visit did not lead to the return of the property and the two constables went back to the Henderson Police Station to consult with senior officers. After that consultation the two constables returned to the Thomas property with a sergeant and two other constables.
34. The sergeant’s evidence was that the appellant again refused to return Mr Nichol’s personal belongings. As a result he was then arrested for theft and taken back to the police station. Mr Nichol’s property was also recovered from the car at that time. Mr Thomas elected trial by jury on the charge of theft and at the end of the depositions hearing he was discharged.
35. After Mr Thomas was discharged he sued the Attorney General on behalf of the Police, and three police officers for (amongst other charges) unlawful arrest and unlawful imprisonment. After a three day trial, Cartright J dismissed the proceedings. Mr Thomas appealed.
36. The principal issue at trial and before the Court of Appeal (COA) was the unlawfulness of the initial arrest of the appellant. The COA discussed whether there was good cause for the police to suspect in the circumstances of that case that the defendant had committed theft of Nichol’s property which was in the car at the relevant time. The decision at page 7 said this.
    • “On the basis of the finding of fact that Mr and Mrs Thomas had no intention of passing over Mr Nichols personal belongings unless....they had received both the expenses and the car keys to the vehicle, a question of law arises. It is whether there was good cause to suspect the appellant of having committed the offence of theft given that the property would be returned when the $143.00 was paid and the keys returned. More particularly, was there in terms of s 220(1)(a) of the Crimes Act an intention to “deprive” Mr Nichols “permanently” of his property? (emphasis mine).
37. It appears from the decision the issue raised by the COA did not receive attention in the High Court or in counsels written submissions on appeal. It was touched on in a limited way only in oral submissions. When stating the legal position in New Zealand on the issue of the refusal by a person to return property to the owner unless the owner complies with a condition the COA said at page 7:
    • “a refusal by someone who holds property to return the property to its owner unless
    • the owner complies with a condition which the holder has no right to impose can provide evidence of the necessary intent”(emphasis mine)
38. With respect, the above principle does not apply on the facts of the present case. Firstly, unlike the facts in Thomas the defendant in the present proceedings was not arrested when he refused to return the complainant’s equipment even if he claimed he had a court order which he denied. Secondly, there was no evidence or any suggested by counsel to show the defendant in the present case had or had not between the 29^th of May to the 1^st of July 2015 a right to impose the requirement he did as a pre-condition to returning the equipment. Third, according to the evidence upon which the theft charge against the defendant was run the police investigation seemed focused on the defendant’s refusal to return the equipment on the basis he had a court order rather than on the complainant’s refusal to refund the money or on whether the defendant had a right to impose the condition to refund the money he’d paid before the equipment can be returned.
39. Even if I were therefore found to be wrong in finding the prosecution has not proven the defendant dishonestly used or dealt with the equipment at the relevant time, proving that he also had an intention to permanently deprive the complainant of the equipment at the relevant time would it appears also fall short of the required standard of proof. The charge of theft against the defendant has not been proven.

2 Obtaining by deception

40. Before the defendant can be convicted in terms of section 172(1) Crimes Act 2013 the prosecution must prove the defendant:
    • (a) obtained possession of or control over the complainant’s tools and equipment;
    • (b) by deception.
41. Deception is a false representation with the intention of deceiving another person, knowing that the representation is either false in a material particular, or is reckless as to whether it is false in a material particular. The prosecution submitted that the deception on which the charge relies was the defendant telling the complainant he had a court order barring the removal of the equipment when he did not have such an order.
42. The first issue is whether the defendant between the 30^th of April 2015 and the 1^st of July 2015 obtained possession of or control over the equipment? The defendant clearly assumed control over the equipment when he refused their removal from the site on or before the 29^th of May 2015. He does not deny that and the answer to the first issue is he did.
43. The second issue is did the defendant between the 30^th of April 2015 and 1^st of July 2015 obtain possession or control of the equipment “by deception”. Before discussing the second issue it is again noted that like theft, this charge also states the defendant on or “between the 30^th of April 2015 and 1^st of July 2015”......made a false representation to ALCC Brown Construction to obtain possession and control of ALCC Brown Constructions tools and machineries. The relevant time of offending is again not fully supported by the evidence because from the 30^th of April 2015 to about the 28^th of May 2015, the defendant had not made the representation he is alleged to have made or an existing reason necessitating a representation to the complainant refusing the return of the equipment.
44. For the purposes of this discussion therefore, the relevant period in which the alleged offending took place was from about the 29^th of May 2015 to the 1^st of July 2015. Furthermore when the defendant stopped the work he told the complainant the equipment could be returned if the money he’d paid was refunded in full or in part to which the complainant refused. It is not necessary to repeat what is alleged to have happened after the defendant’s offer to return the equipment upon a refund of all or part of the money was refused. Nor is it necessary to repeat what the defendant has said he told the complainant.
45. The broad issue is whether the defendant deceived the complainant? There is little doubt the defendant made a representation to the complainant. The real issue therefore is whether the representation he made was false. After hearing the evidence of both the complainant and the defendant the chances of accepting as true the defendant said he had a court order are the same as accepting as also true the defendant said he was getting a court order.
46. Inspector Pemita said he instructed Cpl Sailini Iopu to investigate the complaint. When in 2015 he instructed Cpl Iopu is not clear. Presumably it was in late May/early June 2015 before he instructed Cpl Iopu to accompany the complainant to return the equipment from the defendant’s premises on the 29^th of September 2015. Inspector Pemita said he also explained to the defendant on an unspecified date that the police had enough evidence to charge him (presumably for theft of the equipment) and advised him to return the equipment. The defendant’s apparent response as stated earlier was he had a court order permitting him to hold on to the equipment.
47. The complainant in a statement he made (in the file) recalled that on the 4^th of June 2015 at the police station he heard Inspector Pemita asking the defendant on the phone to return the equipment as he may be liable if any are lost or damaged. The complainant recalled hearing the defendant also saying he cannot as he was getting a court order to stop their removal. The defendant did not have a court order from when the complaint against him was lodged in late May or early June 2015, to when the police executed the search warrant issued the 19^th of November 2015.
48. After considering the prosecution’s evidence on this issue I am uncertain whether the defendant told the complainant he had a court order or that he was seeking a court order. The distinction is critical because the defendant’s guilt is determined not by whether he had a court order but by whether he said he had a court order. The witnesses’ recollection and the documentary evidence do not satisfy the court that the defendant definitively told the complainant he had a court order or he was seeking a court order. I am unsure the evidence has shown the defendant assumed control of or use of the equipment from the 29^th of May to the 1^st of July 2015 as a result of his having deceived the complainant. I find the evidence about what the defendant said is too conflicting and could lean either way. If the defendant’s refusal to return the equipment between the 29^th of May 2015 and the 1^st of July 2015 was a result of lying he had a court order when he didn’t, that could amount to deceiving the complainant because it was clearly a false representation. But it could equally follow from the defendant’s refusal to return the equipment at the relevant time because he said he was seeking (not he had) a court order barring their return. I am left in a state of doubt about what the defendant actually said to the complainant, and the defendant in the circumstances gets the benefit of that doubt. This charge is not proven.

Ruling

• It is obvious from the above discussion and the reasons given that the charges of theft and obtaining by deception against the defendant are not proven and are accordingly dismissed.

JUSTICE VAAI