Police v Mulitalo [2020] WSSC 92 (10 July 2020)

SUPREME COURT OF SAMOA
Police v Mulitalo [2020] WSSC 92

Case name:	Police v Mulitalo
Citation:	[2020] WSSC 92
Decision date:	10 July 2020
Parties:	POLICE v PA’U TAFAOGALUPE MULITALO, male of Lalovaea and Samatau.
Hearing date(s):	11 and 12 March 2020
File number(s):	Charging document 2020
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	For the above reasons, I have reached the following conclusions: (i) On the one charge of obtaining by deception, I find the accused guilty of the charge. (ii) The accused is remanded on the same bail conditions to Friday 24 July 2020 at 12.30pm for a pre sentence report and sentencing.
Representation:	L. Sio for prosecution Accused in person
Catchwords:
Words and phrases:	false representation – obtaining by deception
Legislation cited:	Crimes Act 2013 s.172 (1) (a)
Cases cited:	Police v. Mulitalo [2018] WSCA 12 (25 October 2018)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

PA’U TAFAOGALUPE MULITALO, male of Lalovaea and Samatau

Defendant

Counsel:
Ms L. Sio for prosecution
Accused in person

Hearing: 11 and 12 March 2020
Decision: 10 July 2020

DECISION OF JUSTICE ROMA
Charge

[1] The accused is charged that at Lalovaea on or between 1 May and 1 July 2015, he made a false representation namely ‘that he had a Court order’ to obtain possession and control of properties, namely construction tools and machinery belonging to ALCC Brown Construction. The charge is brought under s172(1)(a) Crimes Act 2013.

Evidence for Prosecution

[2] Prosecution’s 4 witnesses were Pauli Moli Tenise, a carpenter and storeman for the complainant business ALCC Brown Construction; Matamua Sili Alapati Brown, owner of ALCC Brown Construction; and 2 Police officers, namely Superintendent Fata Manuele Pemila and Corporal Sailini Iopu.

(i) Pauli Moli Tenise

[3] Pauli has been an employee of ALCC Brown Construction for over 5 years. He recalls working on the accused’s project at Lalovaea which commenced on 5 May 2015. The project involved dismantling an old structure and building a new one from which the accused were to operate a store. His evidence is that after clearing part of the land, they brought onto the site building tools and equipment to be used in the construction. On the accused’s suggestion, the tools were kept on site so that it was easier for them to turn up and use. The smaller tools including the skill saw, drills, coal cutter and brick laying equipment were stored inside the accused’s house whilst the cement mixers, cement cutters, brick cutter, wheel barrow, shovels and crowbars were kept outside.

[4] Sometime in June 2015, three weeks into the construction after several layers of bricks had gone up, Pauli and a fellow worker named Savelio were told to stop the works. On instructions from their employer Matamua Sili, they went on site to take back the tools and equipment but were stopped by the accused who told them they could not as there was a Court Order from the Court office (‘E le mafai ona ma toe o ma mea faigaluega o loo iai le Court Order’). They left without them.

[5] Under cross examination, Pauli maintains that it was not Matamua Sili but the accused that told him and Savelio about the Court order. Their only instructions from their employer were to uplift the tools. When put to him that at no time did the accused say anything to him about a Court Order, Pauli was clear that it was him that the accused mentioned the Court Order to (‘Ou te le talia ona o a’u na fai mai ai lau tala’).

(ii) Matamua Sili Alapati Brown

[6] Matamua Sili Alapati Brown is the owner of ALCC Construction. His evidence is that the accused had been his lawyer. In the beginning of May 2015, the accused contacted him about his proposed project which he intended to house both an office and a shop. The accused inquired about a price. He told him that he would need to look at the drawings but that it would not be less than $100,000.00. Matamua then visited the site and was shown the boundaries before the works began. As to payment, Matamua says that he was given a letter to sign (Exhibit P1) on which $30,000.00 was stated as the contract price. However, he refused to sign. The accused then told him to rip up the agreement but proceed with the construction which they did. The accused further told him that he would make payments when needed and made a deposit of $20,000.00.

[7] They agreed that he would bring all the tools and equipment and the accused would pay the workers. Normally they would provide a container on site to store the tools for the duration of the project but on the accused’s suggestion, the smaller equipment were stored inside part of his house whilst the heavier tools were kept outside. Each day when the project started, the accused would bring the equipment out for use.

[8] About 4 weeks into the construction, he asked the accused for more money as his deposit had run out. But one day when the workers went on site, the accused stopped and sent them away, telling them that he had someone else to complete the works. According to Matamua, he was sent a letter from the accused (Exhibit P3) advising of among other things that he was terminating the contract. It is stated in the last 2 paragraphs of the letter:

• “Please refrain from entering my property on trespass order against you. A breach of this order will disadvantage you in further legal proceedings in Court over this matter. The machines you own at my property will stay there until my money is refunded by next week.”
• [9] Matamua then sought help from the Police regarding the release of his tools and equipment as they were also working on other projects. He is aware that Fata Manuele Pemila of the Ministry of Police had suggested to the accused that he file his own claim for the recovery of his money but release the equipment and tools. Apart from his request for police assistance, Matamua recalls being contacted by Ms Iuni Sapolu who suggested that they meet with the accused to explore settlement. They did but the accused was fixed on his position and no resolution was reached.

[10] It is Matamua’s further evidence that sometime later, some of the equipment and tools were returned. He recalls signing a Receipt of Delivery and confirms that the 3 items listed in the Receipt dated 24 November 2015 (Exhibit P4) were recovered and returned to him by Police. He also confirms having received other tools prior to November 2015.

[11] Under cross examination, Matamua maintains that his workers had told him that the accused had refused them back onto the property and taking the equipment because he had a Court order. As a result, he instructed his workers not to go back onto the property. When put to him that what the accused meant by “order” in his letter of 29 May 2015 (Exhibit P3) was a personal order as owner of the property, Matamua’s reply was that only the Court makes orders. Matamua goes on further to say that when Superintendent Fata spoke to the accused on the phone, the conversation was put on speaker and he heard the accused say to Fata that he had the Court order with him (‘o la ua ia oe le Court Order’).

[12] Matamua denies that the accused said that he was going to get a Court order. Whilst conceding having told Police that the accused had been saying that he had the Court order, Matamua explains that was why police called the accused and spoke to him on speakerphone whilst he listened in on the conversation. He confirms that the accused served him with an Exparte Motion for orders dated the 24 July 2015 and that the matter was subsequently called in Court. He strongly denies that the allegation against the accused was planned and fabricated by him and the police.

(iii) Superintendent Fata Manuele Pemila

[13] Superintendent Fata has been with the Ministry of Police for 32 years. He is currently in charge at Faleata Police Post. In June 2015, he was second in charge of the CID. He recalls Alapati Brown then seeking Police assistance regarding his building tools and equipment which the accused had kept at Lalovaea and refused to return. He assigned Corporal Sailini Iopu to look into the complaint.

[14] Superintendent Fata recalls meeting with the accused and Alapati twice in his office, the second meeting around July or August 2015, about a month after the first. In the first meeting, the accused told him that he would not return the tools. They advised him to return the tools but file his own claim against Sili. On the second occasion, he told the accused that police had gathered evidence. It was then that the accused raised that he had the Court order (‘na fai ia Pa’u la ua iai mau ae saunoa mai loa la e iai le Court order’). They told him to bring a copy, he said he would but never did and this continued until charges were laid against him. Superintendent Fata has never seen a copy of the Court order.

[15] Under cross examination, he maintains that apart from their phone conversation, he met with the accused twice in his office. He confirms that the accused was charged in November 2015 and explains that the delay was caused by police having other matters to deal with and that they were trying to assist the accused by giving him the opportunity to resolve with Sili their own dispute and come up with the Court order that he said he had. Superintendent Fata denies that it was the Police’s fault that the tools and equipment were not removed from the accused earlier. He explains that Police only found it necessary to obtain the search warrant that subsequently allowed them to uplift the tools after the accused had failed to provide the Court order despite the many opportunities given to him to do so. He denies that the charge against the accused was a result of collusion by police and Sili but that there was evidence to support Sili’s complaint.

(iv) Corporal Sailini Iopu

• [16] Corporal Sailini Iopu is currently with CID. In June 2015, he was with the Domestic Violence Unit. He recalls Alapati requesting Police assistance around September 2015 about his machinery and tools being held by the accused and the accused chasing his workers from the site. He was assigned to investigate the matter by Superintendent Fata. He recalls Superintendent Fata calling the accused on the phone whilst he and Alapati were with Superintendent Fata at the police station. He further recalls the accused mentioning in that conversation that he had the Court order. On instructions from Fata, he also visited the accused’s property at Lalovaea but found him later at the Court house. The accused again told Corporal Sailini that he had the Court order and despite being asked to provide it, he never did. Even when he was asked to come in on 20 November 2015 when police had gathered evidence and decided to charge him, he still had not produced the Court order.
• [17] Corporal Sailini further recalls going to the accused’s place with Alapati on or about the 29 September 2015. They took a truck and had a list of tools that Alapati had prepared to be uplifted. The accused told them that he had a Court order that allowed him to keep the tools. They went back again on 19 November 2015 and were able to take back with them the large bolt cutter, a small drill and a skill saw which they returned to Alapati as per Receipt of Delivery (Exhibit P4).
• [18] Under cross examination, Corporal Sailini maintans that it was during a phone conversation between Superintendent Fata and the accused when he was with Superintendent Fata and Alapati at the police station and listening in that the accused also mentioned the Court order. Asked why they did not then arrest the accused for misleading, Corporal Sailini’s reply was “that was the reason why this matter has come about and you were charged, because there was still no order. If there was a Court order, there would have been a change in how police handled your matter.” (O le mafuaaga lena na oo mai ai, kakau na charge oe ona ua leai lava se Court order e oo mai lava i le taimi nei. Ana iai se Court order, e iai le suiga i le faatinoga o le galuega). When further put to Corporal Sailini by the accused that what he in fact said was ‘I will seek a Court order’, his response was ‘I do not know any suit and he never said that he would apply for any Order’ (‘Ou te le iloa se sue i le va lena. E leai foi sau tala o le a fai sau talosaga for Orders. Na e fai mai la e ia oe le Court order.’)

Evidence for the Defence

(i) The Accused

• [19] The accused elected to give evidence. He confirms discussing with Sili Alapati the construction of his building at Lalovaea. They visited the site in early May 2015 and agreed that the works would commence. At his Malifa office, the accused gave Sili an agreement he had prepared and signed. Sili read it and told him he would not sign the agreement as it was but that it was easy to proceed with the project on their verbal agreement. He then threw away the agreement. He explained to Sili that he had only budgeted $25,000.00 for the project and wanted it completed in 2 to 3 weeks at the most. Sili asked that he deposit $20,000.00 in his account which he did and works then commenced on 5 May 2015.
• [20] After 3 weeks, the project was nowhere near completion but Sili had asked for another $20,000.00. By then he had decided to have someone value the works done. He wrote Sili the letter dated 29 May 2015 (Exhibit P3). The following week upon receipt of the letter, Sili called and asked for an opportunity to talk. They spoke at the accused’s office where he expressed his disappointment with the status of the works and told Sili that if he did not pay back his money, he would be filing a claim against him. At no time during this meeting did he mention anything about a Court order.
• [21] The following week, when Sili’s workers came onto the site to remove the tools and equipment, he asked if Sili had not said anything to them about their agreement being terminated. He told them not to come back onto his property. He never mentioned to the workers anything about a Court order.
• [22] The accused admits that subsequently, Fata of the Ministry of Police called and he explained to him what happened. He also told him that he was preparing his application for an Order to allow him to keep Sili’s tools and equipment because of what happened to their agreement. Fata then told him to leave it at that (‘ua lelei o le a taatia ia faapea’). As a result, the tools continued to remain with him for a while as there was also no contact from police. Meanwhile around June to July 2015, there were attempts to settle the matter between him and Sili involving Ms Iuni Sapolu. The discussion which did not reach a settlement centered on an amount to be paid by Sili to the accused and there was never a mention of a Court order.
• [23] On 24 July 2015, the accused filed in the Supreme Court an exparte motion for Orders (Exhibit D1) seeking amongst others an injunction against Sili and his employees from entering his property and removing any of the machinery, tools and equipment until the dispute between them was resolved. The motion went through the process in the Supreme Court before the charges were filed by police and took over the civil proceedings in the Supreme Court.
• [24] The accused recalls that it was in September 2015 that police came with a search warrant and removed the tools and equipment from his property. In November 2015, when he realised that there were tools remaining, he contacted police and signed a document confirming having handed the tools over. It was on 26 November that he was charged.
• [25] The accused maintains that what he told Superintendent Fata and Corporal Sailini was that he was going to file an application for an Order to allow him to keep the tools and Sili to pay back his money. He says that as a lawyer, he knew that if he said something wrong or lied, it would have an impact on his practice. According to the accused, his Exparte Motion for Orders and supporting Affidavit (Exhibit D1); and Statement of Claim (Exhibit D2) against Sili and his company, all dated 24 July 2015, are consistent with and support that what he said was that he was going to apply for an Order, not that he had an Order.

[26] Under cross examination, the accused maintains that when Pauli and his fellow workers came to take the tools, he only asked if Sili had mentioned to them anything about the contract, but never told them anything about an order. He also maintains that when Fata called him in June, he knew he did not have an Order and told him that he was making an application for an Order. Whilst conceding that Corporal Sailini came to him one day when he was in Court, he denies having told him that he had a Court order.

[27] Asked as to whether Sili’s tools and equipment were used when another person took over the completion of his project, the accused’s reply was that he did not know and he did not tell them anything about using the tools and equipment and he was not there all the time (ou te lei iloaina, ae leai sa’u tala na fai iai e faaaoga. Ou te lei iai e supervise le galuega, ou te lei iai foi i taimi uma).

[28] The accused accepts that following the termination of their agreement, the only way he could negotiate with Sili his demand for payment was to keep his machinery, tools and equipment. He further concedes that after Sili’s workers left without the tools in June 2015, neither Sili nor his workers came back onto his property until police arrived with a search warrant in September 2015. He maintains that police could have removed from him the tools and equipment earlier.

[29] Asked as to the ‘trespass order’ he referred to in his letter to Sili advising of the termination of their agreement and in his application to Court, the accused says that by ‘trespass order’ in his letter, he meant his own personal order, otherwise he would have stated ‘Court order’.

(ii) Sililotu Punefu Enari

[30] Sililotu Punefu Enari’s brief evidence is that he was present at the discussion between the accused, his wife Fetu Moeono, Sili Alapati Brown and Ms Iuni Sapolu at Apaula Heights. The meeting was to try and resolve the dispute between the accused and Sili Alapati relating to the works at Lalovaea. Despite the attempt, the dispute was not resolved.

Law

[31] The charge of obtaining by deception is defined under s172, Crimes Act 2013 as follows:

• “(1) A person commits the offence of obtaining by deception or causing loss by deception who, by any deception:
  • (a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
  • (b) in incurring any debt or liability, obtains credit; or
  • (c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
  • (d) causes loss to any other person.
• (2) In this section, “deception” means:
  • (a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
  • (i) knows that it is false in a material particular; or
  • (ii) is reckless as to whether it is false in a material particular; or
  • (b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
  • (c) a fraudulent device, trick, or stratagem used with intent to deceive any person.”

[32] In Police v. Mulitalo [2018] WSCA 12 (25 October 2018), where the Court of Appeal allowed the appeal from a decision of the Supreme Court and ordered this retrial, they identified the elements to be proved in this case as:

• (a) A deception (falsely stating that the accused already had a Court Order);
• (b) Knowing that it was false and intending to deceive (if the accused had said that he already had a Court Order, he must have been aware that he did not);
• (c) He either obtained ownership, possession or control of the building equipment, or caused loss to Mr Brown by withholding the equipment.

[33] I apply the elements as identified to the evidence in this case as follows.

Discussion

(a) A deception (falsely stating that the accused had a Court Order)

[34] Prosecution relies on the evidence of Pauli that when he and Savelio went to remove the tools following the termination of the works, the accused told them they could not because he had a Court order that allowed him to keep the equipment. There is also the evidence of Sili Alapati that when his employees told him that the accused had refused removal of the tools citing a Court order, he told them not to go back onto the accused’s property.

[35] Prosecution further relies on the evidence of Superintendent Fata, Corporal Sailini and Sili Alapati of the phone conversation between Superintendent Fata and the accused on speakerphone with Corporal Sailini and Sili present. The evidence of these 3 witnesses is that when Superintendent Fata raised with him Sili’s complaint, the accused’s response was that he had a Court order that allowed him to keep the tools, not that he was going to get a Court order. There is also the evidence of Corporal Sailini that during the investigation, he found the accused at the court house where he again told him that he had a Court order. Again, he was not able to produce it when asked.

[36] Prosecution argues that because of the accused’s representation, police gave him the opportunity to come up with the order. But even when police had decided to charge him in November 2015, he still had not produced the order.

[37] The accused on the other hand denies that he told Pauli that he had a Court order but asked whether Sili had mentioned to them the termination of their contract. Whilst admitting that Fata called and that they spoke on the phone, he denies that he told him that he had a Court order. Whilst conceding meeting Corporal Sailini at the Court house, he also denies that he told him that he had a Court order. He maintains that what he said to Superintendent Fata on the phone and Corporal Sailini at the court house was that he was going to apply for a Court order and he did in fact apply, as per his exparte motion for Orders filed in the Supreme Court in July 2017. The accused also argues that Police could have taken possession of the tools and equipment earlier but failed to do so.

[38] After a careful consideration of the evidence, I find in favour of the prosecution. Pauli was clear and forthright and his evidence was plausible and credible. I find no reason to doubt his evidence that the accused told him that he had a Court order. He was an employee that was sent on site by his employer to uplift the tools. He knew the accused was a lawyer, he knew what a Court order meant, and when he was told by the accused that he had one, he left without the tools and contacted his employer.

[39] I also find credible the evidence of Superintendent Fata as to his phone conversation with the accused when he was with Sili and Corporal Sailini in his office. I find that when Superintendent Fata raised with him Sili’s complainant, the accused responded that he had a Court order that allowed him to keep the tools. The conversation was on speakerphone and heard by Sili and Corporal Sailini. All three were unmoved under cross examination, two are experienced police officers who know the effect of a Court order and I find no reason to doubt their evidence of what they were told by the accused. The same goes with the evidence of Corporal Sailini as to his meeting with the accused at the Court house where the accused again told him he had a Court order but was unable to produce it. The Police knew that the accused was a lawyer and when he told them he had a Court order, they would have trusted him to provide it because for months, they did not pursue the complaint until the accused’s failure to provide the Order continued right up to when he was charged.

[40] Despite the accused’s undisputed evidence that he filed an exparte motion for orders in July 2015 to allow him to keep possession of the tools until his dispute with Sili was resolved, I am satisfied on the evidence that that was not what he told Pauli, Superintendent Fata and Corporal Sailini on 3 separate occasions. In my view, the accused knew that by telling Pauli and police that he had the Court order, he would continue to keep the tools whilst he negotiates the refund of his money as he referred to in his letter. He was confident that he could apply and obtain a Court order within that time. Unfortunately, the proceedings in the Supreme Court never resulted in an Order and he was unable to provide the Police one even to the point when they decided to charge him.

[41] As to his concern that Police could have taken possession of the equipment earlier, I accept that Police had clearly acted on his advice that he had a Court order and allowed him the opportunity to produce it. The clear evidence is that the accused did not provide the Court order, even up to when the charges were filed.

• [42] I am satisfied therefore beyond reasonable doubt that prosecution has proven this element of the charge.

(b) Knowing that it was false and intending to deceive (if the accused had said that he already had a Court Order, he must have been aware that he did not)

[43] I am also satisfied beyond reasonable doubt that the accused knew his representation was false because clearly, he did not have an order. For months, he was not able to provide the Order when police gave him the opportunity right up to November 2015 when police had had enough and decided to charge him. It is true that he sought an Order by an exparte motion filed in late July 2015 but he never got the Order, not when he made the representations, not when police gave him opportunity and not any time later. The accused very well knew that. I am also satisfied that the accused intended to deceive Pauli, Sili and the police so that he could keep the tools and negotiate a refund of his money as referred to in his letter.

• [44] I therefore find proven beyond reasonable doubt the second element of the charge.

(c) He either obtained ownership, possession or control of the building equipment, or caused loss to Mr Brown by withholding the equipment.

• [45] As to the third element, it is not disputed by the accused that following the termination of their agreement, he continued to be in possession and control of the building tools and equipment until September 2015 when the police turned up with a search warrant and removed them. It was suggested in the evidence that by withholding the equipment, loss was caused to Sili because he was not able to use the tools for his other projects. The extent of that loss however is not clear. What is clear however is that since the termination of the agreement in June 2015 and the subsequent representation by the accused, he continued to be in possession and control of the tools and equipment until September 2015 when Police were able to remove them under a search warrant.
• [46] I find therefore also proven beyond reasonable doubt the third and final element.

Conclusion

• [47] For the above reasons, I have reached the following conclusions:
  • (i) On the one charge of obtaining by deception, I find the accused guilty of the charge.
  • (ii) The accused is remanded on the same bail conditions to Friday 24 July 2020 at 12.30pm for a pre sentence report and sentencing.

JUSTICE FEPULEA’I A. ROMA