DISTRICT COURT OF SAMOA
Police v Stowers and Mikaele [2011] WSDC 1

Case name: Police v Stowers and Mikaele
Citation: [2011] WSDC 1
Decision date: 19th August 2011
Parties: 
POLICE  (prosecution) v VAIOLETI STOWERS female of Vaimoso and IOANE VAOMU MIKAELE male of Vaimoso
Hearing date(s): 20th & 21st June 2013
File number(s): D370/11, D371/11
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): DCJ Tuatagaloa
On appeal from:
Order:
Representation: 
Senior Sergeant Samuelu Afamasaga for Police (prosecution)
Vaioleti Stowers - Unrepresented 
Ioane Vaomu Mikaele - Unrepresented
Catchwords: 
Words and phrases:
Legislation cited:
Samoa Crimes Ordinance 1961 s96
Debtors Act 1869 s13
New Zealand Crimes Act 1961 s247
Cases cited:
R v Jones [1898] 1 QB 119.
Police v Griffiths [1976] 1 NZLR 498 
R v McKay [1961]NZLR 256, 
Rhodes [1989] 1 Q.B. 77)
R v Hurren (1962) 46 Cr. App. R 323
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE 

Prosecution

AND:

VAIOLETI STOWERS, female of Vaimoso 

First Defendant 

IOANE VAOMU MIKAELE male of Vaimoso

Second Defendant

Prosecutor : Senior Sergeant Samuelu Afamasaga for Police (prosecution)
Defendants:  Vaioleti Stowers – Unrepresented 
	          Ioane Vaomu Mikaele – Unrepresented

Hearing: 20th and 21st   June 2011

Decision:  19th August 2011

DECISION OF DCJ TUATAGALOA 

The Charges:
1	The defendant Vaioleti Stowers is individually charged with two (2) counts of obtaining credit by fraud under section 96 of the Crimes Ordinance 1961 as follow: 
D302/11:	23 November – 6 December 2010
D373/11:	11 December 2010

2.	Both defendants, Vaioleti Stowers and Ioane Vaomu Mikaele are jointly charged with obtaining credit by fraud under section 96 of the Crimes Ordinance 1961 as follow:
D370/11:	17 November – 18 November 2010
D371/11:	15 December – 29 December 2010
D493/11:	23 January 2011 – 29 January 2011

3.	The individual charges against Vaioleti Stowers involve two (2) car rental places the defendant is alleged to have rented cars from. 
4.	The joint charges involve accommodation places that both defendants said to have stayed.

 5.	The Prosecution called seven (7) witnesses and both defendants also opted to give evidence. 

The Law:
6.	Section 96 of the Crimes Ordinance 1961 says:
“96.	Obtaining credit by fraud – Everyone is liable to imprisonment for a term not exceeding 6 months who in incurring any debt or liability obtains credit by means of any fraud.” 

7.	The court will first deal with the individual charges against the defendant Vaioleti Stowers and then the joint charges against Vaioleti Stowers and Vaomu Mikaele Ioane.

Individual Charges:	
(a)The Evidence: 
(i)  D302/11:	23 November – 6 December 2010
8.	The defendant is charged with obtaining credit by fraud for the extra days that she used the car which would be from 26 November – 6 December 2010 and which payment still remains outstanding. 

9.	The Defendant, Vaioleti Stowers rented a car from Juliana Car Rentals on 24 November 2010 for two (2) days. She signed a rental agreement with the said company for two (2) days and paid for it.  The defendant was to return the vehicle on 25 November 2010 but instead of returning the car to the car rental company she left the car at a relative’s house at Alamagoto. The relative contacted the car rental company on 6 December 2010 that the vehicle was parked at their house. The defendant admitted to having left the car at the relative’s place at Alafua.

10.	The defendant said she called Clint Keil who co-owns the rental company with his wife Frieda Keil to extend the usage or rental of the car. The defendant dealt with Clint Keil and said that Clint Keil agreed for her to pay for the extra days at a later date. Clint Keil did not give evidence and the prosecution did not provide any evidence to counter this evidence by the defendant.  The defendant owes the rental company $1000 for the extra days.	
    (ii)  D373/11:	11 December 2010

11.	The second individual charge against the defendant Vaioleti Stowers also involves another car rental business called the FJ Lavea Rental situated at Leufisa. The defendant on 11 December 2010 rented a mini van for seven (7) days from this company. The co-owner of the company completed the required rental agreement with the defendant who used the name “Vaomu Mikaele Ioane” and also signed the agreement as “V.Mikaele”. The defendant gave the impression that her husband was Vaomu Mikaele Ioane and she used his name for the rental agreement form and also his driver’s licence.

12.	The defendant offered to pay for the seven (7) days rental of vehicle from 11 December – 18 December 2010 by credit card but was told that company policy was cash only. Roketi Lavea who co-owns FJ Rental knows the defendant well and he agreed for the defendant to take the vehicle on 11 December without a deposit or payment upon the condition that the defendant will come back on Monday, 13 December to pay. The defendant from then on was said to have given the owners the run around and never paid $600 for the rental of the vehicle.

The Joint Charges:
(a)	The Evidence:
(i)  D370/11:	17 November – 18 November: Outrigger Hotel
13.	Both defendants are charged with obtaining credit by fraud for two (2) days at Outrigger Hotel for 17 November – 18 November 2010.  The defendant, Vaioleti Stowers checked both of them in at the Outrigger Hotel on 17 November 2010 at about 11pm at night. She signed the “check in” book at the Outrigger Hotel under the name “V. Forbes”. The defendant confirmed in court that she was the one and same person.

14.	The staff member, Natasha Esera was working on the night of 11 November 2010 when Vaioleti Stowers checked in. She said that she fully informed Vaioleti Stowers of the room rates and the key deposit of $20 that she must pay. Vaioleti Stowers told her that she will pay the next day as she needed to go to the bank to get the money. The following day, Vaioleti Stowers went to the reception and informed supervisor, Lemafoe Tupuanaitua to extend the room for another day but she was going to town to get the money to pay for the room. Vaioleti Stowers never returned.

15.	The co-defendant Vaomu Ioane did stay at the Outrigger but he never dealt with the hotel staff. He gave evidence that it was Vaioleti that dealt with the staff and was told by Vaioleti not to worry about the accommodations as she has already paid. Vaomu Ioane confirmed that they stayed one night at the Outrigger Hotel but was not aware that Vaioleti had extended for another day nor did he know that the accommodation had not been paid.   

16.	Vaioleti Stowers denied that she extended the room for another day but confirmed that she never paid for the room and the key deposit as she had told the staff she would.

17.	The room was not paid until sometimes in January 2011 when the matter was with the police.
(ii) D371/11:	15 December – 29 December 2010: Seaside Inn

18.	A couple of weeks after the Outrigger Hotel the Defendants checked in at the Seaside Inn at Matautu-tai on the night of 15 December 2010. The supervisor, Montana Nemaia was in the office when Vaioleti Stowers checked them in and requested for a room for 2-3 weeks. The defendant Vaioleti Stowers wrote the name of “Vaomu Ioane” in the guests check in book.   

19.	 Montana has worked for Seaside Inn for 6 years and gave evidence that she has known the Defendant, Vaioleti Stowers for 16 years. Montana gave evidence that she gave a discounted room rate to Vaioleti Stowers given that they will be staying for 2 -3 weeks and she also asked for a deposit if  not full payment of the room. The defendant, Vaioleti Stowers told her that she would need to go to the bank to get the money to pay for the room. Montana said that everytime she reminded Vaioleti Stowers about payment she was always told of some excuse by Vaioleti that she will go to the bank and still no payment was ever made whilst both defendants were staying there. 

20.	On or about 19 December Vaioleti told Montana to make the invoice out to the Ministry of Natural Resource & Environment where the defendant Vaomu works for them to pay. Vaomu gave evidence that when he found out about this he told Montana not to make the invoice out to the office as the office is not responsible for payment. 

21.	The defendant Vaomu confirmed that they stayed at the Seaside Inn, that he thought the room was already paid for as he had asked Vaioleti about it and was told that she had already paid. He said he believed Vaioleti when she told him that the room was already paid for because he gives her his wallet with money in it. He told the court he did not know that the room has not been paid until 23 December 2010.

22.	On 23 December 2010 Montana filed a complaint with the police as there was still no payment made by the defendants despite follow ups. 
  
23.	The hotel outstanding bill was paid off in two (2) installments on 19 January 2011 and 5 April 2011 when the matter was before the court.

(iii) D493/11:	23 January – 29 January 2011: Satuiatua Beach Fales
24.	On 22 January 2011 the defendants checked in at the Satuiatua Beach Fales in Savaii for one (1) night and paid for it. The next day, 23 January 2011 Vaioleti Stowers with Vaomu present spoke with the Manager, Kesia Tanuvasa and extended their stay for a whole month. Given that they were staying for a month a discount rate was given. Vaioleti was told to pay the full amount or pay half of the total amount for the fale upfront. She told the manager   they needed to go to the Western Union to get the money sent over by their son to pay for the accommodation. Vaioleti told the manager that they were a married couple trying to patch up their marriage.

25.	The manager, Kesia Tanuvasa said that Vaioleti was always telling them that the money has not arrived at Western Union thus the reason why they have not yet paid for the fale. On 27 January, Vaioleti was still telling the Satuiatua Beach Resort that the money still has not been received by Western Union. The manager knew people at the Western Union branch at Salailua in Savaii called and enquired if there was any money received in either of the defendants names and whether the defendants had ever came in during the week to enquire about money being sent over and the respond was negative to both. The defendants when they left Satuiatua Beach Fale on 27 January 2011 never went back. 

26.	The Satuiatua Beach Fale outstanding bill by the defendants was paid off on 4 February 2011 by the defendant, Vaomu Mikaele Ioane’s married wife who travelled from New Zealand. At the time it was paid both defendants have already been charged by the police.

The Authorities: 
27.	The leading authority in this particular class of case is R v Jones [1898] 1 QB 119. This was a case of a man who went to a restaurant, ordered and consumed a meal and then did not pay. He made no representations as to his ability to pay. It was held that because he had made no representation of any kind he could not be convicted for obtaining goods by false pretences but that the facts were sufficient to establish the offence of obtaining credit by fraud within the meaning of s13 of the Debtors Act 1869. Lord Russell of Killowen CJ said at p.124:
“There are three elements which have to be considered in the construction of that section: first, there must be the incurring of a debt or liability; secondly, there must be an obtaining of credit; and thirdly, there must be fraud: the conjunction of these three ingredients makes the offence” 

28.	Mahon J in Police v Griffiths [1976] 1 NZLR 498 said that the third ingredient as stated by the Lord Chief Justice contains an ellipsis in that, he was there referring to two separate considerations. 
“First, the false pretence or other dishonest conduct by which credit was obtained, and, second the co-existent intention not to pay the debt or otherwise to defraud the creditor.” (ibid, p.499)

29.	Section 247 under the New Zealand Crimes Act 1961 deals with obtaining credit by false pretence and by fraud under the same section. The offences of obtaining credit by fraud and by false pretence in the Samoa Crimes Ordinance 1961 are dealt with separately under s96 (obtaining credit by fraud) and s97 (obtaining credit by false pretence). Nevertheless, if ss96 & 97 are placed together under one section the wording will be no doubt identical to that of s247 or the meaning and intention will be the same as that of s247.

30.	In order to be guilty of an offence under s.96 of the Crimes Ordinance 1961 four matters have to be proved, viz: 
(a) The offender must incur a debt or liability;
(b) He must obtain credit in respect of that debt or liability;
(c) He must obtain that credit by dishonest conduct or other fraud; and
(d) He must at the time when he obtains the credit have intended not to pay the debt or otherwise to defraud the creditor.

31.	Proof of intention to defraud at the time when credit is obtained is, therefore the essential ingredient of liability. (see: R v McKay [1961]NZLR 256, P v Griffiths [1976] 1 NZLR 498). It is incumbent on the prosecution to prove beyond reasonable doubt that at the time when credit was obtained the Defendants had no intention of paying the debt.

32.	Evidence of similar transactions either prior or subsequent to the act charged may be given, if such transactions have some nexus or connection with the offence(s) charged. Once nexus is established, it does not matter whether the similar incidents adduced in evidence were prior or subsequent to an offence charged. (see R v Hurren (1962) 46 Cr. App. R 323 which followed Rhodes [1989] 1 Q.B. 77)

Conclusion:
Individual Charges against Vaioleti Stowers:
(a)	D302/11:	23 November – 6 December 2010 	(Juliana’s Car Rental)
33.	There was no evidence by the prosecution to prove whether the defendant had the intention to defraud the rental company when she called the co-owner, Clint Keil to extend the rental of the car for extra days beyond the 2 days she had already paid for. The defendant in evidence said she made arrangement with the co-owner for payment for the extra days. Clint Keil did not give evidence and the court has no other evidence except that of the defendant. 

34.	This charge is therefore dismissed.

(b)	D373/11:	11 December 2010	(FJ Lavea Rental)
 35.	In the case of Police v Griffiths [1976] 1 NZLR 498 the defendant took a taxi home and was asked by the driver whether he had money to pay and was told he had. When the taxi arrived the defendant did not have any cash on him but he offered to pay by cheque but the driver refused as it was by cash only. The defendant was found guilty. He appealed his conviction and was successful in that the Appeal Court found that he had enough money in his cheque account to pay for the taxi fare. The court said 
“The real intention of the appellant when he first made the false representation to the taxi driver is perhaps not clearly shown, but the ability and the readiness of the appellant to pay the debt at the end of the journey is either conclusive in his favour or at the very least raises a substantial doubt as to the existence of any criminal intent at the time when credit was obtained.”(ibid,p.450)

36.	The facts of Griffiths are the opposite of what happened. The defendant Vaioleti Stowers offered to pay for the rental by credit card but was not accepted as it was cash only. The defendant told the owners that she did not have cash on her and the bank was not open. The owners as it was a Saturday and the man knows Vaioleti agreed for the defendant to take the car but to come the following week on Monday to pay. This never happened.

37.	The defendant did not deny this and never offered any explanation as to why she did not pay and still has not. It also questions her intention at the time she offered to pay by credit card as to whether she was genuine. The court very much doubts that the defendant, Vaioleti Stowers was genuine when she offered to pay by credit card. It is my view that the defendant’s inability to pay for the rental in the week following is a clear indication of the criminal intention of the defendant, that she never intended to pay.
 
38.	The court finds the defendant, Vaioleti Stowers guilty of this charge.

The Joint Charges:
(i)	D370/11:	17 November – 18 November 2010: Outrigger Hotel
39.	The evidence clearly showed that the defendant, Vaioleti Stowers never intended to pay at the time she checked in and very much doubt if she had intended to pay at all before she left the hotel. 

40.	There was no evidence as to whether the defendant, Vaomu Mikaele Ioane’s had the intention to defraud or never intended to pay. He never dealt with the hotel staff about staying the night nor had any knowledge that the room had been extended for another day. He also thought that Vaioleti had already paid for the room as she had told him.

41.	The defendant Vaioleti Stowers is found guilty of this charge. 

42.	The charge is dismissed against the defendant Vaomu Mikaele Ioane. 

(ii)	D371/11:	15 December – 29 December 2010: Seaside Inn
43.	The evidence showed that the defendant, Vaioleti Stowers did not have any intention of paying whilst staying at the Seaside Inn. Her behavior by always telling the staff when reminded of payment that she was going to the bank to get the money and never did is a clear indication of her intention never to pay whilst staying at the hotel. 

44.	The defendant, Vaioleti Stowers behavior with the Outrigger Hotel a couple of weeks prior regarding payment was exactly the same as what she did with the Seaside Inn. Her prior behavior is also considered as an indication of her intention to defraud the Seaside Inn from paying.

45.	The court found that the defendant, Vaomu Mikaele had knowledge that the room has not been paid whilst still staying there but did not try or made effort to make payment. Instead it was convenient for him to say in evidence that he thought Vaioleti had paid for it. 

46.	The court finds both defendants guilty of this charge.

(iii)	D493/11/:	23 January – 29 January 2011: Satuiatua Beach Fale
47.	Both defendants are clearly found guilty of this charge in that they never intended to pay when they extended their stay at Satuiatua Beach Fale. Their behavior with the Seaside Inn having left without payment showed a criminal intent on their part to defraud the Satuiatua Beach Fales. 

48.	Overall the court finds as follow:
(i)	The defendant Vaioleti Stowers is found guilty of the charges D370/11 and D373/11;
(ii)	Both defendants, Vaioleti Stowers and Vaomu Mikaele Ioane are found guilty of the charges D371/11 and D493/11.

Judge Mata K Tuatagaloa