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Police v Bourne [2016] WSDC 37 (22 August 2016)

DISTRICT COURT OF SAMOA
Police v Bourne [2016] WSDC 37

DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

STEVEN BOURNE, male of Tanugamanono and Lalovaea.
Accused

Counsel:
Mr. O. Tagaloa for National Prosecution Office.
Mr. Tuisa T. Patea for Accused.

Hearing: 7 July 2016.
Submissions: 5 August 2016.
Decision: 22 August 2016.
Reasons: 16 September 2016.

REASONS FOR DECISION OF JUDGE ROMA

Charges

1. The accused faces the following charges:
   • (a) That between 31 July 2014 and 30 September 2014, the accused dishonestly took (1) Mazda sedan Familia gear valued at $1,000.00, being property of Tise Muliaga, with intent to permanently deprive the owner of his property therein (s161 & 165(c), Crimes Act 2013);
   • (b) That between 31 July 2014 and 30 September 2014, he obtained by deception monies in the amount of $800.00 from one Timoteo Molesi (s172, Crimes Act 2013);

Evidence by the Prosecution

2. The prosecution called 3 witnesses. Other than the 2 complainants Tise Muliaga (“Tise”) and Timoteo Molesi (“Timoteo”), the third witness was Sam Su’a (“Sam”). At the material time, Sam was working for the accused in his mechanical workshop.
3. Tise’s evidence is that in 2013, he bought from the accused a white Mazda Familia sedan registration no. T1710 (“taxi”) for $14,000.00. He knew the accused for some time, and about a month after he had bought the taxi, he was looking for someone to run it and therefrom earn income on his behalf.
4. Following discussions with the accused, they agreed that Tise would give the accused the taxi on condition that the accused would run it; the accused would pay him weekly turn ins; and the accused would also be responsible for repairing any damage to the taxi.
5. Sometime in August 2014, Tise was contacted by the accused and informed that the taxi had not been operating because of a defect in the gear. The accused further told him that he would continue to pay the turn ins as agreed, even for the period that the taxi was garaged.
6. In late 2014, Tise left for New Zealand and upon his return in December 2014, he did not see the taxi around. He was also not getting paid the agreed weekly payments, but the accused was also avoiding him. He then filed a complaint resulting in the present charges against the accused.
7. Under cross examination, Tise concedes that he was informed by the accused about the problems with the gear and that he told the accused he would come to see him later. When he arrived, he found his taxi garaged but the gear was missing. Tise says that the accused told him that he would work on the gear, and continue to pay him the weekly payments.
8. The evidence of Sam, the second prosecution witness is that he had been working for the accused at his mechanical workshop. At the end of 2014, a man named Timoteo whom he knew was employed by the Ministry of Natural Resources and Environment (MNRE), and who is prosecution’s third witness, came to the accused looking for a spare gear for his own vehicle.
9. According to Sam, the accused told Timoteo that he could fix his vehicle, then instructed Sam and another person named “Pati” to go and tow Timoteo’s vehicle to their workshop. The accused also told Timoteo to check back the following day.
10. Sam further says that later that evening, the accused called in the driver of the taxi to bring the vehicle to the workshop. Around 11pm, Sam and Pati, on the accused’s instructions, started work on removing the gear from Tise’s taxi and installed it in Timoteo’s vehicle. Whilst this was being done, the accused told Sam and Pati that he was selling the gear to Timoteo, and that he would pay them some money once he received payment from him.
11. After the gears were removed and installed respectively in Tise and Timoteo’s vehicles, Sam says that Timoteo’s vehicle was then fixed and worked properly whilst Tise’s taxi had problems.
12. Timoteo, the final witness for the prosecution confirms that in 2014, when his mazda 323 had gear problems, he was directed by some people to the accused and told that the accused might be able to help.
13. When he spoke to the accused, the accused told him that he had a gear he could use to replace his (Timoteo) vehicle gear. The vehicle was left with the accused and after 2 to 3 weeks, the gear was replaced before he paid the accused the last payment. According to Timoteo, the accused told him that the gear cost $400.00, labour costs were $400.00, but he also paid to the accused small amounts whenever he went to check on his vehicle.
14. Timoteo in his evidence, furthers says that in February 2015, Police came to him and told him that the gear he had in his vehicle was stolen property. Days later, he was contacted by Police and asked of his whereabouts before they turned up, took his vehicle and held it at Police headquarters in Apia. Subsequently, the Police had the accused remove the gear from Timoteo’s vehicle and left it inoperative until only recently when Timoteo himself had it repaired.

Evidence for the Accused

15. The accused does not dispute that Tise bought his vehicle for $14,000.00 in September 2014. He says however that later when they agreed that he would operate the taxi, it was on the basis that he pays Tise $350.00 of weekly turn ins towards a total sum of $10,000.00. That part of the defence case was never put to Tise under cross examination.
16. The accused does not also dispute that he sold a gear that he had used on Tise’s taxi to Timoteo when Timoteo approached him looking for a gear for his vehicle. He maintains that he was the one that removed the gear from Tise’s taxi and installed it in Timoteo’s vehicle. He says that the gear was of a vehicle he had bought for $2,000.00 from a person named Sione Sione (“Sione”), and when he sold it to Timoteo, he was selling his own property.
17. The accused in his evidence also says that before he sold the gear to Timoteo, he had been using it on Tise’s taxi as replacement when the old gear was damaged. He had informed Tise about this and Tise suggested that they use that of another vehicle that was also garaged at the accused’s workshop.
18. The second defence witness Sione confirms that he knows the accused. Sione himself had owned a Mazda 323 and in 2013, the computer box was damaged during Cyclone Evan. Subsequently, he sold his damaged vehicle to the accused for $2,000.00 and at the time, the gear was in good working condition. He also says in his evidence that sometime later, when he went back to the accused for his money, there was another vehicle garaged at the accused’s workshop. The gear of that other vehicle was missing.
19. It is not disputed that when Police became involved later, the gear was removed by the accused from Timoteo’s vehicle on Police instruction. It has since been installed back in Tise’s vehicle.

Law

Theft

20. Section 161, Crimes Act 2013 states as follows:

“161. Theft or stealing-(1) Theft or stealing is the act of:

(a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or

(b) 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.

(2) An intent to deprive any owner permanently of property includes an intent 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.

(3) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.”

21. Section 161 is identical to section 85 of the old Crimes Ordinance 1961. A full discussion of that section is found in Police v. Tavui [2013] WSSC 6 (22 February 2013).
22. Section 165 refers to the penalties.
23. For the prosecution to sustain the theft charge against the accused, it must prove the following elements beyond reasonable doubt:
    • (a) there must be a taking by the accused;
    • (b) the taking was done fraudulently or dishonestly;
    • (c) there was an intention on the part of the accused to deprive the owner permanently of his interest in the property.

Obtaining by deception

24. Section 172, Crimes Act 2013 relevantly provides as follows:

172. Obtaining by deception or causing loss by deception-(1) A person commits the offence of obtaining by deception or causing loss by deception who, by any deception:

(a) obtain ownership or possession of, or control over, any property ... directly or indirectly; or

(b) ... or;

(c) ... 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) ... ”

25. As to the elements of the offence, Sapolu CJ Police v. Gianno [2015] WSSC 198 (24 December 2015) and upheld in Stanfield v. National Prosecution Office [2016] WSCA 11 (2 September 2016) states them to be:

“(a) the accused must have made a representation that is materially false;

(b) the representation must have been made with intent to deceive another person;

(c) the accused must have known of the falsity of the representation or was reckless whether the statement was true or false;

(d) the representation must have given rise to one of the situations to which section 172(1)(a), (b), (c) or (d) refers.”

26. In the present case, the prosecution alleges in respect of the fourth element that the representation must have caused the accused to obtain ownership of the gear and / or loss to Timoteo.

Discussion

Theft

(a) There must have been a taking by the accused

27. It is not disputed that the gear that was in Tise’s taxi was removed by the accused and installed in Timoteo’s vehicle. I find therefore that there was a taking of the gear by the accused.

(b) The taking was done fraudulently or dishonestly

28. The prosecution’s case is that the accused knew that the gear was property of Tise. When he instructed Sam and Pati to remove it from Tise’s taxi and installed it in Timoteo’s vehicle, he did so fraudulently and dishonestly, because not only did he know it was not his property, but he was also selling it to Timoteo for a significant sum.
29. The defence on the other hand argues that the taking was not fraudulent or dishonest because the gear was the accused’s property. It was the gear of a vehicle the accused had bought from Sione and which he used on Tise’s taxi when it became faulty. The defence submits that the accused had every right to remove the gear and install it in Timoteo’s vehicle.
30. I have listened carefully to the evidence and observed each witness’ demeanour, and I have decided to accept evidence for the prosecution. I reject the accused’s claim that it was his property. I reject that it was the gear of a Mazda 323 he had bought from Sione and which he had earlier used to replace the gear of Tise’s taxi when it was damaged, before it was again removed and sold to Timoteo.
31. Compared to the prosecution witnesses, the accused was evasive in his evidence, and his claim that the gear was his property, having bought it from Sione were never put to any of the prosecution witnesses under cross examination. I am also of the view that if it was in fact his property, he would have at least objected to police instruction to remove it from Timoteo’s vehicle after the matter was reported to Police.
32. I am satisfied therefore that the prosecution has proven the second ingredient.

(c) There was an intention on the part of the accused to deprive the owner permanently of the item that was taken

33. I am also satisfied that the accused intended to permanently deprive Tise of the gear when it was removed from his vehicle. He sold it to Timoteo for a significant sum, the gear was installed in Timoteo’s vehicle on his instructions and at his workshop, and were it not for Police involvement, it would not have been returned and fixed in the taxi that it was in previously.
34. I therefore find proven beyond reasonable doubt the charge of theft against the accused.

Obtaining by deception

(a) The accused must have made a representation that is materially false

35. The undisputed evidence of Timoteo is that when his Mazda 323’s gear was damaged, he was shown the accused as the best person to ask for help. He spoke to the accused and the accused told him he had a gear with him that could be used; that he could fix his vehicle using that gear, and informed him about the price. A couple of weeks later, he was called to pick up his vehicle. He made payment before he left.
36. There is no evidence that the accused specifically told Timoteo that the gear belonged to him. But the accused was an experienced mechanic. He was being sought after for spare parts and to repair vehicles. In the circumstances of this case, I am satisfied that by his conduct, particularly of selling the gear to Timoteo for a significant price, he represented to Timoteo that the gear he was selling him was his own property.
37. Having rejected the accused’s evidence that the gear was his property, I am satisfied that that representation by him was materially false.
38. I therefore find proven the first ingredient.

(b) The representation must have been made with an intent to deceive another person

39. I am also satisfied that when the accused made such representation, he had the intention to deceive Timoteo. He knew that Timoteo was desperate for help. He did not inform Timoteo that the gear was not his, or that it would have to be removed from another person’s vehicle to be installed in his vehicle.
40. I find therefore proven the second ingredient.

(c) The accused must have known of the falsity of the representation or was reckless whether the statement was true or false.

41. I also find proven the third ingredient. In my view, the accused knew that the gear was not his property when he offered it to Timoteo for $800.00

(d) The representation must have given rise to him obtaining ownership of property or loss to any person

42. It is not disputed that the accused obtained monies as a result of that representation. Other than payment for his labour in installing the gear, he concedes that he obtained $400.00 for the gear itself. There is also the evidence of Timoteo that apart from costs for the gear and labour, he also paid other sums to the accused when he checked on his vehicle and estimates total payment made to the accused to be about $1,000.00.
43. When the gear was removed from Timoteo’s vehicle in February 2015, it became Timoteo’s loss obviously because after he bought it from the accused, he was of the view that it was then his property.
44. I find the fourth ingredient also proven.

Decision

45. For the foregoing reasons, I find that the prosecution has proven both charges beyond reasonable doubt.

JUDGE FEPULEAI A ROMA