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Talaepa v Afoa [2025] WSDC 4 (28 July 2025)

IN THE DISTRICT COURT OF SAMOA
Talaepa v Afoa [2025] WSDC 4 (28 July 2025)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

NOLA TALA’EPA of Apia
Informant

AND:

SETI AFOA of Falefa and 27 Hatfield Heights, Hatfields Beach, Orewa, 0831 Auckland, New Zealand
Defendant

Private Prosecution: Mr Gafatasi Patu
Defense Counsel: Ms Tanya Toailoa

Date of hearing: 28^th July 2025

Date of decision: 28^th July 2025

RESERVED WRITTEN DECISION ON HEARING

Introduction

1. This is a private prosecution against the defendant from an aggrieved informant and member of the Samoa Cycling Federation alleging that the defendant obtained by deception the re-registration of Samoa Cycling as a sports organisation with the Ministry of Commerce, Industry and Labour (MCIL).

The charge

2. The defendant is charged with one (1) count of attempt to obtain by deception pursuant to sections 172 and 173 of the Crimes Act (CA2013) and sections 90 and 91 of the Criminal Procedure Act 2016 (CPA2016):
   • “... that in Samoa between 1^st January 2020 and 31^st December 2023, the above-named defendant co-authored a letter addressed and given to MCIL dated 11 November 2021, knowing or was reckless as to whether it is false in a material particular, in order to attempt to obtain by deception from MCIL, the continuation or registration of Samoa Cycling as an incorporated society”.
3. Section 172 of the CA2013 states:
   • “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) 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

4. Sections 90 and 91 of the CPA2016 provide:
   • 90. Attempt proved when crime is charged - If the commission of the crime charged is not proved, but the evidence establishes an attempt to commit the crime, the defendant may be convicted of the attempt.
   • 91. Crime proved when attempt is charged - (1) If an attempt to commit a crime is charged, but the evidence establishes the commission of the full crime, the defendant may be convicted of the attempt.
   • (2) After a conviction for that attempt, the defendant is not liable to be tried again for the crime which he was charged with attempting to commit.

The Law

5. Obtaining by deception is an offence well settled by trial in Samoa^[1]. The elements that the prosecution must prove beyond a reasonable doubt are:

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

(b) The representation must have been made with an 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 false representation must have given rise to one or more of the situations to which s.172 (1) (a), (b), (c), or (d) refers

Facts

6. Prosecution called two (2) witnesses Mrs Lani Wendt Young (Lani) and Mr Darren Christopher Young (Darren). The two witnesses are husband and wife.
7. Lani testified that she became a member of Samoa Triathlon in November 2022 and by virtue of being a member of Triathlon she automatically became a member of Samoa Cycling Federation (SCF). When the issue of the governance of Samoa Triathlon Federation (STF) was questioned in about November 2023, she made a search with MCIL and found out that Triathlon was de-registered for seven (7) years due to no financial reports and no meetings.
8. Lani also made a search for SCF and confirmed that it was still registered but had no audit or financial reports of its operations. Lani referred to a letter dated 11 November 2021 from the defendant to MCIL where she alleges was the defendants attempt to re-register SCF despite the fact there were no audits or financial reports. Lani alleges that the defendant was trying to excuse the absence of an audit or financial reports on the fact that the SCF had no bank account and no money. However, the defendant was allegedly using a bank account in New Zealand to receive monies on behalf of the SCF as shown in Exhibit PII, an alleged email from the defendant dated 12 November 2023 attaching a revenue and expense spreadsheet.
9. Darren’s evidence is the same as Lani’s and does not expand on the issue.
10. At the end of the prosecutions case, Ms Toailoa made a no case to answer application. Before Ms Toailoa was given the opportunity to submit the grounds of her application, Mr Patu was asked to clarify for purposes of Ms Toailoa’s application as to which provision of section 172 he was relying on. Mr Patu stated subsection (1)(c). Mr Patu was given the opportunity to advise if he was to call evidence from the person who was alleged to have been ”... induced or caused .... to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; ...“. Mr Patu conceded that he had no witness to testify as the witness had passed away and that he had no evidence. Mr Patu therefore conceded that he had failed to prove on a prima facie level that there was a case for the defendant to answer.

Conclusion

11. Based on Mr Patu’s concession, there was no need to hear from Ms Toailoa and I dismissed the charge acquitting the defendant.
12. Ms Toailoa seeks costs to be filed at her discretion.

JUDGE MATA’UTIA RAYMOND SCHUSTER

^[1] Police v Gianno [2015] WSSC 198 (24 December 2015); Stanfield v National Prosecution Office [2016] WSCA 11 (2 September 2016)