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Police v Schmidt [2020] WSSC 31 (26 June 2020)
IN THE SUPREME COURT OF SAMOA
Police v Schmidt & Ors [2020] WSSC 31
Case name: | Police v Schmidt & Ors |
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Citation: | |
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Decision date: | 26 June 2020 |
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Parties: | POLICE (Informant) v LAAULIALEMALIETOA LEUATEA SCHMIDT, male of Alamagoto (First Defendant); APULU LANESELOTA POLU, male of Saleimoa (Second Defendant); MARTIN SCHWALGER, male of Aleisa (Third Defendant); HEATHER TUPEA SCHMIDT, female of Alamagoto (Fourth Defendant); and TU’ITU’I AIOLUPO, female of Palisi (Fifth Defendant) |
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Hearing date(s): | Hearing: 25th – 29th June, 01- 22 July 2019 Submissions: 29 November & 06 December 2019 |
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File number(s): |
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Jurisdiction: | CRIMINAL |
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Place of delivery: | Supreme Court of Samoa, Mulinuu |
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Judge(s): | Justice Nelson |
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On appeal from: |
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Order: | (i) Information S1385/17 of using a forged document against the second defendant – guilty (ii) Information S1579/17 of using a forged document against the first and second defendants – not guilty (iii) Information S1580/17 of forgery against the first second and third defendants – not proven beyond reasonable doubt, not
guilty (iv) Fifty (50) charges in relation to illegal trading between the defendants and customers of LPA – not proven beyond reasonable
doubt, not guilty. (v) Information S1581/17 of theft against the first second and third defendants – not proven beyond reasonable doubt, not guilty. (vi) Forty-eight (48) charges in relation to unauthorised hire of trucks to Vailima Breweries – not proven beyond reasonable
doubt, not guilty. |
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Representation: | M S William, K S Li and Q Sauaga for Prosecution A J F Perkins QC for First Defendant K Raftery QC for Second Defendant L H Schuster for Third, Fourth and Fifth Defendants |
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Catchwords: | international trade – international export – business associates – nonu trade – business partnership –
shareholders – change of directors – forgery – using a forged document – obtaining by deception – causing
loss by deception – theft – theft in a special relationship |
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Words and phrases: | nonu juice business venture – complainant & defendants prominent members of the community – no case to answer submission
made |
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Legislation cited: | |
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Cases cited: | |
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Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
P O L I C E
Prosecution
AND:
LAAULIALEMALIETOA LEUATEA SCHMIDT male of Alamagoto,
First Defendant
AND:
APULU LANESELOTA POLU male of Saleimoa,
Second Defendant
AND:
MARTIN SCHWALGER male of Aleisa.
Third Defendant
AND:
HEATHER TUPEA SCHMIDT female of Alamagoto.
Fourth Defendant
AND:
TU’ITU’I AIOLUPO female of Palisi.
Fifth Defendant
Counsel: M S William, K S Li and Q Sauaga for prosecution
A J F Perkins QC for first defendant
K Raftery QC for second defendant
L H Schuster for third, fourth and fifth defendants
Hearing: 25 – 29 June 2019, 01 – 22 July 2019
Submissions: 29 November & 06 December 2019
Decision: 26 June 2020
DECISION OF NELSON J
At the outset I must thank counsels and the parties for their patience. As everyone will be aware, recent pandemics firstly the measles
and more recently the Covid-19 necessitated the sporadic closure of the courts and its support offices since Christmas which has
adversely impacted on many aspects of our work including the timely issue of decisions. The delay is regretted and the court extends
its apologies to those affected.
Background
- The juice of the morinda citrifolia tree, known in Samoan as ‘nonu juice’, has been a traditional medicine of this country since time immemorial. At the
core of these proceedings is the story of two men who set out to make great wealth by purchasing processing and selling nonu juice
to lucrative markets in the Peoples Republic of China and elsewhere where demand for such products has soared. In a health conscious
disease plagued world perhaps now more than ever. This was however a journey that turned sour quicker than a nonu seed.
- The first defendant (“Laauli”) is a successful politician, businessman and former Speaker of the Samoan Parliament.
The second defendant (“Apulu”) is a business associate, the third defendant (“Martin”) is Laauli’s
cousin, the fourth defendant (“Heather”) is Laauli’s wife and the fifth defendant (“Tuitui”) is Laauli’s
secretary.
- The complainant is Peseta Vaifou Tevaga (“Peseta”) also a successful businessman and Member of Parliament. He has known
the first and fourth defendants for many years and the first defendant described their relationship as close friends (“o se
uo mamae foi ia te a’u”). The complainant only became acquainted with the second and third defendants in the course
of this matter and he does not know the fifth defendant.
The undisputed facts
- In 2009 the first defendants District and Territorial Constituency was identified by a group of entrepreneurs as a prime nonu growing
area of the country. This marked the beginning of the first defendants foray into the nonu trade and in this endeavor, he recruited
the services of the second and third defendants. Partnership arrangements were entered into by the District initially with Reef
Shipping Company Limited and subsequently Pure Pasefika Company Limited (“Pure Pasefika”) and a five hundred (500) acre
nonu farm was established under the auspices of the first defendant. The first defendants home village of Sasina was to be used
to pilot the nonu project. Everyone in the area and beyond was encouraged to grow nonu.
- The first defendant was actively involved in promoting the development of nonu not only within the District but also on a national
level. He perceived it as the agricultural future for his district and the country and clearly wanted to play a significant role
in its establishment and development. All parties no doubt also saw the tantalising financial rewards waiting to be reaped.
- In about July 2011 the first defendant and the complainant, following a Commonwealth Speakers meeting in London, visited the Peoples
Republic of China as part of a trade delegation promoting Samoa and the nonu products of Pure Pasefika. According to the complainant,
they agreed that upon their return they would form a company to export nonu juice to China and other overseas markets.
- In fact nothing further was done until the following year when on 25th October 2012 the parties incorporated Local Partners Limited (“LP Limited”) as a private company under the Companies Act 2001. Their evidence was this was incorporated in order to bid for local construction projects and the 2013 and 2014 Business Licenses
of the company records it was licensed “to carry out the business of architectural and engineering activities and related technical
consultancy”.
- Because they were both Members of Parliament they engaged in the sham so often used by Parliamentarians in this country that the
shareholding of the company was to be held in the names of their nominees: for the complainant, his son Leiataua Danny Schwenke (“Danny”)
as a 50% shareholder and director and for Laauli the third defendant Martin as a director and 50% shareholder. As explained by Danny
in his evidence (page 22 transcript of 01/07/19) the business was effectively his “dads and Laauli’s business”
and he and Martin were merely holders of shares and offices. The “L” stood for Laauli and the “P” for Peseta.
In due course LP Limited lodged unsuccessful bids for a number of local and Government projects but otherwise did not actively trade
or operate.
- The company lawyer and solicitor was Ms Maiava Visekota Peteru (“MVP”) a sole practitioner who was to play a crucial
role in events that were later to unfold. There was no formally appointed company secretary or manager which accounts for the shabby
in some instances non-existent state of its documentation and the lack of compliance by the directors and the company with statutory
obligations. Such as in relation to keeping proper records (e.g. a share register and confirmed minutes of directors meetings) and
following proper procedures for transfers of shares and calling directors and shareholders meetings. Had this been done alot of
the uncertainty surrounding the meetings, resolutions and activities of LP and its successor in title LPA would not have arisen.
The failures of Ms Peteru and the Companies Registry to properly discharge their functions and duties created and later contributed
to a highly unsatisfactory state of affairs.
- For reasons not relevant to the present inquiry, by early 2013 the Sasina nonu project was in difficulty. The first and second defendants
were heavily invested in the project and the first defendants credibility with his Constituency, the public and the Government of
Samoa was on the line. A substantial quantity of nonu had been purchased and processed at great cost and was being stockpiled but
Pure Pasefika was encountering problems securing overseas markets and complying with the import and licensing requirements of countries
such as China. To the extent that Pure Pasefika was forced by a combination of factors including internal shareholder disputes into
receivership.
- The first and second defendants devised a plan to salvage the situation: they would take over the operation by bidding for the assets
of Pure Pasefika using the corporate vehicle LP Limited and they would bring in the complainant for these purposes. According to
the first defendant, initially the second defendant Apulu was not keen on a new partner but he eventually relented.
- A meeting was accordingly held in the first defendants Parliamentary office at Mulinuu on 21 January 2013 attended by the complainant,
Danny Leiataua and the first second and third defendants. It was agreed the name of LP Limited would be changed to Local Partners
and Associates Limited (“LPA”) to accommodate a request by their Chinese distributor and further that the shareholding
would be rearranged to Leiataua Danny Schwenke 35%, the second defendant Apulu 32.5% and the third defendant Martin 32.5%. Also
that Apulu would become an additional director. These changes were recorded in a formal minute of LPA signed by Martin dated 05
February 2013 filed on 06 February 2013 with the Companies Office at the Ministry of Commerce, Industry and Labour (“MCIL”):
see Trial Bundle ‘A’ Tab 16.
- It was also agreed the company would place a bid of SAT$1 million for Pure Pasefika. This however was rejected by the New Zealand
Receivers for Pure Pasefika so at a further meeting (date unknown) a bid of SAT$1.5 million was approved by the directors. This
was accepted and as the parties had no funds, on 04 March 2013 they applied to the Samoa National Provident Fund (“NPF”)
for a SAT$2 million loan to finance the purchase: see Trial Bundle ‘A’ Tab 18. The evidence of the parties was the extra
$0.5 million was required as working capital and to pay off the complainants $102,000 overdraft at National Bank of Samoa in order
to free up the complainants 1 acre Vaitele property for use as further security for the loan. The first, second and third defendants
took the view that their contribution to the security package was their equity and hard work expended in building up the reputation
business and physical assets of Pure Pasefika which the NPF also took as security - this being the 1 acre property at Vaitele and
nonu factory located thereon, the ten or so company trucks and vehicles and the companys nonu stock, fixtures and fittings: refer
Trial Bundle ‘C’ Tab 11 for Inventory as at 02 April 2013.
- The loan application was granted and on 25 March 2013, LPA opened company account number 200688107 (“the LPA account”)
with Westpac Bank (subsequently became Bank South Pacific Samoa Limited) designating the main signatory to be the second defendant
Apulu but cheques to be countersigned by either Danny or the third defendant Martin. The relevant letter of instruction to the Bank
was signed by the three directors Apulu, Danny and Martin: refer Trial Bundle ‘D’ Tab 2.
- Settlement of the purchase was carried out on 05 May 2013 following which surplus loan monies were deposited to the LPA account.
The complainants evidence was all parties duly inspected the factory property noting the presence of all the companys assets in
particular the vehicles and the many stockpiled barrels of nonu juice. At that stage everyone was happy and ready to launch their
new venture. In the words of the first defendant at page 11 of his evidence of 15 July 2019:
- “Sa matou lagona le agaga faagaaeetia tele ua talia le loan. Ma ua iai le faamoemoe o le a matou galulue malosi ma galulue
faatasi mo le faataunuuina o le poloketi ua uma ona design e fai.
- We were very happy and we planned to work hard and work together for the project planned.”
- But the spirit of bonhomie was fleeting and proved only to be the calm before a storm.
The 29 May 2013 meeting: Complainants evidence
- As identified by the parties, this is a pivotal event or non-event depending on whom one believes in this matter. I therefore deal
with it as well as a number of other distinct issues under their own headings.
- According to the complainant not long after taking possession of the factory, things began turning sour when his son Danny reported
to him that Laauli had taken the company vehicles and most if not all the barrels of nonu juice inclusive of the 2 x 20 foot shipping
containers of the company to his ‘Maota o Samoa’ property situated nearby. Further that it was only Apulu and Martin
who were signing company cheques. This aroused his suspicions “that something was going to happen in the company” (“e
iai le masaloga ia te au pe e iai se mea o le a tulai mai i le kamupani”: page 35 of his evidence 25/06/19) and led him to
make enquiries at MCIL about the shareholding of the company. There he discovered that the record showed Martin held 35% of the
shares and Danny and Apulu 32.5% each. Contrary to the agreement with Laauli and the others at their 21 January 2013 Mulinuu meeting.
- In this regard the evidence of MCIL Deputy Registrar of Companies Alataua Tuliaupupu was that sometime in 2013, Apulu came to their
office and complained that the shareholding recorded in their online system was incorrect. It showed Martin holding 35% of the shares
instead of 32.5% and Danny 32.5% instead of 35%. After reviewing the file she accepted these were erroneous and corrected the record
to reflect the Board Resolution of 21 January 2013 as communicated to them on 06 February 2013. She confirmed this in an email dated
27 June 2013 to Apulu referencing their discussion that morning and apologizing for the error: see Exhibit “D-4” for
the defence.
- Deputy Registrar Tuliaupupu also said there was a further error in the online system as to the date of Apulus appointment. It showed
25 October 2012 whereas it should have been as per the documents submitted 06 February 2013. In point of fact it should be 21 January
2013 the date of the Board Resolution.
- The complainant says that as a result of his misgivings, a company meeting was held at the LPA office at Vaitele on 29 May 2013.
He said he asked Danny to call the meeting. Present were him and Danny and the first second and third defendants. The meeting took
about two hours and four matters were discussed. The first two were Dannys resignation as director and his appointment as a replacement.
- On the resignation the complainants evidence was (page 4 transcript of 26/06/19):
- “Pros: And what did Danny say there at the meeting about his resignation?
- Wit: Na talanoa Danny i directors ua le fiafia i mea ua tupu i le kamupani.
- Danny spoke to the directors and he wasn’t happy with how things were correcting in the company.
- Pros: And did his fellow directors say anything when Danny said that he wasn’t happy?
- Wit: Leai, e leai se tala.
- They didn’t say anything.
- Pros: You said Danny said he wanted to resign as a director, did I get that right?
- Wit: O le faamatalaga a Danny ua ou mana’o ou te faamavae ona ua iai mea ua tutupu i le kamupani.
- Danny said he wanted to resign in the company because something was going on in the company.
- Pros: Was Danny’s resignation accepted by the other directors of LPA?
- Wit: O lea lava.
- Yes.”
- Further that the other two directors Apulu and Martin agreed to the complainant replacing Danny as director.
- It was also his evidence confirmed in cross examination to Mr Perkins that the first defendant said nothing about this and raised
no objection to the other issues canvassed at the meeting (pages 27 and 28 transcript of 27/06/19). Even though one would expect
that given the first defendants intimate involvement in this entire matter that he would have something to say about Dannys qualms
and resignation and the appointment of the complainant as a director/shareholder. Especially considering that he Laauli was not
a director or shareholder of record of the company.
- The third issue discussed according to the complainant was the matter of shareholding in the company. He said he proposed the shares
revert to the original position whereby he holds 50% and Martin holds 50% and it would be up to Martin how he divides his shareholding.
To this he says the directors and Laauli agreed. They also agreed to the fourth issue – viz that he would co-sign company
cheques with either Martin or Apulu.
- As evidence of these agreements the complainant pointed to a number of documents attached to Tab 17 Trial Bundle ‘A’
submitted by the prosecution:
- (a) a Notice of change of directors form dated 31 May 2013;
- (b) a Notice of resolution by the LPA Board dated 13/14 June 2013;
- (c) an invoice from the company solicitor MVP dated 25 June 2013 but date stamped 15 September 2015 by the Companies Office (RCIP
Division); and
- (d) a letter from Apulu and Martin to the Manager Westpac Bank dated 26 June 2013.
- As these documents are central to the issue of whether or not there was a 29 May 2013 meeting, it is essential they receive detailed
consideration. Care must be taken in this regard because it is apparent from the evidence that these documents were only lodged with
the Companies Office on or about 15 September 2015 some two years after their purported execution. The evidence of MVP was that
she had a great deal of trouble registering them online with the Companies Office and that it was only when the complainant personally
visited the MCIL Office in 2015 that they were able to be registered: see also her statement to the Police dated 06 November 2015
produced as part of Exhibit “D-8” for the defence. Counsel however was unable to explain why it took two years and three
months for such very basic but essential information to be uploaded onto the companys records. The exchange below with cross examining
counsel is illuminating (transcript 04/07/19 page 15):
- “DC: Now I’m moving to a different issue now and that is the time it took to register with MCIL the resolution of 13th
June 2013. And we know that Peseta attended to this in September 2015 and I understand you accept that?
- Wit: Yes.
- DC: So a period of two years and three months between the resolution and getting these records with MCIL, correct?
- Wit: Yes. That's correct.
- DC: And your evidence is you tried hard to deal with this issue and get the records updated at MCIL correct?
- Wit: That's correct. And I did visit MCIL, spoke with an officer there and asked if they would take it manually, accept the documents
manually but I was directed to still go back and keep trying with the electronic system.
- DC: In fact, did you tell us yesterday that it was three or four times you went to MCIL to try and deal with this issue?
- Wit: Yes.
- DC: I imagine that rather frustrating each time you were doing this?
- Wit: Yes.
- DC: Do you know why Peseta succeeded where you failed three or four times?
- Wit: No, I can’t comment on why he was more effective, maybe because he’s a Parliamentarian but yes he was able to get
there, the officer called me and I thought at that time and after all that we had been through it was appropriate to give the password,
to have it completed.
- DC: Presumably you were successful in accessing MCIL with other clients during this two years and three months
- Wit: I can’t be certain. At that stage I do recall it was still fairly new and this would have been one of the first that
I had used this system for this company in particular. For other companies I don’t think so, I can’t be certain that
I was also handling other companies at that time.
- DC: Any letters of complaints to MCIL given you had to go there three or four times?
- Wit: No I did not do so.”
- Caution is also required because the evidence indicates MVP has misplaced her file on this matter and these documents were registered
at MCIL by the complainant on the eve of his launching civil proceedings against the first defendant wherein he maintains he was
at all material times by consensus a 50% shareholder and a director of LPA. On this the complainants evidence was (transcript 27/06/19
page 38):
- “DC: please take it it’s the 7 October 2015 you filed your statement of claim, is there any coincidence you personally
took up the resolution to the MCIL, is there any coincidence?
- HH: no, “coincidence” it’s a difficult word to translate
- DC: is there any connection of the date of the filing of your statement of claim and the date you go up to MCIL and lodged the resolution
personally?
- Wit: oute manatua le aso lena sa ou alu e resitara le resolution ile MCIL (I recall that is the date I went to register the resolution
at MCIL)
- HH: le fesili a le alii loia pe iai se fesootaiga o le aso lena ma le faiga o lau claim lea ia Oketopa 2015? (The lawyer is asking
whether there is any relationship between that date and the making of your claim in October 2015?)
- Wit: ina ua ou taumafai e faaulu la’u talosaga, ia, masalo o le taimi lena e lei oo mai lava le tamaitai loia e resitara le
resolution, o lea la na mafua ai loa lea ona ou toe oo foi ile MCIL ina ia resitara le resolution, le aso tonu lea na vili atu loa
maua Maiava ma faatonu ai loa e Maiava le tama lea o le MCIL e resitara loa le resolution ona o le resolution lea oute alu atu ma
au o le resolution ua uma na ia tapenaina. (When I tried to file my claim, I think at that time the lawyer had not registered the
resolution, hence why I went to MCIL to register the resolution, and on that very day I called and was able to get hold of Maiava
and she instructed the MCIL officer to register the resolution, because the resolution I had taken with me was the resolution she
had prepared.)”
It appears the company officers themselves kept no copies or a record of these very important company decisions.
- In relation to document (a) prima facie prepared by MVP this purports to record Dannys resignation as a director (which it does)
and the complainants appointment as his replacement (which it does not). It also purports to transfer Dannys shares to the complainant
which it cannot given the provisions of the Model Rules which LPA was supposedly according to the company solicitor MVP governed
by, such as for example rules 9 and 12 which provide:
- “9. Company to keep share register – (1) The company must maintain a share register that records the shares issued by the company and states:
- the names, alphabetically arranged, and the last known address of each person who is, or has within the last 7 years been, a shareholder;
and
- the number of shares of each class held by each shareholder within the last 7 years; and
- the date of any –
- (i) issue of shares to; or
- (ii) repurchase or redemption of shares from; or
- (iii) transfer of shares by or to, -
- (iv) each shareholder within the last 7 years, and in relation to the transfer, the name of the person to or from whom the shares
were transferred.
- (2) No notice of a trust, whether express, implied, or constructive, may be entered on the share register.
- (3) The company may appoint an agent to maintain the share register.”
- “12. Restriction on selling shares – (1) A shareholder is not entitled to sell or otherwise dispose of his or her shares in the company without first offering
to sell them to the other holders of shares of the same class under the procedure set out in clauses 13 to 20, unless all the other
shareholders agree otherwise.
- (2) Any share transfer delivered to the company by a shareholder who has not complied with sub-clause (1) is of no effect, and the transfer must not be entered on the share register (emphasis mine).”
- There is also no evidence the requirements of clause 21 as to ‘Transfer of shares’ were complied with.
- “21. Transfer of shares – (1) If shares are to be transferred, a form of transfer signed by the holder or by his or he agent or attorney must be delivered
to the company.
- (2) The personal representative of a deceased shareholder may transfer a share even though the personal representative is not a
shareholder at the time of transfer.
- (3) Subject to clause 12 and sub-clause (4), the company must immediately on receipt of a properly executed share transfer enter
the name of the transferee in the share register as holder of the shares transferred.
- (4) The directors may resolve to refuse to register a transfer of a share within 30 working days of receipt of the transfer, if
any amount payable to the company by the shareholder is due but unpaid.
- (5) If the directors resolve to refuse to register a transfer for this reason, they must give notice of the refusal to the shareholder
within 5 working days of the date of the resolution.”
- The document itself is witnessed by MVP and dated Friday 31 May 2013 two days after the supposed meeting of Wednesday 29th May. The evidence of the complainant was that he went with Danny to see MVP. He did not explain why if these matters were so critical
he left it until two days later to instruct the company lawyer. The lawyers evidence is slightly different. She said the complainant
attended her office “on his own to instruct and advise about what he was unhappy about and he did mention this meeting on 29th May that he had already made it known that he was taking over from his son”: (transcript 04/07/19 page 3). He said the document
was prepared by the lawyer and executed by them in her presence.
- At that meeting he also advised her of the other matters agreed upon at the 29th of May meeting. She advised him a director was required to attend before her to confirm this and execute the necessary document
which led to him visiting Martin at his home that evening requesting his attendance before the lawyer. To which Martin agreed.
- On the day he was supposed to meet Martin and the lawyer, he visited the lawyers office to find no Martin, only Laauli. He had not
spoken to Laauli since the 29 May meeting. He explained to Laauli in a two-minute meeting that Martin was required in order to confirm
the 29 May matters to which Laauli replied:
- “He said its up to me” (transcript 26/06/19 page 12).
- When Laauli left he instructed MVP to prepare the necessary document. Whereupon he again visited Martin to advise he was to attend
the lawyers office to sign the document. To which Martin again agreed.
- As a result, on 14 June 2013 he attended the lawyers office with Danny and Martin and signed document (b) the Notice to the Registrar
of Companies of a Resolution of the LPA Board prepared on 13 June but executed on 14 June 2013. This Notice refers to a Resolution
at a meeting of the Board on 29 May 2013:
- “1. Accepting the resignation of Danny as a director and appointing Peseta in his place;
- 2. Reallocating the shareholding 50% to Martin and 50% to Peseta (and giving the number of shares as 500,000 each as opposed to
the correct figure of 50,000 each); and
- 3. Noting these changes in the (non-existent) Share Registry of the company.”
The Notice was signed by Martin and the complainant but unlike document (a) was not witnessed by MVP.
- Martin through his counsel has disputed signing the document. MVP however in her evidence was adamant that the parties attended her
office on 14 June 2013 and executed the document in her presence, Martin himself writing in the date “14/06/13” and initialing
the crossed out “13/06” date at her request. No handwriting evidence was called but Martins signature appears the same
as his signature on other uncontested documents produced to the court.
- MVPs testimony concerning the 14 June Resolution was that the complainant came to see her around the end of May 2013 expressing discontent
about shareholding in the company. From transcript 03/07/19 pages 8 & 9:
- “Pros: we’re talking about now is quite important in this trial so take step by step please. So Peseta came to see you,
remember when he was?
- Wit: May of 2013 the end of May
- Pros: what was it that he said to you?
- Wit: he asked if I had been referred any changes to the shareholding, he explained that the company had met and there had been changes
to the shareholding and he was not happy with the changes that had been registered
- Pros: did he bring any other concern, what was that he was not happy about?
- Wit: he was not happy because his understanding was that Apulu, Laauli were to have 50% of the shares and he was too hold 50% of
the shares
- Pros: he asked whether any changes of the shareholding had been referred to you; so prior to Peseta coming to see you in May 2013
had you referred any changes in the shareholding in the company?
- Wit: no I had not been referred any changes to the shareholding to this company
- Pros: the second thing he told us that he said to you was that, the company had met and there were changes to the shareholding, well
before we look into the documents can you recall, first of all, did he give you the dates had the company have met?
- Wit: the date he gave was the 29th of May 2013
- Pros: and what did he tell you had been changed to shareholding?
- Wit: he told me that he had bound that the shares had been divided equally between Danny, Martin and Apulu
- Pros: he also told us he wasn’t happy because Apulu and Laauli were to hold 50% of the shares and he was to hold 50% of the
shares, did you recall saying that?
- Wit: yes
- Pros: and again, did he tell you that in this meeting at the end of May?
- Wit: yes, when he came to see me, that was one of the matters he was unhappy about
- Pros: I just want to explore that a little further please; do you recall why was that he was unhappy?
- Wit: his unhappiness was based on the fact that his understanding was, the 50% shares should have been allocated to Laauli and Apulu
and he was to retain 50% shares, his unhappiness was also based on the fact that he was the only one who had an asset mortgage to
the Samoan National Provident Fund, that asset being an acre of land at Vaitele, he explained that he was not happy with the way
the company was being run and that he felt Danny was being left out and the status with NPF required that well, he was called in
by the NPF because they were considering legal action and he was worried that he would lose his asset
- Pros: well next meeting that you had with Peseta, did anyone come with him or did he come on his own?
- Wit: he was on his own
- Pros: did he ask you to draft the documents at all?
- Wit: yes.”
- It is a bit difficult to follow but it seems counsel is saying the end of May meeting resulted in document (a) of 31 May 2013. Her
evidence continued as to what led to document (b) the Board Resolution of 14 June 2013:
- “Pros: following the signing of that notice, were you asked to draft any other documentation?
- Wit: after this change of directors, I had discussed with Peseta as to the importance of try to resolve the unhappiness that he’d
expressed, and from that discussion I was asked to contact Laauli to meet with Peseta in my office........so I contacted Laauli and
explained that Peseta had come to my office and wished to meet with Laauli; Laauli agreed to meet in my office with Peseta and we
met on the 13th June 2013; so without going on to the details of what was said at this point but after that meeting it was resolved that I would
put into paper and legalized what their agreement was
- Pros: is that what led to this document? (Counsel here referred to document (b) the Board Resolution).
- Wit: yes
- Pros: so the meeting between Peseta and Laauli was that took place in your office on the 13th June?
- Wit: yes
- Pros: was anybody else present or was it just the three of you
- Wit: just the three of us
- Pros: you said that in that meeting resolved with led to this document, what was resolved, please tell us what happened in that meeting
- Wit: it was resolved at the end of that meeting that Laauli agreed that Peseta would hold 50% shares and Laauli would hold 50%
shares and he would discuss with Apulu how they would split that 50%
- Pros: and was it Laauli agreed to this?
- Wit: yes, Laauli agreed to this.”
- This account is markedly different to the evidence of the complainant who while agreeing he met Laauli at the lawyers office on 13
June 2013 (transcript 26/06/19 page 14) said he went to the office expecting to meet with Martin but was surprised to find Laauli:
see paras 33 & 34 supra.
- There is also conflict with the complainants evidence in other areas. For example according to MVP, at the end of May meeting with
the complainant it became clear there were tensions within the company. So she suggested mediation. From the 03/07/19 transcript
page 19:
- “DC: so given your position in relation to LPA you felt it important to try and resolve this?
- Wit: that’s correct and I suggested that an attempt be made to mediate between all of them that is Apulu, Laauli and himself
- DC: it was your suggestion please correct me if I’m wrong, your suggestion a meeting of the two men Peseta and Mr Schmidt
along with you might prove sense of all and beneficial, or was it something that Peseta asked you to do?
- Wit: knowing the previous good relationship between Peseta and Laauli, I adhering and also the involvement of Apulu I had suggested
the mediation of the matter, all of them
- DC: yes but just before that, you either decided yourself or you’re asked to arrange a meeting between you and Peseta and
Mr Schmidt, correct?
- Wit: my recollection is that I first suggested be a mediation between the three of them but Peseta did not agree to that and preferred
instead that I make contact with Laauli and that we need
- DC: alright so, correct me if I’m wrong, the idea of that meeting came from Peseta?
- Wit: that’s my recollection, yes
- DC: and you then arranged the meeting?
- Wit: yes I contacted Laauli
- DC: thank you; and a meeting then took place between you, Peseta and Mr. Schmidt?
- Wit: that’s correct
- DC: and how long after that initial meeting between you and Peseta when he told you about his unhappiness, did this three-way meeting
occur?
- Wit: about two weeks 14 days or so
- DC: did you consider recommending to Peseta when he proposed this meeting to include Polu given that he’s the third shareholder
in this?
- Wit: yes and that’s why I suggested mediation between all of them the three of them
- DC: but Peseta did not want Polu at this particular meeting he just wanted the three of you?
- Wit: that’s correct.”
- As to the meeting itself which she said took not two minutes but an hour, her further evidence was:
- “DC: thank you. I will take you please in that meeting this is the one that you effectively organized; and it’s you,
Peseta and Mr Schmidt who all meet at your office?
- Wit: yes
- DC: and do you recollect approximately how long this meeting was?
- Wit: it was about an hour
- DC: thank you
- Wit: it was at the end of the day that’s what I recall when Laauli arrived, my secretary was still there when he left, my
secretary had already left the office which is 4:30pm when she finishes work so when Mr Schmidt or Laauli left the office she was
not there
- DC: thank you; now, at the meeting, did Peseta give various reasons as to why he was unhappy with the way the company was running?
- Wit: that’s correct
- DC: and do you recollect him referring to the involvement of Mr Polu as one of the reasons for his unhappiness?
- Wit: yes that was one of the reasons
- DC: during the course of this meeting would I be right in suggesting that Peseta was trying to persuade Mr Schmidt to return to
the 50 50 arrangement that that had with LP?
- Wit: yes
- DC: and he was setting out his reasons with this, Peseta
- Wit: yes, the main reason that he gave is that he was the only one with an asset that was now jeopardized a valuable asset
- DC: given that Peseta was trying to persuade Mr Schmidt to this position 50 50, may we take it that they’re clearly no prior
agreement to this?
- Wit: my recollection is that Peseta felt that there should be return to the original, yes, he believed that the current situation
not acceptable given that he had an asset in the company and therefore he felt justified
- DC: so he was trying to persuade Mr Schmidt to this point of view?
- Wit: yes that’s what he put to Mr Schmidt, Laauli
- DC: thank you Sir; Ms Peteru just confirm for us clearly there hadn’t been a prior agreement to this 50 50 division and Peseta
was trying to persuade Mr Schmidt to adopt that position, can I refer you please to Vol (A) Tab 17; and in fact your statement which
is the first document under that Tab 17 and you may take a moment to find.
- Wit: I have it
- DC: thank you; just look at the first page of your statement just half way down, there’s a paragraph beginning ‘contact’
you got that paragraph?
- Wit: yes
- DC: if you just agree that to yourself those lines?
- Wit: yes.
- DC: and you see you’ve used the word ‘requested’ there, Peseta requested the company shares be returned I take
it consistent of what you’ve been telling, asking and trying to persuade Mr Schmidt at this point of view?
- Wit: yes
- DC: yes, thank you; now, Mr Schmidt does not dispute in any way there was this meeting that Ms Peteru the three way meeting I’m
talking about with Peseta and Mr Schmidt and nor does he dispute in any way that Peseta ran through his concerns, and was asking
Mr Schmidt to go back to the 50 50 arrangement, alright, but I need to tell you that was it strongly disputed by Mr Schmidt, is that
he agreed to such arrangement that is the 50 50 split, you understand that is the position of Mr Schmidt?
- Wit: yes.”
The complainants evidence did not address any of these matters.
- From her answers in cross examination, clearly it did not seem to concern MVP that what was under discussion by Laauli and Peseta
involved the loss of the shareholding of a third party not present viz the second defendant Apulu who by her own evidence worked
“two doors away” from her office. Or incredibly that this was not reflected in any way in document (b) or anywhere else.
Or even verified by a simple phone call to Apulu. It comes as no surprise she was unable to register these changes online with the
Companies Office.
- The end result of all this according to MVP was document (b) the Notice to the Registrar of Companies dated 14 June 2013 signed by
both Martin and the complainant in her presence.
- The complainant says document (c) the fee invoice dated 25 June 2013 prepared by MVP for her services is further evidence of a 29
May meeting (indirectly because it does not refer to such a meeting) and establishes the veracity of documents (a), (b) and (d) because
it invoices and refers to the services rendered for those matters.
- The Fee Note has a number of significant features: firstly while the complainant tried to portray it as a company document (“the
bill was given to me and its under the company”: transcript 26/06/19 page 17) it clearly is not. It is addressed to the complainant
personally and refers to instructions given by the complainant. MVP herself acknowledged (transcript 04/07/19 page 28) that she regarded
the complainant as the client. It was also the complainant who settled the invoice and there is no evidence he sought reimbursement
from the company despite being the main bank account signatory as from 26th June 2013.
- Secondly while MVP’s evidence was that the second to last line of the first paragraph of the Invoice (“meeting with your
partner”) referred to the 13 June meeting with Laauli, it is also possible since no names are mentioned that this in fact referred
to meeting with Pesetas co-shareholder Martin on 14 June to rearrange the company shareholding.
- The final document relied on by the complainant as evidence of a 29 May company meeting is document (d) the 26 June 2013 letter to
the Westpac Bank appointing him the main signatory for the LPA account. The complainants evidence was MVP prepared this and it was
signed by everyone on 26 June 2013 at the LPA office. This was not part of the 14 June document as per the complainants instructions
(paragraph 34 supra) and why it took almost one-month post - 29 May for this to be effected was not explained. It would seem however
to be also consistent with the fact that the evidence showed (see Bank statement of the LPA account forming part of Trial Bundle
‘B’ Tab 3) that by this time, monies were beginning to flow into the company account from sales under the previously
undisclosed according to the complainant, trading name Samoa Nonu Delights and that the complainant had become anxious to protect
his investment.
The 29 May meeting: Danny’s evidence
- Danny’s evidence unsurprisingly is along the same lines as his father. He confirmed establishment of LP Limited later LPA
and said (transcript 01/07/19 page 8):
- “Pros: What was the purpose of establishing that company?
- Wit: Selling the nonus.
- Pros: Sell nonu juice?
- Wit: Yes.
- Pros: And when it was registered in 2012 who were the directors?
- Wit: It was me and Martin.
- Pros: And the shareholders of the company?
- Wit: Me and Martin.
- Pros: And was that equal 50/50?
- Wit: Yes.
- Pros: What was your father’s role, if any, at the time?
- Wit: It was him that owns the business but we were just running it for him.
- Pros: What about Mr. Schmidt, Laauli Schmidt did he have a role at the time?
- Wit: Yes.
- Pros: What was his role?
- Wit: He was the same as my father’s.”
- Further that following drawdown of the NPF loan in April 2013 he noticed the “barrels trucks and containers” had been
moved to the first defendants Maota-o-Samoa property. In addition apart from signing “four or five cheques” initially
he was no longer being asked to co-sign company cheques. He raised these issues with his father who called the 29th May meeting. At some stage, he also found out from his father his shareholding according to MCIL records was 32.5% not 35% as originally
agreed.
- As to the calling of the meeting, initially in examination in chief he said “I think it was my dad” who called the meeting.
However in clarification to the court his answer changed to the following (transcript 01/07/19 page 29):
- “HH: I wanted to ask him about the 29th May meeting Danny, just in case I misunderstood your evidence who called the meeting?
- Wit: It was – I don't remember. I think it was me, it was me.
- HH: You don’t remember or it was you?
- Wit: I think it was me.
- HH: And how did you call it?
- Wit: My dad told me to give them a call at the office.
- HH: Give who a call?
- Wit: All the shareholders and board members.
- HH: So who did you call?
- Wit: I think it was Martin.
- HH: And what did you say to Martin?
- Wit: We should meet at the factory there’s some stuff I want to discuss.
- HH: And did you tell him what the matters were?
- Wit: No.
- HH: Did he ask?
- Wit: No.
- HH: Did you call anyone else other than Martin?
- Wit: I don't remember.
- HH: What about the other shareholders? The other directors?
- Wit: I don't remember.”
- At the meeting he advised the others about why he was resigning as a director which they accepted without comment or response plus
they agreed to all the other changes proposed. Concerning the directorship and the shareholding as well as the complainant becoming
the principal signatory for company cheques. He reiterated several times that the meeting was a short one and at the end of his evidence
described the circumstances of the meeting as thus:
- “HH: Counsel have asked you some questions about the 29th of May meeting as I understand your evidence you can’t recall
what day of the week it was can you?
- Wit: Yes, well it’s been a while I can’t really remember.
- HH: Was it at the daytime or was it night?
- Wit: I can’t really remember.
- HH: So you don’t recall whether it was the morning, lunchtime, the afternoon, the evening, the night time, is that your evidence?
- Wit: I don't remember.
- HH: Where in the factory was the meeting?
- Wit: There’s an office inside the factory, one office that’s where we had our meeting.
- HH: Does the office have a desk?
- Wit: Yes.
- HH: Was the meeting at a desk?
- Wit: I don't remember. I just went and said my goodbyes and they were all just sitting there.
- HH: Sorry can you say that again I didn’t quite catch you.
- Wit: I was standing and just said my farewells and the reasons why I was leaving the company.
- HH: Were you standing the whole time you were speaking?
- Wit: Yes.
- HH: And so was your father would that be right?
- Wit: My father was there but I don’t remember whether he was standing or sitting.
- HH: So it was possible he was standing too because you don’t remember.
- Wit: Might be, yeah.
- HH: What about the other people at the meeting were they standing too?
- Wit: They were all just sitting there.
- HH: Sitting where?
- Wit: Around the desk.
- HH: And your evidence is they said nothing?
- Wit: Yes.
- HH: Was your father angry?
- Wit: Not really, I can’t remember.
- HH: Well he would have cause to be angry based on what you told him wouldn’t he?
- Wit: I don’t know.
- HH: Is it possible that what he was doing was telling these people off?
- Wit: No.
- HH: Why do you say that?
- Wit: Because I talked to them and I told them why I’m leaving.
- HH: And then your father said this is what’s going to happen bang, bang, bang, bang, bang.
- Wit: Yes. But he wasn’t angry he just said what he needed to say.
- HH: And then after he said that you both left is that right? Is that what happened?
- Wit: Yes.
- HH: So all this didn’t take very long did it?
- Wit: Not that I remember.
- HH: Well you did say when you were initially asked that it was a short meeting.
- Wit: Yes, I could say that.
- HH: So it was a short meeting.
- Wit: Yes.”
The 29 May meeting: The other documents
- There were a number of other documents produced in the course of the case which have a bearing on whether there was a 29th May company meeting as claimed by the complainant and his son. These require to be also considered.
- The first is a letter dated 31 March 2014 from the complainants then solicitor Te’o Richard Faaiuaso (“RTF”) produced
as Exhibit “D-2” for the defence. The complainant said he consulted RTF in March 2014 about problems he was having with
LPA, in particular the hire of six company trucks by Vailima Breweries Limited (“Vailima”). He was concerned that hire
proceeds were being paid to the first defendant and his Maota Samoa bank account rather than to the company and further that two
of the trucks were being offered for sale from the Maota Samoa yard at Vaitele.
- As a result RTF wrote to the mortgagee NPF alerting them to the situation and requesting inter alia replacement security from the
other “shareholders” and discharge of the mortgage over the complainants one-acre property. The letter contained the
following passages:
- “As stated in earlier correspondence our client is gravely concerned because whilst Messrs. Polu and Schwalger hold 65% of
the shares they do not have a single asset at risk during the foreclosure by the Fund.
- Our Client has a substantial asset at risk – prime land at Vaitele. Given that it appears the company is going downhill because
of the conduct of those shareholders, we respectfully demand that the mortgage over our clients land at Vaitele be discharged and
those shareholders come up with real substitute security.”
- A further letter dated 13 May 2014 (Exhibit “D-3” for the defence) was penned again on the complainants instructions
by RTF to the Prime Minister as Minister for NPF and begins with the following statement:
- “With respect, we advise that we act for Aldan Co Ltd (“Aldan”) and Peseta Vaifou Tevaga (“Peseta”)
whose Son, Leiataua Danny Schwenke holds 35% shares in Local Partners and Associates Ltd (LPA) the nonu export company. Peseta is
a co-signatory on LPA cheque book.”
- The complainants answer to both these letters (transcript 27/06/19 pages 33-39) is they were written by the lawyer not him and they
were written at a time before MCIL registered the changes in shareholding. This was only done over one year later in October 2015
when he personally attended to it.
- A further relevant document is the Minutes of a meeting at the NPF on 03 April 2014 (Trial Bundle ‘A’ Tab 20) involving
all parties. The Minutes were taken by NPF solicitor Tanya Toailoa and its accuracy was not disputed. On page 2 is recorded the
following statement from the complainant “changed shares from Danny to Peseta” and on page 3:
- “I no longer want to be part of company.
- I want to withdraw.
- As I’m minority against Martin and Apulu.”
Suggesting that the complainant was still a minority shareholder in the company. It was also put to the complainant to explain Dannys
presence at the meeting if in fact he was no longer a director/shareholder.
- The complainants answer was Danny attended the meeting at the invitation of the NPF and that the NPF had been advised previously
by letter of the 29th May resolution. However, no such letter or any evidence that the NPF was aware of such resolutions was produced.
- The final document to be considered is another letter dated 16 September 2015 from the complainants then lawyer Olinda Woodroffe
to LPA customer Mr Garry Vui of Nonu Samoa Enterprises advising in the opening paragraph:
- “We act for Peseta Vaifou Tevaga’ena (‘Peseta’), a shareholder of Local Partners & Associates Limited.
We also act for Leiataua Danny Schwenke (‘Leiataua’), a Director of Local Partners & Associates Limited.
- The above named Shareholder and Director of Local Partners & Associates Ltd, hereby direct that all payments for the Nonu Juice
Order being supplied by Local Partners & Associates Ltd be made to the official Bank Account of the Company.”
- The prosecution submit this is further evidence of a shareholding change as per the 29th May meeting. The obvious difficulty with that is the letter also refers to Danny as a director when according to the 29 May “resolutions”
he resigned and was replaced by his father. Furthermore there is no reference in the correspondence to Peseta being a director of
the company. The reference in the second paragraph to “the abovenamed shareholder and director of LPA” is clearly a
reference to Peseta the shareholder and Danny the director from whom they received their instructions.
- The prosecution also seek to rely on a number of other documents: in their Closing Submissions at paragraph 6.22 they refer to a
letter dated 14 October 2014 also from Olinda Woodroffe to MCIL attaching the 14 June 2013 Resolution and purportedly referring to
Pesetas 50% shareholding and the 50% shareholding of Apulu and Martin. The Submission refers to this being introduced into evidence
by Deputy Registrar of Companies Alataua Tuliaupupu (transcript 02/07/19 pages 13-14). A perusal of the transcript however shows
the date of the letter was 14 October 2015 not 14 October 2014. I have also been unable to find anywhere in the documents produced
in this trial a copy of such correspondence. It is not in the final bundles submitted by the prosecution. In any event it does
not assist the prosecution because by 14 October 2015, the supposed change in shareholding had been registered with MCIL by the complainant
personally.
- The second document relied on by the prosecution is the handwritten notes of a meeting between the NPF solicitors and the complainant
on 17 January 2014 (Trial Bundle ‘A’ Tab 19) where the complainant was referred to by NPF solicitor Leslie Petaia as
“the major shareholder” of LPA. This of course is correct. The complainant through Danny owned 35% of the company making
him the major shareholder. This cannot be a reference to a 50% shareholding for that would not make him a majority shareholder,
only a co-owner. The document does not in my view assist the prosecution.
- A further document relied on by the prosecution is an undated letter from Apulu to Mr Petaia of the NPF received by them on 19 May
2014 (added at trial to Trial Bundle ‘A’ Tab 50). The letter is copied to both the complainant and Laauli as “directors”
of LPA.
- The difficulty with this evidence is that one of the few things that emerges clearly from this time period is the fact that the first
defendant was never a director of the company. The author himself mis-styles himself as “Managing Director” there being
no evidence he was ever formally appointed to such a position. Significantly, Martin who was then still a “director”
was not copied.
- The prosecution also make reference to another document from the NPF files, viz a copy of the 26 June 2013 letter to Westpac confirming
the complainant as the main signatory of the company bank account. The letter is date stamped as received by the NPF on 15 July
2013 and stapled to the letter is a copy of the 31 May 2013 Notice of change of directors/shareholding. The prosecution submit this
is evidence that on 29th May the company resolved to approve all of these changes. Conspicuous by its absence in the NPF files is a copy of the 14 June Board
Resolution.
- I have made reference previously (paragraph 29 pp) to the problems in relation to the Notice including its failure to appoint the
complainant as a director. As noted by Mr Perkins “the document that would logically refer to his appointment doesn’t
and the document that does refer to it isn’t part of the document received by NPF.”
The 29 May meeting: Analysis
- The core evidence of this meeting is that of the complainant and his son Danny. Yet there are many inconsistencies between their
accounts. Beginning with the calling of the meeting (complainants evidence transcript 26/06/19 page 4):
- “Pros: And who called the meeting?
- Wit: O a’u sa ou logoina Danny e logo ia directors’ e fia feiloai.
- I asked Danny to inform the directors about the meeting.”
Compare Dannys evidence paragraph 50 above that he called the meeting because “there’s some stuff I want to discuss”;
to the duration of the meeting - complainant testified repeatedly it took two hours whereas Dannys evidence was it was a “short
meeting” - paragraph 51 supra; to the pattern of the discussion at the meeting - the complainants evidence in chief and cross
examination suggests Danny did most of the talking whereas Dannys evidence (transcript 01/07/19 pages 16 and 17) was “me and
my dad walked in and we told (them) that I will be resigning from the company and I gave the reasons why I was leaving”; and
further that the complainant played a significant role in what was said at the meeting.
- I also do not accept given the entirety of the circumstances of this matter that the first second and third defendants would without
comment or opposition unquestionably accept such drastic restructuring of the directorship and shareholding in the company. Having
seen and heard the players in this drama I do not find it credible that the main protagonist Laauli would be meekly submissive to
the proposals put forward by the complainant and Danny. Especially since this would amount to relinquishing control over his dream
project. Having seen the first defendant perform under examination and cross examination he does not for one minute strike me as
the silent or compliant type.
- The supposed duration of the “meeting” also impinges on its credibility. If the complainant and his son are to be believed
on the content of the “meeting” it would have taken no more than ten or fifteen minutes, not two hours as insisted upon
by the complainant.
- There are other compelling reasons for doubting the veracity of the complainants testimony. The first relates to the documentary
evidence discussed above in paragraphs 53-60. Specifically the two possibly three letters written by the complainants then solicitor
RTF almost one year after the alleged meeting wherein the complainant is referred to as a 35% shareholder. The complainant himself
admitted these letters were written on his instructions and I am not persuaded sufficient grounds have been made out for ignoring
the matters stated therein.
- In addition there are the uncontested Minutes of the meeting with the NPF on 03 April 2014 wherein the complainant holds himself
out to be a minority shareholder as against the second and third defendants, a representation made to the companys mortgagee the
NPF. Other documentary evidence to the contrary was also submitted by the prosecution but I have dealt with these in paragraphs
60-66 above.
- There are other unsatisfactory areas of the complainants testimony. For example in relation to certain company cheques issued by
LPA the first being cheque number 0001 dated 19 April 2013 for $10,000 (see Exhibit “D-1” for the defence) drawn on the
newly established LPA account with Westpac Bank. The complainant accepted this was cashed by him as verified by his signature on
“D-1” but said it was to fund purchase of kava intended for Apulu to sell on a pending trip to China. He was adamant
this was the only company cheque he ever received. He denied it was issued as a result of his request for funds or that he requested
and received a further LPA cheque for $3,000 in June 2013 also drawn on the LPA account. He also denied there were other LPA cheques
issued for kava purchases.
- In a green Accounting Book produced by the defendants as part of their documents and purporting to be a monthly cashbook record of
incomings and outgoings submitted to the company accountant Pala Lima (“PL”) of the Pala Lima Accounting Firm for compilation
of the company accounts, there however appears inter alia for the months of April, May and June 2013 the following entries:
APRIL 2013 – LOCAL PARTNERS & ASSOCIATES |
Date | Particulars | Chq # | WSPAC Bank | SCB Bank | VAGST | Goods Purchases | Bank Fees | Directors Fees |
Apr 19 | P.T | 000001 | 10,000 |
|
|
|
| 10,000 |
| T.M (LP) | -0002 | 10,000 |
|
|
|
| 10,000 |
| Laauli | -0003 | 10,000 |
|
|
|
| 10,000 |
20 | Kava & exps | -0004 | 7,000 |
|
| 7,000 |
|
|
MAY 2013 C/PMTS |
Date | Particulars | Chq #s | WSPAC | Goods Purchase | NPF Loan RPmt | Accounting Fee | O/Seas Trvlng Exps |
May 02 | Kava Purchases | 000005 | 4,000 | 4,000 |
|
|
|
07 | Global Travel (tckt LP to HK) | -0006 | 5,047 |
|
|
| 5,047 |
08 | Cash – trip exps | -0007 | 1,500 |
|
|
| 1,500 |
30 | SNPF L/Rpmt | -0012 | 24,541 |
| 24,541 |
|
|
31 | Pala Lima | -0014 | 12,000 |
|
| 12,000 |
|
JUNE 2013 C/PMTS |
Date | Particulars | Chq #s | WSPAC Bank | NPF R/Pmt | Directors Fees |
June 28 | SNPF Loan Rpmt | -0023 | 24,541 | 24,541 |
|
| PV (crossed out) Directors fees | -0024 | 3,000 |
| 3,000 |
| LLS | -0025 | 3,000 |
| 3,000 |
| ALP | -0028 | 3,000 |
| 3,000 |
- The ordinary and natural interpretation of these entries is they show cash payments to the three main players in the venture of $10,000
each on 19 April 2013 and $3,000 each on 28 June 2013 recorded by the accountant for audit purposes as “directors fees”.
The Book shows separately the kava purchases of $7,000 on 20 April 2013 and again $4,000 on 02 May 2013. Coinciding with a travel
ticket on 07 May 2013 marked “tckt LP to Hong Kong” representing Apulu Lance Polus China trip and on 08 May 2013 his
“trip expenses”.
- This documentary record accords with the evidence of the first defendant on these matters. On this issue his evidence as supported
by the documentation was clearly the more cogent and reliable. I also do not accept that the complainant, who impressed me as being
a competent competitive businessman and one very careful with his financial dealings, would not recall the purpose of such a substantial
first cheque from his new business venture. For reasons best known to him he was less than candid with the court.
- The evidence of his son Danny does not save him. Dannys evidence itself suffers from numerous shortcomings. First and foremost is
that the complainant is his father and he was an intricate part of his fathers entanglement with the defendants; a father he described
as his “mentor and guide” and on whose behalf he held the LPA directorship and shares. His was the original “unhappiness”
that led to whatever transpired at the LPA offices on 29th May 2013 but as explained in his evidence, he did not raise the reasons for such “unhappiness” with his fellow directors/shareholders,
only his dad. These matters were put to him in cross examination by Mr Rafferty (transcript 01/07/19 page 24 pp) and his responses
were far from convincing. He remembers well the events of the 29th of May and the subsequent critical days of 31st May and 14th June but not much else. His evidence was peppered with the phrase “I don’t remember” especially in cross examination.
He too is asking the court to accept as credible the fact that at the 29th May meeting the first second and third defendants accepted without question the wholesale changes proposed by him and his father.
- There is only one area where his evidence rang true and that is at the very end where he narrates a believable account of the 29th May “meeting” - refer paragraph 51 above. Therein I believe lie the seeds of what truly occurred on the 29th of May when he said that when he was speaking to the others he was “standing the whole time” and possibly so was his
father. While the first second and third defendants were seated at a desk offering no comment or response. His further evidence
was:
- “Wit: I talked to them and I told them why I’m leaving.
- HH: And then your father said this is what’s going to happen bang, bang, bang, bang, bang.
- Wit: Yes. But he wasn’t angry he just said what he needed to say.
- HH: And then after he said that you both left is that right? Is that what happened?
- Wit: Yes.........
- HH: So it was a short meeting?
- Wit: Yes.”
- In our custom and tradition irrespective of the occasion it is the height of rudeness at any meeting to speak to a seated matai or
individual whilst one is standing unless one is delivering an oratorial address or a formal “lauga” (speech). I believe
that what probably happened on this day is the complainant and his son were agitated and dissatisfied with what they perceived to
be occurring and called a meeting of sorts. That in this state they visited the LPA factory and vented their frustrations in complete
disregard of meeting procedures and customary protocol. And more probably than not, afterwards promptly left.
- It is also quite possible the first defendant is correct that no formal meeting as such was called or convened and that these issues
were dealt with via ad hoc conversations between the complainant and the first defendant: refer paragraph 80 below. This is to some
extent supported by the complainants own evidence that there were many meetings called to address his various concerns: transcript
27/06/19 page 17 in cross examination.
- In the final analysis I am left in reasonable doubt as to what actually occurred on 29th May but I am left in no doubt about the fact that there was no agreement by the first second and third defendants to the proposals
made. Perhaps the defendants thought these matters would blow over as with many of the complainants complaints. The first defendants
more credible version of events recites the nature of the relationship with the complainant and the dissatisfaction voiced by him
relating to various issues and how things began to deteriorate to the extent that the complainant was personally visiting and making
enquiries of their first and only customer at the time Wilex Samoa Co. Ltd. Some excerpts from the first defendants evidence transcript
15/07/19 pages 20, 21, 24 and 25 illustrate the situation:
- “DC: Thank you your honour, Mr. Schmidt we’ve just been talking about emptying of the containers up at Maota and then
the containers being taken away. At that stage how was everybody getting on?
- Def: O le taimi lea o lea matou te maopopo lelei, e leai lava se mea e tasi o faaletonu. Ae sa faasolo pe galuega e tatau ona faatino
I le taimi lea faatoa matou tauavea le kamupani.
- At that stage we were all getting along very well as we were preparing to take over the company.
- DC: Did things however start to change in the relationship?
- Def: Ia na amata mai le taimi lea ina ua faasolosolo na alia’e mai loa nisi uiga sa amata ai loa ona matou le fetalitonua’i.
- Yes, as we go along we started not to trust each other.
- DC: Was it just one thing that happened or more than one thing that happened?
- Def: Ia sa iai atugaluga sa faaleo e Peseta I taimi uma matou te talatalanoa ai.
- There were concerns raised by Peseta whenever we talked.
- DC: what I would like you to do is just to run through all the things that you consider change the relationship and if possible the
order in which they happened, do you follow me? Just carefully each thing that believe caused the change in your relationship.
- Def: Na amata ona vili mai Peseta ma fesili mai ia te au e uiga i paelo ma mea uma ia ua ave i luga i le Maota. Na ou fai lea iai
o le mafuaaga ona o containers uma ia nai fafo e le’o ni containers a le LPA. O containers e tatau ona empty meatotino lea
e iai totonu ae faafoi containers a le Reef. Ia ma ou faamalamalama iai, sa fai mai sa tatau pea ona tuu mea i le fanua. Sa ou faamaninoa
iai e le mafai ona tatou tuua mea I fafo. E tatau ona ave juice ile mea paolo ina ia sefe ma lelei mo le faasologa o le tatauina
o le sua o le nonu mo le kamupani. E va lava ma vili mai e complain. Ma ou taumafai pea e faamalamalama ma faapulapula iai mea i
lea taimi. Ma sa matou talanoa foi ma faamanatu iai o le mea lea sa tatou talanoa ma faia ina ia lelei ma sologa lelei le aluga o
le kamupani ma le juice ia sefe.
- Started off by Peseta contacting me and asking me about the barrels that were taken up to Maota. I told him because all the containers
are not own by LPA, we have to empty all those containers and return them to Reef. He told me these barrels should be left on the
land. I told him we cannot leave these barrels as we need the juice to be good especially with fermentation process for marketing.
Now and again Peseta called up and complain. So he called up and complain and I give him a reminder that the reason why we’re
doing this is that because we’re trying to save the juice so that its good for processing.
- DC: Just pause there please, did he seem to accept your explanation or not?
- Def: E tele lava ina manao lava e fai le mea lea e manao ai. Ao lea lava oute taumafai atu e faamalamalama le mafuaaga na alai ona
matou manatu o le mea lea e sili ona lelei mo le kamupani.
- He always wants to do what he wanted. Even though I tried to make him understand this will be good for the company.
- DC: alright so – sorry
- Def: O leisi mea na toe vili mai loa i leisi aso ma fai mai e na te le faatuatuaina Lance. Ia na lagona a le fiafia foi ona o le
mafuaaga ua tulai mai ua vave tele ona aumai lea mataupu i luga ao lea sa matou malilie uma mai le amataga o latou uma nei o le a
aafia i le taumafaiga o le kamupani. Na ou fesili lea iai pe aisea. Ae faaali mai leisi mataupu lea faapea e le o saini lona atalii
i le tusi siaki. Na ou fesootai ia Apulu ae faaali mai e Apulu o la lava e saini Danny ma Martin ma ia i siaki. Ia na gata ai foi
lea i lena taimi ao faagasolo pea le tauavega o le galuega ia Me 2013.
- He called up the other day and said he does not trust Lance. I was unhappy when this was brought to light as we agreed before that
we will all be working together for the good of the company. I asked him why, and he explained that his son does not sign on any
of the cheques or the cheque book. I contacted Apulu and Apulu said that Danny, Martin and Apulu are still signing the cheques. So
it ended there around May 2013.
- DC: Which came first, the complaint about moving the barrels and the containers to Maota or the complaint about trusting Polu?
- Def: Na amata le kamupani o fai mai lana upu lea ia te au e le manao e iai Polu i totonu o le Nonu. Ae ou fai atu iai “uso,
o le kamupani lea o le Nonu ei le va o a’u ma Apulu ao oe lea e tau aumai oe i totonu, e le mafai la ona faatulai se tulaga
faapena e uiga I le mataupu lea e te manao ai e te le faatuatuaina Polu. Ae ua alu ai alu ai ua faatupulaia mea ia aua o le taimi
lena na matou filifilia o Apulu e tauavea le kamupani. Ae ua alu ai mea ia o le avega o paelo i luga, avatu ma le saini ia ma faatupulaia
ai lava le fai mai pea I lona le talitonuina o Lance.
- When the company started he said he does not want Polu involved with the Nonu. I told him ‘brother this company was started
between me and Apulu and we were bringing you in the company, we were already in the company but we try to bring you in the company.
Peseta kept saying that he does not trust Lance when we started taking up the barrels and the containers and all the other stuff.
- DC: Did he explain why he didn’t trust Lance?
- Def: Na amata mai a I le amataga ona faasolosolo mai lea i faaiuga lea oute taumafai e faamalamalama iai ma oo lava I le saini seia
oo ai lava ina tupu le mataupu lea o le alu fesiligia matou oka muamua ia Eddie. Ua agai Peseta e suesue ia oka o loo maua mai e
le kamupani I le Wilex. O le matou oka muamua lena faatoa amata ai ona tau faagaioi le kamupani.
- Started in the beginning with signing of the cheques and also questioning the orders to Eddie. Peseta started his investigations
on the company as well as Wilex as we received the first order from Wilex....
- DC: what were you thinking at this stage Mr Schmidt with all these things involving Peseta what were you thinking?
- Def: O le mea muamua na ou concern tele ona o le polokeki ina nei toe fail. O lea faatoa maotu faataua le Pure Pasefika na fail foi
o le mea lea o le finau o shareholders ma directors. O lea matou te talitonu. O lea matou te talitonu aemaise ia maua ma Apulu o
le poloketi o le poloketi lelei mo le atunuu. Ae ua tutupu mea na tutupu muamua I le Pure Pasefika ona o le fetauaiga o shareholders
ma directors a le Pure Pasefika ma latou paaga na mafua ai ona latou le kilivaina le polokeki I le mea sa tatau ona iai. O lea la
ua oo mai ia matou, o le concern sili lena lau afioga ia te a’u, ona o lea ua atagia mai o lea foi o lea matou toe oo I le
mea na tupu muamua o le feaina’i o shareholders ma directors ae faaletonu ai le poloketi ua uma ona fai upu ma tautinoga ma
polomisi I le atunuu, aemaise lo’u itumalo. O le mea lena sa popole tele iai lau afioga, e le gata o lea ua iloa e Samoa atoa,
tagata uma mai faatumutumuga e tau I le fanau. Ua uma na fai upu I lo’u itumalo, uma na fai tala I le Malo.
- At first I was very concern about the project I do not want it to be failed. We just bought Pure Pasefika and it’s the same
reason why Pure Pasefika failed is because of the dispute between the directors of the company. I believe with Apulu that this project
is a very good project for the country. And because of the dispute within Pure Pasefika that’s the reason why they did not
deliver the project to where its supposed to be. And I’m very concern because we’re going back to what happened before
within the Pure Pasefika, the disputes within the directors and all that. My concern was that everyone knew about the project, I
even told the Parliament, the Cabinet my village and everyone.
- DC: So what did you do or tried to do in the face of this problem?
- Def: Sa ou taumafai pea lau afioga e soalaupule ma fai le se auala e faafilemu ai le mea lea ia aua nei sosolo le mea lea I totonu
o le kamupani. Na tonu ai I lo’u mafaufau i le isi aso e faapea, afai o tupe lea e concern tele iai le uso, e sili ona aumai
ia e involve i tupe. Na alai ona mafua le mea lea e aumai e saini I totonu o le tusitupe. O lana saini lea e le faapea o se saini
na add on, na matou ioe uma e fai ia ma main signature of the cheque book.
- I tried to sort out the problem within the company and also not to expand any other problems within the company. I thought to myself
if its money that Peseta is concerned about then its best to bring him in to sign the bank account. So we all agreed to make Peseta
the main signature of the cheque book.
- DC: Just pause there please we’ll come to that. We heard evidence from Peseta that he went to MCIL to check on the shares and
found there had been an error in the recording of the shares, do you remember hearing that evidence from him?
- Def: E sa’o
- Yes
- DC: Did he raise that with you?
- Def: E sa’o lau afioga na valaau mai foi I leisi aso ma faailoa mai le mataupu lena. Na ou faaali lea iai e taatia sei fesili
ia Apulu o ia na alu lesitala le uluai suiga o share lea na ave sa’o i le MCIL. Ae sei siaki poo le a le mafuaaga poo ai na
mafua ai le feseta’i fuaninumera o share.
- Yes, Your Honour he contacted me and informed me about it. So I told him leave it be we’ll leave it up to Apulu as he was
the one who did the first registration of the shares at MCIL.
- DC: Was this something that was helping or not helping the relationships?
- Def: Ia ona uma foi lea ona tau faasa’o atu lena mataupu ina ua iloa mulimuli e le o se fault o Apulu o le fault o le MCIL
na alai ona fesetai shares. Ae ua tuuaia malosi Apulu ua alu Apulu faasili ona share i isi tagata uma.
- When we found out that it was the MCIL’s fault with the recording – with the fault in recording of the shares Apulu
was taking the blame for these shares.
- DC: We know that Danny resigned as director on the 31st of May 2013 correct?
- Def: Ia na ou vaai ma faamaonia I pepa.
- Yes your honour
- DC All these things that you’ve been running through causing problems with the relationship did they all happened before Danny
resigned or after or when?
- Def: O le taimi lea e lei faamavae Danny, o Danny o la lava e shareholder ma director o le kamupani.
- Before Danny resigned as a shareholder and director of the company.
- DC: We know the settlement of the purchase was on the 5th of May 2013.
- Def: O lea lava
- DC: So that’s only about four weeks that all these things have happened and Danny resigned, do I got that right?
- Def: O se taimi puupuu a lea faatoa matou amata ae atagia loa le tele o le feeseeseaiga.
- A short period of time after we started and there was a lot of dispute in the company.
- DC: If there’s something you can put your finger on to explain where things went wrong during that period, what would you say
went wrong. Is there something you can put your finger on?
- Def: Ua leai se faatuatuaga ia I matou uma, ua fiu a e tau aputiputi atu le uluai taimi na matou excited uma ai maute o e fai le
kamupani ia lelei, a’o si taimi puupuu a lea ona o mea tau tupe. Its all about money.
- No trust between all of us, even though we tried to start up the company this all happened because of money in the very short period
of time there was a distrust in the company.”
- There is also the evidence of MVP to be factored in. While unsatisfactory in many respects, she did testify that at the complainants
request she organised a meeting on 13 June 2013 in her office between herself, the complainant and the first defendant wherein she
tried to mediate their dispute: see paragraph 38 above. The complainant did not admit to such a meeting other than to concede he
had an unexpected two minute encounter with Laauli at Maiavas office but the first defendant agreed they met at her office although
he differed with MVP on the outcome (transcript 15/07/19 page 26 pp). Significantly they both agreed (paragraph 41 supra) that at
the meeting “the complainant was trying to persuade” the first defendant to return to the original proposal of a 50/50
split in shareholding. Something that is consistent with all of MVP’s written statements to the Police in 2015 and 2018 (Trial
Bundle ‘A’ Tab 17 and Exhibit “D-8” for the defence).
- If there had been agreement on such matters on 29 May 2013 a further meeting would have been unnecessary. It would only have been
a matter of documenting what was agreed upon. Notably, the evidence of MVP is more consistent with the scenarios I have referred
to above for the 29th of May.
- I also do not overlook the fact that the complainant was billed and paid for the services of MVP. Something for which he sought no
reimbursement from the company. This is strong evidence that all these matters occurred at his instigation and not necessarily as
a result of any agreements reached by the directors and shareholders of LPA.
The 14 June 2013 Board Resolution
- On the view I have taken of the facts thus far I have come to the conclusion that while a meeting of sorts may have occurred on 29
May 2013 definitely nothing was settled or agreed upon. I have also found there was a subsequent meeting on 13 June 2013 at MVP’s
office wherein she attempted to resolve the differences between the complainant and the first defendant. The impact of the 14 June
2013 Board Resolution now falls to be considered.
- In this regard there is considerable conflict in the evidence adduced. The complainants version is the Resolution formally solidified
what was agreed upon two weeks earlier at the 29th May meeting and that it was executed on 14th June by the third defendant Martin as Laauli’s representative. Why there was a two week delay was not explained. For her
part MVP was adamant the document reflected what was agreed upon the day before in her office and that Martin not only initialed
and signed the document in front of her but was fully aware of its contents. I have already canvassed the difficulties and inconsistencies
between MVP’s evidence and the complainant in this regard: paragraph 38 pp.
- Laauli’s version is there was no agreement reached either on 29th of May or 13th of June. He accepted MVP reached out to him on 13th June on the complainants instructions but he was in no position to agree to anything in the absence of his partners. From the 15/07/19
transcript pages 27 and 28:
- “DC: Can you estimate please when it was that the meeting took place?
- Def: Oute le maitaua lelei le aso a’o le amataga o Iuni, o le vaiaso muamua o Iuni.
- I do not recall but it’s the first week of June.
- DC: What whereabout did it happen, the meeting?
- Def: Sa matou feiloai I le ofisa o Maiava i Saleufi, Nia Mall
- We met at Maiava’s office, Nia Mall
- DC: And who was involved in the meeting?
- Def: na’o a’u, Maiava ma Peseta
- Only myself, Maiava and Peseta
- DC: And just as carefully as you can please, could you recall for us what was said during this meeting?
- Def: Na ou alu atu matou talanoa ae faaali mai loa e Peseta lona foi atugaluga i mea uma ia ua uma foi ona ou taumafai e faamatala
iai. Ae sa faaali mai ona atugaluga e uiga i le kamupani.
- We discussed and Peseta tries to voice out all his concern about the company, everything that has been said before he was trying
to voice that –
- DC: Yes
- Def: Ia ona ia faaalia mai lea o le popole tele ona o le aafiaga o lona fanua, lona fanua lea na matou aumaia mai le National Bank.
Na ou taumafai pea lea e faamalamalama i le uso, e tasi a le mea lea e te popole ai oe o lou fanua. Ae tatau ona tatou tilotilo i
le ata lautele ole kamupani lea tatou te taumafai e sao ma uli ina ia manuia le poloketi lea ua tatou commit e o e fai. Ia ona alu
lea o ana faitioaga ma agai mai foi e le fiafia ia Apulu ona o le tuai. O le tulaga e le fiafia ai I le faatulagana o siaki, o le
igoa o le kamupani ma isi mea uma ua uma ona ou tolaulau atu. Ia o la’u upu faaiu na fai iai, na ou fai atu e tutusa lelei
lou concern i lou fanua ma lo’u foi concern. O lea foi oute puipui a’u ina ia aua nei faaletonu lou fanua, a ia aua foi
nei faaletonu le kamupani. Ia ae finau mai lava ma fai mai ia te au e tatau ona toe faafoi le kamupani i tua i le LP i le mea lea
sa 50% ai ia, 50% a’u lea e take over a Danny ma Martin. Ona ou fai atu lea iai Peseta, e ese le LP ese le LPA. e tusa lava
pe na tatou faaaogaina le kamupani lea tatou te faagaioi ai a’o le LP a oe ma a’u e le aafia ai ii i le Nonu. O taua
ia LP o le mea lena sa ta talanoa ai i le amataga. Ma i le faatulagana i le taimi lea ua matou sui mai ai i le LP i le LPA L for
Laauli, P for Peseta A for Apulu. O lau talosaga la faapea e ta te toe faafoi i tua e leai, e tatau ona tatou talanoa faatasi uma.
O lea ua uma ona lesitala ma fesuiai uma share o le kamupani i le mea lea ua iai i le taimi nei. Ae le mafai ua naunau mai lava ina
ia ou ioe atu e toe faafoi le kamupani i tua i le 50 ia, 50 a’u. Ia ona ou toe taumafai atu foi lea lau afioga i tulaga faa-le-tulafono
e leai se isi o maua oi luga o pepa o le kamupani. I mea la faaletulafono ma talafeagai e tatau ona valaau uma i latou o loo aafia
o Martin, Apulu o Danny matou te omai e soalaupule le mea lea e manao ai. O le taunuuga na taatia sei fai se matou feiloaiga faatasi
uma matou lea e aafia i le kamupani. E lei iai sou maliega atoa ou te talia ai le mataupu lea na saunoa mai ai Peseta 50/50 leaga
e tatau ona matou feiloai faatasi uma matou, aemaise la Apulu o lea e leai ma sona leo i le mea lea e talanoa i le taimi lea.
- And he said he’s very worried because of his land that we brought from National Bank. So I tried to make him understand and
I was telling him you’re only worried about your land. But we should look at the whole picture of the company so that the project
is successful. And he voiced out that he’s not happy with Apulu because of all other matters that were mentioned before, the
organising of the company, the cheques and others. So I told him your concern is just as the same as my concern, your concern about
your land and I’m concern about protecting the company. He said the company should be taken back to LP where there was original
share of 50% for me and 50% for him (Peseta). So I told Peseta LP is different from LPA. LP is between us but LPA connects to Nonu.
So from LP to LPA. L for Laauli, P for Peseta and A for Apulu. So I told him the company will not return to the beginning we’ll
go ahead from where we are now to LPA. But he still begs me to go back to the original 50% for me and 50% for him. So I tried to
make him understand legally as we do not have our names on the company, So it is legally necessary to call Martin, Apulu and Danny
to sort out this problem and have a meeting together with all of them involved. At the end I did not accept Peseta’s request
as it is only proper to call all the other shareholders within the company to sort out this problem.
- DC: Is that how it ended?
- Def: Na uma loa o’u tulai loa a’u ou sau. O’u taunuu mai loa i fafo ona ou fesootai loa lea ia Apulu ma ou faailoa
iai le mea lea faatoa tupu nei.
- I came outside and I contacted Apulu to inform him of what just happened
- DC: Prior to this meeting at Maiavas office, did you know the issue of share could be raised or not?
- Def: Leai sa manmao lo’u mafaufau o se mea lea o le a matou talanoa o shares. Ua ou fiafia ua ou alu atu faapea o le a soalaupule
feeseeseaiga, foia faafitauli, ae lei iai sou mafaufau o le a matou tagofia le mataupu lea.
- I did not expect that shares will be brought to the discussion as I thought that we will be only talking about other matters.
- DC: Did you have any authority of any sort to deal with Apulu’s shares when you went to that meeting?
- Def: Lau Afoga e leai
- No your honour”.
- Adding to the confusion is the evidence of Police Sergeant Kalati Tusani who at one time was investigating a forgery complaint lodged
by the third defendant in relation to the Board Resolution. In the course of inquiries he interviewed MVP on two occasions: the
first leading to her statement dated 06th November 2015 (Exhibit “D-8” for the defence) and the second to a statement dated 11th November 2015 (also part of “D-8”). In her second statement MVP stated that “The signing of the resolution was
to be arranged between Mr Schwalger and Peseta Vaifou” contrary to her oral evidence to the court. The Sergeants evidence relevantly
was (transcript 18/07/19 pages 33 and 34):
- “DC: Ok, well, you ended up going back to see her on the second time, did you?
- Wit: Sao lelei – correct
- DC: And why was that?
- Wit: Ona o le statement muamua lea sa aumai sa ou faitauina ma o’u toe vaavaai iai ma ou iloa ai, e le’o manino mai
lava pe sa ile faamatalaga pe sa iai ile sainiga o le pepa lea
- Because it’s not clear on this statement if Maiava was present during the time the document was signed
- DC: Aww thank you, so that’s why you went back to see her?
- Wit: Sao lelei – correct
- DC: And what happened when you went back to see her?
- Wit: Sa toe saunia foi e Maiava le isi faamatalaga lona lua lea pei ona i luma ile taimi nei
- Maiava prepared the second statement that is before me
- DC: Just pause there, was there any conversation between you and her before starting the second statement?
- Wit Sao lelei – o le talanoaga masani o lo’u fesiligia lava i lo’u fia manino pes a iai ile taimi na saini ai le
pepa lea
- Yes, I asked her because I wanted to be cleared whether she was there during the document was signed
- DC: did she answered you?
- Wit: Sao lelei – correct
- DC: What did she say?
- Wit E tali mai e lei iai, ae sa tuu lava ia Peseta ma Laauli e o e fai le vaevaega o le latou shareholders
- She said she was not present but it was left up to Laauli and Peseta to do the shareholders
- DC: Right, so whose idea to do a second statement then, was it her idea or your idea to do a second statement?
- Wit: O le toe faiga o le statement lea, o la’u idea ona o lou manao e toe faamanino mai e Maiava pe sa iai ile sainiga
- It was my idea because I wanted Maiava to clarify on this matter
- DC: And were she prepared another statement?
- Wit: Sao lelei – correct
- DC: Have a look at the second document their D-exhibit 8 is headed ‘second statement re Local Partners Ltd, correct?
- Wit: Sao lelei – correct
- DC: That’s the second statement that Maiava typed out?
- Wit: Sao lelei – correct
- DC: Has she signed it?
- Wit: Sao lelei – correct
- DC: Who has dated it?
- Wit: O Maiava
- Maiava
- DC: 11 November 2015 correct
- Wit: Sao lelei – correct
- DC: Was that the date you went and saw her the second time?
- Wit: Sao lelei – correct
- DC: And again she typed this out herself have I got that right?
- Wit: Sao lelei – correct
- DC: Were there any help from you?
- Wit: Leai – no
- DC: Just looking at that second statement, are they were words that you see there if you didn’t help?
- Wit: Sao lelei – correct
- DC: Including the last sentence the signing of the resolution was to be arranged by Mr Schwalger and Peseta?
- Wit: Sao lelei – correct
- DC: And she knew what you were asking her about, is that right?
- Wit: Sao lelei – correct
- DC: And the second meeting was that at her office again?
- Wit: Sao lelei – correct.”
The officers evidence remained unchanged despite vigorous cross examination by Mr Williams.
- This is testimony from a very experienced Police officer who has no vested interest in the present proceedings. He has no relationship
to any of the parties and he struck me as a competent and truthful witness. I have no reason to doubt this evidence.
- On the other hand there are reasons for doubting the accuracy and reliability of the evidence of MVP. Not only was she intricately
involved in this matter but she seems to have acted on a number of occasions in the interests of and upon the sole instructions of
the complainant. She also expressed her own doubts about her recollection on the key issue of the first defendants agreement to
return to a 50/50 split (transcript 04/07/19 page 5):
- “DC: One or two remaining matters relating to your evidence that Mr. Schmidt agreed to return to a 50/50 share Division. Firstly,
I’d like to ascertain from you how clear or otherwise you say your memory of this is. Are you saying for example that your
memory of this agreement by Mr. Schmidt is a vivid one to the extent that you are 100% certain about this?
- Wit: No I cannot say that I think it’s humanly impossible. Memory fades very quickly.”
And on page 6 – “I agree because memory within two hours something happens fades and continues to fade so yes as a lawyer
I was cautious and fully aware of the fallibility of memory.”
- As to accuracy and reliability with due respect to Senior counsel she admitted not following the appropriate procedures in relation
to the Model Company Rules adopted for the governance of LPA and to basic errors such as “500,000 shares” as opposed
to “50,000 shares” in the Board Resolution document itself. There is also the matter of her failure to consult with
Apulu two doors down from her when his shareholding would have been egregiously affected by the 13th June “agreement” as well as the issue of who explained the contents of the Resolution to the third defendant prior to
execution. Her Police statement dated 23rd October 2018 (Trial Bundle ‘A’ Tab 17) page two thereof says she explained (“I explained”) the contents of
the document to the third defendant whereupon he voluntarily signed the document. Whereas she testified otherwise: in examination
in chief “I basically just advise him this is the document, are you aware of the reason for the document, and he nodded and
then he signed it” (transcript 03/07/19 page 13). Which she clarified in cross examination as follows (transcript 04/07/19
page 8):
- “DC: Now Mr. Interpreter again Volume A tab 17. Your statement please the first document under that tab, can you go to page
2 of your statement, last paragraph. Do you say there, “I explained the content of the document and Martin Schwalger voluntarily
signed the document” is that what it says?
- Wit: Yes.
- DC: Did you explain the content of the document to him?
- Wit: I gave him time to read it and then asked if he understands, I did not explain in detail to him; and affirmed with him that
he had discussed with Laauli what the document was about.
- DC: So you correct me if I’m wrong but what you’re really saying is you’re checking that Mr. Schmidt had explained
the content of the document rather than you explaining it.
- Wit: Yes. He came in, I put the document in front of him to read and I said, “Do you understand the reason for the document
and the reason why you’re here?” and then he nodded affirmatively. From then I had assumed he had been instructed by
Laauli as to why he was to attend my office in the morning.
- DC: And that’s what you mean by you explained the content of the document to him is it?
- Wit: Yes. Because I asked him, “Ua e malamalama i le mafuaaga o le pepa lenei ma tulaga ia ua i ai?” (If he understands
about the document) the contents of the document and the reason for it.”
- It is also concerning that her Fee Note of June 2013 while referring to the preparation of the 31st May resignation document for Danny makes no mention of attendance to preparation of the 14th June Board Resolution or to attendances on the Resolution signatories Peseta and more significantly Martin for execution of the document.
It instead refers to an attendance on Danny who is not party to the Resolution. Fundamental matters that operate to adversely affect
the validity and credibility of her evidence.
- Counsels evidence is in my assessment heavily tainted by unreliability and uncertainty and I am not confident it can be safely relied
upon. Given the conflicting nature of the other evidence, I am not satisfied the Board Resolution document dated 14 June 2013 is
sound evidence of the appointment of the complainant as a replacement director for his son or of any agreement to return the company
shareholding to the original 50/50 situation as between the complainant and the first defendant through Martin. Neither can I find
beyond reasonable doubt that Martin with full knowledge properly executed the document in the presence of MVP. To say nothing of
the fact that the document itself purports to refer to agreement at a meeting that in my view did not occur in the manner propounded
by the complainant and his son.
The trading name: ‘Samoa Nonu Delights’
- There is no dispute that as from 26 June 2013 the complainant became the main authorised signatory of the LPA Westpac account with
Martin or Apulu as co-signatory. There seems equally no dispute that LPA’s first regular customer in 2013 was Wilex Samoa Co.
Ltd (“Wilex”) and that on 21st June 2013 Wilex paid the sum of $13,355 as a deposit for an 8,000 litre nonu juice order, deposited into the LPA account on 24th June 2013. The $18,000 balance of the order was invoiced on 10th September 2013 and the same day was paid into the LPA account. The invoices for this and all other Wilex orders showed the payee
as not LPA but ‘Samoa Nonu Delights’ (“SND”).
- The documents pertaining to this order are contained in Trial Bundle ‘B’ Tab 3. These documents when read together with
the statement of Tagaloa Eddie Wilson Managing Director of Wilex (Trial Bundle ‘B’ Tab 2) and the LPA account bank statements
show there were subsequent Wilex orders but only one other payment was made into the LPA account. Specifically a second progress
payment of $10,000 for goods supplied in November 2013 invoiced on 07th February 2014 and paid into the account on 11th February 2014.
- The complainant said when he originally inquired about these orders Apulu told him it was for Wilex. After two or three orders and
the late arrival of payments he made enquiries of the Wilex Managing Director about the orders and was shown the relevant paperwork:
transcript 26/06/19 page 19. He was shocked to discover these were in the name of ‘SND' a name which the company had never
authorised. This was the first time he had seen or heard of this name.
- As a result in October 2013 he called a company meeting. This was attended by Apulu and Martin but he could not recall whether the
first defendant was present. When questioned about the name Apulu and Martin advised him it was only a trading name. He instructed
them to cease use of the name because “it was not recorded under the NPF loan.” To which there was no or any adequate
response but he later discovered they were continuing to use the name for LPA business transactions.
- Laaulis version of events is contained in the transcript of 15 July 2019 at pages 37 & 38:
- “DC: Mr Schmidt there’s been a lot said about the use of the name Samoa Nonu Delights, what do you say about all that,
the use of this name Samoa Nonu Delights?
- Def: I lau maitau I le matou faasologa o le kamupani e faigata tele. E tatau ona matou faaaogaina se igoa e reflect ai le ituaiga
product lea matou te faataua. O leisi taimi ua sau foi le faataitaiga o le Samoa Natural poo le Samoa Organic Nonu. O mea uma na
sa fetuunai ina ia taunuu lava I le taunuuga e talafegai ai le igoa. E taua tele le iai o se igoa. Ao le itu sili ona taua a matou
o atu la I fafo e faalauiloa pe fai atu ni tala tusitusia e faigata tele na koneti matou I le faaaogaina pea o le matou igoa faavae
o le Local Partners and Associate. Ao le faaogaina o le upu Samoa Nonu Delight o se igoa lena e talia gofie e tagata matou te talanoa
iai ma le uiga o upu. Samoa Nonu o le uiga o le Nonu mai Samoa. Le upu lea delights o se upu e fiafia tele tagata Asia e latou te
faaaogaina Delight sunrise e faapena o latou agaga e mananao I ituaiga igoa faapena e tosina ai I ituaiga faatauga lea o le a fai.
O le tulaga lena na matou manatu ai e tatau ona iai se igoa e tatau ona faatau ai products. Na alai foi ona matou taumafai I la
matou faalauiloa muamua i Niu Sila, ua avatu nei le matou banner o loo tusia ai igoa ia, e atagiagofie le tulaga o le agai mai o
tagata oh o le nonu la lea mai Samoa.
- When the company first started it was very difficult for us so we tried to come up with another name that will reflect the product
that we’re trying to sell. We come up with other names like Samoa Natural Nonu, Samoa Organic Nonu and others. As we go out
to the open it was very hard for us to connect with the use of a name Local Partners and Associate. But Samoa Nonu Delights will
be acceptable by the people and also its meaning its Samoa Nonu, the nonu from Samoa. The word delight is commonly used by the Asian
people and they like using the word delight like delight sunrise. They usually use it as a very common name for promotional purposes.
So that is why we came up with this name to sell our products. We also went to NZ and we also used our banner as a promotion and
with the use of name Nonu on it, it will be acceptable to the people as they’ll see its nonu from Samoa.
- DC: Mr Schmidt as far as you were concern is the actual name of the company changed at any time?
- Def: Leai, o le kamupani o lea e tumau lona igoa faavae Local Partners and Associate
- No the company still has its company name Local Partners and Associate
- DC: And again as far as you are concern is the name Samoa Nonu Delights being used in any way to deceive anybody?
- Def: Leai lau afioga, o le auga lava ia faalauiloa le product lea matou te faataua, ae leai se agaga faasese ni faamaumauga poo ni
mafaufauga o nisi.
- No your honour we only wanted it for promotional purposes but we do not wish to mislead anyone.”
- He said when he found out the complainant had been making enquiries with Wilex he became concerned about the reputation of their
newly established venture coming on the heels of the recently failed Pure Pasefika. In his words from the transcript of 15/07/19
pages 22 and 23:
- “Def: Na vili mai ia te au fai mai poo le a le mafuaaga e alai ona tuai peimeni. Na ou faamatalatala lea iai ma ou fai atu
Peseta o le tatou client muamua lea e tatau ona tatou faifai malie. Ave le avanoa ia Eddie o lea faatoa sau e oka atu se mea I le
tatou kamupani, ae tuu le taimi ia te ia e faatau a ile juice ma maua mai le tatou tupe. Peitai oute iloa e lei faamalieina lona
finagalo sa masalosalo.
- He called me up and asked me why is there a delay in payments. I told him Eddie is our first client and we should give him the opportunity
and time to process these orders. However Peseta distrusted me or did not trust, or suspicious
- DC: of who?
- Def: He was suspicious of the payment being delayed. He was questioning Lance credibility of operating payments.
- DC: Do you know if he made any enquiries regarding Wilex?
- Def: Ia na ou maua tala mulimuli ua agai loa ia Tagaloa ma fai ai loa lana suesuega, e fesiligia uma a peimeni mai le amataga mai
o oka ia matou oka sa fai.
- I found out later that he went to Tagaloa and started questioning all the payments from the beginning with all the orders made.
- DC: What did you think when you found out he had gone to a customer and made these enquiries?
- Def: Sa ou concern tele leaga o lea ua amata ona puaina i fafo le mea sa ou naunau e puipui ai le kamupani. Ua amata ona atagia le
faatuatuaina o le Management a Apulu ua alu ai Peseta fesiligia mea ia Eddie. Ma sa ou faaeteete tele leaga o Eddie le matou oka
muamua. E puipui tele I le igoa tauleleia leaga o Eddie o ia o le Peresetene o le Manufactured Association. Sa ou popole tele lau
afioga i tala ave ia ua ta’u atu ua iai le mea ua faaletonu I totonu o le matou kamupani o mea sa tatau ona matou soalaupule
lava matou I totonu o le lotoifale. Peitai ua fai pea e Peseta lona finagalo, ma ua atagia ai loa ua fesiligia le credibility a matou
uma nei ei totonu o le kamupani. Aemaise ai lona fesiligia pea o lona faatuatuaga ia Lance o le tagata sa matou filifilia 3.28 e
sau e Managing Director I le tauavega o le LPA.
- I was very concerned as there were issues arising with not trusting Apulu in running the company that is why Peseta went to Eddie.
I was very worried as Eddie was our first customer and we try to protect the reputation of our company as he was the President of
the Manufacturing Association. I was very worried of the rumours going around of the company and these are the issues we should have
sorted out within the company. However, Peseta went along and questioning the credibility of all of us in the company. Especially
him not trusting Lance as we agreed upon for Lance to come and be the director of LPA.
- DC: How many customers did you have at this stage?
- Def: Manatua lau afioga o lea sa matou tauavea le Pure Pasefika I le receivership ma e leai ma ni client na toe maua I le taimi lea.
O lea ua matuā goto uga a le Pure Pasefika, ua leai ma ni tagata na faatau Nonu muamua ona o se kamupani o lea ua oo I lima
o le Faamasinoga. O le matou oka muamua la o le tagata o le tatou atunuu, sei tau toe amata ona toe tau faataavale ia oka. O le afioga
ia Tagaloa o le tagata muamua lena na amata ai ona toe taumafai le aveina i fafo o le fua o faaeleeleaga.
- We tried to take over the Pure Pasefika receivership and there were no clients at that time. No one wanted to take their Nonu to
Pure Pasefika because of the court case and court proceedings with regards to Pure Pasefika. Our very first customers was Tagaloa
that’s when we started off in trying to market the Nonu.
- DC: Was that the only customer you had at the time Peseta was going to see Eddie Wilson asking about these payments?
- Def: Pau lena mo le taimi lena na’o Eddie ma ana oka lea na taumafai e fai.
- Yes, at that time.
- DC: When you found out that Peseta had gone to see Mr Wilson did you speak to Mr Wilson yourself?
- Def: Ioe, na tulai mai loa le mea lea ou vili ia Eddie, ona faaali foi lea o lou concern ia Eddie, o lea ua e silasila mai ua amata
ona vevesi le matou kamupani ona o le taumafai e faamalamalama le tuai mai o peimeni.
- I called up Eddie and I voiced my concern to Eddie about the dispute within the company with regards to the delay in payment.
- DC: Why did you do that?
- Def: O lo’u taumafai pea e fofo le mea lea ua ou vaai atu ole a amata ona tupu ia matou. Ma ou taumafai pea e faamalamalama
ia Peseta e aua matou te soona naunau tele e faavevesi le mafaufau o le matou oka muamua, tuu pea le avanoa ae matou faatalitali
ina ia sao le matou oka muamua lea, oute talitonu e iai isi oka mulimuli atu.
- I was trying to sort out the problem between us. I was trying to make Peseta understand to give this opportunity to Eddie for our
first order as I know that there will be other customers later on.
- DC: So Mr Schmidt we’re running through all the things that caused relationship to change, were there other things as well
that you haven’t mentioned yet?
- Def: O lea lau afioga o leisi mea na vili atu ai fai mai, ia o lea ua ou vaai ua ese le igoa lea ua faaaoga i luga o pepa a Eddie.
- Yes there’s another thing Peseta called and said there’s a different name on the documents of Eddie.
- DC: Tell us about that?
- Def: Na ou fai atu lea poo le a le igoa, ae fai mai o lea ua vaai ua faaoga le igoa lea o lea o le Samoa Nonu Delights. Na ou fai
atu lea ia Peseta ua uma ona ou fai atu ia tatou talanoaga muamua e iai fesuiaiga o le a tatou faia ona o le taumafai ia faalauiloa
ma taulia le sua o le Nonu. O le tatou igoa lea o le Local Partners and Associate e le’o reflect ai iina le tatou product lea
taute o e faatau. Ao le igoa ua tatou manatu e talafeagai, o se igoa ia atagia ai le tatou mea lea taute o e fai we’re selling
Nonu juice. Ma o iina na mafua ai ona faaaoga i lena taimi i le amataga e tatau na iai se trading name Samoa Nonu Delights e reflect
ai le mea lea matou te taumafai e faatau atu. Na faailoa lea ia Eddie, I le amataga lava na ta’u ia Eddie, o le kamupani e
tumau pea lona igoa i le Local Partners and Associate a’o lona trading name o le Samoa Nonu Delights.
- I asked him what name and he said he saw that the name Samoa Nonu Delights was being used. So I told Peseta as mentioned before
there will be other arrangement so that we can try and sell the Nonu. The name Local Partners and Associate does not reflect the
product we will selling. We should look at a name that people will see we are selling Nonu juice. So that is why we went ahead and
use Samoa Nonu Delights so that reflects what we’re trying to sell. In the beginning we inform Eddie of this, the company will
remain as Local Partners and Associate and its trading name as Samoa Nonu Delights.
- DC: Did Peseta accept your explanation or not?
- Def: Ou te taumafai atu lava lau afioga e faamalamalama ae le fia malamalama.
- I tried to make him understand but he doesn’t want to understand.
- DC: what was his argument against it?
- Def: Na faapea mai e popole nei tei ua suia le kamupani atoa. Ona ou fai atu lea iai o peimeni lea e te vaai iai I luga o le igoa
lea Samoa Nonu Delights e sau uma lava I totonu o le tatou tusitupe, e leai se mea e alu i fafo e sau uma lava ii I le tusitupe lea
ua uma ona open I le Westpac.
- He was worried about the company but I told him that all these payments will go into one account at the Westpac.
- DC: So did he have any argument against the use of this trading name?
- Def: Sa faaali a lona le fiafia ae I lo’u manatu ua fai le matafaioi o le faailoa iai o le mafuaaga tonu na alai ona filifili
e tatau ai ona faia le igoa mo le faatauina o le sua o le nonu i maketi i fafo.
- He was very unhappy but we gave him reasons as to why we want to use this name for selling of Nonu to overseas markets.
- DC: At the end of all that, did he accept or not accept the use of this name?
- Def: La ua uma ona ta’u iai lau afioga, ua uma ona faailoa iai ae o loo faaali mai pea, mai le amataga e le cooperate.
- I have already informed him but he said from the beginning that he will never cooperate.”
- The first defendant went on to describe how at this time LPA was struggling financially. Their only customer was the slow paying
Wilex but they had to meet their loan and other commitments. To the extent they had to sell one of the trucks for $70,000 which was
deposited to the LPA account on 26 June 2013. He said the complainant was becoming more and more obstructive, refusing to sign company
cheques answer phone calls or turn up for arranged meetings. A review of the LPA bank statements for this period shows a flurry of
cheques in July 2013 but a dramatic downturn in August, September and October 2013.
- According to him this led to a discussion with the company accountant PL and on his recommendation the following company Resolution
dated 11 October 2013 was drawn up by Apulu and executed by the directors:
“LOCAL PARTNERS & ASSOCIATES
10 IFILELE ROAD, VAITELE INDUSTRIAL ZONE, PO BOX 1321, APIA, SAMOA, MOBILE PHONE: (0685) 7775356, 7271631
Trading as Samoa Nonu Delights
11th October 2013
The Board of Directors
Notice of Resolutions
Following its meeting of 10th October 2013, the Directors hereby give notice of its following resolutions:
Adopt SAMOA NONU DELIGHTS as the company’s Trading Name given difficulties in connecting its main product – Nonu Juice
and the Company name as it struggles to secure orders and attention in the domestic and overseas markets.
To set up a new Cheque Bank Account under SAMOA NONU DELIGHTS used as the company’s Trading Name to operate the business, given
the difficulties in operating the current LPA account with the Westpac Bank due to shareholders conflict.
Accept Laauli Polataivao Schmidt as consultant and advisor and in the direct decision making and operations of the company.
Accept the use of trucks for the Vailima Brewers Carting deal to generate some revenue for the company given difficulties and irregularity
of orders as its main source of income. Under the management of Maota o Samoa, as they are funding all of the operation cost i.e.,
petrol, drivers’ salaries, truck refurbishment, maintenance etc.
All profits from Vailima Cheques will be deposited into the SAMOA NONU DELIGHTS Account (after all expenses have been paid to Maota
o Samoa).
Signed:
Apulu Lance Polu Martin Jonathan Schwalger
DIRECTOR/ DIRECTOR /
SHAREHOLDER (32.5%) SHAREHOLDER (32.5%)
cc: Peseta Vaifou, Danny Schewenke
Papalii Petaia, SNPF, Legal Officer”
- Although copied to the complainant and his son as well as the NPF all three parties denied receiving copies of the Resolution. Laaulis
evidence was it was left to Apulu to serve those copied but since the court never heard from Apulu this aspect remains unclarified.
- Consequent upon this Resolution:
- (i) Apulu on 06 November 2013 opened savings account number 1010595322201 with the Samoa Commercial Bank (“SCB”) under
the nomenclature ‘Samoa Nonu Delights PSSF account’ being “the trading name of our company LPA” and operated
solely by him (“the SCB savings account”): see Trial Bundle ‘A’ Tabs 34 and 35; and
- (ii) for these purposes an amended 2013 Business License showing “Local Partners and Associates Limited - Trading as Samoa
Nonu Delights” was used by Apulu. All parties to this proceeding agreed that no such amended Business License for 2013 was
issued by the Ministry for Revenue (“MOR”) the only agency authorized to issue national business licenses.
- (iii) There was however further evidence from MOR ACEO Siaaga Ioane that their records for 2014 and 2015 showed that on the relevant
Business License Renewal Forms for 2014 and 2015 Apulu had inserted under ‘Trading Name’ the name ‘Samoa Nonu Delights’.
This was not approved as they “didn’t get enough information to justify changes”. When asked what further information
was required she said “A formal letter or an email” from the company or its shareholders/directors: transcript 05/07/19
pages 24 & 25.
- (iv) Of the LPA business licenses for 2013, 2014 and 2015 only the first purported to show the trading name ‘SND’. The
name does not re-emerge until 2016 when it was officially added to the LPA Business License for that year following a formal email
request from the company.
- (v) On 28th April 2014 Apulu set up another account with the SCB viz cheque account number 101059532201 with him and Laauli as signatories (“the
SCB cheque account”): see Trial Bundle ‘A’ Tabs 39 and 40.
- Relevant bank statements (Trial Bundle ‘D’ Tabs 8 and 10) show that the SCB accounts were used from inception and throughout
2014 and 2015. They also show that apart from three deposits to the LPA account in February 2014, one being the $10,000 progress
payment from Wilex referred to in paragraph 93 above and the other two being for sales to Life Health Limited on 27th February 2014 no other payments were made into the LPA account. Clearly the company was now using the SCB accounts for its financial
activities and it openly continued to do so throughout 2014 and 2015.
- Loan payments however to NPF were not being made on time due to the late arrival of funds. Arrears were accumulating as a result
of which a meeting was held with NPF on 03rd April 2014 as referred to at paragraph 57 supra. All the relevant actors were present. It is clear from discussions at the meeting
that by this time everyone was fully aware of the use of the SND trading name even in the face of the complainants continuing objections.
The Vailima hire contract
- One of the matters raised by the complainant at this meeting and on other occasions (see paragraph 53 pp above) was the issue of
company trucks being hired by Vailima Breweries but the proceeds not being paid into the company account. There is indeed no record
of any Vailima payment being deposited into the LPA account.
- Laauli’s testimony in relation to the background and hirage of the trucks is found in the transcript 16/07/19 pages 3 to 5:
- “DC: I will be asking you shortly about another meeting at the Provident Fund on the 3rd of April 2014. But before I get to that I’m trying to keep things in chronological as possible. I want to ask you about the
hiring of trucks. This involve you and Vailima Breweries correct?
- Def: O lea lau afioga
- That’s correct
- DC: And how did this come about?
- Def: O le taimi lena o loo matou taumafai pea e saili ni alagatupe e fesoasoani I le kamupani. Ae sa iai la’u taavale, e iai
la’u loli e tasi sa ia te au na hire lea e le Vailima mai le 2013. Ia o lea na omai ai le Vailima ia te au e sailiili nisi
taavale ona o lea e vaai o lea e iai taavale lea e tutu i lalo I le Nonu ma luga I le Maota o Samoa. Ia ona ou talanoa lea iai poo
le a le mafuaaga lea e mananao ai ae fai mai e mananao e hire loli mo le kilivaina o le faguinu ma le pia. Sa ou fesili iai pe fia
ae fai mai masalo e amata muamau I le lua pe tolu a pisi tele ua fa. Ia sa ou faatalatalanoa foi le tau pe fia le tau. Ia na matou
talanoa laia I le tulaga talafeagai e lelei mo le Vailima e lelei foi mo le taavale lea ia te a’u sa faaaoga. Na ou sau loa
lea talatalanoa ia Apulu. Ma sa ou vilia foi Peseta ina ia ona silafia. Ona fai ai laia o le iugafono o le a ave taavale e lua pe
tolu a le Local Partner e faaaogaina I la’u arrangement lea na fai I le Vailima. Ae pei lava ona taumafai e faamalamalama atu
o le taimi lea o le matou manaomia o le seleni e fesoasoani. Ia ma o le tinoitupe sa faasolo mai pea I le taimi atoa na maua ai
foi le mapusaga I lea taimi e le i lalo ifo o le $220,000 le tupe na matou maua mai I le faaaogaina o taavale nei.
- That time we still looking for monies to help out the company. But I have my own truck which was hired by Vailima in 2013. So they
came to me looking for some other trucks because they saw trucks parking under the nonu trees on Maota o Samoa compound. So I asked
them the reason why they are looking for these trucks but they told me that they are looking for some hire trucks for the distribution
of the Vailima beer. I asked them about how many but they told me maybe two or three and if busy they will need four trucks. We also
discuss the price. The we discuss and agreed for an affordable price that is best for Vailima as well as myself given the standard
of the vehicle. So I came and discuss with Apulu, and I also contacted Peseta so that he knows about it. Then we come up with a resolution
that we will hire two or three trucks that was used by the Local Partners. Like I always tried to explain this was the time that
were in need of cash to help out. The total cash that we got from hiring of these trucks was not less than $220,000.
- DC: Just pause there we’ll come to that. Firstly you mentioned that you have an existing arrangement for the truck of your
own, do I got that right, an existing arrangement with Vailima?
- Def: O le amataga lena sa iai a si au taavale a latou manaomia le fesoasoani ona omai lea avatu.
- Yes thats from the beginning I have my own truck that I told them they can use it.
- DC: And when did they first use your own truck, what year for Vailima purposes?
- Def: 2013
- DC: And do you know the registration number of your own truck?
- Def: 9721
- DC: And the discussion with Vailima about the use of more trucks when did that occur, what month and what year?
- Def: Ona omai lea o le Vailima express mai le latou interest, na amata ona mananao I le faaiuga o le 2013.
- Vailima express their interest in hiring of these trucks and it was in the end of 2013.
- DC: And was agreement reached on how much the charging would be and other arrangement?
- Def: Ia na matou talanoa pe mafai ona fai se tau foi lea, set price for the day, hirage for the day I le $400. Ia ae ou fai atu iai
oute iloa e fai si maualalo tele o le oka, e lelei a le matou o pea I le mea lea na masani ona taumafai ai la’u loli $600 I
le aso.
- So we discussed regarding set price for the day and that is $400. But I told them $400 is very low but its best to have the agreement
for what we agreed before during the using of my truck which is $600 per day.
- DC: You mentioned that you had spoken to Peseta about this, just describe that conversation for me please?
- Def: Sa ou valaau iai, e ui a i le tele o le matou vevesi lea e iai, ae sa ou manatu pea e tatau ona ia silafia le mea lea o le a
fai. So na silafia, na ia iloa lo’u valaau iai o lea o le a faaaoga le taavale e su’e se tupe mo le kamupani.
- I called him your honour, we call him even though we have too many obligations but I need him to know what will going to happen.
So he knows that we were going to hire trucks in order to get money to help out the company.
- DC: did you explain the reason why you wanted to do this to him?
- Def: Ia o lea lava, o le sue o se tupe maua mo le kamupani.
- Yes I explained him that, so that we can get extra money for the company.
- DC: What was his response?
- Def: O le tali masani lava e leai
- He said no.
- DC: Anything else apart from no?
- Def: Ia o leisi mea na ou iloa ua amata ona o loli e faaaoga. Ae ua amata ona fealuai foi Peseta I le Vailima e taofi le hire ina
o taavale. Ia na iu lava ina oo I le isi loia le susuga ia Richard Faaiuso e tusi se tusi aloaia e faatonu uma ai shareholders ma
directors e taofi le hire ina o taavale I le Vailima. E le gata foi I lea ua toe agai foi Peseta I le NPF ma tusi foi le tusi a le
loia lea o Richard e ave I le NPF e faatonu ai le NPF ia latou tusia mai se tusi I le Samoa Breweries e taofi ai le hire ina o taavale
ma ia avatu uma tupe e avatu sa’o I le NPF.
- The next thing I know we’re now hiring out the trucks. And Peseta also starting to go to Vailima to stop the hiring of these
trucks. That’s made him go to another lawyer Richard Faaiuaso to write a stop notice to instruct all directors to stop hiring
the trucks. Not only that but Peseta also went to NPF. And another letter from Richard to NPF to write a letter instructing Vailima
Breweries to stop giving the money to the company but give it straight to NPF to pay out loan arrears.
- DC: Did Peseta indicate why he was against this arrangement with the trucks?
- Def: ia na fai mai ia te a’u nei tei ua ave taavale malepe ai ile lauga o mea ia. Ae ou fai atu iai e sili atu le sefe ma le
malu puiapuia o taavale e le’o ni mea tetele lea e lau ai na’o faguina ao lea e maua ai le matou tupe, fesoasoani.
- Yes he told me may be hiring of the trucks will cause damages to the trucks. But I told him the trucks were in a safer condition
given that only the soft drinks are carried on -
- DC: do you recall what month and year it was that you were having this discussion with Peseta about the trucks?
- Def: O le amataga o le 2014 ina ua la amata lava o le a ave le taavale e faaaoga, early 2014.
- The beginning of 2014.
- DC: When did you start the arrangement with Vailima using LPA. trucks, what month and year did you start hiring them?
- Def: Na iai le tapenaga muamua na fai muamua I taavale ina ia ready atoa taavale mo le faaaogaina. Ia na amata loa ua atoatoa le
tapenaga lea o le maintenance and compliance from Vailima ona amata loa lea I le 2014.
- We firstly do inspection of the trucks so that they can used without any problems. After maintenance process then began in 2014
- DC: Do you recall what month and year you started hiring the LPA. trucks to Vailima?
- Def: 2014 ma se vaega o le faaiuga o le 2013
- From the end of 2013 to 2014.
- DC: But you didn’t talk to Peseta until early 2014 about the arrangement, do I got that right?
- Def: Sa ou manatu e faataitai muamua sei confirm lelei ona matou talanoa loa lea ma faaalia ia latou uma.
- I thought to give a try first and after we confirm it I then discuss with them.”
On why the operation was run through Maota-o-Samoa:
“DC: What arrangements were made regarding who would run this operation do you understand what I mean by that?
Def: Sa matou talatalanoa ina ua ou iloa lava e le talia e Peseta le fautuaga na avatu, ona matou tatalanoa loa lea ma Apulu ma
Martin I le faatulagana poo le a le auala sili e faatautai ai le run ina o loli a le Vailima?
Ia na matou malilie loa lea o le a faaaoga pea le arrangement lea na ou faia I le Maota I le amataga e faaaoga ai loli ia mo le
vailima mo le LPA. O le arrangement lena sa faatulaga e le Maota o Samoa le tauavega o le operation atoa o le handle ina o le lisiina
o taavale e aafia ai ma la’u taavale I le taimi muamua.
We discussed when I know that Peseta don’t accept my advice about this, so we discussed with Apulu and Martin on how to operate.
So we discussed it is best to use the arrangement that we used first with the Vailima to conduct tis operation. So that operation
was handled by the Maota o Samoa as it was done before with my truck.
DC: and why was that decision to run up through Maota o Samoa?
Def: Sa matou faia le faaiuga ona o luga o tulaga nei. Ona o le faatulagana o loli e ave e tele mea e tatau ona prepare. E fai le
compliance a le Vailima e tatau ona fai lelei pa puipui I autafa, o tapoleni, ualesi o safety gears ma mea uma o taavale, o mea uma
na e tatau ona matou provide ina ia mafai ai ona ofi loli i totonu o le Vailima. E tatau foi ona up to the standard le taavale, e
tatau ona fou pa’u, lelei maa, mama ma faapipii uma tulaga tau tekonolosi i Ualesi ma leitiō faaaogaina I le kiliva system.
Ia ina ia atoatoa mea na e tatau ona matou faatupe uma. Na faatupe uma e le Maota o Samoa le tulaga lea aua o le taimi lea e leai
ma se matou seleni o iai. Atoa ai ma le utuina o taavale, aua e le faapea e fai loa le aso maua le tupe, e faatali mo le vaiaso,
lua vaiaso faatali faatoa maua le siaki ia faatoa totogi. O nisi o le aufaigaluega avetaavale a le Maota o Samoa na omai e taumafai
e fesoasoani ina ia ave loli ia. O le faatulagana na o le starting capital ma le expense, o mea uma na gafa ma le Maota o Samoa.
Ma o le auala lena lau afioga na finagalo ai ia Martin ma Apulu e sili ai ona faaalu pea le polokalame I lalo o le Maota o samoa
ina ia mafai ona matou tali atu I le manaoga o le Vailima ma ia faaaoga taavale.
We make this decision because of the condition. Because this arrangement with Vailima we need to provide all things that need to
be done first before we give the truck like the compliance the fence around the truck and tarpaulin and all safety gears, as long
as we have all those then we can give the truck. As well as the installation of new tyres, new batteries, radios for collection.
And for doing that we have to provide all those stuff so Maota o Samoa paid for all those items. And also petrol for these trucks
because the agreement was –we wait by the end of the week then we get the cheque. Some of the Maota o Samoas employees came
and drive these trucks. So the arranging of the starting capital that was the responsibility of the Maota o Samoa. So that is why
Martin and Apulu agreed for these operations to go under the Maota o Samoa.
DC: You may have answered this but where were the drivers for these trucks coming from?
Def: O avetaavale a le Maota o Samoa. E toatasi a si tama lea na totoe ai I le LPA. i le Pure Pacifica lea sa faigaluega ai o ia
lena sa faaaoga ifo foi.
From the Maota o Samoa plus another person left from the Pure Pacifica.
DC: So was this another reason why Maota was being in used to operate the trucks?
Def: O lea lau afioga
That is correct.
DC: Did you speak with Pala Lima about what you had in mind with the trucks?
Def: Ia sa ou faamatala iai le system lea o le a fai
Yes I explained the system to him.
DC: So how was the accounting done?
Def: Na fai lea ia te a’u e faamaumau uma tulaga o tupe maua mai le kamupani. A maea ona aveese uma tulaga o expenses lea
e feagai ma le Maota i taavale ona taumafai laia e faafoi pea tupe o totoe poo tupe faasili, faafoi pea I totonu o le tupe o loo
taua ai le kamupani a le LPA.
So he told me to record all the cash received for the company. And then when we deducted all expensed for Maota Samoa and any cash
left then we can return to the LPA company.
DC: So all the invoices that were issued to Vailima and all the expenses associated with the trucks, where did those documents go?
Def: O mea uma lava na faaaoga, invoice, purchase order ma mea sa fetuunai uma ma le Vailima sa alu uma I le Maota o Samoa.
All invoices and purchase orders were under the Maota o Samoa.
DC: And where did they go after the Maota o Samoa, where did they go from there?
Def: A maua mai loa le siaki ona ave loa lea I tulaga masani, aveese tulaga tau tupe sa faaoga I le vaiaso, o le tupe faasili e
toe ave I totonu o le account lea na fuafua mo le Samoa Nonu Delights LPA.
Once we received the cheque we less all the expenses and remaining balance goes to LPA.
DC: And who did all those calculations?
Def: O la’u aufaigaluega o le Maota o Samoa o Tu’itu’i ma lo’u toalua.
My employees at Maota o Samoa Tuitui and my wife.”
- And on the benefit derived by the company from page 8 of the same transcript:
- “DC: You mentioned earlier on Mr Schmidt that the hiring of the trucks did result in profits that were able to go back to LPA.
have I got that right?
- Def: O lea lau afioga
- That is correct.
- DC: And I don’t expect you to be precised but do you know how much the profit was once the cheques from Vailima were accounted
for and all the expenses deducted?
- Def: O le matou tupe total revenue na maua mai le 2013-2014 e $222,000 ma ona tupu le tupe maua.
- Our total revenue received from Vailima company was $222,000 for 2013-2014.
- DC: And after deducting expenses do you know what the total profit was?
- Def: Sa ou vaai i Financial statement ma o loo faamau ai o le 2013 e $5000 ma ona tupu o le 2014 e $66,000 ma ona tupu ona maua ai
lea o le tuufaatasiga poo se mea o le $70,000 ma ona tupu le polofiti.
- Yes I saw our financial statement in 2013 we got a profit of $5,000 plus and in 2014 $66,000 so its a total amount of more than
$70,000.
- DC: that’s so we’re clear that’s the profit from the truck operation?
- Def: O lea $70,000 ma ona tupu afe le polofiti.
- Yes, seventy plus thousands tala.
- DC: What happened to that $70,000?
- Def: Na deposit uma i totonu o le Samoa Nonu Delights LPA account.
- We deposited that amount to Samoa Nonu Delights the LPA account.
- DC: And these profits that you referred to is that fully accounted for in the financial statement of LPA for 2013 and 2014?
- Def: Ia ou te faamaonia leaga sa ou tilotilo i le financial statement o la ei totonu o faamaumauga.
- Yes I confirm that because I saw the financial statement it was there.”
- The defence produced the LPA financial statements for the years 2013, 2014 and 2015 (Exhibits “D-5” and “D-6”)
in support of this testimony. These substantiate the billing arrangements and figures referred to by the first defendant.
The charges: Overall
- The defendants face various charges in various capacities. They range from forgery under s.194 of the Crimes Act 2013 to using a forged document under s.195 to obtaining by deception under s.172(1) (a) to causing loss by deception under s.172 (1)(d)
to theft under s.161 and theft in a special relationship under s.162. For convenience I will follow the prosecution sequencing of
charges in their Closing Submissions.
- There seems little argument as to the legal ingredients of the charges. Debate was focused instead on the application of the facts
to the charges. Accordingly I address any relevant legal aspects in the context of the individual charges.
The SCB savings account
- Information S1385/17 is against Apulu alone and alleges that on 28th April 2014 at Maluafou he did knowingly use a forged document viz the 2013 LPA Business License with the notation “Trading
as SND” in order to open the companys SCB savings account contrary to s.195(1) of the Crimes Act 2013.
- Section 195(1) provides:
- “195 Using forged documents – (1) A person is liable to imprisonment for a term not exceeding 7 years who, knowing a document to be forged:
- (a) uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
- (b) uses, deals with, or acts upon the document as if it were genuine; or
- (c) causes any other person to use, deal with, or act upon it as if it were genuine.”
- The elements therefore that the prosecution have to prove here are:
- (a) the defendant knew the document was forged; and
- (b) the defendant used dealt with or acted upon it as if it were genuine; or
- (c) caused any other person to use deal with or act upon the document as if it were genuine.
- As noted in paragraph 102 supra the evidence establishes that Apulu opened the SCB savings account. Furthermore that for these purposes
he produced to the Bank a copy of the false 2013 Business License: see the evidence of Fonofili Arisi (transcript 05/07/19 pages
15-17) the SCB Maluafou Branch supervisor who dealt with Apulu and who authorized the opening of the account. She said that initially
Apulu did not have all the required documents but after she explained what was needed he returned the next day with inter alia a
copy of the necessary “LPA Trading as SND” 2013 Business License.
- Counsel for Apulu has argued that in order for a document to be a forgery, the alteration to it must be a “material”
one; and that materiality is a question of fact and not of law. He relies on the old New Zealand Court of Appeal authority of R v Clarke (1946) NZLR 522. There is also the more recent authority of R v Walsh [2006] NZSC 111; [2007] 2 NZLR 109 where the New Zealand Supreme Court touched on the issue.
- I am satisfied that the addition of a trading name to a business license is in fact a material alteration for it introduces into
the document a new perspective and element not previously present. I also note that a “false document” pursuant to s.193
is a document:
- “(a) of which the whole or any material part purports to be made by any person who did not make it; or
- (b) of which the whole or any material part purports to be made by or on behalf of any person who did not authorise its making;
or
- (c) of which the whole or any material part has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal,
or otherwise, and that purports to have been altered by or on behalf of a person who did not alter it or authorise its alteration......”
- Forgery is by definition under s.194 the making of a false document and s.195 makes it an offence to use a forged or false document.
The alleged alteration in my view brings the document well within the definition of a “false/forged document.”
- I also cannot accept counsels argument that the document relied on by the Bank to open the account (relevant to the “using”
aspect of the offence) was in fact the other document they required, viz a letter from MCIL confirming the PSSF (“Private Sector
Support Facility”) grant: - see Trial Bundle ‘A’ Tab 31 page 6. That clearly refers to the ‘PSSF’ component
of the account name as opposed to ‘SND’. The Bank obviously required to be satisfied as to the legitimacy of both matters
before they could open an account in the name of ‘SND PSSF’ as requested.
- Having due regard to all the relevant evidence including the expert evidence from DataTorque by their report dated 24 February 2017
to MOR Chief Executive Officer Avalisa Viali (see Trial Bundle ‘A’ Tab 28) referred to in Ms Vialis evidence transcript
05/07/19 at page 3, the irresistible inference is that Apulu altered the 2013 LPA Business License issued by the Ministry of Revenue
by adding the words “Trading as SND” in order to open the savings account and a copy of the altered document was provided
by him to the SCB. As noted by the prosecution without such a document the account could not be opened. He knew the document was
false as it was not in a form approved or issued by the MOR and he knew the document would be acted upon as if it were the genuine
article. In doing so Apulu committed the offence of using a forged document contrary to s.195 (1) of the Crimes Act 2013. The date of the account opening being 06th November 2013 accords with the uncontested evidence presented and I invoke the courts power of amendment pursuant to s.93 of the
Criminal Procedure Act 2016 to alter the date of the offending but subject to that amendment find Apulu guilty as charged.
The SCB cheque account
- Information S1579/17 is against Laauli and Apulu and alleges the use of the same document on 28th April 2014 at Maluafou to open the companys SCB cheque account knowing the document to be false and causing the SCB to use and deal
with it as genuine contrary to ss.195 (1) (b) and (c) of the Crimes Act 2013.
- There is no doubt from the evidence Apulu also facilitated the opening of the SCB cheque account. Unlike the savings account however
the Bank evidence through their Assistant Manager Loans Ms Siai Maiava and Bank Clerk Ms Naomi Magasiva of the New Accounts Division
was that upon receipt of Apulus written request on 28th April 2014 the Bank through Ms Magasiva after inspection of the Bank records advised Apulu that the 2013 Business License on file
had expired and a replacement was required: refer statement of Ms Magasiva to the Police (produced by consent) at Trial Bundle ‘A’
Tabs 36 and 37. According to her statement within two weeks Apulu returned with a copy of the LPA 2014 Business License. There is
no evidence this license had been tampered with.
- Based on this the SCB cheque account was opened in accordance with the approval by Ms Maiava. The signatories on the account were
as per the application Apulu and Laauli: Trial Bundle ‘A’ Tabs 39 and 40. The Bank records show that the account became
operational on 01 May 2019.
- The difficulty with this evidence is that MCIL records (Trial Bundle ‘A’ Tab 41) show that the 2014 Business License
was only renewed by Apulu on 14th May 2014 some two weeks after the account began operating. What the evidence and the Bank records do not show is who approved the
account on 01 May 2019 in the absence of the 2014 Business License and upon what document if any did they rely. The prosecution
case is the Bank must have relied on the falsified 2013 Business License to open the account as that is all they had and this amounts
to the first and second defendants using of a false document contrary to ss 195(1)(b) and (c).
- The evidence of the Bank officers suggest that the falsified 2013 Business License played no role in the opening of the cheque account.
Ms Maiava’s evidence was she only sighted Apulu’s letter of application dated 28th April 2014 and based on the prior existence of the SCB savings account she approved opening of a cheque account and passed the letter
on to the New Accounts Division to confirm all the necessary documentation was in order and to open the account. She seemed to be
saying her approval was “subject to” this check being carried out. And presumably if there was a problem that the matter
would be referred back to her. At least that is my interpretation of her evidence refer transcript 10/07/19 at pages 19 and 20 where
she said:
- “Pros: So once you received that letter we’re looking at dated 28 April 2014 requesting to set up the cheque account,
what did you do?
- Wit: Just gave it to the new accounts officers.
- Pros: Is this before or after you approved the opening of that new account?
- Wit: Say that again please?
- Pros: After you received this letter did you have to decide whether to approve the opening of the cheque account?
- Wit: True.
- Pros: And did you do that in this case?
- Wit: Yes.
- Pros: And to do that what documentation, if any, did you have to review?
- Wit: Okay, so for example for this account once a new cheque savings account is open what I do is pass the letter down to the new
accounts officer just to ok to open based on them whether all the documents that they received were relevant to open the savings
account.
- Pros: So I just want to understand that a bit more. Who reviews or who makes the decision to authorize the opening of the account?
- Wit: As I said before I have the authority to open any new account, any new cheque accounts. So once I receive the letter from the
Managing Director I have to pass it down to the new accounts officers or the customer services departments so they are the ones that
have to check all the documents and my only job is to pass it on to them that the cheque account is okay to open but they only base
on the documents that they already had.
- Pros: So in this case before you passed this onto the new accounts division to open the account and do all that, what documents did
you look at?
- Wit: I only look at the application letter from the company and then I know that the savings account is already open so that’s
why I pass it down to them to say it’s okay to open a cheque account based on the documents from the savings account.”
And further at page 23 in re-examination where she said:
“Wit: I didn’t mention on the letter that I looked at the original documents. I only said that I okay the cheque account
to open based on relevant documents when the savings account was opened in 2013. I only look at all other documents when the clients
requested for an overdraft, that’s where we looked at, that’s how we – you know – that’s when I looked
at but for opening a cheque account it’s the customer services, they are the ones that they look at whether its relevant to
open or not. Even for when I said okay to open a cheque account but it’s their decision to have a look whether the documents
are relevant because they can say no, you have to provide this and this and this. Even though I said okay but it’s them that
have to look at all the documents required whether it’s okay to open.
HH: And after you got the letter and referred it on did anything come back to your or no?
Wit: No.”
- The witness was adamant the only document she sighted was the application letter and she never saw and therefore never relied upon
the falsified 2013 Business License. The issue of supporting documentation was the responsibility of the New Accounts Division.
- In this regard the evidence of the absent Ms Magasiva who has since left for overseas becomes critical as she was the one charged
with ensuring all the necessary paperwork was in order and opening the account. That she carried out this task is evident from her
Police statement and the fact that she rejected the 2013 Business License and advised Apulu a current business license was required.
Subsequent to and contrary to that advice someone at SCB appears to have bypassed this pre-requisite and on 01st May 2014 or possibly 05th May 2014 in the absence of the 2014 Business License approved the account. Whom that person was is not clear as the various notations
on the bottom of the account application form including the crossed out words “Hold for.....business license account”
(Tab 40) were not put to the witnesses or otherwise explained. It is therefore not possible to say if and to what extent the approver
of the account on 01 or 05 May relied upon the falsified Business License or whether he/she relied upon some other information, document
or documents.
- In the absence of such evidence I am not satisfied beyond reasonable doubt that the SCB necessarily relied upon the falsified 2013
Business License for the purposes of opening the cheque account. All that can be said with a reasonable degree of certainty is that
the original “approver” of the account Ms Maiava did not sight or seem to rely on the falsified Business License and
that the eventual approver of the account and the basis of such approval remains a mystery.
- Even if I were prepared to draw the inferences sought by the prosecution they would only extend at most as far as Apulu as there
is no evidence to suggest the first defendant Laauli was aware that a false document was being used by Apulu in 2014 to open the
SCB cheque account.
The 11 October 2013 Board Resolution
- Information S1580/17 is against Laauli Apulu and Martin and alleges that the company Resolution dated 11th October 2013 (refer paragraph 99 above) is a forgery, a false document concocted and generated by those defendants sometime between
11 October 2013 and 19 April 2017 for the purpose of justifying the illegal activities of the defendants in relation to the trading
name SND and the hiring of the Vailima trucks under the umbrella of Maota-o-Samoa all contrary to s.194 of the Crimes Act 2013.
- S.194 provides:
- “194 Forgery – (1) A person is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of
using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
- (2) A person is liable to imprisonment for a term not exceeding 10 years who makes a false document, knowing it to be false, with
the intent that it in any way be used or acted upon, whether in Samoa or another country, as genuine.
- (3) Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent
described in subsection (2).
- (4) Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding
or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.”
- R v Walsh cited earlier usefully discusses the offence and the practical difficulties sometimes encountered in its application. From paragraph
8 of the judgment at [2007] 2 NZLR 114:
- “It has been said that a document will be a forgery only if it does more than contain false information. The Court of Appeal
has often approved and applied the following statement in Kenny’s Outlines of the Criminal Law:
- “A writing is not a forgery when it merely contains statements which are false, but only when it falsely purports to be itself
that which it is not. The simplest and most effective phrase by which to express this rule is to state that for the purposes of
a law of forgery the writing must tell a lie about itself.”
- This statement is an oversimplification. As William Young P pointed out in the Court of Appeal judgement in the present case, the
lie must be of one or more of the types specified in the s.193 definition, which is concerned with falsity of authorship, not falsity
of content. With that significant caveat borne in mind, the expression may assist in an understanding of the distinction between
false representation, or fraudulent use of documents, and forgery.”
- This reflects the same principles applied by our own Court of Appeal in Moors v Police [1964] WSLR 1 when it held:
- “Mr Scott for appellant submitted that, before the document, in this case the certificate, could be a false document, the addition
of appellant’s signature must have had the effect of converting the certificate into something which purported to be different
from what it actually was.
- We think that this submission is sound. The certificate contained untrue statements; but it was not something which purported to
be different from what it actually was. The Attorney-General stressed the fact that there was a duty on appellant in his official
position to give a correct certificate. That might be highly relevant on some other charge against appellant; but it is not relevant
to define a “false document” for the purposes of section 107.
- There is ample authority for this view. In Russell on Crime 10th Edition p.1453 the learned editor says – “Secondly, a writing is only forged when it is rendered ‘false’,
that is, when it tells a lie about itself”; and again at p.1461, referring to some old cases,
- “This group of cases suggests that the Courts had not yet clearly established the new recognized rule that a document cannot
be said to be forged unless it has been caused to appear to be different from what it really is”.
- In Kenny’s Outlines of Criminal Law 17th Edition p.354 paragraph 387, the learned editor says, on the authority of R v Ritson (1869) 1 C.C.R.200,
- “A writing is not a forgery when it merely contains statements which are false, but only when it falsely purports to be itself
that which it is not”.
- In Ex parte Charles Windsor (1865) Cox C.C.Cas. 118-123, 124 Blackburn J. said –
- “Forgery is the false making of an instrument purporting to be that which it is not; it is not the making of an instrument
which purports to be what it really is but which contains false statements. Telling a lie does not become a forgery because it is
reduced into writing”.
- The Attorney-General referred to The King v Clark [1946] NZLR 522 but, in our opinion, this case affords little assistance. It is to be noted, however, that Callan J. at the foot of p.543 referred
to the proposition established at common law:
- “In all forgeries the instrument supposed to be forged must be a false instrument in itself....”
- This accords with the principles we have already stated.”
- Although an old authority Moors remains good law and as noted by my brother Vaai, J in Police v Siaosi [2012] WSSC 40:
- “Counsel for the defendant in her sentencing submissions reminded the court of the decision of the Samoa Court of Appeal in
Hors v Police (1960 – 1969) WSLR 103 which sheessed in her finalfinal submissions on the issue of forgery. With respect to counsel the faf
that case are totally different and bears no resemble to e to the fake passbooks and withdrawal slips created by this defendant to
facilitate the theft of monies from SPBD. H.J.Moors v Polii>concerned a Treasury Department voucher which contained a certificate with the words:
- “I certhat to the best of my knowlknowledge and belief the foregoing account is true and correct in every particular, that
the charge is reasonable and that the goods have been received.”
- Mr. Moors on behalf of the Marine Department ordered an air conditioner from O.F. Nelson. He had no authority although he may have
thought he had one, to purchase an air conditioner. O.F. Nelson submitted the voucher to pay for the air conditioner and Mr. Moors
knew the Marine Department had no vote to pay for the account. To have the bill paid Mr. Moors requisitioned some chain for the same
value as the air conditioner, obtained a voucher and signed the certificate to certify payment. The court held the signature of Mr
Moors to the certificate did not convert the voucher into something which purported to be different from what it actually was. That
is, although the certificate contained untrue statements, it was not something which purported to be different from what it actually
was.
- This is not the first time H.J.Moors v Poli>> has been cited in forcases.ases.”
- Some recent applications can be found in Police v Lavea017] WSSC 146 and by my sisy sister Tuatagaloa, J in Police v Tevaga [2016] WSSC 192. In the latter case the present complainant was the defendant and the defendants were the complainants. Just another step in what
has become a long drawn-out saga of litigation involving the same adversaries.
- The prosecution argue that no meeting took place on 10 October 2013 and no such resolutions were passed by the Board of Directors.
The complainant and his son testified they were never present at any such meeting and no copy of this document was provided to them
or anyone else prior to April 2017 when it surfaced as part of the Police investigation.
- However it is significant that the complainant also said (paragraphs 95 and 96 supra) that when he found out from Wilex about the
use of the SND name he called a meeting of the company which was held at the LPA office. This was in October 2013. From the transcript
of 26/06/19 page 22:
- Pros so when you found out that the name Samoa Nonu Delights was been used, did you speak to anybody about it?
- Wit ia, sa ou valaaua loa le fono ua o’u le manatua ia le aso ao lea oute manatua o le lua poo le tolu oka Wilex faatoa ou
manatu loa lea e lelei le valaau o le fono ona o lea ua ou vaai ua ese le igoa lea ua faaaoga.
- Yes, I called a meeting but I can’t recall the day but I still recall it was the second or the third order of Wilex. Then
I thought I must call a meeting to discuss the issue of the change of company name
- Pros: Can you remember where it was you called the meeting?
- Wit: sa fai ile ofisa lea ale LPA
- It was held at the office of the LPA
- Pros: at the LPA office, but when?
- Wit: masalo poo se vai mea o Oketopa se taimi faapena aua o lea e fuafua i oka ia sa sapalai
- I think it was around October according to the orders supplied
- Pros: so it’s October 2013?
- Wit: ia, ile 2013
- Yes, in 2013
- Pros: you told us that you called the meeting?
- Wit o lea lava
- Yes
- Pros: and who attended that meeting?
- Wit: sa iai Lance ma Martin ae ua galo ia te au pe sa iai Laauli, but sure o Lance ma Martin sa matou i ai.
- Lance, Martin were there but I can’t recall whether Laauli was there
- Pros: so you do remember it was you, Lance and Martin?
- Wit: o lea lava
- Yes
- Pros: but you don’t recall whether Laauli was there?
- Wit: ia, oute le’o manatua
- Yes, I can’t remember
- Pros: what was the purpose of you calling the meeting, why did you want the meeting?
- Wit: o le mafuaaga se’i ou fesiligia, po’o le a le mea ua faatau ai sua o le nonu i lalo o lea kamupani e le’o
se igoa lea o le kamupani, trading o le LPA
- The reason why was because I wanted to know why the nonu juice was sold under a different company name instead of LPA company name
- Pros: and did you ask them at the meeting why they had changed the name of the company?
- Wit: na ou fesili iai ile fonotaga lena, aisea ua faaaoga ai le igoa lea o le Samoa Nonu Delights e faatau ai sua o le nonu ae le’o
le igoa lea o le kamupani
- I questioned them during the meeting as to why the name Samoa Nonu Delights was been used for trading of the nonu juice instead
of the correct name of the company
- Pros: did they say anything to you when you asked them about it?
- Wit: na fai mai ea pe a faaaoga le igoa lea e faatau ai, ou fai atu iai e leai, aua le faaigoa ile igoa lea, e taofi
- Their respond was that, why can’t they use this name for trading/selling, and I said no, I didn’t want to use this name
- Pros: so you told them they couldn’t use that name?
- Wit: ia sa ou taofia aua nei toe faaaoga leaga e le’o iai se igoa faapea nai lalo o le loan a le NPF
- Yes, I stopped them from using that name as it was not recorded under the NPF loan
- Pros: and when you told them to stop using that name because it wasn’t the name of the company did Martin or Lance respond
to that at all?
- Wit: sa leai se tala na fai mai
- They didn’t say anything
- Pros: do you recall how long that meeting lasted for?
- Wit: o le meeting na fai lava ile taeao masalo poo se mea o le lua itula sa matou feiloai ai
- The meeting was held in the morning I think it was about two hours, we met there.
- Pros after that meeting, were you aware whether that name Samoa Nonu Delights was used again?
- Wit: ia, faatoa ou toe iloa foi lea mulimuli, o lea foi o lo’o faaaoga pea le igoa lea, Samoa Nonu Delights
- Yes, I found out later that they were still using the name Samoa Nonu Delights
- Pros: how much later on, did you find this up?
- Wit: ole oka lona tolu sa toe faaaoga ai, o le oka lava lea a Eddie Wilson
- They used the same name for the third order, and it was Eddie Wilson’s order.”
- Furthermore he is sure of the attendance of the two company directors Apulu and Martin at this meeting. They of course are the signatories
to the Resolution in question.
- While I accept the document does “conveniently” address the trading name and other issues such as the disputed shareholding
the essential problem for the prosecution is they are forced to rely on the evidence of the complainant and Danny. Witnesses whose
credibility has been found wanting in relation to other crucial aspects of the present proceedings. Furthermore the complainants
own evidence referred to above confirms that in October 2013 the issue of the trading name was very much a live and contentious one.
- There is the added difficulty that on the facts as I have found them to be, Danny resigned as a director on 31 May 2013 and there
was no valid appointment of the complainant in his place. Leaving Martin and Apulu as the only directors. As such there would no
reason for either the complainant or his son to participate in any directors meetings.
- The first defendants evidence of problems with the complainant and that he sought the advice of his unfortunately now deceased accountant
is plausible and finds support in the prosecution case. For example in the complainants own evidence that he had a great mistrust
of Apulu leading him to inter alia approach Wilex and subsequently other LPA clients checking on orders; in MVP’s evidence
denied by the complainant that she tried to mediate the dispute between Laauli and the complainant; in the letters written on the
complainants instructions by his lawyers; and so forth.
- The Resolution can reasonably be taken to represent the steps taken by Laauli and the company directors who together held the majority
shareholding to resolve the impasse created by the complainants behaviour and to generate income for the struggling company. It
could also have been a response to the complainant forbidding the companys use of the SND name. The prosecution have not proven
beyond reasonable doubt the document was anything more than this or that it was a forgery pursuant to s.194.
Trading with customers
- There follows as part of the prosecution case some fifty (50) charges relating to dealings between the defendants and the various
clients of LPA/SND. For every payment made it is alleged that Laauli and Apulu by using the name SND obtained funds by deception
as this was not the authorised or registered trading name of the company and they therefore jointly and individually committed the
offence of obtaining by deception contrary to s.172(1)(a) of the Crimes Act 2013. In respect of each such transaction they are also jointly and individually charged with causing loss to LPA by use of the said
deception in breach of s.172(1)(d). There is a third charge for each payment alleging that having received such monies they failed
to account therefor to all the directors of the company in particular the complainant and thereby committed the crime of theft by
a person in a special relationship contrary to s.162. The charges that involve the fourth and fifth defendants reflect the role
that they allegedly played in the collection banking and distribution of these payments.
- The foundation of these charges is the fact that SND was not a validly authorised trading name of LPA and therein lay the deceit
being perpetrated by the defendants. To the extent that customers were deceived into believing they were dealing with a separate
entity known as ‘SND’ and not LPA. The evidence of the various customers was indeed that they thought this was the name
of the company they were dealing with. But also that the name was not significant to them only the product: see for example Eddie
Wilson transcript 08/07/19 pages 30 and 31; Gary Vui transcript 09/07/19 pages 8 and 9; Jessie Shi transcript 09/07/19 at page 14.
- The prosecution contend that funds were deliberately diverted away from LPA wherein the complainant had some measure of control as
a director 50% shareholder and account signatory and into the SCB accounts of SND which were under the exclusive purview and control
of the defendants. This caused loss to LPA and was the fraud perpetuated by the defendants in particular the first and second defendants.
- Having heard and considered all the evidence including the documentary evidence and having observed the various parties and witnesses
giving testimony I have to come to the conclusion that the defendants version of events is to be preferred. It accords with other
independent evidence such as for example that of Eddie Wilson and the other customers of the company as to the complainants incessant
questioning of various orders, the evidence of MVP the complainants lawyer in June 2013 contradicting numerous critical portions
of the complainants evidence, the letters written by the complainants other legal advisors detailing his status in the company, the
financial records of the company as compiled by the company accountancy firm, et al. It does not suffer from the inconsistencies
and anomalies of the testimony of the complainant and his son and as a whole is a plausible version of events. It explains more
satisfactorily many things and more particularly why the Wilex payments were initially channeled into the LPA account but subsequently
post the 03rd April 2014 NPF meeting where it became abundantly clear SND was only a trading name, into two other specially created accounts in
order to lessen the complainants interference with the financial operations of the company. Clearly the complainants priority was
clearance of the NPF loan and release of his security, I do not doubt that. But his method of trying to attain this and the deterioration
of relationships within the company resulted in a chaotic state of affairs that the first second and third defendants had to manage
and still keep the company afloat.
- In assessing these matters I give considerable weight to the MOR evidence (see paragraph 102 supra) that according to their records
the 2014 and 2015 Business License Renewal Forms listed ‘SND’ as the companys trading name. The explanation given by
the Ministry Officer was this was not sufficient to generate the addition of the trading name to the Business License as a formal
letter or email instruction from the company was required. I found this unconvincing and nothing was tendered to show where in the
law or the MOR Regulations is it required there be such an accompanying formal letter or email. The fact that the Business Licenses
still described the nonu companys business as “architectural and engineering activities” is illustrative of a very casual
attitude by the MOR to such important matters. It is more likely the truth that insertion of the trading name was simply overlooked.
What this evidence however demonstrates is there was a clear understanding by the company that SND was as a matter of fact the LPA
trading name for the reasons outlined by the first defendant to the complainant and this was consistent with its business practices.
- It is trite to state that in all criminal proceedings the onus of proving a charge is on the prosecution who bring it. And the standard
required by law is proof beyond reasonable doubt. There is no onus on a defendant to prove anything for he has a fundamental right
under Part II article 9(3) of the Constitution of Samoa to be “presumed innocent until proved guilty according to law.”
- In this matter the prosecution have not proven beyond reasonable doubt that the defendants or any of them by their use of the trading
name SND did thereby deceitfully obtain funds from LPA customers to the detriment and loss of LPA. Neither were they required to
account to the complainant who was a minority shareholder of LPA and who has not been proven to have been validly appointed a director
of the company.
- The evidence tends to indicate that all funds from sales were in fact properly accounted for to LPA: see the testimony of PL’s
daughter Ala Lima of Pala Lima Accounting Firm transcript 19 and 20/07/19 and Exhibit “D-15” for the defence which comprises
the LPA financial statements for the years 2013, 2014 and 2015 none of which were seriously challenged by the prosecution. It is
also not possible to reconcile the roughly $2.6m in 2015 the defendants are charged with misappropriating and diverting and the approximate
$2.9m in sales from essentially the same customers for the year, there being no suggestion by the prosecution these sums were mutually
exclusive. It is somewhat incredulous that such extraordinarily large sums of money were paid and retained by the company in cash
but there is no evidence such a practice was illegitimate or unlawful for present purposes.
- There was also evidence that payments for the NPF loan were coming back on track towards the end of 2015 before matters were derailed
by the commencement of legal proceedings by the complainant: see the evidence of Sine Lafaialii Manager Legal for the NPF who testified
that some $1.2m was paid towards the loan over the 2013-2015 period (transcript 08/07/19). Again further evidence that the SND income
was being properly applied towards LPA commitments contrary to the prosecution assertions.
Theft of $220,000: the Nonu farm purchase
- Separate from the above charges but mixed in amongst them is Information S1581/17 against Laauli Apulu and Heather. It alleges that in the month of July 2015 these defendants jointly and individually stole from
LPA cash cheques to the value of $220,000 and did thereby commit the crime of theft contrary to ss 161 and 165 of the Crimes Act 2013.
- S.165 deals with the penalty whereas s.161 with the ingredients of the offence:
- “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.
-
- 165. Punishment of theft – A person who is convicted of theft is liable as follows:
- (a) in the case of a theft by person in special relationship under section 162, to imprisonment for a term not exceeding 10 years;
or
- (b) if the value of the property stolen exceeds $1,000, to imprisonment for a term not exceeding 7 years; or
- (c) if the value of the property stolen exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 2 years;
or
- (d) if the value of the property stolen does not exceed $500, to imprisonment for a term not exceeding 1 year; or
- (e) if the property stolen is property stolen by a clerk or servant which is owned by his or her employer or is in the possession
of his or her employer, to imprisonment for a term not exceeding 10 years; or
- (f) if the property stolen is property in the possession of the offender as a clerk or servant, or as an officer or employee of
the Government of Samoa or of any local authority or public body, or as a constable, to imprisonment for a term not exceeding 10
years.”
- The prosecution case here relates to two cheques drawn on the SCB cheque account one dated 21 July 2015 for $20,000 and the other
dated 22 July 2015 for $200,000. Both were signed by the first and second defendants cashed by Heather and together with an $80,000
cash cheque from Bargain Wholesale Ltd was deposited by Heather on 22 July 2015 to the loan account of Maota-o-Samoa: see Trial Bundle
‘B’ Tab 25. The prosecution say that the cheques were the property of LPA and in the absence of an authorising Board
Resolution were dishonestly appropriated by the defendants acting individually and collectively to the Maota-o-Samoa account belonging
to and under the control of the first defendant.
- The defendants response is that this was the first of three monthly payments for an $800,000 purchase by LPA of a $6.8m Nonu Farm
belonging to the first defendants mothers estate. To establish the legitimacy of this purchase the defence produced the relevant
Agreement for Sale and Purchase between the Estate and LPA dated 01st July 2015 (providing for a first installment payment of $220,000 on 22 July 2015), an Assignment of the registered Lease from the
Estate to LPA as the farm is located on a 27-acre leasehold from Government at Aleisa plus a current valuation of the Leasehold and
nonu crop thereon at $6,895,000. They also pointed to inclusion of the purchase in the Cash Receipts and Payments Schedule for 2015
appended as part of the 2015 Financial Statements Exhibit ‘D-15’ Tab 1 pages 10 and 10A.
- The defence documents establish that while there is an element of insider trading on the part of the first defendant in the Nonu
Farm purchase there is no doubting the assets value to LPA and the apparent bona fides of the transaction. There is certainly enough
present to cast more than a reasonable doubt on the allegation of theft or a dishonest taking on the part of the defendants to the
detriment of the company. This charge cannot be sustained.
The Vailima charges
- The final batch of charges relate to the use and hirage of the company trucks by Vailima Breweries. There are forty-eight (48) charges
in total against the first defendant alleging that he had possession of the LPA trucks in circumstances that required him to deal
with and account to all directors of LPA in accordance with their requirements and his failure to do amounted to theft by a person
in a special relationship in breach of ss162(a) and (b) of the Crimes Act 2013.
- Again these charges are premised on the fact that one of the directors of the LPA Board was the complainant to whom no account was
given concerning dealings with the trucks or the hire proceeds. All the complainant knew was that hire monies were not being paid
into the LPA account to which he was principal signatory but instead into a Maota-o-Samoa account administered by the first defendant.
There is no dispute all hire payments were indeed deposited to the Maota-o-Samoa account and that Maota-o-Samoa invoiced Vailima
for the hire. Further that on a number of occasions in 2014 Vailima cheques were endorsed over to Petroleum Products Supplies Ltd
(“PPSL”) to pay for petroleum supplies.
- As previously noted the court is not satisfied beyond reasonable doubt on the evidence presented in this trial that the complainant
was ever validly appointed to replace his son as a director of LPA. As such no obligation accrues on the first defendant or any
of them to account to the complainant who at most was only a shareholder. It can also be safely inferred from the evidence that
given the close relationship between the first defendant and the second and third that the latter two as directors were well aware
and approved of the Vailima hire arrangement. This was expressly done according to Laauli as outlined in his testimony at paragraph
106 supra. This also accords with the Resolution of 11 October 2013 which relevantly provides:
- “Accept Laauli Polataivao Schmidt as consultant and advisor and in the direct decision making and operations of the company.
- Accept the use of trucks for the Vailima Brewers Carting deal to generate some revenue for the company given difficulties and irregularity
of orders as its main source of income. Under the management of Maota o Samoa, as they are funding all of the operation cost i.e.,
petrol, drivers’ salaries, truck refurbishment, maintenance etc.
- All profits from Vailima Cheques will be deposited into the SAMOA NONU DELIGHTS Account (after all expenses have been paid to Maota
o Samoa).”
- This evidence establishes the first defendant was authorised to hire out the trucks in accordance with the arrangements reached with
Vailima. An arrangement which according to the accounts of the company ultimately benefited LPA to the tune of some $70,000. None
of these charges have been made out.
No case submission
- Counsel will recall that at the close of the prosecution case a no case to answer submission was made by the defendants in respect
of a number of charges. After considering the matter I ruled there was a case to answer following withdrawal by the prosecution
of some of the charges. This was based on application of the normal legal principle that applies in such situations viz that the
question is whether the prosecution case taken at its highest can constitute proof beyond reasonable doubt of the relevant charges.
This is the locus classicus expounded in R v Galbraith (1981) 73 Cr App R 124 as applied in many cases in this jurisdiction. In Attorney General v Kolio [2008] WSSC 7 the Court of Appeal put the test thus:
Conclusions
(i) Information S1385/17 of using a forged document against the second defendant – guilty
(ii) Information S1579/17 of using a forged document against the first and second defendants – not guilty
(iii) Information S1580/17 of forgery against the first second and third defendants – not proven beyond reasonable doubt,
not guilty
(iv) Fifty (50) charges in relation to illegal trading between the defendants and customers of LPA – not proven beyond reasonable
doubt, not guilty.
(v) Information S1581/17 of theft against the first second and third defendants – not proven beyond reasonable doubt, not
guilty.
(vi) Forty-eight (48) charges in relation to unauthorised hire of trucks to Vailima Breweries – not proven beyond reasonable
doubt, not guilty.
Postscripts
It is as in all criminal cases always tempting for defendants (with the possible exception of Mr Polu who has been found guilty of
one charge) to regard “not guilty” findings as a complete and utter vindication of their actions. I would caution the
defendants particularly the outspoken first defendant against this. As noted above, in every criminal trial the prosecution bears
as it must the burden of proving beyond reasonable doubt that a crime has been committed. That is our law. In this case there was
evidence of criminal activity but the correctly rigorous standard of proof required by the law could not be attained. It is an issue
of evidence and credibility thereof and whether it was sufficient to meet these tests. The court has found with one exception that
they did not. Nothing more than that should be made of it.
I wish to also take this opportunity to formally record my thanks to all counsels involved in these proceedings. This was an emotionally
charged trial with dominant personalities on both sides conducted in a very public and sometimes hostile atmosphere. Notwithstanding
this counsels brought to their respective roles courtesy civility and a standard of behaviour befitting their role as advocates and
officers of the law. They behaved in all manner appropriately and professionally and were of great assistance to the court in particular
with the voluminous documentary evidence that this proceeding entailed. For that I congratulate and thank all counsels and in particular
for the comprehensive briefs filed on behalf of their respective clients. I would expect no less from members both temporary and
permanent of the Samoa Law Society.
JUSTICE NELSON
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