Court delivers decision in L.T.A. A.C.E.O.s hearing

The Supreme Court has delivered its decision for charges against two Land Transport Authority (L.T.A.) Assistant Chief Executive Officers who were accused of altering certain vehicle years on an electronic system.  

In her decision, Supreme Court Judge, Justice Mata Keli Tuatagaloa dismissed all the charges in relation to forgery against the L.T.A. Legal Division Manager, Anoanoa’i Pepe Lafai.

For the L.T.A. A.C.E.O. for Savai’i Operation, Mata’afa Sepelini, all four charges of forgery, four charges of using forged document, two charges of altering with intent to deceive and four charges of forgery of electronic data were dismissed. Over the next couple of days, we are printing the decision in full starting today: 

 

DECISION OF TUATAGALOA 

 [1] The defendant, Mata’afa Sepelini, is charged with forgery (x4)1; using forged documents (x4)2; altering, concealing, destroying or reproducing documents with intent to deceive (x4) using altered or reproduced documents with intent to deceive (x4)4; damaging or interfering with electronic data (x4)5; and forgery of electronic data (4)6. The said offendings are alleged to have taken place on 5 December 2017, 19 February 2018 and 5 April 2018.

 

[2] The defendant, Anoanoa’i Pepe Lafai, is charged with one count each for forgery; using a forged document; altering, concealing, destroying or reproducing documents with intent to deceive; using altered or reproduced documents with intent to deceive; damaging or interfering with electronic data and forgery of electronic data. The said offendings are alleged to have taken place on 13 March 2018.

 

[3] The charges against both defendants are in relation to changing the vehicle year for certain vehicles on the Land Transport Authority computer system called “RTAS” – Road Transport Administration System.

 

Brief Background:

[4] Both defendants were employees of the Land Transport Authority (‘LTA’). The defendant, Mata’afa Sepelini as Assistant CEO looking after LTA in Savaii, while the defendant, Anoanoa’i Pepe Lafai was Manager of the Legal Division.

 

[5] LTA is responsible for the maintenance of all public roads, registration of commercial vehicles (taxis/buses) and private vehicles, and the issuance of driver’s licenses.

 

[6] The policy that is at the crux of these charges is the Cabinet Directive of January 2018 where all commercial vehicles more than 15 years old can no longer be re-registered as commercial vehicles (including taxis and buses) but instead, only as private vehicles.

 

[7] This means that every year there will always be commercial vehicles that will be outside or older than the allowed 15 years old and therefore cannot be re-registered as public commercial vehicles.

 

[8] Prior to January 2018, the year made for vehicles to qualify to be registered as public commercial vehicles was unlimited, meaning there was no 15 year old limitation.

 

[9] The year is no assurance that a vehicle will automatically be re-registered as the assessment of whether the vehicle is roadworthy is another important factor to be taken into account.

 

[10] The defendants have different access privileges to the LTA RTAS system. The defendant, Mata’afa Sepelini is alleged to have full access to RTAS Savaii and certain IT user privileges on RTAS Upolu that allows him to amend or edit information pertaining to vehicle details.

 

[11] The defendant, Anoanoa’i Pepe only has the privilege to ‘change or transfer ownership’ of vehicles. The documentation needed to make such changes is consent from the previous owner, details and ID of new owner.7

 

[12] I will first give a brief of the processes8 that are involved or are relevant to the charges before discussing the evidence and the law in relation to the charges against each defendant.

 

Road Transport Administration System (RTAS):

[13] The LTA’s computer system is called RTAS and, there is the RTAS system for Upolu and Savaii. All employees have access to the system via a username and password and with certain privileges. From these usernames, the RTAS system generates an ID number for that particular user.9 The privileges are as follows: 10

• ‘TO user’: view  only 

• IT user: allows the entering and changing of vehicle details and information

• Cashier user: used by Finance division to enter and receipt transactions

• Administrative user: full access to all privileges

 

[14] There is a certain privilege for the ‘change or transfers of ownership’ assigned to the

Manager of the Legal Division (Anoanoa’i Pepe).11

 

[15] The only employees who have full access to RTAS Savaii are the CEO of LTA, the IT Manager and the LTA Savaii Manager (Mata’afa Sepelini).

 

[16] In relation to the RTAS Upolu, the only employees with full access are the CEO and IT Manager.

 

[17] Certain officers have IT privileges allowing them to amend and edit information pertaining to vehicle details – RUM Manager and Principal, IT Principal and Senior and LTA Savaii Manager.

 

The Process of Registration of Vehicles:

[18] The Road Use Management Division (‘R.U.M’) in both Upolu and Savaii physically check and assess each vehicle as to its roadworthiness. In respect of new vehicles, R.U.M record or load all the information pertaining to the vehicle on to the RTAS system – the type of vehicle, model, colour, year of the vehicle as stated on the documentation, the VIN number, engine capacity and details of the owner the vehicle is to be registered to. When R.U.M approves or finds that a vehicle is roadworthy, the paperwork (PSV12) is then referred to the Finance Division for payment of registration and issuance of sticker.13 Public commercial vehicles are registered twice a year or their warrants of fitness are renewed twice a year in March and September.14

 

[19] Changes made to vehicle details already registered on the system are carried out by either RUM or IT officers as a matter of practice on a daily basis.15 These changes are made when there is an error in the year registered for a certain vehicle when first entered by RUM to changes in colour or most commonly a missing VIN number and/or year of the vehicle.

 

[20] Requests made to IT regarding changing any detail (including the year) of a vehicle is very common. These changes are relayed by RUM personnel who peruse the documentation of the vehicles such as the Export Certificate and carry out the physical inspection of the vehicles. It is questionable why these requests need to be made because the RUM Manager and Principal Officer have privileges in their IT access to make the changes themselves.

 

[21] As the changes requested are not in writing or documented, the IT officers put comment(s) in the ‘Comment’ box in the window showing the vehicle details. The comments records any changes made, the person who requested, the date and time that the changes were made.16

 

The Law:

[22] Part 18 of the Crimes Act 2013 deals specifically with crime involving electronic systems. ‘Electronic system’ is defined to include a computer.17 However, the definition of ‘document’ under section 159 would include computer system or program through the words ‘any device used for recording or storing or processing information’.18 A ‘device’ referred to under the definition of a ‘document’ is under the definition of ‘device’ in Part 18 includes a computer.

(a)[23]

Forgery

The prosecution must prove beyond reasonable doubt the following elements:

(i) The defendant made the false document;

(ii) The defendant knew the document to be false; and

(iii) The defendant intended that the document be used or acted upon as if it were genuine.

[24] attach only to the making of something which satisfies both the requirement of a ‘document’ (defined in section 159)20 and of a ‘false document’ (defined in section 193).21

According to the learned authors of Adams on Criminal Law, liability for forgery will

 

(b) Using a forged document

[25] The prosecution must prove beyond reasonable doubt the following elements:

(i) The defendant knew that the document was false; forged at the relevant time of ‘use’; and

(ii) The defendant used or dealt with or acted upon the false document as if it were genuine.

 

[26] Section 194 is concerned with the ‘making’ of the document while section 195 is about

the ‘use’ of the document. In regards to section 196, it is the defendant’s knowledge that the document is false or forged at the time of the relevant ‘use’.

 

[27] ‘False document’ is for purposes of sections 194 and 195.

(c) Altering document with intent to deceive

 

[28] The prosecution must prove beyond reasonable doubt that the:

(i) The defendant altered the document; and

(ii) The defendant intended to obtain by deception any property, privilege, services,

pecuniary advantage, benefit or valuable consideration.

(d) Using altered documents with intent to deceive

[29] The prosecution must prove beyond reasonable doubt that:

(i) The defendant knew the document was altered; and

(ii) The defendant used the document to obtain by deception any property, privilege,

service, pecuniary advantage, benefit or valuable consideration.

 

[30] ‘Document’ is defined (and I refer only to the definitions relevant to this case) – to

mean:

(a) Any paper or other material used for writing or printing...; or ......................................

(d)any material by means of which information is supplied, whether directly or by means of any equipment, to any device used for recording or storing or processing information; or

(e) any material derived, whether directly or by means of any equipment, from information recorded or stored or processed by any device used for recording or storing or processing information.

(e) Damaging or interfering with electronic data25

 

[31] The prosecution must prove beyond reasonable doubt that:

(i) The defendant altered the electronic data;

(ii) The altering of the electronic data was intentional or reckless; and

(iii) Without authorization.

(f) Forgery of electronic data26

 

[32] The prosecution must prove beyond reasonable doubt that: 

(i) The defendant altered the electronic data;

(ii) The alteration was intentional and without authorization;

(iii) The defendant altering of electronic data resulted in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic.

 

[33] I will first deal with the offences against the defendant, Anoanoa’i Pepe before the offences against the defendant, Mata’afa Sepelini.

Charges against Anoanoa’i Pepe:

[34] The defendant was charged with seven (7) charges of:

(i) theft as a servant;

(ii) forgery;

(iii) using forged document;

(iv) altering with intent to deceive;

(v) using altered document with intent to deceive;

(vi) damaging or interfering with electronic data; and

(vii) forgery of electronic data.

[35] Apart from the theft as a servant charge that was dismissed, the offending relating to the remaining 6 charges all took place on 13 March 2018.

 

(i) Theft as a servant

[36] On the day of hearing, prosecution advised the Court and Counsel for the defendant that they will be making an application to have this charge further adjourned as their two key witnesses have travelled overseas. In other words, the prosecution sought to adjourn and separate the hearing of the charge of theft of servant to which Counsel for the defendant strongly objected.

 

[37] The application for a further adjournment was denied by the Court.

 

[38] Subsequent to denying the application to further adjourn the charge of theft as a servant,

prosecution also made an application pursuant to section 173 of Criminal Procedure Act 2016 to have the issue in relation to this particular charge reserved as a question of law to the Court of Appeal. This was also denied. The written decision with reasons for both applications is separate from the substantive decision.

 

[39] Counsel for the defendants at the conclusion of the prosecution evidence made the application for ‘no case to answer’ on behalf of both defendants. 

 

[40] The theft as a servant charge was dismissed by the Court as a result of the ‘no case to answer’ application and finds that there is a case to answer in relation to the rest of the charges against both defendants.

 

(ii) Forgery

[41] The defendant, Anoanoa’i Pepe is charged as follows:28

‘...that at Vaitele on the 13th day of March 2018, the above named defendant of Vaitele, makes a false document namely, altering the year made of vehicle registration number T-337 from year 2003 to 2006, knowing it to be false with intent that it in any way be used or acted upon, as genuine.’

 

[42] The prosecution must prove beyond reasonable that the defendant made the false

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document; knew the document to be false; and intended that the document be used or acted upon as if it were genuine.

 

[43] The defendant Anoanoa’i was the Legal Manager whose privilege or access on RTAS (LTA computer system) is limited to only changing ownership or transference of ownership on the system.29

 

[44] The charge relates to changing the ‘year’ of the taxi vehicle T-337. The change was not made by the defendant but by Senior IT officer, Semo Siaosi.30 The evidence of Semo Siaosi is that Anoanoa’i Pepe on 13 March 2018 called him and instructed him to change the year of the vehicle from 2003 to 2006 on the RTAS system. Semo told his colleague, Juliana Ah Yek who was present of the phone call from the defendant. Juliana said that she overheard Semo talking on the phone mentioning the change of year of a vehicle but did not know who he was talking to.

 

[45] Semo also said that he made comments in the ‘Comment’ box on the system noting the change made, date and time, name of the person requesting the change and then added his name and that of Juliana Ah Yek. The IT Manager, Tausala Kolose said that Semo informed her the following day.

 

[46] The prosecution tendered documents (EXH P7, P29 & P30) which shows that the vehicle T-337 was first registered on 14 May 2015 (EXH P7) with the year 2003. The same taxi vehicle was re-registered on the system on 15 September 2017 with the same year and then on 13 March 2018 the same taxi vehicle year was changed to 2006.

 

[47] The defendant, Anoanoa’i Pepe’s evidence is that she never called Semo Siaosi and instructed him to change the year of taxi vehicle T-337. Her evidence is, she did not know of the existence of such vehicle on the date Semo Siaosi said she called him. Anoanoa’i said she only met the man who owns the said vehicle, Talana’i Paleso’o, on 21 March 2018 when he went to her home to ask for financial assistance to register his vehicles due for registration in March 2018. She said that Talana’i knows her husband.

 

[48] The defendant agreed to give Talana’i some money to assist with the registration of his vehicles on the condition that one of his taxi vehicles to be registered to Anoanoa’i until Talana’i pays back the full amount. Talana’i agreed and he signed Consent to have taxi vehicle T-337 registered to Anoanoa’i until he fully repaid the money. The vehicle taxi T-337 was then registered under the defendant and her husband’s name.

 

[49] T-337 was inspected on 23 March 2018 and the sticker of Warrant of Fitness was issued on 26 March 2018.

 

[50] Talana’i Palesoo confirmed that he met Anoanoa’i for the first time on 21 March 2018 when he went to her house. Talana’i confirmed the arrangement made with the defendant and that his vehicle has been returned and re-registered under his name.

 

[51] The correct year of T-337 is 2003 not 2002 as noted on the ‘Comment’ box by Semo Siaosi. As a year 2003 vehicle, it still falls within the Cabinet Directive and can still be re-registered as a taxi in 2018. Semo was asked why he did not correct the vehicle year of in the ‘comments’ from 2002 to the correct year of 2003. He said that he told his boss, IT Manager, Tausala Kolose and she told him to leave it as it is. The evidence is, IT division has full access to the RTAS system can make changes to or on the system.31 The question, is, why was the year of the vehicle incorrectly noted in the ‘Comment’ box by Semo Siaosi not corrected?

 

[52] It just does not make sense why the vehicle year for T-337 would be changed to 2006 when it still falls within the 15 year Cabinet Directive and can still be registered as a taxi in 2018. Secondly, I fail to understand why the year of the vehicle that was incorrectly entered as 2002 in the Comment box was not corrected by IT, which has full access to the RTAS system.

 

[53] I find the evidence of the defendant, Anoanoa’i Pepe and defence witness, Talana’i Palesoo more credible and plausible than the evidence of Semo Siaosi and that of Juliana Ah Yek for the prosecution. The timeline as in the evidence of Anoanoa’i Pepe was more believable, that is, 21 March 2018 met Talana’i Palesoo and on 23 March 2018 the vehicle was inspected and the sticker for Warrant of Fitness was issued on 26 March 2018.32 The vehicle T-337 when inspected on 23 March 2018 for re-registration by Road Use Management Division (RUM) was already registered to the defendant, Anoanoa’i and her husband33 pursuant to the agreement the defendant had with Talana’i Palesoo.

 

[54] The evidence of Semo Siaosi and that of Juliana Ah Yek in relation to the alleged phone call by Anoanoa’i Pepe is at best left wanting and at times incoherent.

 

[55] A document is not forgery merely because it contains false statements. This is because forgery is not concerned with the contents but the nature of the documents which must ‘tell a lie about itself’.34 The words ‘purports to be made by’ as in the definition of false document means that the document is about authorship and not content.

 

[56] Forgery is about a person making the document purporting it to be made by someone else or with authorization of that other person. It is about authenticity as to the author.

 

[57] The evidence is very clear, that it was not the defendant, Anoanoa’i Pepe who made the change or changed the year of the vehicle but Senior IT officer, Semo Siaosi.

 

[58] In summary, the charge of forgery fails for the following reasons:

(i) The defendant did not make the change;

(ii) The alleged facts put forward by the prosecution do not fall within the definition of

creating a ‘false document’35 in forgery;

(iii) The Court accepts the evidence of the defendant Anoanoa’i Pepe and witness

Talana’i Palesoo.

 

[59] On the other hand, the evidence by the defendant and that of witness Talana’i had also

raised a doubt to the evidence of Semo Siaosi and Juliana Ah Yek for the prosecution. Where there is doubt, the usual rule is that the benefit of the doubt should be with the defendant.

 

[60] The prosecution did not prove the charge of forgery beyond reasonable doubt and the charge is dismissed.

(iii) Using forged document36

 

[61] The defendant, Anoanoa’i Pepe is charged as follows:

‘...that at Vaitele on the 13th day of March 2018, the above named defendant of Vaitele, a document forged, namely Road Transport Administration System (RTAS) printer PSV vehicle inspection sheet T-337 uses the document to obtain any pecuniary advantage or benefit.’

 

[62] The prosecution must prove beyond reasonable doubt that:

(i) The defendant knew the document was false that is, forged at the relevant time of ‘use’; and

(ii) The defendant used or dealt with or acted upon the false document as if it were genuine.

 

[63] The charge of forgery under section 194 requires the ‘act’ of making the false document by the defendant herself. The intent required for the making of a false document in forgery is carried out into effect in the ‘use’.38 The ‘act’ under section 195 is the act of using or dealing with the false document.

 

[64] The prosecution case is that the defendant, Anoanoa’i Pepe being the person who instructed the change therefore knew that the information pertaining to T-337 on the RTAS system was false and she used or acted upon the false information as if it were genuine to have the vehicle registered as a commercial vehicle (taxi) to enable it to be referred to her ‘staff debtor’s account’.

 

[65] LTA staff has staff benefits in the form of a Staff Debtor that allows a staff member to pay for registration of their vehicles where a payment plan is set up and deducted from their wages instead of paying the full amount in cash with the cashier. The conditions of this benefit are: (i) the staff can only refer two (vehicles) under their staff debtor entitlement; (ii) the vehicles must be registered under their names and (iii) the vehicles are not public commercial vehicles.39 Approval by the Finance Manager or Assistant Finance Manager is required for the use of this benefit.

 

[66] The evidence accepted by the court is, the defendant did not instruct Semo to make the change. The change of ‘year’ of the vehicle on the RTAS system was not made by the defendant, Anoanoa’i but by the Senior IT officer, Semo Siaosi.

 

[67] The change of ownership from Talana’i Palesoo to Anoanoa’i Pepe was agreed to by Talana’i as in his evidence. The change of ownership on the RTAS system was made by Anoanoa’i herself because as Legal Manager she has access and authority to do so. Taxi vehicle T-337 was approved by the Assistant Manager of Finance40 to go on the defendant’s (staff) debtor’s account.

 

[68] The innocent agent referred to by the prosecution in their submissions to apply to the circumstances of the case against the defendant, Anoanoa’i Pepe, does not apply. The innocent agent principle applies to offences committed by several people referred to as ‘parties’. In Anoanoa’i Pepe’s case no one is charged as a party.

 

[69] The charge of forgery is dismissed because the defendant, Anoanoa’i did not make the change resulting in a false document41 or instruct Semo Siaosi to change the year of the vehicle. The charge of using a forged document cannot survive if there is no forgery.

 

[70] The charge of using a forged document against the defendant, Anoanoa’i Pepe is dismissed.

(iv)

[71]

[72]

Altering document with intent to deceive42

The defendant, Anoanoa’i Pepe is charged as follows:43

“...that at Vaitele on the 13th day of March 2018, the above named defendant of Vaitele, with intent to obtain by deception any privilege, service, pecuniary advantage, benefit alters the Road Transport Administration System (RTAS) information in relation to vehicle T-337.”

The prosecution must prove beyond reasonable doubt that:

(i) The defendant altered the document; and

(ii) The defendant intended to obtain by deception any property, privilege, services, pecuniary advantage, benefit or valuable consideration.

[73]

if it is changed in some manner.

‘Alteration’ is not defined and that its normal meaning carries that a document is altered

[74] The defendant, Anoanoa’i is charged and alleged to have altered the information on RTAS system by changing the registered owner of T-337 on the RTAS from Talana’i Paleso’o to her name without the proper documentation to confirm/verify the change and she did so with the intention to obtain by deception any privilege, services, pecuniary advantage or benefit.

 

[75] I accept the evidence of Anoanoa’i Pepe and Talana’i of the arrangement they made as in [paragraphs 47-50 herein] as follows:

 Talana’i agreed to have T-337 registered to Anoanoa’i Pepe until he has fully paid the money that he owed Anoanoa’i;

 Talana’i signed a Consent to have T-337 registered to Anoanoa’i; and

 Taxi vehicle T-337 was re-registered to Talana’i Paleso’o when he fully paid the money he owed to Anoanoa’i.

 

[76] The defendant, Anoanoa’i, as Legal Manager had authority and access to the RTAS system to make changes as to ownership. The intention was for the change in ownership to the defendant as some sort of security for the money she lent to Talana’i the owner of T-337.

 

[77] The vehicle although registered under Anoanoa’i Pepe and her husband, possession of the vehicle and all benefits pertaining to the taxi in both evidence of the defendant and Talana’i remained with Talana’i. There is no evidence of obtaining by deception.

 

[78] The charge of altering with intent to deceive against the defendant, Anoanoa’i Pepe is dismissed.

(v) Using altered document with intent to deceive44

 

[79] The defendant, Anoanoa’i Pepe is charged as follows:45

“...that at Vaitele on the 13th day of March 2018, the above named defendant of Vaitele, with intent to obtain by deception any privilege, service, pecuniary advantage or benefit knowing the Road Transport Administration System (RTAS) information in relation to vehicle T-337 to have been altered, uses or deals with that document.”

 

[80] The prosecution must prove beyond reasonable doubt that:

(i) The defendant knew the document was altered; and

(ii) The defendant used the document to obtain by deception any property, privilege,

service, pecuniary advantage, benefit or valuable consideration.

 

[81] The conduct element only requires that the defendant had used, dealt with or acted on the document or caused any person to use, deal with, or act upon it. The mental element though falls into three parts:  (1) The defendant must know the relevant matters relating to the document in question had been altered to deceive.

(2) The defendant must have intended by the employment of the document (or cause another to use or rely on it) to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration.

(3) There must be an intention to acquire or retain the property etc “by deception”.

[82] The defendant knew that the ownership of vehicle T-337 has been changed to her name because she made the change. The prosecution says that the change enabled Anoanoa’i to refer T-337 to her staff debtor account. This is the privilege, benefit or pecuniary advantage the prosecution refers to.

 

[83] The change of ownership was made with consent by the owner of T-337, Talana’i Paleso’o to Anoanoa’i Pepe. The change made on RTAS was lawful because Anoanoa’i had consent to do so and as Manager Legal she has access and authority to effect those changes on RTAS. As such, there is no intention to obtain by deception any privilege or benefit or valuable consideration.

 

[84] The prosecution has also failed to prove this charge beyond reasonable doubt. The charge of using altered document against the defendant, Anoanoa’i Pepe is dismissed.

(vi) Damaging or interfering with electronic data47

 

[85] The defendant, Anoanoa’i Pepe is charged as follows:48

“...that at Vaitele on the 13th day of March 2018, the above named defendant of Vaitele, with intent and without authorization or being reckless as to whether or not he is authorized, alters electronic data namely, Road Transport Administration System (RTAS) information in relation to vehicle registration number T-337.”

 

[86] The elements of the offence the prosecution must prove beyond reasonable doubt are:

(i) The defendant altered the electronic data;

(ii) The altering of the electronic data was intentional or reckless; and

(iii) Without authorization.

 

[87] The difference between this offence and altering of document with intent to deceive (s.196) is this offence requires that the altering is not only intentional (or reckless) but also without authorization. There is also no requirement that the intention of altering is to obtain by deception any benefit or pecuniary advantage.

 

[88] The offence of damaging or interfering with electronic data is simply altering electronic data intentionally and without authorization.

 

[89] ‘Alteration’ is not defined under Part 18 but according to the Convention on Cybercrime49 ‘alteration’ means the modification of existing data.

 

[90] Electronic data is defined50 to mean:

“any representation of facts, concepts, information (either texts, sounds or images), or machine-readable code or instructions, in a form suitable for processing in an electronic system, including a program suitable to cause an electronic system to perform a function.”

 

[91] Like the charge of forgery, the act of altering must have been by the defendant and not by

anyone else. The evidence as accepted is that the altering or making the change on RTAS relating to the year of T-337 was by Semo Siaosi.

 

[92] The prosecution case is that the defendant, Anoanoa’i directed that the RTAS information be altered so that the year made for vehicle T-337 is 2006 not 2003 and she had no authority to do so.

 

[93] In relation to the change of ownership for T-337 I reiterate the reasons given in paragraph [76] herein. The change made on RTAS was lawful because Anoanoa’i had consent of Talana’i Paleso’o to do so and as Legal Manager, she has access and authority to effect the change on RTAS.

 

[94] The charge of damaging or interference with electronic data against the defendant, Anoanoa’i Pepe is also dismissed.

TO BE CONTINUED TOMORROW.

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