R v Sau [2023] SBMC 3; Criminal Case 194 of 2023 (14 July 2023)

IN THE CENTRAL MAGISTRATES COURT
IN THE SOLOMON ISLANDS
In the Criminal Jurisdiction

Criminal Case No: 194 of 2023

BETWEEN:
REX

V

AND:
NANCY SAU

PPD: PC Moffatt Tei
Defence: Ms Delilah Kukura
Date of closing submissions: 20^th June 2023
Date of judgement: 14^th of July 2023

JUDGEMENT

1. Mrs Nancy Sau, you pleaded not guilty to the offence of simple larceny on the 24^th of April 2023. We proceeded through trial and this court ruled that there is a case for you to answer after Ms Kukura made an application in that regard.
2. Having gone through the file on so many occasions, the back ground facts of this case has become a story well known to me as the Magistrate in carriage of your case.

Back-ground facts

3. In brief, the reason we are here today follows the allegation that you stole SBD$6,000.00 from a person named Wenny Wala. I am told through the evidence put before me that Mr Wenny Wala is a relative of yours, whom you refer to as uncle. Furthermore, he used to be married to your husband’s cousin sister. It happened that on the 20^th of January 2023, Mr Wenny Wala, whom from time to time I will refer to as the Complainant or PW1, had left his home (residence) at Kaibia, Central Honiara, and had come down to Point Cruz as he was intending to do his shopping. He left with his shopping list around 3: 00 pm and having arrived at the Honiara City Council area, took a bus all the way to the Museum bus stop, where he decided to just chill for some time until walking towards the easterly direction with the intention to go to the area where the Honiara Casino, now Bingo House, is located.
4. By then it was already past 5: 00 pm, hence he told himself that it was now too late to do his shopping and instead went into the Casino. He spent a good amount of time there until the Casino was finally closed. Luckily for him, you were selling betel nuts and cigarettes in front of the Casino so he accompanied you back to your house to rest. By then it was already past midnight and obviously the next day. At your house, a drinking spree occurred since the wee hours of January the 21^st right through the day.
5. At one point, the Complainant had dosed off, as he was believed to be too drunk. When he woke up, he noticed that his bag was missing from his boy (waist). He was later informed that it was you who took the bag away and left it in the house. The Complainant went back to sleep again and only came to find on the 22^nd of January 2023 that the money he had reserved for shopping had decreased is size and value. He became so stressed out that he made his way to the White River Police Station and reported an incident of stealing.
6. The Police came and got you, your husband and your daughter for questioning. Arrangements were done for the money to be repaid which was not taken well by you since you maintained that you knew nothing about the missing money and had no intention of depriving the Complainant off his money.
7. Since there was no repayment, the Complainant went ahead and lodged a formal complaint against you. I note that there was SBD$1, 300.00 remaining in the plastic you placed the SBD$6,000.00 in for shopping purposes.
8. The Police have decided to charge you with simple larceny involving the whole SBD$6,000.00 with SBD$1,300.00 being recovered.

Charge

9. The charge against you reads as follows:

Nancy Sau

Of Aimamara Village, Malaita Province

Is charged with the following offence:

Count 1

Statement of the offence

Simple larceny contrary to section 261 (1) OF THE Penal Code

Particulars of the offence

That Mrs Nancy Sau at Honiara in the Guadalcanal Province on 21^st day of January 2023, did steal $6000-00SBD the property of Wenny Wala.

10. The relevant sections needed to be highlighted in this part of my judgement, are sections 258 (1) (2) and 261 (1) of the Penal Code.
11. Section 258 (1) (2) states as follows:

(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such stealing thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) by any trick;

(ii) by intimidation;

(iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or

(iv) by finding, where at the time of finding the finder believes that the with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such stealing thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) by any trick;

(ii) by intimidation;

(iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or

(iv) by finding, where at the time of finding the finder believes that the owner can be discovered by taking reasonable steps.

(b) The expression "carries away" includes any removal of anything from the place which it occupies, but in the case of anything, attached, only if it has been completely detached.

(c) The expression "owner" includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.

Issues

12. the issues that I must determine are:
    1. whether or not the Defendant stole the Complainant’s money which is $6,000.00?
    2. whether or not it was the Defendant who stole the Complainant’s $6,000.00 (Identification)?
    3. Whether the Defendant had the intention to permanently deprive the Complainant off his property?

Prosecution Evidence

The evidence adduced by Prosecution is summarised as follows:

PW1

13. On the 20th of January 2023, Wenny Wala, PW1, recalls that he was at his home at Kaibia, Central Honiara. He had previously withdrawn his remaining contributions with NPF, hence on that day, he said that he had prepared a shopping list and was intending to do shopping later that day. Before leaving his home, he recalls that he counted his money which totalled up to SBD$8,000.00. He separated the money by putting SBD$2,000.00 into the back-left pocket of his trousers and SBD$6,000.00 into a small red plastic which he said to have put into the front pocket of his small bag/basket. He describes the bag/basket as that which can be belted around the waste.
14. He recalls that the SBD$6,000.00 consists of 6 bundles of SBD$1,000.00 each.
15. He recalls leaving the house at around 3:00 pm on the 20th of January 2023 and walking over to the yellow bamboo bus stop to go down to the Honiara City Council bus stop. Upon reaching the Honiara City Council bus stop, he proceeded further to catch another bus with the intention to go to the National Museum bus stop. At the National Museum bus stop, he stayed there for quite some time, until walking up towards the Honiara Casino at around 5:30 pm. When reaching the Honiara Casino, it dawned on him that by then it would be too late to do his shopping. He also recalls that when he reached the Honiara Casino, he saw you sitting in front of a shop next to the Casino selling betel nut and cigarettes. He states that he knows you since you are the daughter of one Michael Haomae and that in terms of genealogy, you are his niece. He also states that you were once a student at a school that he once taught in, back in the village that both of you come from. He also knows that you are married to a person from Reef Islands, whose name is Lency Sau.
16. Wenny Wala (PW1) further stated that when he saw you, he did not speak with you, but instead proceeded into the Casino. He gave evidence that he is well aware of what a casino is and what usually happens inside. Hence when he went into the casino, he proceeded on to play. He recalls that there were different sorts of games, but he opted to use the machine. He used the SBD$2,000.00 that was placed in the back-left pocket of his trousers to play with the machine. He continued to play until it was going towards mid-night when he decided to go outside to chew betel nut and to have a smoke.
17. When he came out, he came straight to where you were selling betel nut and cigarettes and bought betel nuts and cigarettes from you. He states that he used part of the money from the SBD$2,000.00 that he also used to play with the machine in the casino. He recalls that he used a SBD$50.00 note to buy the betel nut and cigarettes from you. In total, he took 2 damis and 6 rolls of cigarette which costs about SBD$20.00 since the 1 dami costs SBD$4.00 and a roll of cigarette was SBD$2.00 each.
18. When he was smoking and chewing betel nut, you motioned at him to move closer to you. When he came closer to you, you asked if you can borrow SBD$100.00 from him to pay for your daughter’s basket who was due to attend Saint Joseph’s Tenaru the following week. You told him that you will refund the money from the proceeds of your betel nut and cigarette sales. He gave you the money requested as he thought that it was for a good cause.
19. After giving the money to you, he joked that he would not have anywhere to sleep as it was already past mid-night. You then told him that he could follow you to your house at White River. He then went back into the casino, at which it was going up to 1:00 am. Not long after going back into the casino, a security officer made the announcement that the casino will close shortly. Upon hearing this announcement, he went into the toilet room at the casino and checked his money. He saw that the SBD$6,000.00 placed in the small red plastic was still kept intact and the full amount was still there, however, it was the SBD$2,000.00 placed in the back-left pocket of his trousers that had monies missing. He states that part of the SBD$2,000.00 was used when he played with the machine, and part was used to pay for betel nut and cigarette. Hence what was left of this SBD$2,000.00 was only SBD$530.
20. From the toilet, he came straight out of the casino and went and smoked cigarettes outside of the casino and conversed with other men who have come out of the casino as it was closing. He also saw Lency Sau, your husband, coming out of the casino. When Lency Sau came out, you approached Lency and told him that he, Wenny Wala, will follow you guys back to your house at White River. At first Lency thought that your house was not fit to accommodate guests, but you all managed to board a taxi stopped by Lency Sau.
21. In the taxi was Lency Sau, a person from Reef Islands that Wenny Wala has never seen before, yourself and Wenny Wala. After speaking with the other unknown person from Reef Islands, you told Wenny Wala that this person was his in-law, or in pidgin, tabu since Wenny is also married to a woman from Reef Islands. Furthermore, you told Wenny Wala that this person had requested for him to buy him beer, so since you people were heading west towards White River, the taxi pulled over to some place at Tandai after the Tamlan School and bought a plastic of beer there.
22. Upon reaching the place Wenny Wala believes to be your residence, he gave you SBD$100.00 for taxi fare, but the person from Reef islands said that he will pay for the taxi fare as he will continue on in the taxi to go and see his children. He only took 2 cans of beer from the plastic and left the rest, hence the SBD$100.00 was given back to Wenny Wala. You all proceed over a small drain into a leaf hut in front of the main family house. Wenny recalls that you people arrived at the house around 2 in the morning and by then it was now Saturday.
23. In that leaf hut, Wenny Wala and Lency Sau started drinking the remaining cans of beer while you were just going to and fro between the leaf hut and the main house. The two were just slowly drinking until around 5 in the morning. Wenny Wala said you came and drank the last can of beer in the plastic and told them that despite the beer being finished, they should continue telling stories until the morning. Wenny then pulled out SBD$100.00 and gave it to you to go and buy more beers. Wenny said that this money was taken out from his pocket. You then told him that you will look for a taxi to go and buy beer, hence when you came back, Wenny saw a boy from Reef Islands with you that he has never seen before. As the number of people increased from 2 to 4, the beers started to run out quickly, hence Wenny gave another SBD$100.00 to you to go and buy more beers. You further requested money for smokes to which he pulled out SBD$30.00 from his pocket and gave it to you. You proposed that you all should go to look for beers but Wenny refused and remained in the leaf hut with your husband. When the beer arrived, you people continued drinking including the boy from reef Islands.
24. The drinking continued up towards mid-day when Wenny gave another SBD$100.00 to buy more beers and the drinking continued. Another SBD$100.00 was given by Wenny Wala at around 1 pm to buy some more beer, however, by then, Wenny was starting to feel sleepy and so he eventually slept while sitting down on the chair he had been sitting on when you people were drinking. Prior to Wenny falling asleep, he recalled that your daughter Mona was the only one who comes over to you people in the leaf hut and goes back to the house.
25. Wenny recalls waking up at around 9 in the evening and noticed that there were two girls sitting next to the table. One of the girls was your daughter Mona, the other was also a wantok and was more matured than Mona. Her name was Keniseu and was said to just live in the house next to yours. Wenny also came to notice that instead of sleeping on the chair he fell asleep on, he was now on-top of a mat that was placed on the timber, which I believe to be the flooring of the leaf hut. Furthermore, he also noticed that his basket/bag was no longer belted around his waist and that he did not see the bag. He asked your daughter why he was laying on the mat to which she said that he was carried from the chair and placed on the mat. In relation to the whereabouts of the basket, your daughter stated that it was you who took it and gave it to her (daughter) to go and put it in the house as it belonged to Wenny. You were also said to have told your daughter that the bag contains Wenny’s SBD$3,000.00. However, your daughter was afraid to touch the bag upon hearing the amount inside so you went and left the bag on your own.
26. Wenny also asked how the bag was removed as it was belted around his waist and your daughter told him that she saw you removed the bag from him. Wenny then asked where you and Lency Sau were and was told that you people have gone to some place called red door to drink beer. With the idea that his bag was at the house, he felt that it was safe and if the money in his bag was too be removed, it could only be anyone in your house. He then ate some noodles prepared by the neighbours and was told by Keniseu that for the whole afternoon, you people came back and forth in taxis.
27. After eating his noodles, Wenny went to the living room of your main house and slept. He woke up at around 5:00 am the next day that is on Sunday the 22nd of January 2023. He remained where he slept until 6:00 am when he saw your daughter Mona who had also woken up and had come out. He then went out and sat on the chair and asked Mona where you and Lency were. She told him that you both were still sleeping in the room. By then he was intending to go, hence he asked Mona to go and look for the bag in the house. When Mona returned with the bag, they both sat next to each other while Wenny proceeded into opening the pocket in which the plastic containing the money was inside. When Wenny pulled out the plastic, he felt that it was much lighter compared to before, he then opened the plastic and only found two bundles of SBD$100 and decided to put the plastic of money back into the bag and handed the bag back to Mona. He told Mona to bring the bag back to where she found it and that he was going to wait until you woke up so that he can tell you that some things were missing from the bag. He did not know where exactly in the house Mona had returned the bag to, but only knew that it was returned into your house. By then, it was already around 7:00 am.
28. From there, he went and sat down in the leaf hut until a man that he later came to know as Sidney Sopu came and sat with him. He further states that there is no mention of Sidney’s name in the statement he gave to the police, but he recalls that he did state the name Sidney to the Police Officer he spoke with, whom he believed his name was Rex. After talking with Sidney who was intending to go to a wantok’s house, he proceeded to the White River Police Station by which it was already going up to 10:00am.
29. At the White River Police Station, he reported that things were missing from his bag. The Police had to wait for their vehicle to arrive before going up to your house. Eventually the Police came and got the bag yourself, Lency Sau and your daughter. It was at the station that the police asked if you knew about anything inside the bag that is alleged to be missing, but you said you knew nothing about the money.
30. The bag was then given to Wenny to check the money that was inside. Upon counting the money, he found that one of the bundles only has five SBD$100.00 notes, while the other bundle only had eight SBD$100.00 notes. Hence the total remaining monies were only SBD$1,300.00 in total. He was then told that it was up to him, if he wanted to open a case against you, then they can put you away in custody. Wenny however, gave no answer and instead asked to go and buy some food with part of the money left as he was hungry. He then went to the market stalls at White River O1 and bought some fish and chips. As he was returning to the station, he saw you and Lency, and further stated that Lency approached him and asked if he could give you 14 days to allow you to repay the money. You all proceeded back to the station where he told the officers that he will give you 14 days to repay the money, but if there were no repayments then he will officially open a case against you.
31. After 17 days, he found that no money was ever repaid, hence a formal complaint was lodged which led to your arrest and the charge against you.
32. Questions asked in cross examination wanted to depict the fact that the money had already been used at the casino and how he was the only one who funded the drinking spree at your house. The questions also aimed to address the fact that no one had seen you actually removing the money from inside the bag, except that you took the bag for strictly safe keeping purposes. His responses maintained the fact that it was you who had stolen the money as you were the one who removed the bag from his waist. Questions were also asked in relation to the times he stated to have left home, and when he went into the casino. But he maintains that his timing was correct. He was also referred to a previous police statement he made that does not contain any of the things he stated in his evidence in chief. He stated that it was the police who did not put the whole story in the statement despite the fact that he had given his full story.

PW2

33. The next prosecution witness, was Danny Padagy (PW2). PW2 stated that he joined you people after returning from some place called red door. He was intending to return to his sister’s place at DA Printers when he saw your husband and called out to him and made a joke to him, since he saw you people drinking. He said that he saw you and some old man that he does not know, he then walked over to where you people were and sat down with you people. He further states that it was not long and the beers in the plastic were starting to run out, so he said that you handed him SBD$100.00 that was given by the old man to go and buy more beers. Since the bottle shops were not open, he went to a black market at Rifle Range and bought more beers, SB to be exact. He came back and the drinking continued until the beers were finished and another SBD$100 was given to you by the old man for more beers. PW2 then went to the same location and returned with more beers. He recalled that he was sent for about three times, meaning the money spent was round about SBD$300.00. In total, he recalls that the money he spent on all the runs was SBD$400.00 as the SBD$100.00 were given to him one after another.
34. The 4th time he was sent was when PW1 gave money to you for cigarettes. However, PW2 only went and bought the cigarettes from a canteen just next to your house which is owned by some person from Isabel. He recalls that you people continued sitting and that the sun was coming up. He believed that it was around 10:00am when the old man started to fall asleep. By then, you were still sitting there. He also recalled that the bag was still belted around the old man’s waist or body. You then proposed to lay the old man, whom I take judicial notice to be Wenny Wala (PW1). You then swept the area and laid Wenny Wala down. You then took Wenny Wala’s bag and walked towards the main house which was not far from the leaf hut. He saw you zipping one of the pockets of the bag. As you were walking towards the house, your daughter walked towards you from the house and you stated that you were bringing your uncle’s bag to the house. As explained earlier PW1 states that you are his niece, hence you said that he was your uncle.
35. After bringing the bag to the house, you returned back to where PW2 was and not long after, Lency Sau also came out of the house and joined the group. You people continued on except for Wenny Wala who was already asleep. Having sat down until the afternoon part of that day, you all stopped a taxi and boarded it to the red door mentioned earlier. Some of the beer bought by Wenny Wala have also been taken with you people to red door, hence you people started drinking those beer upon arrival. He started to feel sleepy, hence, he left the red door and proceeded back to DA printer, where he went and slept on a hammock.
36. In cross examination, he answered that he did not know the amount of money already spent as he only joined you people around 6:00 am. He also states that he did not see you taking any money from Wenny Wala’s bag, which he said to have looked similar to the one he was carrying in court that day. From seeing PW2’s bag, it looked something like those used by some bus conductors in the past which is usually belted around a person’s waist. The only difference was that Wenny Wala’s bag was black and PW2’s bag was somewhat green.
37. When you took Wenny Wala’s bag away, he thought that you were taking it away for safe keeping as you said Wenny is your uncle.
38. PW3 was Rose Sau, however, her statement was tendered through Police Constable Eva Sanga. PW3 as previously stated was excused from giving evidence under oath. In her statement, she sates that on the 21st of January 2023 at a time around 3:00 am, she remembers seeing you, Lency Sau and Wenny Wala arriving home in a taxi. You people were said to be drinking beers that were placed in a black plastic. She also stated that around 7:15 am she went to Talon shop to buy her uniform and returned around 9:15 am and saw you, Wenny Wala and two other boys that she does not know their names, still sitting and drinking.
39. Around 11:30 am Wenny Wala fell asleep on the chair he was sitting on. She was asked to go and get a mat and a pillow for Wenny Wala to sleep on but since her father was sleeping in the room, she came out. As she was coming out of the house, she saw you walking towards the house with Wenny Wala’s bag. At that time, she saw that you were trying to put something back into the bag. You then told her to get the bag and hide it as Wenny Wala’s SBD$3,000.00 was inside. However, you later said that you will go and hide it yourself.
40. PW5 only gave evidence in relation to how she obtained PW3’s statement along with your arrest and the record of interview conducted with you.

Defence Evidence

41. In terms of the evidence given to support your case, I note that you were the only one who was called to the stand. What you told me can be summarised as follows:
42. You recalled that on the 20^th of January 2023, you left your house at Independence Valley to go and sell your cigarettes and betel nuts in front of the Honiara Casino at Point Cruz. You left around 8:00 am and started with your marketing. Sometimes after, your husband, Lency Sau joined you to assist with the marketing. By then it was around 11:30 am to 12:00 am. It was then that you saw the Complainant, Mr Wenny Wala walking past and going straight into the Casino. At that time, you were concentrating on your sales.
43. You further recalled that sometime in the evening (no exact time given), Wenny Wala came out of the Casino and went to the other women who were also selling cigarettes and betel nuts beside you. Wenny Wala then went back into the Casino but came out again at around 7:00 pm. This time he came straight to you and bought 6 pall mall cigarettes and 2 damis with a $50.00 note. This was consistent to the evidence given by Wenny Wala that he bought 2 damis and 6 cigarettes from you with a $50 note. During that time, you told him of how you attended to his sick son when you and Lency Sau were living in Noro. After that, Wenny Wala went back into the Casino.
44. Sometimes later, you saw Wenny Wala coming out of the Casino again, this time he came straight to you and asked for a match to which you gave him. He then gave you $10.00 for 5 pall mall cigarettes. The both of you started to talk about his family, whom, he had left behind for almost 20 years now. As per the evidence, Wenny Wala used to marry Lency Sau’s cousin sister, Doris. You told him that since returning from Noro, you are now doing your marketing in front of that Casino. The both of you also talked about how many kids you have and where they are attending school. You told Wenny Wala that you were doing your marketing to by your daughter’s school uniform and phone. Of the 4 children you have, one attends SINU, another is supposed to do her Form 1 at White River Community High School, another was supposed to attend Saint Joseph’s Tenaru but is yet without a school bag.
45. Wenny Wala then asked what he could do to assist since you were very helpful to his family and that he wanted to help you. You then proposed that he pay for the school bag you were intending to buy for that child of yours who was supposed to attend Saint Joseph’s Tenaru. He then gave you $100, but since it was already night time, you were not able to go and buy the bag. Wenny Wala then went back into the Casino. After that the two of you chewed betel nuts and then he went back into the Casino.
46. You continued to do your marketing, at one point, you saw people coming out of the Casino as well as you husband, Lency Sau. By then it was around 10:30 pm going up towards 11:00 pm, you assumed this as there were no buses working at this point in time. You recall that the Casino usually closes around 1:00 am on week days and 1:30 am or 2:00 am during weekends. Hence, when your husband came out of the Casino, he came to you and you gave him betel nut to chew. You then saw Wenny Wala coming out of the Casino and that he went and smoked his cigarettes beside the door to the Casino. Not long, he went back into the Casino.
47. Some times after, people started coming out of the Casino hence you moved closer to the other women who were selling betel nuts near the Casino door as you wanted to ensure that you betelnuts were sold out. By then it was around 1:00 am and that the place was starting to go empty as people were driving away from the carpark area. Around the same time, a relative from your mother’s side of the family came to you. You do not know his name but knew him as a brother. He came and chewed betel nuts and was shortly joined by Wenny Wala. You heard this relative of yours joking about the fact that there was nowhere to go as there was no money and that there were no taxi’s or cab.
48. You also heard Wenny Wala saying that in times that one has lost there should be no issue in wherever they end up sleeping. They continued to chew betel nuts and that you gave a cigarette to that relative and he gave the cigarette to Wenny Wala. At that time, you were still doing your sales. Shortly the relative of yours left while Wenny Wala remained standing. Lency Sau had also came out of the Casino and joked to Wenny Wala about how he maximized the machines with $10.00. Leny Sau then went and talked with his brother who works at the Prison Services and was said to be drunk at that time.
49. Wenny Wala asked you as to where in Honiara you reside, to which you told him that you were staying at your mother’s house at Independence Valley, at White River. He then proposed that he will follow you, hence when you asked Lency Sau if Wenny could follow the two of you, Lency said that the house was not in a good condition for visitors to come and since there was no toilet facility to use. This was also consistent with what Wenny Wala himself had stated in his evidence in chief. Wenny insisted and said that it was okay further stating that he will just bear it for the morning to come and also asked if Lency can drink. Wenny then told you people to wave for a cab, hence, when that was done, all three of you, including Lency’s brother boarded the cab and the cab took off towards the westerly direction.
50. Having gone past Rove, Wenny Wala asked as to where the beers will be bought. The sitting arrangement in the cab was that, Lency was sitting in front on the passenger sit, Wenny sat behind the driver, Lency’s bother was in the middle and that you were sitting behind Lency. On the way, you were speaking in the Reef dialect with your brother in law about his initial intention to stand in the upcoming National General Elections and how he decided to withdraw the idea as another one of his brothers was also intending to stand.
51. Lency Sau as per the evidence is a man from Reef Islands, in the Temotu Province, and so if the woman that Wenny Wala was married to.
52. Hence, in reply to your question as to where to buy beers, Lency’s brother said that the cab will stop at Tandai as there were black markets for beer there. When the cab got to Tandai, Lency’s brother went and bought some SB can beers. You also got out to go and talk with some of your in laws from Reef Islands. Wenny had also given you $8.00 to go and buy some cigarettes. After that the cab drove off to your house. At Independence Valley, Lency’s brother said that he will go and see his children first before returning to join all of you. While Wenny had offered to pay for the cab fare with $100, Lency’s brother said he will pay, so he took out 2 cans of SB beer and said that Wenny should take back his $100.
53. The three of you proceeded over to a leaf hut just close to the drain, which was attached to the main house. From the distances within the courtroom that you were pointing to, I reasoned that the leaf hut was very close to the main road. The drinking then started between Wenny and Lency. You went to and fro between the house and the leaf hut.
54. By then it was around 2:00 am and you had gone and left the bag containing your sales in the house just next to the door of the room that you and Lency slept in. You described the door to this room as being broken and not being capable of being closed properly. You came back to Wenny and Lency with your betel nut and cigarettes and by then heard Wenny telling Lency that they will continue to drink and tell stories. Since the beer was almost finished, Wenny gave you $100.00 to go and buy more beers. You stopped a cab and went to Tandai and bought more SB can beers and gave it to the two who were drinking. Shortly, Wenny gave another $100.00 and a $30.00 for you to go and buy more beers and a packet of cigarettes. You then went again to the same location and bought the cigarette at O1 bus stop on your way back.
55. When you arrived, you gave the beer to the two men and went and sat with your daughter, Rose Mona and tried to advise her as she was not concentrating on her studies. As the two men were drinking so fast, the beers started to run out and so as the cigarettes. You told Wenny that you only smoke pall mall cigarette, this was when Wenny gave you $200.00. By then Danny Padagyi came to you people. You recalled that it was around 4:30 am. By then you were feeling sleepy and tired. Lency then prosed that you all should go, hence, yourself, Lency and Danny went and stopped a cab and went to Tandai and returned with more beers.
56. They started drinking as soon as you people arrived and soon after the cigarettes and beer started to ran out again. You then told Wenny that your cigarettes had finished, Wenny then gave you another $100.00 to go and buy more beers and a packet of cigarette. Hence, when you went, you included two cans of canoe beer along with the SB can beers. You arrived with the beers and took out your canoe beers and started drinking along with everyone else. From the amounts that you said Wenny had given to you, I calculated that that the money spent was already about $530. This was the exact amount Wenny stated was left from the $2000 he left in the pocket of his trousers.
57. After that amount was spent, Wenny Wala asked if someone could go and buy more beers for you as your canoe beer was about to finish. He gave another $100 but since you were feeling so tired, you asked if you could use his phone to call the taxi service at O1 bus stop for any available cab to bring the beer. This part of the defence case was also raised during Wenny Wala’s cross examination, to which he denies.
58. When the cab arrived, Wenny gave you the $100 he said he was going to buy the beer with. You then gave the money to the cab driver and the drinking continued. By then it was already Saturday the 21^st of January 2023 and another person living at Rifle Range whom you said was your in law or tabu had also came and joined you and the others, including Wenny Wala.
59. Wenny Wala again asked if someone could go and buy more beers and cigarettes. Lency Sau was feeling sleepy and had gone into the house to sleep. You recalled that when Lency went to sleep, it was about 6:00 am. When Lency had left, you, Wenny, Danny and the guy who came from Rifle Range continued to sit and drink. It was Danny who went and bought the SB can beers and cigarettes with another $100 after Wenny requested for someone to go. As for you, you took a $100 note from your own money and told your daughter, Rose Mona to go and buy 2 canoe can beers at the bottle shop near Mr Brian Taupiri’s place. The beers arrived and the drinking spree continued.
60. Not long, a cab arrived and some drunk girls got out. One of the girls knew Danny, hence, they came over and joined you people. Wenny Wala gave another $100 which you gave to Danny to go and buy more beers. Wenny then asked you if your beer was still enough, but you told him that you had bought the beer with your own money. He then took out another $100 for cigarettes, which you gave to Danny to go and buy. By then the sun was already up and people were walking along the road and saying things to you people. Wenny Wala took out another $100 and gave it to you for more beers. This part of the evidence reconciles with what Danny gave in his evidence that this was the 4^th time money was given to go and buy beer. In his evidence, Danny said he was sent for 4 times.
61. Others also came and drank with you people and you were all drunk at that time. Rose Mona cooked some food that Wenny Wala gave $50’s for. By then the beer was finished and Wenny asked again if someone could go and buy some more beers. You said that you could not go, so Danny asked one of the girls whom he knew if she knows the number of any taxi service to which she gave. This girl was also said to be very drunk. You people then called the cab with Wenny’s phone. Wenny said that the beers should worth $100. The cab driver said the transport fare would cost $40.00. the cab then arrived, and Wenny asked as to whose beer the cab had brought. You said Wenny had asked this question because all along they were only drinking SB can beer while you drank canoe can beer. However, the cab had only returned with canoe beer, so you took the beer to everyone else including Wenny. Wenny gave you the $100 for the beer and 4 $10 notes for the transport fare.
62. When the food was ready, Wenny did not eat as he insisted to continue on drinking when you gave him the last can of beer. You called for another cab and asked if he can bring 12 cans of beer. After that, Wenny went to some place described as the loo but ended up going to the house, hence you were not sure what he went and did. When the cab arrived, the driver said that the beer costs over $100. Wenny Wala gave $150 for the beers, but you were not sure as to much the change was as you were quite drunk. The cab fare was $60 but Wenny said he had already used more than $3000.00 off his money and that he will go and change it at the Casino since he said that he was a Casino man.
63. You then went and got money from your basket and gave it for the cab fare in addition to the change that was left from the $150 Wenny had given for the 12 beers. The drinking continued and shortly someone told you that the old man, Wenny, was feeling sleepy. You then sent Rose Mona for a mat and pillow and a broom to clear of the space you intend for Wenny to rest on.
64. After preparing the place for Wenny to lay down, you removed the bag in question from Wenny’s waist. At that time, you saw a plastic that was poking out of the bag, hence you pushed it back into the bag and zipped it as the zip was open. You told Rose Mona to go bring Wenny’s bag into the house as he said that he had already lost his $3000.00. Rose Mona refused since she was talking with a girl that had come to see her, hence, you took the bag along with your beer and cigarette and went and dropped the bag on top of your sales bag which you placed beside the room to your sleeping space when you first arrived from doing your sales. You described this door as not being able to close properly. You also said that someone had also stolen a phone from the house when you people were sitting in the leaf hut during the Christmas period. Another incident was when another phone was stolen the previous week. You also said that sometimes last year, Rose Mona had stolen a phone and had ran away to Auki.
65. The house on the other hand was not in a very good shape as there were holes on the wall and mud on the floor. I note that this could have been why you and Lency were not keen of the idea to bring Wenny home. You said that you took the bag because you wanted nothing but safety for the bag. Since Wenny was your uncle, and that since he wsa drunk and fast asleep, you decided to take the bag to some place where people would not think of stealing it from Wenny. Furthermore, was the fact that Wenny had come to your house, hence the need for hospitality and security to his personal belongings.
66. You stated that the people who live in that house, is yourself, Lency, John, Rex and Rose Mona. From the evidence there was no mention of John and Rex taking part in the drinking spree, and if they were ever present at that time. Still on the evidence, there were a number of people who have come and joined in on the drinking.
67. Shortly, Lency woke up and had a shower, since it was already mid-day Lency said that you people should not cause any further disturbance there and should instead go and watch tamure at the red door. Hence this was where you people went, living Wenny fast asleep at the leaf hut. Since the left-over beers were also taken with you people to the red door, you started drinking the left overs upon reaching the red door. You then recall falling asleep on the table and waking up at around mid-night. You then made your way back to O1. At O1 you smoked cigarette and chewed some betel nut. You became weak from chewing the betel nut; hence you stopped a cab and told the driver to drop you at the house.
68. You then recalled being picked up by the police around 7 am and being brought over to the police station leaf hut for questioning. At the police station the police took out the bag in question and asked Wenny to open it. You saw 2 bundles of $100. Upon counting the money, one of the bundles contained $500 while the other was $800. This part of your evidence is consistent with what wenny Wala stated.
69. Lency was feeling very bad as money was claimed to be stolen in your home and since Wenny was his in-law, he insisted that the issue be settled in a way that will not tarnish the existing relationship. You on the other hand disagreed to Lency’s proposal to repay the money as you knew nothing about where the money had gone. It was finally agreed that Wenny gives 14 days for the money to be repaid and if there was no repayment then an official complaint was to be lodge.
70. You were not happy with the arrangement since you maintained that you did not take the money or had the intention to steal the money from Wenny Wala. After some days, you and Lency became caught up with deaths in the family and had forgotten that the deadline had passed. The issue resurfaced when the police came and got you to the Central Police Station to inform you that an official complaint had been lodge.
71. During the cross examination, you disagreed to all the propositions by Mr Tei and sticked to the evidence adduced during the examination in chief.

Circumstantial Evidence

72. The prosecuting officer has highlighted in both his opening and closing address their acknowledgement on the basis that their case sits purely on circumstantial evidence. As stated in my ruling on the no case to answer application made on your behalf, I also agree with Mr Tei, as there was no direct eye-witness to the allegation at hand.
73. In this paragraph, I refer parties attention to the interpretation made on what circumstantial evidence is. In the case of Police v Pio, the Supreme Court of Samoa stated the following:

When I speak of circumstantial evidence, I mean generally, evidence from which the fact to be proved can be inferred. Circumstantial evidence, as distinct from direct evidence (such as the evidence of an eye witness), has been defined as ''evidence of minor facts of such a nature that the mind is led, by a process of reasoning, to the conviction that some other fact (the fact to be proved) may be inferred.'' Circumstantial evidence may be as strong as (in fact, it may be stronger than) direct evidence. It may be weak^[1].

there is evidence of two, or three, or more independent facts all pointing in the same direction, that may be more reliable than the evidence of one witness, purporting to give direct testimony of what was said or done, who might be mistaken, or who might be forgetful, or who might be attempting to falsify evidence^[2].

In everyday life we use circumstantial evidence. We put two and two together to reach decisions. So, with circumstantial evidence^[3].

When two, or three, or more facts independent of each other are proved and they point in the same direction, the coincidence between them is yet another fact of greater weight to establish an ultimate fact than the two or more independent facts considered separately^[4].

74. Hence, if justice is to be served and seen to be served, I must also remind myself as to the risk of relying solely on circumstantial evidence. Sir Muria highlights in the case of R v Duddley Pongi, that when the court is presented with such evidence, it must carefully scrutinize what is before it and that all possibilities only point to the Defendant’s guilt. For purposes of this judgement, I will make a direct quotation of what His Lordship said:

The prosecution case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such a case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilt from the totality of the facts which are proved beyond reasonable doubt^[5].

75. From the evidence before me, I note that the Complainant had been to the Casino and ended up in a drinking spree. In my view, there are a number of possibilities as to where the money could have gone. Firstly, it could be that you took the money and left $1,300.00 to look as if Wenny Wala had spent everything, however there are no eyewitnesses who could corroborate this possibility. However, you stated that Wenny had told you that he himself had lost or used over $3000.00. This part of the evidence was not raised during the cross examination by Mr Tei. Another possibility is that Wenny may have used up a good amount of the money when he was at the Casino. This can be inferred when he told the relative of yours that after losing at the casino, it should not be an issue as to where he ends up sleeping that night.
76. Another possibility is that someone else may have taken the money as you were all drunk and Wenny may have not realised someone reaching into his bag to remove the money. Another possibility was that someone may have gone into the room in which the bag was kept and had stolen the money as the door did not close properly and the house was not in a good shape. The evidence as to the phones previously stolen from that same house was not also brought up during the cross examination.
77. Another possibility I can infer from is that you got drunk and excited and ended up using the money on the alcohol consumed during the material times.
78. The question that struck me is why would someone who has the intention to steal, just live the remaining amount as opposed to just taking off with the whole bag? From the demeanour of all the witnesses that gave evidence, I note that Wenny Wala though confident was looking very regretful. Danny Padagyi was a genuine and reliable witness. I did not have the opportunity to assess Rose Mona’s demeanour but note part of her evidence were consistent with what Wenny and Danny stated and mostly inconsistent with what you stated. I do not strongly believe that her evidence alone could sum up all the circumstantial evidence adduced by prosecutions
79. In light of your demeanour, I had made the assessment and concluded that you are also genuine and that your evidence was reliable. What concerns me is why you took the bag to the house for safety when you knew the house was prone to burglary, if true. On the other hand, I note that you have also put your market bag and presumably your proceeds in that same room, hence, there is a possibility that you thought the bag was safe with your personal belongings.
80. With the number of times given in the evidence as to the beer runs, basic maths calculation tells me that a very good amount of money had been used to fund this very spontaneous drinking spree. I myself am aware of the state of mind one has when under the influence of alcohol and how generous we become in ensuring everyone enjoys their drinks.
81. From the evidence before me, I must say that instead of reaching a single conclusion as to what could have happened, the possibilities have become enlarged. The facts have not given me any substantive conclusion that there was intention on your part to deprive Wenny of his money. There is also no direct evidence as to your identity and proof that you were the person who stole the $6000 that surprisingly has $1300 still in the bag. This becomes very difficult to conclude as to what the intention was on the part of whoever responsible for this very avoidable incident.
82. While there was evidence that you took the bag away into the house, you said that it was mainly for security purposes as maintain during your cross examination. I also fail to see any elements of tricks elicited on Wenny Wala towards stealing the money claimed.
83. Hence having alluded to these findings, I am not inclined to rule in favour of Prosecutions as they have failed to prove their case beyond a reasonable doubt. This case only left me with so many doubts as to your guilt.
84. It is with this, that I now make the following orders:

ORDERS:

1. Mrs Nancy Sau, I hereby discharge and acquit you from the charge against you, for the offence of Simple larceny, contrary to section 261 (1) of the Penal Code.
2. Right of appeal applies within 30 days from this date.

Dated this 14^th day of July 2023.

________
THE COURT
Emily Z Vagibule Pakoa (Mrs)
Magistrate of the first class

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^[1] Police v Pio [1999] WSSC 50 (12 April 1999)
^[2] Above n 1
^[3] Above n 1
^[4]Above n 1
^[5] R v Duddley Pongi (Unreported Criminal Case No. 40 of 1999)