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Police v Faalilo [2015] WSDC 3 (20 March 2015)

IN THE DISTRICT COURT OF SAMOA
Police v Faalilo [2015] WSDC 3


Case name:
Police v Faalilo


Citation:


Decision date:
20 March 2015


Parties:
POLICE (Prosecution) v Anamani Sigapoa FAALILO (Defendant)


Hearing date(s):
9-11 February 2015


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata Keli Tuatagaloa


On appeal from:


Order:
The defendant, Anamani Sigapoa is acquitted of the charge of rescue he is charged with under section 144 of the Crimes Act 2013.


Representation:
Ms Rexona Titi for Prosecution
Ms Rosella Papalii for Defendant


Catchwords:
prison escape – rescue


Words and phrases:
assists with prison escape


Legislation cited:
Crimes Act 2013 s 144, s 143(2), s 33, s33(1)(a), s 33(1)(b)-(d), s 35,

New Zealand Crimes Act 1961 s 121, s 66, s 70,
Crimes Ordinance 1961 s 41,
Cases cited:


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E
Informant


A N D:


ANAMANI SIGAPOA FAALILO
male of Vaiusu, Matatufu and Satupaitea.
Defendant


Counsel:
Ms Rexona Titi for Prosecution
Ms Rosella Papalii for Defendant


Hearing: 9th – 11th February 2015.


Decision: 20 March 2015

DECISION OF DCJ TUATAGALOA

The Charge:

  1. The Defendant, Anamani Sigapoa Faalilo is charged with “...assisted and concealed prisoner Vaai Panapa ....to escape from lawful custody, knowing that person to have so escaped” under section 144 of the Crimes Act 2013

The Background:

  1. The defendant, Anamani Sigapoa was a police officer based at Tafaigata Prisons a little over 2 years. He was on duty on 18 June 2014 from 4pm – 8am the next day with five other officers including the supervising police officer. They were allocated with different responsibilities. The defendant was allocated to Cell Blocks # 14 & 15.
  2. Cell Blocks #14 and 15 are referred to as ‘special cells’ said to hold the notorious prisoners or those that have committed very serious offences, the re-offenders and those that have a record of escaping from prison. Inside Cell Block #14 are 5 prison cells (refer EXH P1 & D1). At the time of the alleged offence said to hold nine (9) prisoners including prisoner Vaai Panapa who escaped.
  3. The Cell Blocks each have a prisoner they have as their matai who they look up and listen to. These matai assist the police officers with their work at the prisons. Taai Taai was the matai for Cell Block #14.
  4. The prisoners in Cell Block #14 are not allowed out at any time and only the supervising police officer of a shift can authorize the letting out of a prisoner from the cell block.
  5. Every movement concerning Cell Block # 14 is to be recorded in the Occurrence Log Book – the release of the keys to the officer on duty, the letting out of a prisoner for whatever reason etc. The police officer Tautai Solomona was allocated as the watch house keeper who was also responsible for the Occurrence Log Book.
  6. The prisoner Vaai Panapa was charged with escape and had already been dealt with by the court.

The Law:

  1. Section 144 of the Crimes Act 2013:
  2. The elements of the offence are:

(i) A person (the defendant) who;

(ii) Rescues any person from lawful custody; OR

(iii) Who assists any person to escape from such custody; OR

(iv) Who aids, harbours, conceals, or shelters any person who has escaped from such custody;

(v) Whether in prison or another place;

(vi) Knowing that person to have so escaped.

  1. I have not been able to come up with any authorities in Samoa where a police officer was charged under section 41 of the Crimes Ordinance 1961 which is exactly the same as s.144 of the current Crimes Act 2013.
  2. Section 121 ‘Assisting escape from lawful custody’ of the New Zealand Crimes Act 1961 is similar to section 144 ‘Rescue’ of the Samoa Crimes Act 2013.
  3. In R v Harrer (1998) 124 CCC (3d) 368 (BC CA) quoted in Adams on Criminal Law (CA121.01) on assisting escape says:
  4. Section 66 and section 70 of the New Zealand Crimes Act 1961 are “Parties to offences” and “Offence committed other than offence intended”. The equivalent provisions in the Samoa Crimes Act 2013 are section 33 (Parties to offences) and section 35 (Party to offences other than that intended).
  5. The scope of “assistance” is provided in section 33(1)(b) –(d) because s.33(1)(a) is the actual person who committed the offence or who escaped. Section 33(1)(b)-(d) are:
  6. The information charging the defendant is worded having “....assisted and concealed...” the escape of prisoner Vaai Panapa..... Section 144 is clear that the defendant is either having assisted OR concealed but not assisted AND concealed. The way the charge is worded in the information encompassed two different offences which both must be proven before the defendant is to be found guilty. However section 39(1) of the Criminal Procedure Act 1972 allows for the court to convict of any offence so included in the information which is proved. This means that I can convict if either offence of assisted or concealed is proved.

The Evidence:

  1. The police called 8 witnesses – 6 prison inmates all from Cell Block #14 , Senior Police Officer Lauea Tausoga who was the supervising police officer for the 4pm – 8am shift and Constable Nepa Papalii who took photos of Cell Block# 14.

Vaai Panapa:

  1. Vaai Panapa who escaped from prison said that the plan was for him and another inmate Sialaoa Seemu to escape from prison to steal cigarettes and beer and bring it back for their cell block. He said that it was him and prisoner Taai Taai who conspired or made the plan. The plan was that he would come out of the cell block with empty water bottles to get water from the water tank behind their cell block and escape from there. It ended up that it was only him that escaped. He said that on 18 June 2014 when the defendant brought Taai Taai and Manu Toalevao back to the cell block he was standing next to the cell block door with Sialaoa Seemu. He had with him 3 empty water bottles. The defendant came opened the door and he went out with the bottles while the defendant was standing at the door.
  2. Vaai said he escaped through the prison plantation at the back. He went to the Oil Factory at Vaitele and stole the security guard’s mobile phone while he was asleep. He went back to the prison and waited until the officers opened the cells to take the prisoners their breakfast of sua araisa at 5am. He said that when he got back to the prisons he saw Taai Taai at prison cell window #5 where they shower and he gave him the mobile phone through the window. Taai then told him to come in when the door is open to bring in their breakfast.

Vaioa Solia:

  1. Vaioa Solia said it was Taai who talked to them about the plan for Vaai Panapa to escape from prison to go burgle and steal from houses in the Vaitele area and to bring the stuff for their cell block. On the day in question after faigalotu (evening prayers) the defendant brought Taai to the Cell Block first, he then locked the door and went to get Manu Toalevao. Taai then said for one of them to climb up the window to see if the defendant has come back so that he (Taai) would call out for someone to go fetch some water. The defendant came, opened the door for Manu to go in and Vaai came out with the empty bottles while the defendant was standing at the door.
  2. Vaioa when asked in cross examination as to whether authorization from the supervising officer must be sought and obtained before a prisoner from their cell block is allowed out said that was his understanding but at most times the police officers on duty at their cell block would allow the prisoners to come out to fetch water and go back in without seeking authorization from the supervising police officer. He said Vaai never came back during the night and when they woke up in the morning Taai told them that Vaai was sleeping. Vaioa never saw the defendant at any time during the night the next he saw of the defendant was when he came in the morning to bring them their breakfast.

Sialaoa Seemu:

  1. Sialaoa Seemu was originally to escape with Vaai Panapa from prison. On the day in question after their faigalotu (evening prayers) he advised Vaai Panapa not to go ahead with the plan to escape. Sialaoa Seemu said that Taai Taai had spoken to them about the plan for about 4 times and that the defendant at no time was ever involved.
  2. The plan was to come out of the cell block in the disguise of getting water from the water tank. He said Vaai was crouching next to the door with 3 empty bottles and when the defendant opened the door to let Taai in Vaai went out while the defendant was standing at the door. He said that the defendant asked Vaai where he was going. He also said that the defendant called out to Vaai but Vaai did not respond. The defendant then said that Vaai had probably gone to the general prisons. Sialaoa said that it was not unusual for Vaai to go out of the cell block to go to the general prisons and to the police officers house to get food.
  3. The next he saw of Vaai was in the morning at around 5am when the defendant opened the door to bring in their breakfast. He heard the defendant calling out to Vaai and telling him off before Vaai went in.

Vaafagota Faavae:

  1. Vaafagota Faavae said that when they had their faigalotu on the day in question Taai Taai was not present. He heard Sialaoa Seemu advising Vaai Panapa not to go ahead with the plan to escape. He said that the defendant brought Taai Taai and he opened the door for Taai to go in. Taai then motioned (geno) to Vaai Panapa to bring the water bottles to go get water. Vaai got the water bottles and went out while the defendant was standing at the door. He said that the defendant called out to Vaai but there was no response and the defendant walked to where Vaai went and that was the last he saw of the defendant or Vaai until the next morning.

Tui Samania:

  1. Tui Samania said that Sialaoa Sialaoa after their faigalotu advised Vaai not to go ahead with the plan to escape from prison. The defendant brought Manu Toalevao first. He unlocked the door and Manu Toalevao went in the cell block. The defendant then locked the door and went to look for Taai. He brought Taai and Taai called out to Vaai to bring the water bottles to go get water and Vaai walked out to get water. That was the last he saw of Vaai until the next morning.
  2. Tui said he woke up early the next morning and heard two people talking. He went to the bathroom and saw Taai standing at the bathroom window with a mobile phone. He asked him about the phone and Taai told him that it was a phone from Vaai who was waiting outside for the defendant to open the door to bring the breakfast for him to come in.

Taai Taai:

  1. Taai Taai gave evidence that the whole thing was initiated by the defendant who approached him and told him that he needed $2000 and a mobile phone. The defendant also said to him that he needed two (2) prisoners to escape from the prisons to go get it. He said that he discussed the matter with his cell mates of Cell Block # 14 and everyone wanted in.
  2. On the day in question he was summoned by the prison warden named Pago and when he and Manu Toalevao were walking back to their cell block at curfew time at 4pm he saw Vaai Panapa already at the water tank. He said the door was opened by the defendant and he stood next to it.
  3. Taai said that the defendant woke him to bring the breakfast in and he was told to bring their clothes in that were left to dry outside and to also bring Vaai in who was crouching next to the trees that the clothes were left to dry.

Lauea Tausoga:

  1. Sergeant Lauea Tausoga was the supervising officer for the 3.30pm shift on 18 June 2014 until 8am the next morning. He told the court that there were 4 of them working on this shift. Constable Anamani Sigapoa was allocated to Cell Blocks #14 &15. They refer to these cell blocks as ‘special cells’. He said that normally 2-3 officers are allocated on duty to these special cells. On their shift the defendant was the only officer allocated to these cells.
  2. Sergeant Tausoga when asked about the procedure concerning these special cell blocks said that authorization must be sought and obtained from the supervising officer before the doors to these cells are opened and/or before a prisoner from these cell blocks are allowed out to get water or to go to the office when summoned etc. He said that the defendant never sought his permission for the door to be opened to allow Vaai Panapa out to get any water. He said the defendant never reported anything to him that night about a prisoner having escaped from prison. He cannot remember if the defendant filed a written report before the end of their shift.
  3. Sergeant Tausoga was also asked about an Occurrence Log Book and he confirmed that there is such a book which would record every time the door to Cell Blocks #14 &15 is opened or when a prisoner is allowed out or when something happened during shift if someone had escaped etc. He said police officer Tuatasi Solomona was allocated to the main gate and he was also responsible for the Occurrence Log Book. He said the process is to record everything that is reported in the Occurrence Log Book. Any movement concerning Cell Block #14 is or should all be recorded in the Occurrence Log Book.
  4. The defense sought leave of the court to recall Prosecution witness, Sialaoa Seemu because the witness Taai Taai who was not on the list of witnesses for the prosecution was later called by the Prosecution after the 5 inmates or prisoners have given evidence. The witness was recalled for the defense to put to him questions in relation to the evidence of Taai Taai.

Sialaoa Seemu: (Recalled)

  1. Sialaoa Seemu basically denied the evidence of Taai Taai that the defendant had at any time approached Taai Taai and asked him for two (2) prisoners to escape from prison to get him $2000 and a mobile phone. Sialaoa also said that he had never heard Taai Taai mentioned this to them or said the defendant’s name. He told the court that he had an argument with Taai when he told Taai that he was going to tell police about Vaai escaping from prison. He also denied the defendant ever having said to him that he was not going with Vaai because he may not return. Sialaoa maintained that the whole idea or plan for Vaai to escape was that of Taai Taai himself.
  2. The defense called the defendant, Anamani Sigapoa to give evidence even though the defendant is not compelled to give evidence as he is presumed innocent until proven guilty. As such the defendant does not have to prove his innocence but the prosecution to prove the offence beyond reasonable doubt that the defendant committed the offence he is being charged with. Nevertheless the defendant opted to give evidence.

Anamani Sigapoa:

  1. Anamani Sigapoa gave evidence that there were five police officers on duty on the 18 June 2014. Their shift started from 3.30pm till 8am the next day. The five police officers were:
  2. Anamani’s evidence was that he took prisoners Manu Toalevao and Taai Taai back to Cell Block #14 at 4pm curfew time. They got to the door and he un-clicked the lock but at that time Manu had walked back to buy cigarettes from the prison shop less than 50 meters from the cell block (see Exhibit D1). He went back to get Manu while Taai was standing at the door. He did not click the lock (or lock it again) or had unlatched the door when he went to get Manu.
  3. He said he did not know what time or when prisoner Vaai Panapa went out of Cell Block #14. He definitely was not standing at the door as the other prisoners who gave evidence for the prosecution said when Vaai went out. He only knew that Vaai was not in cell block or was outside when he went to take the breakfast of sua araisa for the cell block at around 5.30am. He said that Vaai came from the side when he opened the door. He asked Vaai how he went out of the cell block and Vaai told him that Taai Taai let him out.
  4. Anamani said he never approached Taai Taai and said to him that he wanted two prisoners to escape from prison to go get him $2000 and a mobile phone. He denied ever having been part of a plan or hatching a plan with Taai for a prisoner or two to escape from prison.
  5. He told the court that Cell Blocks #14 and15 are like maximum security blocks which hold the seasoned offenders and those that have escaped from prison numerous times. The prisoners in these cell blocks are not allowed out unless authorization is sought and obtained from the supervising police officer on duty. If a prisoner is allowed out under authorization it is or should be recorded in the Occurrence Log Book by the officer allocated on duty as the watch house keeper of a shift. In this case it would be Constable Tautai Solomona. He also said that whenever the keys are given to him and when the doors to these cell blocks are opened are all or should be recorded in the Occurrence Log Book.
  6. Anamani also told the court that he reported Vaai to their supervisor Sergeant Lauea Tausoga in the morning when he found out that Vaai had escaped during the night and he also filed a report on the matter as instructed by Sergeant Lauea Tausoga.

Discussion:

  1. The issues are:

(i) Whether the defendant Anamani Sigapoa actually assisted or concealed the escape from prison of prisoner Vaai Panapa; and

(ii) That the defendant Anamani Sigapoa knew that Vaai Panapa had so escaped.

  1. The defendant does not dispute that he was on duty at Cell Block #14 from 4pm – 8am the next morning. The defendant also does not dispute that the prisoner Vaai Panapa was in lawful custody as he was serving an imprisonment term and that he escaped from Cell Block #14 on the night he was on duty.
  2. The defendant disputes that he assisted and/or concealed prisoner Vaai Panapa’s escape from prison on 18 June 2014.
  3. The prosecution case is that the defendant was part of the plan and that it was no coincidence that Vaai escaped from prison but that the defendant allowed him out of Cell Block #14 in the disguise of getting water. They submitted that the defendant assisted and concealed the escape of Vaai Panapa as follow:

(i) That he was standing at the door and had allowed Vaai Panapa out of Cell Block #14; or

(ii) That the defendant deliberately left the lock unlocked when he went to get Manu Toalevao ;

(iii) That he allowed Vaai Panapa back in to the cell block when he took the breakfast in; and

(iv) That the defendant never reported the matter to the supervising police officer, Sergeant Lauea Tausoga.

  1. The 5 inmates – Vaai Panapa, Vaioa Solia, Sialaoa Seemu, Vaafagota Faavae and Tui Samania, their evidence were consistent in the following:

(i) That the defendant was not part of the plan or conspired for prisoner Vaai Panapa to escape from prison to burgle and steal and bring it back to the cell block.

(ii) It was Taai Taai who was behind the whole thing and that at no time was the defendant ever present when Taai discussed the plan of escape with them.

(iii) The plan was for Vaai Panapa to come out of the cell block in disguise of getting water.

(iv) The defendant was standing at the door when Vaai went out with empty water bottles.

(v) There is a tap inside Cell Block #14 for the inmates to use but were not sure whether water was on or not.

(vi) They only saw the defendant when he came to bring Taai Taai and Manu Toalevao to the cell block at 4pm and in the morning around 5.30am the next day when he brought their breakfast.

(vii) Taai Taai was the matai of Cell Block #14.

  1. It is clear from the evidence that the way for prisoner Vaai Panapa to come out of Cell Block # 14 was in the disguise of getting water from the water tank just behind the cell block. Vaai said Taai came in to the cell block and said to him to bring the water bottles to go get water. Sialaoa said Vaai had been waiting next to the door with water bottles. Vaafagota said Taai came in and nodded (geno) at Vaai to come with water bottles. Tui Samania said that Taai came in and called out to Vaai to come with water bottles. However, Taai himself said Vaai was already crouching at the water tank when he and Manu Toalevao were walking to the cell block.
  2. Vaai told the court that he gave the mobile phone that he stole to Taai. Tui Samania said he woke up to go to the bathroom and heard people talking and saw Taai standing at the 5th window talking to Vaai who was standing outside. He asked Taai about a mobile phone he was holding and Taai told him it was from Vaai.
  3. The defendant denied that he was standing at the door but that he had gone to get prisoner Manu Toalevao who had walked back to the prison shop to get cigarettes. The prosecution witnesses Vaai Panapa, Sialaoa Seemu, Vaioa Solia and Vaafagota Faavae all said that the defendant brought both Taai Taai and Manu Toalevao, Taai Taai went in first and the defendant went back to get Manu. He did not know that Vaai had come out of the cell block or what time Vaai came out of the cell block.
  4. The defendant admits that his mistake was not clicking the lock again when he went to get Manu Toalevao but that he had trusted Taai Taai the matai of Cell Block #14 who was at the door. That matai of cell blocks assist the police officers with their work at the prisons. The defendant denied that he had left the lock un-clicked because he knew of the plan for a prisoner to escape.
  5. The defendant was asked why he did not search prisoner Vaai when he came back in the morning as is the procedure and he responded because he was thinking of his safety as he was the only officer on duty with these cell blocks. Sergeant Lauea Tausoga said that there are usually 2 -3 police officers to be on duty on Cell Blocks #14 & 15 referred to as ‘special cells’. The defendant was the only officer allocated to be on duty with these cell blocks.
  6. All the prisoners said that the defendant was never involved with the plan for a prisoner or prisoners to escape that it was all Taai’s plan.
  7. Taai Taai is the only one who said that it was the defendant who approached him and asked for two (2) prisoners to escape from prison to go get him $2000 and a mobile phone. Vaai’s evidence was for him to escape to go get beer and cigarettes. Vaioa Solia said for Vaai to go burgle and steal and bring it back to their cell block. None of the prison inmates who gave evidence mentioned for Vaai to escape to get $2000 and mobile phone for the defendant.
  8. Vaai escaped and came back with a stolen mobile phone which he gave to Taai Taai. If according to Taai’s evidence that the defendant wanted $2000 and a mobile phone. Why did he not give the mobile phone to the defendant?
  9. If the prisoners (except Taai Taai) are saying that the defendant was never involved with the plan then how could he have ‘knowingly assisted’ in the escape of Vaai Panapa?
  10. If the defendant (for argument sake) was standing at the door when Vaai went out that does not mean he knew of the plan for Vaai to escape. There is the evidence of Vaioa Solia and Sialaoa Seemu that it is not unusual for Vaai to go out of the cell block to go to the general prisons area or to the police officers house or that prisoners are usually allowed out of their cell blocks without authorization.
  11. Sergeant Lauea Tausoga said that the defendant never reported anything or asked for his authorization to allow prisoner Vaai Panapa to go out of Cell Block #14 to get water. He was asked whether the defendant filed a written report and he told the court that he could not remember. Sergeant Tausoga confirmed the existence of the Occurrence Log Book but he did not say in evidence whether he saw or looked at this book to see if any of the things on this particular shift was recorded.
  12. The police officer Tautai Solomona who was on duty as watch house keeper was responsible for the Occurrence Log Book. This officer was not called to give evidence nor was the Occurrence Log Book made available to the court as evidence. The prisoner Manu Toalevao who is still serving a prison term was also not called to give evidence.
  13. The availability of Tautai Solomona and the Occurrence Log Book would have greatly assisted the court as to whether the defendant reported the matter as this has a huge bearing on the issue of concealment.
  14. As such, the court is left with the questions that could it be the reason why the defendant did not ask for authorization was because he did not know that Vaai had come out of the cell block? Did the defendant ever report the matter? Did Manu Toalevao walk back to the shop to get cigarettes? Did the defendant go after Manu Toalevao?

Conclusion:

  1. The defendant does not have to prove his innocence as he is presumed innocent until proven guilty. As such, it is the prosecution that is to call evidence to prove the guilt of the defendant beyond reasonable doubt. The defendant does not have to give evidence to prove his innocence. In this case the defendant waived that right when he decided to give evidence. Even if the defendant gives evidence it is still the prosecution evidence or word against that of the defendant.
  2. I find that there is too much doubt in the prosecution evidence and therefore the prosecution has failed to prove the charge against the defendant beyond reasonable doubt.
  3. I find that the defendant, Anamani Sigapoa did not knowingly assist or concealed the escape of prisoner Vaai Panapa from lawful custody.
  4. The defendant, Anamani Sigapoa is acquitted of the charge of rescue he is charged with under section 144 of the Crimes Act 2013.

................................................
Judge Mata Keli Tuatagaloa


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