Police v Ponifasio [2020] WSDC 2 (20 February 2020)

DISTRICT COURT OF SAMOA
Police v Ponifasio [2020] WSDC 2

Case name:	Police v Ponifasio
Citation:	[2020] WSDC 2
Decision date:	20 February 2020
Parties:	POLICE v JEREMIAH AMOTAI PONIFASIO male of Vaiusu
Hearing date(s):	20 February 2020
File number(s):	D2679/19
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa
Judge(s):	Judge Matautia Raymond Schuster
On appeal from:
Order:	I find therefore that the defendant has no case to answer as the prosecution have failed to establish a prima facie case given that there was evidence of identification but the evidence was tenuous, insufficient and unreliable (see Police v Toamua [2015] WSSC 50 (19 May 2015)). Even if I were wrong in dismissing the charge on a no case to answer, the prosecution has failed to prove beyond a reasonable doubt the first element of the offence identifying the defendant as having committed the offence alleged. The charge is therefore dismissed
Representation:	Constable Tenari Vaai for Prosecution Defendant Unrepresented
Catchwords:	aggravating features of the offending – theft - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s161(1)(a), s165(d).
Cases cited:	Police v Toamua [2015] WSSC 50 (19 May 2015
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

JEREMIAH AMOTAI PONIFASIO male of Vaiusu
Defendant

Counsel:
Constable Tenari Vaai for prosecution.
Unrepresented defendant

Hearing: 20^th February 2020
Decision: 20^th February 2020

Decision

1. The accused is charged that “... at Vaiusu on 4^th September 2019, the abovenamed defendant of Vaiusu dishonestly took by cutting two coconut leaves valued at $10 each with intent to deprive Peato Ulugia male of Vaiusu permanently of this property” pursuant to section 161(1)(a) and 165(d) of the Crimes Act 2013 (hereinafter referred to as the Act).

The Law

2. Section 161(1)(a) of the Act provides:
   • 161. Theft or stealing –
     • (1) Theft or stealing is the act of:
       • (a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
       • (b) dishonestly, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
     • (2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that:

(a) the property cannot be returned to any owner in the same condition; or

(b) any owner is likely to be permanently deprived of the property or of any interest in the property.

(3) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
165. Punishment of theft – A person who is convicted of theft is liable as follows:

... or

(d) if the value of the property stolen does not exceed $500, to imprisonment for a term not exceeding 1 year; or ...

Facts

3. The prosecution called three witnesses: Peato Ulugia, Lupe Peato and Lise Peato. Peato ulugia is a 64 years old male of Vaiusu, has seven (7) children and retired. He gave evidence that on 4 September 2019 at about 5 – 6 pm, he was at his home at Vaiusu. The Defendant came from the back property towards the road using the access road adjacent to his house. His wife then saw the Defendant with a machete jump over the fence and cut the coconut leaves. Peato then got up and went outside of the house and called out to the defendant but the defendant kept on walking. Peato testified that the coconut belonged to him as he planted them and only about 3 years and some months old.
4. The land Peato was residing on is land belonging to the title Seiuli and he is a suli of the Seiuli title from his maternal side. At not ime did the defendant ask him for the coconut leaves. He described the defendant as small built and skinny. He also testified that the defendant has a twin brother. He testified that he asked the boy after the incident for his name and the boy said Temaia. Peato testified that his children investigated the matter and questioned the boy and it was his children that told him the name of the boy alleged to have cut the coconut leaves.
5. When questioned by the court, Peato testified that he did not see the boy cut the leaves. He saw the boy at a distance of about 30 metres using the wall behind the judges bench to the area just outside the courtroom door. As he called out to the boy, he was walking away dragging the leaves with his back towards Peato.
6. The court did not allow Prosecution to do a dock identification as prosecution did not elicit to the satisfaction of the court evidence as to the description of the defendant to warrant a dock identification. This is particularly so when the witness Peato did not see the defendants face as well as the fact that he was told by his children of the defendants name and that he had a twin brother after the alleged offence.
7. Lupe is Peato’s wife, 62 years of Vaiusu and a retiree. She testified that she was at Vaiusu on the day of the alleged offence at home with Peato and Lise when she saw he defendant come unto their land, cut the coconut leaves walk away with them. She came out and called to him: “fefe i lou faamaualuga!” but the defendant kept walking. She testified that the access road used by the defendant was only about 5 metres from their house which goes to the back where the defendants family live. The coconut that was cut is in front of the main road.
8. Lupe testified that the defendants family also live on Seiuli land and she came to live at Vaiusu since 2014. Lupe testified that the defendant has a twin brother and they have the same build. The prosecution falied to elicit from Lupe sufficient descriptive features about the defendant to establish dock identification.
9. Lise is a 41 years old mother, married and the daughter of Peato and Lupe. Lise was at home on the day of the alleged offence with her parents, husband and children. They reside at the house behind her parents. She testified that she saw the defendant from her house in the evening at about 5pm walk with a machete towards the road. It was raining at the time. Shethen saw the defendant come unto their land, cut the coconut leaves and run off as she called out to him. She noted also that her mother was calling out to the defendant.
10. She testified that it was about a distance of 20 metres (from the bench to the front courtroom door) that she saw the defendant. She described the defendant as skinny and that she knew him. In 2006 she came to live at Vaiusu. She is aware that the defendant has a twin brother named Jerome and she cannot tell the difference between them. However, it was her son that told her that the boys name was Jeremiah. The son was not called as a witness.
11. When questioned by the court, she testified that she cannot tell the difference between the defendant and his twin brother. She said that she only knew who the alleged boy was when her son told her.
12. The defendant elected not to give evidence and based on the prosecutions evidence, I as the trier of fact ruled not to call evidence from the one defense witness that the defendant advised was available for his defense.

Discussion

13. The prosecution was challenged with the presentation of its case given the evidence of the witnesses not being certain as to the identity of the defendant. Although known to them, all three witnesses testified that they were unable to distinguish the defendant from his twin brother. It was only when they asked about the defendants identity after the offence that they came up wth the name of Jeremiah. Lise’s own evidence and perhaps the prosecutions main witness testified that she could not distinguish between the defendant and his brother, both skinny and small build.
14. Lise had to ask her son who told her that it was “Jeremiah”. Even if I were to accept this hearsay evidence under section 10(1)(a) of the Evidence Act 2015, I have doubts if Lise’s son was sure himself that it was Jeremiah the person who was observed cutting the coconut leaves.

Conclusion

15. I find therefore that the defendant has no case to answer as the prosecution have failed to establish a prima facie case given that there was evidence of identification but the evidence was tenuous, insufficient and unreliable (see Police v Toamua [2015] WSSC 50 (19 May 2015)).
16. Even if I were wrong in dismissing the charge on a no case to answer, the prosecution has failed to prove beyond a reasonable doubt the first element of the offence identifying the defendant as having committed the offence alleged.
17. The charge is therefore dismissed.

JUDGE SCHUSTER