Police v Sione [2002] WSSC 11 (10 June 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

LUCAN TIMOTHY SIONE
of Alafua and Faleula.
Defendant

Counsel: R Schuster and F Vaai Hoglund for prosecution
TK Enari for accused

Hearing: 19, 20 February and 14 March 2001; 2 May 2002
Judgment: 10 June 2002

JUDGMENT OF SAPOLU CJ

The hearing of this case in 2001 was unfortunately overtaken by the hearing of election petitions following the general election held in that year. Those election petition hearings were concluded at the end of August but this Court then had to deal with a case arising from election prosecutions that were filed in the District Court. Soon after that case, I had to attend judicial conferences overseas. Eventually this case was set down for continuation of the hearing on 9 April 2002 but by mistake the accused did not appear when the hearing was to commence. Thus it was not until 2 May that the continuation of the hearing was held and completed. Then when judgment was about to be delivered on 6 June, the accused did not appear.

Now the accused is charged in six separate informations with the offences of robbery, attempted robbery, assault with intent to commit robbery, causing actual bodily harm without lawful justification, being armed with a dangerous weapon without any lawful purpose, and unlawful entry of a building with intent to commit an offence therein. Except for the offence of robbery which is within the jurisdiction of his Court, all the other offences with which the accused has been charged are within the ordinary jurisdiction of the District Court even though this Court can also hear and try the same offences. I suspect the reason why the prosecution has brought the charges for those offences before this Court is because of the charge of robbery which falls outside the jurisdiction of the District Court. But the prosecution must ensure that it has the evidence to prove the charge of robbery otherwise it will be preferable and more convenient to bring the charges which are ordinarily within the jurisdiction of the District Court before that Court. The reason is that if an accused is convicted on such charges, the District Court which ordinarily deals with the offences that form the subject of those charges will be aware of the range of penalties that are usually imposed for those offences. It will thus be easier to maintain parity in the sentences imposed. That advantage does not lie with this Court.

At the trial of this case, counsel for the accused challenged the admissibility of a caution statement alleged by the prosecution to have been obtained by the police from the accused. The ground of the challenge was that the statement was not voluntary. Following a voir dire, I ruled that the statement was not voluntarily given to the police by the accused and therefore was not admissible to be tendered as part of the evidence for the prosecution.

At the close of the evidence for the prosecution, counsel for the accused submitted that there was no case to answer in respect of all the six charges. The basis for that submission was that the evidence of identification of the accused tendered by the prosecution was so unsatisfactory that the accused should not be required to give or call evidence. The trial should, therefore, be terminated and all the charges be dismissed. I ruled against that submission on the basis it was presented and held there was a case to answer in respect of all charges. Following on from that ruling, the accused elected to give and call evidence. I turn now to the evidence.

At the time of the alleged offences the victim, who comes from the village of Fagamalo in Savaii, was working for one Epi Arp of Alafua doing domestic chores and baby sitting. She was at the time 34 years of age. On Friday night, 24 November 2000, she was by herself and a three year old child at the home of the Arps at Alafua. Whilst she was eating at the kitchen, she heard someone knocking on the front door and she turned on the light at the front door before she opened it. That was between 8.30 pm. and 9.00 pm. When she opened the door a male person was at the door. That person then punched her and demanded to give him money. He was wearing black jeans and a black jacket with a hood covering his face except his eyes. When the victim did not give him any money he threatened her with what appeared to be a 12 gauge shotgun. He then assaulted her again by punching her and striking her twice with the gun. They then struggled and she managed to pull off the hood covering his face; she was thus able to see his face. She then called out to her neighbours for help but her assailant took off.

The victim also testified that she suffered injuries to her head and hands as a result of the assault on her. She was taken by the police to the hospital the same night. The bleeding wound on the left side of her head required four stitches. There was another but less serious injury on her forehead. These head injuries together with the injuries on her hands were all caused by her assailant punching and then striking her with the gun.

The victim in her evidence also gave a description of her assailant’s physical appearance as fair and having Chinese looks as she was able to see his face unimpeded at close range when she pulled off the hood that was covering his face. She also testified that he is short as she is slightly taller than him. All of this description fits the physical built and facial appearance of the accused. She, however, admitted that she did not know the person who assaulted her as that was the first time she had seen him.

The following morning at about 7.00 am, police constable Lene Tanielu called the victim on the phone to come to the police station “if this was the person who came at night”. Later that morning, the police picked up the victim from Alafua and brought her to the police station. Upon arrival at the police station, the victim told constable Tanielu, “I am certain of the person.” Constable Tanielu then walked the accused and another male person past where the victim was sitting. She was asked which one of them was she certain about. She pointed to the accused.

The prosecution also called to give evidence two sisters, namely, Ainslie Anesone (Ainslie) who is 24 years of age and works as a secretary at the National University of Samoa and Fia Anesone (Fia) who is 22 years of age and is a third year student at the same university. According to the evidence of the witness Ainslie, she and her sister Fia were walking home on Friday night, 24 November 2000, at about 10.00 pm. after playing bingo when they met the accused and a boy named Poni on the road infront of the gate to the house of Pule Lameko at Alafua. At that time the light on each side of the gate was on. The accused and Poni were walking at a quick pace and when they met, Poni said something to them but this witness did not say what it was. She described what the accused was wearing as a black T-shirt, black jeans and a black jacket with a hood. She further testified that the two boys they met both live at Alafua and even though she is not acquainted with the accused, she knows him as they live not far from each other. Where this witness and her sister met the accused and Poni is about two minutes walk from the house of the Arps where the victim was staying.

The witness Fia gave substantially the same account as her sister Ainslie as to how they met with the accused and Poni on the road in front of the gate to the house of Pule Lameko whilst the light on each side of that gate was on. Her description of the clothes the accused was wearing when they met on the road is also substantially the same as the description given by her sister. She also testified that when they met the accused and Poni, Poni mentioned to her and her sister a dance that was held at St Josephs. She further testified that even though she is not acquainted with the accused, she knows him and has known him for three years as he lives at Alafua and for most days she sees him walk past the house of her family at Alafua.

The accused in his evidence denied it was him who assaulted the victim. He testified that he lives at Faleula but not Alafua. Sometimes during weekends he would stay at Alafua when he comes to visit a friend of her mother at Alafua. However, under cross-examination he said that the house of his family is at Alafua on the main road. It is not far from the house of the Arps (where the alleged offences occurred). And the house of the Arps can be seen from the house of his family if one were to stand on the main road. He further testified that on the Friday the alleged incident occurred, he came from Faleula to Alafua and started drinking alcohol with other boys from 4.00 pm in the afternoon until about 7.00 pm at night when he went to the dance that was held at St Josephs at Alafua. He was accompanied to the dance by his brother Lui, a friend and another boy. He did not leave the dance to go anywhere else until the police came and apprehended him. He denied under cross-examination that it was him who assaulted the victim. He also denied the evidence given by the prosecution witnesses Ainslie and Fia that they met him and Poni on the road in front of the gate to the house of Pule Lameko. However, he also said under cross-examination that those two girls, meaning Ainslie and Fia, had often seen him, but since the alleged incident occurred, he had not seen them again. In his evidence in chief he also said that he did not know a boy by the name of Poni, but under cross-examination he said that Poni lives at Alafua and he used to see Poni when he comes to Alafua on some weekends.

Poni Lotau was called to testify for the accused. His evidence was that on the night in question he was at the dance that was held at St Josephs at Alafua but he did not see the accused there, and when he was walking along the road with another boy they did not meet any girls. In his evidence in chief, this witness also said that he does not know any girl at Alafua by the name of Fiatamalii Anesone (Fia) or by the name of Ainslie Anesone (Ainslie). However, under cross-examination he said that he often sees Fiatamalii (Fia) and Ainslie at Alafua and they know him. He further said under cross-examination that the accused was living at Alafua before the alleged incident occurred. This is inconsistent with the evidence of the accused that he lives at Faleula but only comes to Alafua on some weekends.

Lui, the brother of the accused, was also called as a witness for the accused. He said in his evidence that on the night in question he went to the dance that was held at St Josephs with his brother at about 8.00 pm, after they had been drinking a bottle of spirits. Under cross-examination, this witness said he has a close relationship with his brother and would help him if he is in trouble. That was why he was in Court, to help his brother. This witness also could not recollect the clothes his brother was wearing at the dance and appeared to have memory problems in that regard.

Bearing in mind the special need for caution before convicting an accused in reliance on evidence of identification, and the possibility that an honest and convincing witness may be mistaken about identification or recognition, I am nonethless satisfied on the whole of the evidence relating to identification that it was the accused who entered the house of the Arps at Alafua on the night in question and assaulted the victim and demanded money from her. However, it must be said that the manner in which the police made the victim to identify the accused at the police station the morning after the alleged incident was not satisfactory. A proper identification parade should have been carried out and the victim asked to see if she can pick out her assailant. If the only evidence of identification was the identification at the police station when the accused and one other male person were walked past the victim and the victim pointed to the accused, I would have been disposed to dismiss all the charges as it would be unsafe to enter a conviction on such an unsatisfactory mode of identification alone. But there are other evidence, direct and circumstantial, which go to support the correctness of the identification of the accused made by the victim at the police station.

In the first place, the victim had sufficient time to observe the clothes her assailant was wearing and his built at the time of the alleged offences whilst the light was on. It was not a brief fleeting observation. She first saw her assailant when she opened the front door after she turned on the light at the front door. She continued to see him when he punched her, demanded money from her, and struggled with her. That was not a brief fleeting encounter. The victim also had a full, unimpeded, and extremely close view of her assailant, face to face, with the light still on. It is true the assailant had a hood covering his face except his eyes. But the victim managed to pull off the hood to see his face whilst they were struggling. Obviously the victim was keen to see who her assailant was. Again she was able to have a full, unimpeded, and extremely close view of her assailant’s face, a direct face to face. The victim’s observations of her assailant were, of course, made under stressful circumstances. In spite of that factor, I am still satisfied that in all the circumstances, the victim was able to form in her mind a sufficiently reliable picture of her assailant’s physical built and what his face looks like before she identified the accused as her assailant to the police at the police station early the very next morning, whilst her impressions of her assailant’s built and facial appearance were still fresh in mind.

Secondly, the description given by the victim of the clothes her assailant was wearing fits in with, and is supported by, the description given by the witnesses Ainslie and Fia of the clothes they observed the accused wearing when they met him with the witness Poni the same night, on the road in front of the gate to the house of Pule Lameko at Alafua whilst the lights on both sides of that gate were on. From the evidence, that was after the time the victim was assaulted. Where they met is also about two minutes walk from the house of the Arps where the victim was staying. Even though Ainslie and Fia are not acquainted with the accused, they do know him and were able to recognize him as they live not far from where he lives at Alafua. Fia also said she has known the accused for three years as for most days she sees him walk past her family’s house. Even the accused conceded under cross-examination that Ainslie and Fia often see him at Alafua. Thus the evidence given by Ainslie and Fia that they saw the accused and the witness Poni on the night the alleged offences occurred, is more than just evidence of identification of the accused; it is also quality evidence of recognition of the accused by Ainslie and Fia.

I have decided to accept the evidence given by Ainslie and Fia as honest and correct. Their evidence that the accused lives at Alafua is also supported by the evidence given by the witness Poni, who was called for the accused. Poni said that before this incident, the accused was living at Alafua. This evidence contradicts the accused’s own evidence that he lives at Faleula but sometimes he comes to Alafua during weekends to a friend of his mother. It is also clear from the evidence that the house of the accused’s family is at Alafua. It would, therefore, seem rather odd for the accused to live at Faleula when the house of his family is at Alafua. The accused also agreed under cross-examination that the witnesses Ainslie and Fia often see him at Alafua, but he has not seen them again after the alleged incident.

I have also decided to accept the evidence given by Ainslie and Fia that they did meet on the road with the accused and the witness Poni and reject the evidence given by Poni that when he came with another boy, they did not meet any girls on the road. In his evidence, Poni said that he was at the dance that was held at St Josephs. Fia in her evidence said that when they met the accused and Poni on the road, Poni mentioned to them the dance held at St Josephs. Thus Poni’s own evidence tends to confirm the truthfulness of the evidence given by Fia and Ainslie about their having met on the road. The credibility of Poni is also not helped by the fact that in his evidence in chief, he denied that he knows Ainslie and Fia, but under cross-examination he conceded that he often sees those witnesses and they know him. Ainslie and Fia, therefore, must have recognised Poni when they met him and he spoke to them. Thus, the evidence given by Ainslie and Fia that they met Poni on the night in question is not just evidence of identification of the witness Poni; it is also evidence of recognition of that witness by Ainslie and Fia.

To turn now to the evidence of the accused, I must say that I disbelieve his evidence. He said that he lives at Faleula but comes to Alafua during some weekends and stays with a friend of his mother. Under cross-examination he admitted that the house of his family is at Alafua. The witness Ainslie and Fia also said that the accused lives at Alafua. Likewise, the witness Poni said that the accused lived at Alafua until the alleged incident. The accused also said in his evidence in chief that he does not know the witness Poni, but under cross-examination he said Poni lives at Alafua and he used to see him when he comes to Alafua during some weekends. These inconsistencies between the evidence given by the accused and the evidence given by other witnesses (including one of the accused’s own witnesses), as well as the inconsistency between his evidence in chief and his evidence under cross-examination, do not generate confidence in his credibility. I reject his evidence including his denial that it was not him who went to the house of the Arps and assaulted the victim and demanded money from her. I also reject the evidence of the witness Lui, the brother of the accused, which seems to suggest that the accused was at the dance held at St Josephs at all times on the night in question. For all the foregoing reasons, I am satisfied that it was the accused who unlawfully entered the house of the Arps at Alafua and assaulted the victim and demanded money from her.

On the evidence, however, the charge of robbery is dismissed. By s.92 of the Crimes Ordinance 1961, robbery is theft accompanied by violence or threats of violence to any person or property. No theft occurred in this case because the accused did not manage to steal anything. He get no money from the victim. Of the remaining charges, I find those charges to have been proved beyond reasonable doubt.

This matter is adjourned to Tuesday, 18 July, for a probation report and sentencing.

CHIEF JUSTICE

Solicitors:

Attorney General’s Office for informant
Kruse, Enari & Barlow for accused