Police v Epati [2005] WSSC 48 (11 November 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SETEFANO EPATI,
male of Seesee and Leauva’a
Defendant

Counsel: Mr K Koria for prosecution
Ms R Papalii for the defendant

Hearing: 08 and 09 November 2005
Decision: 11 November 2005

ORAL RULING OF VAAI J

The accused Setefano Epati aged 25 years of Seesee and Leauva’a is charged with two informations namely:

(i) that on the 17^th May 2005 he stole $450 in money the property of his employer, the Sanoa National Provident Fund; and

(ii) that on the 17^th May 2005 he with intent to defraud by false pretence, caused Normal Asofa, an employee of Lynn Supermarket to accept a cheque in the name of Silaulii Misiluki and converted it to cash.

It is alleged by the prosecution that on the 17^th May, a number of cheques were on a desk in the Finance section of the National Provident Fund (hereinafter referred to as “The NPF”) ready for uplifting by the customer of the NPF whose loan applications were granted. One of these cheques was for Levi Faasalaina an employee of Yazaki Samoa who who upon arrival at the NPF office on the 18^th May to collect his $450 cheque was told that it has gone missing. At past two o'clock in the afternoon of the 17^th May a young man tried to cash a NPF cheque of $450 at Lynn’s supermarket branch at Lotopa but the teller and supervisor referred him to the Motootua main branch as there was insufficient cash at Lotopa. Between 4.30 and 5 o'clock the same afternoon the cheque was used at Lynn’s supermarket Motootua to purchase goods. It was normal practice for Lynn’s supermarket to accept NPF cheques as they were usually cash cheques, so that no questions were asked nor was there cause for alarm when the cheque was presented to pay for one dozen of Vailima beers.

On Friday the 20^th May Ms Reti, the Manageress of the NPF Finance Division started investigation into the missing cheque when Lynn’s supermarket banked the cheque. Ms Reti went to Lynn’s supermarket the same day but was told to come back on Monday the 23^rd as the lady teller who received the cheque on the 17^th was off work. On Monday morning the 23^rd Ms Reti went to Lynn’s supermarket, she took with her a photograph of the accused and showed it to the tellers who were on duty at Motootua and Lotopa on the 17^th before they went to NPF office where the accused was working. The teller identified the accused as the person who presented the cheque on the afternoon of the 17^th at Lotopa and Motootua.

When Ms Reti was questioned under cross examination why she took the photograph of the accused, she responded she photographed the accused as a result of descriptions given to her by Lynn Netzler’s employees. I have difficulty in accepting this evidence simply because when Ms Reti talked to the two tellers for the first time on the Monday morning the 23^rd May at the supermarket she already had the photograph of the accused. Ms Reti has already had a suspect before she interviewed the two tellers so when the two tellers and a third employee went to the NPF office they knew who they were looking from the photograph already shown to them and were asked if it was the person who came with the cheque.

The teller who received the cheque told the court it was a very busy time at the supermarket when the cheque was presented for payment of goods. The person who presented the cheque is a complete stranger to the two tellers who only caught a very brief glimpse and did not suspect or had any reason to question the identity of the presented of the cheque made out to Levi Faasalaina. Both tellers were consistent in their evidence that they saw the accused for bout twenty minutes when he presented the cheque on the afternoon of the 17^th May. Again I find their testimonies to be lacking truth, it does not take twenty minutes for the teller at the Lotopa branch to tell the presenter of the cheque to go to the Motootua branch and it does not take twenty minutes for the teller at Motootua during every busy hour to give a customer who purchased one or two items his change.

Police officer Joseph Meafua in response to a telephone call from Mr Reti went to the NPF office and found the accused, Lynn’s employee in Ms Reti’s room and the police officer was told by Ms Reti that the accused was the suspect. The accused together with the employees were taken to the Apia police station where the accused denied any involvement. He was detained at the Apia police for some 4 hours; he was pressured to admit, and unknown to the accused he was kept in a room while police officer Meafua travelled to the accused’s village Leauva’a to question the accused’s wife. At the insistence of the police officer Meafua to admit the offence the accused said he will admit the offence but he never committed it. At the suggestion of the police officer the accused paid the $450 and also apologized to Ms Reti. He was subgsequently charged by information filed on the 6^th June for theft of $450 and information filed 10^th June for false pretence.

The charge of false pretence filed 10^th June need not be considered as there is absolutely no prima facie case against the accused; the evidence tendered by the prosecution relate only to the cheque of $450 made out to Leni Faasalaina. As a consequence the charge of false pretence is dismissed.

The charge of theft of $150 depends totally on the reliability of the identification of the accused by the three employees of Lynn’s supermarket. In the face of the defence of alibi I need to remind myself that a mistaken witness can be very convincing and all the three identification witnesses can all be mistaken. I have earlier averted to the circumstances in which the identification by the three witnesses came to be made. Undoubtedly, a witness who is shown the person to be identified singly and as the person who is believed to be the suspect, will be much more likely, however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection.

Before Ms Reti talked to the three identifying witnesses already had a suspect and she took the photograph of the accused as the suspect for the three identifying witnesses to confirm. In the absence of any other supporting evidence to characterize the identification as reliable I consider it unsafe, unreliable and unsatisfactory to convict the accused on the identification evidence given by the prosecution witnesses and the charge of theft is accordingly dismissed.

I consider in this case given the conduct of the investigations by both the informant and the police the accused is entitled to costs for the two days trial. I fix costs at $1,200.00.

JUSTICE VAAI