Police v Chan Tong [2010] WSSC 80 (8 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

KLEN CHAN TONG,
male of Togafuafua
First Defendant

AND:

FILI FAULALO FUIMAONO,
male of Leulumoega-tuai and Fugalei
Second Defendant

AND:

PULE LIU,
male of Foua Salelologa and Lalovaea
Third Defendant

Presiding Judge: Justice Slicer

Counsel: F Lagaaia & T Nelson for the Prosecution
S Leung Wai for the First Defendant
T Atoa for the Third Defendant

Hearing: 5, 6, 7 and 8 July 2010
Decision: 8 July 2010

Charge: Robbery

DECISION OF SLICER J

1. On 19 August 2008, the complainant Terry Bourke was alone at his home in Siusega. At about 10AM, two men came to his home and demanded to be let in. He refused and attempted to call the police. One or both of the men kicked in the door and forced entry. The Court accepts that one of them was carrying a knife and a large rock. The taller of the two demanded money. Bourke was beaten up. He suffered serious injuries which included fractures to the left orbital wall, and significant injuries to his eyes, mandible, neck, face and mouth. The attack was brutal and prolonged. They were caused by a hard object. The Court finds he was struck with a rock.
   
2. The second man took a television set. Other property were stolen which included an iron and items of jewelry. Bourke was admitted to hospital where he was treated. He remained in hospital for ten days.
   
3. Bourke heard a vehicle start up outside and then move off. The victim was unable to identify either attacker at a line-up or in Court.
   
4. Police commenced their investigation. On 11 March 2009, they interviewed Pule as a potential witness. He made a statement, with part of which was admitted into evidence. On 12 March, they interviewed Nikolao Pati who told them that he had been in the vehicle with the three defendants at the scene of the crime. Nikolao denied involvement but implicated the other three. Nikolao was called as a witness at the trial.
   
5. On 13 March, police interviewed each of the three defendants. Pule and Fili admitted their involvement in the crime. Klen exercised his right of silence and made no admissions.
   

VOIR DIRE

6. The Court held a voir dire. It admitted into evidence the first 7 paragraphs of the witness statement made on 11 March. It did not admitted the remaining portion, apart from the signature. It did so because there had been a failure by police to warn the defendant. It found that the officer had reasonable grounds for suspecting that the person had committed an offence. He should have warned the suspect at the time the defendant told police he had gone to the house (see: Heydon J.D. (2000) Cross on Evidence (6th Ed), p.1013).
   
7. On the following day, police officers interviewed Nikolao. At some stage the question was referred upstairs to a more senior officer and the officer was advised to take a witness statement only.
   
8. The Court accepts that it is likely that on 12 March police wished to have Nikolao as a witness against the others. That might explain why they chose not to conduct a caution statement but chose to obtain only a witness statement from Nikolao.
   
9. The Court held a voir dire on the caution statements of Pule and Fili. It finds that there was no violence, intimidation or inducements used to obtain admissions from the two. Those admissions related to their own involvement.
   
10. There was a defect in the recording of the caution statement of Fili. The same caution was repeated three times. That was careless. But the Court is satisfied that Fili was warned of his right to silence. It accepts the oral evidence given by the officer. It also accepts the practice that the officers read from cards which contain the three cautions. It is likely the officer typed the one caution three times. There should be more care in the future.
    
11. In his caution statement Fili admitted striking Bourke. In his caution statement Pule admitted taking the television set. The defendants gave evidence on the voir dire.
    
12. In real terms they did not deny the accuracy of their own admissions. They claimed that the police had forced them to implicate Klen rather than Nikolao. That does not affect their own admissions against themselves.
    
13. The Court found that the confessions were made voluntarily and were admissible on the trial.
    

THE EVIDENCE

14. There were four people in the vehicle which was a taxi operated by Klen. Two men entered the house and the others left the immediate scene and returned when rung by Fili.
    
15. My suspicion is that both Klen and Nikolao were involved. My suspicion is that either or both planned the robbery and if planned by one, that the other aided in the crime.
    

FILI FUIMAONO

16. Fili admitted his responsibility in the crime, in both his caution statement and in Court. He was the one who physically attacked Bourke. The Court is satisfied beyond reasonable doubt that he is guilty of the crime.
    

PULE LIU

17. Pule admitted presence at the scene, entry into the house and the removal of the TV. He admitted that in his interview with police and in evidence at trial. The Court is satisfied beyond reasonable doubt that he is guilty of the crime.
    

KLEN CHAN TONG

18. The Court has its suspicions but is required to be satisfied beyond reasonable doubt of his guilt.
    
19. The evidence of statements made by Fili and Pule to police is not admissible against him. Both Fili and Pule gave evidence at trial and both claimed that Klen had nothing to do with the crime.
    
20. Klen made no admissions to police. He denied any involvement on the trial and his evidence was not shaken through cross examination.
    
21. The only evidence against him was that he was the driver of the vehicle and the evidence given by Nikolao. Given the evidence of Pule and Fili and the admitted presence of Nikolao in the vehicle, the Court is required to regard him as an accomplice.
    
22. A person not charged nor given an indemnity has a powerful motive to give evidence in favour of the prosecution. It is dangerous to convict on the uncorroborated evidence of an accomplice (Davies v DPP [1954] AC 378).
    
23. Nikolao was not an impressive witness when cross examined. He was careful to protect his own interests. He had been allowed to leave the police station before Klen was brought in. Nikolao's father was allowed to remain at the police station. According to Constable Tualai Luuga both Pule and Fili had claimed at the police station that Nikolao was involved. Klen claimed the same thing.
    
24. Constable Tualai also stated in evidence that Klen had denied involvement before the formal interview.
    

"SLW: from your investigations, statements from Pule & Fili they did mention that Nikolao was somehow involved?

Wit: yes

SLW: and my client was brought in he did also say Nikolao was also involved, correct?

Wit: yes

....

SLW: ...is it correct that my client denied that he was involved in this matter & told you?

Wit: that is correct

....

HH: on what day did Keleni tell you or deny that he had done it?

Wit: that day he was brought in sir

HH: on the same day he made the caution statement?

Wit: yes your honour

....

Wit: after the caution statement was taken, during general conversation he said that it was correct, he was present during the offending"

25. That is the evidence of the officer. That statement means Klen admitted presence but that answer is consistent with his version given at trial that he drove the taxi without the knowledge of the crime.
    
26. The evidence as a whole suggests each of the following possible findings:
    
    1. Both Klen and Nikolao were directly involved in the criminal conduct
       
    2. Klen had planned the robbery and Nikolao knew nothing of the planned crime
       
    3. Nikolao planned the crime and Klen was an innocent driver
       
27. I repeat that Nikolao should be regarded as an accomplice by the Court in considering his evidence.
    
28. While the Court might suspect the first of the above possible findings, there is not sufficient evidence to satisfy me beyond reasonable doubt as to guilt. The finding is that Klen Chan Tong is not guilty of the crime.
    

JUSTICE SLICER