Police v Luamanu [2011] WSSC 97 (13 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SAMAOSO LUAMANU male of Fagae'e and Salelologa.
Accused

Counsel: T Toailoa for prosecution
A Su'a for accused

Hearing: 17, 18 August 2011, 5 September 2011

Judgment: 13 September 2011

JUDGMENT OF SAPOLU CJ

The charge

1. The accused is charged under s.92 of the Crimes Ordinance 1961 that at the Blue Bird Mall at Salelologa on 12 January 2011 he did rob the Ink Patch Money Transfer of US1,850, NZ$2,280 and $11,639.50 tala.
   
2. In abbreviated form, robbery is often referred to as theft accompanied by the use of violence or threats of violence to a person or to property. Thus to prove a charge of robbery, the prosecution must first prove that there was a theft committed by the accused by adducing evidence to establish the three elements of the crime of theft. These three elements are: (a) that there must have been a taking of property, that is, a deliberate moving of property, (b) that the taking must have been fraudulent or dishonest, and (c) that the accused must have had an intention to deprive the owner of the property permanently. The prosecution must then proceed further and prove that the accused used violence or threats of violence to a person or to property with either one of the following two intents: (a) the intent to extort the property being stolen by coercing somebody by means of a threat into giving you something that person would not otherwise have given you, or (b) the intent to prevent or overcome resistance to the property being stolen. These elements of the charge of robbery were covered in the submissions of counsel for the accused.
   
3. The onus of proving the charge is, of course, on the prosecution and the standard of proof is beyond reasonable doubt.
   

General comments on the evidence

4. There are general comments I wish to make regarding the evidence in this case. Firstly, there were several discrepancies regarding the times that the various witnesses for the prosecution had seen and observed the accused on the day of this incident. Secondly, there were also some discrepancies in the evidence given by the witnesses for the prosecution regarding the facial appearance of the accused and the clothes he was wearing. Thirdly, even though the identification of an accused is not a specific element of an offence, it is an essential requirement for every offence that the prosecution must adduce credible and reliable evidence to show beyond reasonable doubt that the accused is the person who committed the offence with which he is being charged. In this case, identification of the accused as the person who committed the alleged robbery is a crucial issue. Fourthly, there were several discrepancies in the evidence given by the accused and the evidence given by the prosecution witnesses.
   
5. In respect of the times that the accused was seen by the various witnesses for the prosecution at different places on the day of the alleged robbery, it would be unrealistic to expect those witnesses to take any serious notice of the times that they saw the accused. Except for the two eye witnesses who were threatened by the robber at the time of the alleged robbery, the time factor was not important to the other witnesses when they saw the accused. Those witnesses had no reason to make any precise mental notes of the times they had seen the accused. Their evidence regarding the times they had seen the accused on the day of this incident must have been rough estimates based on their recollections.
   
6. Similarly, it is very uncommon to have people with exactly the same recollections of the facial appearance of someone they had seen several months before and what that person was wearing including the colour of his clothes. Different people tend to have different recollections of the facial appearance of a person they had seen in the past and what he was wearing at the time they saw him. This would be more so when a person has no reason to remember such things at the time he sees another person. It is therefore to be expected that there would be some discrepancies in the recollections of witnesses regarding a person they had seen in the past, especially when they had no reason to take any serious notice of exactly what the other person looked like at that time and what he was wearing.
   
7. In respect of the discrepancies between the evidence of the accused and the evidence of several of the witnesses for the prosecution, it is difficult to accept that the accused was being truthful in his evidence which was inconsistent with the evidence of several of the prosecution witnesses in several material respects. This is because no reason was shown as to why those witnesses for the prosecution would come and give untruthful evidence about the accused to the Court.
   

The evidence of the prosecution witnesses

8. The first of the two eye witnesses of the alleged robbery called by the prosecution is one Tapaua Maiava (Tapaua) an employee of the Ink Patch Money Transfer (Ink Patch) which operates a money transfer and stationery business at the Blue Bird Mall at Saleologa. Tapaua testified that on Wednesday morning 12 January 2011 shortly after 9am, a man came into the Ink Patch to change some foreign currency. Taulevale Luteru (Taulevale) the other eye witness of the alleged robbery was at the time also working at the Ink Patch. She attended to this man at the front counter and she took his foreign currency and gave it to Tapaua to change into Samoan currency. At that time, this man under the pretext of looking for a school bag to buy moved over to where Tapaua was and put a black gun about the length of a forearm on the left side of her head. Tapaua was threatened to tell Taulevale not to scream or she, Tapaua, would die. Out of love for Tapaua, Taulevale was too scared to scream for help. The man also ordered Tapaua to lock the front door and switch off the lights. She obeyed out of fear. He then asked Tapaua and Taulevale for the cash of the Ink Patch. Out of fear and distress Taulevale went to the room where the cash was kept and brought out three cash boxes and emptied them into the bag that the robber brought with him. This consisted of US$1,850, NZ$2,010, AUD$2,280, and $11,639.50 in Samoan currency. At all those times, the robber was still pointing the gun at Tapaua. The robber then took off with the money.
   
9. Tapaua also testified that this incident lasted about 25 to 30 minutes during which time she had the robber who was pointing the gun at her head under close range observation. She said the man is well-built, tall but not too tall, and slim but not too slim. This description of the robber fits the accused. She also said that the man was wearing a long sleeved army shirt, greyish knee length cargo pants, dark sunglasses, a black cap with a peak at the front and an extension on the sides and back which covered his ears and the back of his head down to the back of his neck. Tapaua also said that the man has a brownish tooth at the front part of his lower jaw and was carrying a brownish bag on one side with the strap around the opposite side of his neck. She further said that the man had a moustache and a brownish beard from his chin to his lower lip. These were trimmed short and thin.
   
10. Because Tapaua was in great fear and had not seen this man before and his head was covered by his cap and his eyes by his dark sunglasses, she was not really sure of the identity of this man even though she identified the accused in the dock as the man. In these circumstances, I must treat the dock identification of the accused by Tapaua with the utmost caution unless there are other evidence to show that the accused was the person who committed the alleged robbery.
    
11. Taulevale, the other eye witness of the alleged robbery, was also called by the prosecution. Her evidence as to what happened inside the Ink Patch and the time it happened is very similar to the evidence of Tapaua. Likewise her evidence as to the built of the robber, his moustache and brownish beard from his chin to his lower lip which had been trimmed very short, the clothes he was wearing, his dark sunglasses, his cap, the bag he was carrying, and his brownish tooth at the front part of his lower jaw. She, too, was also scared because of the gun held by the robber and the threats he made. Given these circumstances and the fact that Taulevale had not seen the robber before, I must also treat the dock identification by Taulevale of the accused as the robber with extreme caution unless there are other evidence to show that the accused was the person who committed the alleged robbery.
    
12. The witness Epenesa Fiu Tapelu (Epenesa) who is 17 years of age testified that her family's house is on the opposite side of the road almost directly from the Blue Bird Mall at Salelologa where the Ink Patch is located. She testified that on 12 January 2011 at about 7:30am she picked up the 'rubbish' around her family's house. It was not clear from her evidence how long she took to do that. Afterwards, she went and filled her family's kettle with water and put it over the fire. She then heard the dogs barking. When she looked over to where the dogs were barking, she saw a man running fast towards the bush. He was wearing a long sleeved army shirt. She had an unobstructed view of this man and he was not far from where she was looking from as she demonstrated to the Court. Epenesa said that when the man turned to the direction where she was looking from, she was able to see that it was the accused. She was also able to see that the accused was wearing a white tan top inside his army shirt. The accused then disappeared into the bush.
    
13. Epenesa also said that she knows the accused very well as they are from the same village of Salelologa. She often sees the accused in their village and he usually wears his army shirt. This is the same army shirt that she saw the accused wearing as he was running fast to the bush.
    
14. The witness Mataniufeagaimaleata Maletino (Mataniufeagaimaleata) testified that on 12 January 2011 she came in the morning from Samalaeulu to Salelologa in the Queen Maggie bus driven by one Tepa Toma. The accused was on the same bus. The bus was packed with passengers some of whom were standing in the aisle and the steps. The bus stopped at Tuasivi where three or four passengers got off. Mataniufeagaimaleata strongly denied under cross-examination that the accused was one of those passengers. After Tuasivi, the bus continued to Saleologa. She said that when the bus arrived at Salelologa it was about 8:30am. She was following behind the accused as the passengers were getting off the bus at Salelologa. She then crossed to the opposite side of the road towards the Blue Bird Mall to go to the SDPD. At that time she saw the accused behind her. She then did not see the accused again as she was going towards the SDPD.
    
15. Mataniufeagaimaleata also said that she knows the accused very well as he used to work as a cargo attendant (supakako) on her father's bus. She further said that on the morning in question, the accused was wearing a long sleeved army shirt with a white singlet inside and brownish cargo pants. The accused was also wearing dark sunglasses, an army cap, and was carrying a brownish bag (ato faafafa). Mataniufeagaimaleata said this was the same bag that the accused used to carry around when he was working on her father's bus.
    
16. The witness Tepa Toma (Tepa), the driver of the Queen Maggie bus on which the witness Mataniufeagaimaleata said that she and the accused had travelled to Salelologa, testified that he could not remember whether the accused was on his bus during that trip. He also did not know whether the accused was amongst the passengers who got off his bus when it stopped at Tuasivi. That was because his bus was packed with passengers and it was the accused's habit when he travelled on his bus to simply get on the bus and then get off at his destination without paying any fare.
    
17. Tepa also said that his bus arrived at Salelologa at about 8:30am in the morning. After all the passengers had got off, he parked his bus at the market. At about 9:30am, the accused whom he knows very well came and conversed with him. Tepa said that at that time, the accused was wearing a long sleeved army shirt, a knee length black Bermuda pants, an army cap, and a bag with a strap around his neck (ato asoa) but he did not pay attention to the colour of the bag. He also said in his evidence in chief that the accused has a brownish tooth but under cross-examination he appeared somewhat unsure whether it is in the accused's upper or lower jaw.
    
18. Tepa also testified that the accused usually has a beard and a moustache. On the morning in question when he conversed with the accused, he observed that the accused's beard and moustache had been trimmed short.
    
19. In his evidence, Tepa also denied that he had given $50 to the accused and in return the accused had pledged a gun to him as security for repayment. The significance of this evidence is that the prosecution witness Talaileva who operates a small business at the Salelologa market testified that close to Christmas 2010, the accused offered to sell a short gun (fana pu'upu'u) to him for $50. When Talaileva enquired about the gun, the accused replied that he had already pledged the gun to the witness Tepa for $50. But according to Tepa, the accused had never pledged any gun to him. The evidence given by Talaileva also suggests that around the Christmas period in 2010 the accused had a gun. The alleged robbery took place on 12 January 2011.
    
20. The witness Taylor Fomai (Taylor) testified that he knows the accused very well as the accused usually buys from his 'block' at the Salelologa market and his village of Salelavalu is next to the accused's village of Salelologa. Taylor said that on 12 January 2011 the accused came to his block at the Salelologa market at about 10:05am in the morning to buy German buns. The accused was wearing a long sleeved army shirt, back jeans, an army cap, sunglasses, and carrying a brownish bag with a strap around his neck (ato asoa). He also had a beard. Under cross-examination Taylor was not so sure whether the bag was brownish or greenish but he was certain that the accused was carrying a bag.
    
21. The witness Hati Talisau (Hati) who is the driver of the Aiaiava bus that travels between Salelologa and Tuasivi testified that he knows the accused very well as their respective villages are close to one another and the accused used to be the cargo attendant on the Queen Maggie bus. Hati said that on 12 January 2011 at about 10am in the morning, he picked up the accused at Tuasivi. When he asked the accused as to how he had come to Tuasivi, the accused replied that he had come in a taxi for an errand. The accused also said that he wanted to return to Salelologa to catch the 10am ferry to Upolu as he wanted to see his children in Apia. Hati said he told the accused that he would not be able to catch the 10am ferry to Upolu as it was already 10am. Hati's bus then continued on its way back to Salelologa. When the bus arrived at the Salelologa wharf the ferry was still there but the accused changed his mind and did not want to come on that ferry to Upolu. At that time there were a number of police officers on the wharf and the ferry's trip to Upolu seemed to have been delayed. So the accused remained in Hati's bus as it went to the Salelologa market where the accused got off. Hati said he then saw the accused talking to the witness Tepa.
    
22. The evidence given by Hati in relation to the clothes the accused was wearing is very similar to the evidence given by the other prosecution witnesses.
    

The accused's evidence

23. In his evidence, the accused said that at about 7:30am in the morning on 12 January 2011 he came in the Queen Maggie bus driven by the prosecution witness Tepa from Fagae'e in the Itu o Tane to Tuasivi to get some prescription medicine for his sick wife. He said he was wearing a long sleeved blue shirt, cargo pants, an army cap, silverish glasses with brown lenses, and ear rings. He was also carrying a silverish bag. When the bus arrived at Tuasivi he got off and went to the hospital to get his wife's medicine. This is inconsistent with the evidence of the prosecution witness Mataniufeagaimaleata who said that she came on the Queen Maggie bus with the accused and the accused did not get off at Tuasivi but when the bus arrived at Salelologa. Mataniufeagaimaleata also said that the accused was wearing a long sleeved army shirt with a white singlet inside, brownish cargo pants, dark sunglasses, an army cap, and was carrying a brownish bag (ato faafafa).
    
24. The accused further said that after he got his wife's medicine at Tuasivi, he went back to the road to catch a bus to come to Salelologa to do some shopping for his children. At about 9:15am, he got on the Aiaiava bus driven by the prosecution witness Hati to come from Tuasivi to Salelologa. This is inconsistent with the evidence of Hati who said that the accused had told him that he had come to Tuasivi by taxi for an errand and that he was going to Salelologa to catch the ferry for Upolu to come and see his children in Apia. That was about 10am and Hati said he told the accused he would not be able to catch the ferry as it was already 10am at that time.
    
25. The accused further said that when Hati's bus arrived at the Salelologa market, he got off and went and drank ava inside the market. This is again inconsistent with Hati's evidence that his bus went to the Salelologa wharf with the accused still in it. When they arrived at the wharf the ferry was still there; it seemed to have been delayed. However, the accused changed his mind and did not want to come to Upolu on that ferry. At that time, there were many police officers on the wharf. So Hati's bus came to the market with the accused still in it. It was then that the accused got off at the market and went and talked to the prosecution witness Tepa.
    
26. If the accused's evidence as to what he was wearing is true, then it is also inconsistent with the evidence of Tepa. According to Tepa, the accused was wearing a long sleeved army shirt, not a long sleeved blue shirt as the accused said. This is the same as the evidence of the prosecution witness Taylor from whom the accused bought German buns that morning at the market. According to Taylor, the accused was wearing a long sleeved army shirt, black jeans, an army cap, glasses, and carrying a brownish bag with a strap around his neck. The accused's evidence about the shirt he was wearing is also inconsistent with the evidence of the witness Mataniufeagaimaleata already referred to.
    
27. Apart from the said inconsistencies, the accused in his evidence also denied the evidence of the prosecution witness Epenesa who testified that when she heard from her family's house the dogs barking she looked over and saw a man wearing a long sleeved army shirt running towards the bush. When the man turned in her direction, she was able to see that it was the accused as she knows him very well because they are from the same village of Salelologa. She also said that that was the same army shirt she often sees the accused wearing in their village.
    
28. The accused also denied the evidence of the prosecution witness Talaileva who said that close to Christmas 2010 the accused tried to sell to him a short gun which he said he had pledged to Tepa for $50. Tepa said that the accused had never pledged any gun to him.
    
29. The accused admitted that he has a brownish tooth but it is in his upper jaw and not in his lower jaw as the eye witnesses of the alleged robbery Tapaua and Taulevale had testified and as the witness Tepa had said in his evidence in chief. The accused did not show his brownish tooth. He also said that the hair of his beard are always brownish.
    
30. After the accused had given evidence on 17 August 2011, he informed the Court that he has witnesses in Savaii he wanted to call to support his evidence. As a consequence, this matter was adjourned twice to give counsel for the accused the opportunity to contact the accused's brother in Savaii to locate the witnesses mentioned by the accused and bring them over to Apia. The prosecution also offered to assist with the police in Savaii going out to locate the witnesses named by the accused and bring them over to Apia.
    
31. Counsel for the accused subsequently advised the Court that the only time he was able to talk on the phone to the accused's brother in Savaii to contact the witnesses named by the accused was his first phone call. Thereafter when he made further phone calls to the accused's brother there was no reply. Counsel for the prosecution also informed the Court that the police in Savaii were not able to find any people with the names given by the accused and that the police wanted to know whether those people have other names or additional names to those given by the accused. No further names were supplied by the accused to the prosecution. I therefore decided not to grant any further adjournment to the defence in order to locate the witnesses mentioned by the accused and arrange for their transportation to Apia.
    

Discussion

32. Having considered the whole of the evidence, I have decided to reject the evidence of the accused as untruthful and to find as a fact that it was him who committed the robbery with which he has been charged. The descriptions of the built of the robber given by the eye witnesses Tapaua and Taulevale fit the accused. More importantly, the evidence given by the prosecution witnesses Mataniufeagaimaleata, Epenesa, Tepa, and Taylor about the long sleeved army shirt and knee length pants they had seen the accused wearing during the morning of the alleged robbery correspond with the descriptions given by the witnesses Tapaua and Taulevale of the clothes the robber was wearing at the time of the alleged robbery. Likewise, the evidence of the witnesses Mataniufeagaimaleata, Tepa, and Taylor that they had also seen the accused carrying a bag (ato faafafa or ato asoa) correspond with the evidence of Tapaua and Taulevale that the robber was carrying a brownish bag into which the cash boxes of the Ink Patch were emptied before the robber took off with the money. Even though the witness Taylor was somewhat unsure whether the bag was brownish or greenish, the witnesses Mataniufeagaimaleata and Tepa said the bag was brownish. The accused, himself, said he had a bag with him on the morning in question but it was not brownish but silverish. I do not consider this difference in the colour of the bag given by the prosecution witnesses and the accused to be of any significance in the circumstances of this case. The evidence of the prosecution witnesses and that of the accused were substantially in agreement in their descriptions of the type of bag the accused was carrying in the morning of the alleged robbery. The evidence of the witnesses Mataniufeagaimaleata and Taylor that when they saw the accused he was wearing dark sunglasses also match the evidence given by Tapaua and Taulevale that the robber was wearing dark sunglasses. The accused said he was wearing sunglasses during the morning in question but the sunglasses were silverish with brown lenses. I disbelieve the accused's evidence about the colour of the glasses he had. The evidence of the witnesses Mataniufeagaimaleata, Tepa, and Taylor that when they saw the accused he was wearing an army cap correspond in substance with the evidence of Tapaua and Taulevale that the robber was wearing a black cap with a peak at the front and an extension on the sides and the back which covered his ears and the back of his head and neck. The accused himself said that on the morning in question he was wearing an army cap. Even though there may be some apparent discrepancies between the cap described by Tapaua and Taulevale and the army cap mentioned by the witnesses Mataniufeagaimaleata, Tepa, Taylor and the accused himself, all of them were in agreement that the accused was wearing a cap. It is also to be borne in mind that when the witnesses Tapaua and Taulevale had the robber under observation, it was in the most fearful and stressful of circumstances because the robber was holding a gun to the head of Tapaua and making threats.
    
33. Furthermore, the evidence given by the witnesses Tepa and Taylor about the accused's beard and moustache which were trimmed short also correspond with the evidence of Tapaua and Taulevale that the robber had a moustache and a brownish beard from his chin to his lower lip which were trimmed short. The accused in his evidence said that he has always had a beard, a moustache and a brownish beard from his chin to his lower lip. The accused still had his beard below his lower lip at the time of the trial.
    
34. The evidence of Tepa that the accused has a brownish tooth but was not so sure whether it was in the lower or upper jaw correspond to a significant extent with the evidence of Tapaua and Taulevale that the robber had a brownish tooth in his lower jaw. The accused admitted that he has a brownish tooth but not in his lower but upper jaw. He did not, however, show his brownish tooth.
    
35. From the evidence that I have discussed, there is no doubt in my mind that the man who robbed the Ink Patch at the Blue Bird Mall at Salelologa of the cash charged by the police is the accused. I also draw the inference from the evidence of the prosecution witnesses which I have decided to accept that what happened was that after the accused had robbed the Ink Patch he then took a taxi to Tuasivi as he told the witness Hati after he had got onto the Aiaiava bus. He then returned in the Aiaiava bus to Salelologa to catch the ferry to come to Upolu to see his children in Apia. This was to give the impression that he was travelling from Tuasivi to catch the ferry and not from Salelologa where the robbery had been committed. However, the presence of many police officers on the Salelologa wharf caused the accused to cancel his trip to Upolu. One suspects that the reason for the increased number of police officers on the Salelologa wharf was because the police were already aware of the robbery of the Ink Patch and were checking passengers for the ferry in case the robber escaped from Savaii to Upolu. That must have been the reason why the 10am ferry was delayed.
    
36. Finally, the fact that the police could not locate the existence of the people that the accused wanted to call as witnesses and the absence of assistance from the accused's brother in Savaii clearly suggest that those people do not exist at all.
    

Conclusion

37. I am satisfied beyond reasonable doubt that the prosecution has proved the charge of robbery against the accused.
    
38. The accused is remanded in custody to 27 September 2011 for a probation report and sentencing.
    

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia, for prosecution