Police v Puni [2014] WSSC 64 (3 September 2014)

SUPREME COURT OF SAMOA

Police v Puni [2014] WSSC 64

Case name: Police v Puni

Citation: [2014] WSSC 64

Decision date: 3 September 2014

Parties:
POLICE Prosecution, AND LEMAMEA EMOSI PUNI male of Puapua and Tiapapata, Accused

Hearing date(s): 19 & 20 August 2014

File number(s): S1075/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU

On appeal from:

Order:

Representation:
F Lagaaia for prosecution
P A Fepulea’i for accused

Catchwords:

Words and phrases:
Theft, killing of an animal with the intent to steal, intent to deprive, intent to steal

Legislation cited:
Crimes Act 2013ss.161 and 163

Cases cited:
Police v Tavu’i [2013] WSSC 6

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1075/14

BETWEEN

P O L I C E
Prosecution

A N D

LEMAMEA EMOSI PUNI male of Pu’apu’a and Tiapapata.
Accused

Counsel:
F Lagaaia for prosecution
P A Fepulea’i for accused

Judgment: 3 September 2014

JUDGMENT OF SAPOLU CJ

The charge

1. The accused Lemamea Emosi Puni of Puapua and Tiapapata stood trial on one charge of theft of cattle pursuant to ss.161 and 163 of the Crimes Act 2013. It is alleged in the charge that at Puapua on 18 February 2014, the accused did steal one bull valued at $1,200, one cow valued at $1,200, and one heifer valued at $600 which were the properties of one Siaosi Apelu a male of Puapua.
2. Section 161 is the general provision on theft. Section 163 refers specifically to theft of animals and it provides:

“A person commits theft if he or she kills any animal that is the property of any other person with intent to steal the carcass, skin, plummage, or any other part, of the animal”.

3. It appears from s.163 that the killing of an animal with the intent to steal any part of it will be theft. The elements of the ordinary charge of theft are, firstly, the taking of another person’s property; secondly, the taking must have been dishonest; and, thirdly, the taking must have been accompanied by an intent to deprive the owner permanently of his property: see the discussion on the elements of theft in Police v Tavu’i [2013] WSSC 6, paras 25-46. So the intent to steal provided in s.163 is the intent to dishonestly take part of the animal of another person and to deprive that other person of such part of his animal permanently.
4. The elements of a charge of theft of an animal under s.163 of the Crimes Act 2013 which the prosecution has to prove beyond reasonable doubt are therefore as follows:
   • (a) firstly, there must be a killing of another person’s animal, and
   • (b) secondly, the killing must have been accompanied by an intent to steal any part of the animal.

The complainant’s cattle

5. According to the evidence of the prosecution witness Faatauva’a Siaosi (Faatauva’a), who is 16 years old and attending school, his father Siaosi Apelu had three cattle, a bull and a cow with a seven month old calf. These cattle were kept on their family’s land some distance inland of the village of Puapua in Savaii. Corporal Reupena Oloapu who was called as a witness by the prosecution estimated this distance to be about from the wharf at Salelologa to the village of Sapapalii. Faatauva’a said that, except for Sundays, his father’s cattle were changed every day either by his father or himself after school. This involved changing the grazing places for the bull and the cow and tying them with ropes around their necks to coconut trees. The colour of the rope used to tie the bull was blue and the colour of the rope used to tie the cow was red. Both ropes were slightly thicker than his thumb. The calf was not tied with any rope as it was always following its mother.
6. Faatauva’a also said that the bull and the cow were very gentle and approachable (lalata) as he used to caress them since they were young. Likewise, the calf. The animals always went together. Where one would go, the others would follow. He described the bull as dark red (mumu paauli) in colour and the cow as also red in colour with a white forehead. The calf was described as having the same colour as its mother, that is, red with a white forehead.
7. The complainant Siaosi Apelu testified that his missing bull was all red in colour and his missing cow was dark red (mumu paauli) in colour with a white forehead. His missing calf was also of the same colour as its mother with a white forehead. He also said that his missing bull was marked on the right ear with a V shaped sign while his missing cow had a hole made in its left ear with its right ear being cut off. His missing calf was also marked on the right ear with a V shaped sign like the bull.
8. Siaosi further testified that the rope that was used to tie his bull was light blue in colour. He also said that his animals were very approachable (lalata). If one animal was led somewhere, the other two would follow. So the colours of the cattle given by Siaosi were consistent with the colours given by his son Faatauva’a. So was the colour of the rope tied around the neck of the bull. Siaosi’s description of his animals as gentle and approachable (lalata) was also consistent with the description given by Faatauva’a.

The disappearance and search for the cattle

9. On Saturday, 15 February 2014, the witness Faatauva’a again went to change his father’s cattle as he had done so many times. He brought the cattle from the back of his family’s land to the front. He tied the bull with its light blue rope to a coconut tree near the road. He also tied the cow with its red rope to another coconut tree near the road. The calf was not tied to any tree. On the next day, which was Sunday 16 February, no one went up to change the cattle. Then on Monday morning, 17 February, the complainant Siaosi went up to change his cattle. He did not see his cattle. He looked for his cattle in the neighbouring lands but the cattle could not be found. When Faatauva’a returned home from school he went up to meet his father. When he met his father on the road, he was told that their animals had gone missing. So they both looked for their cattle but could not find them. On the next day, Tuesday 18 February, Siaosi again went searching for his cattle but again without any success. On Wednesday, 19 February, Siaosi went with the pulenuu and other matais of his village in a pick-up vehicle along the road from Vaiaata to the neighbouring village of Patamea to look for his cattle but they could not see any sign of the missing cattle or obtain any information about them. Then on Saturday, 22 February, Siaosi went to the police at Tuasivi and lodged a complaint. He also requested the police for their assistance in finding his missing cattle.

The search by the police for the missing cattle

10. After the police received the complaint from Siaosi about his missing cattle on Saturday 22 February, they obtained a warrant on Monday morning 24 February to search the accused’s cattle farm inland of Puapua. When corporal Reupena Oloapu (corporal Reupena), who was responsible for obtaining the search warrant, informed sergeant Tutoatasi Malaki (sergeant Tutoatasi) on Monday morning 24 February about the search warrant the police had obtained, the accused was inside the police station at Tuasivi talking to sergeant Tutoatasi about a different matter. When the accused became aware of the search warrant, he requested sergeant Tutoatasi to defer the search by the police of his cattle farm to 2:00pm in the afternoon of the same day as he had some business to attend to at Salelologa before he returned to his cattle farm. Sergeant Tutoatasi granted the accused his request and the police search party which was accompanied by the complainant Siaosi did not arrive at the accused’s cattle farm until about 2:00pm. They found the accused already there at his farm expecting the arrival of the police. One might say that the element of surprise was missing from this police search.
11. At this junction, I need to go back to the events that happened on Tuesday morning 18 February relating to the killing by the accused of two cattle on his farm. Early on that morning, the prosecution witnesses Ionatana Malaki (Ionatana) and Atalili Fiti (Atalili), who were serving prison sentences at Vaiaata prison, testified that the accused came to Vaiaata prison and requested the police for two prisoners to assist him in slaughtering his cattle for a faalavelave and to bring the intestines and organs of the animals for the prisoners meal. The accused gave a slightly different account. He said that he went to Vaiaata prison to get some prisoners to come and bring the intestines and organs of his cattle to be slaughtered for the prisoners meal as it had been done before when he slaughtered some of his cattle previously. Whichever is the truth, the prisoners, when they were taken by the accused to his farm, did assist in rounding up and leading a bull and a cow to the accused who then shot the two animals inside his farm.
12. The witnesses Ionatana and Atalili testified that they were taken by the accused from Vaiaata prison to his cattle farm inland of Puapua on his quad bike (pasika pau fa). The accused in his evidence explained that this is a kind of bike used by farmers on their farms for farm work including the towing of the trailers. When Ionatana and Atalili arrived at the accused’s farm, they had breakfast inside the accused’s house. According to the accused, this consisted of tea and panikeke (pancakes). After the breakfast, Ionatana and Atalili went to another part of the farm on the quad bike and a trailer with the accused and his farm assistant named Afele Tupua Teofilo (Afele). When they came to a track that turns into the farm from the road, they took that rack and stopped somewhere on that track inside the farm. Ionatana, Atalili, and Afele then got off the quad bike and went to round up the animals to be slaughtered. From this point on, I find the evidence given by the witness Ionatana to be reliable in some parts and unreliable in other parts.
13. Ionatana, who knows the accused, said that when they went to round up the cattle to be slaughtered, he saw several cattle lying under the shade of a aoa tree. Some of these cattle were earmarked with yellow tags in their ears and the two cattle to be slaughtered had no such tags. This part of Ionatana’s evidence is inconsistent with the evidence of the witnesses Atalili and Afele who did not mention seeing any cattle lying under a aoa tree when they got off the quad bike to round up the cattle to be slaughtered and brought them to the accused.
14. Ionatana also testified that the two animals without yellow tags on their ears were a bull and a cow. He could not remember the colour of the bull but he remembered the colour of the cow was red. He did not mention that the cow had a white forehead or head. This was also inconsistent with the evidence of the witness Atalili who testified that the cow was red in colour and had a white forehead and the evidence of the witness Warren Fuiava who testified that the cow he and his fellow workers cut up and divided into four parts on the accused’s farm on the morning of 18 February 2014 was red in colour with a white head.
15. Ionatana also said that he was not sure whether there was a calf with the cow that was slaughtered. This was also not in line with the evidence of Atalili who said that there was a calf with the bull and the cow that were slaughtered. However, when Ionatana was cross-examined by defence counsel, he changed his evidence and said that there was a calf close to the bull and the cow when they were slaughtered. This is consistent with the evidence of Atalili. Ionatana further said under cross-examination by defence counsel that when he was shown at Vaiaata with a dead calf with a V shaped mark on its right ear by the police on 25 February, he was not sure whether he had seen such a calf before. However, in re-examination by counsel for the prosecution, Ionatana said that the dead calf shown to him by the police was “the calf”. The only difference was that its body was enlarged and it was starting to smell.
16. Because of the inconsistencies between Ionatana’s oral testimony and what is in his two statements alleged to have been made on 23 February 2014 to corporal Reupena and to sergeant Tutoatasi on 28 February 2014, I granted the application by counsel for the prosecution for leave to cross-examine Ionatana on those inconsistencies.
17. In paragraph 5 of the statement alleged to have been made by Ionatana to corporal Reupena on 23 February 2014, it is there stated in paragraph 5, which may be translated as follows into English,:

“As I saw these cattle, the cow was red in colour with a white forehead and chest, the bull was brown in colour and its right ear was marked with a Vshaped sign, and the calf was brown in colour and was also earmarked with a yellow tag in its right ear”.

18. When questioned about that part of the statement he was alleged to have made to corporal Reupena, Ionatana admitted that he said to the police officer that the colour of the cattle were brown but he denied telling the police officer that he saw any marks on the cattle’s ear. However, he admitted to seeing a yellow tag in the right ear of the calf as shown in his statement. He also said that those parts of his statement which he admitted were correct. This being so, only those parts of Ionatana’s statement which he accepted as correct can be treated as part of his evidence but not those parts which he denied. Perhaps, in fairness to corporal Reupena it should be pointed out that when he gave evidence he said that Ionatana had actually said to him the words in the statement which Ionatana has denied.
19. In respect of the statement alleged to have been made by Ionatana to sergeant Tutoatasi on 28 February 2014, the relevant portion of the statement is in paragraph 3 and it may be translated into English as follows:

“To my observation of the dead calf brought by the police on Tuesday 25 February 2014, it had the same features as the calf that was standing besides the cattle of Mamea (the accused) that we slaughtered on Tuesday 18 February 2014 inside the cattle farm. The only thing that has changed was that there was no tag that was in its right ear which I had seen on the day in question and that the calf’s body had enlarged as it had been dead for a long time. But I had seen that its right ear was marked with a hole”.

20. When Ionatana was asked whether what he had said in his oral testimony or what was said in his police statement of 28 February 2014 was correct, he said it was what he said in his statement to sergeant Tutoatasi but he had forgotten about it. So the above portion of Ionatana’s statement is admissible as part of his evidence. The weight to be given to that statement will depends on the circumstances.
21. According to the witness Atalili, when he, Ioanatana, the accused, and Apelu the accused’s farm assistant arrived at the part of the cattle farm where the cattle were slaughtered, the accused instructed him, Ioanatana, and Apelu to go and chase the cattle to where he (the accused) was. Atalili, Ionatana, and Apelu then went to where the cattle to be slaughtered were. Atalili said that when they got there, he saw three cattle standing together on one part of the farm while there were about a hundred other cattle on another part of the farm about a hundred metres away. These three cattle which were standing together were a dark red (mumu paauli) bull, a red cow with a white forehead, and a calf of the same colour as the cow. Atalili also said that when they chased those three cattle to where the accused was waiting, the animals were gentle and approachable (lalata) with the calf following the bull and the cow. So it was easy for Atalili, Ionatana, and Afele to bring the animals to the accused.
22. When the three animals were brought to the accused, he shot and killed the bull and then shot and killed the cow. At that time the calf which was standing close by cried and shrieked (ii). Atalili said he felt sympathy for the calf and he was wondering why the accused had wanted to kill the cow when it has a calf. Atalili appeared emotional when he gave this part of his evidence which suggested sincerity and honesty in what he was saying.
23. After the bull and the cow were killed, Atalili, Ionatana, and Afele then cut open the bull and removed its head, intestines, and internal organs. They then divided the bull into four parts corresponding to its four legs (alaga povi). As these parts of the bull were to be loaded onto the trailer, the prosecution witness Warren Fuiava and his fellow workers arrived and they cut open the cow and also removed its head, intestines, and internal organs before dividing it up into four parts corresponding to its four legs (alaga povi). Those parts of the cow were also then loaded onto the trailer. These parts of the slaughtered cattle were then brought to the house of the accused where they were hooked up and the skins were removed. It is not clear where the calf, which was with the bull and the cow, was at that time. Those parts of the slaughtered cattle were then weighed before being loaded onto Warren Fuiava’s pick-up vehicle and taken away.
24. When Atalili was asked by counsel for the prosecution whether there were any marks on the slaughtered cattle, he said that he did not take notice of any marks on the cattle as he was not paying attention to such a matter.
25. Warren Fuiava (Warren) who works for a butchery testified that his job was to go to cattle owners who want to sell their cattle to the butchery and cut open the cattle, remove their heads, intestines, and internal organs and take them to the butchery. He said that on Tuesday morning 18 February 2014, he went with two fellow workers to collect two slaughtered cattle from the accused’s cattle farm inland of Puapua. These were cattle that the accused wanted to sell to the butchery where Warren is working. Warren said that when he arrived with his fellow workers in their employer’s pick-up vehicle at the accused’s farm, Afele and two other men were working on cutting open a bull and removing its head, intestines, and internal organs. The bull was then divided into four parts corresponding to its four legs (alaga povi). Warren and his fellow workers then attended to cutting open the cow and removed its head, intestines, and internal organs before dividing it up to four parts corresponding to its four legs. These parts of the slaughtered cattle were then loaded onto a trailer and taken to the house of the accused where they were hooked up and the skins were removed. Those cattle parts were then weighed before Warren and his fellow workers loaded them onto their employer’s pick-up vehicle and took them to the butchery.
26. When asked by both counsel about the colour of the slaughtered animals, Warren said the bull was all red but the cow was red and its head was white. He also said that he does not know whether there were any marks on the animals.
27. Going back now to the police search of the accused’s cattle farm on 24 February,even though corporal Reupena in reply to a question from defence counsel as to how the police came to suspect the accused about this matter said that it was due to the Spirit of the Lord, it is quite possible that the police became suspicious of the accused because on Monday morning 17 February the cattle of the complainant Siaosi were found missing but on Tuesday morning 18 February the accused came to the police at Vaiaata prison and requested the police for two prisoners to assist in the slaughtering of his cattle for a faalavelave, as Ionatana and Atalili had testified.
28. When the police, accompanied by the complainant Siaosi, arrived at about 2:00pm on Monday afternoon 24 February and searched the accused’s house and cattle farm, they did not find anything to link the accused to Siaosi’s missing cattle. However, Siaosi testified that during the search he observed that there were more than forty cattle in the accused’s farm. He also noticed that the accused’s cattle were earmarked with yellow tags. However, those were only the cattle that Siaosi said he saw at the front part of the farm. Siaosi did not go to the back of the farm where there were other cattle.

The discovery of the dead calf

29. After the search of the accused’s farm during the day on 24 February, Siaosi went fishing in the evening. As a result of what he was told by some fishermen that evening, Siaosi went back to the Tuasivi police the following morning. He was then accompanied by a team of police officers to the foothills of a mountain inland of Puapua. Siaosi said this was not very far from the accused’s cattle farm. There they found a dead calf which Siaosi identified to the police as his missing calf. The dead calf was dark red in colour and had a white forehead. It had a V-shaped mark on it right ear. Tied around its neck was a light blue rope which Siaosi said was part of the same rope that was tied around the neck of his missing bull. A hole was also found on the head of the dead calf. Its stomach was partially enlarged which suggested the calf had been dead for some time but it was not clear how long. A fresh hole was also found in one of its ears. The police then removed the rope from the neck of the dead calf and used it to tie its legs to facilitate pulling it from where it was lying dead.
30. The police then brought the dead calf to Viaata where they tried to find a bullet inside its head. They did not find anything. The dead calf was then shown to Ionatana and Atalili. As already pointed out, when the dead calf was shown to Ionatana he said under cross-examination that he was not sure whether he had seen that calf before. However, under re-examination by counsel for the prosecution, Ionatana said that the dead calf that was shown to him by the police was “the calf”. The only difference was that its body was enlarged and it was starting to smell. In that part of his statement given to sergeant Tutoatasi on 28 February 2014 which he accepted, when cross-examined about it by counsel for the prosecution, it is there stated that Ionatana told sergeant Tutoatasi that the calf that was standing beside the cattle that were slaughtered inside the accused’s farm on 18 February was the same as the dead calf that was shown to him by the police on 25 February. He also noticed that there was no yellow tag that was in the right ear.
31. Atalili, on the other hand, said in his evidence that when the police showed him the dead calf, he told the police that that was the colour and the size of the calf he had seen. Atalili also said that he then observed an old V shaped mark on the dead calf’s right ear and a fresh hole in the same ear.
32. After showing Ionatana and Atalili the dead calf, the police went to look for the skins of the slaughtered cattle. When the skins were found, they were not recognisable as they had been infested with maggots.

The respective locations of the complainant’s land and the accused’s cattle farm

33. The land of the complainant Siaosi on which he used to keep his cattle is located along the road that goes inland of Puapua. As earlier pointed out, corporal Reupena estimated the distance from the village of Puapua to Siaosi’s land to be about the distance from the wharf at Salelologa to the village of Sapapalii. Further inland from Siaosi’s land, the road from Puapua connects with the road from Vaiaata to the accused’s cattle farm. Corporal Reupena in his evidence also estimated the distance from Siaosi’s land to the accused’s cattle farm to be about the distance from Sapapalii to the village of Lano. So it is a long distance from the village of Puapua to Siaosi’s land and also a long distance from Siaosi’s land to the accused’s cattle farm. To come from the accused’s farm to go to the village of Puapua one would go past Siaosi’s land. Likewise, when one travels from the village of Puapua to go to the accused’s farm.

The evidence of the accused

34. Essentially, the evidence of the accused was that the bull and the cow that he slaughtered and sold to a butchery were his own animals. The accused testified that he now has about ninety seven cattle in his farm. About thirty of these are calves, thirty are cows, and thirty seven are bulls of which seven are breeding bulls. The other thirty bulls had been spaded or castrated. Except for the calves to be reserved as breeding bulls, the accused said that all the other male calves are spaded or castrated within two or three days after birth. About 80% of the accused’s cattle have been earmarked with yellow tags while 20% of the cattle have no yellow tags in their ears. Some of the cattle also have V shaped marks in their ears. There are also many cattle in the accused’s herd with white foreheads or white spots on their heads. The accused’s cattle are also in all sorts of colours, brown, red, black or white. The accused also said that his cattle are very gentle and approachable ( matua’i lalata).
35. In respect of the animals that the accused killed, he said that the bull was about twelve months old, brown in colour and had not been spaded or castrated. The reason why it was slaughtered was because it was not a breeding bull. The cow that was slaughtered was also brown in colour and had no white colour on its forehead. The cow also had no calf. The reason why it was slaughtered was because it was going out of the fence too often causing smaller cattle to also go out of the fence.
36. As to how the animals were killed on Tuesday 18 February and then each animal “cleaned”and how each animal was divided into four parts, and how the skins were removed, the evidence of the accused was generally consistent with the evidence of the prosecution witnesses Ionatana, Atalili, and Warren. However, there are also inconsistencies between the evidence of the accused and the evidence of the prosecution witnesses just mentioned as to the colour of the cow and the presence of a calf close to the bull and the cow at the time they were slaughtered.
37. The evidence given by the accused as to the the reason why the bull was slaughtered was because it was not a breeding bull was not of impressive quality and does not inspire confidence. That is because if this was the reason why this bull which was about twelve months old was slaughtered, then why was this bull not spaded or castrated within two or three days after its birth as it was done with other male calves not intended to become breeding bulls. The accused’s evidence that if a male calf is not spaded within two or three days after birth it would be difficult to spade it again after that, does not inspire confidence. Likewise, the accused’s evidence as to the reason why the cow was slaughtered. The accused said that his cattle are very gentle and approachable (lalata). If that is true, then that must include the cow that was slaughtered. The accused’s evidence that the cow was slaughtered because it was often breaking out of the fence (osopa) does not sit well with his evidence that his cattle are very gentle and approachable.

The evidence of the defence witness Afele

38. The evidence given by the defence witness Afele was that on the morning of 18 January 2014, he, Ionatana, and Afele went and removed the cattle to be slaughtered from the accused’s herd of cattle. They then chased the bull and the cow to be slaughtered to where the accused was. As the accused’s cattle are very gentle and approachable it was not difficult to chase the bull and the cow to the accused who then shot them.
39. Afele also said that both animals were brown in colour and there was no calf close by at the time both animals were killed. He further said that the bull was a breeding bull and the reason why it was killed was because there were too many breeding bulls in the accused’s farm. The appropriate number of breeding bulls for the accused’s cattle farm was four. This is inconsistent with the accused’s evidence that the slaughtered bull though it had not been spaded was not a breeding bull and that was reason why it was killed. The accused also said there are seven, not four, breeding bulls on his farm.
40. The reason given by Afele for the slaughter of the cow was that this cow was often breaking through the fence and go out. This also does not sit well with the evidence by the accused and Afele himself that the accused’s cattle are very gentle and approachable.

Were the bull and cow killed by the accused his own animals?

41. The central question in these proceedings is whether the bull and the cow that were killed by the accused were his own animals. Having considered the whole of the evidence, I have decided to accept the evidence given by the prosecution witnesses Ionatana, Atalili, Warren and the complainant Siaosi, especially the evidence of Atalili and Siaosi. I accept the evidence of Atalili as to how the bull and the cow were rounded up and then killed while a calf was close by. I also accept the evidence of Atalili and Warren as to the colour of the bull and the cow. I further accept that the dead calf that was found at the foothills of the mountain inland of Puapua with a light blue rope around its neck was the same calf that was with the bull and the cow at the time these two animals were killed. I do not believe the evidence given by the accused and the defence witness Afele.
42. On the evidence that I accept, I am satisfied that the accused killed the bull and the cow in question which were the properties of the complainant Siaosi and that the accused did so with the intent to steal the carcasses of those animals by selling them to a butchery. The charge of theft of cattle has therefore been proved by the prosecution beyond reasonable doubt.
    • ........................................
      • CHIEF JUSTICE