Police v Tanielu [2015] WSSC 10 (20 February 2015)

SUPREME COURT OF SAMOA
Police v Tanielu, Pio and Sootaga [2015] WSSC 10

Case name:	Police v Tanielu, Pio and Sootaga
Citation:	[2015] WSSC 10
Decision date:	20 February 2015
Parties:	POLICE (prosecution) SAMI TANIELA, MICHAEL PIO, and SIAOSI PEDRO ENE SOOTAGA (accused) all males of Lalovaea
Hearing date(s):	12 February 2015
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- On the evidence of the prosecution witness Jack which the Court decided to accept. - The Court finds the accused Sami to be the principal party to this offending - The Court also finds the accused Michael and Siaosi were secondary parties to this offending. - Prosecution has proved both charges against the accused beyond reasonable doubt.
Representation:	O Tagaloa and L Tavita for prosecution Accused in person
Catchwords:	one joint charge of burglary pursuant – one joint charge of theft - without authority and with intent to commit a crime in the building – accomplice - committing the crime of burglary - rule of law – principal party to the offending – proved beyond reasonable doubt
Words and phrases:
Legislation cited:	Crimes Act 2013 s.161 Evidence Act 1908, Evidence Amendment Act (No 2) 1986
Cases cited:	Davies v DPP [1954] AC 378
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D

SAMI TANIELA, MICHAEL PIO, and SIAOSI PEDRO ENE SOOTAGA all males of Lalovaea.
Accused

Counsel:
O Tagaloa and L Tavita for prosecution
Accused in person

Hearing: 12 February 2015

Judgment: 20 February 2015

JUDGMENT OF SAPOLU CJ

The charges

1. The three accused stood trial on one joint charge of burglary pursuant to s.174 of the Crimes Act 2013 and one joint charge of theft pursuant to s.161 of the Act.
2. In terms of the joint charge of burglary, it is alleged by the prosecution that at Lalovaea on 3 October 2014, the accused entered a building, namely, a dwelling house occupied by the complainant and his wife, without authority and with intent to commit a crime in the building, thereby committing the crime of burglary.
3. In terms of the joint charge of theft, it is alleged by the prosecution that on 3 October 2014, the accused dishonestly took several items of property listed in the charge, which belonged to the complainant, with the intent to deprive the complainant permanently of those items of property, thereby committing the crime of theft.
4. Originally, the three accused were jointly charged with burglary and theft with a fourth co-accused Jack Michael. Because Jack Michael (Jack) is 15 years old and therefore a young offender, he was dealt with in the Youth Court. I have been advised that he was given a non-custodial sentence. The prosecution was therefore allowed to call Jack as a witness for the prosecution.

The accused

5. The accused Sami Taniela (Sami) said in evidence that he is 21 years old and is a planter. The accused Michael Pio (Michael) did not give evidence but appears from the charge to be 18 years of age. The accused Siaosi Pedro Ene Sootaga (Siaosi) said in evidence that he is 17 years of age and still attending school. All three accused are cousins and live together in their family at Lalovaea.
6. The co-accused Jack is acquainted with Sami, Michael, and Siaosi and also lives at Lalovaea. Like Siaosi, he is also still attending school.

The cautioned statement by the accused Sami Taniela

7. During the police investigation of this matter, the accused Sami Taniela (Sami) gave a cautioned statement to constable Faafetai Auvaa. Parts of Sami’s cautioned statement incriminate the accused Michael and Siaosi. Constable Faafetai Auvaa was called as a witness by the prosecution to produce the cautioned statement. I told counsel for the prosecution and the accused that I will admit in evidence the cautioned statement by the accused Sami but I will disregard those parts of Sami’s cautioned statement which incriminate the accused Michael and Siaosi.

The evidence of the prosecution witness Jack Michael as an accomplice

8. The prosecution witness Jack Michael (Jack) is an accomplice in this case because he was involved in the alleged offending and was jointly charged with the accused. Under common law, a particular direction known as an “accomplice warning” would have to be given in relation to the evidence of an accomplice called by the prosecution to give evidence against an accused. This was stated by the House of Lords in Davies v DPP [1954] AC 378, 399 where Lord Simonds LC said:
   • “In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the Judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. This rule, although a rule of practice, now has the force of a rule of law. Where the Judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if, in fact, there be ample corroboration of the evidence of the accomplice, unless the appellate Court can apply the proviso.”
9. In New Zealand, an accomplice warning is no longer required because s.12B (1) of the Evidence Act 1908, as inserted by the Evidence Amendment Act (No 2) 1986, has abolished the need for an accomplice warning in a criminal trial by providing:
   • “No corroboration of the evidence given by an accomplice of the accused shall be required for the accused to be convicted, and it shall not be necessary for the Judge to give any warning to the jury relating to the absence of corroboration”.
10. However, s.12C of the Evidence Act 1908, as inserted by s.2 of the Evidence Amendment Act (No 2) 1986, provides:
    • “Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.”
11. The Samoan Courts have not had occasion to consider the current status of the “accomplice warning” in this country. Out of caution, I have therefore decided for present purposes to apply both the common law accomplice warning as well as the requirement enacted in s.12C of the Evidence Act 1908 (NZ) in this case. In so doing, I warn myself when considering the evidence of Jack that, although the Court may convict on the evidence of Jack as an accomplice, it is dangerous to do so unless it is corroborated. I also bear in mind the requirement enacted in s.12C of the Evidence Act 1908 (NZ) and consider whether Jack in giving his evidence may have some purpose of his own to serve and therefore there is a risk that he may give false evidence that is prejudicial to any of the accused. In this connection, I also bear in mind that Jack has already been dealt with in the Youth Court and given a non-custodial sentence. It is therefore difficult to see what purpose of his own will be served by Jack giving false evidence that is prejudicial against any of the accused.
12. The issue here about the current status of the accomplice warning for the purpose of Samoan law was not raised in this case, so I will reserve any final decision on it for an appropriate case in the future.

The evidence

(a) Evidence of the witness Jack

13. After giving careful consideration to the evidence, I have decided to accept the evidence as to what happened in this case given by the prosecution witness Jack and reject the evidence of the accused Sami and Siaosi.
14. The witness Jack testified that on 3 October 2014, he went on Mt Vaea to get firewood to cook his family’s food. He met up with the accused Sami, Michael, and Siaosi. Sami then told Jack to come with them to get a bunch of bananas. When they came to the barbed wire fence of a cattle farm on Mt Vaea which belongs to someone else, Sami entered the cattle farm through the fence and Jack, Michael, and Siaosi followed.
15. Jack further testified that when they were all inside the fence, Sami told him, Michael, and Siaosi to wait under a mango tree while he, Sami, went to the house of the complainant and his wife. Sami then removed a window and entered the house. A short time later, Sami came out of the house through a door carrying several items of property including a laptop, two speakers, three pairs of shoes, and twelve bottles. They then went further up Mt Vaea and hid those properties in the bushes before finding a bunch of bananas and returned home.
16. Jack also testified that in the evening, Sami returned to Mt Vaea where the stolen properties were hidden and brought them down. He received a speaker and pair of shoes from Sami.
17. Under cross-examination by Sami, Jack maintained that it was Sami who led him, Michael, and Siaosi through the fence of the cattle farm to where he was going. It was also Sami who entered the complainant’s house and came out with items of property.
18. Under cross-examination by the accused Michael, Jack also maintained that it was Sami who entered the cattle farm through the fence first and then followed by him, Michael, and Siaosi. Jack also maintained that it was Sami who went inside the complainant’s house and came out with properties while he, Michael, and Siaosi were standing and waiting under a mango tree.

(b) Evidence of the accused Sami

19. Sami elected to give evidence. He denied Jack’s evidence that it was him who entered the complainant’s house and came out with several items of property. Sami said in his evidence that on the morning of 3 October 2014, he went with his cousins Michael and Siaosi as well as Jack to get firewood from inside the cattle farm on Mt Vaea. When they arrived inside the cattle farm, Jack mentioned to them the complainant’s house. Jack then went straight to the complainant’s house, removed a window, and entered the house. Shortly afterwards, Jack came out of the house through the backdoor carrying items of property including a laptop. Michael and Siaosi then walked over and received the properties Jack brought from inside the house. Sami said that Jack went inside the house three times and each time came out with items of property. Sami, Michael, Siaosi, and Jack then distributed these items of property amongst themselves and Sami took the laptop. Sami also said they then went further up the mountain and had a rest there before they dispersed and went home.
20. Sami also said in his evidence that when Jack mentioned to him, Michael, and Siaosi the complainant’s house that he was going to burgle, he told his cousins not to go with Jack but to leave Jack alone to do what he was going to do. He then stood under the mango tree and watched Jack opened a window of the complainant’s house and entered the house. When Jack came out the back door carrying items of property and Michael and Siaosi went over to help Jack with carrying those properties, Sami was still standing under the mango tree watching what was going on. When Jack went inside the house three times and came out with properties each time, Sami was still standing under the mango tree and watching.
21. I have to say that I have found Sami’s evidence implausible. In the first place, if the reason why the three accused and Jack went inside the cattle farm was to collect firewood, as Sami testified, there is no evidence whatsoever that they did look for any firewood or collect any firewood. After the complainant’s house was burgled, Sami said they then distributed the stolen properties amongst themselves before going further up Mt Vaea to have a rest. The accused and Jack then dispersed. In other words, they dispersed without any firewood at all. I therefore do not accept Sami’s evidence that the reason why they went inside the cattle farm was to get firewood. I find as a fact that the true reason why they went inside the cattle farm was for Sami to burgle the complainant’s house as Jack testified.
22. Secondly, Sami’s evidence was that he told his cousins Michael and Siaosi not to go with Jack but to leave Jack alone to carry out what he was going to do while he stood under the mango tree and watched what Jack was doing. This looks very suspicious. The impression that Sami was evidently trying to convey was that he was a passive bystander in this offending. However, Sami’s own evidence shows that he became an active participant when it came to the distribution of the stolen properties. He took the laptop which must have been one of the most valuable of the stolen properties.
23. Thirdly, Sami seems to be the most influential of the accused as well as Jack. He is the oldest of them. Physically, he is also the biggest of them. Jack, upon whom Sami and the other two accused have tried to put the blame, is the youngest of the four men. It is not easy to accept that the accused, especially Sami, were being willingly led to burgle the complainant’s house by Jack who is the youngest of the four men. The age difference between Jack and Sami is six years, between Jack and Michael it is three years, and between Jack and Siaosi it is two years. It is also difficult to imagine Sami, Michael, and Siaosi not having discussed this case amongst themselves before the trial because they are cousins and live together in their family at Lalovaea.
24. For those reasons, I have found the evidence of Sami not to be credible or reliable. I prefer the evidence given by Jack that it was Sami, the oldest and the biggest of the four men and the leader of the group, who entered the complainant’s house and came out with items of property which were distributed amongst themselves.

(c) Evidence of the accused Siaosi

25. The accused Siaosi in his evidence said that on the day in question he went with Sami, Michael, and Jack to Mt Vaea to get firewood. On their way they met a boy named “Koa” and they urged Koa to accompany them to get firewood. Siaosi said he then went ahead of the other boys and when he reached the Prayer House on Mt Vaea, he stopped and waited for the others. He waited for quite some time. He then saw Koa and asked him where were Sami, Michael, and Jack. Koa replied that they were going to collect firewood.
26. Siaosi said that when he then walked down from where the Prayer House is, he found Sami and Michael standing under a mango tree but there was no Jack. He then heard Jack calling out from the complainant’s house to him and Michael to come. Jack then tossed at them the items of property he had taken from the complainant’s house. Siaosi also said that Jack went inside the complainant’s house three times and each time came out with items of property. They then took the stolen properties further up the mountain and hid them in the bushes before they returned home with “amoga,” whatever those “amoga” were.
27. I have found Siaosi’s evidence suspicious and unreliable. Firstly, the boy “Koa” mentioned by Siaosi in his evidence was never mentioned by Jack or Sami in their evidence. It was also never mentioned by Michael when he cross-examined Jack. The first time the name Koa came up was when Siaosi gave his evidence.
28. Secondly, what Siaosi said about going with Sami, Michael, and Jack on Mt Vaea to get firewood cannot be true. That was also what Sami said in his evidence. However, there was no evidence whatsoever that any of these men looked for any firewood or collected any firewood. I am satisfied that their real purpose for going up Mt Vaea was to burgle the complainant’s house which was exactly what they did. And after they burgled the complainant’s house they went further up the mountain before they dispersed and went home without any firewood, which was the reason given by Sami and Siaosi for them going up the mountain in the first place. Jack’s evidence was also that when he met up with Sami, Michael, and Siaosi, Sami told him to come with them to get a bunch of bananas, not to get firewood.
29. Thirdly, the evidence given by Jack and Sami was that they entered the fence of the cattle farm together with Siaosi. They then went together with Siaosi inside the cattle farm. Jack also said that when they were inside the fence Sami instructed him, Michael, and Siaosi to wait under a mango tree while he, Sami, entered the complainant’s house and came out with items of property. Sami’s evidence was that when they got inside the fence, Jack went to the complainant’s house and he told his cousins Michael and Siaosi not to go with Jack but to leave Jack alone to do what he was going to do. It is therefore clear from the evidence of Jack and Sami that at no time was Siaosi separated from them and Michael, as Siaosi was saying. They were together at all times. When the accused Michael cross-examined Jack, there was also no hint whatsoever from Michael’s questions that Siaosi was separated from them at any time. All of this is inconsistent with Siaosi’s evidence that he went ahead of Sami, Michael, Jack, and Koa and waited for them at where the Prayer House is for quite some time. And when he came down from where the Prayer House is, he found Sami and Michael standing under a mango tree but there was no Jack
30. Fourthly, my overall impression of the evidence is that it was Sami who actually burgled the complainant’s house as Jack testified. The evidence of Saiosi which suggests that it was Jack who burgled the complainant’s house is consistent with Sami’s evidence. But as I have already said, Sami, Michael, and Siaosi are cousins and they live together in their family at Lalovaea. It is difficult to imagine that they had not discussed this case amongst themselves before the trial.
31. For those reasons, I have found Siaosi not to be a credible or reliable witness. I therefore do not accept his evidence.

Conclusion

32. On the evidence of the prosecution witness Jack which I have decided to accept, I find the accused Sami to be the principal party to this offending because it was him who entered the complainant’s house and stole items of property from inside the house. In the circumstances of what happened in this offending, I also find the accused Michael and Siaosi were secondary parties to this offending. The prosecution has therefore proved both charges against the accused beyond reasonable doubt.

CHIEF JUSTICE