Police v Misiluki [2015] WSSC 169 (25 September 2015)

THE SUPREME COURT OF SAMOA
Police v Misiluki [2015] WSSC 169

Case name:	Police v Misiluki
Citation:	[2015] WSSC 169
Decision date:	25 September 2015
Parties:	Police (informant) and Misiluki, male of Fagalii-tai & Tafaigata (defendant)
Hearing date(s):	25 September 2015
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	I find that the prosecution has not proven the offence of intentional damage beyond reasonable doubt, the charge is therefore dismissed.
Representation:	Mr Ofisa Tagaloa for Informant Accused in Person
Catchwords:
Words and phrases:	Intentional damage – maximum penalty seven years’ imprisonment – crime within prison
Legislation cited:	Crimes Act 2013 ss.184(2)(a);
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

LAGALAGA MISILUKI, male of Fagalii-Tai & Tafaigata
Defendant

Counsel:
Mr Ofisa Tagaloa for Informant
Accused in Person

Hearing: 25 September 2015

Decision: 25 September 2015

DECISION OF JUSTICE TUATAGALOA

1. I delivered my oral decision after hearing of the evidence with the written decision and reasons in full to be made available at a later date. This is the written decision.

The Charge:

2. The offence, the accused is charged with is one of intentional damage contrary to section s.184(2)(a) of the Crimes Act 2013 which carries the maximum penalty of 7 years imprisonment.
3. The accused is alleged to have damaged cell door to room number 5 of Special Cells at Tafaigata Prison by bending three iron bars of the said door.
4. The elements of intentional damage are:
   1. The accused, Lagalaga Misiluki, destroyed or damaged cell door to room number 5; and
   2. The accused did so intentionally or recklessly.
5. The standard of proof to prove the elements of the offence rests with the prosecution. That standard of proof is beyond reasonable doubt. It is a very high standard and it cannot be proven by mere suspicion but with strong solid evidence, and the best evidence is that of direct evidence.

The Evidence:

Prosecution witnesses:

6. Tala Uiese was the supervising prison guard on the day and he said that he heard banging noise coming from Prison Cell Block 1 and he and another prison guard named Edel Cruise went to see what it was. When they got there the prison inmates of Room 5, Tui Samuelu, Fili Faulalo, Eti Alapae and the accused were standing outside their room but still inside Cell Block 1. He and Edel saw three iron bars to the door of Room 5 were bent inward and it was from the hole created by the bent iron bars that the 4 prisoners came through. They interviewed the prisoners regarding the damage to the door and Tala said the accused said he would take the blame and told them it was him who damaged the door.
7. Edel Cruise, the other prison guard’s evidence was basically the same as his supervisor Tala Uiese except that he said he went with Tala to Cell Block 1 because they heard banging noise and prisoners calling out. He said the accused and the other prisoners of Room 5 were interviewed straight after when they found out about the damaged door and the accused told them that he was the one who damaged the cell door.
8. Both prison guards said they found a rock inside Room 5 the size of which differs from the size said in the evidence of Tui Samuelu and Fili Faulalo. This is the rock alleged to have been used to damage the door and is therefore very relevant to the prosecution case, and yet, was not produced nor was a photo taken.
9. Constable Nepa Papalii took photos (EXH P1) of the damaged door and the photos clearly showed the three iron bars of the door bent inwards.
10. The two prisoners Tui Samuelu and Fili Faulalo who were in Room 5 with the accused gave evidence for the prosecution. Tui said they were asleep and he was awoken by Fili Faulalo who pointed at the door and saw the iron bars already bent. The other inmates Eti Alapae and the accused were still sleeping and he woke them up. Tui said he did not know how it was bent or who did it. He also said that the iron bars to the door were loose at the top - “e matagataga luga”.
11. Fili Faulalo’s evidence is basically the same as Tui Samuelu’s. Fili did not hear anything, did not know how the cell door was damaged or who did it. He said he woke up and saw the door with the three iron bars already bent inwards. His three inmates, Tui Samuelu, Eti Alapae and the accused were still asleep. He woke up Tui and showed him the already damaged door and Tui woke the other two Eti Alapae and the accused. Fili also said, “o le faitotoa ua pala, pei ua matagataga uamea ma elea.”
12. Both prisoners in their evidence said they were given money by the prison guard Tala Uiese for them to give evidence against the accused, that it was him who damaged the door. The prison guard Tala Uiese was recalled by the prosecution and he denied this evidence by the two prisoners.

Evidence by the accused:

13. The accused, Lagalaga Misiluki does not have to give evidence as he is presumed innocent unless proven guilty but he opted to give evidence. He therefore subjected himself to any cross-examination by the prosecution. His evidence was that he did not know how the door was damaged because he was asleep. Because he was asleep, he did not see who or what damaged the door. He was the last to be woken up. This evidence of his is consistent with the prosecution witnesses Tui Samuelu and Fili Faulalo. He also said he could not have bent the iron bars because he has one good strong arm which is left arm, his right arm is weak from being broken earlier on in the year when he fell from a coconut tree. He said the reason why he took the blame and said to Tala Uiese it was him was because they had been questioned for quite some time and were hungry.

Discussion:

14. The prosecution tried to declare their witnesses Tui Samuelu and Fili Faulalo hostile because what they were saying in court was inconsistent with the statements they made to the police. Tui said he never said any of the things in a statement alleged to have been made by him to the police. Fili said he was interviewed by more than three police officers but never made a written statement to the police. He said he was given a statement and told to sign and he signed and this statement was either never read to him before signing or it was only read back to him after he had allegedly signed the statement. Fili said he does not know how to read. The prosecution had two written statements alleged to have been made by the witness. This was shown to him and he denied the other statement saying that was not his signature on the statement.
15. Without having declared the two prosecution witnesses hostile, the court allowed the prosecution a lot of leeway to question their own witnesses. Despite rigorous questioning by prosecution of their own witnesses, the witnesses Tui and Fili did not stray from their evidence that they were asleep woke up and saw the iron bars to the door already damaged. The declaration of either one or both as ‘hostile’ witness would have had no bearing on my view of their evidence. Furthermore, there is no evidence to contradict their oral testimonies as the prosecution never called or intended to call the police officers who allegedly took the statements of these two witnesses.
16. It is important to note that even if a witness had made a statement to the police it is what he says in Court that is evidence. Any inconsistency of any statement made to the police to what is said in Court by a witness only goes to the credibility of a witness but the inconsistencies do not become part of the witness’s evidence.^[1] Who and what to believe is the sole pre-requisite of the presiding judge.
17. Now Fili Faulalo said that he was the first to wake up, this is consistent with Tui Samuelu’s evidence. Fili Faulalo also said he then woke Tui Samuelu up then Eti Alapae and the accused. Those two are consistent with Tui Samuelu’s evidence. Now that evidence showed that the accused was still sleeping when Fili woke up and saw the door already damaged.
18. The prison guards, Tala Uiese and Edel Cruise said they heard banging noise coming from Cell Block 1 but the prisoners Tui Samuelu and Fili Faulalo said they did not hear any banging noise. Fili said he was the first to wake up and the other three prisoners Tui Samuelu, Eti Alapae and the accused were still asleep. The accused himself said he did not hear any banging noise. If there was banging noise, would it be possible for these prisoners to sleep through it? The question is, who of the prisoners in Room 5 damaged the door because the iron bars were bent inward which could only mean it has to be someone from inside Room 5.
19. Edel Cruise said he and Tala went to the pa sima because, “O la e fe’ei mai pe tauvala’au mai ma pa’ō.” This fe’ei or tauvala’au is consistent with the evidence of Fili Faulalo and Tui Samuelu when they said, “Na femaulu mai fafo le faitoto’a ma tauvala’au mai i leoleo.”
20. The only evidence against the accused was the accused told prison guard Tala Uiese that it was him. The accused said the only reason he said this was because they were hungry as they had been questioned for quite some time. If the accused had said or made the admission as in the evidence of Edel or Tala Uiese, then why was the accused not cautioned right then and there instead of a whole week after on 13 May when he was then cautioned and he refused to make a statement.
21. Like I said the accused does not have to prove his innocence, that burden rests with the prosecution and never shifts. You have four inmates in
    cell room number 5 but no evidence as to whom of the four damaged the cell door or specifically that it was the accused Lagalaga Misiluki who damaged the cell door.

The Conclusion

22. I find that the prosecution has not proven the offence of intentional damage beyond reasonable doubt, the charge is therefore dismissed.
    

..........................................
Justice Mata Keli Tuatagloa

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^[1] Police v Malua[2015]WSSC 26 (25 March 2015), Sapolu CJ, para.7