Police v Malua [2015] WSSC 26 (25 March 2015)

SUPREME COURT OF SAMOA
Police v Malua [2015] WSSC 26

Case name:	Police v Malua
Citation:	[2015] WSSC 26
Decision date:	25 March 2015
Parties:	POLICE (prosecution) vTAUMAFAI MALUA (accused) male of Nuu-fou, Falelauniu and Vaisala, Savaii.
Hearing date(s):	27 February, 13 March 2015
File number(s):	S417/15-S420/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Given the state of the evidence, I am not satisfied that the prosecution has proved the charges of burglary and theft against the accused beyond reasonable doubt. - The charges are therefore dismissed
Representation:	B Faafiti-Lo Tam for prosecution Accused in person
Catchwords:	entered a dwelling house without authority and with the intention to commit a crime – burglary – not guilty to both charges – evidence by the accused -
Words and phrases:	Crimes Act 2013 s.174 s.161
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S417/15-S420/15

BETWEEN

POLICE
Prosecution

AND

TAUMAFAI MALUA male of Nuu-fou, Falelauniu and Vaisala, Savaii.
Accused

Counsel:
B Faafiti-Lo Tam for prosecution
Accused in person

Hearing: 27 February, 13 March 2015

Judgment: 25 March 2015

JUDGMENT OF SAPOLU CJ

The charges

1. The accused Taumafai Malua of Nuu-fou and Leauvaa is jointly charged under s.174 of the Crimes Act 2013 with a co-accused Tui Samuelu that at Nuu-fou between 18 and 21 April 2014 they entered a dwelling house without authority and with the intention to commit a crime therein thereby committing the crime of burglary. They are also jointly charged under s.161 of the Act that at Nuu-fou between 18 and 21 April 2014 they dishonestly took one TV set valued at $450, one gas stove valued at $85, and one electric frying pan valued at $120 with the intention to deprive the owner thereof permanently thereby committing the crime of theft. The co-accused Tui Samuelu pleaded guilty to both charges and has been convicted and sentenced to 7 months imprisonment but the accused pleaded not guilty.
2. The charge of burglary consists of three elements which the prosecution must prove beyond reasonable doubt. Firstly, the accused must have entered a building which includes a dwelling house; secondly, the entry was without authority; and thirdly, the accused must have had the intention of committing a crime once inside the building.
3. The charge of theft also consists of three elements which the prosecution must prove beyond reasonable doubt. Firstly, there must be a taking of property by the accused; secondly, the taking must be dishonest; and, thirdly, the accused must have had the intention to deprive the owner permanently of the property that was taken.

The evidence

(a) Evidence called by the prosecution

4. At the trial of this matter, the prosecution called five witnesses to prove the charges. I do not purpose to deal with the evidence of all the prosecution witnesses. I will deal only with the evidence that is relevant, admissible, and crucial to the outcome of this case.
5. The key witness for the prosecution is the co-accused Tui Samuelu (Tui). He testified that on the night in question in April 2014 between 10pm and 11pm, he took a gun with him to look for a pig (lama puaa) at Nuu-fou. When he came by the complainant’s house which is surrounded by a fence, he heard a pig grunting near the house. It was a small pig. He then entered the complainant’s property through the fence. When he did not see anyone in the house, he shot and killed the pig. It was as a small pig. He then cut the screen wire at the rear of the house and entered the house. He brought out a TV set, a gas stove, and an electric frying pan. He then left the complainant’s house taking these items of property and the pig with him. Tui said that on his way home, he met the accused on the road. He then asked the accused to give him a hand in carrying his properties and his pig to his home. When the accused asked him about these items of property and the pig, he told the accused that they were given to him by a friend.
6. Counsel for the prosecution then applied to have Tui declared hostile so that she can cross-examine him on his previous inconsistent statement given to the police during the police investigation. The application was granted and the witness was declared hostile. Under cross-examination by counsel or the prosecution, Tui said that the parts of his police statement which incriminate the accused were made under pressure from the police who wanted him to include the accused in the burglary and theft of the complainant’s house. So he told the police that the accused was involved but this was not true because the accused was not involved. Whether or not what Tui said is true, there is no evidence to contradict his oral testimony but only the inconsistencies in his police statement which were put to him to discredit his credibility.
7. It is important to note that what a witness says in his oral testimony in Court is evidence but what he might have told the police out of Court and recorded by the police in writing is not evidence. Thus, parts of the police statement of a witness which are inconsistent with his oral testimony are not evidence. Such inconsistencies in a witness’s police statement may be used during cross-examination to discredit or test the veracity of the witness’s oral testimony but that does not make the inconsistencies part of the witness’s evidence. It is when the witness adopts in his oral testimony an inconsistent part of his police statement put to him during cross-examination that that particular part of the police statement becomes part of his evidence. The co-accused Tui did not during cross-examination by counsel for the prosecution adopt any of the inconsistent parts of his police statement that incriminate the accused.
8. The witness Paletasala Ropati (Paletasala) who was also called as a witness by the prosecution testified that he and his family had lived with the witness Tui at Nuu-fou. He said that he and his wife were at home one night close to Easter last year when Tui and the accused came with a gas stove, a frying pan, and a small pig. It was between 10pm and 11pm at night. The accused then went to his family’s house nearby to boil the water for their tea while Tui prepared the pig for cooking.
9. Paletasala also testified that when the police came to his house two weeks later, the gas stove and the electric frying pan were still in his house. There was no mention by Paletasala in his evidence of the TV set that Tui said he had taken from the complainant’s house. Paletasala further testified that he does not know anything about the burglary of the complainant’s house.
10. Constable Lejay Solofa who was a number of the police investigating team, testified that the police recovered from the house of the witness Tui at Nuu-fou the TV set, gas stove, and electric frying pan that were stolen from the complainant’s house. As mentioned, Tui was staying with the witness Paletasala and his wife at that time.
11. Constable Solofa also testified that when the police accompanied the accused to the police station, he interviewed (faatalatalanoa) the accused inside the police vehicle and the accused admitted to him that he (the accused) went with Tui to the complainant’s house. Apparently, the accused was under arrest by the police at that time but was not informed of his right to counsel. Subsequently, the accused was cautioned, presumably at the police station, and he did not want to make a statement to the police.

(b) Evidence by the accused

12. The accused testified that on the night in question he was at his family’s house at Vaitele and was on his way back to his family’s house at Nuu-fou when he met the witness Tui on the road. Tui was carrying the items of property with which they have been jointly charged and a small pig. Tui then asked him to help with carrying his properties and he did so. When they arrived at Tui’s home the witness Paletasala was there. They left the properties at Tui’s home and he continued on to his own home. It was at Tui’s home that the police found those properties. Under cross –examination, the accused maintained this part of his evidence. He denied that he was involved in the burglary and theft of the complainant’s house.
13. In relation to the evidence of constable Solofa, the accused testified that the only thing that the police officer said to him was to intimidate him. Whether or not this is true, it was not put by the accused to the police officer when given the opportunity to cross-examine the police officer. It leaves this part of the evidence with some degree of uncertainty. But even if the accused had put the said part of his evidence to constable Solofa, it would be the word of the police officer against the word of the accused. Anyway, the evidence of the police officer and that of the accused appear to be in agreement that the accused was not informed of any right to counsel in the police vehicle while he was being taken to the police station.

Discussion

14. The evidence of the prosecution witness Tui who is jointly charged with the accused is that it was only him who was involved in the burglary and theft of the complainant’s house; the accused was not involved. Whether the inconsistent parts of Tui’s police statement leave any suspicion or doubt about the credibility of Tui, such a suspicion or doubt is not proof that the accused was involved in the alleged burglary and theft. Furthermore, the evidence of the prosecution witness Paletasala provides no link between the accused and the alleged burglary and theft. Paletasala testified that he does not know anything about the burglary of the complainant’s house.
15. The evidence of constable Solofa about the accused admitting to him in the police vehicle that he went with the witness Tui to the complainant’s house is denied by the accused who testified that the only thing the police officer said to him was to intimidate him. In other words, it is the word of the police officer against the word of the accused. This does not inspire confidence one way or the other.
16. It is also clear from the evidence of the witness Paletasala and constable Solofa that the stolen properties were found by the police in the house of Paletasala where the witness Tui stayed. And according to the evidence of Paletasala, that was two weeks after the stolen properties had been brought to his house. None of the stolen properties was found in the house of the accused’s family. It suggests that the accused did not benefit from any of the properties with which he is being charged.
17. The accused in his evidence denied any involvement in the alleged burglary and theft.

Conclusion

18. Given the state of the evidence, I am not satisfied that the prosecution has proved the charges of burglary and theft against the accused beyond reasonable doubt.
19. The charges are therefore dismissed.

Honourable Chief Justice