Police v Phillips [2017] WSSC 125 (4 August 2017)

IN THE SUPREME COURT OF SAMOA
Police v Phillips [2017] WSSC 125

Case name:	Police v Phillips
Citation:	[2017] WSSC 125
Decision date:	04 August 2017
Parties:	POLICE (Informant) and PAUL JOSEPH PHILLIPS, male of Levili (Defendant)
Hearing date(s):	20, 21 & 26 July 2017
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The Court finds the evidence by the prosecution very lacking and does not prove the charges beyond reasonable doubt. The remaining charges against the defendant are dismissed.
Representation:	F Ioane for Prosecution Su’a H Wallwork for Defendant
Catchwords:	Assault – armed with a dangerous weapon – intentional damage –charges not proven beyond reasonable doubt -
Words and phrases:	Car crashed into shop – fragmented nature of investigation carried out by police evident in evidence before the court – procedures to be take if evidence to be conducted by video link
Legislation cited:	Crimes Act 2013 ss.2; 39; 118(1); 123; 184; 185; 188(a) Criminal Procedure Act 2016 s.45; 45(3); 47(2)(a) Evidence Act 2016 ss.86; 88; 88(3); 88(4) Police Offences Ordinance 1961 s.25
Cases cited:	R v Kahui HC AK CRI-2006-057-1135 10 July 2007 referred to in R v Check [2009] NZCA 548 in Adams on Criminal Law EA103.03 R v Ming HC Auckland, CRI-2009-092-10550, 26 August 2010 in Adams on Criminal Law EA105.01(4)
	R v Wilson [1997] 2 NZLR 500
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

PAUL JOSEPH PHILLIPS, male of Levili.
Defendant

Counsels:
F Ioane for Prosecution
Su’a H Wallwork for Defendant

Hearing: 20, 21 and 26 July 2017

Oral Decision: 4 August 2017

Written Decision: 1 September 2017

DECISION OF TUATAGALOA J

1. This is the written decision with full reasons to the conclusion delivered on 4 August 2017.

The Charges:

2. The Defendant, Paul Phillips was originally charged with twelve (12) offences to which he pleaded ‘not guilty’ to. Six (6) charges were withdrawn and six (6) remained.
   • (i) Endangering transport under s185 of Crimes Act 2013
   • (ii) Assault under s123 of Crimes Act 2013
   • (iii) Intentional damage under s184(1) of Crimes Act 2013
   • (iv) Attempt to cause serious bodily injury under s118(1) & 39 of Crimes Act 2013
   • (v) Threatening to kill under s188(a) of Crimes Act 2013; and
   • (vi) Armed with dangerous weapon under s25 of Police Offences Ordinance 1961.
3. On the second day of trial the prosecution further withdrew three of the above charges: endangering transport, attempt to cause serious bodily injury and threatening to kill.
4. The trial proceeded on the remaining three (3) charges: assault, intentional damage (which was also further amended down to 7 years imprisonment instead of 10 years) and being armed with dangerous weapon. These three charges fall within the jurisdiction of the District Courts, however because the trial was into its second day of evidence and the fact that the Supreme Court has jurisdiction to preside over the charges within the realm of the District Courts the charges were dealt in the Supreme Court.

Preliminary Issues:

5. There were two preliminary issues that the Court had to deal with prior to the hearing of the evidence:
   1. Application by prosecution under s.45(3) of Criminal Procedure Act 2016 and ss86 & 88 of Evidence Act 2016 for evidence to be relayed by video link from China; and
   2. Application by Counsel for defendant to have the Police Investigating Officer whom Prosecution were not intending to call be called so the defence counsel can question him on his investigation report which resulted in the various charges against the defendant.

Evidence by video link:

6. On the morning of the trial the Prosecution without filing proper application to the Court under s45(3) of the Criminal Procedure Act set up equipment in the court room to have one of their witnesses evidence conducted by video link from China upon the grounds (later filed):
   • (i) Due to health reasons, the witness cannot attend or return to Samoa to give evidence;
   • (ii) The witness is a key witness for the prosecution as the victim of the alleged offending.
7. The prosecution also refers to ss86 and 88 of the Evidence Act 2016 which basically is the same as s45 of CPA 2016 that gives the Court the discretion to allow having the evidence by video link subject to the Court being satisfied as to the reasons why the witness cannot physically give evidence.
8. Ms Wallwork for the defendant strongly objected to having such evidence taken by video link on the following grounds:
   • (i) The prosecution should have abided by the time frame and filed and served their application minimum 14 days prior to the hearing date. Such application must set out reasons why the witness is unable to attend to give evidence or why the court should allow the evidence to be conducted by video link;
   • (ii) The witness that is to give evidence by video link is a fugitive from the Samoan justice system as there is a warrant of arrest issued against him for failing to appear to answer to traffic charges filed against him.
9. The Court under s45(3) of CPA 2016 and ss86 and s88 of the Evidence Act 2016 has a discretion to make ‘Orders’ (s45) or ‘Directions’ (s88). Section 88(3) sets out the grounds upon which a direction may be given. The grounds must be considered in tandem with matters set out in s88(4). In exercising its discretion whether to allow (or not) evidence to be by video link the Court must have regard to matters in s88(4). That is, in exercising its discretion the Court must consider what is right and proper to achieve a fair trial^[1].
10. After consideration, the Court ruled against allowing the evidence of this prosecution witness to be by video link for the following reasons:
    • (i) Lack of proof or documentation provided by Prosecution in support of the witness being unable to attend to give evidence due to health issues. That is, there were no medical records or certificate from a Doctor confirming the medical ailment suffered by the witness.
    • (ii) It was confirmed that there is a warrant of arrest issued in March 2017 against this witness for traffic charges filed against him in the District Court (FF). For the Court to allow the evidence of the witness by video link will in a sense be assisting a fugitive of this country.
    • (iii) Most importantly, if the Court is to make Orders (s45(3) CPA 2016) or give direction (ss86 & 88 EA 2016) adequate safeguards must be in place that is, place where the evidence by video link is to be taken from must be sanctioned and approved by the Court, who should be present in the room where the evidence is to be taken from to ensure no influencing of the evidence^[2], and the translator (if needed) must be sanctioned and approved by the Court. The prosecution was not able to provide or secure these safeguards for the Court’s consideration to enable it to make Orders under s45(3) of CPA 2016 or ‘Directions’ under s88 of EA 2016.

Prosecution to call witness not intended to call

11. Counsel for the defendant also raised with the Court the fact that she was only aware on the morning of the trial that the prosecution was not calling the Investigation Officer (IO) and that the defense wished to cross examine or question the IO in relation to his investigation report which had lead to the various charges laid against the defendant.
12. The Court has inherent power to call witnesses not called by the prosecution but such power is to be exercised sparingly and only where the interest of justice lies.^[3] In this case, the evidence of the Investigating Officer is crucial as his investigation lead to the various charges being filed by the police against the defendant. The Court pursuant to s47(2)(a) of CPA 2016 directed the prosecution to call the IO, have him sworn and confirm that he was the IO and let defense counsel cross examined him on his investigation as he had provided in his report.

The Evidence:

13. The evidence not disputed is as follows:
    • On Saturday, 21 January 2017 around 2pm a van driven by an older Chinese man, name Jia Xiang Sun with a younger Chinese man drove into the Pacific Jewel shop. The police were called or notified and three to four police officers attended to the scene while the van was still inside the shop.
14. The documentary evidence tendered as Exhibits are photos by the prosecution(EXH P1), warrant of arrest issued against the driver of the van (EXH D1), copies of photos disclosed by the prosecution different from photos in EXH P1 (EXH D2), set of photos taken by defendant (EXH D3).
15. The prosecution called four(4) witnesses:
    • Constable Frank Fuaava was the police officer who took photos of the alleged vehicle (EXH P1) said to be damaged by the defendant. Constable Fuaava in his evidence told the court that he attended to the scene on 21 January 2017 when the accident happened with three or four other police officers present, he took photos of the van while still in the Pacific Jewel shop. These photos he said were all given to the Investigation Officer, however, these photos were not included in the photos tendered as EXH P1. The photos that were tendered as EXH P1 were photos the photos Constable Fuaava had taken on a different day, 25 January 2017 when the van was parked next to the building said to be leased by the Chinese people who owned the van. Ms Wallwork for the defendant put the photos taken by the defendant to Constable Fuaava taken at the time the van was still inside the Pacific Jewel shop to confirm whether that was the extent of the damage he saw to the shop and the condition of the van when he attended while the van was inside the shop. Constable Fuaava confirmed to the court that; that was what he saw.
    • Leo Li is a Chinese national who leases and operates a business from one of the buildings in the Meredith compound at Levili. He lives with his girlfriend who is also his business partner at the same building situated about 50-70 meters from the Pacific Jewel building in the front of the compound to the left side when one enters the Meredith compound at Levili. The driver of the vehicle as Mr Li’s evidence unfolds is the father of his business partner and girlfriend. Mr Li’s evidence is that he was inside his building on this Saturday afternoon with an employee named Qiao Li when they heard a crash. They walked out and saw the van belonging to his company inside the Pacific Jewel shop. He said that he while walking towards the van, he saw the defendant come out of the shop, walk to the side of the shop and return with a machete. At about 40 meters from the van or shop he saw the defendant inside the shop using the machete to hit the top of the passenger door, used one of the wooden handicrafts and hit the front of the van, the defendant also broke the window next to the driver and threatened the older driver by placing the machete first to his throat and then to his chest while he was still sitting in the van. He walked closer but the defendant told him to stay and threatened him with the machete. Mr Li said he called the police because he was concerned for the safety of the driver of the van and the police shortly thereafter arrived. Mr Leo Li was cross examined by Counsel that what he was telling the court of what he saw the defendant putting the machete to the driver’s throat and chest was not in his statement that was taken two days after the accident and it is all made up by him. Mr Li under cross examination when asked whether he was able to see the damage inside the shop from where he was standing responded that he could not see yet he was able to observe everything he said the defendant was doing from 40 meters away. I find Mr Li not a credible witness as some of his answers or responses were shifty, not forthcoming and implausible. At times he was selective with his understanding of what Counsel was asking when it was clear to the court that he understands and speaks English well. I also found out later during the trial that his girlfriend who was in court throughout was making visible signals and gestures to the witness with the intent to dictate what to say or reminding the witness of certain points to emphasize regarding alleged actions made by the defendant when she was not present when the accident or the alleged offending took place.
    • Qiao Li whom Mr Leo Li said was with him when they heard the crash basically said the same thing as Mr Li. His evidence was translated and when asked to clarify what he meant by some parts of his evidence, he could not but repeated the same answer over. His evidence gives the impression that he was told or coached what to say thus the reason why he was not able to clarify or expand on his responses when asked to by Counsels. The question is if he was there with Mr Leo Li when the accident happened, why did not he go forward to the police at the time or for Mr Leo Li to take him to the police to make a statement instead his statement was only taken by the police six months later in July. I do not place any weight on the evidence of this witness.
    • Sergeant Taualai Sili Luuga is the Investigation Officer. What was clear from the evidence of Sergeant Luuga was that he never attended the scene when the van was inside the Pacific Jewel shop but he only attended later on in the day when the van was removed and parked next to the building leased by Mr Leo Li. Sergeant Luuga provided a report of his investigation in to the matter dated 30 July 2017. It became clear to the Court that the report by Sergeant Luuga did not include everything that he said in court he carried out as part of his investigation. He conceded that his report does not include the statement he took of Mr Qiao Li on 14 July 2017 or that he spoke to Mr Richard Meredith owner of the building Mr Leo Li leases. When asked why he did not include those things in the report he said that ‘ua pa’u ia ia’ (oversight) or ‘o lona faatamala’ (carelessness). It became clear that Sergeant Luuga was a defensive witness and was not happy to being called to give evidence or being asked as to what he did in his investigation of the incident. It also became clear that his investigation was all based on what he was told by Mr Leo Li which resulted in the number of charges laid. Sergeant Luuga despite the fact that 3-4 officers who first attended to the crash and witnessed the damage caused by the van to the Pacific Jewel shop or damage to the van from crashing into the shop did not ask for any report from these police officers. His response when asked why he did not obtain any report(s) from these officers was that these officers were traffic officers and this was not a traffic matter but a criminal matter under the Criminal Investigation Division (CID). Sergeant Luuga also did not obtain a report or any statements from the people who work for the towing company that removed the van from the doorway of the shop. Sergeant Luuga did not obtain an independent translator to translate what the Chinese driver said happened instead he accepted what Mr Leo Li translated to have been what the driver said. Sergeant Luuga’s report of the investigation into this matter is of concern in that in the process of carrying out any criminal investigation, it lacked in many areas without solid independent evidence to justify the laying of the various charges against the defendant. His investigation carried out was of very poor standard and one sided towards accepting only Mr Leo Li’s account of the events that happened.
16. The defense called two witnesses, the defendant, Paul Phillips and Solomua Manu an employee of the defendant.
    • The defendant said that on Saturday, 21 January 2017 the whole of town had a power outage and they had closed up their shop and café early at around 11am and when all the workers went home (except for Solomua Manu whom he said was waiting around to clear the rubbish from the café) he went and tended to the garden behind the shop where the café operates using a machete. Upon initial hearing the crash it was far from the defendant’s mind that a car had crashed into the shop, he just assumed that maybe it was one of the delivery trucks owned by other Chinese people who also operate a warehouse about 10-20meters in front of the shop to the left.
    • Solomua ran over to him and told him that a van had crashed in to the shop. He walked over to see still holding the machete and saw the van in the shop’s doorway with the outside wall to his office all knocked down. Overcome with the shock, the defendant could only go inside through the broken side windows. He walked to where the older Chinese driver was and shouted at him and saw that the driver had his hand to the side of his face that was all red and bruised from hitting or bumping into something upon impact when the van crashed in to the shop. The defendant said that he did not hit any windows of the vehicle the broken windows were a result from the crash. The only part of the van he hit with the machete was the back tail gate on the top where it was stuck to the ceiling of the doorway as in photos 7- 9 (EXH D1) which part was already damaged. The defendant said he hit the van to stop Mr Leo Li and Qiao Li from getting to the van as they wanted to move the van before the police arrived and he told them stay away and that the van is not moving until the police arrive. The van which was stuck in the doorway could only be moved by a Tow truck (photos 7-13 EXH D1) that was arranged by Mr Leo Li after the police had arrived, yet a report or statements by the people of the towing company was not even obtained nor was anyone called to give evidence.
    • The defendant said that the investigating officer Sergeant Taualai never came and investigated any damages to his property (shop) caused by the van nor was he asked for a report of the damages. The defendant when asked about him putting the machete to the throat and chest of the driver said that if he had there would have been a mark on the neck and chest of the driver but he never did nor did he punch or slap him on the side of the face as alleged that he did.
    • Solomua Manu works as a kitchen hand for the Pacific Jewel café and confirmed that the shop and café closed early on this day because the power went off. The employees went home and he was sitting on the steps of the building next to the shop waiting for his ride home. He saw a white van coming and he thought it was going to the other Chinese house on the left but it did not turn instead it drove straight into the shop. He ran over and saw the van inside the shop with the top stuck in the doorway. He said the rear window was broken and could see two Chinese men in the van. He then ran to get the defendant who was working in the garden and met the defendant at the side gate to the garden with a machete that he was using and told him of the van. He said the defendant walked over and saw the van in the shop and started shouting (ote ote) when he saw what had happened. The defendant went in through the broken side windows, could hear him shouting at the driver came out and told him to go get the police because the phones were not working. Solomua said that he only saw the defendant hit the back tail gate of the van when he came out.

The Law:

17. The remaining charges the prosecution proceeded with were: intentional damage, armed with a dangerous weapon and assault.
18. The Prosecution must prove the following elements of the offence of intentional damage under s.184(2)(a) beyond reasonable doubt:
    1. The defendant destroyed or damaged any property;
    2. He did so intentionally or recklessly
19. ‘Property’ is defined in s.2 of the Crimes Act 2013 to mean “real and personal property, and any estate or interest in any real and personal property, money, electricity and any debt, and anything in action, and any other right or interest.”
20. Intention is the accused actual state of mind. ‘Reckless’ means that the accused appreciated the substantial risk of damage but carried on regardless. It is accepted that, the test for ‘reckless’ in intentional damage is subjective.
21. On the charge of armed with a dangerous weapon, namely a machete under section 25 of the Police Offences Ordinance 1961, the Prosecution must prove beyond reasonable doubt that:
    • (i) The Defendant,
    • (ii) Was armed with a dangerous weapon;
    • (iii) Without any lawful justification or purpose.
22. Assault is simply unwarranted force of laying hands on another person or an attempt to do hurt to another with the intention to do the act.

Discussion:

23. This is a case of where the saying “A picture tells or paints a thousand words” applies.
24. Constable Frank Fuaava when the photos taken by the defendant (EXH D1) were shown to him confirmed the damage in the photos to the shop and to the van of what he saw when he attended to the shop while the van was still in its crashed position. As seen from the photos (EXH D1) the damages alleged in the information charging the defendant with intentional damage were caused by the crash and not of any doing by the defendant. This part of Constable Fuaava’s evidence makes the evidence of the defendant, Mr Phillips more credible and plausible. The fact that Mr Phillips hit the back tail gate of the van which may have made a mark to that part of the tail gate cannot be said to amount to ‘damage’ as intended under the law for the van was already badly damaged from the impact of the crash into the shop. Furthermore, the tail gate of the van was stuck to the part of the ceiling and from the photos was already badly damaged.
25. The court accepts that the defendant was working in his garden using a machete when the van crashed in to his shop and that he walked over to the crash with the machete that he was using in the garden. He did not deliberately arm himself with the machete to cause damage to the van or to threaten the driver of the van. There is also no evidence of the defendant punching the driver of the van.
26. The extent of the damage to the shop as evident in photos tendered by defence (EXH D1) shows the entire body of the van in the shop with the back of the van completely blocking any access into the shop as the frame of the main entrance into the shop was wrapped around the back of the van making it extremely difficult to view the full extent of damage from behind. The photos taken from some meters behind the van would make looking into the shop very hard and especially if you are standing 40-50 metres behind as in the evidence of Mr Leo Li and Mr Qiao Li.
27. The only evidence for the prosecution as to the charges was that of Mr Leo Li and Qiao Li. What they said they saw was from a distance of 40-50 looking in to the shop. The van stuck in the doorway of the shop blocks a direct view into the shop. How they were able to look in to the shop from that distance is very questionable. The Court finds their evidence very doubtful and does not meet the standard required to prove any of the charges beyond reasonable doubt. The evidence for the defense is more plausible and the court accepts their evidence.

Conclusion:

28. The Court finds the evidence by the prosecution very lacking and does not prove the charges beyond reasonable doubt.
29. The remaining charges against the defendant are dismissed.
    

JUSTICE TUATAGALOA

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^[1] R v Kahui HC AK CRI-2006-057-1135 10 July 2007 referred to in R v Check [2009] NZCA 548 in Adams on Criminal Law EA103.03
^[2] R v Ming HC Auckland, CRI-2009-092-10550, 26 August 2010 in Adams on Criminal Law EA105.01(4)
^[3] R v Wilson [1997] 2 NZLR 500