Police v Tovia [2017] WSSC 42 (2 May 2017)

IN THE SUPREME COURT OF SAMOA
Police v Tovia [2017] WSSC 42

Case name:	Police v Tovia
Citation:	[2017] WSSC 42
Decision date:	02 May 2017
Parties:	POLICE (Prosecution) AND PALEMENE TOVIA male of Moataa. (Defendant)
Hearing date(s):	02 May 2017
File number(s):	S3211/15, S3262/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- All these evidence points the finger fairly and squarely at the defendant and I am satisfied beyond reasonable doubt he burgled the complainants shop. He will be convicted accordingly on the charge of burglary.
Representation:	F Ioane for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:	Burglary – plenty of evidence - satisfied beyond reasonable doubt – implicating defendant -convicted
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:
PALEMENE TOVIA male of Moataa.
Defendant

Counsel:
F Ioane for prosecution
Defendant unrepresented

Hearing: 02 May 2017

Decision: 02 May 2017

ORAL DECISION OF NELSON J

1. The defendant pleaded not guilty to two charges, first charge of burglary that at Moataa on 15 September 2015 he did enter the shop of Taele Sapiō the complainant a male of Moataa without authority and with intent to commit an offence thereby committing the crime of burglary. The second that he stole the sum of $150.00 in money the property of Mr Sapiō and did thereby commit the crime of theft.
2. In the absence of the complainants evidence there is nothing to support the charge of theft of $150 or anything to show that any money at all went missing from the complainants shop.
3. I reject the evidence that the defendant took a cash box or “pusa tupe” because firstly neither witness mentioned this in their statements to the police taken the day after the incident in September 2015. And secondly considering the lighting conditions that prevailed and their distance to the defendant, it is unlikely they can identify whatever it was the defendant was carrying away from the shop. The charge of theft is accordingly dismissed.
4. But there is plenty of evidence to support the burglary charge. The defendant was positively identified by two eyewitnesses. Pauline who said she saw him jumping over the counter into what was obviously a deserted but open shop. Pauline testified that at the time, she was standing under the mango tree just across the road from the shop.
5. And the evidence of both Pauline and her older cousin Leute who returned to the scene and saw the defendant leaving the shop, stopping to pick up his shoes and then running away carrying or “afisi” something. No reason why these two witnesses would lie in implicating the defendant of this crime.
6. I am satisfied they knew the defendant who admitted in his evidence he often “kafao” or spends time with members of the family of these witnesses, in particular Paulines brothers. I am also satisfied they were in a position to be able to identify him. I prefer their evidence to the defendants denials which I have little difficulty in rejecting.
7. The defendants two witnesses do not help him, if anything they confirm the police case. Faafetai said that he saw you Palemene shortly after the complainants son Scopa came looking for you. And he pointed out the defendant who was walking on the road by himself, pointed him out to Scopa. It is obvious from this Scopa had been told it was the defendant who burgled the shop. So identification of the defendant as the burglar was made at a very early stage. It is likely the defendant thought no-one saw him go into and come out of the shop. And that is why he is surprised the girls were able to identify him.
8. The evidence of the defendants brother Setefano also does not help him because he said the defendant went past him going into Tuvao where the shop is located. That confirms you were heading in the direction of Tuvao where the shop is located. And shortly after people came looking for you. Setefano said it was only about a minute later that they came but he does not own a watch.
9. All these evidence points the finger fairly and squarely at the defendant and I am satisfied beyond reasonable doubt he burgled the complainants shop. He will be convicted accordingly on the charge of burglary.
10. Ona o tulaga ia Palemene ua fa’amalieina le Fa’amasinoga e tusa ai ma molimau na fofogaina nei le taeao, ua fa’amaonia le solitulafono e tasi o le talepe fale lea. Ae ua fa’aleaogaina le moliaga lea na molia mai ai oe e fa’apea o le gaoiga o le $150 ona e leai ni molimau e lagolagoina lena moliaga.
11. O lau mataupu lea o le a tolopo i le aso 14 o Iuni mo se lipoti mai le Ofisa Fa’anofo Va’ava’aia ma faaiuga a le Fa’amasinoga. O lea o le a nofo taofia e fa’atalitali ai le faaiuga o le mataupu lenei.
    

JUSTICE NELSON