Police v Lesoa [2018] WSSC 132 (23 November 2018)

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Case name:	Police v Lesoa

Citation:	[2018] WSSC 132

Decision date:	23 November 2018

Parties:	POLICE v LATAI HAROLD LESOA male of Maninoa Siumu

Sentencing date(s):	23 November 2018

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- This charge is also accordingly dismissed
Representation:	F Ioane for prosecution Accused self represented

Catchwords:

Words and phrases:	two charges of robbery; I am therefore not satisfied beyond reasonable doubt that the accused robbed Ah Young.

Legislation cited:

Cases cited:

Summary of decision:

[1] The accused Latai a.k.a Harold Lesoa is charged with two charges of robbery as follows:

(a) That at Maninoa Siumu on the 13th March 2018, he committed theft of $50.00 accompanied by a threat of violence to George Ah Young, male of Fauasaga Safata to extort the said property from him; and

(b) That at Maninoa Siumu on the 15th March 2018, he committed the theft of $25.00 accompanied by threat of violence to Toma Tafola Taufi thereby committing the crime of robbery.

“176. Robbery – (1) Robbery is theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen.

(2) A person who commits robbery is liable to imprisonment for a term not exceeding 10 years.”

(a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or

(2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that:

(b) any owner is likely to be permanently deprived of the property or of any interest in the property.

(3) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.”

[4] The charge of robbery consists of two elements that the prosecution must prove beyond reasonable doubt. These are (a) the accused committed a theft, and (b) the accused used violence or threats of violence to extort the property stolen or to prevent resistance to the theft.

[5] In terms of whether the taking is dishonest, His Honour Sapolu CJ stated in Police v Tavui [2013] WSSC 6 (22 February 2013):

“38. The test which the Samoan Courts had often applied for determining whether a taking in a theft case was dishonest is ‘the current standards of ordinary decent people’ as stated by the English Court of Appeal in R v Feely [1973] QB 530, 538. This test required no definition of the word ‘dishonestly’ from the presiding Judge. It is for the jury (or assessors as we have it in Samoa) to decide whether an act with which an accused is charged was dishonestly done having regard to ‘the standards of ordinary decent people’. In R v Feely [1973] QB 530, 537 – 538, Lawton LJ who delivered the judgment of the Court said:

“We do not agree that Judges should define what ‘dishonestly’ means. This word is in common use... Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people. In their own lives they have to decide what is and what is not dishonest. We can see no reason why, when in a jury box, they should require the help of a Judge to tell them what amounts to dishonesty”. (emphasis mine).”

[6] Prosecution called 2 witnesses. These were the alleged victims George Ah Young (‘Ah Young’) and Tupuola Toma Lafaele (‘Lafaele’).

[7] Ah Young is 30 years of age, married with two children. He operates a taxi from Siumu Taxi Stand. He knows the accused because he regularly catches a taxi from their stand, but does not know him well.

[8] Ah Young said that he was working on the evening of the 13th March this year. The last bus to Siumu arrived. That bus leaves Apia at approximately 5.00pm. When the bus arrived, the accused called for a taxi requesting a taxi van. Ah Young then went and picked up the accused and his wife and took them to their home. He said about 5 seconds after they left, the accused asked him about his day to which he responded. When they got close to the Maninoa three corners, the accused said to Ah Young that he (the accused) had been looking for some time for somewhere to catch him (‘ua leva ona o’u suea se mea ai maua ai oe.’). The accused then said that the type of person Ah Young is, his bones should be long dry. When Ah Young asked the accused why he said this and that he would not be going any further, the accused said not to worry, nothing will happen and to continue on.

[9] As they continued, Ah Young’s evidence was that he asked the accused why he spoke to him this way and the accused said “ua leva ona tatau ona pa se pulu i lou muaulu” (long ago a bullet should have struck your forehead). They continued on and they then turned a road and Ah Young then stopped his taxi and told the accused that the road is too bad and that he is protective (magumagu) of his car. The accused then asked him if there is any money. Ah Young said that there is no money. The accused then put his hand into the box in the middle, found $50.00 made up of 2 x $20 notes and 1 x $10 note in loose money which he took.

[10] Ah Young said he told the accused that the money is not his but belongs to the taxi and the accused replied “e sili pe tuu atu le tupe te’i ua pa le puluafi i lo’u muaulu” (it is better to give the money in case a bullet may strike your forehead). When the accused said this, his wife had already gotten out of the taxi. He said that the wife tried to get the accused out and said that he is drunk and this is not the time. The accused however threatened his wife saying it is better you go to the back in case I cut your throat.

[11] Ah Young said that there had been no dispute (vevesi) with the accused beforehand. He described the accused as intoxicated. He had a taula beer and a bottle of spirits.

[12] Under cross-examination, Ah Young denied knowing the accused well. He denied when put to him by the accused that it was he who gave the accused money. The accused questioned Ah Young about a car that was alleged to have been given to him and Mag Wheels which Ah Young denied as follows:

“Def George o au lava lea sa alu atu avatu le taavale ma lau faaupuga ao iai lo’u tamā, o lo’u tamā o lona atalii au. Na faapea lau saunoaga o le a tuu mac o le taavale o le a fesuiai ma le zuzuki, e sao a’u George?

[13] Ah Young said that his only knowledge of the accused was from when he arrived on the bus from Apia and catches the taxi. He said that his arrangement about the car and the mag wheels was with the accused father and not the accused.

[14] When Ah Young was recalled on the 7th September, he then said that there had been an arrangement concerning the car and the mag wheels and that this was with the accused sister who had come from Australia. This had occurred in 2013 and it was in exchange for Ah Young’s taxi having driven her around when they were in Samoa. The mags were not on the taxi but were collected from the house. He continued to deny that this was discussed with the accused or that the money was given by him to the accused for the mag wheels.

[15] Lafaele is a taxi driver for Ah Young. Lafaele said that on the 15th March 2018, he was working at the Siumu taxi stand. The bus from Apia arrived with the accused and his wife on board. He took the accused and his wife from the Siumu taxi stand to Maninoa. At Maninoa, they went on a road that goes inland towards where they stay. When he stopped the taxi at the road going towards the back, Lafaele’s evidence was:

“Wit ia sa tu ai loa le taavale iina i le auala o le a afe i tua, oute leiloa se mea o loo tupu ia Lakai ma George Ah Young ae te’i ua faapea mai Lakai, o iai se tupe o le taavale o iai? Na ou fai atu e leai se tupe o au lea faatoa sau

Wit a leai la se tupe ona amai lea o le ki o le taavale ia te au laga e iai le mea lea oute manao ia Siaosi e amai se tupe. Lea ua uma ona saunoa mai Siaosi e amai le tupe i ana taavale ia e feoai.”

[16] Lafaele’s evidence was that he argued with the accused saying he can’t give him any money because he is a worker. The accused then said that whatever money you have to give it to him. Lafaele’s evidence was:

“Wit ua ala ona ou tuuina ia Lakai le tupe lea ona ua ou tilotilo e lē sefe au ua alu ifo le po ae oute talitonu foi o upu a Lakai ia ua lafo mai ia te au e le oni upu e maua ai so’u to’afilemu ma se saogalemu o au

Wit faimai le saunoaga a Lakai ia te au ua vave ona pa le pulu i le tatou mataupu. O au la oute le malamalama i le tulaga lea ae na pau le mea o lo’u faamalie loa o Lakai ma ave le tupe

Pros ao a ni foliga vaaia o Lakai i le taimi atoa lea e fai atu ai ana faamatalaga ia e avatu le ki, aumai le tupe?

Wit oute talitonu a au ia ua iai a le lē fiafia o le taule’ale’a ma le isi mea ua avea lava le onā o Lakai ua fai ai a ana fuafuaga ia ia te au ae pei o le mea lena ua ala ai ona ou faafilemuina loa le mataupu ma ou aluese loa.”

[17] He then gave the accused $20.00 from the taxi and they didn’t pay the $5.00 fare for themselves. He says that he gave the $20.00 because he could see it wasn’t safe. He described the accused as drunk.

[18] The accused elected to give evidence and called his wife to also give evidence. The accused evidence was that he knew Ah Young well. He says that when they left with Ah Young in the taxi on the 13th March, they spoke about their car given to Ah Young to fix. When the car was returned, parts and the mag wheels had been removed. He asked Ah Young where these were and Ah Young said that they were at home. He said he called Ah Young a liar and a crook and he had been told that these had been sold. Ah Young then told him that he can pay for them. He asked George if he has money to pay him for the mags, he said only $50.00. Ah Young then gave him the $50.00 and said he would pay $100.00 per day and that they would be delivered in the taxi for free. His wife was in the taxi when he was talking with Ah Young.

[19] The accused accepted that he was intoxicated but not very. He knew what he was doing. He also said in evidence that he had used the word ‘pulu afi’ but that was not to Ah Young.

[20] On the 15th March, the accused said that they travelled with Lafaele. As they got close to their home, he questioned Lafaele if he has the money because he had talked to Ah Young about it. He said he explained to Lafaele his arrangement with Ah Young to pay $100.00 and a free ride. He told Lafaele to call Ah Young but Lafaele had no phone. He told Lafaele if he can’t pay, then to leave the car. Lafaele however did not want to do that and he gave the accused $20.00 plus the $5.00 fare that his wife had paid over. Lafaele had said that is all he has. He rejected the evidence of both Ah Young and Lafaele that he had threatened them or that he was drunk.

[21] The accused wife Fenumiai Lesoa gave evidence. She said that on the 13th March 2018, she and the accused travelled in Ah Young’s taxi. The accused and Ah Young spoke firstly about the day and the conversation then discussed their car. In her evidence, she says that the accused had said to Ah Young that he had wanted to meet up with him for some time about their car. The accused had expressed to Ah Young their various attempts to reach Ah Young and asked precisely what is his response about their car. In her evidence, the accused had said to Ah Young that they had given Ah Young the money, given him everything he wanted and when the car came back, the new mags that were on the car from New Zealand were not on it. Ah Young tried to respond but the accused was angry. She said:

“Na toe faapea le tala a Latai, Siaosi fai loa nei se faaiuga o le matou taavale lea aua a toe tuu atu foi oe e leiloa poo fea a matou toe maua ai oe gao pepelo a mea ia ete la’u maia ia matou.”

[22] Ah Young is said to have replied, don’t worry I don’t want the mags and will return them. He offered to go to his house to collect the mags but the accused said to continue on to their home. As they continued on towards their house, Ah Young changed his mind and said he won’t return them but would pay for them. In her evidence in-chief, she said:

“Aluai aluai le taavale na faapea loa le tala a Latai ua e vaai muamua i se puluafi – upu lea a Latai sa fai ia George Young, sa e vaai muamua i se puluafi... ete lei vaai i se puluafi.

[23] The accused had accepted Ah Young’s proposal. Fenumiai Lesoa made no mention of Ah Young paying to the accused $50.00 but however confirmed this under cross-examination saying also that this occurred whilst she was outside of the car.

[24] On the 15th March 2018, she says that she and the accused went to Lafaele who took them home. The accused talked to Lafaele and he did not know anything about any arrangement between the accused and Ah Young. The accused asked Lafaele whatever money you have, give it to the accused because of his deal with Ah Young. He was told that he has no money. Fenumiai Lesoa gave the $5.00. The accused however told Lafaele to leave the key and the car and go because if he doesn’t do that, Ah Young will not care about them. Lafaele told him he can’t do that but gave them $20.00 and the $5.00 fare that she had paid them. She denied under cross-examination that the accused had said anything to Lafaele about a pulu (bullet).

[25] There are two different versions about what had occurred on the 13th March this year in the taxi in which Ah Young was travelling with the accused and his wife. The first version is that of Ah Young in which after some general conversation, the accused is alleged to have threatened Ah Young referring to a bullet to the head and a gun (‘pulu afi’). According to Ah Young, he questioned the accused about why he was saying this to him but was told, don’t worry, nothing will happen to him and to carry on. Further threats were alleged to have been made and the accused then under threat took $50.00 from the glove box. There was no discussion about any mag wheels nor was there any agreement to pay for the mag wheels $100 per day or per week nor was there agreement for a free ride.

[26] On the other-hand is the evidence of the accused and his wife. There are discrepancies between the accused and his wife’s evidence. The accused accepts that he used the word ‘pulu afi’ on the 13th March, but it was not to Ah Young. Fundamentally however, their account is that there had been a discussion with Ah Young about the mag wheels taken by Ah Young. According to his wife, the accused was upset with Ah Young and had said to Ah Young, ‘ua e vai I se pulu afi.” Her account of when this was said was similar to that of Ah Young, although the words that Ah Young said were stated by the accused were different though similar to that of the accused wife. An agreement was reached with Ah Young to pay $100.00 per day and that they would be taken home for free in Ah Young’s taxi. The accused says that Ah Young gave him the $50.00. Fenumiai says nothing about the $50.00.

[27] I found Ah Young’s evidence unconvincing and he was an unsatisfactory witness. In giving his evidence, I found his denials concerning discussing the mag wheels not credible and evasive. First, he denied knowledge or understanding of questions about the mag wheels. His evidence was then that discussions concerning the accused father’s car was with the accused father, the car on which the mags were said to have been on. When he was however later recalled, he then said that the mags were payment to him for taking the accused sister around when she had been in Samoa in 2013.

[28] In my view, Ah Young’s own evidence shows the implausibility of his own account. After allegedly being threatened by the accused, he asked the accused why he was saying this to him. In the context of what occurred between the accused and Ah Young, it is implausible that the accused would be unhappy with Ah Young for no reason at all. The plausible explanation why the accused was unhappy with Ah Young, and I accept there was a heated discussion with Ah Young and the accused, was about the mag wheels. I however prefer the evidence of the accused and his wife about the discussions with Ah Young involving the mag wheels over Ah Young’s denials. I also prefer their evidence of an agreement being reached with Ah Young and the accused evidence of the payment over of the money than Ah Young’s denial of any such agreement and the accused taking the money. This conclusion is also supported in part by the evidence of prosecution witness Lafaele himself. In his evidence, Lafaele says that when he spoke with the accused on the 15th March, the accused referred to his agreement with Ah Young for the payment of $100.00.

[29] In terms of the evidence, I found the accused wife credible and honest. She openly acknowledged that her husband had been drinking and did make certain remarks to Ah Young. She however placed those words in a different context to Ah Young. I prefer the evidence of the accused and Fenumiai to that of Ah Young that on the 13th March 2018, they had reached an agreement for Ah Young to deliver them home without charge and pay $100.00 per day and it was pursuant to that agreement that money was given to the accused by Ah Young.

[30] I am not satisfied that the accused acted dishonestly and the evidence of the accused and his wife concerning an alleged agreement reached with Ah Young and the payment of the money to the accused by Ah Young raises a reasonable doubt in my mind in terms of Ah Young’s account.

[31] In terms of S511/18, I am therefore not satisfied beyond reasonable doubt that the accused robbed Ah Young.

[32] In terms of information S510/18, Lafaele’s evidence was that the accused had said to him “ua vave ona pa le pulu i le tatou mataupu.”. As a result of that statement and what had transpired, he gave the $25.00 to the accused.

[33] I am also not satisfied beyond reasonable that S510/18 has been proven beyond a reasonable doubt. The first reason is that the accused and his wife Fenumiai Lesoa both denied that the accused said this to Lafaele. I found their evidence to raise a reasonable doubt in my mind about the alleged statement. In particular, I found Fenumiai Lesoa a credible witness.

[34] I have also preferred the evidence of the accused and Fenumiai Lesoa in terms of the agreement reached between the accused and Ah Young to pay $100 per day and that they would be taken free of charge home. I accept that the accused and Fenumiai Lesoa went home with Lafaele and the accused spoke to Lafaele about the arrangement with Ah Young. Lafaele did not know anything about the alleged arrangement.

[35] There is no question on the evidence that the accused also spoke to Lafaele about leaving the car and the keys with him and asked for money which Lafaele gave him.

[36] Whilst I am not satisfied that the words alleged to have been uttered were uttered by the accused, even if they were uttered in accordance with Lafaele’s account, it is questionable in my mind that the words were associated with the demand or request for the money by the accused as opposed to a general statement about the state of affairs of his matter with Ah Young. I am not satisfied that there was a taking that was dishonest.

[37] But as I have said, the evidence of the accused but in particular his wife leave me in reasonable doubt that the statement was said at all and the accused and his wife’s evidence of the payment over of the money by Lafaele to the accused raises a reasonable doubt in my mind as to Lafaele’s account.

Supreme Court of Samoa

Police v Lesoa [2018] WSSC 132 (23 November 2018)