Police v Finau [2018] WSSC 67 (31 May 2018)

SUPREME COURT OF SAMOA
Police v Finau [2018] WSSC 67

Case name:	Police v Finau
Citation:	[2018] WSSC
Decision date:	31 May 2018
Parties:	POLICE v ALENI FINAU, male of Moata’a.
Hearing date(s):	27 February 2018
File number(s):	S2017/17, S2018/17, S2019/17 & S2020/17.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	I find the defendant guilty on the remaining charges
Representation:	F. Ioane for prosecution T. Leavai for defendant
Catchwords:
Words and phrases:
Legislation cited:	Road Traffic Regulation 1961 s.103(grievous bodily injury) & 105, Road Traffic Ordinance 1960 s.41 & 72A(2) and Crimes Act 2013 s.176.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ALENI FINAU, male of Moata’a
Defendant

Counsels: Ms F. Ioane for prosecution

Ms T. Leavai for defendant

Hearing: 27 February 2018
Decision: 31 May 2018

DECISION OF THE COURT
Background (prosecution’s version)

1. Sagato Lomani lives in Vaiusu with his wife and three children. He was employed in November 2017 as driver of taxicab registered number T.3510 which belonged to his employer. In the morning of November 16^th 2017 Lomani said he picked up a male passenger from the NPF Plaza in taxi T 3510 and drove him to Taumeasina. The passenger he picked up was the defendant Aleni Finau. He dropped the defendant off at Taumeasina. The defendant did not pay his fare. Instead he asked Lomani to give him his cell phone number so he could call him to come back later to pick him up and then he will pay his fare. Lomani returned to Apia. The defendant later called him to come and pick him up from Taumeasina which Lomani did. They left Taumeasina and the defendant asked Lomani to take him to Lalovaea. On their way the taxi pulled up at a store at Malifa where the defendant did some shopping. After, they proceeded to Lalovaea in the direction of Apaula Heights. There, the defendant left and again did not pay his fare. They agreed that the defendant would again call Lomani to pick him up so he could withdraw money and pay for the outstanding fares. Lomani left Lalovaea again expecting the defendant to call. Around 3.00pm Lomani received another call from the defendant to come and pick him up from where he had been dropped off earlier at Lalovaea. When he arrived the defendant was with another man and a child the defendant claimed to be his brother and nephew. They drove together to Savalalo where the defendant’s brother and nephew were dropped off. After that Lomani drove the defendant to the ANZ Bank so the defendant could check his bank account, apparently if a loan he had allegedly sought had been credited into it. The defendant appeared to Lomani to be checking his account after which he came back and told Lomani the loan had not yet been credited into his account. Lomani asked the defendant to pay for the unpaid fares from the first pick up at the NPF Plaza to where they were at which up to that point amounted to $62.00. The defendant stalled payment again and told Lomani his loan would probably come through later that same afternoon and then he will pay. Lomani left feeling somewhat deflated and went home without payment from the defendant.
2. Around midnight that evening, Lomani received a call from the defendant. He asked him to come to the RSA (Returned Services Association) Club to pick him up and the unpaid fares would be settled. Lomani went as asked. He picked up the defendant behind the RSA Club and they drove to Toamua uta where the defendant claimed his in-laws lived and where the money for the unpaid fares will be given. The defendant was slightly intoxicated. On their way inland to Toamua uta the defendant asked Lomani to pull over as he needed to urinate. The taxi stopped and the defendant got out. While Lomani was waiting, the defendant appeared on the driver’s side, put a small knife to Lomani’s throat and told him to get out of the cab quietly or he would slash his throat. Lomani panicked. Fearing for his life he said he got out of the car without a struggle. Meanwhile the defendant got in the taxi and drove away leaving a scared Lomani on the side of the dark road. He walked home from Toamua uta through Vaitele fou that morning. He did not say the time he got home but said he was so tired from the previous day’s work and the experience he had just gone through at Toamua uta that night he slept almost immediately when he reached home.
3. The next morning around 7.00am Lomani received a call from the defendant who told him taxi T 3510 was abandoned at Leualesi inland of Leauva’a. He immediately called his brother who came in his car to help find the taxi. They went in his brother’s car to Leualesi but could not find taxi T 3510 anywhere. They returned and he reported the matter to the police. He swore the taxi fares the defendant owed him were not paid. He did not know the defendant before the events he described happened to him. In actual fact, taxi T 3510 was abandoned by the defendant at Papauta at around 12.00pm the same day Lomani and his brother looked for it at Leualesi.
4. Four days later in the early hours of the 21^st of November 2017 Aukuso Maiava, a taxi driver of Faleula was at the stand where his taxicab No. T 2607 was stationed at Faleula. He was the only driver at the stand and so was his taxi. At around 1.00am he saw a man walking along the road. The man approached him and asked for his help. The man was the defendant Aleni Finau. The defendant asked him if they could go to pick up his girlfriend from the other side of Faleula in his taxi. They did and returned to the taxi stand where the defendant and his girlfriend sat and talked while Maiava went home. About 3.00am that morning Maiava went to buy cigarettes. On the way, he noticed the defendant and his friend were not at the taxi stand but on his way back he noticed they were there. The defendant then asked Maiava if he would drive him and his girlfriend to Vaiala where his father (the church minister) lived. Maiava did. At Vaiala in front of the EFKS church he and the defendant’s girlfriend waited in the car while the defendant went towards the back to the church minister’s house to get the $40.00 to pay for the fare from and back to Faleula. A while later the defendant returned and asked Maiava if he had $60.00 change as his parents only had $100.00 notes. Maiava gave the defendant $60.00 before he left again. Not long after the defendant left his girlfriend’s cell phone rang. The girlfriend told Maiava it was the defendant on the phone and he wanted to speak to him. Maiava spoke to the caller. The voice Maiava said he heard and spoke to sounded fragile and old. The caller thanked Maiava for driving his son home before apologising the only money he and his wife had was for the May Church donations (taulaga o le Me), and he was hesitant to use any of it. Being a regular donator to the Church himself Maiava understood. The defendant never returned.
5. Feeling somewhat empty Maiava drove back to Faleula with the defendant’s girlfriend and dropped her off at her home. He had just lost not only the $60.00 the defendant took but the $40.00 unpaid fare. The next day he returned to the church minister’s house at Vaiala to collect his money. He was shocked to see the minister and his wife were quite young. Furthermore when he asked them for his money they denied any knowledge of the previous night’s events Maiava described to them, or having a son with the same description as the defendant. Feeling certain he’d been cheated earlier the same morning, Maiava went directly to the police. He lodged a complaint claiming he’d lost $100.00 in unpaid fares plus a con job fee of $50.00 for the job the defendant did on him.

Defendant’s version

6. The defendant does not deny the movements in Taxi T 3510 on the 16^th of November 2017, but denied robbing Lomani of Taxicab No T 3510 on the 17^th of November 2017 at Toamua uta in the early hours of the morning as described by Lomani. He flatly denied being at Toamua that morning. He similarly denied taking taxi T 3510 without the owner’s consent or legal authority. He swore he’d known Lomani for several years and said that Lomani authorised him to use taxi T 3510. In fact he said Lomani authorised him to use the taxi from as early as late afternoon of the 16^th of November 2017.
7. According to the defendant, after his brother and nephew were dropped off at Coin Save in Savalalo he instructed Lomani to drive him to the Sports Lotto Office to pick up a girlfriend. At the Sports Lotto Office he borrowed Lomani’s cell phone to call his girlfriend as the battery on his phone had gone flat. When his girlfriend arrived they drove to Fugalei and dropped off Lomani on the understanding Lomani was to be picked up later that day at 5.00pm. The defendant and his girlfriend then drove off in taxi T 3510. Before 4.00pm Lomani called the defendant to pick him up at Fugalei. At Fugalei the defendant said he gave Lomani $100.00 for the outstanding unpaid fares of $62.00. He and his girlfriend then again left in the taxi. He drove his girlfriend to Vailele and dropped her there. When he came back to town he picked up Lomani, bought him a large bottle of beer and they drove around town eventually coming to Mulinu’u where they spent time before he finally dropped off Lomani at the Fugalei Market.
8. The next morning around 5.00am the defendant said Lomani called to say he was upset as he had missed picking up a scheduled fare at 5.00am. He denied leading Lomani on a wild goose chase at Leauvaa uta as Lomani claimed. Later that morning as he was driving around in the taxi, a man he did not know called and asked him if he was the person who took his taxi by force. He did not say how the man got his cell phone number but said he told the man he did not take the taxi by force. He said he felt scared when the man said he was looking for him implying he was not safe so long as he had the taxi. He therefore abandoned taxi T 3510 on the property of a family he did not know at Papauta that afternoon and said he called his mother to contact the police. According to the record of the police investigation the police became aware of the complaints regarding Lomani and taxi T 3510 from Lomani, and the complaint regarding taxi T 2607 from Maiava.
9. La’i Samuelu gave evidence for the defense. He is from Vaiusu and has known the defendant since 2014. He also knows Lomani. The circumstances which led to Samuelu giving evidence are these. He and the defendant coincidentally ran into each other in the holding cells below the court building during the lunch recess. They were in custody for different matters. When they met in the cells the defendant explained to Samuelu the reason he was in court that day. From the defendant’s explanation of the reason he was in court to Samuelu that Samuelu then apparently told the defendant what he later told the court when he was called as a witness. Leave was granted for Samuelu to give evidence for the defense on the condition leave would also be granted to the prosecution (if sought), to recall Lomani to rebut or confirm Samuelu’s evidence.
10. Samuelu’s evidence in so far as it is relevant to this matter is this. He and Lomani regularly socialised at Vaiusu as they live not far from each other, implying they were close friends. They are also related. On a certain night in November 2017 while he and Lomani were socialising at Lomani’s house he noticed the taxi that Lomani drove was not there. He asked Lomani where his taxi was and Lomani replied a friend of his was using it. The next day Lomani told him at the Savalalo Flea Market where he worked he (Lomani) had lodged a complaint with the police against the friend who used the taxi the previous night. He said the friend Lomani referred to was revealed as the defendant. When Lomani was recalled he denied everything Samuelu said except that they were from the same village. They do not and have never socialised or mixed in the same circles at the village. They are not related either. What Samuelu said in his evidence was all made up and is not true. There was no logical reason why he would tell Samuelu what Samuelu claimed he was told at night at Vaiusu or the next morning at the Flea Market where he never was on the day Samuelu said he was.
11. The defendant did not deny using taxi No T 2607 on the 21^st of November 2017 as Maiava described. He said he paid $20.00 to Maiava that night but challenged the $50.00 charged on top of the $100.00 Maiava claimed he lost.

Charges

The defendant is charged with the following.

Robbery

12. On the 17^th of November 2017, committed theft of a taxi #T3510 valued at SAT$15,000.00, accompanied by threat of violence to Sagato Lomani of Vaiusu to extort the said property thereby committed the crime of robbery - Information S2020/17.
    

Taking a motor vehicle without the owner’s consent

13. On the 17^th of November 2017 at Toamua, take and drive a motor vehicle namely, a taxi registered number T 3510 without having either the consent of the owner or other lawful authority - Information S2018/17.

Failure to pay Taxi fare (2 counts)

• 1^st count (as amended):

14. On the 16^th of November 2017 at Savalalo being a passenger of a taxi registered plate number T 3510, left the said vehicle without paying $62.00 for the fare he had taken from Savalalo to Moataa, Moataa to Apia to Moataa, Moataa to Malifa to Lalovaea, Lalovaea to Savalalo to Apia with intent to avoid payment thereof - Information S2019/17.
    • 2^nd count:
15. On the 21^st of November 2017 at Savalalo being a passenger in taxi registered number T.2607 left the said vehicle without paying the balance of $150.00 for the fare he has taken from Faleula uta to Vaiala to Faleula uta with intent to avoid payment - Information S2017/17.

Discussion

16. The defendant essentially accepts Lomani’s evidence regarding the various trips they took during the 16^th of November 2017 in Taxi T 3510, except being picked up at the NPF Plaza. The defendant also admitted Maiava’s version of where Taxi T 2607 took him and his girlfriend on the 21^st of November 2017. He denied not paying the respective fares owed to the drivers involved.
17. Even though the defendant denied the two counts of failure to pay taxi fares on the 16^th and 21^st of November 2017 respectively, I accept the evidence of both Lomani and Maiava the drivers of the taxis hired by the defendant and to whom the defendant respectively owed unpaid fares. They were reliable witnesses. I found both their evidence credible and logical. I cannot say the same about the defendant. I found him evasive during his evidence. The defendant thought he had an answer to everything he was asked. He failed to realise the relative lack of logic in the reasons he gave to justify what he said happened. His evidence on the areas where he differed from the evidence of Lomani and Maiava lacked credibility. His standing as a reliable witness suffered a setback also when his evidence contradicted what he said to the police in his cautioned statement. In consequence I do not accept the defendant’s evidence that he gave $100.00 to Lomani as payment for the unpaid fares. If that were true there is no reason in my view why Lomani would complain to the police he had not been paid the $62.00 owed to him. In addition, if Lomani was in fact given the $100.00 in the afternoon as the defendant claims, it does not make sense that Lomani would come all the way from his home at Vaiusu after midnight to the RSA Club to pick up the defendant. He had no reason or was obliged to. I am satisfied from the evidence heard the defendant is guilty on both counts as charged of failure to pay the sum of $62.00 unpaid fares related to the 16/11/17 (Taxi No. T 3510), and the sum of $100.00 for monies owed from the 21/11/17 (Taxi No T 2607).
18. On the remaining charge of robbery of taxi T 3510 and the charge of taking the said taxi without the consent of the owner or lawful authority, the real question for the court is who to believe. If the defendant’s version of what he said happened on the 16^th of November 2017 is to be believed, he should not be found guilty of the two remaining charges because he was authorised by Lomani to take taxi No T 3510.
19. My difficulty with the version that Lomani authorised the defendant to take the taxi T 3510 for his own use is this. If he was authorised by Lomani, the reason he gave for abandoning the taxi at Papauta is unconvincing. He said he was concerned for his safety because the real owner of the taxi who he did not know had basically threatened him on the phone by mentioning the involvement of the police in looking for him and the taxi. If that statement is true the defendant had no reason to be concerned for his safety and abandoning the taxi the way he did, if he was authorised to take the taxi. It makes little sense that the reason the defendant gave for abandoning the taxi contradicted his defence that he was authorised by Lomani to take the taxi.
20. Samuelu’s evidence does not help the defendant either. In view of Lomani’s evidence in rebuttal, I find the credibility of Samuelu as a witness highly suspect. I find the corroborative value of the his evidence to be relevant only in so far as; on a certain night in November 2017 that the witness did not remember, he did not see the taxi Lomani drove at the time at Vaiusu. I do not accept his evidence that he and Lomani regularly socialised at Vaiusu or that Lomani told him at the Flea Market the next day the taxi was not at Vaiusu the previous night because a friend of his had been using it or even that he had lodged a complaint against the friend who used the taxi. More incredulous, the friend Lomani had referred to during their alleged conversation at the Flea Market was the defendant who the witness had known for 3 to 4 years, and who had just told him over the lunch break in the holding cells the charge he was facing in the court was robbery of the taxi T 3510 Lomani drove. In the circumstances, I prefer the evidence of Lomani to the evidence of the defendant that the taxi was taken from him at Toamua uta at knife point. I reject the tale the defendant spun that Lomani authorised him to take possession of taxi T 3510 on the afternoon of the 16^th of November 2017. I also reject the evidence of his La’i Samuelu who appeared caught under the same web the defendant wove as he tried to show the court he was a truthful witness. I find the defendant guilty on the remaining charges.

JUSTICE VAAI