Police v Tauelia [2020] WSSC 7 (24 January 2020)

SUPREME COURT OF SAMOA
Police v Tauelia [2020] WSSC 7

Case name:	Police v Tauelia
Citation:	[2020] WSSC 7
Oral Decision date:	24 January 2020
Parties:	POLICE v MENU MATA’AFÃ TAUELIA, male of Vailoa Palauli.
Hearing date(s):	24 January 2020
File number(s):	S1842/18, S20181843/18
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	Prosecution has proven both charges beyond reasonable doubt. I find you guilty of both charges. Matter adjourned to Tuesday 18th February 2020 at 12.30pm for a sentencing memorandum, a victim impact report and for sentencing. The defendant is ordered to sign at the Vaitoomuli Palauli police post every Fridays before 12pm.
Representation:	V. Faasi’i for prosecution Defendant in person
Catchwords:	party to burglary – party to the offences by having formed a common intention – evidence –proven beyond reasonable doubt -
Words and phrases:
Legislation cited:	Crimes Act 2013 s.161 & 165 (d), Crimes Act 2013 s.174 (1)(a)(2)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

MENU MATA’AFÃ TAUELIA, male of Vailoa Palauli.
Defendant

Counsel:
Ms V. Faasi’i for prosecution
Defendant in person

Hearing: 24 January 2020
Oral Decision: 24 January 2020

ORAL DECISION OF JUSTICE ROMA

Charges

1. Menu, you face 2 charges. The first is information S1842/18, a charge of being party to the theft of several items amounting to a total value of $360.50, from the shop of Fitilagi Tualaulelei a female of Vailoa Palauli (ss161 & 165, Crimes Act 2013). The second is information S1843/18, a charge of being party to burglary, by entering the shop of Fitilagi Tualaulelei without authority and with intent to commit a crime therein (s 174, Crimes Act 2013)
2. Common to both charges is section 33(2), Crimes Act 2013 where prosecution alleges that you are a party to the offences by having formed a common intention with Lalofalā Mata’afā Enoka and Iopu Pula Sui to carry into effect an unlawful purpose; that the offences were committed in carrying out that unlawful purpose; and that you knew or ought to have known that the offences committed were probable consequences of the prosecution of the common purpose.
3. Before trial commenced, you were explained the nature of the allegations and the elements of the charges; who bears the onus of proof; the standard of proof; your right to cross examine prosecution witnesses and also your right to silence.

Evidence

4. Prosecution called 4 witnesses, Fitilagi Tualaulelei the complainant, Tauelia Mata’afā, Lalofalā Mata’afā Enoka and Mata’afā Enoka. Fitilagi’s evidence is that she recalls closing shop in the evening of the 23^rd of November 2018 at around 9.15pm. In the following morning at around 6.45am when she came to open the shop, she found on the counter a pipe that was used to lock it. She looked around and discovered missing 2 cartons of cigarettes, 2 bottles of spirit, 3 cans of sausages, 3 cans of peanuts, a 1lb corned beef and 3 hats. The total value of all items is $360.50. She also discovered the coco wire being cut and torn as well as louvers missing. She reported the matter to police.
5. The second witness for prosecution is Tauelia Mata’afā, a 37-year-old male from your village. He knows you well. His evidence is that in the evening of the 21^st November 2018 after dinner, he met up with Silipa, Setu, Lalofalā and Iopu at Setu’s house. They all chipped in money to buy alcohol. You and Opeta joined them later. Around 10pm, he left with Opeta and Silipa to have a swim at the pool. Lalofalā also joined them but subsequently turned around. As to where he went from there, Tauelia does not know.
6. The fourth witness for prosecution is Mata’afā Enoka, a father of 53 years of age. He had gone fishing that evening and returned home around 2 to 3 the next morning, the 22^nd November 2018. As he was resting he saw outside 3 people going past, he was unable to see who they were. Later that morning, he learnt of a break in at Fitilagi’s shop. He also learnt that his son, who is also prosecution’s 3^rd witness was involved.
7. The third and main prosecution witness is Lalofalā Mata’afā. He is one of 2 co-accused alleged by prosecution to having form a common intention with you. In response to a question from the court at the commencement of trial, prosecution advised that the charges against Lalofalā have already been determined and that he is currently serving a sentence of supervision. Lalofalā’s evidence was detailed and clear. He confirms Tauelia’s evidence of having a drink up with Silipa and Setu at Setu’s house. He confirms also that when they subsequently left to go to the pool, he turned around and came back to where they had been drinking earlier. Lalofalā did not however actually get there but stopped at a bus stop where he later met up with you and Iopu.
8. In that meeting, Iopu told you both that he still wanted to drink but that he had no money. Lalofalā’s evidence is that he then suggested as the only option Fitilagi’s shop, and that someone should come and keep a look out for passers-by. Following a discussion amongst you, you all proceeded to the shop. You kept a watch for passers-by whilst Lalofalā tore open the coco wire and removed louvers on the left side of the shop, before he jumped inside. He removed carton of cigarettes, bottles of spirit, cans of peanuts and twisties. He passed the items to Iopu who was at the back of the shop before you all left. He did not want all of you to go to his house, in case his father who had been fishing would find out. You and Iopu took the bottles and cigarettes. He went home.
9. In this case you elected to give evidence, and apart from your testimony you did not call any other witnesses. You confirm having had a drink up with Opeta, Tauelia, Silipa and Lalofalā at Setu’s place. You confirm also that some including Lalofalā left to go to the pool, but you strongly deny that you met up again with Lalofalā and Iopu. You further deny having discussed getting more alcohol and breaking into Fitilagi’s shop. Your evidence is that whatever happened at the shop, you were not there. You say that when the others left for the pool, you continued to play pool with Iopu and his cousins until you all left and you went straight home. You were shocked when the police arrived 2 days later and brought you in.
10. The issue is one of credibility particularly between you and Lalofalā. I have listened carefully to the evidence. I have also observed each witness, in particular Lalofalā and yourself. I find credible and reliable the evidence of Lalofalā. His testimony was clear, forthright and detailed. I do not accept your argument that Lalofalā has made up his statement to implicate you for fear of some unnamed persons whom you say were the true offenders. If anything the charges against Lalofalā have been determined, and I cannot find any good reason for him to continue with his allegations against you if you had in fact not been involved.

Discussion

11. To sustain the charge of being party to burglary under sections 174 & 33(2), prosecution must prove beyond reasonable doubt the following elements:

(i) the offence of burglary was committed by the principal offender;

(ii) there was a shared understanding or agreement between you and the other parties to carry out an unlawful purpose;

(iii) you and the other parties to the agreement had agreed to help each other and participate to achieve the common unlawful goal;

(iv) burglary was committed by the principal in the course of pursuing the common purpose;

(v) you knew or ought to have known that burglary was a probable consequence of carrying out the common purpose.

12. The same elements must be proved in respect of the party to theft under sections 161 & 33(2) except that the offence committed was one of theft.
13. Applying the evidence to the above 5 elements, I find as follows in respect of both charges:

(i) the offences of burglary and theft were committed by the principal;

14. Lalofalā’s evidence is that he tore open the coco wire, removed louvers and jumped inside the shop. His intention was to steal items including alcohol. I find therefore the first element proven.

(ii) there was a shared understanding to carry out an unlawful purpose;

15. Again the evidence of Lalofalā is that the 3 of you, namely Iopu, himself and yourself discussed getting more alcohol and that he suggested breaking into Fitilagi’s shop as the only option. I therefore find the second element proven.

(iii) you and other parties to the agreement had agreed to help each other and participate to achieve the common goal;

16. Again the evidence which I accept is that there was a discussion amongst you that Lalofalā would break and enter the shop and you would be looking out for passers-by. There was also evidence that whilst inside, Lalofalā transferred the stolen items to Iopu before he jumped out and you all walked away. From that evidence it is clear that there was an agreement between the 3 of you to help each other and participate to achieve the unlawful common goal of breaking and entering and likewise stealing. I find the third element proven.

(iv) the burglary and theft were committed in the course of pursuing the common purpose.

17. Again from the evidence of Lalofalā, he tore open the wire, removed louvers and entered without authority and stole the items. What he did was pursuant to a discussion amongst you to steal alcohol. And there was no evidence that anyone of you withdrew from that common purpose. I find the fourth element proven.

(v) You knew or ought to have known that burglary and theft were probable consequences of carrying out the common unlawful purpose.

18. I have no difficulty finding that you very well knew that burglary and theft were probable consequences of the prosecution of your unlawful common purpose. Clearly, that is what was discussed and intended by the 3 of you and you successfully carried out your plan. I therefore find the fifth element proven.
19. Having been satisfied on the evidence in respect of all the elements of the charges, I find that the prosecution has proven both charges beyond reasonable doubt. I find you guilty of both charges. It is now a matter for setting a sentencing date.
20. I will adjourn this matter to Tuesday 18^th February 2020 at 12.30pm for a sentencing memorandum, a victim impact report and for sentencing. The defendant is ordered to sign at the Vaitoomuli Palauli police post every Fridays before 12pm.
    

JUSTICE FEPULEA’I A. ROMA