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Police v So'oalo [2015] WSSC 101 (17 September 2015)

THE SUPREME COURT OF SAMOA
Police v Poasa So’oalo [2015] WSSC 101

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

POASA SO’OALO
male of Falelauniu & Lefagaoalii, Savaii
Defendant

Counsel:
Mr Ofisa Tagaloa & Ms Lagafuaina Tavita for Prosecution
Defendant appears in Person

Hearing: 17 September 2015

DECISION OF JUSTICE TUATAGALOA

1. I have delivered my decision on 17 September 2015 after hearing of the evidence and I said that I will have my decision in writing available at a later date. This is that decision.

The charges:

2. The accused, Poasa So’oalo of Falelauniu & Lefagoalii, Savaii is charged with burglary contrary to section 174 of the Crimes Act 2013 (“the Act”) which carries a maximum penalty of 10 years imprisonment and theft contrary to section 161 of the Act which carries a maximum penalty of 7 years imprisonment under section 165(b).
3. The accused pleaded guilty right from the beginning to burglary but maintained a not guilty plea to theft of a container which contained a PA system, an extension cord, a speaker cord and a microphone with a combined value of $1,850.00.

The elements of theft:

4. The prosecution must prove beyond reasonable doubt the following elements:
   • (i) There must be a taking of the property by the accused;
   • (ii) The taking must be dishonest; and
   • (iii) The accused must have had the intention to deprive the owner permanently of the property, or of any interest in it, either within the normal meaning of those words or within the extended meaning given them by section 161(3).

The evidence:

5. The accused does not deny that he broke in to a building belonging to the Horse Racing Club by removing a window from the outside, put his hand through and removed a bottle of beer that was on the counter inside the room.
6. What the accused denied is the theft of a container he is alleged to have removed from inside the room where it is usually kept. The factual issue is, whether there is evidence that the accused removed the container from inside the room to outside with the intention to permanently deprive the owner.
7. At the trial of the theft charge, the prosecution called three (3) witnesses.
8. The prosecution witness Ropeta Hansen said she saw the defendant at the window of the horse racing building looking like he was trying to pry the window opened (pei o la e vage). She said that at the same time she saw the container already outside next to where the defendant was standing at the window. She and her husband called out and walked over and the accused and another man who was underneath a nonu tree behind the building walked to the main road and went. The witness Ropeta said she did not see the defendant bringing or carrying the container from inside the room to outside.
9. Ropeta Hansen said she saw two louvres were removed of the window. The other prosecution witness, Seigfried Levi said the container is kept inside the room. This witness was not sure whether it was two or three louvers that were removed. Constable Tavita Moeono at first said one (1) louvre but when the evidence of Ropeta Hansen was put to him he recanted and said two (2) louvres. Seigfried Levi said the removed louvre's were given to the police and yet Constable Moeono who is the Investigation Officer did not produce the louvres to the Court.
10. Seigfried also said that the wooden shutter of the betting slot below the louvres was kicked in. Constable Moeono earlier in his evidence-in-chief when asked, “Po’o ā ni mea na ia vaai o faaleaga,” responded, “Talepe le faamalama e tasi,” asked if anything else was damaged, said, “E leai.”
11. The accused does not have to give evidence because he is presumed innocent until proven guilty. It is the prosecution that must prove the offence beyond reasonable doubt. The accused nevertheless opted to give evidence.
12. The accused said the container was already outside the verandah of the building when he got there. He also said he never touched or damaged the shutter to the betting slot.
13. Despite being under persistent cross-examination, the accused maintained that (i) he did not remove a container from inside the room; (ii) he only removed one (1) louver put his hand through and took a bottle of beer that was on the counter from inside the room.

Discussion:

14. The importance of the number of louvers being removed to the prosecution is that, it would mean that the accused could go inside the room and removed the container from inside through the removed louvers.
15. A site visit was carried out and the court noted that all the windows have outside strong mesh wire that to get to the louvers one would need to have an instrument like pliers or an iron bar to open this wire. It will be very hard to open this wire by hand without the assistance or use of something. The accused said that the window he removed the one louver was the only window without an outside mesh wire.
16. What the court also noted from the site visit was, it will be difficult for the accused to go through the damaged betting window (or opening) or even through the two or three louvers removed given his size. Furthermore, the container sighted will be an effort to bring it through and it can only be done with someone already inside. If the defendant has gone to all that trouble to bring this container outside said to contain the said valuable items why did not the accused take it with him after all the trouble he had had gone through to get it? The accused put this to the witness Ropeta that if he was there to take the container he would have taken the container but he did not.
17. There is no evidence by the prosecution that the accused was inside the building or room and was seen moving the container from inside the building where it is usually kept to outside of the building.
18. I find the accused evidence plausible that he removed one (1) louver and put his hand through and got a bottle of beer from inside. He had maintained this right from the beginning.
19. There is too much doubt with the prosecution’s evidence as follow:
    • (i) The number of louvers damaged;
    • (ii) Whether the accused could fit through the removed louvers;
    • (iii) Whether you could fit container through;
    • (iv) All that trouble and the accused went and left the container outside just, does not make sense.
20. When there is doubt, the accused should have the benefit of the doubt.

Conclusion:

21. I find that the prosecution did not prove the offence of theft beyond reasonable doubt.
22. The charge of ‘theft’ is dismissed.
    

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Justice Mata Keli Tuatagaloa