Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Toamua [2015] WSSC 50 (19 May 2015)

SUPREME COURT OF SAMOA
Police v Toamua [2015] WSSC

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S3486/14-S3487/14

BETWEEN

P O L I C E
Prosecution

A N D

TALAMEASINA TOAMUA female of Vaoala and Tauese.
Accused

Counsel:
O Tagaloa for prosecution
L R Schuster for accused

Hearing: 19 May 2015

Ruling: 19 May 2015

RULING OF SAPOLU CJ

The charges

1. The accused Talameasina Toamua of Vaoala and Tauese is charged that at Faatoia on 2 October 2014 she used insulting words, namely, kefe, whereby a breach of the peace may be occasioned pursuant to s.4 (g) of the Police Offences Ordinance 1961. She is also charged that at Faatoia on 2 October 2014 she intentionally damaged the ceramic photo on the headstone valued at NZ$500 of the grave of Natuitasina Papalii Tugaga.
2. To prove the charges, the prosecution called three witnesses, namely, Ramona Tugaga, Ailao Leu, and Salau Tuiletufuga.

Submission of no case to answer

3. At the end of the evidence for the prosecution, defence counsel made a submission of no case to answer in respect of both charges against the accused.
4. The approach adopted and applied by this Court to a submission of no case to answer in a trial before a panel of assessors is that set out in the judgment of the English Court of Appeal in R v Galbraith (1981) 73 Cr App R 124. See Police v Ah Sui [1999] WSSC 37; Police v Senio [2000] WSSC 7; Police v Pouvi [2000] WSSC 43; Police v Meli [2000] WSSC 56; Police v Nauer [2007] WSSC 39; Police v Samau [2010] WSSC 106. More recently, the Court of Appeal applied the same approach to a submission of no case to answer in a trial before a panel of assessors in Attorney General v Kolio [2008] WSCA 7, paras 24, 25; Attorney General v Taioalo [2010] WSCA 3, para 4; and Attorney General v Tavui [2014] WSCA 3, para [24].
5. In R v Galbraith (1981) 73 Cr App R 124, p. 127 Lord Lane CJ said:
   • “How then should a Judge approach a submission of no case? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case. (b) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge”.
6. Defence counsel in his submission of no case to answer relies on the second limb of the approach in R v Galbraith (1981) 73 Cr App R 124, p.127 and submits that the prosecution’s evidence, taken at its highest, could not properly lead to a conviction of the accused on both charges against her. As this is a Judge alone trial, I would refer to Police v Sione [2001] WSSC 8 where this Court cited Auckland City Council v Jenkins [1981] 2 NZLR 363 which was concerned with committal proceedings in New Zealand before a Judge alone and a submission of no case to answer. Speight J in that case stated at p.365:
   • “A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is ‘prima facie’ – a well understood phrase”.
7. There were no submissions from counsel as to the approach to be adopted to a submission of no case to answer in a trial before a Judge alone as is this trial. In this situation, I will, out of caution, bear in mind in considering the no case submission by the defence both approaches in R v Galbraith (1981) 73 Cr App R 124 p.127 and Auckland City Council v Jenkins [1981] 2 NZLR 363, p.365.

The evidence

8. The prosecution witness Ramona Tugaga (Ramona) testified that in the early hours of Thursday morning 2 October 2014, about a little after 4am, while she and her younger sister were asleep on the top floor of their family’s house at Vaivase-tai and her brother was sleeping on the ground floor, she heard a car coming fast towards their house and stopped very close to their house. She then heard the horn of the car being tooted very loudly. When she came down from the top floor of her family’s house, she heard people exchanging words in loud voices outside the house. She saw that it was her brother and the accused who was sitting inside the car. The accused is the wife of Ramona’s brother. With the accused inside the car at that time was her four year old son.
9. Ramona also testified that she then told the accused to leave their land but the accused told her four year old son to swear at her (Ramona) and her family. When the accused drove away, she stopped her car on the road and called out the swear word kefe more than once to Ramona and her family.
10. Under cross-examination by defence counsel, Ramona testified that the car in which the accused came with her son belongs to the accused. It is like a taxi and black in colour with all its windows and mirrors being tinted.
11. When defence counsel put to Ramona that there is nothing in the statement she gave to the police on 6 October 2014 about the accused uttering insulting words when she came to her family’s house at Vaivase-tai, she replied that she must have overlooked it as her mind was affected at the time. However, Ramona maintained under cross examination that the accused did swear to her and her family when she came to their house at Vaivase-tai. I have decided to believe Ramona’s evidence. She appears to be a credible witness.
12. There is one other aspect of Ramona’s evidence to which I need to refer. In her evidence in chief and under cross-examination, Ramona said that the next day, she met with her aunty at their family’s house at Faatoia. Her aunty told her that the accused had damaged her father’s photo on the headstone of his grave on their family land at Faatoia. When I asked counsel for the prosecution whether Ramona’s aunty is going to be called as a witness by the prosecution, he replied that Ramona’s aunty will not be called as a witness by the prosecution as the police have not been able to locate and obtain a statement from her. I therefore ruled that this part of Ramona’s evidence regarding what her aunty might have told her is hearsay and therefore inadmissible in evidence.
13. The prosecution witness Ailao Leu (Ailao) testified that at the relevant time he was staying with relatives of the prosecution witness Ramona at Faatoia but his real village is Nofoalii. It appears that the house in which he was staying at Faatoia is very close to a grave. Ailao said that in the early hours of Thursday morning 2 October 2014 while he was still asleep, he heard a noise (pao) in front of where he was sleeping. When he awoke and looked out, he saw a girl with her hair hanging down standing besides the grave looking around. He was apparently drowsy. He then went back to sleep. He never said whose grave was it.
14. Ailao also said that when it was day time and people were talking that the headstone of the grave was damaged, the elderly lady in whose house he was staying asked him whether a branch of a breadfruit tree had fallen on the grave and he replied no. I have to say that Ailao’s evidence about people talking that the headstone of the grave has been damaged is hearsay because no one of those people has been called as a witness by the prosecution. Ailao’s evidence about what the elderly lady asked him is also hearsay because that elderly lady has not been called as a witness by the prosecution. The evidence is also not specific enough as to whose grave Ailao was referring to. I also find that Ailao’s evidence about what the elderly lady is alleged to have asked him does not inspire confidence, as there is no evidence that the branch of a breadfruit tree was lying on or anywhere near the grave so as to cause the elderly lady to ask Ailao whether the branch of a breadfruit tree had fallen on the grave. I was also not impressed with Ailao’s demeanour.
15. The last witness called by the prosecution was Salau Tuiletufuga (Salau). Her family’s house at Faatoia is about fifty metres from the grave. Like the evidence of the witness Ailao, Salau’s evidence is not specific as to whose grave she was referring to.
16. Salau testified that in the early hours of the morning about a little after 4:00am after she had woken up, a car came onto their land. It went past her house and went towards a house in front of her house. The car then turned around in front of her house and went towards the grave and then went out. Salau further testified that she heard a female voice calling out the swear word kefe and she recognised the voice to be that of the accused as she used to hear the accused’s voice when they were nextdoor neighbours at Faatoia. She also recognised the car as that of the accused as she used to see the accused driving that car and parking it next to her house when they were nextdoor neighbours at Faatoia.
17. Salau also testified that what she heard was noise like concrete being hit several times (sasa) and then the car left. However, Salau said she did not see anything; it was only noise that she heard.

Discussion

18. With respect, I find the prosecution’s evidence very vague and not specific enough. It makes it difficult to link the evidence together in a meaningful and effective way. The prosecution witnesses should also have been given more latitude to tell their own stories in their own words. Take away all the hearsay evidence which is inadmissible, there is no evidence that the ceramic photo on the headstone of the grave in question was undamaged prior to the early hours of Thursday morning 2 October 2014 but was later at daytime found to be damaged. It follows that it is difficult to be satisfied to the required standard that it was the accused who damaged the ceramic photo on the headstone of the grave, particularly when no one had seen her done so. The evidence by the prosecution witness Salau that she heard the noise like someone was hitting concrete could have been the main body of the grave or some other concrete. There is also no evidence that the accused had any weapon or instrument with her. From the photographs of the headstone produced by consent, the damage to the photo on the headstone could not have been caused by bare hands.
19. I therefore conclude applying both approaches in R v Galbraith (1981) 73 Cr App R 124 p.127 and Auckland City Council v Jenkins [1981] 2 NZLR 363, p.365 that there is no case to answer in respect of the charge of intentional damage to property. However, if I am mistaken in arriving at this conclusion, defence counsel had indicated at the commencement of his no case to answer submission that the defence will not be calling evidence. I am therefore also not satisfied that on the evidence the prosecution has proved beyond reasonable doubt that it was the accused who damaged the ceramic photo on the headstone of the grave.
20. In respect of the charge of using insulting words, there is the evidence of the witness Salau that when the accused came to Faatoia in the early hours of 2 October 2014 she did utter insulting words. Salau was able to recognise the accused’s voice as she used to hear her voice when they were nextdoor neighbour at Faatoia. She also recognised the accused’s car as she used to see that car being driven by the accused and parked next to the accused’s house when they were nextdoor neighbour at Faatoia. It was also a moonlit night. I therefore conclude that there is a case to answer in respect of the charge of using insulting words. As defence counsel has indicated that the defence will not be calling any evidence, I am satisfied that this charge has been proved beyond reasonable doubt.

Chief Justice Sapolu