SUPREME COURT OF SAMOA
Police v Faaiufono [2015] WSSC 59

Case name: 	Police v Faaiufono	
		
Citation: 	[2015] WSSC 59	
		
Decision date: 	15 June 2015	
		
Parties: 	POLICE (prosecution) v JOHN FAAIUFONO male of Aele (accused)	
		
Hearing date(s): 	10 March 2015, 5 June 2015	
		
File number(s): 	S3384/14-S3386/14	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	Charges dismissed. The accused is discharged.	
		
Representation: 	B Faafiti-Lo Tam and O Tagaloa for prosecution
S U Vaai for accused

Catchwords: 	Burglary – theft – elements of the charge prosecution must prove beyond reasonable doubt – entry into a building without authority – with intent to commit crime – evidence – defence of alibi –charges dismissed – accused discharged 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013s.174, s.161	
		
Cases cited:	Aukuso v Police [1997] WSSC 26 
Police v Lava [2011] WSSC 162 
Police v Tavui [2013] WSSC 6, para 29; 
Police v Tugaga [2010] WSSC 3
R v Man and Redman [2008] NZCA 117 

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO:  S3384/14-S3386/14

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

JOHN FAAIUFONO male of Aele
Accused

Counsel:	
B Faafiti-Lo Tam and O Tagaloa for prosecution
S U Vaai for accused

Hearing:	10 March 2015, 5 June 2015

Judgment:	15 June 2015

JUDGMENT OF SAPOLU CJ
The charges
1. 	The accused John Faaiufono of Aele stood trial on one charge of burglary, contrary to s.174 of the Crimes Act 2013, and one charge of theft, contrary to s.161 of the Act. He was jointly charged of the same offences with two co-accused but because of the young age of the co-accused, they were dealt with in the Youth Court. Both offences with which the accused is charged are alleged to have been committed at Aele between 31 July 2014 and 30 September 2014.
Elements of the charges
2. 	For present purposes, the charge of burglary consists of three elements which the prosecution must prove beyond reasonable doubt. These are (a) entry to a building, (b) without authority, and (c) with an intent to commit a crime in the building. “Building” in this context means any building or structure. It includes a dwelling house.
3. 	The charge of theft also consists of three elements which the prosecution must prove beyond reasonable doubt. These are (a) the taking by the accused of any property, (b) the taking was dishonest, and (c) an intention on the part of the accused to deprive the owner permanently of that property: Police v Tavui [2013] WSSC 6, para 29; Police v Tugaga [2010] WSSC 3, para 24. 
The evidence 
4. 	At the trial on 10 March 2015, the prosecution called two witnesses, namely, Tavaoga Iakopo (Tavaoga) and Aniseko Vaelei (Aniseko). During the examination in chief of the prosecution witness Aniseko, counsel for the accused informed the Court that the accused will rely on the defence of alibi. Thus, after the examination in chief of the witness Aniseko, the trial was adjourned part-heard to 5 May 2015 for the defence to file the necessary alibi notice and serve it on the prosecution so that the prosecution may check out the notice and test the veracity of the alibi. On 5 May 2015, the trial could not continue because the Court was still engaged in an assessor trial. The trial was then further adjourned to 5 and 6 June 2015.  On 5 June, the trial continued and counsel for the accused cross-examined the prosecution witness Aniseko. The prosecution then called two other witnesses, namely, Maliko Motootua (Maliko) and constable Siuseia Tauauvea (constable Siuseia). The accused elected not to give evidence but to call two alibi witnesses, namely, Steve Pulemagafa (Steve) and Poasa Misipati (Poasa).
5. 	The prosecution witness Tavaoga testified that the house that was burgled is at Aele and belongs to his brother. His brother’s house is about twenty meters behind his own house. Tavaoga said when his brother goes to Australia, he would take the keys of his house with him. Tavaoga would then look after his brother’s house until his brother returns from Australia. On a day that Tavaoga could not remember, his children told him that the house of his brother was opened.  When Tavaoga went to his brother’s house, the lock of the back door had been broken and the back door was opened.  When he entered the house, the doors of all the rooms, including the room his brother’s chain saws and weed eaters were kept, were opened and the locks broken. At that time, Tavaoga was not sure whether any property had been stolen from his brother’s house.  He then called his brother in Australia to find out the number of chainsaws and weed eaters he had kept in his house.
6. 	The witness Aniseko is the key witness for the prosecution. He is one of the two co-accused jointly charged with the accused. He is now 17 years old. He has been convicted and sentenced for burglary and theft. Aniseko testified that at Aele last year, he and the other co-accused Maliko went to play volleyball. They met the accused at the volleyball game and the accused told him and Maliko to go with him for an errand. They then went with the accused. When they came to the house that they burgled, the accused turned into that house and he and Maliko followed. The accused then used a piece of metal to break the lock at the back door and entered the house. The accused brought from inside the house two chain saws and two weed eaters. They then hid the stolen items until the next day when they distributed the stole items amongst themselves. Aniseko further said that he and Maliko sold the stolen items that was their share and these items have been recovered by the police. Under cross-examination by defence counsel, Aniseko maintained what he said in his evidence in chief. 
7. 	The prosecution witness Maliko is the second co-accused jointly charged with the accused. Maliko recanted on his statement given to the police in which he had told the police that the accused was present with him and Aniseko when the offences with which they had been jointly charged were committed. Leave was granted to counsel for the prosecution to cross-examine Maliko as a hostile witness to the prosecution.
8. 	Under cross-examination by counsel for the prosecution, Maliko said that he is related to both the accused and the prosecution witness Aniseko. The uncle of his father is the father of the accused while his mother’s brother is the father of the witness Aniseko. So Maliko and Aniseko are first cousins.  At the time of this offending, Aniseko was staying with Maliko at Maliko’s family at Aele. 
9. 	Maliko also said under cross-examination by counsel for the prosecution that what he had said to the police in his statement to the police is all wrong. He had lied to the police because, while he was remanded in custody with Aniseko, Aniseko threatened to beat him up if he told the police the truth. Aniseko wanted him to put the blame on the accused in order to save Aniseko’s younger brother who was with him and Aniseko when they burgled the house in question. Because of the threats by Aniseko, Maliko said he gave the police a false story in order to save Aniseko’s younger brother from being charged by the police. However, Maliko said that what he is now telling the Court is the truth.
10. 	Maliko then said that the truth was that the accused was not present at the commission of the offences with which they had been jointly charged and Aniseko is aware of that. He maintained this evidence throughout his cross-examination by counsel for the prosecution.
11. 	The fourth and last witness called by the prosecution was constable Siuseia who testified that the complaint in this matter was lodged with the police on 13 September 2014.   It is not clear who lodged that complaint.  He also said that when he confronted the accused on Sunday about this matter, the accused objected to it.  Much of the evidence of constable Siuseia is hearsay and therefore inadmissible.  I need not refer to that evidence. But as the date of the complaint given by the police officer was 13 September 2014, the wording in the information that the alleged offences were committed between 31 July 2014 and 30 September 2014 is not accurate.  That is because the alleged offences could not have been committed after 13 September 2014 which was the date of the complaint to the police.
12. 	The first witness called for the defence is Steve Pulemagafa (Steve) who is 32 years old Steve and the accused are cousins.  They do not live together but are from the same village of Aele. 
13. 	The witness Steve testified that he and the accused had been employed as carpenters by the Business Systems Ltd (BSL).  He was the master builder and the accused was a carpentry hand. He said that between July 2014 and the end of September 2014, he and the accused were working at Salelologa, Savaii, doing building repairs for the BSL. They would spend the whole week at Salelologa until Saturday afternoon when they leave on the 4:00pm ferry for Mulifanua. They would arrive at the Mulifanua wharf about 6:00pm by which time the last bus from the Mulifanua wharf had left. They would then hitch hike a ride along the road and they usually arrived home at Aele about 7:00pm and at the latest about 8:00pm to 9:00pm. On Monday morning, they would catch the 6.00am ferry to go back to Salelologa for their work.
14. 	The witness Steve further testified that the accused normally works every day unless he becomes sick then he would write a note to inform their employer.  However, the accused normally works every day as absence from work could result in a reduction in his rate of pay.  He does not recall whether the accused was absent from work on any day between 31 July 2014 and 30 September 2014.  Steve also said that he did not keep any records of the days that the accused had worked or any of the days that the accused was absent from work for being sick.  Such records, if any, should be kept by their employer BSL.  Steve further said that they did not work on public holidays.
15. 	Poasa Misipati (Poasa) was the second witness called for the defence. He is friends with the accused and lives in the same village of Aele as the accused. He testified under cross-examination by counsel for the prosecution, that between July and September 2014, the accused would arrive home from Savaii on Saturday when it was dark. He would then go and hang out with the accused on Sunday but not every Sunday.
Defence of alibi
16. 	As already mentioned, during the examination in chief of the prosecution witness Aniseko, defence counsel informed the Court that the accused will rely on alibi as a defence.  As a result, the trial was adjourned part heard.  An alibi notice should have been served in advance by the defence on the prosecution: Aukuso v Police [1997] WSSC 26 per Sapolu CJ; Police v Lava [2011] WSSC 162 per Nelson J.  The essential purpose of an alibi notice is to enable the prosecution to check out the notice and test or investigate the veracity of the alibi:  R v Man and Redman [2008] NZCA 117 at [32].  Following the then s.367A of the New Zealand Crimes Act 1961, this Court held in Aukuso v Police [1997] WSSC 26; Police v Lava [2011] WSSC 162 that the alibi notice should be served on the prosecution 14 days before the trial.  This notice period is not in statutory from and may change depending on the discretion of the trial judge in a particular case.  But it provides a useful guideline and avoids unnecessary adjournments when notice of an alibi is only raised for the first time by the defence at the trial.
17. 	An alibi is simply an assertion by the accused that he was somewhere else at the time the crime with which he is charged was committed and therefore he cannot be guilty of the crimes.  Even through an alibi is always raised as an issue by the defence, counsel on both sides were in agreement that it was not for the accused to prove conclusively that he was somewhere else at the time the alleged crime was committed.  It is for the prosecution to prove beyond reasonable doubt that it is the accused who committed the crime with which he is charged.  
Discussion 
18. 	It is alleged by the prosecution in the charges of burglary and theft that those offences were committed by the accused between 31 July 2014 and 30 September 2014.  The evidence adduced by the prosecutions does not specify the day or month the alleged offences were committed.  Constable Siuseia testified that the complaint affecting the accused and the prosecution witnesses Aniseko and Maliko was lodged with the police on 13 September 2014.  The alleged offences therefore could not have been committed after that date.
19. 	The evidence of the defence witness Steve is that between July 2014 and the end of September 2014, he and the accused were being employed by the BSL to do building repairs  at Salelologa. They would stay in Savaii until Saturday afternoon when they catch the 4:00pm ferry to Mulifanua.  They would arrive at the Mulifanua wharf about 6:00pm and then hitch hike a ride along the road to get home.  They usually arrived home about 7pm and at the latest 8:00pm to 9:00pm.  On Monday, they would catch the 6:00am ferry to return to their work at Salelologa.  Steve also testified that the accused works every day unless he is sick. He does not recall whether the accused was absent from work on any day between 31 July 2014 and 30 September 2014.  He also said that they did not work on public holidays.  As far as the Court is aware, there are no public holidays between 31 July and 30 September.   
20. 	The defence witness Poasa testified that between July 2014 and September 2014 his friend, the accused, would arrive home from Savaii on Saturday night when it was dark.  Usually, he would go and hang out with the accused on Sunday but not every Sunday.
21. 	 The key prosecution witness Aniseko testified in chief that the accused was with him and the witness Maliko when they burgled the house at Aele and stole two chain saws and two weed eaters from the house.  He also said it was the accused whom they met at a volleyball game who led him and Maliko to the house that they burgled.  Aniseko maintained his evidence in chief under cross-examination by defence counsel.
22. 	The prosecution witness Maliko recanted on his police statement in which he had told the police that the accused was present at the commission of the alleged offences. He was cross-examined by counsel for the prosecution as a hostile witness.  He testified under cross-examination that what he told the police was all wrong and untrue.  The reason why he did that was because the witness Aniseko, while they were remanded in custody, threatened him.  Aniseko told him to put the blame on the accused in order to save Aniseko’s younger brother from being charged by the police otherwise he (Aniseko) will beat him (Maliko) up.  Out of fear of Aniseko, he gave a statement to the police which is not true. Maliko maintained this evidence during his cross-examination by counsel for the prosecution.
23. 	After careful consideration of all of this evidence, I am not satisfied beyond reasonable doubt that the accused was present at the commission of the alleged offence.  The date on which the alleged offences were committed is not specific.  It could be any date between 31 July 2014 and 13 September 2014 when the complaint was filed.  It is also not clear whether the alleged offences occurred on a Saturday night or a Sunday when the accused would be back home at Aele.  This is important because of the evidence by the defence witnesses Steve and Poasa that between 31 July 2014 and 30 September 2014 the accused was working at Salelologa and would return home at Aele on Saturday night and return to Salelologa again early Monday morning.  Thus, if the accused was involved in these offences, the offences should have been committed on a Saturday night or on a Sunday.  This is unlikely given the evidence of Aniseko.
24. 	That is because Aniseko had testified that he and Maliko met up with the accused at a volleyball game at Aele and the accused then led them to the house that they burgled.  It is highly unlikely that a volleyball game would be played at Aele on a Saturday night when the accused would arrive home from Salelologa.  It is also highly unlikely that a volleyball game would be played on a Sunday while the accused is at home at Aele unless the accused, Aniseko, and Maliko are Seventh Day Adventists. There is no evidence that any of them is a Seventh Day Adventist.
25. 	Furthermore, even if the accused was sick for a day or a few days between July 2014 and September 2014 and therefore stayed home from work, as suggested during cross-examination by counsel for the prosecution of the defence witness Steve, I am doubtful whether a sick man would be fit enough to play volleyball and then to go and commit burglary by breaking into a house as Aniseko testified that he and Maliko met up with the accused at a volleyball game from which the accused led them to burgle the house in question.
26. 	The direct conflict between the evidence of Aniseko and the evidence of Maliko also tends to cast doubt on the evidence of Aniseko on which the prosecution relies.
27. 	It is also true that there is a conflict between what Maliko told the Court and what he told the police.  But that does not make the inconsistent statement given by Maliko to the police evidence in this case.  It is only what Maliko said in his testimony to the Court that is evidence.  What Maliko told the police in his police statement can only be used to assess whether he is being a truthful and reliable witness because he has said different things to the police and to the Court.  But that does not make Maliko’s statement to the police part of his evidence.  Maliko’s police statement would have become part of his evidence if he had accepted that statement as true. However, he rejected his police statement as false.
28. 	Given the evidence of the defence witnesses Steve and Poasa which tends to support the evidence of Maliko that the accused was not present at the commission of the alleged offences, I am left with a reasonable doubt about the matter.
Conclusion
29. 	For the foregoing reasons, I am not satisfied beyond reasonable doubt that the prosecution has proved that the accused was present at the commission of the offences with which he has been charged.  The defence of alibi succeeds and the charges are therefore dismissed Accordingly, the accused is discharged.
Chief Justice Sapolu