IN THE SUPREME COURT OF SAMOA
Police v Savea [2017] WSSC

Case name: 	Police v Savea	
		
Citation: 	[2017] WSSC	
		
Decision date: 	02 March 2017 (oral decision)
10 March 2017 (written decision)	
		
Parties: 	POLICE (Informant) and LEILANI SAVEA, male of Uafato Fagaloa & Faleula (Defendant)	
		
Hearing date(s): 	27 February 2017 & 01 March 2017	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	The application by counsel for the accused of no case to answer is upheld by the court and all charges are dismissed.	
		
Representation: 	L Sio for Prosecution
R Schuster for the Defendant 	
		
Catchwords: 	Indecent assault – sexual connection – hearsay – intoxicated victim – policeman 	
		
Words and phrases:	Application of no case to answer – identification evidence questionable – no identification parade – inconsistency in evidence 	
		
Legislation cited:	Crimes Act 2013 ss. 54(1), 54(3); 54(5); 60;
Evidence Act 2016 ss. 35; 35(1); 35(4)(e); 10(1)
New Zealand Evidence Act 2006 ss. 45(1); 45(2); 45(3); 45(4)

Cases cited:	Police v Meli [2000] WSSC 56 (19 January 2000);
R v Galbraith (1981) 73 Cr App R 124;
R v Turnbull (1976) 63 Cr App R 132 p. 137;
“The Evidence Act 2006: Act & Analysis” (3rd ed.) 2014;
R v Birkby [1994] 2NZLR 38	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A  N  D:

LEILANI SAVEA, male of Uafato Fagaloa & Faleula
Defendant

Counsel:
L Sio for Prosecution 
R Schuster for the Defendant 

Date:		10 March 2017

RULING OF TUATAGALOA J
(Application of no case to answer)

I have already delivered my ruling orally on 02 March 2016 upholding the application of no case to answer. This is the decision in writing with full reasons.
The charges:
1.	The accused was charged with:
a)	Having sexual connection with a female, Debora Lene, knowingly that she has been induced to consent by threat pursuant to section 54(1), (3) and (5) of the Crimes Act 2013; and alternatively
b)	Indecent Assault pursuant to section 60 of the Crimes Act.
2.	At the conclusion of the evidence for the Prosecution, counsel for the accused made a submission of no case to answer in respect of the charges against the accused.
The application for no case to answer:
3.	The basis of the application or submissions by counsel for the accused is that the identification evidence adduced by the Prosecution is tenuous that taken at its highest, it would not prove beyond reasonable doubt that the accused is the person who committed the alleged offences.
4.	The grounds of application for no case to answer by counsel for the accused are:
(i)	Inconsistency in the evidence of the victim;
(ii)	Inconsistency of the evidence by the victim and Prosecution witnesses;
(iii)	Absence of formal identification procedure in terms of an identification parade as a further weakness;
(iv)	The evidence by Prosecution witnesses that the victim identified the accused in their presence is hearsay because the victim never gave such evidence when she testified.
The Law:
5.	The law and principles relating to a submission of a no case to answer is well settled and is referred to and adopted in many of the decisions of this Court; of particular relevance is the case of Police v Meli.
6.	These principles are stated in R v Galbraith which is a case on visual identification evidence where Lord Lane CJ at paragraph 127:
“How then should Judge approach a submission of ‘no case’?
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.
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.
Where the Judge comes to the conclusion that the Crown’s 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.
Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts that 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.”
7.	I bear in mind the observations made by Lord Widgery CJ in R v Turnbull referred to by Sapolu CJ in Police v Meli at page 3; the first of these observations:
“Whenever  a case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused of which the defence alleges to be mistaken, the Judge should warn the jury (or bear in mind if Judge alone) the special need for caution before convicting the accused in reliance on the correctness of the identification.  The reason for this is that it is possible for an honest or convincing witness to make a mistaken identification, and a number of honest or apparently convincing witnesses can all be mistaken.”
8.	The second series of observations by His Lordship relates to the circumstances where the identification is made:
“How long did the witness have the accused under observation?  At what distance?  In what light?  Was the observation impeded in any way?  Had the witness ever seen the accused before?  How often?  If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police?  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?”
9.	Counsel for the accused refers to the absence of an identification parade in his submissions.  Section 35 of the new Evidence Act 2016 provides for the issue raised by counsel as to a formal procedure to be followed by police officers in obtaining visual identification evidence.
10.	Section 35 of our Evidence Act 2016 is exactly the same as section 45 of the New Zealand Evidence Act 2006.  The learned authors of “The Evidence Act 2006: Act & Analysis”  said that the focus of section 45 is on whether or not a formal procedure was undertaken. Section 45 is summarized as follows:
•	Section 45(1): visual identification evidence obtained by way of a formal procedure followed by officers of an enforcement agency will be admissible in a criminal proceeding, unless the defendant proves on the balance of probabilities that is unreliable.
•	Section 45(2): visual identification evidence obtained where a formal procedure is not followed and there is no good reason for doing so, is inadmissible unless the Prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification. 
•	Section 45(3): provides for the requirements for a formal identification procedure.  All the requirements must be met before the presumption of admissibility under section 45(1) is triggered. If one or more of the requirements are not met, admissibility will be governed under section 45(2).
•	Section 45(4): outlines what circumstances constitute a good reason for not following a formal procedure.  If the Prosecution can provide a good reason under section 45(4), the identification evidence will be prima facie admissible under section 45(1) and the onus will shift to the accused to prove that the identification is unreliable. 
11.	Hearsay statement is defined under section 2 of the Evidence Act 2016 to mean a statement (a) made by a person other than a witness or (b) offered in evidence at the proceeding to prove the truth of its contents. Section 10(1) provides for an exception to the exclusionary rule to hearsay.
12.	I will now deal with the evidence of the Prosecution witnesses including that of the victim already heard.
The evidence:
13.	The victim on the night of 07 January 2016 (Thursday) was at the JP Sports Bar drinking with friends since 7.00pm.  At around 12 midnight the victim’s friends left and the victim remained there by herself.  The security of the bar called a taxi and told the victim that the taxi he had called is outside the bar to take her home.  The victim then left in the taxi.  The versions of the conversation between the taxi driver and the victim as to where the victim lives were different.  What is not disputed is that the victim did not have any money to pay for the taxi and so the taxi driver dropped her off at the seawall next to the Savalalo bus depot and the police was called. 
14.	The evidence is that the victim was picked up twice on same night and taken to the police station. The first time she was picked up and taken to the police station were by Constables Taumailelei Paila and Iosefa Su’a in police car (POL38).  It is alleged that it was this time in one of the rooms inside the traffic section that the accused allegedly committed the offending against the victim.
15.	The victim after the offending said she was dropped off by the accused at the same place where she was earlier on picked up by the police.  Later on the same night a different police patrol vehicle (POL29) came across the victim and a man sitting on the seawall around 1.00am-2.00am.  There were four (4) police officers in the vehicle, Constable Taualai Sili, Constable Tuifao Luatua, Constable Musu Auava and Constable Ioane Lemisio.  They stopped by where the victim and a man were sitting and they brought both the victim and this man to the police station.  This is the second time the victim has been taken to the police station on the same night.  On this second time she was interviewed and alleged to have identified the accused.
The evidence of identification by the victim
16.	The victim said in evidence that she did not know the accused’s name, never seen him before and that the only other time she saw him apart from that night was when she was called back in by the police criminal investigation team a week after.  She said she remembers the accused because he was one of the police officers who picked her up the first time who went with her in the room and committed the offending. 
17.	She was asked by prosecution counsel to identify the accused in the courtroom and counsel for the defendant objected because the victim has not provided enough evidence to give a more reliable identification of the accused. Her having to identify the accused in the courtroom falls under the danger of ‘dock identification’.
18.	There are several weaknesses in the victim’s identification evidence:
a)	The accused was not one of the two police officers who picked her up and brought her to the police station the first time.  Those two police officers from their evidence were Constable Taumailelei Paila and Constable Iosefa Su’a.
b)	The victim in her evidence said that the accused was pointed out to her by one of the police officers (she did not know) when she was called back in a week after but it was not her who identified or pointed the accused out to the police.
c)	The victim in cross-examination said that she was not sure if the accused was the police officer who committed the offending against her.  When asked  in re-examination as to which of her answers is the truth that she remembers the accused as given in chief or that she does not as in cross-examination, the victim said she was not sure whether the accused was the police officer who committed the offending that night.
d)	The evidence by the police officers and taxi driver was that the victim smelt of alcohol and was drunk.  The victim herself said she and friends started drinking at JP on that night at 7.00pm until she left at midnight. 
e)	The victim gave confused and self-contradictory evidence.
19.	The evidence of identification by the victim is clearly of very poor quality.  Her evidence and memory may be compromised or contaminated because of her being under the influence of alcohol.
20.	The next step is whether there is any other evidence which can support that the victim identified the accused and the accuracy of that identification. Let’s have a look at this evidence: 
The first pick-up by police:
21.	The evidence is, Constable Taumailelei Paila and Constable Iosefa Su’a first picked up the victim and took her to the police station. It was at this time while at the police station that the accused allegedly committed the offending. 
22.	Constable Iosefa Su’a said when they got to the police station he went inside the room in the traffic section where the accused was sleeping and told the accused about the girl or female they picked up; the accused got up and walked out of the room and he himself went to sleep.
23.	Constable Ieremia Su’a said he was sitting outside of the office with Constable Taumailelei Paila, when the accused came outside, spoke with the victim and then went inside with the victim.  Constable Taumailelei Paila said the accused came outside and took the victim inside. 
24.	The evidence of Constable Ieremia and Constable Taumailelei at best only suggests that it was the accused who, went with the victim inside but falls short as to whether it was the accused that was with the victim inside the room.  The victim said in evidence that she remembers the accused because he was one of the two police officers who picked her up and took her to the police station the first time. This is contrary to the evidence of Constable Taumailelei Paila and Constable Iosefa Su’a who were the officers who picked the victim up the first time.  In cross-examination the victim said she was not sure that it was the accused that was in the room and committed the offending.  She reaffirmed this when re-examined by counsel for the prosecution.
25.	Constable Ieremia also said that when he went inside to get the car keys to attend to a call from Laulii, Constable Iosefa Su’a who was lying on a table said to him that the accused is in the room with the victim. Constable Iosefa Su’a when he testified never said in evidence that he said to Constable Ieremia that the accused and the victim were in the room.  There is the inconsistency with the evidence of the police officers themselves. I find this evidence unreliable.
The second pick- up by police
26.	The second time the victim was picked up and taken to the police station were by police officers Constable Taualai Sili, Constable Tuifao Luatua, Constable Musu Auava and Constable Ioane Lemisio. Constable Taualai when they arrived at the police station instructed Constable Taufao to take the victim in to be interviewed. The victim was said to be interviewed by a female officer Constable Topelei Ah Sam. Constable Taualai said that Constable Taufao and Constable Topelei then took the victim to the traffic section to identify the police officer whom she said allegedly committed the offending against her earlier on the night. He was then told by the two constables that the victim identified the accused while he was asleep. Constable Topelei Ah Sam who interviewed the victim and said to be present when the victim allegedly identified the victim did not give evidence. 
27.	Counsel for the accused argued that the evidence of Constable Taualai Sili and Constable Tuifao Luatua is ‘hearsay’ because the victim never said in evidence that she identified the accused on the same night.  Counsel refers the Court to the case of R v Birkby where a witness made prior identifications of the accused but in Court said she was not sure if the accused was the man she identified prior to Court.  As such, she was not able to affirm her prior identifications.  
28.	According to R v Birkby the evidence of Constable Tuifao Luatua will be seen as ‘secondary evidence’ to mean evidence from one person that he has witnessed an identification made by another person which evidence is always admitted where there has been primary evidence from the identifier (the victim) to prove the fact that an identification was made and to affirm its truth which here, no such evidence was given by the victim.
29.	The question is, can the evidence if ‘hearsay’ be admissible under section 10(1) of the Evidence Act 2016? The criteria for admissibility of hearsay are (a) reliability and (b) unavailability of maker or undue expense. The issue is reliability of the statements (or evidence of Constables Taualai and Taufao) said to be hearsay. The circumstances in which the statement was made must be taken into account which is the accuracy of what was said and the veracity of the person making the statement but also the nature and contents of the statement.
30.	The accuracy of what was said cannot be affirmed because the victim who is said to have identified the accused on the same night did not say when she testified that she identified the accused as the police officer who allegedly committed the offending. As said earlier the victim on the night was under the influence of alcohol and that the accused was said to have been identified while he was asleep cast much doubt to the accuracy of identification.
31.	The evidence of Constable Tuifao Luatua and Constable Taualai Sili are at best ‘hearsay’ and not admissible under section 10(1) of the Evidence Act 2016. 
32.	These other evidence does not assist any evidence of identification by the victim.  The best it says is that the accused went into the office with the victim.  It does not say that the accused was with the victim inside the room where the offending allegedly took place.  This other evidence as to identification in my view is too unreliable. 
33.	In relation to an identification parade section 35(1) of the Evidence Act 2016 abolished the pre-eminence of the identification parade as “is any notion of a hierarchy of procedures for example, photographic identification, video identification etc. based on a greater reliability of one method over another.  That is, there is not necessarily one method that inherently yields more accurate identifications”. 
34.	Counsel for the prosecution submitted on section 35(4)(e) where an identification was made by the victim to the police soon after the offence was reported and in the conduct of that officer’s investigation as a good reason for not conducting an identification parade. The evidence to support this is that the victim identified the accused on the same night after being interviewed. This evidence is not accepted by the court for reasons already said earlier in this decision. 
Conclusion:
35.	The application by counsel for the accused of no case to answer is upheld by the court and all charges are dismissed.

JUSTICE TUATAGALOA