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Police v Pesaleli [2022] WSSC 77 (21 December 2022)

IN THE SUPREME COURT OF SAMOA
Police v Pesaleli [2022] WSSC 77 (21 December 2022)

S1728/20

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

SAUNIUNI SILI PESALELI male of Leusoalii, and Gataivai, Savaii.

Accused

Counsel: L I Atoa for prosecution

Accused in person

Hearing: 5 October 2022

Decision: 21 December 2022

RESERVED JUDGMENT OF PERESE CJ

1. The defendant faces one charge of theft as a servant: s 161 and 165(e) of the Crimes Act 2013. It is alleged:
   • That at Togafuafua on 10 September 2020, the [defendant] being a servant of S.O.S. Limited, stole an antenna valued at SAT$1,000.00 with intent to permanently deprive his employer of the said property.
2. Togafuafua is the site of S.O.S Ltd, the employer. The defendant confirmed his not guilty plea when charge put to him. As a self-represented person the defendant was entitled to the benefit of s.88 of the Criminal Procedure Act 2016 and he was duly cautioned.
3. The prosecution called 8 witnesses, two Police officers, employees of S.O.S. Limited (“S.O.S.”), and the owner of the business, Mr Su’a Geoffrey Clarke.
4. The defendant admits that he removed the antenna which was fixed to his employer’s building, and he took the property off the employer’s property to a neighbouring property, but he says he did not act dishonestly because his employer gave him the antenna. The issue therefore in this dispute is whether he dishonestly intended to permanently deprive the true owner – his employer.
5. The defendant was first interviewed by the Police on 6 November 2020; he was cautioned and elected to make a statement, which he gave to Sergeant Lijay Solofa.
6. He said in his statement that in January or February of 2020, he spoke to the pule:
   • “ma ou kalagoa iai pe mafai ga ave ma a’u le antenna. Sa saugoa mai a kakala ese oga ave ma a’u le antenna e le’o koe fa’aaoga.”
7. The defendant further said in his statement that he spoke to the warehouse supervisor to arrange for the ladder, which was stored at Lotopa, be brought to S.O.S. in Togafuafua, so he could take down the antenna. The defendant said he told the supervisor that the pule said he could take the antenna for himself. :
   • “o lea foi ou ke magakuaiga e fa’alua ga ou fai i le Supervisor lea i le Warehouse i Lotopa, e o ma aumai le apafai se’i kakala ai le antenna lea ga faiami ai le pule e ave ma a’u ...”
8. However, the defendant did not take the antenna until much later in 2020. He said he remembered about the antenna in September when he came home from work and discovered that his TV was not working because there was no longer an analogue signal. It was then that he says he remembered that the pule had given him permission to take the antenna.

The defendant’s statement to Police

9. I pause to add here that the Prosecution through Sergeant Solofa attempted to limit the scope of his evidence so as to only give evidence concerning the cautioning of the defendant. In other words, the prosecution did not intend to refer to the defendant’s statement, at all.
10. Ms Ioane for the prosecution submitted the prosecution did not intend to refer to the defendant’s statement because it presented a different narrative to that which the Police intended to prove through other witnesses.
11. The police do not have an unfettered discretion to pick and choose whether to lead the defendant’s statement.
12. It has long been accepted that a statement given by a defendant to the Police has been admissable against the defendant, despite the hearsay problem. Section 47(2)(a) Criminal Procedure Act 2016 (“CPA”) provides that a Court can require a prosecutor to call a witness, and as the New Zealand Court of Appeal discussed in R v King,^[1] it is implicit in such power that there is a concomittent power to require the prosecution to lead particular evidence. Moreover, a decision by a prosecutor not to lead evidence as to what an appellant said at a police interivew may be unfair to the defendant and regarded as a breach s. 25 of the New Zealand Bill of Rights Act 1990 (“NZBOR”), which relates to minimum standards of criminal procedure.
13. I note that s.25(a) of the NZBOR refers to the right to a fair and public hearing by an independent and impartial court. The fundamental right to a fair trial is protected in Samoa by Article 9 of the Constitution. In the circumstances of a case involving a self represented defendant the Court must be vigilant to ensure the defendant receives a fair trial.
14. Whether the Court relies on s. 47(2)(a) CPA, or Article 9 of the Constitution, the Court may in the interests of a fair trial require the prosecution to lead the defendant’s statement, notwithstanding the hearsay rule.
15. At my direction, the prosecution led the defendant’s statement.

The complainant’s evidence

16. Su’a Geoffrey Clarke, the owner of the business, was the main witness for the prosecution. He gave evidence that he often gave his staff little gifts, but that he was sure that he would not have given away the antenna. It had been especially purchased in Tutuila. The simple reason for why he would not have given it away is because he was using the antenna for the TV he had in an apartment in the S.O.S building. Mr Clarke was understandably annoyed when he found out that the antenna had been removed because the wires for the company’s internet were located around the antenna, and they had also been cut. This meant that the business was unable to use the internet for the best part of the day.

Claim of right

17. The common law defence of claim of right is part of our law by virtue of s. 11 of the Crimes Act 2013, and its availability in Samoa was confirmed by the Court of Appeal in Fareed v Police.^[2] It is defence which is assessed subjectively and an honest but mistaken belief will suffice. To establish his claim or colour of right:
    • (a) The defendant must believe that he was entitled to remove the antenna from his employers building because it had been given to him;
    • (b) The defendant’s belief about whether he had been given the antenna must have existed at the time he removed the antenna from the building;
    • (c) His belief that he had been given the antenna must be genuine and honestly held, though it need not be a reasonable belief or even wrong.
    • (d) It is for the prosecution to negative the claim.
18. The prosecution was on notice of the defendant defence of claim of right. It is for the prosecution to negative the claim. The defendant said that he twice told the supervisor of the warehouse at Lotopa that he needed a ladder to get the antenna because the pule had given him the antenna. This evidence is uncontradicted or challenged by the supervisor.
19. The prosecution instead called Su’a Geoffrey Clarke. I accept Su’a’s evidence that he did not give away the antenna. His evidence was cogent as to why he did not give the antenna away – there was no reason for him to give away equipment that he was still using.
20. But the claim of right defence relies on whether the defendant genuinely and honestly believed that he had been given the antenna, even if that belief was unreasonable or wrong.
21. The defendant elected not to give evidence. All that is available to the Court to assess his claim is his statement, and the evidence of the circumstances of the offences.
22. The circumstances of the offending are:
    • (a) it took place in broad daylight, at 10 o’clock in the morning, in plain view of other workers and customers.
    • (b) the defendant interacted with at least two fellow workers on the day of the offending, and he told them that he was going to get the antenna that he had been given. Neither of these employees thought it appropriate to tell the manager.
      • (i) First, the defendant told his fellow worker Mikaele Mika, who even gave him the tools needed to remove the antenna – 2 spanners, which Miakele went home to get; he lived next door the company’s shop.
      • (ii) Mikaele Mika said he told the defendant that he did not believe the defendant’s advice that he had been given the antenna. One would have reasonably expected that such response would be followed up by Mikaele speaking to Su’a Clarke, the pule, an approachable man whom Mikaele went fishing with in the evenings. Instead, Miakele’s evidence is that he told the defendant to get someone else to help him take down the antenna.
      • (iii) Secondly, the defendant took down the antenna with the willing assistance of a fellow worker Ioane Logai.
      • (iv) The ladder used to get up on to the roof would have been placed right outside the front door of the business. It is hard to imagine how anyone working in S.O.S., coming to S.O.S., or driving past S.O.S. could not have seen the ladder propped up next to the building.
    • (c) the defendant appeared to readily own up to having taken the antenna down; and
    • (d) he took the antenna to a house right next door to S.O.S., Mikaele Mika’s house, and he left it on the roof in plain sight.
23. The removal of the antenna was undertaken in plain sight, during daylight hours, and with the assistance of fellow workers. These are not the typical features of the actions of a person acting dishonestly, and they strongly suggest that the defendant honestly believed he was entitled to take the antenna for himself.
24. I have come to the view that the defence of claim of right is made out, however, I also form the view the defendant was clearly mistaken about what Mr Clarke had said to him. Mr Clarke did not say to the defendant that the defendant could have the antennae, rather Mr Clarke said that if the antenna was removed, then he could have it. But, Mr Clarke did not go on to say to the defendant to go ahead and remove the antennae. The defendant appears to have assumed that Mr Clarke meant for him to go ahead and remove the antennae. The defendant was wrong, but such error does not negative a colour of right defence.
25. The circumstances of the offending involve the antenna being removed in plain sight, in the middle of the day, with the assistance of fellow workers – one who provided the necessary tools and another who provided physical assistance to take down the large but fragile piece of equipment. These in plain view actions are consistent with a view that the defendant, subjectively, thought that he had been given the antennae and he was taking steps to take it down.
26. When spoken to by the Police the defendant gave a statement and admitted he took the antenna. He also said that he told Mr Clarke that the wires connecting the internet may have been cut when he cut the wires for the antenna:
    • E le’i umi lā se kaimi ae alu aku loa ma le makou pule ua laka i le 4.30pm. Sa ou fai ai loa i le kaimi lega e leiloa po’o uaea ia ga ma kipia l le antenna, lea ua kipi sēsē ai ma uaea o le internet. O lea ga ika ai loa ma faimai iā au e le’i faimai iā a’u e ave ma a’u le antenna, ae ga ou fai iai ga e faimai e ave ma a’u le antenna i le amakaga o le kausaga ma sa okegia mai ai lava a’u ma makou magava ma ka’ape ai i lea afiafi.
27. Mr Clarke responded that the defendant did not tell him that he had taken the antenna, as suggested above, and that he first found out about the antenna when Fuatino asked him to go outside and see for himself that the antenna was missing. However, the defendant’s statement is a statement against interest – he concedes Mr Clarke told him that he had not given the defendant the antennae. One might have expected a person without an honest belief to say that Mr Clarke had said to him that he could have the antennae.
28. Taking into account all of the circumstances, including drawing an inference from the prosecutions intention to not lead the defendant’s statement, as being a tacit concession that the statement raised a credible narrative, I do not consider the prosecution has negatived the colour of right defence.
29. The antenna has been recovered and the defendant has paid a very high price for his mistaken belief – he has been dismissed from his employment of around 8 years.
30. I am not satisfied that the prosecution had proved the defendant dishonestly intended to deprive the true owner of the antenna, S.O.S. The defendant is acquitted of the theft charge contained in the Charging Document dated 7 December 2020.
    

CHIEF JUSTICE

^[1] [2009] NZCA 607 at [19]
^[2] [2012] WSCA 14 at [37]