Police v Iopu [2014] WSDC 11 (26 March 2014)

DISTRICT COURT OF SAMOA
Police v Iopu [2014] WSDC 11

Case name:	Police v Iopu
Citation:	[2014] WSDC 11
Decision date:	26th March 2014
Parties:	POLICE v SAILINI IOPU, male of Vaimoso uta
Hearing date(s):	7th July 2011 and 24th March 2014
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:	- Both charges are accordingly dismissed
Representation:	Sergeant Solomona Natia for prosecution
	L R Schuster for defendant
Catchwords:
Words and phrases:	Armed with a dangerous weapon -
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FAAMAILE KAPISA FUIAVAILILI male of Tulaele and Afega
Defendant

Counsel: Sergeant Solomona Natia for prosecution

L R Schuster for defendant

Sentence: 26^th March 2014

DECISION OF DCJ VAAI

Background

• [1] The defendant is a police constable. He is accused of throwing stones to the danger of persons and also being armed with a dangerous weapon at Vaimoso on the 1^st day of April 2010. The prosecution called four witnesses on the 7^th of July 2011. The only prosecution witness who claimed she saw the defendant throw stones on the roof of the house she lived in at Vaimoso on the night of 1^st April 2010, was Lagi Asueru. Another prosecution witness Vaavaai Ululoloa said she saw the defendant at Vaimoso the same night of the incident but she did not see him throw stones. She saw only the defendant’s younger brother Tele’a throw stones. Both witnesses were firm in their evidence that the time they both saw the defendant at Vaimoso that night was between 8.00pm and 9.00pm. After the Court heard the prosecution evidence, I made a ruling that there was a prima facie case for the defendant to answer. It followed after my ruling that the defendant then raised by way of defense an alibi without having notified either the prosecution or the Court. The proceedings were therefore adjourned part heard for defense counsel to provide particulars of the defendant’s alibi to the prosecution. Leave was also granted that day to the prosecution the option of reopening its case for the purposes of rebuttal once served with the particulars if considered appropriate.
• [2] The defendant denied both charges claiming he was not at Vaimoso between 8.00 and 9.00pm on the night in question. He was somewhere else. Six witnesses were called to support his alibi defence. Their evidence was heard on the 24^th of March 2014.
• [3] Constable Waikiki Laufili and Constable Lokeni Su’a in their evidence placed the whereabouts of the defendant at the relevant time relative to the time the police witnesses said he was at Vaimoso. They say the defendant was in their company at Mulinuu drinking beer on the 1^st of April 2010. They started drinking around 6.30pm. At around eight o’clock, they left Mulinuu and bought eight more big bottles of Vailima beer which they drank sitting on the seawall adjoining the reserve at Sogi, opposite the Elisa Hotel. They said they dispersed from their spot on the seawall at close to 10.00pm.
• [4] Corporal Paul Tauaa who led a mobile police team to clear the seawall of drunks that same night confirmed what the constables said. He said he saw the defendant with the two constables drinking on the seawall. He told them as duty-bound the purpose of their patrol and left driving towards the town clock. At the town clock roundabout, the mobile team received a call from head office to attend an incident at Vaimoso where a man was reportedly injured. When the mobile team vehicle arrived at Vaimoso Corporal Tauaa knew immediately that the incident they went to attend was at where the defendant lived with his family. According to Corporal Tauaa, the time their mobile patrol came across the defendant and the two constables drinking on the seawall was between 9.00 and 10.00pm.
• [5] I do not see any reason at all to doubt what Corporal Tauaa said about seeing the defendant at Sogi drinking beer with Constable Laufili and Constable Su’a on the seawall between 9.00 and 10.00pm.
• [6] Obviously the defendant cannot be at the seawall between 9.00pm and 10.00pm where Corporal Tauaa saw him, and also at Vaimoso between 8.00 and 9.00pm the same night. The defendant is entitled in my view to the benefit of the doubt and consequently, I find neither the charge accusing him of throwing stones nor being armed with a dangerous weapon at Vaimoso on the 1^st day of April 2010 proven. Both charges are accordingly dismissed.

Judge Vaepule Vaemoa Vaai