Police v Meredith [2014] WSDC 12 (14 April 2014)

DISTRICT COURT OF SAMOA
Police vMeredith [2014] WSDC 12

Case name:	Police v Meredith
Citation:	[2014] WSDC 12
Decision date:	14th April 2014
Parties:	POLICE v FONOTOE PIERRE MEREDITH male of Vaoala and MUAGUTUTAGATA PETER AH HIM male of Leififi
Hearing date(s):	3 and 4March 2014
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:
Representation:
Catchwords:
Words and phrases:
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

FONOTOE PIERRE MEREDITH male of Vaoala and MUAGUTUTAGATA PETER AH HIM male of Leififi
Defendant

Counsel: Ms Rexona Titi and Ms B Faafiti Lo Tam for prosecution

Mr D Kerslake for 1^st defendant , Mr P Fepuleai for 2^nd defendant

Sentence: 14^th April 2014

DECISION OF DCJ VAAI

Background

• 1. The first named defendant Fonotoe Pierre Meredith who is the Deputy Prime Minister faces a charge of obstructing Constable Ioapo Isitolo pursuant to Section 10(1)(b) Police Offences Ordinance 1961 (“the Ordinance”).
• 2. The second named defendant Muagututagata Peter Ah Him is Associate Minister for the Ministry of Commerce Industry and Labour. He faces two charges. One of making a U-Turn on Beach road at Savalalo on the 4^th day of October 2013 pursuant to Section 12 of the Road Traffic Orders 1994, and the other of obstructing Constable Ioapo Isitolo pursuant to Section 10(1)(a) the Ordinance. The charges against the defendants arise from an incident on Beach road in October 2013.
  • 3 On the 4^th of October 2013, Corporal Mose Lotomau, Senior Constable Maanaima Patu, Constables Ioapo Isitolo, Tevita Vii and Michael Vala were patrolling in police vehicle POL 38 in town. They started around 10.00pm from the eastern side of Beach road to the west towards Mulinuu. At the roundabout in front of the Tanoa Tusitala Hotel at Sogi they turned and drove back. As they were cruising past the intersection in front of the Flea Market at Savalalo, they stopped and warned the driver of a taxi cab who was about to make a U-Turn not to do so. Almost at the same moment they also spotted a green double cab pickup heading towards them making a U-Turn in front of the SNPF Plaza. The manoeuvre prompted the officers to approach the driver and therefore ordered him to pull over to the side of the road which he did, stopping in front of the Development Bank building. The police vehicle pulled up behind it and Corporal Lotomau instructed Constables Isitolo and Vii to breath-test the driver whom he suspected was driving under the influence of alcohol. The green double cab the patrolling officers pulled over was a government vehicle registered MCIL 07 to the Ministry of Commerce Industry and Labour. The driver was Associate Minister Ah Him.
  • 4 Constable Isitolo conducted three breath-tests on Ah Him and the results were not considered a success because of the way Ah Him breathed into the apparatus. Constable Isitolo decided to conduct a further test and was about to administer it when another government vehicle registered SSS 01 pulled up and stopped alongside MCIL 07. The driver of the newly arrived pickup was Deputy Prime Minister Meredith. He started a conversation with the officers at the scene which went on for a while with the exchanges between Meredith and S/Constable Patu (who had by then joined Constables Isitolo and Vii) seemingly becoming quite heated. Towards the end, Ah Him, who had been silent throughout slowly drove away from where he had been stopped and towards the town clock, followed by Meredith.

Charges

• 5 Meredith - The charge originally laid against Meredith read:

“..at Savalalo on the 4^th day of October 2013 he incited and encouraged Muagututagata Peter

• Ah Him to resist and obstruct Constable Ioapo Isitolo while in the execution of his duty”.

Because the word “and” instead of “or” was used in wording the charge, Mr Kerslake submitted that the prosecution was required to prove Meredith not only incited and encouraged Ah Him, but also incited or encouraged him to resist and obstruct Constable Isitolo while in the execution of his duty. In anticipation of an application to amend the charge, Mr Kerslake objected to granting leave if an application was made, for two reasons. First, the prosecution did not seek leave to amend the charge in its closing submissions. Second and more importantly, amending the charge would prejudice Meredith’s defense. Whilst the former is true, an opportunity was given to the prosecution to respond but limited only to amending the charge. Leave was sought to amend the charge by deleting “and” where it appears between “incited” and “encouraged” and again where it appears between the words “resist” and “obstruct”, and inserting “or” instead.

• 6 Leave was granted and as explained to counsel on the day, there was in the Court’s view no prejudicial effect on Meredith’s defense in the amendment sought because under a charge laid under S 10(1)(b) of the Ordinance, the prosecution is required to prove only that Meredith either incited or (not and) encouraged Ah Him, but also incited or encouraged him to resist or (not and) obstruct Constable Isitolo while in the execution of his duty. The charge as amended therefore now reads:
  • “at Savalalo on the 4^th day of October 2013, the defendant incited or encouraged Muagututagata
  • Peter Ah Him of Leififi to resist or obstruct Constable Ioapo Isitolowhile in the execution of his duty”.
• 7 Ah Him - The first charge against the Associate Minister is:
  • “...at Savalalo on the 4^th day of October 2013 being the driver of....vehicle registered MCIL 07 permit such vehicle to make a U-Turn between the front of Kitano Hotel and Vaisigano bridge”.
• 8 The second reads:
  • “...that at Savalalo on the 4^th day of October 2013, he willfully obstructed Constable Ioapo Isitolo, while in the execution of his duty”.

Facts

• 9 Before conducting the first test, Constable Isitolo explained to Ah Him the nature of and the procedure he would follow in the test using the breathalyser machine he was about to administer. He also instructed Ah Him the proper way to breathe into the tube and informed him that he could be arrested if he did not comply with the testing requirements.
• 10 On the first test, the words “Insufficient Volume” showed on the screen after Ah Him breathed into the tube. The words which showed meant the volume of air Ah Him breathed into the tube was not enough for the machine to show a result. Constable Isitolo accordingly informed Ah Him he was not breathing enough air into the tube, and breath-tested him again. The same words again appeared. Constable Isitolo informed Ah Him he was still not breathing properly into the tube, and tested him a third time. The third test showed the same result. Constable Isitolo then not only warned Ah Him he could be arrested if he kept breathing incorrectly into the tube, but also gave Ah Him another opportunity to be tested. He informed him accordingly and was about to administer that test when Meredith’s pickup pulled up. Meredith first asked the officers “Oa kou mea ga e fai?” (“What are you doing?”), to which Constable Isitolo responded “O lea e kau saili le ‘avamalosi i le ave ka’avale” (“We are trying to test the driver for alcohol”). Meredith said he enquired further “o iai se mea o kupu” (“if anything was happening”), but heard no response. He did not explain when he asked, whether he meant, if anything was happening to the officers or to the Associate Minister because it was plain to everyone present the only thing that was happening when he stopped was the breath testing of the Associate Minister.
• 11 There is no dispute regarding the exchange which followed. Meredith admitted having said to the officers next, something like “A fai la e fai le amiokogu o e fai ia Kalaimagu la e igu i luga” (“If you’re talking about doing the honest thing, then go and do it to Kalaimanu who is drinking up there”). He did not say whether any officer replied. But according to S/Constable Patu he did; he responded “E leai se mea e fai ai fua Kalaimanu e le’o avea e Kalaimagu se kaavale pei o Pika” (“There is no need to do anything to Kalaimanu because he is not driving a car like Pika”). Meredith mentioned seeing earlier that evening, Assistant Police Commissioner Talaimanu Keti and other men he recognised as police officers drinking in a Bar called Leon’s inside the SNPF Plaza, where he himself was having a beer with Ah Him that same evening.
• 12 There were competing claims about accusations of influencing the police. S/Constable Patu denied accusing Meredith of it first. Meredith said S/Constable Patu brought it up. He considered S/Constable Patu’s attitude to him as rude and was surprised by the accusatory tone of the Senior Constable’s remarks about interfering with police work. That he said, is the reason he responded the way he did. He did not explain however why he insinuated that breath-testing the Associate Minister also necessitated breath-testing Assistant Commissioner Talaimanu who evidently, was not aware of what was going on at that moment in front of the DBS building.
• 13 The last words could hardly be described a conversation because only Meredith spoke. The dispute which however arose during the evidence related to what Meredith said and the number of times he said it. Of the three officers who were present S/Constable Patu claimed Meredith called Ah Him three times to “Alu lau ka’avale” (“drive your car”). Constable Isitolo heard the same call more than twice whilst Constable Vii heard it once. Meredith denied calling Ah Him, saying he instead commented “Afai ua leai seisi mea oga ku’u lea o le kaavale a le migisika lagolago e alu” (“If there was nothing further, then let the Associate Minister’s vehicle go”), a comment to which none of the officers responded.

Discussion

• 14 a) Ah Him - Information D44/14 - making a U-Turn between the front of the Kitano hotel and Vaisigano Bridge. Section 12 Road Traffic Orders 1994 states:

15 “That no driver of any vehicle is permitted to make a U-Turn commencing

from infront of Kitano Hotel to Vaisigano bridge along Main Beach Road”

• 16 Mr Fepulea’i submitted there is no longer a hotel called Kitano. That is true but not critical to the prosecution case because the operative criterion in determining the points between which a U-Turn is an offence under S.12 of the Road Traffic Orders 1994 is not the name but the location. That is, anywhere on Beach Road between the Kitano Hotel or where the Kitano Hotel used to be (currently the Tanoa Tusitala Hotel), and the bridge at Vaisigano.
• 17 The charge as worded also does not make specific reference to “Beach Road”. Again, this is not critical to the prosecution case because the undisputed evidence supports the fact Ah Him made a U-Turn in front of the SNPF Plaza which is located between Vaisigano Bridge and the Tanoa Tusitala hotel on Beach Road.
• 18 Mr Fepulea’i conceded the wording of Section 12 of the Road Traffic Orders 1994 renders making a U-Turn in front of the SNPF Plaza a strict liability offence.

b) Information D43/14 - Resisting and misleading the police.

Section 10(1) of the Ordinance states: “Every person commits an offence and is liable to imprisonment for a term not exceeding one year or to a fine of 2 penalty units who;

• (a) Resists, assaults or willfully obstructs any constable in the execution of his or her duty or any person acting in aid of any such constable”
• 19 In determining a charge brought under S. 23 of the New Zealand Summary Offences Act 1981 of resisting a police officer in the execution of his duty, Asher J in Minto (and another) v Police [2013] NZHC 253, identified the elements the prosecution must prove.
• 20 Section 23 of the New Zealand Summary Offences Act 1981 (where relevant) provides:
  • “Every person who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct;
    
    • (a) Any constable, or any authorised officer, or any prison officer, or any traffic officer, acting in the execution of his duty; or
    • (b) Any other person acting in aid of any such constable, authorised officer, prison officer, or traffic officer.”
• 21 The elements Asher J referred to are:
  • (1) That the complainant was a constable (ie a police officer);
  • (2) That the defendant knew he was a police officer;
  • (3) That the police officer was acting in the execution of his duty;
  • (4) That [the defendant] knew that the police officer was acting in the execution of his duty;
  • (5) That the police officer was in fact obstructed in the execution of his duty; and
  • (6) That [the defendant] intended to obstruct him in the execution of his duty.
• 22 Subject to the required state of mind relevant to element (6) in a S 10(1)(a) charge on which I will comment later, I find Asher J’s approach in Minto (ibid) helpful and see no reason why it cannot be adopted in discussing the charges of obstruction against the defendants here.
• 23 Adopting the order in which the elements were discussed, the first two questions whether the complainant was a constable and whether the defendant knew the complainant was a police officer, pose little difficulty because there was no disputing Constable Isitolo was a police officer, and this was known to Ah Him.
• 24 The third question whether Constable Isitolo was acting in the execution of his duty is best seen in the context of whether Ah Him was suspected of driving under the influence of alcohol contrary to the Road Traffic Breathalyser Amendment Act 2009 (“RTBA Act”). Section 40(1) of the RTBA Act prescribes the level of alcohol the excess of which if shown on a breathalyser machine constitutes an offence of driving while under the influence. There is little doubt when Constable Isitolo breath-tested Ah Him, he was acting in the execution of a duty imposed on him by S. 40(1) of the RTBA Act.
• 25 The fourth question whether Ah Him knew that Constable Isitolo was acting in the execution of his duty is better seen in light of the nature of the tests conducted, the procedure followed and the power of arrest Constable Isitolo explained to Ah Him before and during the tests he conducted. Furthermore, Ah Him as a seasoned parliamentarian no doubt knew or ought to have known, the breath-tests conducted on him were done pursuant to a duty prescribed on Constable Isitolo by the RTBA Act which Parliament passed in 2009.
• 26 In answering the fifth question whether Constable Isitolo was in fact obstructed in the execution of his duty, it is necessary to ascertain how he was obstructed. As I understood the prosecution’s argument, the obstruction of Constable Isitolo arose not from Ah Him failing to comply with the requirements of the breath-testing procedure, but from driving away before the breath-testing procedure was complete.
• 27 Since Ah Him was neither charged with failing to comply with the breath-testing requirements of the RTBA Act nor under arrest when he drove away, Mr Fepulea’i submitted that he was therefore free to leave when he did.
• 28 With respect I do not agree because the argument presumes that whether or not Ah Him could drive away depended on whether he was under arrest when he left. The question whether Constable Isitolo was in fact obstructed in the execution of his duty is determined from how Constable Isitolo felt the moment Ah Him left, not whether he had arrested him when he drove away. From his evidence which I accept, Constable Isitolo said he was unsettled by the verbal exchanges between Meredith and Senior Constable Patu. He did not continue with the test he was about to administer when Meredith arrived because his concentration was disrupted by the raised voices he heard. Whilst it is true therefore that Constable Isitolo did not stop Ah Him from leaving, it is equally true that Constable Isitolo did not authorise Ah Him to leave either, in spite of the fact he was not under arrest. Based on how Constable Isitolo said he felt when Ah Him drove away, there is little doubt that he was in the circumstances obstructed.
• 29 In terms of S 10(1)(a) of the Ordinance, the sixth question is whether Ah Him “wilfully” obstructed Constable Isitolo in the execution of his duty. It is necessary in answering this question to consider the word wilfully as it is used in Section 10(1)(a) of the Ordinance.
• 30 It is elementary in my opinion that the ordinary meaning of doing something “wilfully” is doing it intentionally or deliberately. That is, doing something in accordance with or as dictated by one’s will. It follows that wilfully obstructing a constable in the context of S 10(1)(a) of the Ordinance is the same as obstructing a constable according to or as dictated by one’s will.

It can also be said that Ah Him wilfully obstructed Constable Isitolo if he was reckless or did not care about the consequences of his leaving under the circumstances that he did.

• 31 On either meaning of willfulness, there is no evidence that when Ah Him drove away, he was acting against his will or cared about the consequences of his departure. There was no reasonable excuse for Ah Him to leave in the manner he did because he knew the test Constable Isitolo informed him of which was pending, had not been completed when he left. There is little doubt in terms of the meaning of wilful as it is used in S 10(1)(a) of the Ordinance that Ah Him at the time he drove away did so wilfully.
• 32 Meredith - Information D38/14 - Resisting and misleading the police.

Section 10(1) of the Ordinance states: “Every person commits an offence who;

• (a) Incites or encourages any persons to.....obstruct any constable in the execution of his or her duty or any person acting in aid of any such constable”
• 33 Much of what has been said already regarding the charge of wilful obstruction against Ah Him also applies to the charge against Meredith. Therefore the prosecution must similarly prove all six elements except, under element (6) it must prove that Meredith incited or encouraged Ah Him to obstruct Constable Isitolo in the execution of his duty. Before discussing what the prosecution must prove Mr Kerslake submitted, before Meredith could be found guilty of the charge, the prosecution must in addition to the six elements referred to in Minto (ibid) also prove (i) that Meredith wilfully incited or encouraged Ah Him to obstruct Constable Isitolo, and (ii) that Ah Him was in fact incited or encouraged by Meredith to obstruct Constable Isitolo.
• 34 In my view, the prosecution is not required to prove whether Meredith wilfully incited or encouraged Ah Him because the offence as defined by S 10(1)(b) of the Ordinance does not require proof of a wilful state of mind of a person accused of inciting or encouraging another to obstruct a police officer.
• 35 Neither is the prosecution required to prove whether Meredith in fact incited or encouraged Ah Him to obstruct Constable Isitolo because determining the question of inciting or encouraging a third person to obstruct a police officer in accordance with S 10(1)(b) of the Ordinance is an issue of law, not of fact. To prove therefore whether Meredith incited or encouraged Ah Him to obstruct Constable Isitolo, the Court considers the act rather than the fact of inciting or encouraging. That is to say, the impact of what Meredith said is determined not from its impact on Ah Him when he heard them but from what Meredith intended their impact to be when he said them. The real issue is whether or not what Meredith said is reasonably capable of conveying a meaning of encouraging or inciting Ah Him to leave.
• 36 Returning to the elements the prosecution must prove, the first two questions whether the complainant was a Constable and whether Meredith knew the complainant was a police officer poses no difficulties because the police uniform Constable Isitolo wore was clearly visible to Meredith.
• 37 The third question whether Constable Isitolo was acting in the execution of his duty is straight forward. He was breath-testing Ah Him to see whether Ah Him was driving under the influence of alcohol when Meredith came along. There is no dispute that what Constable Isitolo was doing was in the execution of his duty.
• 38 To the fourth question whether Meredith knew Constable Isitolo was acting in the execution of his duty, the answer is again straight forward because Meredith does not deny it. As a senior Cabinet Minister and member of the Bar, he knew or ought to have known that the breath-testing of Ah Him conducted by Constable Isitolo was pursuant to a duty imposed by statute.
• 39 The answer to the fifth question whether Constable Isitolo was in fact obstructed in the execution of his duty is no different from the answer the Court arrived at in the discussion of the charge of wilful obstruction against Ah Him. That is, Constable Isitolo was obstructed by the fact Ah Him drove away before he had completed breath-testing him.
• 40 The last question is whether or not Meredith incited or encouraged Ah Him to obstruct Constable Isitolo while in the execution of his duty. The issue under the circumstances is whether Meredith incited or encouraged Ah Him to leave. It is necessary to consider the meaning of “incite” and “encourage” in the context they are used in S 10(1)(b) of the Ordinance.
  • 41 According to the Collins New Edition Paperback English Dictionary, to incite someone means to “stir someone up” or “to provoke someone to action.” It also defines “to encourage someone” as “to give (someone) the confidence to do something”. To determine therefore whether Meredith incited or encouraged Ah Him to leave, it is incumbent on the Court to consider the circumstances which existed immediately before Ah Him drove away.
• 42 The evidence relevant to the circumstances the Court has to consider is conflicting with regard to what Meredith said. The three police officers said they heard Meredith call Ah Him to leave while Meredith denied it, claiming he asked the officers to let Ah Him go because he saw that the breath-testing was not continuing and therefore thought the breath-testing of Ah Him was over. That is what he may have thought but it is hardly the point because Constable Isitolo who was doing the breath-tests and who therefore decides when Ah Him could leave was certain in his mind he had not finished breath-testing when Ah Him drove away. There is no reason to doubt the evidence of the three police officers that Meredith called Ah Him to leave if he did not say it, because there was no one else talking at the time. If what S/Constable Patu, Constable Isitolo and Constable Vii said is true, then Meredith arguably incited Ah Him to leave if what he said was meant to provoke Ah Him to act the way he did. Alternatively, it could also be said that he encouraged Ah Him to leave, if what he said was meant to give Ah Him the confidence to do so.
• 43 If on the other hand the Court accepts as true Meredith’s evidence of what he said, it does not necessarily follow from that acceptance that he did not encourage Ah Him to leave because even in spite of his claim that he asked the officers to let Ah Him go if there was nothing further, there is still no evidence that Constable Isitolo or any other officer present indicated verbally or otherwise, that indeed, Ah Him could leave at the time he did. If Meredith’s version is therefore true, the question is; what could be reasonably inferred of his intention from what he said?
• 44 Under the circumstances as borne out by the evidence, the inference from what Meredith said of what he had in mind was to encourage Ah Him to leave, quite apart from interfering with the police in their work.

Findings

• 45 Of the charges against Ah Him of making an unlawful U-Turn on Beach Road and of obstructing Constable Isitolo in the execution of his duty on the 4^th of October 2013, I am satisfied beyond a reasonable doubt by the evidence and find him guilty of both charges.
• 46 On the charge against Meredith of encouraging Ah Him to obstruct Constable Isitolo in the execution of his duty on the 4^th of October 2013, I am also satisfied beyond a reasonable doubt from the evidence and accordingly find Meredith guilty as charged.

Judge Vaepule Vaemoa Vaai