Police v Chang [2016] WSDC 2 (19 February 2016)

DISTRICT COURT OF SAMOA
Police v Chang [2016] WSDC 2

Case name:	Police v Chang
Citation:	[2016] WSDC 2
Decision date:	19 February 2016
Parties:	POLICE v SILINIU LINA female of Alafua, TUMUA T LUAFALEAO female of Luatuanuu, SALAA SALE SALAA male of Sapapalii and ELAINE ELENA ULIA FAIGA female of Afega
Hearing date(s):	23, 24, 25, 26, 27 & 30 November, 1, 2 & 17 December 2015
File number(s):	D2242/15.D2283/15.D2284/15 & D2285/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:	- Info D2242/15 - Elena Faiga found guilty. Info D2282/15 - No prima facie case made out and the charge dismissed. Info D2283/15 Mrs Chang and Mrs Luafalealo both found not guilty. Info D2284/15 - Mrs Chang and Superintendent Sala’a both found not guilty. Info D2284/15 - Mrs Chang found not guilty. Mrs Luafalealo found guilty.
Representation:	P Fepuleai and D Roma for prosecution
	T B Heather-Latufor 1st & 2nd defendants P L T Masipau for 3rd defendant R V Papalii for 4th defendant
Catchwords:	Indecent assault -
Words and phrases:
Legislation cited:	Criminal Act 2013 s141 & 133
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

D2242/15.D2283/15.D2284/15 &.D2285/15.

BETWEEN

P O L I C E
Prosecution

A N D

SILINIU LINA female of Alafua, TUMUA T LUAFALEAO female of Luatuanuu, SALAA SALE SALAA male of Sapapalii and ELAINE ELENA ULIA FAIGA female of Afega
Defendants

Counsel:

P Fepuleai and D Roma for prosecution

T B Heather-Latu for 1st & 2nd defendants P L T Masipau for 3rd defendant R V Papalii for 4th defendant

Sentence: 19 February 2016

DECISION OF DCJ VAAI

Background

1. A young woman named Susana Stowers from Lano lived with Terry Faiga, pastor of the EFKS church in Lano and his wife Elena Faiga from the middle of 2011 towards the end of 2012. After she’d left the pastor’s residence, Susana lodged with Samoa Victim Support (SVS) in November 2012 a complaint against Elena for assault. She did not return home but instead stayed with SVS in one of its shelters at Moto’otua. SVS referred Susana to the police which investigated her complaint. The investigation led to the police charging Elena for indecent assault. She denied the charges in Court in April 2013 and remanded to the 25^th of July 2013 for a hearing. On the 25^th of July, police prosecutor Senior Sergeant Komiti sought to further adjourn hearing of the charges as the police were not able to proceed. In Court, Susana’s father Su’a Fa’aaliga Stowers also sought leave to withdraw his daughter’s complaint informing the Court the parties had reconciled and his daughter had furthermore gone overseas and not likely to return. His application was accepted by the judge and the charges were dismissed.
   

Evidence

2. It was clear from the evidence that during the police investigation and after Elena was charged Susana’s parents Su’a and his wife Peati Stowers were pressured by the village and the EFKS congregation at Lano to withdraw their daughter’s complaint. They were similarly requested also by Terry’s parents to withdraw Susana’s complaint. In turn, they requested Mrs Chang, president of SVS on at least two separate occasions to withdraw Susana’s complaint. Each time, Mrs Chang refused. Throughout the same period, Terry also made several attempts on his own at first and later with his wife Elena to see Mrs Chang. On every occasion Mrs Chang also refused an audience. During an argument in the reception area of the SVSG Office in April 2013 between Elena and her husband however Elena’s voice while insisting on seeing Mrs Chang grew so loud that to avoid a scene Mrs Chang saw them. In Mrs Chang’s office Elena was visibly shocked when she discovered unexpectedly her husband Terry was a witness in the criminal charges pending against her. This revelation led a tearful Elena herself revealing to Mrs Chang something Mrs Chang was not aware of either. Terry Faiga was in a sexual relationship with Susana when Susana lodged her complaint with SVS. When the shock eased on both women Elena was asked to contact CID while an apologetic Terry sheepishly took his leave. Mrs Chang later confronted Susana with the latest revelation. Susana not only admitted being in a sexual relationship with the pastor but Terry also accompanied her to SVS when she lodged her complaint against his wife Elena.
3. On or about the 25^th of April 2013 a meeting was held in Mrs Chang’s Office at SVS in Apia. Present were Susana’s parents Su’a and Peati Stowers, Terry and Elena Faiga, Terry’s parents Tatau Taiti Faiga and his wife Piilua, and Mrs Chang. Superintendent Sala’a said he was not present but Su’a, his wife Peati, and his daughter Susana all claimed he was there but he said nothing. The purpose of the meeting was to find a way of reconciling the different sets of parties on the matter of Susana’s complaint. The outcome of the meeting was a consensus to withdraw Susana’s complaint from SVS and with the police. Susana was later brought into where the meeting was held and her father made her to apologise. She did. She was also released from the care of SVS the same day. On the 1^st of July 2013, Mrs Chang claimed Susana and her father called into the SVS offices again to request withdrawing the charges.
4. On or about the 4^th of July 2013 Susana claimed that Terry and Elena Faiga, Mrs Chang, Superintendent Sala’a and herself met at the SVS Office in Apia. The meeting was in relation to withdrawing the charges. Susana confirmed Supt Sala’a advised the meeting it was not his business to interfere with the charges before the court, and he further advised Susana she could if she wished write to the Commissioner of Police seeking the withdrawal of her complaint.
5. The next day the 5^th of July 2013, Mrs Chang said Susana called at the SVS Office with her brother Mefi seeking help from SVS to withdraw the charges. The same day therefore, a letter written under the SVS letterhead to the Police Commissioner requested withdrawing the charges. Mrs Chang signed it as president of SVS and Susana as the complainant. The Commissioner responded by letter of the 12^th of July 2013 refusing the request. He also advised (inter alia) the complainant may herself request withdrawal of the charges when called in Court.
6. On the 24^th of July 2013 Susana left for American Samoa. After seeing her daughter off Peati said that Mrs Tumua Luafalealo called her to come to the SVS Office before returning to Savaii. She did and was told to go and see Superintendent Sala’a at the police station. She said Sala’a told her in his office what to say in Court the next day. Supt Sala’a denies coaching Peati on what to say in Court but admitted advising her of the appropriate steps to follow when seeking to withdraw charges in Court.
7. The next morning Superintendent Sala’a as head of the prosecution section in Apia went to Savaii. He went to hand over to Tuasivi police the prosecutorial function which up to that day had been handled by a team of prosecutors from Apia. He was in Court but did not say anything before or after the dismissal of the charges against Elena. As a matter of courtesy, he informed the Judge in chambers during the Court recess of the changeover of the prosecutorial function to the Tuasivi Police. He also thanked the judge for the courtesy shown to the police prosecutors during the time his team from Apia handled the prosecutorial role in Savaii. The same day after the charges had been dismissed a police vehicle from the Fagamalo outpost on Supt. Sala’a’s request picked up Elena from Samalaeulu and brought her to the Rosalote Hotel at Sapapalii where she had drinks in the evening with Supt. Sala’a and S/Sergeant Komiti. The next morning, Mrs Faiga was picked up from Rosalote hotel by a police vehicle prearranged to collect Supt Sala’a from his home in Sapapalii for the wharf at Salelologa.
8. On the 14^th of November 2013 Susana made a statement to a Sergeant Tomasi Tuua at Fagatogo police station in American Samoa. In it, she claims her parents planned for her to go to American Samoa after the meeting of the 25^th of April 2013 held at Mrs Chang’s office. She however left for American Samoa the day she did because of pressure from Mrs Chang and Mrs Luafalealo of SVS for her to leave before the case against Elena Faiga was heard. Peati also said her daughter Susana left for American Samoa earlier than planned because of pressure from Mrs Chang and Mrs Luafalealo. Susana further claimed Mrs Chang and Mrs Luafalealo called on her brother’s phone in Nu’uuli American Samoa in the second week of November 2013. She was told not to say anything to the police if they came except that their lawyer was Iulai Toma.
9. Records of calls made from Blue Sky telephone No. 7576602 was tendered as Exhibit “P6”. Telephone number 7576602 is registered under SVS. According to Exb”P6” three IDD or international direct dialed calls were made from telephone number 7576602 to telephone number 7315828 in American Samoa on Monday the 11^th of November 2013. The American Samoa number the calls were made to is the same as the number Peati gave as her son Sosene’s phone number in Nuuuli, where Susana was living in American Samoa the day the calls were made.
10. Mrs Chang strongly denied pressuring Susana or her mother Peati for Susana to leave the jurisdiction the day Susana left because her last involvement with Susana’s case was the letter of the 5^th of July 2013 to the police. She had nothing more to do with Susana’s case after the letter and had no reason to. She did not see or talk to Peati on the 24^th of July 2013 either because she was preoccupied with a UN project from the 22^nd to the 26^th of July 2013. She denied calling Susana in November 2013 also because she does not know the phone number in American Samoa the calls from SVS were made to. Furthermore, she did not know at the time the calls were made of a police investigation into the dismissal of the charges against Elena Faiga. She only knew about an investigation involving her in 2015.
11. Another witness for the prosecution in the charges of indecent assault against Elena was a young woman also from Lano named Foai Galue Malo. She presently resides in American Samoa but used to live with her parents at Lano. She regularly helped out with the chores at the pastor’s residence in the time Miss Stowers lived with Terry and Elena. In February 2012 Foai left for American Samoa. She discovered there she was pregnant and returned in August 2012 accompanied by her mother Logogalu Malo who travelled across to escort her back. She was living with her parents at Lano when the police took a statement from her on the 17^th of November 2012 in relation to Susana’s complaint against Elena. On the 20^th of November 2012 Foai gave birth to a baby boy. On the 20^th of February 2013, Foai said Elena came and told her off for making the statement she made to the police the previous year. Later Elena came to her home and the two of them reconciled in the presence of her mother. Logogalu denied Elena ever visiting their home while she was living at Lano with her husband, and denied also being present at a reconciliation between the two.
12. On a later date, Foai said Elena urged her to go on a Lano EFKS fundraising trip to American Samoa. She did not go because her baby was too young and at the time breastfed. According to Logogalu, Foai did not go on the trip because it was never part of their family’s plan for her to go. Only her, her husband and three of her sons went. After the fundraising trip returned from American Samoa Foai claimed Elena offered to pay her fare to go to American Samoa if she went and stayed there until the case involving the charges against her was over. She therefore requested her uncle in American Samoa to get her a permit which he did. Once she had her permit she asked Elena for the money to pay her fare, but got nothing. She then requested her uncle to pay for her fare which he also did. She left for American Samoa on the 10^th of May 2013 leaving her five month old son in the care of her parents. She was still in American Samoa when the charges against Elena Faiga were dismissed.
13. Logogalu recalled differently. She is originally from American Samoa. Her father (Foai’s grandfather) and one of her brothers (Foai’s uncle) are American Samoans who live there. When it was discovered in American Samoa Foai was pregnant Logogalu’s airfare to go and escort her back was paid for by her father in American Samoa. It was her and her husband’s plan all along for their daughter to return to American Samoa to work after she gave birth. Logogalu talked to her father about her plans not only to get Foai back to American Samoa but where and who she was to live with. Organising the permits for Foai to enter American Samoa and payment of her airfare every time she travelled there was done by Logogalu through her father. For this reason, she did not know why Foai testified that Elena urged her to go on the EFKS fundraising trip to American Samoa or Elena offering to pay for Foai’s airfare to go back to American Samoa and stay there until the case was over. In Logogalu’s view Foai went to American Samoa in May 2013 only because of her parent’s decision for her to find work and a better future in American Samoa. Foai did not go back as a result of any consultations Foai had with her grandfather or uncle. Because she is of a younger generation it would be inappropriate for Foai according to Logogalu to consult directly her grandfather and/or uncle (Logogalu’s father and brother respectively) in American Samoa on matters such as permits and airfares. She disputed Foai herself organising her entry permit and airfare to American Samoa when she left in May 2013. Logogalu herself did it after talking to her father and brother in American Samoa.
14. Logogalu also said her relationship with her daughter is close. Despite this however Foai never told Logogalu what she told the police in her statement. Logogalu claimed she only knew of a scandal involving the village pastor Terry Faiga when the feagaiga or covenant between the congregation and the pastor ceased following the annual meeting of the EFKS Church at Malua in May 2013. Foai had by then left for American Samoa.

Charges

15. Information D2242/15 - As amended alleges that Elena Faiga attempted to defeat the course of justice...the criminal prosecution of herself for indecently assaulting Susana Stowers when she coerced between the 20^th of February and 10^th of May 2013 Foai Galue Malo to leave for American Samoa.
16. Information D2282/15 - Alleges that Lina Chang, Tumua Luafalealo, Sala’a Sale Sala’a and Elena Ulia Faiga attempted to defeat the course of justice...the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers in preparing the letter to the Commissioner of Police to withdraw the charges against the fourth named defendant.
17. Information D2283/15 - Alleges that Lina Chang and Tumua Luafalealo attempted to defeat the course of justice...the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers for coercing Susana to leave for American Samoa on the 24^th of July 2013 before the court case.
18. Information D2284/15 - Alleges that Lina Chang and Sala’a Sale Sala’a attempted to defeat the course of justice....the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers for arranging between the 1^st and the 25^th of July 2013 for Susana’s parents to withdraw the charges against Elena Ulia Faiga.
19. Information D2285/15 - As amended alleges that Lina Chang and Tumua Lufalealo attempted to defeat the course of justice.....the police investigation into the dismissal of the criminal prosecution of Elena Ulia...assaulting Susana Stowers when they called Susana on the

11^th of November 2013 and told her not to cooperate with the police.

Prima facie case

20. At the close of the prosecution case two matters were raised by defense counsels. First, Mrs Heather-Latu submitted on behalf of all defendants the charges as laid and after amendments to some were allowed were defective for insufficient particulars, and ought to be quashed. The submission was denied and a ruling with the reason for the denial was delivered orally on the 1^st of December 2015. Second, all three defense counsels also submitted to dismiss all charges on the basis a prima facie case in respect of each charge had not been made out. The submission with specific regard to the charge in Information D2282/15 against all four defendants was accepted and a ruling was similarly delivered orally with reasons the same day. Information D2282/15 was consequently dismissed and requires no further discussion here.

Discussion

Information D2242/15

21. The charge as amended and further explained by prosecuting counsel in opening alleges that Elena Faiga attempted to defeat the course of justice by trying to coerce Foai Malo to leave for American Samoa between the 20^th of February and the 10^th of May 2013.The prosecution relies in this charge on Foai’s evidence. She said Elena asked her to go to American Samoa on two separate occasions. The first was a day after the 20^th of February 2013 when Elena told her to go with the EFKS fund raising group to American Samoa. The second was on a date after the fundraising trip had returned and before she left for American Samoa on the 10^th of May 2013. This time Elena told Foai she would pay her airfare if she went and stayed in American Samoa until the court case was over.
22. Foai’s mother Logogalu contradicted her daughter on being present at a reconciliation, and similarly on the members of her family both here and American Samoa directly responsible in organising Foai’s permit and airfares. In addition the real reason Foai left in May 2013. Counsel for Elena Faiga relies on the contradictions by Logogalu of her daughter’s evidence as providing sufficient justification to find Foai’s credibility as a witness and the reliability of her evidence that Elena asked her to leave for American Samoa is both questionable and doubtful. There is some merit in what Ms Papalii says aobut Foai’s credibility and a doubt could also be raised from the contradictions in the testimonies of mother and daughter. In my view though, it does not necessarily follow from such a finding that Foai’s evidence on what Elena asked of her twice did not happen at all or in the way Foai said it happened. The way I see it the respective parts of Foai’s evidence which was not rebutted by the defendant or contradicted in any significant way by Logogalu supports the prosecution’s claim that Elena attempted at least once to frustrate the criminal proceedings brought by the police against her. She did it by asking Foai Malo, a witness for the prosecution to leave while the hearing of the case relating to the same said charges was pending before the Court. Even though Foai did not leave immediately or at all for American Samoa on either occasion she was asked to, that was not in issue. It goes without saying also Elena had a motive to see the charges against her of indecently assaulting Susana fade away somehow. I am satisfied from the evidence that Elena between the 20^th of February and the 10^th of May 2013 attempted to defeat the course of justice being the criminal proceedings against her by asking what she asked of Miss Foai Malo, and find her guilty as charged.

Information D2283/15

23. The charge as explained by prosecuting counsel alleges that Lina Chang and Tumua Luafalealo attempted to defeat the course of justice being the criminal prosecution of Elena Ulia for...assaulting Susana Stowers when they coerced Susana to leave for American Samoa on the 24^th of July 2013.

The prosecution relies in this charge on the evidence of Susana and her mother Peati, and to some extent the evidence of Su’a Stowers. As I recall, in Susana’s evidence in chief she mentioned Mrs Luafalealo calling her in Savaii and telling her to get ready to go to American Samoa. She told her parents what Mrs Luafalealo said. She also told Mrs Luafalealo she had a brother Sosene, in American Samoa. She gave Mrs Luafalealo Sosene’s phone number. Her brother got her an entry permit for American Samoa and paid for her airfare. She left on the first flight out the morning of the 24^th of July 2013. According to Su’a, he and his wife Peati planned to send Susana to American Samoa after the April 25^th meeting at SVS. However, Susana left unexpectedly earlier than planned because of pressure from SVS. He did not elaborate who in SVS pressured him or why he gave into such pressure. According to Peati, Mrs Luafalealo called her in Savaii to ask if they had any relatives living overseas they could send Susana to. She said the entry permit for Susana her son in American Samoa applied for arrived on the 23^rd of July 2013. After seeing her daughter off the next day, she received a call from Mrs Luafalealo to call into the SVS office. At the Office, she said Mrs Chang told her to go and see Supt Sala’a at the police station. When cross examined Peati said her and her husband Su’a decided to send Susana to American Samoa for her future after the court case. But SVS called them to get Susana out of the country urgently before the court case. Her memory was not very clear who called but clearly inferred it was either Mrs Chang or Mrs Luafalealo.

24. At its best the only prosecution evidence on this charge against Mrs Chang was her advising Peati at the SVS Office to see Sala’a after her daughter had left in the morning. There is no clear evidence of Mrs Chang making any calls to Susana or Su’a or even Peati in Savaii urging anyone to send Susana anywhere. Mrs Chang denied also seeing Peati the day Susana left. But even if it is true that it was her who told Peati to go and see Supt Sala’a, this evidence only links her to attempting or allegedly coercing Susana to leave for American Samoa before the court case, after the fact she had already gone. Again I am not satisfied by the whole evidence relating to this charge Mrs Chang attempted to coerce Susana to leave the country before the court case.
25. As far as Mrs Luafalealo’s guilt or otherwise of this charge goes her name was mentioned by both Susana and Peati as the person in SVS who called them in Savaii asking whether they had any relatives living overseas. Like her husband Su’a, Peati did not refer either to a specific name of a person other than saying it was pressure from SVS that prompted Susana’s departure before the court case. The police in Tuasivi were unable to serve a witness summons on Susana because she left the morning of the day they tried to serve her. When she left for American Samoa therefore she had not been formally summoned to appear as a witness for the hearing scheduled for the 25^th of July 2013. In Mrs Luafalealo’s defense, her counsel submitted that Susana was free to travel overseas the day she left because she was under no legal obligation to remain in the jurisdiction. That makes sense but hardly the issue. The issue is whether Susana’s departure before the court case was due to pressure from Mrs Luafalealo, or her own family’s decision, or both. Despite leaving before the court case Susana could have stayed until after the court case. The question which arises is; was she forced to travel the day she did and if so by whom? I see no evidence of Susana leaving when she did under duress. There is no evidence either of Su’a or Peati claiming they had no options available other than to succumb to the so called pressure. One cannot ignore the fact Mr and Mrs Stowers on the evidence decided after the April meeting at SVS to send Susana to American Samoa. In their own words that was their wish for her and her future. There was certainly no obligation on them to send Susana away the day she left. It appears from their evidence they sent Susana away the day she did out of respect for SVS. That is the basis of the prosecution arguing the evidence of telephone calls Mrs Luafalealo made to Savaii before Susana left is enough to find her guilty of attempting to coerce Susana to leave before the hearing of the court case. Other than the evidence of Susana and Peati that Tumua called them and asked if they had relatives living overseas where Susana may go, the real question is whether the prosecution’s evidence against Mrs Luafalealo is any different from that against Mrs Chang in proving an attempt by her either alone or in concert with Mrs Chang to coerce Susana to leave before the court case. I have considered this question at length and have come to the conclusion I am not certain the evidence is enough to satisfy the court that Mrs Luafalealo by calling Peati and Susana in Savaii should single-handedly bear the brunt of the collective wish and intent of Susana’s parents and possibly Susana herself for her to leave and more importantly for her to do so before the court case was heard. I am left with a nagging doubt in my mind and Mrs Luafalealo gets the benefit of that doubt. She is found not guilty.

Information D2284/15

26. In accordance with the prosecution’s closing submissions this charge alleges that Lina Chang and Sala’a Sale attempted to defeat the course of justice being the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers by arranging for Susana’s parents to withdraw the charges against Elena Faiga between the 1^st and the 25^th of July 2013.
27. The prosecution relies significantly in this charge on certain events which occurred between the 1^st and the 25^th of July 2013. The first is the meeting held at SVS on the 4^th of July 2013 at which Terry and Elena Faiga, Susana, Supt Sala’a and Mrs Chang were present. The second is another meeting at SVS on the 5^th of July 2013 attended by Mrs Luafalealo, Susana and Supt Sala’a where the letter to the Commissioner of Police requesting withdrawal of the charges was prepared and signed by Susana and Mrs Chang. The third is the letter in reply dated the 12^th of July 2013 from the Commissioner refusing the request. There is no evidence who in SVS received the Commissioner’s letter or when it was received or the reactions if any from either Mrs Chang or Mrs Luafalealo to the letter. The fourth is Susana’s departure for American Samoa on the 24^th of July 2013 and the respective roles allegedly played by either Mrs Chang or Supt Sala’a in her departure. Last, the dismissal of the charges on the 25^th of July 2013 and subsequent events which followed involving Supt Sala’a.
28. According to Mrs Chang she only saw Supt Sala’a on the 4^th of July when she asked for his help on the appropriate procedure in withdrawing the charges, during the whole of July 2013. She did not see him on the 5^th of July because she was in her Office at SVS while the letter was being prepared outside. The letter was only given to her in her office to sign after Susana had signed it. She had no further involvement with Susana’s matter after that day and denies seeing Peati on the 24^th of July at SVS and instructing her to go and see Supt Sala’a because she was preoccupied elsewhere at the time on a UN project.
29. According to Supt Sala’a he first became aware of criminal charges by the police against Elena when Mrs Chang asked him to come to SVS on the 4^th of July 2013. It was the first time he had met Susana and Terry and Elena Faiga. His advice was sought that day on the procedure to withdraw the charges. He admitted to having telephone conversations with Elena after the first time he met her. He did not deny helping out with wording and formatting the letter of 5^th July to withdraw the charges. He admitted seeing Peati at the police station when she came to find him on the 24^th of July 2013 but denied coaching her about what to say in court the next day. He admitted helping her on what to do rather than what to say if the charges were called in court. He went to Savaii on the 25^th of July 2013 but strongly objected to suggestions he went for this particular case. He only went across to hand over the prosecutorial role to the Tuasivi Police. He admitted asking the Fagamalo police to pick up Elena from Samalaeulu on the 25^th of July 201 in the afternoon and take her to the Rosalote Hotel. He admitted having a drink with her at the same said hotel in the evening after work with S/Sgt Komiti. As a police officer the propriety of having a social drink in the company of a defendant against whom charges brought by the police were earlier the same day dismissed was put to him by prosecuting counsel. He did not seem to find anything improper on his part because he said the charges had already been dismissed. His explanation simply is he is innocent of any wrong doing regarding the police case against Elena. His purpose was to help in circumstances where and when it was sought, initially by Mrs Chang of SVS and later by Peati. His advice on the steps to take when seeking the withdrawal of criminal charges was standard and accepted practice. That is what he said on the 4^th of July when he was asked and again in preparing the letter of the 5^th of July 2013. He did not do anything different either when Peati came to see him. The fact he is a police officer did not make his advice whenever sought any less appropriate. The practice of a complainant writing to the Commissioner of Police requesting to withdraw a complaint is not only common but also one acknowledged by the former Commissioner of Police the late Lilomaiava Fou Taioalo when he gave evidence. Supt Sala’a gave the same reason in denying any wrong doing on his part when Peati saw him on the 24^th of July 2013 about the court case the following day. I accept the truthfulness of Supt Sala’a’s evidence on this point despite suggestions by the prosecution he coached Peati on what to say in Court. An intention on Sala’a’s part to defeat the course of justice should be seen in the context of which party initially sought the withdrawal of the charges against Elena once they were laid in Court. It was Su’a and Peati Stowers who requested Mrs Chang not once but several times for her help in withdrawing the charges. The requests were all refused. It was only after Mrs Chang saw Terry and Elena in her office and when fresh revelations surfaced that she started to show some flexibility towards the requests by Su’a and Peati for her help. The basis of the consensus to withdraw the complaint and the charges was clearly the meeting of 25^th April after the charges had been called for first mention in Court. In my view Mrs Chang played a facilitative role at the said meeting. Whatever happened after that particular meeting right up to the day the charges were dismissed was done to facilitate or accommodate the consensus reached at the meeting. This is supported by the fact despite a police application for a further adjournment the charges (on the record) were dismissed because of the reasons given by Su’a in his application to withdraw his daughters’ complaint. I come to the conclusion on this charge that on the totality of the evidence the prosecution has not proven anything that Mrs Chang did between the 1^st and 25^th of July 2013 from which an intention on her part to defeat the course of justice could be inferred, she either arranged for Mr and Mrs Stowers to withdraw the charges or attempted to pervert the course of the proceedings against Elena Faiga. She is found not guilty.
30. The case against Superintendent Sala’a is different. The prosecution says that even if the Court finds Supt Sala’a’s actions from the 4^th of July when he was first involved to the 25^th of July when the charges were dismissed are to be seen as helping Su’a, Peati and Susana achieve their goal of withdrawing the charges, the matter does not the end there. An inference could still be made that Supt Sala’a arranged to have Susana’s parents withdraw the charges against Elena from the evidence of their telephone conversations, his role in the police car picking up Elena and brought to the Rosalote Hotel the day the charges against her were dismissed and the propriety of his social antics the same evening.
31. The argument is basically, Supt Sala’a knew Elena several weeks before the charges against her were dismissed. This is confirmed by the telephone conversations they had and using his influence to involve a police car to take Elena to the Rosalote Hotel. More inappropriately, being seen sharing a drink with her in a public place albeit in the company of S/Sgt. Komiti. One may also add that as head of the prosecution section at the time Supt Sala’a could also have influenced the prosecutor on the day. The prosecution is asking the Court to make an inference that Supt Sala’a attempted or intended to defeat the course of justice before the charges were actually dismissed from what he did after the charges had in fact been dismissed. It is a colourful argument because it seeks making an inference about Sala’a’s state of mind before the fact of dismissal of the charges from what he did after the charges were actually dismissed. Inviting as this suggestion sounds I am not so easily convinced of any criminality on Supt Sala’a’s part without firm evidence to support such a finding. It might be highly immoral, but there is nothing inherently criminal about having a telephone conversation or telephone conversations with a married woman who is not one’s wife. Sala’a’s conduct at Tuasivi and at Sapapalii after the charges were dismissed might also be considered unprofessional or even ethically reprehensible in terms of the appropriateness of the conduct of a police officer. But the evidence in support of this charge falls short of proving to the required standard an intention or an attempt by Supt Sala’a either alone or in concert with Mrs Chang to derail the criminal proceedings against Elena after the fact, or arranging Susana’s parents to withdraw the charges. Much of the evidence heard on this point from certain police officers were suspicions based on unjustified inferences some of them made and unfounded speculation. The only reason the charges were dismissed was because the Court accepted the application by the complainant’s father. When Su’a made his application to withdraw his daughter’s complaint I did not understand him when he gave evidence to say he was put up to it by Mrs Chang or Supt Sala’a. As the matai and head of his family, it was his duty to tell the Court his family’s wishes. It was his and his wife’s wish all along because they were pressured by the village and the congregation. It was not hard to see the relief Peati must have felt when the charges were dismissed from her testimony; “na manuia le fa’amasinoga,” (the case was successful). From her point of view the case was successful because the charges were dismissed. It was the parent’s wish. It is difficult to see therefore the logic in a situation where a complainant or parent of a complainant seeks to withdraw a complaint and the charges dismissed as a result is not considered pervering the course of justice, but when a third party whose help is sought does so, it becomes a perversion of justice. I am clearly not satisfied the prosecution has proven any criminal intent against Superintendent Sala’a and accordingly find him not guilty of the charge.

Information D2285/15

32. This charge as amended alleges that Lina Chang and Tumua Lufalealo attempted to defeat the course of justice being the police investigation into the dismissal of the criminal prosecution of Elena Ulia Faiga....when they called Susana on the 11^th of November 2013 in American Samoa and told her not to cooperate with the police.
33. The fact that three IDD calls were made to Susana’s brother’s phone in American Samoa from a number registered under SVS here in Samoa on the 11tth of November 2013 is not in dispute. The prosecution therefore relies on the evidence of Susana in this charge on the identity of the person or persons who called and told her not to cooperate with the police. As already mentioned, Mrs Chang denied calling Susana in American Samoa on the 11^th of November 2013 or at all. She was neither aware of a police investigation involving her going on at the time the calls were made nor having any knowledge of the number in American Samoa the calls were made to. I see no good reason to doubt what she said and accept her explanation. She said she had nothing more to do with Susana’s matter after she’d signed the letter of the 5^th of July. She also explained how SVS operated. It was the normal practice that each file on a complainant or victim of a complaint is allocated to specific case officers unless there was a special reason a file required her attention personally or professionally. It is highly unlikely therefore unless Mrs Chang lied that she as president of SVS would personally involve herself with day to day matters case officers normally deal with. The office of president carries a lot more responsibilities such as financial and operational management of SVS. From the above explained I am not satisfied by the evidence heard despite Susana’s claim that Mrs Chang called her in American Samoa on the 11^th of November 2013. It follows she is found not guilty on this charge.
34. The allegation in this charge is somewhat different insofar as it relates to Mrs Luafalealo because her name was mentioned by Susana in several contexts during her evidence. Two of those occasions are relevant to this discussion. First, during the time Susana was under the care of SVS she stayed over a period of time with Mrs Luafalealo and her family at Luatuanu’u. Mrs Luafalealo told her then that she and Elena Faiga were related. Second, Susana also mentioned Mrs Luafalealo as one of two persons she received a call from in November 2013. Both those parts of Susana’s evidence against Mrs Luafalealo stand unrebutted.
35. Counsel argued, since the SVS number used was a network number (meaning anyone who was in the SVS office in Apia could have made the calls the day they were made) the calls could have been made by anyone who was in the Office. That could be one explanation. Another and more logical explanation however is it could only have been Mrs Luafalealo who made one, some, or all the calls. First, there is unrebutted evidence she is related to Elena. Second, the only names of people in SVS who Susana mentioned she received a phone call or calls from are Mrs Chang and Mrs Luafalealo. Third, apart from a person named Kisa who Susana originally lodged her complaint with the only other persons in SVS she mentioned as being involved with her complaint before and when the police charges against Elena were dismissed were Mrs Chang and Mrs Luafalealo. I have already found Mrs Chang not guilty of this charge for reasons she gave in rebutting Susana’s evidence. The same cannot unfortunately be said of Mrs Luafalealo. Based on the evidence as it stands unrebutted I am in no doubt the person who called Susana in American Samoa in November 2013 telling her not to cooperate with the police and mentioning (unbeknownst to the Ombudsman), Iulai Toma’s name as their lawyer was the second named defendant Mrs Tumua Luafalealo. I find her guilty as charged.

Summary of Findings

36. Info D2242/15 - Elena Faiga found guilty.

Info D2282/15 - No prima facie case made out and the charge dismissed.

Info D2283/15 - Mrs Chang and Mrs Luafalealo both found not guilty.

Info D2284/15 - Mrs Chang and Superintendent Sala’a both found not guilty.

Info D2284/15 - Mrs Chang found not guilty. Mrs Luafalealo found guilty.

Judge Vaepule Vaemoa Vaai