Police v Paselio [2016] WSDC 25 (29 June 2016)

DISTRICT COURT OF SAMOA
Police v Paselio [2016] WSDC 25

Case name:	Police v Paselio
Citation:	[2016] WSDC 25
Decision date:	29 June 2016
Parties:	POLICE v SOFENI PASELIO, LAFAELE AUKUSITINO and SEPASITIANO LAVEA, males of Safotu.
Hearing date(s):	25 May 2016
File number(s):	TD130/16, TD131/16, TD132/16, TD133/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	(i) Information TD 130/16, 132/16, 133/16 are dismissed; and (ii) Information TD 131/16 against Sofeni Paselio is proven beyond a reasonable doubt. (iii) TD 131/16 is adjourned for Family Group Conference and Family Group Conference Report.
Representation:	Ms Lucy Sio for National Prosecutions Office Defendants in person
Catchwords:	Throwing stones - Armed with a dangerous weapon – Threatening words – Insulting words
Words and phrases:
Legislation cited:	Police Offence Ordinance 1961 s.26 & 25 Police Offence Ordinance 1961 s.4 (g).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT TUASIVI

BETWEEN:

POLICE
Informant

A N D

SOFENI PASELIO, LAFAELE AUKUSITINO and SEPASITIANO LAVEA, males of Safotu.
Defendants

Counsel:
Ms Lucy Sio for National Prosecutions Office
Defendants in person

Decision: 29 June 2016

RESERVED DECISION OF DCJ CLARKE

The Charges.

1. The charges against Sofeni Paselio, Lafaele Aukustino and Sepasitiano Lavea (“the defendants”) arise from an alleged incident at Safotu Savaii on the 5^th March 2016 relating to the following alleged offences:
   • (a) TD132/16 – armed with a dangerous weapon, namely a stone; and
   • (b) TD133/16 – throwing stones.
2. In respect of Sofeni Paselio, that on the same date at Safotu he used in respect of:
   
   • (c) TD130/16 - threatening words; and
   • (d) TD131/16 – insulting words.

The Evidence:

3. The prosecution called 5 witnesses. The prosecution evidence was that Sofeni Paselio is the operator of an engineering garage at Safotu. On the night of the 5^th March 2016, the defendants were drinking alcohol at his garage and were making quite some noise. Siala Valu said that the defendants ‘sa pisapisaō’ and playing loud music. She then heard stones sometime after 9.00pm thrown on to Sofeni Paselio’s garage roof. She then saw Sofeni Paselio stand up and start swearing saying “Aikae, o e ai kou kae. Kou ke fia ai kae.” She said that the distance from where she was to Sofeni Paselio was to the building adjacent to the court house, a distance of approximately 15 to 20 metres. A light was on in the garage where they were drinking and when these words were spoken. After she heard the swearing, she said Sofeni Paselio grabbed stones and ran and switched off the lights. As her house is on the same meter, her lights also went off. Her house was then stoned striking the front of her house. She said that she saw the defendants throwing the stones from outside the garage. She said that Sepasitiano Lavea before throwing stones said “O a’u o Sepasitiano, o le alo o Lavea. E leai se isi e fasia a’u.”
4. In his evidence, Enesi Timua was at his home at Safotu watching television with his children. He could hear from his house Sofeni Paselio having a drinking session with his workers. His home is on the road front situated to the front of Sofeni Paselio’s house. He says he heard a lot of noise and stones hitting Sofeni Paselio’s house. Not long after Sofeni Paselio’s house was being stoned, the roof of his garage was stoned. He did not see where the stones came from but said that they came from behind where Sofeni’s house is. His house is on a different electricity meter so the lights were not switched off.
5. Enesi Timua’s daughter Imelda Enesi said that she heard stones striking Sofeni Paselio’s house. Sofeni is her cousin. Their house was then struck with stones also. She heard Sofeni swearing ‘ai kae, ai kae, kou ke fia ai kae.” She heard Sepasitiano say “E leai se’isi o a’u o le atali’i o Lavea.” When she went out of the house, she saw Lafaele throwing 3 stones. In cross-examination, she could not recall what Lafaele was wearing and she said that the first 2 stones had hit their house but she only saw Lafaele throw the third stone. She saw him throw the third stone because of car lights shining on him. He was on the main road when he was throwing this stone. She said that the defendants were drunk. She did not see Sofeni Paselio throw any stones.
6. In her evidence, Ponifasio Vamaua said she had been watching television with her uncle Enesi Timua and others. She heard a ‘vevesi’ and went outside to her mother. She heard Sofeni Paselio say to her mother, “O mai e tatou tau. O le po lava lea e sele ai le ulu ma kaukau ai le puka.” She said all she knew was that stones were coming from Sofeni Paselio’s but it was dark and she couldn’t see. In her evidence, she confirmed that you can’t see people outside of Sofeni Paselio’s house if the lights are off. She didn’t see any of the defendants throw the stones because it was dark. Similarly, Sio Lui who gave evidence for the Prosecution said he had heard Sofeni Paselio swearing and Sepasitiano Lavea saying that “leai seisi e faia gaia o ia o le atalii a Lavea.” He said stones were thrown from Sofeni’s garage but he didn’t see anyone throwing the stones.
7. The defendants called 5 witnesses. The first witness Sefa Fuimaono said he was at Sofeni Paselio’s when it was thrown with stones at about 9.00pm. He was there to have his father’s car painted and that evening, he drank vodka together with the defendants. He said he never heard the defendant Sofeni Paselio swear nor did he see any of the defendants throwing any stones. Paulo Timo, Malaki Aukustino, Kalapu Sam and Gwino Ierome also gave evidence on behalf of the defendants. Paulo Timo said he is Lafaele’s cousin. He arrived at about 11.00pm to get Lafaele. He arrived at the time Sofeni Paselio’s house was being stoned. He did not see the defendants throw any stones nor did he hear Sofeni swear. He heard Sofeni only call out about the cars being damaged when his house was being stoned. He said Lafaele was hiding behind a car when the stones were being thrown and he said he could see into the yard. Kalapu Sam’s evidence was that he was on the main road outside Sofeni’s house when it was being stoned. He didn’t see any of the defendants throw any stones nor did he hear Sofeni swear. Gwino Ierome’s evidence was also that he was on the main road when Sofeni’s Paselio’s house was being stoned. He said he didn’t see the defendants throw any stones nor did he hear Sofeni Paselio swearing.
8. The evidence was that Sofeni Paselio and Lafaele are related to Siale Valu and Enesi Timua and they live on the one property with adjoining houses and buildings.

Discussion:

9. There is no question on the prosecution and defence evidence that prior to the stoning of Siala Valu and of the Timua property, Sofeni Paselio’s garage was stoned. The prosecution witnesses did not know who stoned Sofeni Paselio’s house, only that according to Siala Valu for example, it was being stoned from “uta”. After Sofeni Paselio’s house was stoned, their homes were stoned.
10. The Prosecution eye witnesses who said they saw the defendants throwing the stones were Siala Valu who saw all the defendants throwing the stones. Imelda Enesi saw only Lafaele throw a single stone from the main road, through the light of a passing car. No other Prosecution witnesses said that they saw the defendants throw the stones, only that the stones came from the direction of Sofeni Paselio’s house. The defence witness Sefa Fuimaono said that he had in fact been drinking with the defendants at the time of the stoning and that he did not see the defendants throw any stones nor did he hear Sofeni Paselio swear.
11. On the evidence, I am not satisfied beyond a reasonable doubt that the defendants armed or threw the stones as alleged. First, Sefa Fuimaono who was present with the defendants did not see any of the defendants throw any stones.
12. Second, the stones which struck the other houses were thrown whilst Sofeni Paselio’s lights were off. The evidence as to lighting was inconsistent in terms of the area outside of the defendant Sofeni Paselio’s garage where it was alleged that they had thrown the stones from. I found the evidence of Ponifasio Vamaua more credible on the issue of lighting outside of the garage area and that you could not see people in that area if the lights are off. I therefore have my doubts over the identification evidence of Sefa Fuimaono identifying the defendants as having thrown the stones from that area. In terms of the identification of Lafaele throwing a stone from the main road by Imelda Enesi, that identification was in passing light of a car and momentary. I found that evidence unreliable.
13. Third, none of the witnesses for the defendants saw the defendants throw the stones, despite the fact that they were present at the time Sofeni Paselio’s house was being stoned. In terms of the evidence of Kalapu Sam and Gwino Ierome, they were on the main road at the time of the stoning of the houses and did not see Lafaele throw any stones. It was not contested in cross-examination that they were not present.
14. Fourth, and evidence that I place some weight on, there was no question that stones were thrown on to Sofeni Paselio’s roof. It is possible that the same persons who threw the stones on Sofeni Paselio’s roof were the same people who then threw the stones on to adjoining homes and buildings belonging to Siala Valu, Enesi Timua and others. The evidence by the other prosecution witnesses that the stones came from the direction of Sofeni Paselio’s house, thrown in the dark without seeing the person throwing the stones was also evidence I found to be unreliable and unconvincing. I am therefore left in reasonable doubt that the defendants armed and threw the stones as alleged and information TD 132/16 and TD133/16.
15. In terms of information TD 131/16, I am satisfied beyond a reasonable doubt that Sofeni Paselio used the insulting words alleged. Siala Valu’s evidence was that she saw and heard Sofeni say these words from inside the garage whilst the lights were on. He is her nephew and knows him well. Similarly, Imelda Enesi and Sio Lui’s evidence was that they heard Sofeni utter the insulting words, knowing his voice well. Whilst the defence witnesses did not apparently hear these words, I accept that the words uttered would have been brief and in passing during a period of time when stones were being thrown, there being confusion, as well as perhaps fear, to explain why they may not have heard or can recall these words. I place weight on the evidence of Siala Valu on this aspect as her observation of Sofeni Paselio in this instance was whilst he was in the garage and under light. The words uttered in those circumstances may have occasioned a breach of the peace.
16. In terms of TD 130/16, only Siala Valu and Imelda Enesi gave evidence that Sofeni Paselio uttered these threatening words. None of the other prosecution witnesses heard the statements nor did any of the defence witnesses. In her evidence, Siala Valu only heard the words but did not see Sofeni Paselio utter the threatening words. Having regard to this evidence as well as to the evidence in its totality, I am not satisfied beyond a reasonable doubt that the prosecution has proven information TD130/16. This information is therefore dismissed.

Decision:

17. Having regard to the evidence in its totality and for the foregoing reasons:
    • (i) Information TD 130/16, 132/16, 133/16 are dismissed; and
    • (ii) Information TD 131/16 against Sofeni Paselio is proven beyond a reasonable doubt.
18. TD 131/16 is adjourned for Family Group Conference and Family Group Conference Report.

JUDGE LEIATAUALESÃ D M CLARKE