IN THE DISTRICT COURT OF SAMOA
Police v Betham [2025] WSDC 16 (23 December 2025)

Case name: 	Police v Betham	
		
Citation: 	[2025] WSDC 16	
		
Decision date: 	23 December 2025	
		
Parties: 	POLICE (Informant) v PAEPAETELE ERNEST JUNIOR BETHAM AKA FAASAVALU ERNEST JUNIOR BETHAM (Defendant)	
		
Hearing date(s): 	16, 17 & 18 March 2022, 7, 8, 12 July 2022 & 5 August 2022

File number(s): 	2024-04574
2023-02389	
		
Jurisdiction: 	DISTRICT	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Loau Donald Kerslake	
		
On appeal from:		
		
Order:	I find that:
(i)	In relation to the charge of making a false statement causing harm to a person’s reputation pursuant to section 117A of the Crimes Act 2013 -D780/21, I am satisfied that the prosecution has proven beyond a reasonable doubt the elements of the charge.  I also find that the defendant has not proven the defence of truth or honest belief on a balance of probabilities and therefore the defence is dismissed; and
(ii)	The charge of resisting arrest pursuant to section 10(1)(a) of the Police Offences Ordinance 1961 - D877/21 has not been proven beyond a reasonable doubt and it is therefore dismissed.
The matter is adjourned for a presentence report and sentencing.  

Representation: 	Mr. Tuala & Superintendent S. Salaa for Prosecution
Ms. N. Schuster & Mr. Q. Sauaga for the defendant	
		
Catchwords: 		
		
Words and phrases:	Making False Statement causing harm to a person’s reputation – Criminal Libel 	
		
Legislation cited:	Criminal Procedure Act 2016
Crimes Ordinance 1961
Crimes Act 2013
Evidence Act 2015 
Police Offences Ordinance 1961

Cases cited:	Ah Him and Others v Brunt and Mauala [2014] WSCA 2
Minto v Police [2013] NZHC 253
Police v Lam [2020] WSSC 21 (7 February 2020) 
Police v Meredith [2014] WSDC 12 
Police v Tiumalu [2022] WSDC 5 (11 October 2022)
Police v Visesio [2018] WSCA 13
The Queen v Peter Phillip Leaitua [2013] NZHC 702

		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:	

PAEPAETELE ERNEST JUNIOR BETHAM AKA FAASAVALU ERNEST JUNIOR BETHAM male of Matautu - Uta and Falese’ela, Lefaga.

Defendant

Counsel:		Mr. B. Tuala & Superintendent S. Salaa for the Prosecution
			Ms. N. Schuster & Mr. Q. Sauaga for the Defendant.

Hearing:		16, 17 & 18 March 2022, 7, 8 & 12 July 2022
Submissions:		5 August 2022
Decision:		23 December 2025

JUDGMENT
Introduction
1. 	The defendant is charged with two (2) separate charges.  The first charge D780/21 is filed pursuant to section 117A of the Crimes Act 2013.  The second charge D877/21 is a charge of resisting arrest pursuant to section 10(1)(a) of the Police Offences Ordinance 1961.  The wording of the two charges are as follows:
(a)	D780/21:  That the above named defendant at Tamaligi did on 29th day of March 2021 with intent to cause harm to Nafoitoa Talaimanu Keti’s reputation, publish on EFKS TV2 live programme named, “LAUAO SINASINA”, which was aired on Monday Night, the 29th day of March 2021, a statement about Nafoitoa Talaimanu Keti that is false namely, “Sa iai le mea tuga na tula’i mai ai, sa taumafai e fa’amalosi se teine leoleo.  Ia o la e nofo mai luga I o ma le tele o le mea sese ma le fa’aletonu”, thereby committed the crime of False Statement Causing Harm to a person’s reputation; and
(b)	D877/21:  That at Tafagamanu Lefaga on the 3rd day of April 2021, the above named defendant of Matautu-Uta, resisted arrest by intentionally fleeing from police, using a motor vehicle namely taxi, license plate number T-3705, in order to evade Sergeant Peniamina Perite, Constable Faatonu Leava and Constable Siemu Arona, in the execution of their duty.
Name Suppression Order
2. 	On 16 March 2022 I granted an order to suppress the name of a Prosecution witness.  The order remains and the witness will be referred to as witness X in this decision.
Background to proceedings
3. 	This matter was set for hearing on 16 March 2022 and continued on 17 March 2022 and was adjourned for a voir dire hearing to determine the admissibility of the evidence of one of the witnesses on 18 March 2022.     
4. 	On 18 March 2022 an application was made by prosecution for an adjournment.  An adjournment was granted as counsel for the prosecution had to leave the jurisdiction.  There was no objection by counsel for the defendant and the matter was adjourned part heard.
5. 	The hearing continued on 7, 8 and 12 July 2022.  Upon conclusion of the prosecution’s case, counsel for the defendant elected not to call the defendant which is a right afforded to the defendant under the Constitution of Samoa 1962.  They did call one witness.  After the evidence of this witness, both counsel requested time to file written submissions and to address issues which had been raised by the Court.  Legal submissions were adjourned and heard on 5 August 2022
6. 	On 5 August 2022 I reserved my decision.  This is my decision.
7. 	The delay in delivering this decision is deeply regretted and I apologise to both the defendant and both counsel for the delay.  This matter fell within the pile of outstanding matters which were the direct consequences of adjournments and re-scheduling of cases resulting from the immediate aftermath of the Covid-19 lockdowns which had a bearing on the work load in the District Court and on this case.    
The Law
False Statement causing harm to a person’s reputation.
8. 	Section 117A of the Crimes Act 2013 (“CA 2013”) deals with the charge of making a false statement causing harm to a person’s reputation.  It stipulates:
“117A. False statement causing harm to a person’s reputation – (1) A person commits an offence who publishes by any means information: 
(a) about another person; 
(b) that is false;
(c) with the intention to cause harm to that person’s reputation.
(2) It is a defence under this section if the information published is true.
(3) A person who commits a crime under this section is liable on conviction to a fine not exceeding 175 penalty units or imprisonment for a term not exceeding 3 months. 
9. 	In the case of Police v Tiumalu [2022] WSDC 5 (11 October 2022), Schuster DCJ undertook a detailed examination of the jurisprudence surrounding the offence of criminal libel in Samoa. He traced its development from the original wording in the repealed Crimes Act 1961, through its removal as a criminal offence, to its reintroduction in the CA 2013. He also addressed the inherent tension between criminal libel and the constitutional right to freedom of expression.  Schuster DCJ observed that the provision criminalises the publication of false statements likely to injure the reputation of another, provided that the prosecution proves falsity, publication, and intent to defame beyond reasonable doubt. At the same time, the section preserves a defence where the accused can establish, on the balance of probabilities, that the statement was made under an honest belief in its truth.  He summarises section 117A of the CA 2013 as follows:
“The scope of the law of criminal libel may now be restated pursuant to section 117A:
(i) The law codifies the common law criminal libel offence where the publication of defamatory statements which, when viewed objectively, are most seriously defamatory and not trivial the elements being:
(a) A person who publishes information by any means;
(b) Referable to the complainant;
(c) That is false; and
(d) With intent to cause harm to that person’s reputation.
(ii) The publisher must intend to defame or cause harm to reputation in the sense that he must intend either to lower the complainant in the estimation of right thinking members of society generally or cause him to be shunned or avoided or expose him to hatred, contempt or ridicule, or convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business (Moran J in Malifa v Sapolu)
(iii) It matters if the statement is true.
The scope of libel law is restricted by the available defenses to a defendant who bears the burden of proving them upon the balance of probabilities:
(i) It matters that the statement, though false, but was acting under a mistaken and honest belief to be true whether it was reasonably held or not;
(ii) That the statement is published on an occasion of privilege (absolute and qualified);
(iii) That the statement amounts to an honest expression of opinion or fair comment.
Privilege and fair comment are defeated by the prosecution proving that the publisher was motivated by express malice.
In terms of the factors to be taken into account as to whether an offence has been committed to invoke section 117A:
(i) There must be a clear prima facie case
(ii) Only the most serious, grave or gross attacks on reputation
(iii) Allegation of criminal conduct of the complainant
(iv) Eminent (public) position of the complainant
(v) The nature of the publication
(vi) The nature of the article itself
(vii) Express malice (absence in belief of the truth is conclusive evidence of malice)
Even if one or all of the above factors are found to exist in the circumstance of each case, the final question must still be determined as to whether the public interest require the intervention of the state by instituting criminal proceedings instead of a private case between individual’s. Obviously, the more serious the allegation on reputation and the absence of belief in truth, the higher the likelihood of invoking criminal libel.”
10. 	In essence the elements of the charge are that a person:
(i)	Published information;
(ii)	About another person;
(iii)	That is false;
(iv)	With the intention to cause harm to that person’s reputation.
11. 	In the circumstances of this case, the defence available to the defendant is the defence of truth.
Resisting Arrest
12. 	Section 10(1)(a) of the Police Offences Ordinance 1961 (“POO 1961”) states:
“10. Resisting and misleading the police – (1) A person commits an offence and is liable to imprisonment for a term not exceeding 1 year or to a fine of 2 penalty units who: (a) resists, assaults or wilfully obstructs a constable in the execution of his or her duty or a person acting in aid of any such constable; …”
13. 	The elements of the charge of resisting arrest or obstruction pursuant to section 10(1)(a) of the POO 1961 are outlined in Police v Meredith [2014] WSDC 12 by his Honour Judge Vaepule Vaai:
“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.
“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.”
The elements Asher J referred to are:

(1) That the complainant was a constable (i.e. 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.””
14. 	I adopt the elements stated by Asher J in Minto v Police [2013] NZHC 253 as applied in Police v Meredith with the exception that the sixth element should read:  
“(6) That the defendant intended to resist or obstruct him in the execution of his duty.”
Onus and Standard of Proof
15. 	The onus is on the prosecution to prove the elements of each charge beyond a reasonable doubt.  The onus does not shift to the defendant at any time during the trial except where he relies on the defence of truth.  All facts need not be proved beyond reasonable doubt, only the elements of the charge.
Direct and Circumstantial Evidence
16. 	Throughout the trial, evidence was advanced by both the prosecution and the defendant which was either direct evidence or circumstantial evidence.  Her Honour Tuatagaloa J in the case of Police v Lam [2020] WSSC 21 (7 February 2020) provided guidance when dealing with circumstantial evidence:
“26. Circumstantial evidence is often compared to strands in a rope. One strand may not be very strong but a number of interwoven strands may make a strong case. That is, evidence of two, or three, or more independent facts all pointing in the same direction, that may be more reliable than the evidence of one witness.
27.	As such, I am entitled to draw inferences. An inference is a conclusion that is drawn from established facts (or from evidence that is accepted as reliable). An inference is not a guess, but rather a logical deduction from such facts. Inferences drawn from circumstantial evidence is best put by Wilson J in Police v Punaoupu Pio as follows:
“When considering circumstantial evidence, I need to consider it all, and I need ultimately to decide whether I can act upon inferences drawn from facts which I do find proved. Ultimately, I need to decide whether I can draw the inference of guilt.””
17. 	Her Honour Tuatagaloa J further stated at paragraph 33 and 34:
“33. It is expected that there would be inconsistencies between witnesses. Witnesses do not all see the same things. Witnesses do not place the same weight on what they see. Witnesses may also have different abilities to recall matters from memory. A witness needs to be not only honest and sincere, but also reliable and credible.
34. As my role is to determine whether the Prosecution has proven the elements of the alleged offences beyond reasonable doubt, it is necessary for me to resolve primary disputes over the facts; the weight to be accorded to circumstantial evidence and what inferences could be drawn from them, and what weight to attribute to any hearsay statements.”
Ruling on the admissibility of evidence
18. 	Prior to the commencement of the evidence, the defence challenged the admissibility of the material sought to be tendered by Assistant Commissioner Efo Baker Moalele. The Court issued its ruling on this objection on 8 July 2022, and what follows are the written reasons for that decision.
19. 	On 16 March 2022, the prosecution called Assistant Commissioner Papalii Efo Moalele to give evidence. Defence counsel objected to her appearance on the basis that no witness statement had been disclosed as part of the trial documents, and therefore they were unaware of the nature of her evidence. Prosecution counsel confirmed that the Assistant Commissioner was the investigating officer and that her evidence would concern the conduct of the investigation and the tendering of video footage. Defence counsel further objected to the admissibility of that video footage through her testimony.
20. 	I indicated that before ruling on the objection, it was necessary to know precisely what evidence Assistant Commissioner Moalele intended to offer. Accordingly, I directed that her statement be prepared and served on defence counsel by the end of that day, with submissions to be heard the following morning, Friday 17 March 2022. After hearing the evidence‑in‑chief of one other prosecution witness, the matter was adjourned to continue the next day. However, late Thursday 16 March 2022, the Government announced that Samoa would enter Level 3 lockdown commencing the following morning. As a result, the Court was required to close.
21. 	The matter was next mentioned on 18 May 2022 for the purpose of setting a date for continuation of the hearing. On that occasion, the prosecution representative informed the Court that counsel Mr. Tuala, who had carriage of the matter, was in New Zealand. The matter was accordingly adjourned for the prosecution to advise the Court of his return, at which point a continuation date would be fixed. That date was subsequently set for 7 July 2022. Counsel were advised that on that day I would hear submissions on the admissibility of the evidence, namely the video footage and the statement which the prosecution proposed to tender through Assistant Commissioner Moalele. Those submissions were duly heard on 7 July 2022.
22. 	The prosecution advanced three principal arguments in support of admissibility. First, they submitted that the evidence was relevant and that its probative value outweighed any prejudicial effect to the defendant or his defence. Secondly, they argued that the video footage sought to be tendered did not constitute hearsay evidence. Thirdly, they contended that the hearsay statement contained in Assistant Commissioner Moalele’s proposed evidence fell within the general rule of admissibility of hearsay pursuant to section 10 of the Evidence Act2015 (“EA 2015”).
23. 	Building on these arguments, the prosecution submitted that the video footage was relevant and admissible as it captured the false statements made by the defendant against the complainant during an interview broadcast on the EFKS TV2 programme of 29 March 2021. They argued that the statements went directly to proving the charge against the defendant. The prosecution further contended that the probative value of the footage outweighed any potential prejudice to the defendant, noting that its admission would not impair his ability to present his defence. They emphasised that the relevance of the footage was central to the complaint and that excluding it would be unfair both to the complainant and to the interests of justice. Finally, they submitted that the video footage did not constitute hearsay evidence, as it was not tendered to prove the truth of the statements contained therein, but rather to establish that the statements were made and to demonstrate the process by which the footage was obtained.  In relation to other statements in the statement of Assistant Commissioner Moalele, prosecution submitted that although the statements may be hearsay, it fell within the exception under section 10 of the EA 2015.
24. 	In response, defence counsel submitted that admitting the evidence would prejudice the defendant’s constitutional right to a fair trial under Article 9. She argued that the defendant was entitled to examine the witnesses against him, yet several witnesses had already been cross‑examined and the defence would be unable to put the proposed evidence to them. Counsel relied on section 46(1) of the Criminal Procedure Act 2016 (“CPA”), submitting that the prosecution’s attempt to introduce the statement during the course of the trial, after evidence had already been heard, was procedurally improper.
25. 	Defence counsel further submitted that section 47 of the CPA 2016 which governs the granting of adjournments, applies only to the defendant and not to the prosecution. She argued that the proposed evidence was hearsay and did not comply with section 10 of the EA 2015, as no notice had been given pursuant to subsection 10(2). Counsel also challenged the authenticity and chain of custody of the video, noting that the prosecution had not laid a proper foundation for its admission. In particular, Assistant Commissioner Moalele was not the maker of the video, and the defence questioned whether the footage she sought to tender was the same video that had been viewed by the complainant when giving evidence.
26. 	I asked defence counsel whether she had any issue with the footage disclosed as part of the trial documents compared with the video now sought to be tendered through Assistant Commissioner Moalele. Counsel responded that there was no way for the defence to know if the two were identical. I therefore permitted the prosecution’s video to be viewed in Court. The footage was played at approximately the 22:11 and 58‑minute marks. After viewing, defence counsel agreed that the footage was the same as that received on disclosure, but she maintained her objection on the basis that there was no certainty this was the same footage referred to by the complainant in his testimony. I ruled that such matters went to the weight of the evidence and were issues to be determined during the trial. At this stage, my task was confined to deciding admissibility.
27. 	Turning to the law, the applicable threshold test is set out in section 4 of the EA Act 2015. The principles are clear: evidence that is not relevant is inadmissible, while all relevant evidence is admissible unless excluded under the EA 2015 or by another statute. Evidence is considered relevant if it has a tendency to prove or disprove any fact of consequence to the determination of the proceedings. However, the Court must exclude evidence where its probative value is outweighed by the risk that it will (a) have an unfairly prejudicial effect on the proceedings, or (b) unduly prolong the proceedings. In applying this test, the Court must also take into account the defendant’s right to present an effective defence. These principles were affirmed in Police v Visesio [2018] WSCA 13.
28. 	The evidence proposed by the prosecution is grouped into two parts. First, the video footage which the prosecution seeks to tender through the testimony of Assistant Commissioner Moalele. Secondly, the statement or statements to which she will refer when giving her evidence.
Video Footage
29. 	I will deal first with the video footage. The question is whether the evidence is relevant. It is clear that the footage is direct evidence of statements made by the defendant, which the prosecution alleges to be false and which are central to proving the charge before the Court. Accordingly, the evidence is relevant. The next issue is whether it is excluded by any other Act. The prosecution submits that the footage is not hearsay, as it is offered to prove that the defendant made the statements, not to prove the truth of their content.
30. 	The defence submits that the footage constitutes hearsay evidence. 
31. 	Section 2 of the EA 2015, defines hearsay statements as: “A statement that (a) was made by a person other than a witnesses and (b) is offered in evidence at proceedings to prove the truth of its contents.” 
32. 	Applying this definition, the video footage does not fall within the category of hearsay. The statements recorded are those of the defendant himself, who is the accused in these proceedings. They are not statements made by “a person other than a witness,” but rather direct admissions of the accused, captured on video. The footage is not tendered to prove the truth of the statements, but to establish that they were made. As such, the hearsay rule does not apply.
33. 	I therefore find that the video footage is relevant, not excluded by the hearsay rule, and admissible subject to the Court’s assessment of its probative value against any prejudicial effect.
34. 	The defence contends that the video footage containing the defendant’s statement ought not to be admitted on the basis that the prosecution has failed to establish the chain of custody. Ordinarily, chain of custody is relevant to determining the authenticity of evidence, and in this instance the defence challenges the authenticity of the footage. The prosecution, however, has made clear that the footage is not tendered to prove either its authenticity or the truth of the statement contained therein, but solely to demonstrate that the statement was made by the defendant. In those circumstances, authenticity is not a prerequisite to the charge, and the footage is not excluded under any provision of the EA 2015.
35. 	I now turn to the second issue: In balancing probative value against potential prejudice, I am satisfied that the video footage is of substantial probative value. It directly records the defendant making the statements alleged to constitute criminal libel. The footage is therefore central to the prosecution’s case and highly relevant to the issues the Court must determine.

36. 	On the other hand, the risk of unfair prejudice is minimal. The defence has had prior disclosure of the footage and ample opportunity to prepare its response. The admission of the footage does not deprive the defendant of the right to test the evidence or to present his defence. Nor does it unduly prolong the proceedings, as the footage is concise and its tendering straightforward.

37. 	As to the claim of prejudice, it is well established that evidence of high probative value is inherently prejudicial to the defence, but remains admissible unless its prejudicial effect is unlawful. By reference to the provisions of the EA 2015, the video footage is not unlawful. The defence has advanced no further statutory basis or authority to satisfy the Court that the footage ought to be excluded.

38. 	As to the issue of delay, when this matter was adjourned to 16 March 2022, Samoa entered a nationwide Level 3 lockdown. Consequently, the Court was unable to proceed the following day, and the adjournment occurred out of necessity. The adjournment, however, afforded the defence additional time (nearly three months) to consider the evidence.

39. 	In any event, I am satisfied that the probative value of the video footage outweighs any risk of unfair prejudice or undue delay in these proceedings. Accordingly, I grant leave for Assistant Commissioner Moalele to tender the footage.
Other statements
40. 	I now turn to the second item of evidence sought to be admitted by the prosecution. The statement of Assistant Commissioner Moalele, dated 7 April 2021, sets out her account of the investigative steps undertaken, including her actions and interactions with other persons. To the extent that the statement records her own conduct and words, it constitutes direct evidence and does not fall within the hearsay rule. However, insofar as it records statements made by third parties or potential witnesses, those portions are hearsay within the meaning of section 9(4) of the EA 2015. Section 10 of the EA 2015 provides exceptions under which hearsay may be admissible.  Pursuant to section 10(1), hearsay evidence may be admitted where the circumstances surrounding the statement provide reasonable assurance of reliability, and either the maker of the statement is unavailable to testify or the Court considers that requiring the maker to do so would cause undue expense or delay. In the present case, compliance with subsections 10(2) and 10(3) of the EA 2015, which require notice and particulars of the hearsay evidence, has not been met. Nonetheless, section 10(4) of the EA 2015 empowers the Court to dispense with those requirements where no party is substantially prejudiced, compliance is impracticable, or the interests of justice so require.
41. 	I have already ruled on the admissibility of the video footage. Accordingly, any portion of Assistant Commissioner Moalele’s statement that relates to her direct involvement with that footage is governed by that ruling. With respect to the remaining hearsay statements, it is evident that the notice requirements under section 10(2) of the Evidence Act 2015 were not complied with, and the prosecution has failed to provide a satisfactory explanation for the absence of the makers of those statements. The sole justification advanced—that the defence would not object because the Assistant Commissioner is the investigating officer—is plainly inadequate. Nevertheless, having regard to the nature and contents of the hearsay statements, I am satisfied that the defence has not been substantially prejudiced by the lack of notice. This conclusion is reinforced by the adjournment occasioned by the national lockdown, which afforded the defence approximately two months to consider the prosecution’s arguments. In these circumstances, I exercise my discretion under section 10(4)(a) of the Evidence Act 2015 to dispense with the notice requirement.
42. 	For clarity, I am satisfied that the extended adjournment has mitigated any prejudice to the defence, and the prosecution’s non‑compliance with section 10(2) of the EA 2015 may accordingly be excused. Turning to section 10(1), I must be satisfied of two matters: first, that the circumstances surrounding the statement provide reasonable assurance of reliability; and second, that either the maker of the statement is unavailable to testify, or that requiring the maker to do so would occasion undue expense or delay. The prosecution has relied upon section 9(1) and referred to the New Zealand decision in The Queen v Peter Phillip Leaitua [2013] NZHC 702, which confirms that the threshold is not proof of accuracy or truth, but rather reasonable assurance of reliability. That threshold must be assessed as the evidence unfolds, and I will determine the admissibility of each hearsay statement in the course of the trial.
43. 	As to the second requirement, the prosecution has not satisfied the Court that the makers of the statements are unavailable, nor that calling them would occasion undue expense or delay. Unlike Leaitua, where the witnesses were located overseas, no evidence has been provided in this case as to the location or availability of the relevant witnesses. The prosecution’s explanation—that it assumed the defence would not object—is wholly inadequate. Accordingly, the second limb of section 10(1) of the EA 2015 has not been met.
44. 	For these reasons, I decline the prosecution’s application to admit the hearsay statements contained in the Assistant Commissioner’s statement, save for those portions relating to the video footage which have already been ruled admissible.
Information D780/21: False statement causing harm to a person’s reputation
45. 	I have outlined above the elements of the charge of criminal libel pursuant to section 117A of the CA 2013.  I will now deal with the relevant evidence under each element.
Published Information
46. 	The prosecution’s case relied upon statements made by the defendant during an interview broadcast on the EFKS TV2 programme Lauao Sinasina on the evening of 29 March 2021. The video recording of that interview was tendered into evidence by Assistant Commissioner Efo Baker Moalele. I admitted the footage as an exception to the hearsay rule, on the basis that it was not adduced to establish the truth of the statements therein, but rather to prove that such statements were in fact made.  The statement alleged by the prosecution to be libel is between 20 minutes 45 seconds and 23 minutes 30 seconds of the video footage Exhibit P.1:
“Faafetai Tapuala I le fesili e ese lou fiafia I le fesili ua aumai ua aumai tonu a le fesili I le mafaufauga o lea oute fia tautala iai.  Ma e pei o se mea tu’itu’i pea ia te au ona sa ou fesiliagia pea le Atua I le tele o taimi poo se mea e mafai ona ou tautala ai.  Ona o le mafuaaga ua ou iloa ua iai nisi o le matou ofisa ua nonofo ia pe tetea poo ua faamavae foi ae e faigata ia ona tautala oute leiloa pe mafua I sea pe ona o le fefe nei tei ua molia I le Tulafono ae a faapea o la e sao lona mafaufau ma le tala lea ia ona faia pei la o mea ia lau tautala ai iai.  O le mea muamua ou vaai ma le faanoanoa ona ou faalogologo tailo iai I se faafofoga a le atunuu… I le tatou Sui Fofoga Fetalai lea iai nei, taatia ia le Fofoga Fetalai le afioga ia Toleafoa ao Nafoi Keti”.…
Ioe sa matou I le ofisa I na vaitami sa avea ma taitai o matou ofisa lea I Faleolo.  Sa iai se mea tuga na tulai mai ai sa taumafai e faamalosi se teine leoleo.”
47. 	At 24 minutes and 26 seconds of the video footage he further says:
“O lea e nofo mai luga i o ae o le tele o le sese ma le faaletonu”
48. 	Upon review of the video footage it is clear the defendant says “Sa iai se mea tuga na tulai mai ai sa taumafai e faamalosi se teine leoleo” or translated to “There was a serious matter which occurred where he tried to rape a female police officer”.   This reference was made in relation to the Deputy Speaker of Parliament at the time Nafoi Keti.  He further elaborates that he was disappointed that no charges were brought against him.
49. 	The defence contends that the prosecution has not proven that Exhibit P.1 is the precise footage broadcast on the EFKS TV2 programme Lauao Sinasina on 29 March 2021, noting that no representative from the television station was called to confirm this and the actual video footage was not put to the complainant. On that basis, the defence invites the Court to infer that a different broadcast, distinct from Exhibit P.1, may have aired that same evening.
50. 	While the defence correctly identifies issues concerning the chain of custody, these do not undermine the admissibility or probative value of Exhibit P.1. The Court received clear testimony from Assistant Commissioner Moalele that the footage was obtained directly from Vavatau, the EFKS secretary, and subsequently delivered to the fraud squad. This establishes a credible line of custody. Moreover, the footage contains statements made by the defendant which are central to the complainant’s allegations.  
51. 	No alternative recordings of the Lauao Sinasina programme from 29 March 2021 have been produced, nor has the defence offered any evidence to substantiate the suggestion of a separate broadcast. In the absence of such evidence, the Court is entitled to conclude that Exhibit P.1 is the authentic footage aired on that date. The complainant’s testimony that he viewed the programme and lodged his complaint based on the statements contained therein further corroborates this conclusion.
52. 	Accordingly, the inference is not merely possible but compelling.  Exhibit P.1 represents the broadcast in question, and its authenticity is sufficiently established for the Court to accept and rely upon it in assessing the evidence.
53. 	The defence’s second argument is that the content and statement was published by EFKS TV2, not by the defendant personally. On this basis, they contend that the defendant cannot be regarded as the “publisher” within the meaning of section 117A of the CA 2013. The defence seeks to shift responsibility entirely onto the broadcasting entity.
54. 	This line of argument mirrors that advanced in Ah Him and Others v Brunt and Mauala [2014] WSCA 2, a defamation case.  In Ah Him, the respondents argued before the Supreme Court that they had not themselves published the defamatory statements, and the Supreme Court accepted that position. However, the Court of Appeal adopted a different and more expansive interpretation of “publication.” It held: 
“[23] The judge was in error in his holding on this point. The general rule, correctly expressed by Gatley, is that: “any person who has authorised or participated in the publication of a libel is treated as publishing the libel and hence is liable in his own right” (Gatley, Libel and Slander, 11th ed, para 8.29 at page 253). (Emphasis added.)
[24] Fleming on Torts (10th ed) puts the principle this way, at page 627: “Every participant in the publication incurs liability, regardless of the precise degree of his or her involvement”. Not only actual distribution or dissemination are caught, but also all “those who compose the libel ... even freelancers employed to prepare the script” (citing Webb v Block [1928] HCA 50; (1928) 41 CLR 331 at 362 – 366. see also Eyre v NZPA [1968] NZLR 736).”
55. 	The Court of Appeal held the Respondents liable as they were the maker of the statement and had caused the statements to be sent to the Press who then published it.  
56. 	The Court of Appeal in Ah Him clarified that “publication” extends beyond the act of broadcasting to those responsible for the content itself. Although that case concerned defamation, the principle is equally applicable to false statements made with the intent to cause harm to a person’s reputation. In light of Ah Him, the law now recognizes that responsibility lies with the person who originates and authorizes the dissemination of statements, regardless of the platform used.
57. 	Therefore, even if EFKS TV2 acted solely as the medium of transmission, the defendant was the source of the statements. His authorship and deliberate participation in the programme bring him within the scope of “publisher” under section 117A of the CA 2013.  Liability attaches not only to the broadcaster but also to the individual who causes the material to be made public.
58. 	The programme Lauao Sinasina on 29 March 2021 clearly featured the defendant speaking the words now in issue. His voluntary participation and consent to the broadcast demonstrate direct involvement in making those statements public.  On this evidence, I am satisfied that the prosecution has proven publication beyond reasonable doubt.
About another person;  
59. 	The second element is that the material published must be about another person.
60. 	The complainant gave evidence and when asked about the complaint he said:
“Ioe. E ala na ou manatua Lau Afioga i le alii Faamasino o le mafuaaga na ala na fai lo’u tagi tuuina atu i le Komesina o Leoleo ona o le mea sa tupu i le po o le aso 29 o Mati e lē galo iā te a’u. A o loloma le faigapalota tele i le aso 09 o Aperila, ta’ua ai e lē o loo molia ni tuuaiga ua afaina ai a’u, ma lo’u toalua ma la’u fanau. A o tuuaiga e faasaga i taimi o o’u leoleo fai mai sa ou faia ni uiga i se tasi o le aufaigaluega, i se tamaitai. Lau Afioga i le Faamasino e lē galo. Ua ou te’i i le vili atu o le Tuua o le matou nuu i Savaii fai mai ou te vaai i le TV. Ou vaai atu i le TV o lae interview mai lē ua molia a o la’u vaai ou te iloa lelei ma ou masani lelei ai, sa matou faigaluega i le ofisa o leoleo; a o ia sa tofi e fai ma ave taavale a le Ao o le Malo. O a’u ua faateia i faamatalaga leaga, mataga e faaleaga ai lo’u tagata.”
61. 	The video footage in Exhibit P.1 provides direct support for the prosecution’s case. In the recording, the defendant expressly names the complainant, Nafoi Keti, immediately before alleging that he attempted to rape a female police officer. This explicit reference leaves no ambiguity as to the identity of the person targeted by the statements.
62. 	I am satisfied beyond a reasonable doubt that the words alleged to be libel which were spoken by the defendant were referring to the complainant Nafoi Keti who was the Deputy Speaker of Parliament at the alleged time.
That is false
63. 	The third element is that the statement said must be false.
64. 	It is submitted by the prosecution that the words said by the defendant on the EFKS TV2 Lauao Sinasina programme on 29 March 2021 was false.  In support of this, the prosecution called witness X the alleged victim of the statement made by the defendant when he said “he tried to rape a female police officer”.  It is the evidence of witness X that:
Wit:	Ia sa ku le makou kaavale ii ua kape le kaavale. Uma loa laia lea ua oso i fafo le alii leoleo o Popo, laa oso aku ma a’u ai fai mai loa Nafoitoa e faakali se’i uma ga ou alu i kokogu o le ofisa. Ia sa ou gofo lea i kokogu o le kaavale. Ou gofo a i kokogu o le kaavale ae kalakalagoa mai a Gafoi iā ke a’u. Sa ou faalogo foi gale pei ua lē fekaui le kalagoa e sili ai lo’u alu ese. Ou ku loa i luga ou alu i kokogu o le ofisa ae gofo a Gafoi i kokogu le kaavale, e le’i koe faapea iā a’u a mea e gofo aua ge’i ou alu. Ga ou ku a ou alu.
Pros:  E mafai na e faailoa poo le a le umi le taimi sa lua i ai i totonu le taavale ma lē o loo tagi i lenei mataupu?
Wit:	  Mo le silafia e lē akoa se 5 miguke.
Pros:  Iga ua e alu ese la ma le taavale o a isi ou actions sa faatino?
Wit:	Sa ou alaku a ou alu loa i kokogu le ofisa i le mea lae i ai ia le alii leoleo iā Popo ma Pusa. Makou gogofo ai kokogu ga ao lae i kokogu le kaavale Gafoi. Ia ga uma loa laia lea makou faalogo aku ua ola le kaavale a Gafoi sa i lalo le mago, sau loa laia alu ese mai loa ma le ofisa i le kaimi ga. 
Pros:I le tulaga lea sa tulai mai i totonu o le taavale i le 5 minute lea, na i ai sau tagi poo sau ripoti na fai e tusa ma le tulaga sa tupu?
Wit:	Mo le silafia Lau Afioga e leai se mea. 
Pros: Tago e faamatala i le faamasinoga se mafuaaga ua lē faia ai?
Wit:	 Ou ke iloaga o le kulaga ua lē faia ai lea kulaga oga e leai se mea sa kupu.
65. 	She further stated:
Pros:  E mafai ona e faamatala pe sa fai se suesuega i lenei mataupu?
Wit:   Ia, mo le silafia ga o le kasi a le kaimi ga valaau aku ai le vaega o le PSU i le ofisa e fai le lipoki ae pau a lega, e le’i i ai seisi suesuega i luma mai.
Pros:  Na o le tasi a le taimi?
Wit:   Ga o le kasi a le kaimi ga fai ai lipoki e uiga i le makaupu legei.
66. 	During re‑examination, she provided clarification in respect of matters raised during her cross‑examination.
Wit:	I le kaimi ga ou alu ese ai ma le kaavale iga ua ou faalogo aku i le kalagoa, sa ou ku a’u ia i luga kakala le faikokoa ou alu i fafo e leai seisi mea sa faia, ga o lou alu i kokogu le ofisa.
Pros:	Na e agai i totonu o le ofisa?
Wit:	Ia. 
Pros:	E i ai seisi vaega sa tulai mai ina ua e oo i le ofisa?
Wit:	Leai ga o lo’u alaku a i kokogu makou kalagoa ma alii leoleo ia.
Pros:	E mafai na e faailoa poo a tou talanoaga sa fai?
Wit:	Sa fai mai le aualii, “Ua a? O le a le mea ua kupu?” Ou fai aku, “Ia, ua ou lē fiafia i le kalagoa mai o le susuga i le kaikai leoleo ga ou sau ai loa a’u i fafo.” Pau a ga makou kala ga fai ma kalie a le aualii ga.
67. 	The defence called Popo Tusa, a constable who was on duty together with witness X at the time of the alleged incident involving the complainant. Constable Tusa confirmed witness X’s evidence that they were picked up by the complainant and, upon arrival at the office at Faleolo, he instructed witness X to remain outside while he entered the office. He further stated that the complainant had been drinking.
68. 	He further stated:
Wit:	…ia ona fai si umi oute le o manatuaina le umi, ae na faapea mai loa Pusa poo fea o iai le ta teine, ia ou tu loa I luga ou tau savali mai le Faitotoa alae tu I luma le taavale leoleo I luma tonu ole Faitotoa ole ofisa, ae oo atu loa ma X le taimi lea lau afioga, ia ou vaaia ua iai suiga o foliga o X. Na fesiligia loa laia e Pusa poo le a le mea ua tupu, ia ae faapea mai, leaga le mea a Talaimanu na fai ia na ia, fesili atu iai poo le a mea na fai, ae faapea mai na tauanaua ia e Talaimanu e fai se la mea, ia ona toe sosoo atu laia o ma fesili, pe a la o le a sana ia tala, ae la ua ou vaaia ua tagi, ia o le taimi la lea ua le mafai loa ona toe faia sesi ana tala, ona ma tagofi loa laia vili le matou taitai I lea taimi ua maliu le toeaina lea o Taefu Vili Niko, faapea mai lea o Taefu, ia faatali sei ou vili ia Anitelu, ole matou taitai lea I lea taimi ole toeaina o Anitelu, ua transfer mai le taimi na I le CID.  Malama ifo le taeao ae valaau mai Anitelu e fai matou lipoti ona fai lea ole faila ona aumai lea o le faila ia te ia I le taimi lea o ile CID, pau lea o lau sootaga ile mataupu, ae oute lei vaai ise Talaimanu o taumafai e fai se faamalosiga ole tamaitai leoleo, o X na alatu faamatala atu ia ma’ua ma le alii leoleo ia Pusa ia uiga sa fai I totonu ole taavale, male faaaloalo lau afioga.
DDC:	o a la uiga lea ete taua na faamatala atu e X ia oulua ma Pusa.

Wit:	sa faapea mai X na tauanau ia e Talaimanu late momoe I totonu ole taavale ma fai se la mea, tulou.
69. 	The complainant, in his evidence regarding the alleged incident with witness X, stated that nothing occurred. He was neither investigated nor charged in relation to any such matter.
70. 	I found the testimony of Constable Popo Tusa to be credible. He had no apparent motive to fabricate his account and stood as an independent witness, simply relaying what witness X had told him.
71. 	Even taking Constable Tusa’s evidence at its highest, the statement attributed to witness X was that “sa faapea mai X na tauanau ia e Talaimanu late momoe I totonu ole taavale ma fai se la mea” translated to “Talaimanu asked her to sleep with him or have sex with him in the vehicle.” This differs fundamentally from the allegation made by the defendant, namely that “there was a serious matter which occurred where he tried to rape a female police officer.” The two statements are not equivalent in meaning or gravity.
72. 	The distinction is significant. The former, while improper, does not amount to an allegation of attempted rape; the latter is a serious accusation carrying potential criminal liability. I am therefore satisfied beyond reasonable doubt that the statement made by the defendant that “There was a serious matter which occurred where he tried to rape a female police officer” with reference to the complainant, was false.
 Intention to cause harm to that person’s reputation.
73. 	As alluded to by Schuster DCJ in Tiumalu, to determine this element:
“I must take into account several factors such as: that there must be a clear case of criminal libel, that it was serious and not a trivial vilification on reputation, that there may be allegation(s) of criminal conduct on the part of the complainant, the eminent public position of the complainant, the nature of the publication, the nature of the article itself and whether there was express malice.”
74. 	The complainant says that the programme and the comments made by the defendant severely damaged his reputation.  At age 9 of the transcript he states:
“… a o faamatalaga ua ia faia, ua na faaleaga ai lo’u ta’uleleia ma la’u tautua sa faatino i le atunuu e ala i le Matagaluega o Leoleo. Mai lava i le taimi na ou faigaluega ai se’ia oo i le taimi sa ou faamavae ai e le’i molia a’u, e le’i faia foi se moliaga e faasaga iā te a’u i ni amioga faapea. Leai se mea. Na o tala feavea’i ae leai ma se mea na tupu iā te a’u. Lau Afioga i le alii Faamasino ana i ai se mea na tupu lea na tou talatala i le taimi ua sola, ua tatau na molia a’u. Leai foi se tagi faasaga iā te a’u i le taimi na ou tautua ai i le Matagaluega. A o faamatalaga a lē ua molia sa faatino i luga o le TV2, o ni faamatalaga lava – ua oo lava i matou auaiga i fafo ua tuu tavili mai i le taeao, le aso 30 lea. Le ala lea ga kaumafai la’u tagi sa tau mafaufau poo le a le mea e fai i le tama lea, lona faia o mea mataga ma faamatalaga ua silasila Samoa ma le lalolagi, ua faamataga a’u aemaise si o’u fanau ua ulagia i le aoga, o atu i le aoga o aafiaga ia Lau Afioga lea foi na mafua ai na taumafai atu le talosaga i igoa e tau ave i le media. I’ve been suffering for many days, not only myself, my wife and my children, my grandchildren ga makua aafia i le mea lea. Mafua mai i faamatalaga ia ae ou ke lē iloa poo fea e sau ai ma ana tala ia, lea na ou ta’ua e i ai suesuega a leoleo e fai, ia ga o faamatalaga a ma mea sa – ia sa tuuaina ai a’u, e le’i molia, e le’i i ai foi se tagi na faasaga iā te a’u.”
75. 	He further states at page 10:
“O le aka akoa o le mea lea, Lau Afioga o le faaleagaga o a’u lea ua – o le aso 29 a o le aso 09 le paloka. O le aka akoa a lea o le faamakalaga lea ua i luga gei leaga e mo’i a ae lea foi ga maua faamakalaga o laga pulu o lea e fia faapa. Ia, kaakia ia le mea lega ae Lau Afioga, o le aafiaga o le faatalanoaga lea ma le aafiaga o lo’u olaga ma lo’u aiga ma lo’u ka’u leleia ga ou faiaiga i le paloka, o le mafuaaga o le aso 30 i le ao ga pokopoko ai le guu ae fogo iā ke a’u, le makou guu i Avao. Pau le mea ga fia maua e koeaiiga pe sa’o mea ia a o lea ua kapega le guu mo le faigapaloka ma le ikumalo. Sa ou faamakala i le makou guu, “O lea ua kou silasila uma ua afaiga a’u, ua afaiga lou’ koalua ma la’u fagau; ua afaiga ma o’u aiga i fafo ua kau faikuuvili mai i legei mea ua avaku,” auā e le’i uma i le po o le aso 29 ga koe replay i le ao, o iga ga magigo akoa iā ke a’u le aka akoa leaga o lea faafuase’ia ga valaau mai le Kuua ou ke vaai i le TV ile po a o le kaeao ga ou faakalikali i le replay o le news lea o le TV2, ga makua akagia iā ke a’u o le faaleagaga o lo’u kagaka leaga o le ala ga ou ka’ua legei mea Lau Afioga oga e ka’u “Le Sui Fofoga Fekalai a le HRPP,” o’u iloa ai o le faaleagaga o lo’u paloka le mea lea e fai. Ou iloa foi i le frame-iga o fesili o se mea ga fafau gei mea mo a’u. O le mea ga kupu i lo’u ikumalo ga feau uma a’u e guu e fiku o lo’u ikumalo i le makaupu a lea e kasi. Lega vaiaso akoa ua lē maua se ko’a i lo’u mafaufau. Ua ou vaavaai aku i aka o le faaleagaga o a’u ma le iuga o le a ou maua. A o le mea ga oo mai iā ke a’u, a o le a ea la’u mea ua fai?”
76. 	The comments made by the defendant cannot be regarded as trivial or as the type of unfounded criticism often directed at political figures. Rather, they amounted to a grave allegation of serious criminal conduct namely, attempted rape against the complainant, who at the time held the office of Deputy Speaker of Parliament.  The programme itself was designed to scrutinize individuals in positions of authority, and the timing of the broadcast, less than two weeks before the general elections of 9 April 2021 in which the complainant lost his seat, underscores its deliberate and targeted nature.
77. 	As demonstrated by the complainant’s testimony, the statements made by the defendant were disparaging and caused significant injury to his standing in society, particularly in his capacity as Deputy Speaker of the House. The remarks diminished the complainant’s reputation in the eyes of his constituency, as evidenced by his being summoned before various villages to answer questions about the broadcast and whether the allegations were true. The statements not only undermined his public role but also exposed his wife and children to contempt and ridicule.
78. 	On the evidence, I am satisfied beyond reasonable doubt that the defendant intended to vilify the complainant and cause substantial harm to his reputation. By making the allegations on EFKS TV2 during the Lauao Sinasina programme aired on 29 March 2021, the defendant knowingly advanced a false and damaging statement calculated to injure the complainant’s standing both personally and politically.
79. 	In light of my findings above, I am satisfied that the prosecution has proven beyond a reasonable doubt the elements of the charge of making a false statement causing harm to a person’s reputation pursuant to section 117A of the CA 2013.
The defence of truth
80. 	It matters that the statement, though false, was made under a mistaken and honest belief to be true whether it was reasonably held or not.  As stated in Tiumalu, the burden of proving this on a balance of probabilities lies with the defendant.
81. 	In the present case, the defendant elected not to give evidence which is his constitutional right. Accordingly, the only material available to assess his belief consists of Exhibit P.1 the Lauao Sinasina programme of 29 March 2021 and the testimony of Constable Popo Tusa.  No further evidence has been adduced to demonstrate that the defendant held an honest belief in the truth of the statement.
82. 	The defence argue that in light of the evidence of Constable Popo Tusa and the admission by witness X that there was an inquiry by the Professional Standard Unit, the Court should accept that this is enough to establish on the balance of probability that although mistaken, the defendant honestly believed the statement to be true when he made it.
83. 	I do not accept that the defendant held a genuine belief in the truth of the statement. The defence relies on the testimony of Constable Popo Tusa and the fact that an inquiry was conducted by the Professional Standards Unit. However, neither of these matters establishes that the defendant himself believed the allegation to be true.  If the defendant had been aware of Constable Popo Tusa’s evidence, then he would have known that there was never any allegation of attempted rape.  Moreover, there was never any inquiry which resulted in any charge or finding against the complainant. These circumstances cannot reasonably support the conclusion that the defendant genuinely believed his allegation.
84. 	The defendant was a former police officer and a person familiar with investigative processes. He would have known that unsubstantiated rumours or informal accounts do not equate to proof of serious criminal conduct. His decision to broadcast the allegation publicly, without verification, demonstrates recklessness rather than honest belief.  The absence of any corroborating evidence to the allegation of attempted rape further undermines his belief.
85. 	But the timing of the broadcast, less than two weeks before the general election, also points to a motive other than genuine belief. The deliberate targeting of the complainant, then Deputy Speaker of Parliament, suggests malice that the defendant intended to damage the complainant’s reputation rather than convey information he honestly thought to be true. The calculated nature of the statement is inconsistent with the defence of honest mistake.
86. 	Accordingly, I am satisfied that the defendant has not discharged the burden of proving, on the balance of probabilities, that he held an honest belief in the truth of the statement. On the contrary, the evidence supports the conclusion that his belief was not genuine, and that the allegation was made with the intent to vilify and harm the complainant’s reputation.
87. 	The defence of truth that an honest belief was held by the defendant in the statement he made must fail.
Information D877/21: Resisting arrest
88. 	The prosecution called Assistant Commissioner Moalele, Constable Faatonu Levasa, and Sergeant Peniamina Perite, each of whom gave evidence in support of this charge.
89. 	Assistant Commissioner Moalele testified that she contacted the defendant regarding statements he had made on television and requested that he attend her office. The defendant replied that he was gathering evidence. When she called again on 2 April 2021, he stated that his lawyers had advised him not to attend and that the police would have to arrest him.
90. 	Constable Faatonu recounted that, while travelling to Lefaga to arrest the defendant, he and his colleagues stopped to consult another officer in a private vehicle. As they spoke, a taxi approached from behind the other vehicle. The officer moved his car aside to allow the taxi to pass, at which point Constable Faatonu recognized the defendant inside. They signaled for him to stop, and sounded the horn.  The defendant looked in their direction, and then drove away.
91. 	Sergeant Peniamina corroborated this account. Acting on instructions from Assistant Commissioner Moalele, he and other officers travelled to Lefaga on 2 April 2021. At Tafagamanu, they encountered Officer Koseta in his private vehicle and stopped to ask for directions. While doing so, Sergeant Peniamina observed taxi T3705 nearby and recognized the defendant as its passenger. From a distance of approximately ten meters, he called out to the defendant, who looked at him but quickly turned away and sped off. Sergeant Peniamina confirmed that he knew the defendant personally from their prior service together in the Ministry of Police, and that the defendant likewise knew him.
92. 	Sergeant Peniamina further testified that the officers were travelling in a marked silver police vehicle, POL 67. Although they were not in full uniform, they wore casual police shirts clearly marked “POLICE” on the back.
93. 	Constable Faatonu and Sergeant Peniamina then attempted to pursue the taxi but were unable to catch it. They radioed Faleata Police Station, which organized a roadblock at Tanumalala/Aleisa. When they arrived, they found the defendant parked with his taxi. The defendant was asked to exit the vehicle, spoke with the officers, and was arrested without resistance.
94. 	The defendant did not present any evidence in relation to this charge.
95. 	The prosecution clarified that the resisting arrest charge arises from the incident at Tafagamanu, where the defendant failed to stop when signaled by police officers, and not from the later arrest at Tanumalala/Aleisa, where he complied without resistance.
96. 	I now turn to the elements of the charge of resisting arrest pursuant to section 10(1)(a) of the POO 1961.
(i)The complainant was a police officer.
97. 	I am satisfied that the complainant is either Constable Faatonu or Sergeant Peniamina.  So this element has been proven beyond a reasonable doubt.
(ii) That the defendant knew he was a police officer
98. 	This element requires a subjective assessment of the evidence. The defendant looked directly at the officers before turning away. They were travelling in a marked police vehicle, POL 67, with clear police insignia. Sergeant Peniamina, who had previously worked with the defendant in the Ministry of Police, testified that the defendant knew him personally. Moreover, as a former police officer himself, the defendant would have been familiar with the appearance of police vehicles and the significance of their markings. His immediate decision to accelerate and leave the scene further supports the inference that he recognized the officers as police. I accept the evidence of Sergeant Peniamina and am satisfied beyond reasonable doubt that the defendant knew that either Constable Faatonu or Sergeant Peniamina were police officers. This element is therefore proven beyond a reasonable doubt.
(iii)	The police officer was acting in the execution of his duty.
99. 	I am satisfied beyond a reasonable doubt that the police officers were travelling to Lefaga to look for the defendant and therefore were acting in the execution of their duty.  This element of the charge is proven beyond a reasonable doubt.
(iv) The defendant knew that the police officer was acting in the execution of his duty.
100. 	This aspect of the case presents difficulties for the prosecution. The only gestures directed at the defendant were made from within the police vehicle; waving, calling out his name, and sounding the horn. Even if the defendant observed the officers, there is no clear evidence that he understood this particular vehicle and its occupants were acting pursuant to instructions to arrest him. Although Assistant Commissioner Moalele testified that she had spoken to the defendant by phone, it is accepted that an arrest cannot be effected in that manner.  Furthermore, there is no evidence that any officer exited the vehicle to physically signal the defendant to stop, nor was there a roadblock in place at the time. In these circumstances, I am not satisfied that the prosecution has proven beyond reasonable doubt that the defendant knew the officers were acting in the execution of their duty. Nevertheless, in the event that this conclusion is mistaken, I will proceed to consider the next element. 
(v)	That the police officer was in fact obstructed in the execution of his duty.
101. 	I am not satisfied that there is any evidence establishing that the defendant obstructed police officers in the execution of their duty for the offence of resisting arrest. At most, his conduct amounted to failing to stop his vehicle or driving away at speed.  However, this does not meet the threshold for obstruction. There was no police roadblock, nor any officer standing in uniform on the roadside directing him to stop. Both Constable Faatonu and Sergeant Peniamina remained inside their vehicle and were therefore not in a position to effect an arrest. By logical reasoning, there was no obstruction of police duty. In any event, should this assessment be mistaken, I will proceed to consider the final element.
(vi)	That the [defendant] intended to resist or obstruct him in the execution of his duty.
102. 	As stated above, there was no attempt to effect an arrest at Tafagamanu. A mere wave from within a vehicle does not constitute an attempt to arrest, and accordingly there was no obstruction by the defendant in the execution of police duties.  On the contrary, when his taxi was stopped at Tanumalala/Aleisa, the defendant cooperated fully. He exited the vehicle, engaged with the officers, and permitted them to carry out their duty without resistance. He was then taken into police custody in an orderly manner.
103. 	Given my findings above, I am not satisfied beyond a reasonable doubt that the prosecution has proven elements (iv) (v) and (vi) of charge D877/21 of resisting arrest.  The charge is therefore dismissed.  
Conclusion
104. 	Based on my conclusions above, I find that:
(i)	In relation to the charge of making a false statement causing harm to a person’s reputation pursuant to section 117A of the Crimes Act 2013 -D780/21, I am satisfied that the prosecution has proven beyond a reasonable doubt the elements of the charge.  I also find that the defendant has not proven the defence of truth or honest belief on a balance of probabilities and therefore the defence is dismissed; and
(ii)	The charge of resisting arrest pursuant to section 10(1)(a) of the Police Offences Ordinance 1961 - D877/21 has not been proven beyond a reasonable doubt and it is therefore dismissed.
105. 	The matter is adjourned for a presentence report and sentencing.  

JUDGE LOAU D. KERSLAKE