Police v Falemai [2010] WSSC 74 (25 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FAO FALEMAI,
ETEPO POLOMA,
MASOE VEVESI, TUFUGA FAATE'I,
LOPAOO ESAU,
LOTU PERENISE,
MASOE LOMIA, and
TUFUGA SELOTA, all male matais of Asau.
Defendants

Counsels: Ms P Chang & Mr F. Lagaaia for prosecution
Ms MV Peteru for the defendants.

Hearing: 6 & 7 April 2010
Submissions: 7 May 2010
Decision: 25 June 2010

DECISION OF NELSON J.

[1] Originally there were eight defendants to the charges before the court. While this matter was pending trial the first defendant Fao Falema'i and the seventh defendant Masoe Lomia passed away. The charges against them are therefore quashed and dismissed. In respect of the third defendant the record should note that I was satisfied from the medical reports produced that he was medically unfit to travel and attend the hearing and his non-appearance was therefore excused and continues to be excused. But he is represented by counsel and remains one of the six remaining defendants before the court facing the charges.

[2] The charges comprise two counts of unlawful intimidation and two counts of conspiracy and attempt to obstruct justice. Detailed as follows:

1. That at Asau between the 5th and 8th day of January 2006, the abovenamed defendants of Asau "imposed upon Masoe Niko a matai male of Asau a punishment of being banish from the village of Asau for having disobeyed the order from the village Fono counsel, to withdraw his petition from the Land and Titles Court, for such person has a legal right to do so." – information S5547/09.
   
2. That at Asau between the 5th and 8th day of January 2006, the abovenamed defendants of Asau "conspire or attempt, to obstruct Masoe Niko, matai male of Asau from continuing his judicial proceeding with the Land & Titles Court, or defeat the course of justice." – information S5550/09.
   
3. That at Asau between the 8th and 22nd day of November 2006, the abovenamed defendants of Asau "imposed upon Masoe Niko a matai male of Asau a punishment of been banned from the village of Asau for having disobeyed the order from the orators of Asau, to withdraw his petition from the Land and Titles Court, for that such person has a legal right to do so." – information S1389/08.
   
4. That at Asau between the 8th and 22nd day of November 2006, the abovenamed defendants of Asau "conspire or attempt, to obstruct Masoe Niko a matai male of Asau from continuing his judicial proceeding within the Land and Titles Court, or defeat the course of Justice." – information S1381/09.
   

This is the order in which the charges will be considered in this judgment.

Prosecution evidence:

[3] The complainant Talamaivao Niko Masoe testified that on the morning of Saturday 7 January 2006, family saofa'is were to be held at his home village of Asau where his family holds the high ranking title of Masoe. Their aiga had prepared the usual necessities for a saofai and were gathered at the family maota awaiting the customary usu of the village. The village were gathered at the house of the village tu'ua Fao Falemai for this purpose and I am satisfied that there was no other purpose for the gathering. When the village was summoned he was surprised to be informed that the village would not conduct the traditional usu because one of the proposed title holders was not a blood son of the complainant and therefore was not a true suli to the title but was an adopted child. The complainant accordingly instructed his family to wait while he goes to discuss matters with the village.

[4] He went to where the village were gathered and was told of a village law that prohibited an adopted person from holding the title in question. This angered the complainant who pointed out that his son had been legally adopted and in any event there were many adopted persons who held high titles in the village, some of whom were present at the village gathering. Obviously the discussion did not go well and it is clear from the complainants evidence that the defendants addressed him in strong language and there was an argument culminating in the matais chasing him out of the fale. The complainant said that because he was a good christian man and wanted to keep the peace he left otherwise things could have turned out quite differently. He returned to his family and advised them of the village decision and instructed that the foodstuffs that had been prepared for the saofais should be given away anyway to the village. He said he also counseled his family to keep the peace and accept the village decision.

[5] But he was surprised when the second named defendant Etepo Poloma came and delivered a decision by the village that he and his family were banished effective 6pm that evening. He said he abided by the village decision and instructed his family to comply in order to preserve peace and harmony and the family left the village leaving behind all their possessions including a store, houses and plantations. Not long thereafter on a date that could not be precisely ascertained from the evidence he presented a petition to the Lands and Titles Court in respect of the banishment, a petition which the village council tried several times to get him to withdraw but he refused. Such efforts included a visit by village representatives to his house at Salelologa to settle the matter. These efforts were unsuccessful but what was achieved was to fa'aa'e or reinstate his children and family in the village, but he remained subject to the banishment order.

[6] On or about 20 November 2006, the complainants petition came on for hearing in the Lands and Titles court at Tuasivi. A further effort was made by the village council prior to trial that day to have him withdraw his petition but he refused and the case went ahead. It proceeded in the absence of the village who had retired but not before warning him that further action would be taken. And this the village did by again banishing his family later that day at Asau. A move in which the main players were described to be the second named defendant Etepo Poloma and the fourth named defendant Tufuga Faate'i. The complainant also testified about a custom of the village of Asau dating back to 1947 whereby a person would be banished if he took the village to court. He maintained that the village in banning him was enforcing this unconstitutional custom.

[7] In addition to the complainant, members of the family also gave evidence. His grandson Christopher Masoe said that he was at their store at Asau on 20 November 2006 around 5pm when the banishment order was delivered by a to'oto'o or orator of the village. He said that it was the second named defendant who delivered the decision but there were other matais accompanying him. The family took no action so the following day at about 3pm another orator delivered the same announcement requiring them to comply by 6pm if not they would be burned out or suffer the traditional punishment of "mu le foaga". This witness also stated there were tauleleas accompanying this announcement and he heard preparations being made for the lighting of kerosene torches to give effect to the village decision. He said this made him very sad but they agreed to leave provided they were given some time to remove their possessions. This request was granted and they were given until the end of the following day, Wednesday 22 November 2006. They complied with this dead line and the family moved to Vaitele-fou where they presently reside.

[8] In answers to questions from the court, Christopher said that the reason given for the 20 November 2006 banishment was that the complainant had stirred up the valuable things of the village too many times, possibly a reference to village fa'alupega and/or village customs and traditions. He also said similar sentiments were expressed during the delivery of the second banishment order on 21 November 2006.

[9] Christophers mother Viopapa Iko gave evidence essentially confirming her sons account of delivery of the two banishment orders on 20 and 21 November 2006. A cousin of the complainant also gave evidence but did not really add anything of substance. Also testifying was the complainants legally adopted son Tiamamana Iko who confirmed his fathers evidence about the request by the village on 20 November 2006 at Tuasivi for his father to withdraw the petition. He also testified as to the consequences of the complainants refusal and said that he was not at Asau when the banishment order was delivered later that day but he was able to testify as to the second banishment order of 21 November 2006. In respect of that he said that the police were called and their intervention led to the village agreeing to defer the banishment for 24 hours until 6pm on Wednesday 22 November 2006. He said their family left Asau and have not been back since.

[10] This witness also confirmed the events of 7 January 2006 when he was supposed to be conferred the Tufuga title and the banishment order that was delivered that day by the second named defendant. Also that they complied with the village order and left the village by 7pm that evening after the village had consumed all the perishables that had been prepared for the saofai given to them by the complainant and his family.

[11] The other witnesses for the prosecution consisted of Police officers. Corporal Filemoni Molesi who was stationed at Asau testified that on 21 November 2006 the complainant, Iko and Viopapa sought police help concerning their banishment. He said police officers attended the village and after discussing matters with the village council it was agreed for the deadline to be extended to 6pm the next day, Wednesday 22 November 2006. Further that at that meeting they were told that the reason for the complainants banishment was two fold: firstly because the complainant disobeyed the village instruction not to take his matter to court and secondly because the complainant had made it a habit not to obey village council decisions. This police officer also testified that on 26 May 2006 on the instructions of the investigating officer of this case Senior Sergeant Tausagafou Feetau, he interviewed defendant number 8. This is Tufuga Selota who admitted to being present at the village council meeting of 7 January 2006 but declined as was his right to make any further statement to the police.

[12] The officer who accompanied Corporal Filemu on 21 November 2006 one Corporal Alatina Meafou also gave evidence. He confirmed Corporal Filemus evidence and the advice from the village that the banishment was because the complainant broke the village ban on taking the village to court.

[13] In addition to these two police officers the investigating officer Senior Sergeant Tausagafou was also called as a witness. He gave evidence as to certain incriminating oral admissions made to him by defendants 2,3,4,5 and 6 on the dates that he interviewed them in 2007.

[14] Initially this witness was given leave by the court because this matter dates back a number of years to refresh his memory from his notebook, produced as Exhibit "P-2" for the prosecution. There was nothing unusual in this course of action as the law allows witnesses such as police officers to refresh their memory from their notes. However as noted in Cross on Evidence 7th NZ edition at paragraph 9.20:

"The following conditions must be satisfied before a witness will be allowed to refer to a document in order to refresh his or her memory while giving evidence. The document must have been made substantially at the same time as the occurrence of the events to which the witness is required to depose. It must have been made or read over by, or under the supervision of, the witness. It must be produced to the Court or opposite party on demand. In one class of case the document must be the original. The existence of the conditions must be established before leave to refresh is granted. The truth of assertions that they exist could be tested on a voir dire."

[15] As to contemporaneity of the record the learned authors at paragraph 9.21 point out:
"Contemporaneity is, as always, a question of fact. Much may depend upon the subject-matter of the document. Although the requirement is usually treated as an independent condition, it can hardly amount to more than strong evidence of compliance with the further requirement that the writing must have been brought into existence while the facts were still fresh in the witness's memory. The matter is not one on which precedents are likely to be of much help. In R v Woodcock [1963] Crim LR 273 a prosecution witness was not allowed to refresh his memory from a deposition made by him three months after the events with which it dealt. In R v Graham [1973] Crim LR 628 the English Court of Appeal was doubtful about the propriety of allowing an accomplice to refresh his memory from his statement made a month after the relevant event. On the other hand a gap of 22 days was disregarded in R v Fotheringham [1975] Crim LR 710. In R v Simmonds (1967) 51 Cr App R 316 notes made by customs officers at the first convenient opportunity after returning to their office from lengthy interviews were held to comply with the condition of contemporaneity and the officers were permitted to read them to the Court. It was said to be a course constantly adopted by police officers giving evidence of a long interview or series of interviews with suspects."

[16] In cross examination of the Senior Sergeant it became apparent that the note book was not the primary source of record. It appeared that what the sergeant had done was to record the interviews of the defendants he interviewed at Asau on blank sheets of paper which he subsequently transferred to the notebook. The sheets of paper formed part of the trial documents of the case. His explanation for this procedure was because the police file was being referred from Savaii to the central Police Headquarters in Apia but he wanted to retain a record of the interviews to remind him about what the defendants had said. He could not say however when the notes were placed into the notebook.

[17] This caused me concern for two reasons. Firstly there was no mention of this by the sergeant in his evidence in chief. Secondly when I compared the notes in the notebook and the sheets of paper it became apparent that the notes in the notebook were not identical reproductions of what is contained on the sheets of paper wherein he originally recorded the interviews. There was also no satisfactory explanation as to why the interviews were not initially recorded in his notebook in the first place. After all the notebook is part of every policemans armory. Furthermore, the notebook contained no references to any other investigations or cases.

[18] A matter of greater concern were the contents of the supposed interviews. Thus for example the interview of the fourth defendant Tufuga Faate'i is recorded as occurring at Matavai Asau on 13 March 2007 at 11am, the exact same time the interview of another accused Masoe Lomia (seventh defendant) is recorded as having been taken place. Similarly the interview of the third defendant Masoe Vevesi is recorded as having occurred on 13 March 2007 at 12.05pm, the same date and time the interview of the fifth defendant Lopaoo Esau was taking place at Utuloa Asau.

[19] When questioned the senior sergeant changed his evidence and said Lopaoo's interview time was in fact 12.15pm. When asked if there was another interview conducted by him between 12.05pm and 12.15pm he said no. When asked if he was sure about that he said yes, he was sure. At which point I pointed out to him that the record of interview of another accused Lotu Perenise (defendant number six) is recorded as being 12.10pm that day. The witness again changed his evidence to say Lotu Perenise was interviewed in between the other two accuseds.

[20] But if this is correct this means the sequence of interviews by the Senior Sergeant would have been Masoe Vevesi – 12.05pm at Asau, Lotu Perenise – 12.10pm at Asau, Lopaoo Esau – 12.15pm at Utuloa, Asau. According to my limited knowledge of the geography of Asau it only has two pitonuu or subvillages, Matavai and Utuloa. Allowing for interview time, there is no way you can travel from central Asau or Matavai to Utuloa in a few minutes, and no samoan policeman enters the house of a person to conduct an interview without the usual courtesies and formalities being observed. All of which takes time. The sergeants evidence lacks credibility on many fronts.

[21] A further matter troubles me about his evidence. The oral admissions contained in the interview notes were all made post-caution and post-the defendants indicating they did not wish to make statements to the police. Three of the accused persons namely defendants 3, 5 and 7 said to the sergeant they did not wish to make "written statements". The other accused persons said they did not wish to make any statement. In the course of the sergeants evidence he referred at different times to the caution being no obligation to make a "written statement" - for example see top of page 7 and bottom of page 16 of his evidence, transcript of 7 April 2010. As opposed to the caution being what it should be namely no obligation to make a statement of any kind at all. But if a statement is made it will be reduced to writing and may be used as evidence. This encapsulates an accused persons right not to be a compellable witness against himself enshrined and guaranteed by article 9(5) of the Constitution.

[22] It seems to me that some of the accuseds in this case were told they were not obliged to make written statements and some were told that they were not obliged to make any statement and that the former group elected not to give written statements but then went on to give oral admissions because they were not advised the right extended beyond making written statements. The other accused persons may have had their rights explained correctly to them but I am not confident that this was necessarily the case. It is very possible the sergeant mis-explained their rights to them thus leading them to make oral admissions of an incriminating nature.

[23] Having regard to all these factors I am not satisfied the prosecution have proven to the necessary standard that the accuseds were properly advised of their right to silence. But even if they were, the conflicts in the evidence of the Senior Sergeant renders the evidence of such admissions unreliable. Evidence of such admissions is therefore excluded from consideration by the court.

Decision:

[24] The court is left with the following evidence: On the morning of 7 January 2006, Asau village gathered in preparation for the bestowal of various titles on members of the complainants family. One of these was the complainants legally adopted son Iko. The complainant was surprised to be informed by the village that they would not conduct the required "usu" to the ceremony because Iko was one of the proposed title holders. The title to be conferred on Iko was the Tufuga title, one of the paramount titles of Asau village. It was clear from the complainants hostility and demeanor at trial that this obviously annoyed him so he went to where the village was gathered. A confrontation occurred involving the complainant and the elders of the village including some if not all of the defendants resulting in the complainant being expelled from the meeting. The complainant said because he was a christian man he left voluntarily and told his family there would be no saofa'is. No doubt as a result of the earlier confrontation, the village council then conducted a meeting and decided to banish the complainant and his family. It also appears there had been earlier friction between the village council and the complainant and this was not the first time he had refused to accept their decisions. The village council decision was delivered to the complainant and again to his credit the complainant instructed his family to keep the peace and accept the ruling of the village.

[25] Subsequently however the complainant presented a petition to the Lands and Titles Court at Tuasivi challenging the banishment order issued by the village council. Efforts were made by the council to have the complainant withdraw this petition but to no avail. This included a visit by village representatives to the complainants house at Salelologa. A compromise however appears to have been reached whereby the order was modified in April 2006 to allow for the reinstatement of the complainants family but in respect of the complainant, the banishment order stood.

[26] On 20 November 2006 matters came to a head when the complainants petition came on for hearing at Tuasivi. Again last minute efforts by the village to have the matter withdrawn from the court were unsuccessful and the complainants case proceeded. But it seems in the absence of the village who withdrew from Tuasivi but not before warning the complainant that this was not the end of the matter. The village council remained true to its word and in the afternoon of that day a village orator probably the second defendant delivered another banishment edict from the village. The family did not respond so the following day 21 November 2006, the family was advised to comply by 6pm otherwise they would be burned out in accordance with the traditional penalty of "mu le foaga". The family noted preparations were being made by the untitled men of the village to give effect to this penalty, hence the request for police intervention. Obviously by this stage traditional concepts of tofa and fa'autautaga had deserted the village which had lost sight of the proverb: "a sala tai, tonu uta, a sala uta ia tonu tai". The police intervened and discussed matters with the village council which agreed to defer the banishment for a period of 24 hours to give the family time to vacate. This was done and the family complied with the order and have not since returned to Asau.

[27] Based on these facts the prosecution have charged the defendants who is not disputed were members of the village council at the relevant time and whom the evidence shows took part in the relevant council decisions. Why only these defendants and not other members of the village council were charged has not been explained but such discriminatory prosecuting in order to be proper should only be based on the evidence and not on other considerations. Certainly the wishes of any particular party should have no bearing on the issue.

[28] Broken down the charges are as follows: the first charge information S5547/09 alleges that at Asau between 5th and 8th January 2006, the defendants imposed on the complainant the punishment of banishment from the village because he disobeyed the village council order to withdraw his petition to the Lands & Titles Court, a petition he has a legal right to bring and thereby the defendants have breached section 34(a) of the Crimes Ordinance 1961 which provides:

"34. Unlawful intimidation - Every person commits an offence and is liable to imprisonment for a term not exceeding one year or to a fine of $200 who-

(a) Imposes or attempts to impose or authorises or directs the imposition or attempted imposition upon any other person (whether in respect of a particular person or generally) of any punishment, fine, or penalty or payment in money or goods for having disobeyed any prohibition imposed by any person or body of persons against the doing or abstaining from doing any act which such other person has a legal right to do or abstain from doing"

[29] Dealing with the elements of the charge individually: firstly has it been proven the defendants between the 5th and 8th January 2006 at Asau imposed upon the complainant a punishment of banishment from the village? The answer to that must be yes as the evidence is clear that the defendants were part of the village gathering of 7 January 2006 that made that decision. And although they were part of the larger village council group it can be said that the defendants as individual members thereof imposed on the complainant the banishment punishment. The first ingredient is therefore established.

[30] The second element relates to the reason for the banishment and this is relevant to the issue of intent in relation to the offence. The charge alleges that he was banished because he disobeyed the village council decision requiring him to withdraw his petition against the village. The problem with this allegation is that the evidence shows the relevant petition was only lodged after and as a result of the banishment decision. There was no cogent evidence of any prior petition lodged by the complainant against the village. There was only evidence in relation to the complainants petition stopping certain titles in the village. It therefore cannot be said that he was banished because he refused to withdraw his petition against the village because that petition was not lodged until after 7 January 2006. The second element of the charge therefore has not been made out by the evidence.

[31] The third element is that the complainant has a legal right to present his petition to the Lands and Titles Court. There is no argument on that issue. There is no question that every citizen of this country has a right to pursue petitions in the Lands and Titles Court even petitions against his own village. That is a right guaranteed under the same system of law that sets up village councils. The charge however must fail because the second element that I have referred to has not been established by the evidence and information number S5547/09 is therefore dismissed.

[32] The second charge is information S5550/09 and also relates to the 7 January 2006. That information when broken down alleges that at Asau between 5 and 8 January 2006, the defendants conspired or attempted to obstruct the complainant from continuing with his petition in the Lands & Titles Court or alternatively that the defendants did defeat the course of justice in breach of section 38 of the Crimes Ordinance 1961 which provides:

"38. Conspiring to defeat justice-Every one is liable to imprisonment for a term not exceeding 3 years who conspires or attempts to obstruct, prevent, pervert, or defeat the course of justice in any cause or matter, civil or criminal."

[33] Again the events of 7 January 2006 are clear enough. And there is no doubt that it occurred at Asau between 5 January and 8 January 2006. The question is does the evidence show that the defendants conspired to obstruct the complainant from continuing with his petition or prove the defendants attempted to obstruct the complainant from continuing with his petition or that the defendants defeated the course of justice in some manner not made clear in the charge?

[34] Again this charge suffers a similar problem because it relates to the happenings at Asau on the 7 January 2006 when the complainant was banished by the village. The Lands & Titles Court petition came afterwards and it cannot therefore be said that what the defendants did was because of the subsequently lodged petition. The defendants cannot conspire or obstruct or attempt to obstruct an event that had not yet occurred and cannot prevent the complainant from continuing a judicial proceeding when the evidence show that as at 7 January 2006, the judicial proceeding involving the village had not yet been launched. The evidence adduced shows that the village had assembled the morning of 7 January 2006 to give effect to the saofais of the complainants family and that the banishment of that day was a result of the confrontation between the complainant and the village. It had nothing to do with the complainants petition against the village which he subsequently lodged and there is no evidence to show the defendants by their actions between 5 and 8 January 2006 defeated the course of justice in some manner. This charge too lacks an evidentiary foundation.

[35] The third charge is information S1389/08 which when reduced to its individual components alleges as follows: that at Asau between 8 and 22 November 2006 the defendants imposed on the complainant the punishment of banishment from the village because he disobeyed the order of the orators of Asau to withdraw his Land and Titles Court petition, a petition he has a legal right to bring and the defendants have thereby breached the aforementioned section 34(a) of the Crimes Ordinance 1961. This charge is different to information S5547/09 in that the decision in this charge is alleged to have been made by the orators of the village and not the village council.

[36] As to the first element, the evidence establishes that after the complainants petition was lodged with the Lands & Titles Court, the village council made efforts to get him to withdraw it. This included according to his evidence a visit to his home at Salelologa and a compromise whereby the rest of the family were reinstated but not the complainant. It is also shows he adamantly refused to withdraw his petition and as noted earlier it is the right of every citizen to bring and continue Lands & Titles Court petitions on appropriate issues. In this case it was a petition in respect of his banishment from the village earlier that year on 7 January 2006.

[37] The evidence also showed that on 20 November 2006, the complainants petition was called for hearing at Tuasivi and another unsuccessful attempt by the village was made that day to try and settle the matter out of court. Following which the village withdrew, returned to Asau and issued a further order banishing the complainant and his family. As the complainants family did not comply, on 21 November 2006 they were advised to vacate by 6pm failing which the punishment of "mu le foaga" would be administered. This led to police intervention and deferral of the banishment to 6pm 22 November 2006. The complainants family duly complied with the village order and have so complied to the present day according to the evidence I heard.

[38] This evidence establishes to the courts satisfaction that at Asau between 8 and 22 November 2006, the defendants as part of the village council imposed on the complainant the punishment of banishment from the village. The first part of the charge is therefore proved.

[39] The second ingredient of the charge is that the banishment was imposed because the complainant disobeyed an order from the orators of Asau as opposed to the village council to withdraw his petition. I do not know why the charge is worded that way but that is what it says, the allegation is that the complainant disobeyed an order from the orators of Asau village. And there was no application to amend it made at any stage by the prosecution. The amendments sought pre-trial related to other matters so it cannot be said to have been inadvertently overlooked.

[40] Furthermore, this information is dated 19 December 2007. After 3 years it would not in my view be proper to interfere with a charge which has formed the basis of the conduct of the prosecution case, the defendants defence, the questioning and no doubt cross examination by counsels. As noted in Police v Fepuleai [2008] WSSC 110:

"Section 36 of the Criminal Procedure Act confers on the court a wide power of amendment where it provides in section 36 (1) the relevant part reading as follows:

"the court may amend the information in any way at any time during the trial"

Generally the longer the delay in seeking an amendment the more likely it is that the amendment may cause prejudice to an accused person and the more likely it is it may produce an injustice. This was noted by the English Court of Appeal in R v Johal [1973] QB 475 which has been approved by the New Zealand Court of Appeal in R v Johnston [1974] 2 NZLR at 660, where the court noted that even though the English statutory provisions are different the statements in R v Johal are of general application and are equally applicable as statements of general principle."

After giving due consideration to all relevant circumstances the court should not exercise at this stage its power to amend the information.

[41] The problem with the information is obvious. It refers to a decision supposedly made by the orators of the village and not by the village council. There is no evidence that the decisions in this case were made by the orators of the village. And in any village it would be strange for the faleupolu or orator group to have the power to make such orders. This is usually vested in the alii and faipule or council of chiefs which is responsible for governing village affairs. It cannot therefore be said that the complainant disobeyed an order from the orators of the village because no such order has been established by the evidence.

[42] There is a second problem with this ingredient of the charge. The evidence of the complainants grandson Christopher Masoe was that the reason given by the tootoo or delivering orator for the 20 November 2006 banishment was the complainants actions in relation to village matters. These were the words used by Christopher in his evidence quoting from page 26 of the transcript of 6 April 2010:

"f: o a tonu upu na faaaoga?

t: Masoe Niko ua uma meatotino a le nuu ona e saveu pe ua e asuasua i luga.

f: ae faapefea le tootoo lona 2, na iai se faamatalaga faapea?

t: ia faapea foi ona fofoga atu e le tootoo lona 2.

f: e te manatua o a upu na faaaoga?

t: Masoe niko ua le tasi le lua ia au faiga i totonu ole nuu. Faapea atu ai a ta le 6 e lei o ese le tou aiga o le a mu le foaga."

Similar sentiments were echoed by the village council to the police officers when they intervened on behalf of the complainant and his family on 21 November 2006.

[43] It cannot be said therefore that the evidence establishes beyond reasonable doubt that the reason for the banishment was exclusively the complainants refusal to withdraw his petition. No doubt it was a factor, it may even have been a major factor but the reasons given according to the evidence the court heard were manyfold and were not restricted to just the complainants refusal to withdraw his petition. This aspect of the charge has no factual basis established to the required standard of proof beyond reasonable doubt. That being the case this charge too cannot be sustained.

[44] That leaves the final charge of S1381/09 which relates to the obstruction and conspiracy issue. That alleges that between 8 and 22 November 2006 the defendants conspired or attempted to obstruct the complainant from continuing with his Lands & Titles Court petition or alternatively they defeated the course of justice in breach of section 38 of the Crimes Ordinance 1961.

[45] There is no doubt that the defendants at Asau on 20 November 2006 as part of the village council imposed on the complainant the banishment punishment but as just observed with the previous charge, there is real doubt as to the reasons for the banishment order. This is relevant to the issue of intent to commit the offence and it is therefore crucial to the charge. If the sole reason for the banishment order was to punish the complainant for refusing to withdraw his petition and for continuing with his proceedings in the Lands & Titles Court which is something that he has every right to do, then arguably the defendants have breached section 38 of the Crimes Ordinance by conspiring and attempting to obstruct the complainant from exercising his legal rights. I say arguably because the amended information is very poorly worded and fails to effectively define the scope of the alleged misconduct. Both the conspiracy and obstruction of justice charges I had great difficulty following. But if the reason for the banishment was not because of the refusal to withdraw the petition but because the village council had had enough of the complainants refusals to accept their decisions then that is quite a different matter because that does not in my view amount to a breach of section 38.

[46] In this regard the evidence of the complainants grandson Christopher assumes importance because he indicated that the reasons given to him for the banishment related to past indiscretions and not necessarily the petition to the Lands & Titles Court. These were the same sorts of reasons that were given to the police by the village council when they were queried as to the reason for the banishment order. The petition I accept was mentioned but that was given as one reason and the evidence in totality does not establish beyond reasonable doubt that the petition was the sole reason for the banishment edict. If it was the sole reason then the prosecution is correct, the defendants have breached sections 34(a) and 38. But the evidence as it stands falls short of establishing this beyond reasonable doubt.

[47] Defendants please stand. A fair summary of the outcome of this case which appears to be the first of its kind to come before the court would be as follows: a village council that bans a person solely because that person has exercised his legal right to challenge a village councils decision runs the risk of breaching sections 34(a) and 38 of the Crimes legislation. And any custom to that effect also runs the risk of breaking the criminal law. Had the evidence in this case shown that the reason for your banishment decision gentlemen was the complainants petition to the Lands and Titles Court and no other, I would have had no hesitation in convicting you of the charges. But the evidence as I have tried to explain does not establish that beyond reasonable doubt. It shows that there may have been other reasons for the banishment order that you made. And if that is the truth of what happened it would be wrong for me to convict you on these charges. I am left in reasonable doubt as to whether it is right or wrong, the law says you should be given the benefit of that reasonable doubt. And I must add that the prosecution and the police case has not been helped by the poor wording of the charges. But the court accepts that these are new matters and that probably explains the reasons for such deficiencies.

[48] In accordance with the reasons as outlined the charges against all the defendants in this matter are dismissed.

JUSTICE NELSON