Police v Su'a [2014] WSSC 69 (24 November 2014)

SUPREME COURT OF SAMOA

Police v Su’a [2014] WSSC 69

Case name:	Police v Su’a
Citation:	[2014] WSSC 69
Decision date:	24 November 2014
Parties:	POLICE (prosecution) and LOKENI SU’A male of Fasitoo-uta and Lufilufi (accused)
Hearing date(s):	13 November 2014
File number(s):	S2044/14 – 2046/14
Jurisdiction:	CRIMINAL
Place of delivery:	MULINUU
Judge(s):	CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation:	R Titi and B Faafiti-Lo Tam for prosecution C S Vaai for accused
Catchwords:
Words and phrases:	Intentional damage, maximum penalty, demeanour, sentence
Legislation cited:	Crimes Act 2013, ss.184(2)(a), 129
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2044/14 – S2046/14

BETWEEN

POLICE
Prosecution

AND

LOKENI SU’A male of Fasitoo-uta and Lufilufi
Accused

Counsel
R Titi and B Faafiti-Lo Tam for prosecution
C S Vaai for accused

Hearing: 13 November 2014

Judgment: 24 November 2014

JUDGMENT OF SAPOLU CJ

The charges

1. The accused stood trial on one charge of intentionally damaging property, namely, louvre windows of a house, the property of Aiono Finai (Aiono Mika) and his children, at Fasitoo-uta, contrary to s.184 (2)(a) of the Crimes Act 2013; one charge of verbally making a threat to kill, namely, “aua ge’i koe ku mai se kagaka igei, ouke fasiokia le kagaka pe a koe o’o mai igei”, contrary to s.129 of the Act; and one charge of using threatening words, namely, “o ese loa, o ese loa koekiki loa veke le ulu o le kagaka i le ma’a”, whereby a breach of the peace may be occasioned, contrary to s.4(g) of the Police Offences Ordinance 1961. At the close of the evidence for both the prosecution and the defence, I reserved judgment.

The evidence

2. The incident from which the present charges arose occurred on early Monday morning 30 December 2013 at the house of the late Aiono Finai Mika at Fasitoo-uta. The prosecution witness Taueetia Pula Lasi (Taueetia) testified that on Sunday night, 29 December 2013, he and his cousins, the children of the late Aiono Mika, went to spend the night at the house (maota) of Aiono Mika. These children of Aiono Mika were his sons Tomasi and Filipo and his daughter Taei. Also present was the wife of Tomasi. None of the children of Aiono Mika lives at Fasitoo-uta. Tomasi and Filipo live in New Zealand while Taei lives with her husband at Leauvaa. The prosecution witness Taueetia is from the village of Saleimoa.
3. As Aiono Mika passed away in 2010 and none of his children lives in Fasitoo-uta, Maopu Su’a (Maopu), the mother of the accused, and her children are living at the family at Fasitoo-uta and looking after the house of Aiono Mika. There was some dispute as to the connection of Maopu and her children to the family of Aiono Mika. It is not necessary for me to go into that issue. However, it is clear from the evidence that one of Maopu’s sons holds the title Seve of the family.
4. At some time, Maopu moved into the house of Aiono Mika and she lives in the house up to now. The prosecution witness Taei testified that Maopu has “invaded” her father’s house. I am not in a position to find whether that is in fact so, because Maopu due to her old age and health condition was not able to give evidence. The witness Taueetia also said under cross-examination that to his understanding Maopu was looking after the house. In any event, it is not necessary in these proceedings to decide whether Maopu has “invaded” the house of Aiono Mika.
5. The witness Taueetia further testified that when they arrived at the house of Aiono Mika, Maopu was there. They conversed with Maopu but they never informed her of the purpose of their visit which was to hold the ava ceremony, known as the tapaina ole ipu, of Tomasi for the title Aiono which is the paramount title (suafa sa’o) of their family the following morning. Maopu and her children then provided ti (supper) for Taueetia and their party before laying out the pillows and mats for them to sleep on during the night.
6. Early the following morning at about 6:00 a.m., three matais of Fasitoo-uta came to the house of Aiono Mika and conducted the cultural ava ceremony known as tapaina ole ipu for the subsequent bestowal of the title Aiono on Tomasi at a later date. The ava ceremony was carried out in the sitting room of the house of Aiono Mika. Maopu who had woken up by this time, was surprised and shocked by what she saw as she had had no prior notice of the intentions of her guests. She stopped the ava ceremony but it still went ahead. It was the witness Taueetia who served the ava to Tomasi. After Tomasi had drunk his ava, he took money out from his wallet for the pasese (monetary gifts) of the three matais of Fasitoo-uta who were present. It was the witness Taueetia who handed out the pasese to these matais.
7. Taueetia testified that as he was handing out the pasese to the three matai, he heard a noise from the kitchen which is next to the sitting room where the ava ceremony had just been held. The noise sounded like someone punching down louvres of a window in the kitchen. When he turned he saw two louvres missing from a window in the kitchen. At the same time, he saw the accused being restrained by people next to where the louvres were missing from. He then hurried out of the house to his car. He started his car and waited for his cousins who were still inside the house.
8. Taueetia also testified that during the time he observed the accused, he did not notice the accused saying any words. All that he noticed was that the accused appeared angry.
9. The prosecution witness Taei Aiono (Taei) testified that at the house of her father Aiono Mika on Monday morning 30 December 2013 as they were farewelling the matais of Fasitoo-uta who came to the ava ceremony for the tapaina ole ipu of his brother Tomasi for the title Aiono of their family, she suddenly heard a bang. She thought it was the bang of a gunshot. When she turned to see where the noise came from, she saw the louvres of a window being broken into bits and pieces. She then saw the accused throwing another stone. Her brother Tomasi and his wife as well as their cousin Taueetia then ran out of the house to Taueetia’s car and left the scene. Taei testified that at that time her brother Filipo was still sitting inside the house and she was urging him to come out of the house with her and go to report the matter to the police. She then saw the accused picked up more stones and walked around to the front of the house to meet her and her brother Filipo. Taei said when they met the accused in front of the house the accused said: “O ese loa, o ese loa gei veke se ulu o se isi, kei a ua ou fasiokia se isi”.
10. Under cross-examination, Taei denied that it was a glass jug that was thrown by the accused. She mentioned that it was a stone that was thrown by the accused.
11. The accused testified that on Sunday night 29 December 2013, the witness Taei, her brothers Tomasi and Filipo, as well as their cousin Taueetia arrived at their family at Fasitoo-uta. Also with them was the wife of Tomasi. They conversed with his mother Maopu without any mention of the purpose of their visit. His mother provided ti (supper) for them before they went to sleep.
12. Early the following morning while he was still asleep, he was awakened by the sound of more people arriving at their house. His mother who was asleep was also awakened. It then became clear to him and his mother that an ava ceremony for the bestowal of the m title Aiono on Tomasi was to be performed. His mother stopped the ava ceremony (tapaina ole ipu) but the ava ceremony still went ahead. His mother then bent down and wept and cried in the middle of the sitting room and hitting the floor (tagi tu’i). The accused felt deeply sorry and concerned for his mother. The accused said he then picked up a glass jug which belonged to his mother and threw it at the wardrobe inside the sitting room. The jug was shattered into pieces. It was then that Taei’s brother Filipo stood up. He then said to Filipo to leave the house as what they had done was inappropriate and insensitive. Furthermore, the accused testified that he said to Filipo whether they could not see that his (the accused’s) mother was bending down (ifo tele) and crying. The accused further denied that he broke any louvres of the house.
13. The witness Fausia Iopu (Fausia) who is a relative of the accused was called as a witness by the defence. His evidence is generally consistent with the evidence given by the accused. In particular, he testified that it was a glass jug that was thrown by the accused and hit a wardrobe in the sitting room of the house causing the jug to break into pieces. This witness also testified that the only words which he heard the accused said to the witness Taei was that it was best for them to leave the house in case his mother gets a sudden illness (ma’i oso).

Discussion

14. The evidence given by the prosecution witnesses Taueetia and Taei are generally consistent with the evidence given by the accused and the defence witness Fausia as to the events of Sunday night 29 December 2013 and Monday morning 30 December 2014. The material difference in the evidence of these witnesses is in relation to the actions of the accused during the ava ceremony for the subsequent bestowal of the title Aiono on Tomasi. The evidence of the witnesses Taueetia and Taei show that the accused damaged the louvres of a window in the kitchen of the house (maota) of Aiono Mika. Whether the louvres were damaged by a punch from the accused as to be inferred from the circumstantial evidence of Taueetia or from a stone thrown by the accused as shown from the evidence of Taei, the fact remains that from the evidence of these prosecution witnesses, the accused did damage the louvres of a window in the kitchen of the house in question. On the other hand, the accused in his evidence denied having damaged any louvres of a window in the kitchen as claimed by the prosecution witnesses Taueetia and Taei. His evidence was that he threw a glass jug which belonged to his mother at a wardrobe in the sitting room of the house causing the jug to shatter into pieces. This evidence of the accused is supported by the evidence of the defence witness Fausia.
15. Having observed the respective demeanours of the witnesses and having given careful consideration to all the relevant circumstances, I have decided to accept the evidence given by the prosecution witnesses Taueetia and Taei. The conduct of Taei and her brothers Tomasi and Filipo was in the circumstances culturally insensitive and highly provocative. It caused the accused’s mother to bend down and wept and cried hitting the floor of the sitting room of the house with her hands. That the accused became angry and had to be restrained is understandable in the circumstances. In my view, the accused must have become very angry because of what happened. His actions in response to the provocative conduct of Taei and her brothers as alleged by Taueetia and Taei were consistent with that level of anger. I do not accept the accused’s evidence that as a result of his anger he simply threw a glass jug at a wardrobe causing the jug to shatter. I also do not accept the evidence of the defence witness Fausia about the accused throwing a glass jug at a wardrobe in the sitting room of the house.
16. In relation to the threatening words and words whereby a breach of the peace may be occasioned as alleged by the witness Taei to have been uttered by the accused to her, I have also decided after considering the respective demeanours of the relevant witnesses and the relevant circumstances to accept the evidence of Taei as opposed to the evidence given by the accused and the witness Fausia. What had happened in this case must have been highly charged with emotions and anger. That is confirmed by the actions of the mother of the accused opposing the ava ceremony that was being held and crying and weeping in the middle of the sitting room hitting the floor when the ava ceremony still went ahead. What was alleged by Taei to have been said by the accused to her would be more consistent with the realities of the situation than what the accused testified he had said as supported by the evidence of his relative Fausia.

Conclusion

17. From the foregoing discussion, I find all the charges against the accused to have been proved by the prosecution beyond reasonable doubt. This matter is adjourned to Tuesday 16 December 2014 at 12:30 p.m. for a pre-sentence report and sentencing. Bail to continue.
    

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CHIEF JUSTICE