Police v Vaili [2016] WSSC 102 (29 April 2016)

IN THE SUPREME COURT OF SAMOA
Police v Vaili [2016] WSSC 102

Case name:	Police v Vaili
Citation:	[2016] WSSC 102
Decision date:	29 April 2016
Parties:	POLICE (Prosecution) and OVALENI POLI PALAU VAILI also known as POLI PALAU TATUPU VAILI male of Faleatiu. (Defendant)
Hearing date(s):	26, 27 & 28 April 2016
File number(s):	S963/15, S935/15, S934/15, S4535/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	I am satisfied however the prosecution have proven the charges to the required standard. The evidence of the officers may have been inconsistent on minor issues but on the whole it was cogent and clear. I am also satisfied there was no misidentification of the defendant. The defendant was identified by officers who knew him as well as by one civilian witness as the driver of the van and as the person who discharged the rifle into the air. I am also satisfied his driving was dangerous in the prevailing circumstances. Charge against him in respect of the second incident is also proven to the required standard.
Representation:	R Titi for prosecution I Sapolu for defendant
Catchwords:	-
Words and phrases:	Discharging firearm – resist lawful arrest – dangerous weapon – semi automatic rifle – unlawful weapon - drugged/intoxicated
Legislation cited:
Cases cited:	Queen v Swayne
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

OVALENI POLI PALAU VAILI also known as POLI PALAU TATUPU VAILI male of Faleatiu.
Defendant

Counsel: R Titi for prosecution
I Sapolu for defendant

Hearing: 26, 27 & 28 April 2016

Judgment: 29 April 2016

ORAL DECISION OF NELSON J

1. The defendant faces four charges arising out of two incidents. The first occurred at Satapuala on 04 March 2014. It is alleged that on that day at that place the defendant drove his vehicle on the main West Coast Road in a dangerous manner having regard to all circumstances including the nature, condition and use of the road and the amount of traffic thereon. That is information S963/15. It is also alleged that at the same place and on the same date the defendant was armed with a dangerous weapon namely a semi automatic rifle. That is information S935/15. Finally it is alleged that at the same place on the same date the defendant used a firearm namely the semi automatic rifle by discharging the firearm “against police officers,” knowing that those persons were police officers. That is information S934/15.
2. The second incident involving the defendant is said to have occurred at Mulifanua on 28 November 2014. It is alleged that at Mulifanua on that date the defendant used the same semi automatic rifle with intent to resist his lawful arrest. By discharging the same firearm. That is information S4535/14. I will deal with the first incident in time first.
3. The police evidence is on the day in question 04 March 2014 two police constables in a double cab Toyota Hilux pick-up POL 22 travelled to Mulifanua Wharf at about 11:00 am to drop off a female constable. In the wharf compound they noticed a small silver mini-van type vehicle with three men inside. The defendant was the driver. The police evidence was the occupants appeared to be dealing in illicit narcotics. When the officers approached the van, it took off onto the main road heading towards Apia. The officers followed and noticed the van was not only driving on the wrong side of the road but was sporadically veering from one side of the road to the other. The officers suspected the vehicle occupants were drugged/intoxicated. They reported the matter to the Faleolo Police Post which at the time was operating a road block in front of the Post checking vehicle registration and licenses under the command of Senior Sergeant Sione Menefata.
4. The call was taken by Corporal Elika Utumapu who in the company of other officers joined the road block and advised the in-charge about the van. Traffic cones were in place across the road for the purposes of the police road block. Corporal Elika and these officers joined the road block contingent of police. They noticed the van approaching the road block again driving on the wrong side of the road. As the van approached the cones it made no effort to stop.
5. The evidence of Constable Talolua Afele and Constable Mataua Maua was that Corporal Elika tried to stop the defendants van. Which then swerved and tried to run them down. The van sped on through the check point and continued towards Apia direction. At this point POL 22 arrived and was pulled over. A number of officers including Senior Sergeant Sione and Corporal Elika boarded the vehicle. Corporal Elika sat on the tray of the pick-up. The vehicle managed to catch up to the van which was not driving fast and the officers signaled and called out for it to pull over.
6. The response of the van occupants was to point a rifle out the window. The van also according to the evidence slowed down considerably, sufficient to allow Corporal Elika to jump off the police vehicle and run over to the van. Where he engaged in a struggle with the passenger in the front seat of the van holding the rifle to try and obtain possession of the gun. A brave but extremely risky maneuver. Evidence was the van then sped up and Corporal Elika was forced to let go of the weapon.
7. The further police testimony was that the van continued on its journey but then pulled over about 120-150 meters away from the now stationary police vehicle. It appears the police vehicle stopped because the officers were unarmed.
8. The evidence was the front seat passenger identified by those officers who knew him as Fotu Siaosi and the defendant exited the van. Fotu then passed the gun to the defendant who took aim at the police officers. But he discharged the weapon into the air a number of times before the men returned to their vehicle and drove off in the Apia direction. The police did not give chase and it would seem they made the decision to leave the defendant and Fotu to be apprehended another day. It emerged in cross examination that Fotu is now serving a term of imprisonment for his part in this matter.
9. No evidence was called by the defendant as is his constitutional right. The basis of his not guilty pleas seems to have been challenging the veracity and credibility of the prosecution evidence.
10. I am satisfied however the prosecution have proven the charges to the required standard. The evidence of the officers may have been inconsistent on minor issues but on the whole it was cogent and clear. I am also satisfied there was no misidentification of the defendant. The defendant was identified by officers who knew him as well as by one civilian witness as the driver of the van and as the person who discharged the rifle into the air. I am also satisfied his driving was dangerous in the prevailing circumstances.
11. The one issue that did arise has been resolved to my satisfaction. This concerned information S934/15 which alleges the defendant “used a firearm namely a semi automatic rifle by discharging the firearm against the police officers knowing that those persons were police officers.” The information could have been better worded and at first blush can tend to confuse. However I am satisfied the defendants action in aiming the gun at the police officers and then discharging it into the air falls within the terms of the charging section. Which provides that it is an offence for any person to use any firearm “in any manner whatever against any police officer.” There had been no dispute the defendant well knew the target of his actions were police officers. All of them were in uniform and were carrying out their lawful duties of apprehending suspected offenders.
12. The excerpt from Adams and the New Zealand authority of Queen v Swayne submitted by the prosecution reinforces this view. The use by the legislature of the words “in any manner whatever” was obviously intended to cover all manner of use and circumstances. It amply in my view encompasses the circumstances here.
13. For completeness I add that I am also satisfied for the purposes of the information that the weapon being brandished by the defendant was a dangerous weapon. From the description of the witnesses of the kind of shots and appearance of the cartridges found at the scene post incident by Aiga Samu and Tomasi Westerlund, it is apparent the rifle was a semi automatic rifle of a kind which according to the police ballistics expert Tagaloasa Iosefo had a range in excess of 300 meters. A lethal and unlawful weapon without a doubt.
14. As for the second incident involving the defendant on 28 November 2014, again the police evidence was with minor inconsistencies clear and cogent overall. On the day in question the defendant and two friends were driving what seems to be the same small silver two door mini-van type vehicle. They were spotted at the Mulifanua Wharf by Inspector Norman Tuafale of the Faleolo Police. The van performed what sounded like wheelies in the wharf compound before exiting and travelling towards Faleolo Airport. Inspector recognised the defendant as the driver and testified as to the presence of alcohol in the vehicle. A police road block at the gate of Aggies Resort was accordingly instructed and this was successful in halting the defendants van.
15. But efforts by the police to remove the defendant from the vehicle were unsuccessful leading to the vehicle escaping and travelling down the road towards the Resort. It then u-turned and confronted the police party. The defendant pulled out his gun and while driving towards to the police with one hand, used his free hand to discharge gunshots into the air. No doubt in an effort to intimidate and threaten the police party. Who not surprisingly took cover, in the Inspectors case behind a roadside niu (coconut tree). Police also withdrew their vehicle to behind the Golf Course Samoan fale allowing the defendants van to exit the compound. The evidence showed the defendant continued to 0fire shots into the air as the van proceeded towards Apia. Again the police wisely withdrew from further confronting the group.
16. I am satisfied beyond reasonable doubt the defendant was the shooter as identified by Inspector Norman who is his relative. And that the defendant was using the semi automatic weapon in an effort to evade arrest. Charge against him in respect of the second incident is also proven to the required standard.
17. O le mataupu lea o le a tolopō Ovaleni mo le Aso Faraile o le vaiaso lea mo se fa’aiuga a le Fa’amasinoga. Aso 06 o Me i le 12:30pm e lau ai le fa’aiuga o moliaga ia e fa’asaga ia oe. Ua poloaiga le Ofisa Fa’anofo Va’ava’aia e fa’ata’atia mai se latou lipoti mo le mataupu. Masalo e o’o i se taimi oo atu le alii ofisa e fa’atalanoa ona e taua le lipoti lena mo lau susuga.
    

JUSTICE NELSON