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Supreme Court of Samoa |
SUPREME COURT OF SAMOA
Police v Atiifale [2020] WSSC 101
Case name: | Police v Atiifale |
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Citation: | |
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Decision date: | 19 June 2020 |
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Hearing date: | 10 & 11 June 2020 |
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Parties: | POLICE v PISI ATIIFALE male of Taelefaga Fagaloa AND SOSAIETE FUIAVA TALALUPE male of Taelefaga Fagaloa AND VAAFA’I TULIMA male of Taelefaga Fagaloa |
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File number(s): | S1827/19, S1828/19, S1829/19. |
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Jurisdiction: | CRIMINAL |
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Place of delivery: | Supreme Court Samoa Mulinuu |
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Judge(s): | JUSTICE FEPULEA’I A. ROMA |
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On appeal from: | |
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Order: | Prosecution has proven the charge against all three accused. I find all three accused guilty of the charge. |
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Representation: | Q. Sauaga for Prosecution M. Soonalole for First Accused Second & Third Accused in person |
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Catchwords: | Arson/damage property by a fire |
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Words and phrases: | |
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Legislation cited: | Crimes Act 2013 s.182 (1) (b) |
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Cases cited: | |
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Summary of decision: | |
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Informant
A N D
POLICE v POLICE v PISI ATIIFALE male of Taelefaga Fagaloa
First Defendant
A N D
SOSAIETE FUIAVA TALALUPE male of Taelefaga Fagaloa.
Second Defendant
A N D
AND VAAFA’I TULIMA male of Taelefaga Fagaloa
Third Defendant
Counsel:
Q. Sauaga for Prosecution
M. Soonalole for First Accused
Second & Third Accused in person
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Sentence: 26 June 2020
ORAL DECISION OF JUSTICE ROMA
Charge
[1] The three accused are jointly charged under section 182(1)(b) Crimes Act 2013 that “at Taelefaga Fagaloa on 20 September 2019, they intentionally damaged by fire, two (2) houses of Fialele Amataga, male of Taelefaga Fagaloa.”
Evidence for Prosecution
[2] Prosecution called 6 witnesses. Two were civilian and four were police officers who took photos of the scene; investigated the complaint; and interviewed the accused and witnessed their statements under caution.
[3] Constable Olita Sani was the first witness. She was part of the team that visited Taelefaga Fagaloa on the morning of 20 September 2019 to investigate the incident. She took photos of the remains of 2 structures namely a closed blue house and an open fale from a fire reported to have occurred on the previous night. The photos were tendered as Exhibit P1.
[4] The second prosecution witness was Toilalomaalii Ropeti. He is a nephew of Fialele Amataga, the victim who is also the sa’o of the family. He confirms that the 2 houses which were burnt down belonged to his mother’s family. The houses were built on land that was confirmed as theirs in previous decision of the Land and Titles Court. He says that prior to the incident, the village council had banished his uncle from the village. On a date last year that he cannot recall, his family had gone to clear the land but were stopped by the village council. They were also stopped from burying the deceased body of Fialele’s wife on the land and were told that the village would be working and clearing the land.
[5] As to the incident, Toilalomaalii was not at Taelefaga but in Apia when it happened. It was the following morning that he went back and found that the buildings had burnt down with posts of the open structure still burning. He confirmed that the photos (Exhibit P1) taken by constable Sani are that of the building the morning following the incident.
[6] Leuta Sialafau Valoaga was the third witness. He is an elderly matai of Taelefaga and an uncle of the accused Pisi Atiifale. His evidence is that following the incident the village council met twice without success to investigate who was responsible. A few days after the incident, he heard the first accused Pisi Atiifale’s name being mentioned. Pisi is his sister’s son so he sent for him. They spoke and he denied that he was involved.
[7] He then spoke to him in a way that Pisi would volunteer the truth of what happened; that he had children and if he denied, his children would suffer the curse (Afai e te faafiti e inu uma e lau fanau le mala lea. O upu a ia o le tusi e ai e matua le vine moto ae maniania ai nifo o le fanau). After he told him that, Pisi cried and said, “Leuta ou te alofa i la’u fanau. O a’u na susunuina le fale.” He asked him who was with him and he replied “na o ia.” He also sent for the second and third accused after hearing their names also being mentioned. They both came and denied they were involved. He then instructed Pisi to pack his things before he accompanied him to Lalomanu Police.
[8] Leuta’s further evidence is that he was close to Pisi; he had no differences with him; and he wanted to find out the truth as to who was involved because there were rumors that the Alii and Faipule were also involved in the incident and he was concerned about the impact on the village council.
[9] Under cross examination it was put to Leuta that the reason why he sent for Pisi and held him responsible was because of his concern at the suggestion that the village council was involved and it had been days and they still had not found who was responsible. Leuta was clear that whilst he was concerned about the village council being blamed, he would not have sent for Pisi if his name was not being mentioned. Leuta was adamant that his testimony in court about what was spoken between them including Pisi’s admission was the truth.
[10] Leuta also visited Pisi when he was brought to Apia Police. Pisi told him that he still had not said anything about the people who were involved. Leuta asked him who did it (Ao ai na faia le mea). He replied it was Sosaiete and Vaafai. He thanked police and told Pisi that he would go back and bring the other accused in. He denied that there was another meeting at the police station where Pisi was asked and he replied that he did not know who burnt the house except that someone came to him to pick up the petrol at night.
[11] The fourth witness was the investigating officer Sergeant Tupuola Lelefu Maatusi. He interviewed Vaafai under caution on 24 September 2019 at Apia Police in the presence of Constable Talalelei Epine. The statement was produced as Exhibit P2 and at page 4, it is recorded as follows:
“Faamatalaga a Vaafai Tulima – Lau Susuga o le mea moni lava o lo’u loto tiga le matou nuu pei o faamasinoga na fai ma le matou aiga na malo ai. Ua tele foi fanua o le matou aiga ua alu ma pulea e Fialele. E le gata i lea e le nofo i le nuu ae sau na te le faatupuina se filemu i le nuu. A alu atu foi e fealualua’i solo i le nuu.”
F.21 – Vaafa’i, faamata o le mafua’aga lea ua e ita ai ma fai lea tulaga o le susunu o le fale?
T.21 – Sa’o lelei lau susuga, o le mafuaaga lea na ou susunu ai le fale
[12] Sergeant Lelefu also interviewed the second accused Sosaiete at Apia Police on 25 September 2019 in the presence of Constable Joseph Faresa Laulu. He produced as Exhibit 3 Sosaiete’s statement under caution. It is recorded on page 4 as follows:
“Faamatalaga a Sosaiete Fuiava Talalupe
Sosaiete – Ua ou sau lava ma lo’u loto malie. Ua ou sau lava e fai le faasalaga.
F.22 – Le a le uiga o lau tala?
T.22 – Ua ou sau lava o a’u sa ou susunuina le fale. O le mea lava ua i totonuo lo’u loto.
F.23 – O le fale foi o ai?
T.23 – Fale o Fialele Amataga.
F.24 – O le a se mea sa faaaoga e susunu ai le fale?
T.24 – O le atigiapa pisupo tolu pauna sa i ai le penisini ma ieie.
F.25 – O le a le afi sa faaaoga?
T.25 – Afitusi.
F.26 – O le a se mafuaaga na ala ai ona e susunu le fale?
T.26 – Ona o lo’u le fiafia ia Fialele i le alu atu i totonu o le matou nuu ma fealuai solo ai ae o loo faate’a ma le matou faiganuu.
F.27 – E fia fale na susunuina?
T.27 – E lua o le falepalagi ma le faletalimalo.
F.28 – O le a le fale sa e susunuina?
T.28 – Faletalimalo.”
[13] Constable Talalelei Epine and Constable Joseph Faresa Laulu were the last prosecution witnesses. They confirm being present and witnesses to the interviews and cautioned statements of the accused Vaafai and Sosaiete respectively.
Evidence for Defence
[14] The accused Pisi Atiifale elected not to testify but called 3 witnesses in his defence. His first witness was his 64 year old mother Faapio Valoaga. Her evidence is that on the night of the incident, she woke up to see light from the fire. She called Pisi who sleeps with his wife and children in a house at the back and saw him come out and walk towards her with a sheet wrapped around him. She did not think that Pisi had gone somewhere. She told him to come back to the house and not to go anywhere. Days after, she was told by her daughter Faasavili Valoaga who works as a police officer that she would be taking Pisi to Lalomanu to make a statement.
[15] Faapio’s further evidence is that she was present with her daughter and Leuta’s wife when Leuta asked Pisi who was involved. Pisi replied that he did not know but that he would still be making a statement. Pisi was crying but did not say who was responsible for the fire. She told the court subsequently that when asked by Leuta who was involved, Pisi’s reply was that the petrol was from Vaafai and Sosaiete, but he did not know what it was for.
[16] Faapio was also present when her brother Leuta sent for Vaafai and Sosaiete; asked them if it was true they were present at the incident; and they replied that they did not know.
[17] Under cross examination Faapio confirms that they live 2 houses away from the dwellings that caught fire. The distance was not far. She maintains that Pisi was sleeping in the house at the back when she woke up, saw the fire and started calling her children. When put to her Leuta’s evidence that Pisi had cried and admitted his involvement to him, Faapio’s reply was that she did not hear any such admission from Pisi but mention of Vaafai and Sosaiete’s names and of the petrol. She concedes that she is close to her brother Leuta and enjoys a warm relationship with him.
[18] The second witness for the accused Pisi Atiifale was his wife Ianeta Pisi. She was sleeping with her husband and children in their house whilst her mother in law was sleeping in the house infront. At around 11pm she woke up when Vaafai came looking for Pisi. She woke Pisi up, he came out and she heard them talking and mention the petrol. She saw Pisi give Vaafai the petrol and came back to sleep. It was around 3am the next morning when she woke to breastfeed her baby that she saw light from the fire. She got up and woke Pisi and together they came outside the house when her mother in law Faapio told them to go back inside the house.
[19] Under cross examination she concedes that she does not know where Pisi went to that night; she loves her husband and her evidence was to protect him. She denies however that she mentioned Vaafai’s name to protect her husband.
[20] The last witness for the accused Pisi Atiifale was Tony Sosaiete. He is a cousin of the accused Pisi and lived together with him. They visited Pisi at Apia Police with Pisi’s sister. Pisi was quiet and for most of the time, he had his head down and cried. Just as they were about to leave, Pisi told them that what he told Leuta was that Vaafai came to him to get the petrol. One of Pisi’s sisters then came to the front and told police.
[21] The accused Vaafai and Sosaiete elected not to give or call evidence.
Law
[22] Section 182(1)(b), Crimes Act 2013 provides:
“A person commits arson and is liable to imprisonment for a term not exceeding 14 years who:
(b) intentionally or recklessly, damages by fire or by means of any explosive, any immovable property, or any vehicle, ship or aircraft.
[23] To prove the charge as framed against all accused, prosecution must prove beyond reasonable doubt that:
(i) The 3 accused damaged immovable property by means of fire;
(ii) The 3 accused did so intentionally;
(iii) The 3 accused had no interest in the property.
Discussion
The 3 accused damaged immovable property by means of fire
[24] There is no dispute that the two buildings located on land at Taelefaga that are subject of the charges are immovable property. There is also no dispute that both buildings were damaged by fire. The evidence is clear that at late night on 20 September 2019 and into the early hours the next morning, both buildings caught fire. The photos taken the following morning show their remains.
[25] It is disputed however by all 3 accused that they were responsible. Prosecution relies on Leuta’s evidence of Pisi’s admission to him a few days after the incident that he burnt the house, and the admissions by both Vaafai and Sosaiete in their respective caution statements (Exhibit P2 and P3) to prove that accused were responsible for burning the houses.
[26] In relating to Pisi, his uncle Leuta was clear in his evidence that after hearing Pisi’s name being mentioned, he sent for and spoke to him. Whilst at first he denied, he subsequently cried and admitted “o a’u na susunuina le fale.” when Leuta continued to speak to him about the consequences on his children if he was in fact responsible for the fire. Whilst there is evidence by Faapio (Pisi’s mother) that she was present when Leuta questioned Pisi and he made no such admission by him, she concedes the likelihood that it was in fact made but that she did not hear it. I bear in mind also that Faapio is the accused’s mother; and her concession under cross examination that she loved her son and would protect her.
[27] I have listened carefully to the witnesses and observed their demeanour. I prefer the evidence by Leuta. He was clear and forthright and unmoved under cross examination.
[28] Mr Soonalole suggested that Leuta was more concerned about the rumours relating to the involvement of Alii and Faipule of Taelefaga that he told Pisi to pack his things and go with him to Lalomanu Police despite his denial. Leuta does not dispute he was also concerned about the mention of Alii and Faipule being involved. I do not think however that such concern would be overwhelming for him to hold his nephew responsible and take him in if he had not made any admission as to his involvement. Pisi was his nephew and like a son to him. As most concerned parents would, he spoke to him about the importance of telling the truth and coming clean; and the consequences if he did not. The only reason why he would take Pisi in, in my view, is because Pisi had admitted he was involved.
[29] Apart from Leuta’s evidence of Pisi’s admission, there is also evidence of Pisi’s wife Ianeta that Vaafai came for Pisi when they were asleep that evening, that Pisi came out to see him and she saw him giving Vaafai petrol.
[30] Taking all that evidence into account, I am satisfied beyond reasonable doubt that the accused Pisi Atiifale was responsible for the fire that damaged the two houses belonging to Fialele Amataga at Taelefaga Fagaloa on 20 September 2019.
[31] I am further satisfied that the second accused Sosaiete Fuiava Talalupe was also responsible for the fire that damaged the same properties. Whilst he elected not to give or call evidence, his statement under caution to police on 25 September 2019 (Exhibit P5) is very clear on his admission of his involvement and the details.
[32] Again, the record of his interview from F.22 to T.25 states:
“F.22 – Le a le uiga o lau tala?
T.22 – Ua ou sau lava o a’u sa ou susunuina le fale. O le mea lava ua i totonu o lo’u loto.
F.23 – O le fale foi o ai?
T.23 – Fale o Fialele Amataga.
F.24 – O le a se mea sa faaaoga e susunu ai le fale?
T.24 – O le atigiapa pisupo tolu pauna sa i ai le penisini ma ieie.
F.25 – O le a le afi sa faaaoga?
T.25 – Afitusi.”
[33] For the same reason I am also satisfied beyond reasonable doubt that the third accused Vaafai Tulima was also responsible for the same fire that damaged the two houses at Taelefaga Fagaloa on 20 September 2019. Like Sosaiete, he elected not to give or call evidence. But he was clear in his admission to police under caution on 24 September 2019 (Exhibit P2) as follows:
“Lau Susuga o le mea moni lava o loo loto tiga le matou nuu pei o faamasinoga na fai ma le matou aiga na malo ai. Ua tele foi fanua o le matou aiga ua alu ma pulea e Fialele. E le gata i lea e le nofo i le nuu ae sau na te le faatupuina se filemu i le nuu. A alu atu foi e fealualua’i solo i le nuu.”
F.21 – Vaafa’i, faamata o le a le mafua’aga lea ua e ita ai ma fai lea tulaga o le susunu o le fale?
T.21 – Sa’o lelei lau susuga, o le mafuaaga lea na ou susunu ai le fale.”
[34] Other than his admission, there is also the undisputed evidence of Ianeta Pisi, wife of Pisi Atiifale that Vaafai had come around that evening whilst they were sleeping looking for petrol. The only logical inference I can draw is that the petrol was to be used in causing fire to the houses that burnt later that evening and into the early hours of the following morning.
[35] For those reasons, I am satisfied beyond reasonable doubt that prosecution has proven the first element of the offence against all accused.
(ii) that the 3 accused did so intentionally
[36] Clearly from the evidence, the fire was not caused by accident. There were obvious differences between Fialele Amataga and his family and the village relating to the land which have reached the Land and Titles Court and become the subject of decisions in favour of Fialele Amataga. Such was the evidence of Toilalomaalii Ropeti and Leuta Valoaga.
[37] But the admissions by the accused Sosaiete Talalupe and Vaafai Tulima are also clear on the motive behind their offending. For Sosaiete, F.26 and T.26 of his caution statement reads as follows:
“F.26 – O le a le mafuaaga na ala ai ona e susunu le fale?
T.26 – Ona o lo’u le fiafia ia Fialele i le alu atu i totonu o le matou nuu ma fealua’i solo ai ae o loo faate’a ma le matou faiganuu.”
[38] In respect of the accused Vaafai, the relevant part of his statement reads:
“F.21 – Vaafa’i, faamata o le a le mafua’aga lea ua e ita ai ma fai lea tulaga o le susunu o le fale?
T.21 – Sa’o lelei lau susuga, o le mafuaaga lea na ou susunu ai le fale.”
[39] On that evidence, I am satisfied beyond reasonable doubt that prosecution has also proven the second element of the offence against all accused.
(iii) that the 3 accused had no interest in the property
[40] Again the clear and undisputed evidence is that the two houses damaged by fire belonged to Fialele Amataga. The accused Sosaiete and Vaafai also acknowledge that in their cautioned statements.
[41] I am also satisfied beyond reasonable doubt that prosecution has proven the third element of the offence against all accused.
Result
[42] For the above reasons, I am satisfied beyond reasonable doubt that prosecution has proven the charge against all three accused. I find all three accused guilty of the charge.
[43] I will adjourn this matter to 16 June 2020 at 12.30pm for pre sentence reports, a victim impact report and sentencing.
JUSTICE FEPULEA’I A. ROMA
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