Police v Vaaiva [2024] WSSC 82 (9 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Vaaiva & Anor [2024] WSSC 82 (09 August 2024)

Case name:	Police v Vaaiva & Anor
Citation:	[2024] WSSC 82
Decision date:	09 August 2024
Parties:	POLICE (Informant) v VALENTIN VAAIVA, male of Fasitoo-tai (First Defendant) and ULU MOSE also known as PE’EPE’E ULU MOSE, male of Fasitoo-tai (Second Defendant)
Hearing date(s):	25, 26, 27 March 2024 Submissions: 05 July 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	Defendants are accordingly found guilty as charged and will be remanded to a suitable date for sentence.
Representation:	J. Leung Wai on behalf of F. Ioane for prosecution T. Toailoa on behalf of P. Chang for first defendant K. Koria for second defendant
Catchwords:	Assaulted victim – group attack – victim died as a result.
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

VALENTIN VAAIVA, male of Fasitoo-tai.

First Defendant

A N D:

ULU MOSE also known as PE’EPE’E ULU MOSE, male of Fasitoo-tai.

Second Defendant

Counsel: J. Leung Wai on behalf of F. Ioane for prosecution
T. Toailoa on behalf of P. Chang for first defendant
K. Koria for second defendant

Hearing: 25, 26 & 27 March 2024

Submissions: 05 July 2024

Decision: 09 August 2024

DECISION OF THE COURT

1. The history of this matter is the defendants were charged that at Fasitoo-tai on 25 May 2017 they did by an unlawful act namely assault cause the death of the deceased Joe Muliipu a male of Fasitoo-tai. The defendants were originally jointly charged with Telosia Kalolo and Pani Aiomalaga also males of Fasitoo-tai but Telosia and Pani pleaded guilty. They were sentenced to terms of imprisonment on 08 December 2022 and they have been called by the prosecution as witnesses against Valentin and Ulu.
2. Hearing of the charges against the two defendants has been delayed for various reasons including the non-appearance of one defendant. But the matter proceeded to a judge alone trial before me a few months ago. Main witnesses for the prosecution were the co-defendants Telosia and Pani.
3. Telosia’s evidence in chief and in cross examination was that a drinking party was held inland of Fasitoo-tai on the night of 25 May 2017. Originally it began at the deceased’s house and subsequently moved inland to Telosia house. It involved the defendants and others and consumption of copious quantities of that jet-fuel alcohol Boom Vodka.
4. Afterwards the deceased and his cousin Muliipu walked seaward while Telosia and the others drove seaward in Telosia’s car with Telosia driving. Somewhere in front of the deceased’s house the road was blocked by the deceased standing there armed with a rock. He was cursing and swearing at the vehicle insisting several times that the person that he was angry with get out of the car. He did not say who he was angry at. Initially Telosia ignored the deceased but eventually the deceased’s behaviour angered him, he exited the vehicle and punched the deceased causing him to fall down. Others also exited the vehicle and assaulted the deceased.
5. Telosia said in his evidence he clearly saw Valentin and Pani assault the deceased but not Ulu. He disputed the evidence of the deceased’s partner Malia Togia that Ulu also attacked the deceased. He said he only saw Malia after everything was over. He also pointed out that Ulu was a stroke victim having had a stroke 10 years or so ago. It affected his mobility on the right side but he conceded Ulu still drinks heavily and said that on the night Ulu was the drunkest of all of them. He also conceded Ulu is his “toto ivi ma aano” (blood relative) in other words he is very related to Ulu which is a good reason for him to try and shield him from criminal liability.
6. Pani says he knows the defendant Ulu well and is in fact related to Ulu being a relative of his mother. He agreed Ulu was very drunk, but described in cross examination his disability as only an ‘eku’ or a limp. This accorded with my own observations of this defendant, that he walks with a limp but seems to be otherwise functional.
7. His evidence in chief confirmed that Telosia struck the first blow and subsequently Pani together with Valentin assaulted the deceased. He said Valentin “soli and kakiki” the deceased. And that when the groups attack intensified, the deceased rolled onto his stomach to protect his face and used his hands to cover the back of his head. Other witnesses testified it was at that stage Ulu sat on the deceased’s back and used rocks to hit the back of the deceased’s head.
8. He also elaborated in cross examination that it was Ulu the deceased was mad at. Because there was a drunken altercation the week before this incident between the two men where Ulu punched the deceased splitting his lip. He claimed the deceased showed him his injured lip the night of the incident. When the matter was resurrected again during the drinking party. Of Ulu’s condition on the night Pani said in cross examination at page 70 of the transcript when talking about Ulu exiting Telosia’s vehicle:
   • “E leai se faigaka ona oso i fafo Ulu laga la e kiga loga loko ia Joe.”
9. He was asked:
   • “E iai le molimau a Ulu e faapea mai na te lei mafai ona faia se gaioiga ona ua ova foi lona fa’asua’avā o lea foi na e saunoa mai ua fai si faasua’avā o Ulu e sa’o?”
   • O lana tali - “Ia o lae ogā a’o la ga mafai a ga savali. A kou vaai i le savali a Ulu ga sau ai mai le kaavale e le’o se kagaka e ma’i, ma e le’o se la’a lea a se kagaka ogā makuā ogā aua sa kakau oga makou faia le galuega o le sa’esa’e mai kokogu o le kaavale pe a faapea ua makua’i ogā lava.”
10. He also confirmed in his evidence Ulu stamping on the deceased with his good leg and using rocks to strike him on the back of the head several times. As to why the use of rocks by Ulu was not in his two cautioned statements to the Police, Pani explained it was because the Police did not ask him.
11. Had this remained the state of the evidence there could have arisen a reasonable doubt about Ulus part in this assault as Ulu is not mentioned by Telosia. And Panis evidence was not completely satisfactory in other respects. However the prosecution also called the deceased’s partner of one month Malia. And her evidence is consistent with that of Pani namely she saw Ulu use rocks to hit the back of the deceased’s head. Similar to Pani, she described in examination in chief how Ulu “saofai lelei i lalo i le palapala ona fai loa lea o le sauniga lea o le tatu’i o le ulu i ma’a”: page 13 of the transcript.
12. As she was a stranger to the village she did not know the names of all of the boys involved in this matter but she was able to identify Ulu because of his limp. On page 14 of the transcript she refers to him as “pukapuka a savali e pei e tau salu le vae, e ekueku.” And on page 15 of the transcript she says:
    • Fesili: Sa fai atu la’u fesili Malia e le’i o’o i le po lea na tupu ai le vevesi sa e vaai muamu ia Ulu?
    • Tali: Sa’o lelei
    • Fesili: Anafea?
    • Tali: O le taimi ou te manava mai ai ou te alu i le fale a e ma fetaui ma le tamaloa lea e ekueku mai uka ma aga popo.”
13. Significantly this show no impediment to Ulu’s ability to use his hands. The evidence of Malia and Pani go hand in hand and are consistent with the postmortem findings of extensive bruises to the exterior of the deceased’s fingers and blunt force head injuries consistent with a rock.
14. It is true that Telosia makes no mention of the presence of Malia and said she only arrived post incident. But it must be remembered that Telosia’s evidence was that after he punched out the deceased his attention was diverted to a scream from inland where Muliipu was being assaulted by others. Which he then went to investigate leaving everyone else including Pani and Valentin at the scene. It can readily be inferred that is why he did not see Malia or see what Ulu did to the deceased.
15. Panis evidence confirms that Malia arrived after Telosia had punched the deceased and the deceased was on the ground being assaulted by him and the others. This is at page 67 of the transcript:
    • “Ou ke kali aku la e sese le kala lega. E o’o mai le ko’alua o Joe ua kaakia Joe I lalo a ua fai lega o le makou fa'ao'ogalima. Fa’ako’a oga iloa mai ga I kua I le fale fa’ako’a kamoe mai luma, faako’a oga iloa mai ga I le kaimi ga. E oo mai le ko’alua o Joe ii o lea e fai le vevesi lea, o lea ua kaakia Joe. Ae lei iai ga ia I le kaimi ga ku’i ai e Kelosia Joe.”
16. This establishes to my satisfaction Malia was present at the relevant time. It cannot be expected that witnesses to unforeseen and sudden events like this can recount with one hundred percent total accuracy every detail. Especially in a case like this where considerable time has elapsed since these events occurred. I am satisfied from the clear manner of Malia’s testimony that her evidence is sound and reliable.
17. Considering the evidence in totality I am satisfied beyond reasonable doubt that the defendants were part of the group that attacked the deceased on the night in question. Albeit at different points. The defendant Valentin is implicated by the testimony of his co-defendants Telosia and Pani. And the defendant Ulu by the testimony of Malia and his own relative Pani.
18. In reaching this conclusion I have been careful to consider only the evidence given by the witnesses in court and have not sought to rely on statements by one co-defendant against the other as contained in their respective cautioned statements.
19. I note defence counsel did not object to the cautioned statements being exhibited into evidence and used as a basis for questioning. But I have based my findings on the oral evidence adduced not on anything other than personal implications of liability contained in said cautioned statements.
20. There was some challenge in cross examination to the lighting conditions on the night in question but I am satisfied the light from the deceased’s house nearby as well as from Telosia’s vehicle itself, and the proximity of the parties to each other were sufficient to enable the witnesses to see what was unfolding before them.
21. I am also satisfied the group attack caused the fatal injuries sustained by the deceased as reported from the post mortem and the other reports produced. And that the defendants were part and parcel of a joint attack. They aided and abetted each other therein and were therefore responsible for the injuries that caused the death of the deceased.
22. To this extent I make the Coronial Finding that the deceased Joe Muliipu a male aged 29 years from Fasitoo-tai died on the night of 25 May 2017. The cause of death was fatal head injuries sustained in an unlawful assault by the defendants. And I further certify alcohol played a significant role in this tragic event and that the defendants have been dealt with according to law. Certificate to that effect to issue.
23. Defendants are accordingly found guilty as charged and will be remanded to a suitable date for sentence.

SENIOR JUSTICE NELSON