IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

LUPEMATASILA FAAMANU, MISA GAGA’E, LUPEMATASILA SAIPANI, NANAI SIAKI, NANAI VE’A and FILIPO FAASAVALU all of Matautu, Falelatai.
Accused

Counsel: P Chang and K Koria for prosecution
L T Malifa for accused

Hearing: 12, 13, 26, 27, 28 August 2008; 4, 18, November 2008; 
17, 18, 19 February 2009 

Submissions by prosecution: 5 March 2008

Submissions by accused: 16 March 2009

Judgment: 31 March 2009

JUDGMENT OF SAPOLU CJ

Introduction 
1.	This has been a prolonged and protracted trial for reasons known to counsel on both sides.

2.	There are six accused and four charges that the Court has to deal with in this judgment.

3.	All the six accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki, Nanai Ve’a and Filipo Faasavalu are males from the village of Matautu, Falelatai. They are jointly charged that at Matautu, Falelatai, on 15 July 2005 they wilfully set fire to a building, namely, the dwelling house of Anae Taeoalii, thereby committing the crime of arson: s.112 (a) Crimes Ordinance 1961.

4.	The four accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki are also jointly charged that at Matautu, Falelatai, on 15 July 2005 they wilfully obstructed Inspector Talosaga Time, Inspector Aneteru Tago, Chief Fire Officer Tony Hill, Sergeant Niko Vili and the whole team of police officers in the execution of their duties: s.10 (1) (a) Police Offences Ordinance 1961.

5.	The said four accused are also jointly charged that at Matautu, Falelatai, on 15 July 2005 by words ufa, kefe, aikae ese ma le nuu they threatened Inspector Talosaga Time, Inspector Aneteru Tago, Chief Fire Officer Tony Hill, Sergeant Niko Vili and the whole team of police officers with intent to intimidate them in the execution of their duties: s.10 (1) (c) Police Offences Ordinance 1961.

6.	The same four accused are also jointly charged that at Matautu, Falelatai, on 15 July 2005 they threw objects, namely, beer bottles, to the danger of persons: s.26 Police Offences Ordinance 1961.

7.	All four charges fall within the jurisdiction of the District Court but both District Court Judges disqualified themselves from hearing this case. So the charges were transferred for hearing to this Court.

8.	I should mention here that one of the accused, namely, Nanai Lopa who is also a male of Matautu, Falelatai, was jointly charged with the obstruction of the police in the execution of their duties and with throwing objects to the danger of persons. At the commencement of this trial on 12 August 2008, he changed his plea of not guilty to the charges against him to one of guilty. He has already been sentenced and he was called as a witness by the prosecution.

Relevant statutory provisions

9.	Section 112(a) of the Crimes Ordinance 1961, which creates the offence of arson provides as far as relevant:

"Everyone commits arson and is liable to imprisonment for a term not exceeding 5 years who wilfully sets fire to…

"(a) any building…"

10.	Section 10(1) (a) of the Police Offences Ordinance 1961 which creates the offence of wilful obstruction of any constable in the execution of his duty provides as far as relevant:

"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)…wilfully obstructs any constable in the execution of his duty or any person acting in aid of any such constable".

11.	Section 10(1) (c) of the Police Offences Ordinance 1961 which creates the offence of threatening any constable in the execution of his duty provides:

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

"(c) by word or action threatens any constable with intent to intimidate him in the execution of his duty".

12.	Section 26(1) of the Police Offences Ordinance 1961 which creates the offence of throwing a stone or other thing at or to the danger of any person provides:

"Every person who throws or discharges any stone or other thing at or to the danger of any person, whether or not the stone or thing actually hits any person, commits an offence and is liable to imprisonment for a term not exceeding one year".

The evidence

(a)	Background

13. 	By way of background, this case originated from differences between Misa Pita a matai of Matautu, Falelatai, and other matais of his family, namely, the Sa Misā family, because of saofai’s (bestowal of matai titles).

14.	As a consequence, the Sa Misā family imposed a banishment order against Misa Pita. That banishment order was subsequently endorsed by the village council of Matautu, Falelatai.

15.	Misa Pita then lodged a petition in the Land and Titles Court against the imposition of the banishment order on him. Prior to the hearing of the said petition, the village council of Matautu, Falelatai, had met three times and decided that whatever was to be the outcome of the petition by Misa Pita, he and his family would be banished from the village. This implies that another banishment order would be issued by the village council on top of the banishment order that was the subject of Court proceedings.

16.	At the hearing of the said petition by the Land and Titles Court in 2005, the two opposing parties were Misa Pita and his family on one side and the Alii & Faipule of Matautu Falelatai, on the other. Misa Pita was the leader of his party whereas the accused Lupematasila Faamanu was chosen to lead the party of the Alii and Faipule of Matautu, Falelatai.

17.	At the conclusion of the hearing, the Land and Titles Court reserved its decision. That decision was delivered on Friday, 15 July 2005. In terms of the Court’s decision, the banishment order that had been imposed against Misa Pita was set aside. In effect, Misa Pita was free to return to Matautu, Falelatai.

(b)	The events which followed the Land and Titles Court’s decision.

18.	Following the delivery of its decision by the Land and Titles Court, the Alii and Faipule of Matautu, Falelatai, together with a large number of people from the village who had come to Mulinuu to witness the delivery of the Court’s decision, returned in buses to Falelatai. Misa Pita and members of his family who were present at the delivery of the Court’s decision, did not go to Falelatai.

19.	On arrival of the Alii and Faipule at Falelatai, a meeting of the village was summoned. This was about 2pm in the afternoon. Amongst the matais of the village who were present at that meeting were the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki. There is no evidence that the accused Nanai Ve'a who is also a matai of the village and the accused Filipo Faasavalu who is not a matai were present at that meeting.

20.	At that meeting the Alii and Faipule decided, without any dissent, to impose another banishment order against Misa Pita and his family. The terms of the banishment order that the meeting agreed upon were that Misa Pita and his family were to leave the village by 4pm the same day or else " ua mū le foaga." There was some dispute as to the meaning of the words " ua mū le foaga". This dispute, at times, seems to overlook the fact that I am also a Samoan with knowledge and understanding of the Samoan language and custom.

21.	I accept that the words "ua mū le foaga" when included in the terms of a banishment order issued by a village against someone is a clear indication to the person banished that most serious consequences, including the burning of houses, will follow if the banishment order is not complied with.

22.	After the village had decided on the banishment order and its terms, the accused Misa Gaga’e was chosen to deliver the banishment order to the family of Misa Pita. Accompanying Misa Gaga’e to deliver the banishment order were many matais of the village including the accused Lupematasila Faamanu, Lupematasila Saipani and Nanai Siaki. There were also many taulele’a (untitled men).

23.	This group of matais and taulele’a then went to the house of Anae Taeaoalii, the late father of Misa Pita. Upon their survival, the only person who was at the house of Anae Taeaoalii was the witness Tilomai, a woman who is married to a member of Misa Pita’s family.

24.	Misa Gaga’e then spoke on behalf of the village and delivered the banishment order stating that Misa Pita and his whole family were banished from the village and were to leave the village by 4pm the same day; if they fail to do so " ua mū le foaga". The matais and taulele’a then dispersed. 

(c)	The events which followed the delivery of the banishment order

25.	Two sets of events followed after the delivery of the banishment order against Misa Pita and his family. The first is that shortly after the delivery of the banishment order, the accused Lupematasila Faamanu, Misa Gaga’e, and Lupematasila Saipani and the witness Misa Galo came to Apia in Misa Galo’s pick-up vehicle to the office of Lupematasila Faamanu for Lupematasila Faamanu to get some money. The second set of events was members of Misa Pita’s family in Apia coming to Falelatai.

26.	I will refer first to what happened during the second set of events and then to what happened during the first set of events.

27.	Apparently, after the banishment order was delivered to the family of Misa Pita, the woman Tilomai contacted Misa Pita and his family in Apia about it. This was about late afternoon on Friday, 15 July 2005.

28.	Somehow the village came to know that members of Misa Pita’s family in the Apia area had been contacted and were coming to Falelatai with firearms.

29.	The village then sent out a "manu" which was a call to all members of the village of Matautu, Falelatai, to assemble at the "maota" (residence) of Misa Esau the then most senior matai of the Sā Misā family. Every member of the village was also required to bring with him whatever weapon he could bring. This "manu" was referred to in the evidence as the "first manu" and it was carried out by the witness Ailao Liu an orator of the village. The matais and taulelea of the village who heard or were told of the manu assembled at the house of Misa Esau. Apparently, they were all armed.

30.	It appears from the evidence that after the village had assembled, members of the family of Misa Pita arrived with firearms in pick up vehicles and went straight to their family’s house. This was the house of Anae Taeaoalii. It must have been a very tense and dangerous situation at that time.

31.	Fortunately, the police who had been contacted by Misa Pita for assistance soon arrived in numbers from Apia and Faleolo. With tactful and diplomatic application of Samoan custom by police inspectors Galumalemana Aneteru Tago and Tevaga Kapeli Su’a in their negotiations with the members of Misa Pita’s family on one hand and Misa Esau and the village on the other, the police managed to diffuse what was a very tense and dangerous situation. Full credit goes to the police that the situation did not get out of hand.

32.	Members of Misa Pita’s family agreed to the police to return to Apia. On the other hand, at the meeting between the village and the police, Misa Esau, on behalf of the village, spoke to the police that nothing further would happen and the village would protect the house of Anae Taeaoalii. The matais Lupematasila Faalogoifo and Lupematasila Pesamino were also instructed to keep a watch over the house of Anae Taeaoalii. Apparently, the police had raised the safety of the house of Anae Taeaoalii with the village because of the concern by members of Misa Pita’s family that their family’s house might be set on fire by the village.

33.	After the meeting between the village and the police, and the police had left and the village dispensed, a "manu" was sent out to the village. This was the "second manu". The terms of this second manu were that the village had completed negotiations with the police and anyone who causes (or creates) any trouble (faalavelave) will be punished by the village (ole a fai iai le finagalo o le nuu). This manu was also carried out by the orator Ailao Liu.

34.	The accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Misa Galo were not present at the village when members of Misa Pita’s family and the police came to the village. They were also not present at the village when the police met with the village and the village agreed that nothing further would happen. They were also not aware of the two manus by the village. This was because shortly after the accused Misa Gaga’e had delivered the banishment order by the village to the family of Misa Pita, they came to Apia in Misa Galo’s pick-up vehicle to the office of the accused Lupematasila Faamanu.

35.	According to the evidence of these four accused, when they arrived in Apia they went to the office of Lupematasila Faamanu. They then drove around Apia. Lupematasila Faamanu also did some shopping for his mother. Later on, they went to Fugalei where they bought a box containing a dozen of large bottles of Vailima beer. They then headed back to Falelatai in Misa Galo’s pick-up drinking their beers on the way. When they arrived at Falelatai, they went to the shop of Lupematasila Asini.
 
(d)	 The events at the shop of Lupematasila Asini 

36.	After due consideration of the evidence, I have decided that where the evidence given by the prosecution witnesses Pita Tumusolia (Pita), Soane Lupematasila Filipo (Soane), Misa Galo and Uele Nanai differ from the evidence given by the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki, and Filipo Faasavalu as to what happened at the shop of Lupematasila Asini and the burning of the house of Anae Taeaoalii, the evidence of the said prosecution witnesses is to be preferred and accepted. 

37.	As to what happened at the shop of Lupematasila Asini, the prosecution witness Pita testified that at about 7pm on Friday evening, 15 July 2005, he and the witness Soane started drinking beer in the billiard room at the shop of Lupematasila Asini. At about 8pm he observed the accused Lupematasila Faamanu, Misa Galo, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu coming into the shop. They had with them two boxes of beer. They then started drinking their beer. Pita and Soane then joined in and drank with the accused.

38.	Pita also testified that while they were drinking, Lupematasila Faamanu said, "ole po nei e mu ai le maota o Anae" (tonight the house of Anae will be burnt). When he heard that statement he felt very afraid.

39.	Pita further testified that when Lupematasila Faamanu made that statement, the other accused agreed with it.

40.	Later on between 8.30pm and 9pm, Lupematasila Faamanu bought from the shop a box containing twelve large bottles of coca cola filled with kerosene.

41.	All of them then left the shop carrying bottles of kerosene and walked to the house of Anae Taeaoalii. Pita said that while they were walking to the house of Anae Taeaoalii, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki instructed him and the witness Soane to go on first and start setting fire to the house of Anae Taeaoalii.

42.	When Pita and Soane arrived at the house of Anae Taeaoalii they were confronted by the prosecution witness Lupematasila Faalogoifo who was one of the two matais instructed by the village council, after its meeting with the police earlier on the same evening, to watch over the house of Anae Taeaoalii. Lupematasila Faalogoifo sent away Pita and Soane and they went to their houses without setting fire to the house of Anae Taeoalii.

43.	Pita also testified that while he was at his home he heard a manu of the village calling for help for the house of Anae Taeaoalii which was on fire. He then came with other people and tried to extinguish the fire by pouring water over it.

44.	At no time did the witness Pita mention the accused Nanai Ve’a in his evidence. 

45.	The witness Soane in his oral testimony said that he was drinking beer with the witness Pita inside the billiard room at the shop of Lupematasila Asini on Friday evening, 15 July 2005. At about 9pm, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu arrived inside the shop. Later, he said that the accused Nanai Ve’a and Misa Galo were also there with the other accused. All of the accused were drinking.

46.	According to Soane’s evidence, the accused Lupematasila Faamanu then raised with the other accused the burning of Anae Taeaoalii’s house. The accused Misa Gaga’e and Lupematasila Saipani replied to go and burn the house. Soane said he did not know whether any of the other accused said anything.

47.	Soane further testified that he and the witness Pita were the first to go to the house of Anae Taeaoalii. At that time, each of the accused mentioned, was holding kerosene bottles.

48.	Soane also testified that he and Pita met with Lupematasila Faalogoifo who sent them away. He and Pita then went to their houses.

49.	While he was at his house, he heard a manu of the village calling for help to extinguish the fire to the house of Anae Taeaoalii. He then went to the house of Anae Taeaoalii and poured barrels of water on the fire to try and put it out.

50. 	According to the evidence given by the witness Misa Galo, it was the accused Nanai Siaki who suggested to the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Ve’a to go and burn the house of Anae Taeoalii. Those accused then proceeded on the road to the house of Anae Taeoalii while he was following from a long way behind. He then turned off the road and sat at a nearby house as he did not want to go and burn the house of Anae Taeoalii.

51	The evidence of Misa Galo which suggests that he did not participate in the burning of Anae Taeoalii is supported by the fact that none of the other prosecution witnesses identified him at the scene of the arson.

52.	The prosecution witness Uele Nanai who works at the shop of Lupematasila Asini testified that on the night in question, the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki, Filipo Faasavalu and the witnesses Pita and Soane were drinking in the billiard room inside the shop of Lupematasila Asini. This witness then said that the accused Misa Gaga’e said to the others who were present to get ready to go and burn the house of Anae Taeoalii. Bottles of kerosene were then bought from the shop.

53.	Uele Nanai also said that those people he had mentioned then left the shop to go and burn the house.

54.	I have to note here that Uele Nanai never mentioned the name of Nanai Ve’a at any time in his evidence.

55.	It appears from the evidence of witnesses Pita, Soane, Misa Galo and Uele Nanai that it was the accused Lupematasila Faamanu, Misa Gaga’e and Nanai Siaki who suggested to burn the house of Anae Taeoalii.

(e) The burning of the house of Anae Taeoalii

56.	The prosecution witness Lupematasila Faalogoifo who is also a matai of Matautu, Falelatai, testified that on Friday, 15 July 2005 he was at his house which was quite close to the house of Anae Taeoalii. He said he had been instructed by the elder matais of the village to keep watch over the house of Anae Taeoalii so that nothing would happen to it as it had been agreed between the village and the police that the village would look after the house of Anae Taeoalii.

57.	At about 8pm that night, as a result of what his children told him, Lupematasila Faalogoifo came out of his house and found the accused Nanai Siaki and the witnesses Pita and Soane behind the house of Anae Taeoalii. Each of those men was under the influence of alcohol and was holding bottles of kerosene. Lupematasila Faalogoifo then asked Pita and Soane to give him their bottles of kerosene and to go away as the village had undertaken to the police that nothing else would happen. Pita and Soane obeyed and went away.

58.	Lupematasila Faalogoifo also testified that he asked the accused Nanai Siaki to give him the bottles of kerosene he was holding. He also told Nanai Siaki that he, too, was present when the village informed the police that nothing would happen to the house of Anae Taeoalii. However, Nanai Siaki replied that they had been instructed by Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani to come and burn the house of Anae Taeoalii. Lupematasila Faalogoifo said he then told Nanai Siaki to tell Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani that the house could not be set on fire because of the resolution by the village. Nanai Siaki then left and Lupematasila Faalogoifo went back to his house. 

59.	At about 10pm while Lupematasila Faalogoifo was at his house, he was shocked to see the house of Anae Taeoalii on fire. He ran out of his house and saw the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki coming out of the house of Anae Taeoalii. In the circumstances, Lupematasila Faalogoifo was quite confident in his evidence that it was those four accused who set fire to the house.

60.	Lupematasila Faalogoifo further testified that he said to Lupematasila Faamanu that the house of Anae Taeoalii was burning but what about his house which was close by. Lupematasila Faamanu replied that he would call the taulele’a (untitled men) to come and douse his house with water. That was never done.

61.	The prosecution witness Lupematasila Pesamino who was one of the matais instructed by the village to watch over the house of Anae Taeoalii and whose house was also close by to the house of Anae Taeoalii, testified that when he came to the house of Anae Taeoalii it was ablaze. At that time he saw the accused Misa Gaga’e, Lupematasila Saipani and Nanai Siaki moving around inside the house while the accused Lupematasila Faamanu was standing outside holding a bottle of kerosene. 

62.	Lupematasila Pesamino then pleaded with Lupematasila Faamanu to stop what was happening but the latter replied that he would call the taulele’a to come and douse his house with water if it catches fire. This witness then left to remove his vehicle which was parked nearby in case it was affected by the fire.

63.	The prosecution witness Ailao Liu testified that on the night in question he arrived at the scene of the fire at about the same time as Lupematasila Tusiga, Lupematasila Kolio and the taule’ale’a named Talitu Lefulefu. At that time, smoke was coming from the house of Anae Taeoalii and the fire had started. He saw the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki using bottles of kerosene to burn the house. Kerosene bottles were lit and thrown into the house.

64.	Ailao Liu then raised another manu calling on the village for help to put out the fire.

65.	The prosecution witness Lupematasila Tuliloaina testified that on the night in question he arrived at the scene of the fire at the same time as Ailao Liu, Lupematasila Tusiga, Lupematasila Kolio and Talitu Lefulefu. At that time, the fire to the house of Anae Taeoalii had already started. He saw the accused Lupematasila Saipani sitting at the back door of the house and he was overly drunk. 

66.	Lupematasila Tuliloaina also said that he and other people then tried to enter the house with water to try and put out the fire. However, they were hindered by the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki.
 
67.	Lupematasila Tuliloaina also said that the said accused tried to assault him and the other people who were trying to put out the fire. The said accused also told them they had no business to put out the fire.

68.	The evidence given by the prosecution witness Lupematasila Tusiga was that when he arrived at the scene of the fire, he tried to put out the fire by carrying a container of water to the flames. On his way to get a second container of water, he was met by the accused Lupematasila Faamanu who asked him who was putting out the fire.

69.	At that time, another matai Lupematasila Kolio was also trying to put out the fire by carrying water to the flames. Lupematasila Tusiga said he then saw the accused Filipo Faasavalu fighting with Lupematasila Kolio. That fight started inside the burning house and continued on outside.

70.	Lupematasila Tuliloaina also said that whilst he was trying to put out the fire, the accused Lupematasila Saipani punched him and pulled him out of the house. At that time he saw the accused Lupematasila Faamanu standing on the other side of the house.

71.	The prosecution witness Lupematasila Kolio testified that on the night in question when he arrived at the scene of the fire with the witness Lupematasila Ioane, one room of the house of Anae Taeoalii was already burning. At that time, he saw the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki walking around beside the house. He then tried to put out the fire by filling a barrel with water and carrying it to the flames. As he was doing so, the accused Filipo Faasavalu punched him on the face inside the house.

72.	The 62 year old prosecution witness Lupematasila Ioane, who came to the scene of the fire with the witness Lupematasila Kolio, testified that when they arrived the house of Anae Taeoalii was already burning. He then called out to put out the fire but the accused Misa Gaga’e told him it was better for him to go to the front in case he was affected by the fire. At that time, the accused Lupematasila Faamanu came and pulled his hand and took him to the front.

73.	Lupematasila Ioane also said that it was dark at the time but he saw the accused Lupematasila Faamanu, Misa Gaga’e, Nanai Siaki, Nanai Ve’a as well as Nanai Lopa walking around the house. He also saw Nanai Siaki pouring kerosene on the cement of the house.

74.	Sergeant Niko VIli who interviewed the accused Lupematasila Faamanu was also called as a witness by the prosecution to produce the cautioned statement made by that accused to the police. In that cautioned statement, Lupematasila Faamanu told the police that he was not happy with the decision of the Lands and Titles Court. His village had also banished all the heirs of Anae Taeoalii.

75.	Lupematasila Faamanu also told the police in his cautioned statement that he admits to participating in everything put to him concerning the charges and that the reason why the house was set on fire was because he was over drunk. When sergeant Niko Vili further asked Lupematasila Faamanu whether that means he admits to the charges put to him, he replied yes. 

76.	Corporal Sione Melefata who interviewed the accused Nanai Ve’a was also called as a witness by the prosecution to produce the cautioned statement made by that accused to the police. In his cautioned statement, Nanai Ve’a says that he advised the other accused not to set fire to the house of Anae Taeoalii but one of the other accused said "You have no liver (ake), the house of Anae Taeoalii should be burnt".

77.	Nanai Ve’a also told the police that the reason for his being banished from the village was because he uttered the cry of ususu twice that night. 

(f)	The events at the fale leoleo (watch-house)

78.	The prosecution witness Misa Galo also testified that while the house of Anae Taeoalii was still burning he came to the fale leoleo (watch house) of the village. There he saw the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki drinking.

79.	Soon afterwards, the police vehicles and a fire truck arrived. The said accused then rushed out of the fale leoleo and threw bottles of beer at the police vehicles and fire truck. The bear bottles hit the police vehicles and fire truck. The said accused then also threw stones. Misa Galo said he also heard swear words being uttered at the police. At that time it was about midnight.

80.	The prosecution witness Uele Nanai testified that while the house of Anae Taeoalii was still burning he saw the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani left the scene of the fire and went to the fale leoleo where they drank bottles of beer. He did not see anyone else at the fale leoleo.

81.	The police vehicles arrived while the said three accused were still drinking at the fale leoleo. Uele Nanai said that Misa Gaga’e then instructed him to stop the police vehicles. Lupematasila Faamanu then told the police to go back.

82.	The witness Uele Nanai also said that Lupematasila Famanu, Misa Gaga’e and Lupematasila Saipani threw empty bottles and stones at the police vehicles and uttered swear words at the police.

83. Police chief inspector Galumalemana Aneteru Tago who was also called by the prosecution as a witness testified that after the police returned from Matautu, Falelatai, in the early evening after they had been assured by the village elder matais that nothing would happen to the house of Anae Taeoalii, the police received another call at about 11pm the same night that the said house was on fire. The police then rushed back to Falelatai together with a fire truck. According to chief inspector Tago there were two police vehicles and a fire truck and he was in the first police vehicle.

84. When the police vehicle chief inspector Tago was travelling in was stopped, the chief inspector negotiated with the matai of the village named Nanai Lopa to let the police and the fire truck get to the burning house. Nanai Lopa refused. According to chief inspector Tago, an argument then developed between him and Nanai Lopa as the latter continued to refuse the police get to the burning house. At that time, the second police vehicle and the fire truck had also arrived.

85. Chief inspector Tago then heard what sounded like bottles and stones hitting the police vehicles and the fire truck. He realised then that bottles and stones were being thrown at the police vehicles and fire truck. Swear words were also being uttered at the police and the police were also told to leave the village. He became concerned about the safety of the police and fire officers and their vehicles. So he instructed them to turn their vehicles around and leave. At that time there were many objects being thrown at the police vehicles and fire truck. The fire truck and the police vehicle that chief inspector Tago was in were damaged.

86. Chief inspector Tago holds the matai title Galumalemana from Falelatai. He is a member of the village of Falelatai. He knows the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani. He testified that as the police vehicle he was in turned around to leave, he was able to see from the headlights of the police vehicle the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani nearby.

87. Corporal Saipani Leleimalefaga was also called as a witness by the prosecution. This witness testified that he was a member of police team that responded to the call that the house of Anae Taeoalii was on fire. He travelled in the same police vehicle as chief inspector Tago.

88. He said when their vehicle arrived at Falelatai, it was stopped by the matai Nanai Lopa who told the police to go back. As the police vehicle was turning around, bottles and stones were thrown at the police vehicles and fire truck. Corporal Leleimalefaga said he was able to see from the headlights of the police vehicle he was in the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani standing in front of a house which appeared to be a fale leoleo. There were other people but he could not recognise them as it was dark. He is confident that it was the said accused and the other people with them who threw objects at the police vehicles and fire truck and damaged the said vehicles.

89. Corporal Leleimalefaga also testified that swear words such as ufa, kefe and komo were uttered against the police. Voices also called out to the police to get out of the village, if they are seen again in the village something will happen to them.

Evidence of the accused in relation to the events at the shop of Lupematasila Asini, the burning of the house of Anae Taeoalii, and the events at the fale-leoleo

90. The evidence given by all the accused in relation to the events at the shop of Lupematasila Asini, the burning of the house of Anae Taeoalii, and the events at the fale-leoleo are in direct conflict with the evidence given by the witnesses for the prosecution on the most crucial aspects of this case.

91. According to the testimony of the accused Lupematasila Faamanu, when he, Misa Gaga’e, Lupematasila Saipani and Misa Galo returned from Apia in Misa Galo’s pick-up vehicle, he dropped off his mother’s shopping and they then went to the shop of Lupematasila Asini. At the shop of Lupematasila Asini, they bought and drank some more beers and played billiards. It was about 8:30pm on Friday night, 15 July 2005 and the prosecution witnesses Pita and Soane were also at the shop.

92. Lupematasila Faamanu said that Nanai Siaki then came to the shop and related to them what had happened at the village whilst he, Misa Gaga’e, Lupematasila Saipani and Misa Galo had gone to Apia. Nanai Siaki also said that the taulele’a had gone to burn the house of Anae Taeoalii. The witness Pita, who is an electrician, then intervened that he would go and electrocute the house of Anae Taeoalii.

93. At that time, according to Lupematasila Faamanu, Misa Galo said to Nanai Siaki that he talks too much but he should go and burn the house of Anae Taeoalii. At the same time, Misa Galo stood up and walked out. Lupematasila Faamanu said when he called out to Misa Galo to come back, Misa Galo replied he was going to burn the house of Anae Taeoalii. The witnesses Pita and Soane also left the shop at the same time as Misa Galo.

94. Lupematasila Faamanu further testified that he and the other accused then walked to the house of Anae Taeoalii whilst he was holding bottles of beer. When they arrived at the house of Anae Taeoalii, it was already burning and he did not know who had set fire to the house. He and the other accused did not want to enter the house because the accused Nanai Siaki had said that when he and chief inspector Tago inspected the house of Anae Taeoalii at the time the police first came to the village in the early evening, he saw sacks of what appeared to be explosives placed near every door inside the house.

95. Lupematasila Faamanu denied that he bought any kerosene for the purpose of burning the house or was involved in any plot to set fire to the house of Anae Taeoalii.

96. Lupematasila Faamanu also denied that he threw any objects at the police vehicles and fire truck or utter any swear or threatening words at the police. He said none of the police officers who gave evidence on this aspect of the case had testified that he actually saw him throw bottles or stones at the police vehicles and fire truck or utter swear or threatening words at the police. He also said it was the matai Nanai Lopa who stopped the police vehicles.

97. Lupematasila Faamanu, however, said that he knows chief inspector Tago who is a matai from Falelatai and that he, Misa Gaga’e and Lupematasila Saipani were in front of the fale leoleo when the police vehicles and fire truck arrived as the house of Anae Taeoalii was on fire and when the police vehicles turned around to leave the village.

98. The accused Misa Gaga’e testified that after the banishment order of the village was delivered to the family of Misa Pita, he came to Apia with Lupematasila Faamanu, Lupematasila Saipani and Misa Galo in Misa Galo’s pick-up vehicle for Lupematasila Faamanu to get some money from his office. They then drove around Apia. When they arrived back at Falelatai, it was about 8:30pm at night. They then went to the billiard table at the shop of Lupematasila Asini. At that time, Nanai Siaki and some taulele’a came and asked them where they had been.

99. Misa Gaga’e said he then went to the bathroom from where he heard Misa Galo urging the people in the store of Lupematasila Asini to go and burn the house of Anae Taeoalii. When he returned from the bathroom, there was no one in the store. He thought everyone must have followed what Misa Galo wanted to do. So he walked in the direction of the house of Anae Taeoalii holding his bottles of beer. When he arrived at the committee house he stopped and some of the matais, including Misa Galo, who were at the committee house told him that the taulele’a had gone to burn the house of Anae Taeoalii. Shortly afterwards, he saw the house on fire.

100. Misa Gaga’e in his evidence also denied that he obstructed the police when they arrived that night at Falelatai. He also denied the evidence of the prosecution witness Uele Nanai that he instructed that witness to go and stop the police vehicles. He further denied that he threw any bottles or stones at the police vehicles or the fire truck.

101. Misa Gaga’e said he was merely standing in front of the fale leoleo holding his bottles of beer when the police vehicles arrived and then turned around and left. He said that there were many people around at that time.

102. The accused Lupematasila Saipani testified that he came to Apia with Lupematasila Faamanu, Misa Gaga’e and Misa Galo in Misa Galo’s pick up to the office of Lupematasila Faamanu. When it was time for them to return to Falelatai, they stopped at Fugalei where they bought a dozen of large bottles of Vailima beer. They were drinking those beers while they were on their way to Falelatai.

103. When they arrived back at Falelatai, they went to the shop of Lupematasila Asini where they bought another two dozens of Vailima beers. The accused Nanai Siaki then arrived at the shop and told them what had happened at the village while they were away in Apia. At that time, the prosecution witnesses Pita and Soane were also at the shop drinking.

104. Lupematasila Saipani said they then went to the billiard room in the shop. Whilst they were playing billiards, the witness Misa Galo said to them: "It is so bad saying too much but not to go and burn the house; I am going to burn the house". They then followed where Misa Galo was going while every one of them was holding a bottle of beer. In front of the village church Lupematasila Faamanu gave him some money to buy more beers. He then gave that money to the accused Filipo Faasavalu to buy another dozen of Vailima beers.

105. Lupematasila Saipani further testified that from in front of the church, he saw the house of Anae Taeoalii was already on fire. He continued walking to the house but because he was drunk he went and sat near the back door of the burning house. At that time, someone who was running into the house stumbled over him. He followed that person into the burning house and punched him. This person is the prosecution witness Lupematasila Tuliloaina who testified that while he was trying to put out the fire, the accused Lupematasila punched him and pulled him out of the house.

106. Lupematasila Saipani also denied the evidence of the witness Misa Galo that it was the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani who threw bottles and stones at the police vehicles and fire truck. However, Lupematasila Saipani admitted that he did utter a swear word at the police. This was while he was at the fale leoleo. He gave an estimate of the distance between the police vehicles and the fale leoleo to be about the same distance between the Courthouse and Beach Road in front of the Courthouse.

107. The accused Nanai Siaki said that on the night in question he went to play billiards at the shop of Lupematasila Asini for an outing. There he met Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Filipo Fasavalu and Misa Galo. He did not see the accused Nanai Ve’a in the shop. He then related to those present what had happened when the members of the family of Misa Pita came to the village. What he said displeased Misa Galo who replied to him that he talks too much but he should burn the house of Anae Taeoalii. Nanai Siaki said that Misa Galo then stood up and walked out.

108. Nanai Siaki also denied the evidence given by the prosecution witness Ailao Liu who testified that he saw the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki using bottles of kerosene to burn the house. He also denied the evidence of the prosecution witness Lupematasila Ioane who testified that he saw Nanai Siaki pouring kerosene at the cement of the house. He also testified that he was not involved in the burning of the house.

109. The accused Nanai Ve’a testified that the reason why he was banished by the village was because he was drunk and he uttered the cry of ususu but not because he was involved in burning the house of Anae Taeoalii. This accused alas denied that he was present at the scene of the fire on the night in question.

110. As mentioned earlier, this accused told the police in his cautioned statement that he was at the shop of Lupematasila Asini and he advised the other accused not to burn the house of Anae Taeoalii but one of the other accused responded "You have no liver (ake,) the house of Anae Taeoalii should be burnt".

111. The accused Filipo Faasavalu testified that he works at the shop of Lupematasila Asini. There he saw the other accused. When he knocked off work and collected his wages none of the other accused was in the shop. He then went home. He caught up with the accused Lupematasila Faamanu and Lupematasila Saipani who both wanted to buy some more beers.

112. This accused said that he and Lupematasila Saipani then went and bought a box of beers. When they returned they saw the house of Anae Taeoalii was on fire. Lupematasila Saipani then went to the burning house first. He followed soon thereafter with only one thought in his mind and that was to assault anyone he found in the house. When he got into the house, he saw someone bending down and he thought that person was trying to lit another fire. So he punched that person. It turned out that person was Lupematasila Kolio, a matai of his family who was filling a container with water from a tap.

113. Filipo Faasavalu also denied any involvement in setting fire to the house.

Discussion 

(a)	The charge of arson

114. I have to say that I totally disbelieve the evidence given by the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu that they were not involved in setting fire or burning the house of Anae Taeoalii. I believe the evidence given by the witnesses for the prosecution against those accused.

115. As it will appear later, I have doubts about the accused Nanai Ve’a being involved in setting fire to the house of Anae Taeoalii.

116. Both the witnesses Pita and Soane testified that at the shop of Lupematasila Asini, it was the accused Lupematasila Faamanu who suggested that the house of Anae Taeoalii should be burnt that night. According to the evidence of the witness Misa Galo, it was the accused Nanai Siaki who suggested to the other accused to go and burn the house of Anae Taeoalii. The witness Uele Nanai in his evidence testified that the accused Misa Gaga’e told the others at the shop to get ready to burn the house of Anae Taeoalii. All of this evidence shows that the accused mentioned herein had a common intention to burn Anae Taeoalii’s house.

117. The witness Pita also testified that the other accused agreed with the suggestion by Lupematasila Faamanu. However, this witness at no time mentioned the accused Nanai Ve’a in his evidence. The witness Soane testified that when Lupematasila Faamanu raised the burning of the house of Anae Taeoalii at the shop, Misa Gaga’e and Lupematasila Saipani replied to go and burn the house of Anae Taeoalii. It was these three accused who went to Apia with Misa Galo in the pick-up of Misa Galo.

118. The accused Nanai Siaki, Nanai Ve’a and Filipo Faasavalu, as it appears from the evidence, only met up with the other three accused at the shop of Lupematasila Asini. In his cautioned statement given to the police, the accused Nanai Ve’a told the police that he had advised the other accused not to burn the house but one of those accused said to him "You have no liver (ake), the house of Anae Taeoalii should be burnt".

119. The witness Pita also testified, and I accept, that it was the accused Lupematasila Faamanu, who then bought a box containing twelve large bottles of kerosene from the shop of Lupematasila Asini. Pita said they then left the shop carrying bottles of kerosene and walked to the house of Anae Taeoalii. On their way, he and the witness Soane, both being taulele’a, were instructed by the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki to go first and start setting fire to the house of Anae Taeoalii. This is confirmed by the evidence of the witness Soane who said that he and Pita were the first to arrive at the house to be burnt.

120	Both Pita and Soane also said that when they arrived at the house of Anae Taeoalii, they were confronted by the witness Lupematasila Faalogoifo who sent them away. They then left without setting fire to the house. Lupematasila Faalogoifo in his evidence confirmed these parts of the evidence given by Pita and Soane.

121	I am satisfied from the evidence given by the prosecution witnesses Pita, Soane, Misa Galo and Uele Nanai as well as the evidence given by the other prosecution witnesses Lupematasila Faalogoifo, Lupematasila Pesamino, Ailao Liu, Lupematasila Tuliloaina, Lupematasila Tusiga, Lupematasila Kolio, Lupematasila Ioane and police sergeant Niko Vili that it was the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu who set fire to the house of Anae Taeoalii. This is the only realistic conclusion which can be reached on the evidence which I have decided to believe.

122.	The witnesses Lupematasila Faalogoifo, Lupematasila Pesamino, Ailao Liu, Lupematasila Tuliloaina, Lupematasila Tusiga, Lupematasila Kolio, Lupematasila Ioane all identified the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki at the house of Anae Taeoalii as it was burning. In fact those accused did admit in evidence that they were at the house of Anae Taeoalii as it was burning.

123.	The witnesses Lupematasila Tuliloaina and Lupematasila Kolio both identified the accused Filipo Faasavalu at the house of Anae Taeoalii as it was burning. In fact Filipo Faasavalu also did admit in evidence that he was at the house of Anae Taeoalii as it was burning.

124.	It was the witness Ailao Liu who testified that he actually saw the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki using bottles of kerosene to burn the house by litting those bottles and throwing them into the house. This ties up with the evidence of the witnesses Pita, Soane, Misa Galo and Uele Nanai as to what took place at the shop of Lupematasila Asini where Lupematasila Faamanu bought large bottles of kerosene for the purpose of burning the house of Anae Taeoalii. It is also quite consistent with the evidence given by the other prosecution witnesses as to what Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki were doing at the scene of the fire.

125.	What the accused Lupematasila Faamanu told the police in his cautioned statement which was produced by police sergeant Niko Vili, clearly shows that that accused set fire to the house of Anae Taeoalii. The reason that Lupematasila Faamanu gave the police for setting fire to the house of Anae Taeoalii was because he was over drunk.

126.	The evidence given by the witnesses Pita and Soane regarding the presence of the accused Filipo Faasavalu at the shop of Lupematasila Asini and his presence in the procession to the house of Anae Taeoalii as well as the evidence of the witnesses Lupematasila Tuliloaina and Lupematasila Kolio who identified Filipo Faasavalu inside the house of Anae Taeoalii, clearly show that Filipo Faasavalu was also involved in setting fire to the house of Anae Taeoalii or at least aided and abetted the arson that was committed.

127.	As for the accused Nanai Ve’a, it is clear that he did not go to Apia with the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani.

128.	The evidence given by the witness Pita was that while he was drinking with Soane at the shop of Lupematasila Asini, he observed the accused Lupematasila Faamanu, Misa Galo, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu coming into the shop. There was never any mention of the accused Nanai Ve’a in Pita’s evidence.

129.	Pita then said that whilst they were drinking with the accused, Lupematasila Faamanu suggested that the house of Anae Taeoalii should be burnt that very night. The other accused agreed but it is not clear whether Nanai Ve’a was present at that time as Pita never mentioned his name in his evidence.

130.	The evidence given by the witness Soane was that when Lupematasila Faamanu suggested to the other accused to burn the house of Anae Taeoalii, the accused Misa Gaga’e and Lupematasila Saipani replied to go and burn the house. Nanai Ve’a was present at that time with the other accused but Soane did not know whether any of the other accused responded to Lupematasila Faamanu apart from Misa Gaga’e and Lupematasila Saipani.

131.	The witness Uele Nanai in his evidence also never mentioned the accused Nanai Ve’a in relation to what he observed happened inside the shop of Lupematasila Asini.

132.	In his cautioned statement, Nanai Ve’a told the police that at the shop of Lupematasila Asini he advised the other accused not to burn the house but one of the other accused replied to the effect that he was a coward, the house of Anae Taeoalii should be burnt.

133.	In his oral testimony, Nanai Ve’a denied that he was at the scene of the fire and was not involved in burning the house. None of the prosecution witnesses identified Nanai Ve’a at the scene of the fire except for the witnesses Lupematasila Ioane who said he saw the accused Lupematasila Faamanu, Misa gagae, Nanai Siaki and Nanai Ve’a walking around the house.

134.	Lupematasila Ioane is 62 years old according to his own evidence. It is clear from his evidence that when he arrived at the scene, the fire had just started and it was dark. He was also at the scene of the fire for a relatively short period of time because the accused Misa Gaga’e told him it was better for him to go to the front in case he was affected by the fire. The accused Lupematasila Faamanu then came and took him to the front.

135.	None of the prosecution witnesses who were present for longer periods of time whilst the house was burning and were trying to put out the fire identified Nanai Ve’a at the scene of the fire. After due consideration of the evidence, I am not sufficiently confident about the accuracy of the evidence given by Lupematasila Ioane that he saw the accused Nanai Ve’a at the scene of the fire. It is somewhat surprising that if Nanai Ve’a was present at the scene of the fire, none of the other prosecution witnesses saw him there. As already mentioned, the evidence given by Nanai Ve’a was a denial that he was present at the scene of the fire.

(b)	The charge of obstructing the police in the execution of their duties

136.	The charge of obstructing the police in the execution of their duties relates only to the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani and Nanai Siaki. Here, I totally disbelieve the evidence given by the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani that they did not obstruct the police. I accept the evidence given by the prosecution witnesses Misa Galo and Uele Nanai that those accused obstructed, threw bottles and uttered swear and threatening words at the police when they arrived at Falelatai at the time the house was burning. The actions by those three accused of throwing bottles at the police vehicles and uttering swear and threatening words at the police also constituted obstruction.

137.	The evidence given by chief inspector Tago and corporal Leleimalefaga regarding their observations of the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani also go to support the evidence given by the witnesses Misa Galo and Uele Nanai.

138.	However, I am not satisfied that the accused Nanai Siaki was involved in obstructing the police. Only the witness Misa Galo said that Nanai Siaki was involved in obstructing the police. The other witness Uele Nanai mentioned only the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani as being involved in obstructing the police. He did not mention Nanai Siaki. Similarly, chief inspector Tago and corporal Leleimalefaga identified only the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani but not Nanai Siaki at the scene of where the police vehicles and fire truck were stopped and turned back.

139.	In these circumstances, I am not sufficiently confident that the accused Nanai Siaki was involved in obstructing the police.

(c)	The charge of threatening the police by words or actions with the intention of intimidating the police in the execution of their duties

140.	I am also satisfied from the evidence given by the witnesses Misa Galo, Uele Nanai, chief inspector Tago and corporal Leleimalefaga that the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani by their words and actions intentionally intimidated the police in the execution of their duties. More specifically, those accused, individually or in concert, uttered swear and threatening words at the police with the intention of intimidating the police in the execution of their duties. I do not accept the evidence of those three accused to the contrary.

141.	I am not, however, satisfied that the accused Nanai Siaki was involved in threatening the police by words or actions with the intention of intimidating the police in the execution of their duties. Only the evidence given by the witness Misa Galo suggested that Nanai Siaki was so involved. This is inconsistent with the evidence given by the witness Uele Nanai which mentioned only the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani but not Nanai Siaki. The evidence given by chief inspector Tago and corporal Leleimalefaga also did not identify Nanai Siaki but only Lupematasila Faamanu, Misa Gaga’e and Lupemtasila Saipani.

(d)	The charge of throwing objects to the danger of persons

142.	I am also satisfied on the evidence given by the witnesses Misa Galo, Uele Nanai, chief inspector Tago and corporal Leleimalefaga that the accused Lupemtasila Faamanu, Misa Gaga’e and Lupematasila Saipani did throw bottles at the police vehicles and the fire truck which caused damage to those vehicles and were to the danger of the police and fire officers concerned. I do not accept the evidence of those three accused to the contrary.

143.	However, I am not satisfied that the accused Nanai Siaki threw any bottles at the police vehicles and fire truck for the same reasons given in (a), (b) and (c).

Conclusions

144.	

(a)	I find the charge of arson to have been proved beyond reasonable doubt against the accused Lupematasila Faamanu, Misa Gaga’e, Lupematasila Saipani, Nanai Siaki and Filipo Faasavalu but not the accused Nanai Ve’a. The accused Nanai Ve’a is therefore acquitted of the charge of arson. There is no other charge against that accused.

(b)	I find the charge of obstructing the police in the execution of their duties to have been proved beyond reasonable doubt against the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani but not the accused Nanai Siaki. The accused Nanai Siaki is therefore acquitted of that charge.

(c)	I also find the charge of threatening the police by words or actions with intent of intimidating the police in the execution of their duties to have been proved against the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani but not the accused Nanai Siaki. The accused Nanai Siaki is therefore also acquitted of that charge.

(d)	I also find the charge of throwing objects to the danger of the police to have been proved against the accused Lupematasila Faamanu, Misa Gaga’e and Lupematasila Saipani but not the accused Nanai Siaki. The accused Nanai Siaki is also acquitted of that charge.

145.	As the accused Nanai Ve’a has been charged only with arson and he has been acquitted of that charge, that accused is discharged.

146.	This matter is adjourned to 17 April 2009 for pre-sentence reports and submissions by counsel on sentencing.

CHIEF JUSTICE

Solicitors
Attorney General, Apia, for prosecution
Sogi Law for accused