IN THE SUPREME COURT OF SAMOA
Police v Lam [2020] WSSC 21

Case name: 	Police v Lam	
		
Citation: 	[2020] WSSC 21	
		
Decision date: 	Oral Decision: 19th December 2019
Written Decision with reasons: 7 February 2020	
		
Parties: 	POLICE (Informant) and KOLANI JUNIOR LAM (Defendant).	
		
Hearing date(s): 	30th September; 01st, 02nd, 03rd, 04th, 07th, 08th, 09th, 10th, 11th, 15th, 16th October 2019.	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu.	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	The charge of murder is proven beyond reasonable doubt. As such, the sentence of life imprisonment applies automatically.

I find beyond reasonable doubt that the defendant, Kolani Lam assaulted Talei Kelsall by placing his hand around her chin. 

I also find beyond reasonable doubt that Kolani Lam did say to Meaalii to say that she did not know when asked about the rope was with no other reason other than to interfere with the police investigation from him as a suspect and is therefore an attempt on his part to defeat the course of justice.	
		
Representation: 	L. Su’a-Mailo & A. Matalasi for Prosecution
K. Koria for the Defendant	
		
Catchwords: 	Judge alone trial – murder – manslaughter (alternative) – assault – attempt to defeat the course of justice – intermittent neck compression – strangulation – circumstantial evidence – hearsay warning – domestic violence – charges proven beyond reasonable doubt.	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 ss. 99; 100; 102; 108; 123; 141;
Criminal Procedure Act 2016 ss. 6(2); 125; 126;
Evidence Act 2015 ss. 2; 10(1).	
		
Cases cited:	Police v Pio [1999] WSSC 50 (12 April 1999).	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

KOLANI JUNIOR LAM

Defendant

Counsel:		L. Su’a-Mailo & A. Matalasi for Prosecution
			K. Koria for the Defendant 

Hearing:		30th September; 01st, 02nd, 03rd, 04th, 07th, 08th, 09th, 10th, 11th, 			15th, 16th October 2019

Closing submissions:	07th November 2019

Written Decision:	7 February 2020

DECISION OF JUSTICE TUATAGALOA
This is the full written with reasons of the oral decision delivered on 19th December 2019. 
Introduction
1. 	The offence of murder or any other where the penalty is life imprisonment is usually trial by assessors. This case however was by Judge alone pursuant to section 125 of the Criminal Procedure Act 2016 (CPA 2016). Prior to the current CPA 2016 under the Criminal Procedure Act 1976, cases where penalty for the offence is life imprisonment was always by assessor trial. The CPA 2016 introduced the alternative where one could opt for trial by Judge alone where an assessor trial would have been the only option. This is the first Judge alone trial of a murder charge under the Criminal Procedure Act 2016. 
2. 	In an assessor trial, the trial judge is the authority on the law and is to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt with the assessors as finders of facts. At present, I am the finder of facts and the authority on the law which is no different from the role of the Judge in any other case that comes before the Court. 
The charges
3. 	The defendant is charged with three offences: 
(i) 	Murder;
(ii) 	Manslaughter (alternative);
(iii) 	Assault; and
(iv) 	Attempt to defeat the course of justice 
4. 	The defendant, Kolani Lam, is charged with the murder of his wife, Justina Sa’u, in the early hours of Sunday 21 October 2018. An alternative charge of manslaughter was also filed against Kolani Lam.
5. 	Kolani Lam is also charged with the offence of assault against Talei Kelsall, the daughter of Justina Sa’u that occurred sometime between July – September 2016.
6. 	Kolani Lam is further charged with attempting to defeat the course of justice by (allegedly) saying to Meaalii Tualagi that if she is asked by the police, to say she did not see or know of a rope.
7. 	There are three victims pertaining to the different charges: the victim of the first two charges is Justina Sa’u while the victim of the assault is her daughter Talei Kelsall. The fourth charge involves the babysitter Meaalii Tualagi with the victim being the Police or the justice system.
Elements of the charges
8.	Murder
(a) 	That the defendant, Kolani Lam committed an unlawful act;
(b) 	The unlawful act caused the death of Justina Sa’u; and
(c) 	That at the material time, Kolani Lam had the criminal intent to kill Justina Sa’u or that he caused bodily harm known to him to cause death but was recklessly indifferent. 
9.	Manslaughter
(a) 	That the defendant, Kolani Lam, committed an unlawful act; and
(b) 	The unlawful act caused the death of Justina Sa’u.
10.	Assault
(a) 	The defendant, Kolani Lam applied force to Talei Kelsall;
(b) 	The application of force was intentional; and
(c) 	The defendant did so without lawful justification.
11.	Attempt to defeat the course of justice
(a) 	That Kolani Lam attempted to defeat the course of justice by telling Meaalii what to say if the police questioned her about the rope.
Onus/Standard of Proof	
12. 	The prosecution carries the onus of proving any criminal charge or offending beyond reasonable doubt. This onus remains with the prosecution and never shifts to the defendant.
13. 	The prosecution relies on circumstantial evidence to prove the charge of murder against the defendant, Kolani Lam. All facts need not to be proved beyond reasonable doubt, only the elements of each charge.
I will deal with the Murder charge first
(i)	Murder
Background to Murder

14. 	The Defendant is charged of murdering his wife, Justina Sa’u, in the early hours of Sunday, 21 October 2018. The evidence is that Kolani, his wife Justina, Junior Maiava (cousin) and Sio Aukusitino (family friend) were drinking behind the house.  At around 1.00 am Junior and Sio left. Kolani and Justina continued sitting outside and talking to finish off their drinks when Kolani then asked Justina (words to the effect) on her opinion of how he looks (“O le a sau vaai ia a’u?”). Kolani was referring to his physique as he had been working out in order to look good for his wife. Justina responded that he looks alright but went on further and made a remark that her late husband had a nice body. Kolani in his evidence said he was not happy and he told her (more or less) to shut up (ku’u loa), got up and went inside the house to check on his children. According to Kolani  he had only gone in for 10-15minutes, but when he came out Justina was hanging from the vineta or starfruit tree at the back of the house not far from where they had been drinking.
 The cause of death
15. 	According to the forensic pathologist, Dr Paul Botterill, the cause of death was by intermittent neck compression. Although many of the individual injuries found on the deceased may occur in hanging, it was his opinion that,“Multiple foci of bruising in the subcuticular tissues of the neck is extremely uncommon for hanging...” and “...the sum of the features favour strangulation by use of fingers, use of rope, or both.” Dr Botterill said that the multiple foci of injuries in his opinion is most likely caused by the application of multiple points of force such as multiple fingertips.
16. 	With the absence of another possible explanation and the positive findings of multiple foci of injuries or bruisings within the tissues of the neck; damage to the voice box region and the presence of  petechiae (red spots) in both whites of the eyes and over the skin of the neck upward, it is Dr. Botterill’s opinion that strangulation is the most probable cause of death.
Case for the Prosecution
17. 	Based on Dr Botterill’s opinion, the prosecution case is that the defendant, Kolani Lam, strangled his wife Justina Sa’u with his hands. This (the prosecution say) took place inside their bedroom; then the defendant, Kolani, took his wife Justina outside and staged the hanging to make it look like Justina committed suicide.
18. 	Prosecution relies on circumstantial evidence to invite the inference that it was the defendant who strangled his wife.
19. 	The prosecution called 26 witnesses – the police, a forensic pathologist, relatives, babysitters, work colleagues and close friends.
Case for the Defence
20. 	The defence case is that the deceased, Justina Sa’u, committed suicide and therefore died from neck compression by partial hanging. 
21. 	The defence suggests through the evidence of the defendant and his sister Fuapepe Lam that Justina Sa’u was under financial pressure and under a lot of stress due to the demanding nature of her job as CEO. This, they suggest led to Justina taking her life.
22. 	The defence also says that the defendant, Kolani is not a violent person capable of murdering his wife.
23. 	The defence called 3 witnesses – the defendant, his ex-partner Aiva Kalati and his sister Fuapepe Lam. 
The issues
24. 	The issues are:
(i) 	Did Justina Sa’u commit suicide by partial hanging from the starfruit tree behind their home? or
(ii) 	Did the defendant, Kolani Lam kill his wife, Justina Sa’u?
25. 	When considering the evidence, I should remind myself of the need for caution. First, the charge of murder is based on circumstantial evidence. Secondly, the review of the evidence must also take the hearsay dimension into account.
Circumstantial evidence
26. 	Circumstantial evidence is often compared to strands in a rope.  One strand may not be very strong but a number of interwoven strands may make a strong case. That is, evidence of two, or three, or more independent facts all pointing in the same direction, that may be more reliable than the evidence of one witness.
27. 	As such, I am entitled to draw inferences. An inference is a conclusion that is drawn from established facts (or from evidence that is accepted as reliable). An inference is not a guess, but rather a logical deduction from such facts. Inferences drawn from circumstantial evidence is best put by Wilson J in Police v Punaoupu Pio as follows:
	“When considering circumstantial evidence, I need to consider it all, and I need ultimately to decide whether I can act upon inferences drawn from facts which I do find proved. Ultimately, I need to decide whether I can draw the inference of guilt.”
Hearsay Warning
28. 	Hearsay statement is defined under section 2 of the Evidence Act 2015 to mean a statement: (a) made by a person other than a witness or (b) offered in evidence at the proceeding to prove the truth of its contents. Section 10(1) provides for an exception to the exclusionary rule to hearsay.
29. 	Under section 10 the criteria for admissibility of hearsay are: (a) the unavailability of the original maker of the statement (easily satisfied in the present case) and (b) reliability (which is usually more challenging). 
30. 	There is a lot of hearsay evidence in this case both from the prosecution evidence and also the witnesses for the defence, including the defendant himself. This is as to what they say the deceased Justina may have said to them (or in their presence) when she was alive. The defence disputes this evidence by the prosecution. 
31. 	For those reasons, I need to exercise caution as there is a risk that this evidence may be unreliable for two reasons:
(i) 	First, I need to be satisfied that Justina did say what the witnesses say she said. To do so, I need to consider the purpose the statement was made, the circumstances in which the statement was made, the accuracy of what was said and the veracity of the person making the statement. You will recall the questions put to the prosecution witnesses of what Justina alleged to have said to them or in their presence; the time of the day or night it was made and the circumstances in which the statement was made; and 
(ii) 	Second, is what weight to give to any statements made would depend on the relevance of the statement(s) made. That is, the nature and content of the statement. 
32. 	The case was without a doubt highly emotional. Aside from the police officers and the forensic pathologist, every other witness who gave evidence was connected to either the deceased or to the defendant by blood or as close friends or as work colleagues.
33. 	It is expected that there would be inconsistencies between witnesses. Witnesses do not all see the same things.  Witnesses do not place the same weight on what they see.  Witnesses may also have different abilities to recall matters from memory. A witness needs to be not only honest and sincere, but also reliable and credible.
34. 	As my role is to determine whether the Prosecution has proven the elements of the alleged offences beyond reasonable doubt, it is necessary for me to resolve primary disputes over the facts; the weight to be accorded to circumstantial evidence and what inferences could be drawn from them, and what weight to attribute to any hearsay statements.
 The evidence
(a)	Drinking Culture 
35. 	It is very clear from the evidence (including the defendant himself) that the defendant is a heavy drinker and would drink on a daily basis. On most occassions when the defendant and his late wife drink, they would always have a ‘misa’or ‘vevesi’ (either verbal arguments, physically abusing the deceased or both); and their ‘misa’or ‘vevesi’ always took place in private after their drinking mates had left leaving just the two of them. At that time, the only other person at home other than Kolani, Justina and their children was the babysitter.
(b) 	Violence
36. 	The defence witnesses Aiva (defendant’s former partner) and Fuapepe Lam (defendant’s sister) basically say that the defendant is not a violent man and therefore, is not capable of murdering his wife, Justina Sa’u. Aiva gave evidence that only once in the beginning of their relationship did the defendant slap her and he never hit her again over the years they were together. Fuapepe Lam says that Kolani probably comes across as an arrogant person but his family knows him as a caring and loving person.   
37. 	The defence says that the babysitters’ evidence was largely based on opinion and hearsay. I disagree. The babysitters are entitled to form an opinion based on what thay have observed. I have had the opportunity to observe each babysitter whilst giving evidence and find their evidence as follows:
37.1	Mele or Mariana Laban – Mele is the sister of Justina’s sister in-law (Carena’s aunty); she was the nanny for Faasamoa and Talei when they were young (Justina’s older children)  and then again in 2017 for six (6) months looking after when Justina and the defendant’s child Julani who was born in 2016. Mele was Justina’s sister in law.
37.2	Mele spoke of the time when she was nanny for Justina’s two older children Talei and Faasamoa, living at Ululoloa with just Justina and her children as her husband had passed away. She said Justina was a bubbly person, always happy and as a family they were always doing things together – they would go out to dinner, to the movies or just stay home and watch TV. Justina and the children went overseas and she talked about going on another trip with the children. When Justina met the defendant and married him, Justina changed. Justina was no longer the bubbly happy person she knew.  
37.3	Mele spoke of the following incidents that she either witnessed or heard:
•	Table incident –  Mele spoke of her first night at Sinamoga; Kolani was drinking with friends while Justina went to a meeting at 6pm and came back at 8pm; came in to the room and got Julani and then went to their room to sleep. At about 1.00 am in the morning she heard Kolani saying loudly or yelling, “Ga e migoi...” she came out to see what was going on and saw Justina under the table being the fourth leg holding the table up while Kolani was eating. Everytime the table would move Kolani would yell to Justina that it was moving. For a husband to make his wife do this is disrespecful, it is an act so demeaning and belittling.  The incident paints a picture of the emotional abuse Justina suffered from in their relationship. A serious act that on all levels is not acceptable for any wife or anyone to be treated in such a way. It certainly shows the defendant as a controlling husband.
•	Fan incident - One time during the night she heard things being thrown around in the bedroom; she asked Kolani about it the next day while Justina was at work and he said to her that he was angry with Justina for waking him to get the baby’s medicine; so he got up and hit the standing fan and the head fell off to which he got hold of and threw it at Justina and he did not know whether it hit her on the stomach or her back. When Mele went to tidy up their room, she saw the fan stand lying under the power outlet while the fan head was disbanded from the stand and under the bed. 
•	Justina crying – One night she heard Justina crying out loud; again she asked Kolani about it the next day and he told her that he had a dream that Justina was having an argument with his mother. He woke up to Justina facing him sleeping and he punched her on the mouth. That night her, Justina and the children went and stayed at her house at Ululoloa, which they usually go to when Justina and the defendant fight.
37.4	Mele says that the defendant would get angry if he asks Justina to have a drink but she does not want to. Justina would drink to keep the peace and to avoid any confrontation later on. However, almost everytime after drinking the defendant and Justina would have a vevesi or a fight.
 37.5	Mele said that Justina never talked to her or tells her of anything that may be going on in their relationship hence the reason why she asked Kolani. She relayed the table incident to her sister who is married to Justina’s brother when she went home in the week end; she went to work on Monday and Justina told her to never tell of anything that goes on at Sinamoga. 	
38. 	It was obvious from the tone of this witness and the way she looked when giving evidence her distaste of the defendant. She relayed what she saw and heard, not what she was told. This makes her evidence very convincing and credible. Her recollection of what she saw and heard was very vivid. It certainly leaves a very intense impression of the defendant and the kind of relationship the defendant had with his late wife. 
39. 	The witness Lele Fuapauna is Justina’s first cousin on her father’s side. She worked for Justina and Kolani in July 2016 as a babysitter/housegirl for less than 2 months. Lele spoke of an incident late at night when she saw Kolani shaking Justina while she was pregnant with their first child Julani and said to her in a threatening tone,“Poo le a le mea e magao ai,” (what does she want).She said that she was told not to turn up anymore and does not know why but it was after the choking incident of Talei (see [75] – [77]). 
40. 	Meaalii Tualagi was the live in babysitter and would only go home on Saturdays. Meaalii is not related to either Kolani or Justina. She would be the longest babysitter Kolani and Justina had right up to Justina’s death. She gave evidence that she started seeing the defendant’s violent behaviour in the first week she started. Her evidence is, she has seen the defendant hit his late wife a number of times, saw him strangling his late wife from behind while she was sitting on a chair and his late wife saying to him that he may as well strangle her to death (or words to that effect) – “..sili ai le tago e kikiga ia oki ua le lava pologa..”; and together with Justina’s daughter, Talei saw Kolani throwing a pot at Justina hitting her on the head.      
41. 	The defence says that Meaalii Tualagi should not be believed because she made two completely different statements to the Police. The defence suggests that the second statement by Meaalii to the Police where she basically says that Kolani is a violent man who physically abused the deceased was very much influenced by the deceased’s family. I disagree.
42. 	The two statements Meaalii made to the Police (26/10/18 & 18/5/19) are different in content but not inconsistent. She said her statements were her responses to the questions asked of her by the police officer who interviewed her. That, it was the police who came and took her for the second interview or statement not any member of Justina’s family. 
43. 	I find her to be a credible witness. She was able to describe her evidence as she had seen it and at times demonstrated what she saw and how she saw it. Her evidence was not shaken even under heavy cross examination. She stood her ground and maintained her evidence as she had seen and heard.
44. 	The evidence of Mareta Lam (Kolani’s aunty) spoke of Kolani’s weakness being alcohol. She only ever had to go to Kolani’s house once and it was when she heard him shouting to his children and hitting the furniture against the wall/fence on the outside porch. 
45. 	Sera Mosese, Justina’s Executive Assistant said that she saw bruises on Justina’s arms and at one time her eyes were all red and puffy as if she had cried the whole night before.
46. 	The common thread from the three babysitters’ evidence is that Kolani Lam has a tendency to be violent especially so when under the influence of alcohol. The inference is, they always have their fights behind close doors once their friends have left.  Mele says that it is almost everytime after drinking that the defendant and Justina would have a vevesi or a fight. Meaalii from her observations of the defendant, said the defendant was arrogant who did not have any respect for his late wife by the way he talked at her and how he ordered her around.
47. 	The evidence as to the violent nature of the defendant is overwhelming. It can be drawn from the evidence that the relationship between the defendant and his wife was dysfunctional – he was controlling, abusive and a violent man. Justina seemed like she lived in fear and it was like she was walking on eggshells, always trying to keep the peace and do all she could so that Kolani would not get angry.
(c)	How Justina was found
48. 	According, to the defendant who was the last one to see Justina alive, he only went in the house for 10-15 minutes to check up on the children and when he came back outside Justina was not where they had been drinking, and it was at this very moment he saw Justina hanging from the starfruit tree behind the house not far away from this spot. The defendant told Sio a different version of what took place the night before. 
49. 	The defendant’s evidence is that he found Justina hanging from the starfruit tree with her feet on the ground and her knees bent – “O la e grounded lelei oga vae a o lae e bend oga knees.” He tried to make her stand up but everytime he tried in order to loosen the noose she woud drop back down again. If her feet were on the ground why would he try to stand her up instead of just cutting the rope from the tree? His explanation does not make any sense. 
50. 	The first people to arrive at the scene after Kolani had found Justina dead was the defendant’s first cousin Ronald Lam and within five minutes his wife Precious. Ronald said when he got there Kolani was under the vineta tree with Justina lying on the ground.  The defendant told Ronald the same story that he went inside to check on the kids for a short time, came outside, Justina was not where they usually drink but was hanging from the vineta tree. When the prosecution pressed him with the question on how long he went inside for, Kolani at first said he did not know but it was not long, and then said about 10 minutes, and then later said 10-15 minutes. 
51. 	Their evidence is, Justina was lying on the ground. Precious saw the deceased still had her shoes on and she was the one who them took them off her feet before she was taken inside the house and she noticed that the front of  Justina’s feet were all dirty. I find this evidence at odds with the defendant’s evidence, and the fact Justina’s  shoes remained on her feet despite all that the defendant said he did when he tried to release Justina from the noose and/or the tree she was hanging from.
52. 	Mareta Lam (Ronald’s mother) was next to arrive.When she arrived Justina was already inside the house. She went with Ronald to take Justina to the hospital. When asked why Kolani did not go to the hospital with them she said because he was still drunk. Kolani stayed saying that there was no point for him to go because Justina is dead and he may as well stay back with his kids; and also because there was no one to look after them at that time. 
53. 	Anne Trevor, Justina’s cousin was the first member of Justina’s family to arrive at the hospital and see Justina since she was found dead. Anne found on the front of Justina’s dress an earring while the other earring of the pair was found on their bedroom floor by Meaalii Tualagi. Meaalii Tualagi confirmed the dress (Exhibit P8), the shoes (Exhibit P12) and the earrings (Exhibit P6) as those that Justina wore when she dropped her (Meaalii) off at her home at Laulii around mid morning of Saturday, the day before she died.
(d)	Did Justina Sa’u commit suicide by hanging herself?
54. 	The forensic pathologist’s findings, are supported by the evidence that the deceased, Justina Sa’u, could not have committed suicide by partial hanging.
54.1	The forensic pathologist’s findings
•	Dr Botterill examined nine (9) injuries in total: 4 surface injuries; 7 injuries under skin’s surface in the neck; and 2 injuries in the lower face under the skin surface. The Dr says that some of the skin or surface injuries may be responsible for some of the bruisings under the skin. . This means that the four (4) surface injuries would be responsible for four (4) under the skin bruising, thus the reason why the Doctor refers to the injuries that he examined as being nine (9) in total.
•	Dr Botterill says that all these (9) injuries could not have been caused by hanging alone or “simple ligature”. 
•	The defendant’s version of what took place when he found the deceased hanging from the vineta tree was put to Dr Botterill to suggest having caused all the injuries but Dr Botterill says that any one of the nine (9) injuries could be caused by hanging, or resuscitation or movement of the rope but can not account or explain the multiple foci of injuries on both sides of the deceased’s neck and damage to her vocal chords which in his opinion are most likely caused from strangulation by hand.  
•	Dr Botterill finds that none of the bruises in the neck area occurred after death, they occurred before death. That is, bruising does not occur after death because (he says) you need a functioning heart to pump blood out of the blood vessels. 
•	Furthermore, Dr Botterill says that a Toxicology or Histology tests have the possibility to assist but would not have made a difference to the cause of death..
54.2	It was physically impossible for the deceased to hang herself and die within 10-15 minutes that it took for the defendant to go inside the house. The rope that Justina was alleged to have used to hang herself had been identified by several witnesses as the rope that hangs or is tied to the eaves at the back of the house behind the back door. The witness Sio Aukusitino and Meaalii Tualagi say that the rope is tightly knotted to the eaves. To untie will take some time and perhaps strength but also Justina would have to stand on something high to reach the knot. There is a small wooden platform (or shelf) at the back door and in the evidence of Meaalii Tualagi she herself cannot reach the eaves to untie the rope she would have to put a chair on this platform in order to reach the knot. The last person to have seen the rope still hanging from the eaves at the back of the house was Meaalii Tualagi on Saturday morning when she hung the mop before Justina drove her home. 
54.3	Vineta (starfruit) tree – The vineta tree is not tall, the branch that Justina was said to have hung herself from is not a big branch (the inferences to be drawn from that evidence is, the branch could not have possibly sustained the deceased, that is, the branch would have broken). The defenant, said the vineta branches hang down, “E falala mai lalo ona la la.” The defendant also said that Justina’s feet were on the ground with her knees bent when he found her. 
	The photos in Exhibit P1 showed the vineta or starfruit tree as it was at the time of death. The photos (1 & 3) show the tree with branches hanging low as in the evidence of Kolani. Photos 8 & 9 are close ups of the branch (with the rope) that had been cut that Justina was alleged to have been found hanging from. The tree is the same tree shown in Exhibit P4 photos. Exhibit P4 showed the vineta tree to have been pruned. The branch that Justina alleged to have hung from is marked with an asterix (*) in photo 2, below the branch the police officer in the photo is reaching up to.  
	A scene visit confirmed that the vineta tree is not a big tree and was already pruned. The branch that Justina is said to have hung from is not high off from the ground and one could easily reach it.
	Justina is said to be about 165cm in height; that means she would be about 5’5.  The evidence of Sofia Evile and Anne Trevor is that the vineta tree is a low tree with very low branches. They said the branch Justina alleged to have hung from was just above their heads easily reachable with a grip.Both Sofia and Anne are said to be of the same height as Justina.
(e)	Was there evidence of suicidal behavior? 
55. 	There was no evidence of the deceased being suicidal or has ever attempted to commit suicide before. The inference to be drawn from the evidence before the court is that Justina had so much to live for – she made future travel plans with her girlfriends (Talei to the Rugby World Cup 2019); future overseas holidays with her family (she said to the defendant and to witness Fiti Leung Wai); a successful hardworking CEO who had just renewed her employment contract for a third term (evidence of ACEO Fainuulelei Ah Wai); and she loved her children. 
56. 	There is also the evidence that whenever the defendant and the deceased would have a fight the deceased would always go to her cousin, Anne Trevor’s house or at one time the deceased went and slept at the house behind the main house.
57. 	The evidence of the night of Justina’s death was that everything was alright (Sio/Junior Maiava), Kolani and Justina waltzed while they (Sio/Maiava) were there. In fact, if anyone was  angry, it was the defendant when Justina made mention of her late husband’s physique after Sio and Junior had gone home. Why would Justina hang herself when there is no evidence of her being angry prior to her death?
58. 	Dr Botterill found no peel fragments or tablets in the deceased’s stomach contents that would have indicated that the deceased may have previously attempted to commit suicide. He also found no other features externally on the deceased body (scars over the wrists or previous neck injury marks) to have suggested previous suicide attempts by the deceased.
59. 	In summary, the forensic pathologist says it is extraordinarily unlikely that all those neck injuries were self inflicted. In his 30 or so years of practice he has never seen a case where such number of injuries are known to be self inflicted. He added that one can perhaps inflict some but certainly not all the injuires as he examined on Justina’s body.
60. 	Justina from the evidence is a private person. She does not tell her family (least of all her mother) what is going on in her marriage not even to her best friends (Talei and Fiti) or very close cousin (Anne Trevor).  Fuapepe Lam’s evidence where she spoke of Justina confiding in her, and it seemed like Justina was having financial problems and was overworked completely contradicts the evidence of those who have known Justina for such a long time. I do not accept her evidence over the evidence of Justina’s best friends, work colleagues and family members.  
(f)	Was a third person involved? 
61. 	It is not possible to draw an inference of the involvement of a third person who could have strangled the deceased from the evidence that is before the court for the following reasons:
(i) 	On the defendant’s own account he was the last person to see the deceased alive shortly before he said he found her hanging from the tree. 
(ii) 	Dr Botterill was asked by Counsel for the accused as to taking swabs from underneath the deceased’s fingernails. Dr Botterill said this would be routinely in Australia but this is not the case in Samoa and that DNA test is not available. A DNA test could have excluded the presence of the defendant and any third party but Dr Botterill said there were no injuries that would suggest direct fingernail damage on the deceased  to warrant taking a swab and a DNA test. 
(iii) 	The whole evidence before the Court does not suggest the presence or the likelihood or suspicion of the involvement of a third party. My impression of defence counsel’s question of the taking of a fingernail swab was in relation to the possibility of a struggle to discount the prosecution’s case that Justina was strangled by the defendant; that there would be a struggle if she was indeed strangled. On this point, Dr Botterill says that the bruisings on the neck can be obvious signs of struggle during strangulation. 
(g)	Where was Justina Sa’u strangled?
62. 	Where Justina Sa’u was strangled whether in the bedroom or elsewhere is not crucial to the findings of the Court as to the cause of death. What is important is the findings based on facts before the Court to prove whether or not it was the defendant who actually strangled the deceased with his hands. 
63. 	In any event, the prosecution claims that the defendant strangled his wife Justina Sa’u in their bedroom and then dragged her outside and staged the hanging to make it look like she committed suicide. 
64. 	According to the evidence of Kolani who was the last person to see Justina, Justina was outside where they were drinking that night when he went in to check on the children. This is what he told everyone except Sio Aukusitino who said that Kolani told him that when they (Sio/Junior Maiava) left, he and Justina went inside, ate and then went to their room to sleep; they lay on the bed talking and that Justina kept getting up to go to the bathroom and at some point he fell asleep, woke up and she was not in bed.  That Kolani told him that he went to look for her and that’s when he found her hanging from the starfruit tree. Kolani denied having said any such thing to Sio and basically saying that Sio was lying.  
65. 	Sio strikes me as a simple man and he describes things as he saw and heard (or was told). He does not strike me as someone who is capable of making up such a story in detail and especially when he is considered as family by the defendant’s family.  Sio is not related to the defendant’s Lam family but has been living with the defendant’s family for more than twenty years. How could Sio know such specific details as to what the defendant and Justina did that night such as not going to sleep but they lay there for a while talking, and that Justina got up a couple of times to go to the bathroom.  How would Sio know of such details? 
66. 	There is the earring that was found on the floor of the bedroom by the babysitter Meaalii with the other pair found by Anne Trevor on the front of Justina’s dress at the hospital. The question is, how come one earring was found on Justina and the other on their bedroom floor? The pair of earrings was Talei Kelsall’s gift to her mother (Justina) for mothers’day. Meaalii said that Justina was wearing the pair of earrings and the pink elei dress on the Saturday (day before she died) when she dropped her off at home. 
67. 	Kolani agreed when asked by the prosceution that the pair of earrings worn by Justina could only fall off from her ears if there is a struggle. Doctor Botterril himself said that strangulation presupposes a struggle. 
 Defendant’s evidence
68. 	I find that the defendant seems to contradict himself. His evidence is when he went inside Justina was standing behind the back door but he told Ronald and the others when he went inside the house Justina was still outside where they were drinking. According to the witnesses, Kolani told them that he went inside to check on the children he never told them that he went inside because he was angry when Justina made the remark about her late husband’s body. Sola Malele said that the defendant told him of Justina talking about her late husband’s muscular physique but the defendant was referring to a different day not the night before or shortly before Justina died. 
69. 	Furthermore, according to the evidence of Sio, the defendant told him a different version of what took place different from what he told the others. I also find the defendant’s evidence very peculiar as to how long he went in to the house. The more the prosecution questioned him, of what he did when he went inside the house and certain distances within the house and to outside, the more he would change his responses. At first he said he went in not long, then he said he went in for 10 minutes, and then later on said 10 – 15 minutes. 
70. 	One cannot help but wonder if there is some pretense because on the one hand we are told of the defendant  If this your wife that you truly loved dearly, and you know this would be the last time you would ever see her body before she is buried, wouldn’t the thought of seeing her this one last time be something he would make sure would happen? When prosecution pressed him with their questions he seemed agitated and would respond in an angry tone. 
71. 	I find the defendant’s reaction or behaviour peculiar right from the beginning following the discovery of Justina’s body. He called Justina’s friends, Talei Westerlund and Fiti Leung Wai and cousin Anne Trevor and everyone else using Justina’s phone except Justina’s mother and her daughter. He was asked why he did not call Justina’s mother and his response was because he did not know the number, when Justina’s phone he was using would have the mother’s number.  I find it odd where the defendant would say one thing yet his actions and behaviour is completely the opposite.  For example, we are told that he was crying for his wife and telling others he wanted to die as well; yet on the other hand he chose not to go when she was taken to the hospital, nor did he try all he could to make sure he would attend her funeral service to say his final goodbyes before her burial. At times when the prosecution pressed him with their questions he seemed to get agitated and would respond in an angry tone. 
72. 	I did not find the defendant credible. I find his evidence to be pretentious and conceited.
I turn now to consider the other two charges
(ii)	Assault
73. 	Assault is the application of force to the person of another, intentionally and without lawful justification.
74. 	The defendant, Kolani Lam is charged with assaulting Talei Kelsall the daughter of Justina Sa’u sometime between 1 August – 30 September 2016. The evidence is the alleged assault took place in 2016 while Justina Sa’u was in New Zealand to give birth to Julani which she did on 27th September 2016.
75. 	Talei Kelsall gave evidence that Kolani held her by the neck. Kolani himself said he placed his hand on her chin to raise her head up to look at him. Talei at the time (2016) was 12 years’ old. It was clear that the defendant was not happy with Talei on this day, he was at the time drinking, and that he went in to the bedroom where Talei and Carena were. Carena Evile gave evidence that the defendant came into the room grabbed Talei by the hand and pulled her off the bed to stand up; the defendant then held her by the throat and said to Talei that he owned the house and everything in it.  Carena said that Talei was teary eyed and looked liked she was having difficulty breathing. Carena said she cried and told the defendant to stop. She then ran out to Lele. Lele confirmed in her evidence Carena running out to the kitchen to get her. She went to the bedroom and found Talei lying on the bed crying. 
76. 	Kolani said that he cupped Talei’s chin to make her look up. It was clear from his evidence that he was not happy when his daughter Gizelle cried and more so when he spoke to Talei but Talei walked off to the bedroom and slammed the door behind her. He also admits that he had already started drinking on that day. 
77. 	The defendant by placing his hand around Talei’s chin is without a doubt, an assault. I find that the defendant did not choke Talei because if he had there would or should have been some bruising or marks on Talei’s neck but there were not any. However, I find that having his hand around Talei’s chin places the defendant’s hand in her neck region. The evidence of Talei is best taken to mean, that, that was how she felt at the time when the defendant placed his hand around her chin. The defendant was clearly angry, was under the influence of alcohol and he was yelling at Talei, who was 12 years old would no doubt felt so scared; that she felt choked because she could not breathe and her vision got blurred because she was teary eyed as observed by her cousin Carena Evile.  
(iii)	Attempt to defeat the course of justice
78. 	Kolani Lam is also charged with attempting to defeat the course of justice by saying to Meaalii to say certain things to the police if she is asked about the rope at the time of the police investigation. Again the defence says that Meaalii Tualagi should not be believed because she made two completely different statements to the Police. 
79. 	For reasons already discussed in paragraphs [42] – [44] above I find Meaalii to be a credible witness and I believe her evidence that Kolani plead to her  to help him out by saying that she did not know of a rope if she is asked by the police - “..a fesili aku leoleo ia oe pe ga e iloa se maea fai i ai e ke le’i vaai i se maea, fai i ai o le kaimi ga ua le maukogu lou mafaufau a ia ou alofa aku i oga mafakiaga la e i ai.”
Findings
Murder
80. 	Much weight is placed by the Court upon the findings of the forensic pathologist, Dr Paul Botterill as to the cause of death; this together with the inferences drawn from the circumstantial evidence assisted the Court as to whether the charges (especially that of murder) against the defendant could be proven beyond reasonable doubt.  
81. 	In summary, the following facts are established from the evidence before the Court: 
(i) 	That there were only two people present at the time of Justina Sau’s death – they were the defendant, Kolani Lam, and the deceased, Justina Sa’u;
(ii) 	Accordingly, the whole night prior to Justina’s death was a good night, “pau a le mea sa ou disagree ai ole kalagoa mai ia Johnny ou ke le fia faalogo ai, I did not want to listen to it.” It is clear from Kolani’s evidence that he was angry at Justina when she started talking about her late husband;
(iii) 	There was no evidence or it was not possible to draw an inference of the likelihood of the involvement of a third party;
(iv) 	The defendant, Kolani Lam, has a tendency to be violent and abusive towards the deceased especially so when he is under the influence of alcohol;
(v) 	The defendant drinks almost every day and is a heavy drinker. The deceased according to evidence, would drink with him to ‘keep the peace’ as the defendant would always make a fuss if she didn’t;
(vi) 	 On almost every occasion when the defendant and deceased would drink they would always have a fight;
(vii) 	The defendant is a violent and very abusive man; 
(viii) 	There is no evidence of any suicidal behavior of the deceased, Justina Sa’u. Justina was a successful CEO and the type of person who was always optimistic and forward thinking with future plans in place for her job, with her friends and also her family;  
(ix) 	That Justina did not die from any other known cause other than from strangulation by hands.
(x) 	For these very reasons and those in paragraph [54] it was impossible for Justina Sa’u to have committed suicide; 
82. 	I find beyond reasonable doubt that:
(i) 	The defendant, Kolani Lam strangled Justina Sa’u with his hands; 
(ii) 	That Justina Sa’u died from intermittent neck compression by strangulation; 
(iii) 	The defendant, Kolani Lam at the time he applied intermittent neck compression to Justina Sa’u intended for her to die. The defendant, could have at any timestopped and released the compression if he did not intend for her to die but he did not. Instead, the defendant, Kolani kept at it until she died;
(iv) 	It can also be inferred from the severity of the injuries the defendant inflicted on the deceased in the vicinity of her neck that he acted with murderous intent.
83. 	The charge of murder is proven beyond reasonable doubt. As such, the sentence of life imprisonment applies automatically. 
Assault
84. 	I find beyond reasonable doubt that the defendant, Kolani Lam assaulted Talei Kelsall by placing his hand around her chin. 
Attempt to defeat the course of justice
85. 	I also find beyond reasonable doubt that Kolani Lam did say to Meaalii to say that she did not know when asked about the rope was with no other reason other than to interfere with the police investigation from him as a suspect and is therefore an attempt on his part to defeat the course of justice. Why else would he have said those words to Meaalii? 

JUSTICE TUATAGALOA