SUPREME COURT OF SAMOA
Police v Taimalie [2022] WSSC 4

Case name: 	Police v Taimalie	
		
Citation: 	[2022] WSSC 4	
		
Decision date: 	25 February 2022	
		
Parties: 	POLICE (Prosecution) AND IOPU TAIMALIE, male of Lauli’i. (First Defendant) AND IAPESA ELISARA, male of Masina Fagaloa and Lauli’i. (Second Defendant) AND ANZAC MATAVALE, male of Lauli’i. (Third Defendant) AND FEAGAIGA TOULI, male of Vaiusu-tai and Vaovai Falealili. (Fourth Defendant)	
		
Hearing date(s): 	21 February 2022	
		
File number(s): 	S700/18, Charging Document dated 28/08/18	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:	 	
		
Order:		
		
Representation: 	I Atoa and Ms Tiitii for prosecution
T Leavai for first defendant
C Vaai for second defendant
M Soonalole for third defendant
M Leung Wai for fourth defendant	
		
Catchwords: 	-	Withdrawal of information with leave -	
		
Words and phrases:		
		
Legislation cited:	 Criminal Procedure Act 2016, sections 19(5) and 55(1) and (4)
Crimes Act 2013, section 130	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

IOPU TAIMALIE, male of Lauli’i.
First Defendant

AND:

IAPESA ELISARA, male of Masina Fagaloa and Lauli’i.
Second Defendant

AND:

ANZAC MATAVALE, male of Lauli’i.
Third Defendant

AND:

FEAGAIGA TOULI, male of Vaiusu-tai and Vaovai Falealili.
Defendant

Counsel:	
I Atoa and Ms Tiitii for prosecution
T Leavai for first defendant
C Vaai for second defendant
M Soonalole for third defendant
M Leung Wai for fourth defendant

Hearing:	21 February 2022

Decision:	25 February 2022

DECISION OF THE COURT
(Application to withdraw charges)
Background
1.	Pursuant to information S700/18 the defendants are jointly charged that at Laulii on 04 April 2018, they did by an unlawful act viz assault cause the death of Ioane Mulivai a 24 year old male of Fusi, Safata and thereby commit the crime of murder.  The first three defendants are from the village of Laulii and the fourth defendant is from Vaovai, Falealili and was the driver of the taxi that transported the deceased victim from Laulii to the Police Station in Apia.  Subsequently the prosecution by charging document dated 28 August 2018 also charged the defendants jointly with manslaughter presumably as an alternative charge.
2.	The facts insofar as they are relevant are that the deceased was a passenger in the fourth defendants taxi on the night in question.  He had flagged the taxi down at Siusega in Apia and asked to be driven to Laulii; at Laulii he asked to be driven inland.  The deceased is unknown to the fourth defendant.  Upon arrival inland the deceased fled without payment of his taxi fare. 
3.	He was chased by some villagers and at some stage was caught and assaulted.  According to an affidavit by the fourth defendant filed for the purposes of bail, he was instructed by the villagers to transport the deceased to the Apia Police Station in the boot of the taxi. Because he was afraid he agreed. He opened the boot from inside the vehicle, the deceased was placed inside and the boot was closed. There is a suggestion from some of the witnesses there was difficulty in shutting the boot but eventually, it was able to be closed.  The witnesses generally agree that at this time the deceased was still alive.
4.	The four defendants with the Fourth Defendant driving then drove the deceased to the Apia Police Station some eight (8) or so kilometers distant.  There were some initial noises made by the deceased from the boot as heard by a fifth occupant of the vehicle, the 19 year old Tyson Autufuga who caught a lift in the vehicle to the Mormon Church compound on the main road.  He described the noises as “tatu’i mai e le tagata lea e i tua o le keli”.  This is confirmed in the third defendants cautioned statement to the Police.  There is no evidence of any further noises during the trip from the deceased or the boot. 
5.	Upon arrival at the Apia Police Station and unlocking of the boot, the deceased was found to be unresponsive.  One of the Police officers noted his upper body was cool and “E leai se ta’agulu na ou lagonaina poo se sela poo se isi lava fa’ailoga e ta’u mai ai ia te a’u, se manavanava o lenei alii.”  He was rushed to hospital where he was declared dead on arrival.
6.	The pathologists report indicates the cause of death to be: “Direct Cause - blunt force head injury” said to be “consistent with blunt force contacts.”  The postmortem examination revealed no surface injuries to the head but there was a subarachnoid hemorrhage over the vertex or top part of the brain.  As well there was subcuticular bruising over the right and left temporal regions as well as the central forehead.  In plain language, death was due to internal bleeding over the surface of the brain caused by the head injuries.
7.	The pathologist also noted external abrasions to the right and left chest wall as well as the right knee and above the right heel. As the postmortem examination was carried out some three (3) weeks post-death, it is possible these abrasions were originally more extensive but this would depend on the conditions of storage of the body.
Prosecution application
8.	 The prosecution now apply pursuant to sections 19(5) and 55(1) and (4) of the Criminal Procedure Act 2016 (CPA) to withdraw the charges of murder and manslaughter and substitute therefore a charge that at Laulii on 04 April 2018 the defendants did unlawfully detain the deceased without his free and voluntary consent and thereby commit the crime of kidnapping in breach of section 130 of the Crimes Act 2013.  Section 19(5) of the CPA allows the prosecution to add an additional charge to a charging document while section 55 deals with the courts power to amend charges.
9.	The prosecution application is somewhat misconceived.  Applications to the Supreme Court for withdrawal of a charge are governed by section 54(2) of the Criminal Procedure Act which provides: 
“54. Withdrawal of information with leave – 
(2) Any information or charging document laid in the Supreme Court may be withdrawn by the prosecutor with the leave of a Judge at any time during the hearing.”
Withdrawal of a charge is therefore at the discretion of the court which should be satisfied the application rests on proper grounds.
10.	Section 55 applies to the amendment of charges already before the court and speaks of these things being done “during the trial” section 55(1) and “at the trial” section 55(2).  It seems what the prosecution are initiating here is a pre-trial application to withdraw their original charges and charging document and substitute with the new one charging kidnapping.
11.	Defence counsels made no submissions and not surprisingly completely supported the prosecution application.
Discussion
12.	The difficulty I have with the prosecution application as expanded upon by prosecution counsel at the hearing is I disagree with their assessment of the evidence and therefore the basis of their application that there is no evidence to substantiate either homicide charge.
13.	I accept the evidence does not prima-facie support proceeding with murder but it does support a prosecution for manslaughter for the following reasons:
(i)	The statements of their witnesses on file indicate that a call was made by a woman of the village to pursue the deceased who had not paid his taxi fare.  The first and second defendants and another relative Solomona responded: see statement of Sosefina Faamao who says:
“O le taimi lea na ou valaau ai loa agai i isi o’u taseni (cousins) lea e i tai mai o lo matou fale.  Na ou valaau i le igoa o Solomona, o leisi o’u tei (cousin) e tamomo’e mai e tuli atu le alii la ua alu ae le totogia lana taxi.  Sa ou vaai o Solomona, Iopu ma le faiava o Iapesa na tamomo’e mai ma tuliloa le tagata lea ua tamo’e mai agai i tai.”
(ii)	For this purpose, the third defendant gave the first defendant a torch: see third defendants statement to the Police;
(iii)	The witness Sosefina goes on to say at the end of her statement:
“O le taimi foi lea na ou fesili ai loa ia Solomona poo le a le mea na tupu.  Ae fai mai ai loa Solomona ia te a’u, “na tasi a lana tu’i alu ane i lalo”, o atu ai loa Iopu ma Iapesa latou fasia ai loa. Na fa’aauau le ma savaliga agai i tai ma lo’u toalua.”
As Solomona has not been charged, presumably he is being called as part of the prosecution case against the others.  This is clear eye witness testimony of an assault by at least two of the defendants upon the deceased.
(iv)	Even without the evidence of Solomona, there is a case based on circumstantial evidence to go to a panel of assessors as against the first and second defendants as there is no evidence to suggest the deceaseds fatal head injuries were sustained other than by way of an assault. Whether there was impaired consciousness etc or environmental suffocation as noted by the pathologist and whether there were as a matter of provable facts contributory causes of death does not alter the fact that as noted by the pathologist, the “direct” and operative cause of death was the head injury.
(v)	In any event these are matters a panel of assessors are fully competent and best placed to decide upon after hearing all of the evidence.  
Conclusion
1.	I agree the evidence placed before the court does not support a charge of murder, even on the basis of intent as defined by section 99(d) of the Crimes Act.  The application to withdraw that charge is granted.
2.	Leave to withdraw the alternative charge of manslaughter as against the first and second defendants is denied for the reasons given. 
3.	But is granted in respect of the third and fourth defendants there being insufficient evidence against them, the cautioned statement of the third defendant being more exculpatory than incriminatory of him.
4.	The charge of kidnapping as against all defendants remains as it was not the subject of any application but the prosecution should file a new charging document reflecting the changed situation. 
5.	The proceedings are adjourned to Monday 07 March 2022 to set a new trial date.  The defendants should formally plead to the additional charge of kidnapping.  Given this matter is now going on four years old, some priority should be given to a fixture.
6.	The record to note that the court has already issued an order prohibiting publication of the factual details of this matter so as not to prejudice the defendants right to a fair trial before an independent tribunal of assessors or otherwise. Given the nature of the present inquiry, some other judge should be assigned to hear these proceedings.

JUSTICE NELSON