Revealed: What the Inquiry told our Cabinet

“It is indictment of the Commissioner’s performance and of his leadership that he was not able to implement these vitally important and sorely needed measures to lift the quality and general performance of the Police and Prisons Service”
– Commission of Inquiry

The former Police Commissioner, Lilomaiava Fou Taioalo’s performance was “below the standard” reasonably expected from someone holding his position.
As such, it was recommended to Cabinet that he be terminated.
So says the report by the Commission of Inquiry that investigated the capacity and performance of the Commissioner and an Assistant Commissioner, who had earlier resigned.
A copy of the report has been obtained by the Samoa Observer.
“We conclude that there have been acts and/or failures to act by Lilomaiava Fou Taioalo amounting to performance that is below the standard that reasonably must be expected from the Commissioner of Police in the performance of his duties and responsibilities,” the report reads.

“We conclude that as reflected in the Report of the Tafaigata Commission of Inquiry and as further explored in this Commission of Inquiry, Lilomaiava Fou Taioalo has behaved in a manner likely to adversely affect the confidence of the community in his ability to perform his role as the Commissioner of Police."

“In view of the foregoing we recommend that Lilomaiava Fou Taioalo no longer serve as Commissioner of Police.”

The Inquiry, headed by Ombudsman Maiava Iulai Toma, flows from “Cabinet’s apparent loss of confidence in Commissioner Lilomaiava” after an initial Inquiry confirmed a host of allegations at Tafa’igata – including corruption and mismanagement of the prisons.

The Inquiry was asked to focus on two issues. The first was whether Lilomaiava breached his duties as a Commissioner and whether such a breach affected the confidence of the community in the ability of the Commissioner to perform his role.

At the outset, the Commission put it to the two officers that in view of Cabinet’s implied loss of confidence in them, they could choose either to resign “or show the Commission that contrary to what may be advanced against them, there was no cause for their appointments to be terminated.”

Former Assistant Commissioner, Sala Seaga Uili resigned, leaving Commissioner Lilomaiava as the sole party of interest.

Lawyer, Diana Roma, represented the Commissioner. She objected at the outset to any suggestion that the Commission of Inquiry was a continuation of the Commission of Inquiry that produced the Report on Tafaigata Prison and Related Issues.

She was concerned that the Commissioner was made party to only part of the previous Inquiry and did not have the opportunity to examine many of the witnesses who gave evidence in that Inquiry.

Counsel Assisting explained that the Commissioner had been provided with all transcripts as directed by the Commission at the beginning of the Tafaigata Inquiry.

“We made it clear with respect to the concerns of Counsel for the Commissioner that the two Inquiries had very different objectives."

“The first Inquiry had completed its work and had reported. The current exercise flowed from that Report with a focus that was dictated by s55 of the Police Service Act."

“It was explained that while the purpose in this Inquiry was not to engage in a disputation of the findings of the first Inquiry the Commissioner would be allowed every opportunity to set any matter straight that he felt necessary to do and to call witnesses for that purpose."

“To that end the Commission would recall any witnesses that he required. Our hearings proceeded to the end without the Commissioner choosing to call anyone.”

Here is the report in full:

1. PREAMBLE
The texts of the Warrant of Appointment and the Terms of Reference for this Commission of Inquiry are reproduced below:

“WARRANT OF APPOINTMENT

I, TUI ATUA TUPUA TAMASESE EFI, Head of State of the Independent State of Samoa acting pursuant to Cabinet Directive [D,J, (14) Faapitoa 10] dated 6 May 2014 and section 4 of the Commissions of Inquiry Act 1964
APPOINT –

MAIAVA IULAI TOMA (CHAIRPERSON)

SU’A TANIELU SU’A

GATOLOAI TILI AFAMASAGA to be members of the Commission of Inquiry to inquire into and report to Cabinet and no one else, the matters relating to the subject matter in accordance with the Terms of Reference in [F.K. (14) Faapitoa 10] dated 6 May 2014 and section 55(4) of the Police Service Act 2009.

GIVEN under my hand on this 11th day of June 2014
(sgd) Tui Atua Tupua Tamasese Efi)
HEAD OF STATE”

“TERMS OF REFERENCE COMMISSION
OF INQUIRY (COI)
PERFORMANCE AND CAPACITY
To:

(a) inquire into the capacity and performance of the respective duties of the Commissioner of the Samoa Police Service, Lilomaiava Fou Taioalo (the “Commissioner”) and Assistant Commissioner of Police – Prison Services, Sala Seaga Uili Lafaele (the “Assistant Commissioner”) by:

(i) inquiring into the conduct and performance of the Commissioner and Assistant Commissioner in light of the findings in the Commission of Inquiry - Tafaigata Report of February 2014 (Tafaigata Report); and

(ii) inquiring into whether the conduct of the Commissioner and Assistant Commissioner in paragraph (a) (i) above breached the respective duties of the Commissioner and Assistant Commissioner; and

(iii) inquiring into whether in paragraph (a) (i) above, the Commissioner and Assistant Commissioner behaved in a manner likely to affect the confidence of the community in the respective abilities of the Commissioner and Assistant

Commissioner.

(b) report back, within 4 weeks, to Cabinet matters relating to its finding in paragraph (a) above; and

(c) make recommendations to Cabinet, based on its findings in paragraph (a) above, regarding the appropriate action to be taken by Cabinet with regards to the Commissioner and the Assistant Commissioner.”

2. INTRODUCTION

The Commission first sat on Tuesday 15 July 2014.

It had come to our notice in the days prior that there was confusion about this Inquiry. There was apparently some puzzlement as to its purpose and how it fitted into the sequence of related events. It seemed incumbent upon us to ensure that the affected parties fully understood what we were embarking upon and had availed themselves of regular opportunity to act in their best interests.

We were keenly aware of the fact that the officers involved had given long and presumably in the main, good service to Samoa. Also, this matter had dragged on for some time. The Commission took the opportunity in a brief statement at the outset to clarify and to put things in context.

The brief statement explained our understanding that having considered a Commission of Inquiry Report dated 14 February on Tafaigata Prison and Related Issues, as well as reactions and comments on it from Commissioner Lilomaiava Fou

Taioalo and Assistant Commissioner Sala Seaga Uili Lafaele, Cabinet was not of a mind to simply allow the two named officers to continue in their respective offices.

It was explained that from all that had transpired, this Commission understood Cabinet to now want to know the Commission’s views on the appropriateness or otherwise of Cabinet moving, in accordance with the processes contained in section 55 of the Police Services Act, to terminate the services of the two officers concerned.

We put it to the two officers that in view of Cabinet’s implied loss of confidence in them two options were open to them. They could choose either to resign their appointments or show the Commission that contrary to what may be advanced against them, there was no cause for their appointments to be terminated at this time under the processes of s55 of the Police Service Act. It was explained that should the resignation option be chosen we would need to ascertain whether

Cabinet was still open to such a course of action.

The Police Service Act does not provide for the resignation of the Commissioner in specific terms except to indicate that it is a matter governable by contract. We take the view that any matter governable by contract is a matter that is open at any time to agreement between the parties concerned.

The Commission adjourned immediately after our explanatory statement to give the two police officers opportunity to consider matters overnight.

Assistant Commissioner Sala chose to resign, and as it was subsequently indicated to the Commission of Inquiry that Cabinet would accept the resignation, the Assistant Commissioner was allowed to withdraw from the Commission of Inquiry proceedings on 17 July 2014 leaving Commissioner Lilomaiava Fou Taioalo as the sole party of interest.

Counsel Diana Roma appeared for Commissioner Lilomaiava.

Counsel for Commissioner Lilomaiava objected at the outset to any suggestion that this Commission of Inquiry was a continuation of the Commission of Inquiry that produced the Report on Tafaigata Prison and Related Issues. She was concerned that the Commissioner was made party to only part of the previous Inquiry and did not have the opportunity to examine many of the witnesses who gave evidence in that Inquiry.

Counsel Assisting explained that the Commissioner had been provided with all transcripts as directed by the Commission at the beginning of the Tafaigata Inquiry.

We made it clear with respect to the concerns of Counsel for the Commissioner that the two Inquiries had very different objectives. The first Inquiry had completed its work and had reported. The current exercise flowed from that Report with a focus that was dictated by s55 of the Police Service Act. It was explained that while the purpose in this Inquiry was not to engage in a disputation of the findings of the first Inquiry the Commissioner would be allowed every opportunity to set any matter straight that he felt necessary to do and to call witnesses for that purpose. To that end the Commission would recall any witnesses that he required. Our hearings proceeded to the end without the Commissioner choosing to call anyone.

3. BACKGROUND

The Commission of Inquiry Report on Tafaigata Prison and Related Issues (The Tafaigata Report) was highly critical of many aspects of the operations and management of Tafaigata Prison and of general policing. It had the effect obviously of undermining Cabinet’s confidence in Lilomaiava continuing as the Commissioner of Police.

The Inquiry in which we are now engaged flows from Cabinet’s apparent loss of confidence in Commissioner Lilomaiava and serves as prelude to the termination of his employment by Cabinet should this be justified by the conclusions of this Inquiry.

S 55 (4) of the Police Service Act requires an inquiry specifically into the performance or capacity of an incumbent Commissioner prior to a termination of such Commissioner. For this Inquiry our Terms of Reference require us to focus on two issues:

(i) breach of duty; and

(ii) behaviour likely to affect the confidence of the community in the ability of the Commissioner to perform his role.

Section 55, in the context of breach of duty, points specifically to “poor performance” and directs attention to section 48 for elaboration on dealing with it.

Section 48 assumes routine assessment on a regular basis of personnel performance against established performance expectations applicable to individual officers and envisages police officers to be held to account for sub-standard performance.

The section has nothing to say about performance expectations pertaining to the Commissioner of Police. We assume this was intended to be covered by paragraph 4.8 of the Employment Contract that was drawn up for the Commissioner.

That paragraph reads as follows:

4.8 The Employee must ensure that he and the Employer enter into a Performance Agreement.

The Commissioner was appointed to a second three year term by Warrant of the Head of State on 2 October 2012. The Employment Contract was intended to be subsequently signed but when the Commissioner was suspended on 23

August 2013, the contract had not been signed and has remained unexecuted.

For this Commission of Inquiry then, provisions that are supposed to facilitate our task of determining the Commissioner’s “poor performance” do not exist. We asked ourselves whether this meant that the Commissioner’s performance couldn’t be assessed; shouldn’t be assessed; mustn’t be assessed? We doubted anything along these lines to be appropriate given the people’s perpetual entitlement in a democracy to an accounting of the performance of the Commissioner to whom total operational control of the police force is entrusted.

We took a common sense approach to the matter of “poor performance” by reflecting on events and occurrences of interest against the duties and responsibilities of the Commissioner of Police that are set out in the Act. Practically speaking, we found reflecting on the question of public confidence comparatively more clearly telling and more readily useful to our task. Adverse conclusions on one or other of the two issues are sufficient to support termination.

4. CONDUCT AND PERFORMANCE

The Commission of Inquiry on Tafaigata Prison did not inquire into the Commissioner’s performance or capacity to perform his role and did not address those issues in its report that is before us in this Inquiry.

As a starting point for this Commission of Inquiry we take it that the contents of the Tafaigata Report as a whole reflect badly on Police and Prisons. It consequentially reflects badly also on the Police Commissioner as head of Police and

Prisons with regard to his performance in that role and in relation to public confidence that ought to repose in a Commissioner of Police. Indeed, because of the Tafaigata Report, the Cabinet did demonstrably lose confidence in the capacity of the Commissioner to continue in the role.

We think it reasonable to assume that the Tafaigata Report as a whole will have a similar effect on public confidence in the police and the incumbent Commissioner’s leadership of it, regardless of how much or how little Lilomaiava may have been directly involved in the events described in the Report. Conventional public sentiment about responsibility and the accountability of public leaders for the organizations they lead tend to produce this effect when events within public organizations do not go well. The “buck stops here” (at the top) is an expression and sentiment that is familiar to ordinary folk.

This aside, in keeping with the intent of s55 of the Police Service Act, we look closely below at a few specific matters that were highlighted in the Report with particular focus on (1) whether Commissioner Lilomaiava performed his duties poorly in such matters and (2) whether by his actions or failures to act, public confidence in him may have diminished.

4.1 Lack of Regulations; Quality of Officers; Potential for Abuse of Power

The Tafaigata Report found that the lack of Regulations to the Prisons Act 1967 contributed materially to shortcomings it discovered in the management and operations of the prison. The Commissioner was asked why this situation was not addressed.

Commissioner Lilomaiava told the Commission that eight or so Commissioners before him had found the same situation in place and had simply worked with it. At any rate, it was not long after the commencement of his tenure that separation of prisons from police under a new Act was mooted. From that time on, there was no point in advocating for Regulations under the old Act. He chose instead to implement policies to address problematic areas. The situation he described to us is true, though it must be said that officers at Tafaigata indicated little awareness of the existence of such policies.

Regardless however, of whether or not Regulations are drawn up, given delegated coercive powers that all police officers have to allow timely action in emergent situations, there necessarily is heavy reliance at all times on the quality and integrity of serving officers as safeguard against abuse of power.

The Commissioner readily agreed that abuse of power does happen because of calibre shortcomings in personnel and we do not doubt his evidence that he has dealt swiftly and sternly with cases that had come to his attention.

The low quality generally speaking of Samoan police and prison officers cannot be disputed. The Tafaigata Report comments on this reality in numerous references. The Commissioner himself confirmed to the Commission the generally known fact that many recruited into the police are young people who are not able to find jobs elsewhere. According to the Commissioner, families report some of these young men to be notable troublemakers in their home localities following recruitment into the Police. It seems that power goes quickly to the head in some cases.

To even begin to address the ‘quality of police officers’ problem, it is vital for:

(1) performance expectations to be established for officers,

(2) individual performance to be assessed regularly against such standards; and

(3) sub-standard performance to be dealt with. This has not been a systemized feature of police management in the past. An Institutional Strengthening Programme financed under Foreign Aid aimed to remedy this by specific measures.

The measures which are reflected in the Police Service Act 2009 have been ready and approved for implementation since 2010. At the time of the Tafaigata Inquiry these measures and procedures were not in operation. It is thus a fact that to this day processes enacted into law in 2009 to address poor performance in the police cannot be invoked.

The Commissioner told the Tafaigata Commission of Inquiry and repeated to this Inquiry that there had been no enthusiasm in the Force for the implementation of the approved measures. Excuse after excuse to avoid implementation filtered up to him. He eventually had to order the Police Service to implement the performance assessment measures without further delay. It is not clear when this was done. It is clear however that this option was available from the outset because the

Police is a disciplined Force that operates on issued orders.

It is indictment of the Commissioner’s performance and of his leadership that he was not able to implement these vitally important and sorely needed measures to lift the quality and general performance of the Police and Prisons Service. It could even be taken as indication of insufficient personal concern about this serious shortcoming of Samoa Police.

Such perception can be expected to impact adversely on the confidence of the community-

(1) in the Commissioner’s capacity to perceive or care about general community concerns as opposed to his shown capacity to perceive and be concerned about the sensitivities of his police colleagues; and

(2) in the Commissioner’s ability to perform his role as the Commander of the disciplined force that is the Police.

4.2 Another Prison Death of a mentally disoriented person

The Tafaigata Report tells the tragic story of a man who spent a screaming tormented Christmas night at Tafaigata in 2012 under a mental health in-patient treatment order. He died at about 7.15 a.m. on Boxing Day drowned in a large drum half full of water in the prison cell.

The incident served to highlight inadequacies at Tafaigata in terms of facilities and manpower including the quality of such manpower. Ironically, as the Report points out, additional manpower by the dozens was only a shout away as the whole Upolu police force, not rostered for regular duty that night was camped at Tafaigata in keeping with police practice during the festive season.

While recognizing that there had been shortcomings in the handling of the ill man’s detention at Tafaigata the Commissioner blamed the duty charge officer for not alerting other officers around him to the problems of the night and to the need for extra help. The Commissioner’s attitude appears to us in effect to be that as defective performance in this case could be placed squarely upon the duty charge officer, other officers and indeed the whole Ministry could be exonerated from blame or censure.

The Tafaigata Report was critical of the apparent low level of interest or concern shown by police command in getting to the bottom of things to ensure, among other things, that all personnel that ought to be held to account were so held.

Members of the public will recall that the death of another mentally unsettled person held at Tafaigata prison had created headlines in November 2011.

Action taken by police after the event discussed here, were simply the routine CID criminal investigation and a Professional Standards Unit (PSU) investigation. The latter focused on shortcomings in the actions within the cell block of the lowest ranked prison officers involved.

Disciplinary charges of negligent performance for leaving the cells unlocked were laid against the Senior Constable who was in charge and two duty constables. The two constables quickly pleaded guilty to the charges even though it was clear that leaving the cells unlocked in the particular cell block had been common practice. The two constables were dismissed. The senior constable team leader chose to defend the disciplinary charges against him. To date, these charges have not been heard by the Police Tribunal. No one else has been held to account for the tragic events of Christmas and Boxing Day 2012.

We quote the Tafaigata Report on some of the issues that were of concern to the Tafaigata Commission of Inquiry:

“An observable manifestation of the creeping abandonment of prisons by the Ministry over the years is the absence of any verifiable active interest by police command in prisons performance. Where there is little expectation of quality performance or even of the mere possibility of it, little performance in fact emerges.

Delegation is a vital factor to operational success in the Police. Over reliance on delegation appears to have been a downfall here.

The watch was commanded by a Senior Constable. Why was command left to such a low level officer? Why weren’t any of the senior ranks available to make decisions when the mental patient’s behaviour changed drastically later in the evening? The Superintendent who is 2nd in command of the prison resides in the compound. Why wasn’t his wisdom and experience brought to bear on the problem on the spot? In total perspective, what kind of a ‘ship’ was the chief gaoler running at Tafaigata? How could the pitiful cries of an ill, for all intents and purposes, totally trapped human being yearning aloud desperately for the comfort of his wife and children, not be heard in the midst of police power poised in readiness to keep the community safe?

Police command showed no interest in these questions after the event.”

The Commissioner explained to us that the prison is a noisy angry place. He also indicated that he had held consultations with the chief gaoler on the unfortunate tragedy.

We make the observation that had the Commissioner looked thoroughly into matters in a manner appropriate to the seriousness of events and given other quite recent deaths in prison; he would have discovered for one thing that the senior constable in charge that night had been doing two 24 hour duty stretches back to back. The death of the detained man occurred in the final minutes of the senior constable’s 48 hour continuous stretch of duty. It is arguable that it is unconscionable to press negligence charges against an employee who had been required to work continuously for so long.

These discoveries rightly should have focused attention on the senior constable’s superiors and should have caused the Commissioner to be curious about the management regime of the prison as a whole at the time. The fact that nothing of the sort happened reflects poorly on the Commissioner’s performance of his managerial duties as head of the Organization and must adversely affect the community’s confidence in him to perform the role of Commissioner of Police. When the

Commissioner does not move to properly assign blame to his senior subordinates the public tends, all the more, to blame him directly however physically remote he may have been to events.

Since the Tafaigata Inquiry, a murder charge has been heard and dismissed. There now exists a mystery seemingly for the police to resolve as to who did kill Hans Dalton in prison. There is also a multimillion Tala civil law suit pending against the Police and the Government. These must impact adversely on the community’s confidence in the police and in the Commissioner of Police not to mention potential impact on the public purse.

4.3 Costly Inaction/Derelict Accountability

The handling by Samoa Police of the deportation of an apparently well practiced rogue resulted in terrible publicity for Samoa and Court ordered payments amounting to $258,528.00 for police failures and mistreatment of a foreign person. The

Supreme Court judge who heard the matter commented that “had police performed their respective duties and admitted responsibility for negligence or defects of procedure or worse” Samoa would not have paid anything like the cost it incurred in both money and tarnished reputation.

The Supreme Court judge was referring to inaction, incompetence, dishonesty and heavy handedness among other faults displayed by police in the different stages of a drawn out saga that had begun on 26 August 2009. The episode dragged out over many months culminating in the ugly sight of Samoan police officers attempting to put the man who was trussed up hand and foot and gagged with tape on an early morning Air Pacific flight to Fiji on 20 January 2011.

In the end no one was penalized for defective police conduct that was brought to light or took responsibility for the poor handling of the entire matter by police. We were puzzled by the Commissioner’s mention of a deduction ordered from a junior officer’s salary to pay for the lost passport but was not implemented.

A 2012 Commission of Inquiry into the affair concluded that a certain police officer ought to have been charged for the loss of personal property involved in the case.
It was no longer possible to do this by the time of that Commission of Inquiry because of a provision in the Police Service Act 2009 preventing action of this kind that are not commenced within one (1) year of the cause of action.

The 2012 Commission noted that the Commissioner of Police only became aware of the full factual situation shortly before the expiration of the 1 year limitation period.
It is apparent that the Police itself had made no effort within police to determine fault in these matters either at the time of the events or even following the bringing of the civil suit against the Police.

We in this Commission of Inquiry wanted to know from Commissioner Lilomaiava how it was that these things had happened and had dragged on unresolved for so long; and how it was that there had been no significant move to ascertain what disciplinary actions might have been appropriate.

The Commissioner told us that he had no knowledge of the matters until the Prime Minister wrote to him.

The Tafaigata Report records that the Prime Minister wrote on 15 September 2010 expressing disgust at the treatment the unwelcome rogue had received at the hands of Samoa Police. The Prime Minister considered the treatment inappropriate and unChristian.

In our view it is grave indictment of the Commissioner and how he ran the police that he had to learn from the Prime Minister about a matter that had been going on for a year within police.

Factors given below suggest that the Commissioner of Police ought to have been fully aware and seized of matters from the very start. The fact that he did not know and was not so seized until the Prime Minister told him one year into the episode is a personal failure on his part or a failure of the Organization that he ran. Either way, it delivers a crippling blow to public confidence in both.

The foreigner individual at the centre of things was “a rogue and an undesirable immigrant to Samoa”. A judge of the District Court had declared this on 15 September 2010 confirming, no doubt, a view that the police itself must have held before the man was ever brought anywhere near the judge. This “undesirable rogue” was loose in Samoa. He was unable to leave Samoa. He was unable to leave Samoa because of the police. None other than the Samoa Police had lost his passport to say nothing of other personal valuables the man claimed to have disappeared along with it.

Another quite separate serious aspect highlighted by events of this case and of another case also noted in the Tafaigata Report is the fate of private property temporarily taken into police custody in police work. The Tafaigata Commission of Inquiry was left in little doubt that police officers help themselves on occasions to personal property of the citizenry while such property is in police custody. The 2012 Commission of Inquiry mentioned above was informed by police of a new policy that had been put in place that supposedly would address this problem. The focus of this policy as far as this Commission can see is however really on the handling of “exhibits” which is a different issue of concern.

This Commission of Inquiry takes the view that citizens should be able to take it for granted that personal property temporarily taken into police custody would be safely returned. It is shocking that the Samoa Police after all these years of existence is in no position today to claim any semblance of such public confidence. This situation shatters general community confidence in the police and in the ability or genuine willingness of incumbent leadership to change the prevailing grim state of affairs.

4.4 Professional Standards Unit Investigations

The Tafaigata Commission of Inquiry recorded clear dissatisfaction with the performance of the PSU in investigating complaints about police conduct from members of the public.

The Commissioner confirmed that there had been shortcomings. Reviews undertaken by the Ombudsman’s Office had highlighted a trend to delay matters to give time to police officers involved to work on complainants to withdraw their complaints. The Commissioner told the Commission that he had personally acted promptly to remedy the cases pointed out and to condemn the practice.

The Ombudsman informed the Commission of Inquiry that the Commissioner was truthful in his evidence on this matter.
4.5 Loose Monies

The ‘ in prison’ economy generates the “turn in” which is a kind of voluntary tax on revenue earned from approved prisoner activities. This money and any other funds received by the prison community which supposedly do not form part of ordinary Government budget accounting are kept by the chief gaoler. It has not been Tafaigata practice to submit these funds or its records for auditing by the Government auditors.

The Bank Savings account book for “prison community funds” (Ola Toe Fuata’iina) is kept by the chief gaoler who is a signatory together with the Commissioner of Police of the account.

The Tafaigata Commission of Inquiry was unable for lack of time and expertise to ascertain whether or not there had been impropriety in the handling of these funds. The Commission noted curiously that there had only been one withdrawal from the account in one whole year. Transactions apparently had been on a cash basis. A search by the Tafaigata Commission of Inquiry recorded an amount of over $11,000 in cash in a strong safe located in the Assistant Commissioner’s office.

The Commissioner of Police was unable to throw any further light on this matter to our Commission of Inquiry beyond repeating the surprise on the lack of account activity that he had expressed to the Assistant Commissioner, when he was asked to cosign the one withdrawal referred to above. He instructed the Assistant Commissioner at that time to bank all monies. His instruction was obviously not carried out.

4.6 Perceived Favoured Treatment

Prisoners had pointed to the treatment of a prisoner who was not imprisoned in a cell but placed in a house located in the prison compound. Criticism of this had been reported in newspaper articles in May 2011. The Commissioner, responding to the press at the time explained that this was done on medical grounds. He reiterated this to the Tafaigata Commission of Inquiry. This same prisoner was later allowed by Court Order to proceed to New Zealand to have a medical check-up that had been planned for him prior to his sentencing. The prisoner during his incarceration was reportedly able to readily entertain visits by his wife and family in the house allocated to him.

Other senior prison officers when questioned by the Tafaigata Commission of Inquiry professed no involvement in the special placement of the prisoner and appeared to have no special knowledge of the reasons for it apart from the assumed existence of medical need.

The Commissioner explained once again to us that his decision to treat the prisoner differently was made on humanitarian grounds because of medical need.

We explained that the Tafaigata Commission had understood the explanation perfectly well but that when it asked for documentary evidence of the medical need this had not been forthcoming. That Commission found nothing in the file given it resembling a medical request for special treatment or to indicate that the prisoner’s medical condition was unique to him within the inmate population.

No additional documentation on this matter was presented to this Commission of Inquiry.

4.7 Speedy Promotion

The Tafaigata Report gives details of the recruitment and fast promotion of a policewoman in the Samoa Police. This story was thrust unprompted upon the Tafaigata Inquiry by the woman police officer herself who had been called on a totally different matter.

It was an interesting story in that everything about the officer’s recruitment into the uniformed police and promotion up the police ranks was unconventional.

The only thing that appeared regular was her appointment to the job of senior planning and policy officer in September 2011. This job was advertised as a non sworn civilian position but was reportedly classified as equivalent to senior sergeant level for appointees qualified to hold that rank.

The police officer in question was appointed in proper fashion on the second advertising of the position. She was a constable at the time. Shortly afterwards she was confirmed as a senior sergeant in a promotion parade. As the Tafaigata

Report points out, she had shot up three ranks in one step without sitting a single qualifying examination for higher rank as normally required for promotion up the ranks.
In this Commission of Inquiry we pointed out to the Commissioner that it was the latter aspect, done by his authority as Commissioner that is of interest in looking at his performance of the role.

4.8 Drinking at Tafaigata

The Tafaigata Commission of Inquiry concluded with ease from evidence gathered that in spite of a supposedly strict total ban applying to all prison establishments, officers drank alcohol with impunity at Tafaigata.

The Report records the frank admission of the Superintendent and 2nd in command of the prison that he drank several bottles of beer each day.

He testified under oath that he had been given permission by the Commissioner to do this. The Commissioner did not have the opportunity to cross examine the Superintendent but when this evidence was put later to the Commissioner he denied giving such permission.

This matter was put again to the Commissioner during this Inquiry. Explaining simply that it was absolutely forbidden for anyone to drink alcohol in prison precincts, the Commissioner denied giving anybody permission to drink at Tafaigata. He did not request to have the Superintendent called before us.

We have the unhappy situation of two very senior officers of Samoa Police, one of them the Commissioner, giving diametrically opposing evidence under oath. One or the other of them, had to be lying and thereby perjuring himself. This reflects badly on the police that is under the control of Commissioner Lilomaiava even if he is the one that is not lying.

This and the habitual consumption of alcohol on prison premises by police officers including a very senior officer, as uncovered by the Tafaigata Inquiry, must impact adversely on public confidence in the Police and in the Commissioner who is supposed to ensure enforcement of the strict ban.

4.9 Allegations of Improper Interaction

The Tafaigata Report addresses allegations by a female prisoner of improper physical contact during a “fofo” (curative massage) she was giving a prison officer. The Tafaigata Commission of Inquiry did not believe the specific allegations but did accept that a fofo of the officer’s legs had taken place. The Report records the Commission’s censure of this concluding that at the least the officer concerned had exercised poor judgment in allowing himself to be with a female inmate in circumstances which had high potential of impacting adversely upon the reputation of the Police Service.

The Commission was of the view that disciplinary action should have been instituted against the officer given section 22 of the Prisons Act, requiring female inmates to be imprisoned “in such manner, as far as practicable as to prevent any female seeing, conversing or holding an interview with a male.”

We wanted to know of the Commissioner why disciplinary action was not taken.

The Commissioner pleaded insufficient time to take such steps because of his suspension for the Tafaigata Inquiry.

We note from the record that the Commissioner was aware of this matter on 10 June 2013 when he received a complaint from a prison officer in which this and other matters were raised. A separate PSU investigation of the alleged “fofo” incident was apparently also ongoing because of the “ghost letter” allegations. The senior police officer concerned confirmed in a letter dated 15 July 2013 addressed to the Commissioner that “fofo” sessions had taken place. The

Commissioner was suspended on 22 August 2013. We do not accept the Commissioner’s explanation that he had not had enough time to deal with the matter.

When the Commissioner condones conduct that should not be tolerated in the police he takes that conduct upon himself as his own.

5. THE COMMISSIONER

Lilomaiava, we gather is of the view that he should not be affected by the events recounted in the Tafaigata Report and the adverse conclusions contained therein concerning the police or members of the police. He obviously considers himself a dedicated policeman who has responded properly to the situations he had been confronted with and has provided reasonable explanations to both Commissions of Inquiry for his actions in the matters covered in the Report.
We do not doubt that Lilomaiava is a dedicated policeman who can be proud of his service in the police. The focus of this exercise is however not on Lilomaiava the policeman but on Lilomaiava the Commissioner of Police. We are required simply to assess whether in the matters covered by the Tafaigata Report there has been poor performance of the Commissioner’s functions and duties by Lilomaiava and/or whether Lilomaiava has behaved in a manner likely to affect the confidence of the community in his ability to perform the Commissioner’s role.

6. CONCLUSIONS AND RECOMMENDATION

We conclude that there have been acts and/or failures to act by Lilomaiava Fou Taioalo amounting to performance that is below the standard that reasonably must be expected from the Commissioner of Police in the performance of his duties and responsibilities.

We conclude that as reflected in the Report of the Tafaigata Commission of Inquiry and as further explored in this Commission of Inquiry, Lilomaiava Fou Taioalo has behaved in a manner likely to adversely affect the confidence of the community in his ability to perform his role as the Commissioner of Police.
In view of the foregoing we recommend that Lilomaiava Fou Taioalo no longer serve as Commissioner of Police.

7. OTHER MATTERS
We thank Counsels Sine Lafaialii Koria and Sefo Ainuu for assisting the Commission of Inquiry.

Maiava Iulai Toma
Chairman
Su’a Tanielu Su’a
Member
Gatoloai Tili Afamasaga
Member