Court finds Cabinet Ministers guilty

District Court Judge, His Honour Vaepule Vaemoa Vaai, yesterday found two senior Cabinet Ministers guilty of charges brought against them by the Police.

Whereas deputy Prime Minister, Fonotoe Pierre Lauofo, was convicted of obstructing a Police Officer, the Associate Minister of Trade, Muagututagata Peter Ah Him, was convicted of making a U-turn on Beach Road and obstructing a Police officer.

The charges stemmed from an incident on Beach road on Friday night, 4 October 2013.

“Of the charges against Ah Him of making an unlawful U-Turn on Beach Road and of obstructing Constable Isitolo in the execution of his duty on the 4th of October 2013, I am satisfied beyond a reasonable doubt by the evidence and find him guilty of both charges,” His Honour Judge Vaepule ruled.

“On the charge against Meredith of encouraging Ah Him to obstruct Constable Isitolo in the execution of his duty on the 4th of October 2013, I am also satisfied beyond a reasonable doubt from the evidence and accordingly find Meredith guilty as charged.”

Judge Vaepule’s ruling was delivered yesterday.

Outside the Court, Fonotoe was well supported by his constituents.

Neither Members of Parliament wanted to speak to the media at Court.

Outside Parliament, however, Fonotoe thanked everyone who worked on the case.

He said he couldn’t say much because he hadn’t read Judge Vapule’s ruling.

“The sentence will be delivered next week on Friday,” he said. As for the ruling, he said: “The decision has been given and it is a decision that we all accept.”

His Honour Judge Vaepule did not read out his verdict in full in Court yesterday.

Instead, he said he “was satisfied with the evidence against Muagututagata and that he was guilty of both charges”.

“Likewise for Fonotoe, I find him guilty.”

Judge Vaepule said he has already prepared his written submission of the verdict and that copies were already given out to defence counsels.

Rexona Titi and B. Fa.afiti Lo- Tam, of the Attorney General’s Office, stood for the prosecution. Donald Kerslake represented Fonotoe while Patrick Fepulea’i represented Muagututagata.

A copy of Judge Vaepule’s ruling was obtained by the Samoa Observer.

It is published here in verbatim:

DECISION OF THE COURT

Background

The first named defendant Fonotoe Pierre Meredith who is the Deputy Prime Minister faces a charge of obstructing Constable Ioapo Isitolo pursuant to Section 10(1)(b) Police Offences Ordinance 1961 (“the Ordinance”). The charge arises from an incident on Beach road on Friday night, the 4th of October 2013.

The second named defendant Muagututagata Peter Ah Him is Associate Minister for the Ministry of Commerce Industry and Labour. He faces two charges. One of making a U-Turn on Beach road at Savalalo on the 4th day of October 2013 pursuant to Section 12 of the Road Traffic Orders 1994, and the other of obstructing Constable Ioapo Isitolo the same day pursuant to Section 10(1)(a) the Ordinance.

On the 4th of October 2013, Corporal Mose Lotomau, Senior Constable Maanaima Patu, Constables Ioapo Isitolo, Tevita Vii and Michael Vala were patrolling in police vehicle POL 38 in town. They started around 10.00pm from the eastern side of Beach road to the west towards Mulinuu. At the roundabout in front of the Tanoa Tusitala Hotel at Sogi they turned and drove back. As they were cruising past the intersection in front of the Flea Market at Savalalo, they stopped and warned the driver of a taxi cab who was about to make a U-Turn not to do so. Almost at the same moment they also spotted a green double cab pickup heading towards them making a U-Turn in front of the SNPF Plaza. The manoeuvre prompted the officers to approach the driver and therefore ordered him to pull over to the side of the road which he did, stopping in front of the Development Bank building. The police vehicle pulled up behind it and Corporal Lotomau instructed Constables Isitolo and Vii to breath-test the driver whom he suspected was driving under the influence of alcohol. The green double cab the patrolling officers pulled over was a government vehicle registered MCIL 07 to the Ministry of Commerce Industry and Labour. The driver was Associate Minister Ah Him.

Constable Isitolo conducted three breath-tests on Ah Him and the results were not considered a success because of the way Ah Him breathed into the apparatus. Constable Isitolo decided to conduct a further test and was about to administer it when another government vehicle registered SSS 01 pulled up and stopped alongside MCIL 07. The driver of the newly arrived pickup was Deputy Prime Minister Meredith. He started a conversation with the officers at the scene which went on for a while with the exchanges between Meredith and S/Constable Patu (who had by then joined Constables Isitolo and Vii) seemingly becoming quite heated. Towards the end, Ah Him, who had been silent throughout slowly drove away from where he had been stopped and towards the town clock, followed by Meredith.

Charges

Meredith - The charge originally laid against Meredith read: “..at Savalalo on the 4th day of October 2013 he incited and encouraged Muagututagata Peter Ah Him to resist and obstruct Constable Ioapo Isitolo while in the execution of his duty”.

Because the word “and” instead of “or” was used in wording the charge, Mr Kerslake submitted that the prosecution was required to prove Meredith not only incited and encouraged Ah Him, but also incited or encouraged him to resist and obstruct Constable Isitolo while in the execution of his duty.

In anticipation of an application to amend the charge, Mr Kerslake objected to granting leave if an application was made, for two reasons.

First, the prosecution did not seek leave to amend the charge in its closing submissions. Second and more importantly, amending the charge would prejudice Meredith’s defense. Whilst the former is true, an opportunity was given to the prosecution to respond but limited only to amending the charge.

Leave was sought to amend the charge by deleting “and” where it appears between “incited” and “encouraged” and again where it appears between the words “resist” and “obstruct”, and inserting “or” instead. Leave was granted and as explained to counsel on the day, there was in the Court’s view no prejudicial effect on Meredith’s defense in the amendment sought because under a charge laid under S 10(1)(b) of the Ordinance, the prosecution is required to prove only that Meredith either incited or (not and) encouraged Ah Him, but also incited or encouraged him to resist or (not and) obstruct Constable Isitolo while in the execution of his duty.

The charge as amended therefore now reads: “at Savalalo on the 4th day of October 2013, the defendant incited or encouraged Muagututagata Peter Ah Him of Leififi to resist or obstruct Constable Ioapo Isitolowhile in the execution of his duty”.

Ah Him - The first charge against the Associate Minister is: “…at Savalalo on the 4th day of October 2013 being the driver of….vehicle registered MCIL 07 permit such vehicle to make a U-Turn between the front of Kitano Hotel and Vaisigano bridge”.

The second reads: “…that at Savalalo on the 4th day of October 2013, he willfully obstructed Constable Ioapo Isitolo, while in the execution of his duty”. Facts Before conducting the first test, Constable Isitolo explained to Ah Him the nature of and the procedure he would follow in the test using the breathalyser machine he was about to administer. He also instructed Ah Him the proper way to breathe into the tube and informed him that he could be arrested if he did not comply with the testing requirements.

On the first test, the words “Insufficient Volume” showed on the screen after Ah Him breathed into the tube. The words which showed meant the volume of air Ah Him breathed into the tube was not enough for the machine to show a result. Constable Isitolo accordingly informed Ah Him he was not breathing enough air into the tube, and breath-tested him again.

The same words again appeared. Constable Isitolo informed Ah Him he was still not breathing properly into the tube, and tested him a third time. The third test showed the same result. Constable Isitolo then not only warned Ah Him he could be arrested if he kept breathing incorrectly into the tube, but also gave Ah Him another opportunity to be tested. He informed him accordingly and was about to administer that test when Meredith’s pickup pulled up.

Meredith asked the officers “Oa kou mea ga e fai?” (“What are you doing?”), to which Constable Isitolo responded “O lea e kau saili le ‘avamalosi i le ave ka’avale” (“We are trying to test the driver for alcohol”). Meredith said he enquired further “o iai se mea o kupu” (“if anything was happening”), but heard no response.

He did not explain when he asked, whether he meant, if anything was happening to the officers or to the Associate Minister because it was plain to everyone present the only thing that was happening when he stopped was the breath testing of the Associate Minister.

There is no dispute regarding the exchange which followed. Meredith admitted having said to the officers next, something like “A fai la e fai le amiokogu o e fai ia Kalaimagu la e igu i luga” (“If you’re talking about doing the honest thing, then go and do it to Kalaimanu who is drinking up there”). He did not say whether any officer replied.

But according to S/Constable Patu he did; he responded “E leai se mea e fai ai fua Kalaimanu e le’o avea e Kalaimagu se kaavale pei o Pika” (“There is no need to do anything to Kalaimanu because he is not driving a car like Pika”). Meredith mentioned seeing earlier that evening,

Assistant Police Commissioner Talaimanu Keti and other men he recognised as police officers drinking in a Bar called Leon’s inside the SNPF Plaza, where he himself was having a beer with Ah Him that same evening. There were competing claims about accusations of influencing the police. S/ Constable Patu denied accusing Meredith of it first. Meredith said S/Constable Patu brought it up. He considered S/Constable Patu’s attitude to him as rude and was surprised by the accusatory tone of the Senior Constable’s remarks about interfering with police work.

That he said, is the reason he responded the way he did. He did not explain however why he insinuated that breath-testing the Associate Minister also necessitated breath-testing Assistant Commissioner Talaimanu who evidently, was not aware of what was going on at that moment in front of the DBS building. The last words could hardly be described a conversation because only Meredith spoke.

The dispute which however arose during the evidence related to what Meredith said and the number of times he said it. Of the three officers who were present S/Constable Patu claimed Meredith called Ah Him three times to “Alu lau ka’avale” (“drive your car”).

Constable Isitolo heard the same call more than twice whilst Constable Vii heard it once. Meredith denied calling Ah Him, saying he instead commented “Afai ua leai seisi mea oga ku’u lea o le kaavale a le migisika lagolago e alu” (“If there was nothing further, then let the Associate Minister’s vehicle go”), a comment to which none of the officers responded. Discussion a) Ah Him - Information D44/14 - making a U-Turn between the front of the Kitano hotel and Vaisigano Bridge. Section 12 Road Traffic Orders 1994 states:

“That no driver of any vehicle is permitted to make a U-Turn commencing from infront of Kitano Hotel to Vaisigano bridge along Main Beach Road”

Mr Fepulea’i submitted there is no longer a hotel called Kitano. That is true but not critical to the prosecution case because the operative criterion in determining the points between which a U-Turn is an offence under S.12 of the Road Traffic Orders 1994 is not the name but the location.

That is, anywhere on Beach Road between the Kitano Hotel or where the Kitano Hotel used to be (currently the Tanoa Tusitala Hotel), and the bridge at Vaisigano.

The charge as worded also does not make specific reference to “Beach Road”. Again, this is not critical to the prosecution case because the undisputed evidence supports the fact Ah Him made a U-Turn in front of the SNPF Plaza which is located between Vaisigano Bridge and the Tanoa Tusitala hotel on Beach Road.

Mr Fepulea’i conceded the wording of Section 12 of the Road Traffic Orders 1994 renders making a U-Turn in front of the SNPF Plaza a strict liability offence.

b) Information D43/14 - Resisting and misleading the police.

Section 10(1) of the Ordinance states: “Every person commits an offence and is liable to imprisonment for a term not exceeding one year or to a fine of 2 penalty units who; (