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Police v Tofi [2014] WSSC 165 (15 August 2014)

IN THE SUPREME COURT OF SAMOA
Police v Tofi [2014] WSSC 165

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TA’AVAO TOFI, male of Nofoalii.
Defendant

Counsel: F Lagaaia for prosecution
J Brunt for defendant

Judgment: 15 August 2014

ORAL JUDGMENT OF NELSON J
(Disputed summary of facts)

1. The defendant stands charged with the crime of vehicular manslaughter or manslaughter using a motor vehicle. A charge to which he has pleaded guilty. Because it is disputed it has become necessary to determine prior to sentence whether the defendant was drunk as alleged by the police. Paragraph 6 of the police summary of facts says that throughout the day in question the defendant had been consuming ava and beer and was intoxicated.
2. The primary police witness in this enquiry was the 18 year old boy Niu Falepau. He testified that the defendant began drinking when he arrived at the autalavou fundraising barbeque after 11:00 am. His evidence was the defendant in his view was drunk that day. Because the defendant was making a lot of noise and smiling constantly, which the defendant only does when he is drunk. He knew that because he has known the defendant for a long time. But he said that he only saw the defendant actually drink one cup of Taula beer.
3. At paragraph 5 of the transcript of evidence is the following:

“Fesili: na e silafiaina pe na e iloaina pe na taumafa ia Taavao i se pia mai le kula pia lea na tufa i le tou BBQ?

Tali: na ou vaai iai na taumafa le ipu pia a Ta’avao.

Fesili: o e tau manatuaina tonu o le a le taimi o le aso lea na e vaai o taumafa ai le ipu pia lea?

Tali: o le taimi a lea na alu atu ai Ta’avao na ou vaai ai na u’u lana ipu Taula.

Fesili: e iai seisi mea e ese mai le Taula lea na inu i le tou BBQ?

Tali: leai pau a lea.

Fesili: e te iloa e fia ni ipu Taula na e iloaina na taumafaina e Ta’avao?

Tali: e tasi a le ipu na ou vaai na inu.

Fesili: e tasi le ipu na e vaai ai o inu. Ae a le taimi lea faapea o le taimi mulimuli lea na e vaai ai ia Ta’avao, lea na tou o ai e kiliva le BBQ?

Tali: oute le’i vaai ai la o inu se pia.

Fesili: a’o le taimi lea na tou o ai kiliva le BBQ lea e te taua, ua uma lena ona inu le ipu?

Tali: ia.”

4. In addition to that witness the prosecution also called a Mr Tino Peniata, a matai of the village. He said earlier that fatal day, the defendant had drunk five (5) or six (6) cups of kava at his house. This was about 10:00 o’clock that morning. In addition to Tino the prosecution also called one Shirley Lafaele who was at the barbeque to purchase a barbeque. Her evidence on this issue is contained at paragraph 17 of the transcript of evidence where it says:

“Fesili: o lea la e te fa’apea mai sa e vaaia Ta’avao i le BBQ, e te manatuaina le taimi na e vaai ai, o a ana mea o fai?

Tali: na ou vaai ia Ta’avao o la e tu mai talaane o le fale.

Fesili: fale lea o ai?

Tali: fale a le autalavou.

Fesili: o le a se mamao mai le mea lea e fai ai le BBQ?

Tali: e felata’i lava, o autafa lea e fai ai le BBQ.

Fesili: o e manatuaina o le a sau vaai ia Ta’avao i le taimi lea na e vaai ai ile BBQ, o e manatuaina ni mea na e maitauina i ona foliga?

Tali: na ou vaai e onā, a’o ona foliga vaaia ou te iloa ai.”

5. In cross examination this witness however went on to concede that at the material time she was in the house next door to where the defendant was standing. And she said that the defendant was standing behind her. The following is from page 18 of the transcript of evidence:

“Fesili: na lua talanoa ma Ta’avao ina ua e taunuu atu?

Tali: leai.

Fesili: ae laititi lava le taimi na e iai?

Tali: o lea lava.

Fesili: o ai na tuuina atu lau BBQ ia oe, o Taavao po’o seisi tagata?

Tali: na ou alu atu matou talanoa ma fafine o lo’o i totonu o le fale ae fai mai loa le fafine ia a’u ,oute toe foi o la ua alu ane ma leisi fafine la’u BBQ, o’u toe fo’i loa.

Fesili: e le’i serve ina oe pe faafesagai oulua ma Ta’avao a?

Tali: leai.

Fesili: e ese a le pito o le fale la e tu’u mai ai Ta’avao, ese le mea lea sa e agai iai?

Tali: e soso’o lava fale ia e lua, lea oute alu atu ai. O le tulimanu la o le fale o loo tu mai ai Ta’avao, e i tua la o a’u.”

6. It is clear from her evidence that unless she had eyes in the back of her head she would not have been able to accurately observe the defendant. There is no evidence she talked to the defendant or was close to him. Or that the defendant was doing anything unusual to draw attention of people to his behaviour. Her evidence therefore that the defendant was in her view drunk is open to question. Both Shirley and the witness Niu are non drinkers according to their testimonies.
7. The defendant in his defence elected to testify. He accepted that he drank at least four (4) cups of Samoan ava that morning at the house of Tino. But said he had been working at his plantation. And he was involved in delivering aufa’i and other foodstuffs to the fundraising barbeque of the autalavou. He also said in examination in chief that he was given a shout of two beers from the president of the autalavou. But when he was called to deliver barbeques he gave away these two beers to two matais who were present.
8. The defendant denied he was drunk and said he is always a happy and smiling person. When however questioned by the court on the two beers the defendant changed his evidence. He then told the court they were two separate shouts of one beer each. He gave the first one away when he was called by Christina Taimalie to run an errand for her. And that when he returned he was shouted a second cup of beer. But when he was instructed to deliver barbeque plates to customers of the fundraising he gave away that one beer as well.
9. It is clear that Ta’avao has told us one thing in evidence in chief and a different thing in response to questions. This renders his evidence suspect and unreliable. It seems to me he is trying to explain away being in possession of cups of beer that were being sold at the barbeque. I also note that the matter of the two separate cups of beer was not put to witnesses for the prosecution by his counsel in cross examination.
10. The defence also called Christina Taimale as a witness. But it is clear from her evidence that she was a late arrival at the barbeque. She got there about 4:00pm. So if the defendant had been drinking beer earlier she would not have been there to see it. The other problem with Christinas evidence is it conflicts with the defendants. There is no mention by her of the defendant being in possession of a cup or cups of Taula beer anytime before she called him over to run her errands. And I must bear in mind that this witness is not an independent witness. She said she has known the defendant for some time. That is why she asked him to drive her to her “feaus.”
11. In assessing the evidence in relation to the issue of drunkenness I prefer the evidence of the prosecution witnesses. I am satisfied that on the day in question you were drinking ava Samoa in the morning and consumed at least four cups. But there is no evidence before the court to indicate the strength of the ava you were drinking.
12. I am further satisfied that at the fundraising barbeque of the autalavou you consumed at least one possibly two cups of Taula beer. But the evidence in my assessment falls short of establishing beyond reasonable doubt that you were intoxicated. I do not accept the opinion of an 18 year old non drinker who only saw you drink one cup of beer. Or of a witness who observed you from a neighbouring house standing behind her.
13. Prosecution also did not adduce any evidence that immediately prior to the fatal journey, you were still drinking. The young boy Niu was a passenger on that last journey of the vehicle to deliver barbeques and he did not say that immediately prior to leaving the barbeque or during the journey you were still consuming beer.
14. The end result Ta’avao is you will be sentenced on the basis that you had been consuming alcohol prior to the accident but not to the degree that the court is satisfied you were intoxicated so as to be unable to fully control your vehicle. In other words I accept alcohol was a factor but not necessarily the determinate or a contributing cause of this tragic accident.
    

JUSTICE NELSON