Counsels: Mr P. Fepulea’i and Mrs D. Roma for prosecution;
Mrs Taulapapa Brenda H Latu for 1st & 2nd named defendants;
Mr Papalii Li’o.T. Masipa’u for 3rd named defendant;
Ms Rosela V. Papalii for 4th named defendant.
Hearing: 23rd, 24th, 25th, 26th, 27th, 30th November, 1st, 2nd and 17th December 2015
Submissions: 17th December 2015
Decision: 19 February 2016
___________________________________ DECISION OF THE COURT
A young woman named Susana Stowers from Lano lived with Terry Faiga, pastor of the EFKS church in Lano and his wife Elena Faiga from the middle of 2011 towards the end of 2012.
After she’d left the pastor’s residence, Susana lodged with Samoa Victim Support (SVS) in November 2012 a complaint against Elena for assault. She did not return home but instead stayed with SVS in one of its shelters at Moto’otua. SVS referred Susana to the police which investigated her complaint. The investigation led to the police charging Elena for indecent assault. She denied the charges in Court in April 2013 and remanded to the 25th of July 2013 for a hearing. On the 25th of July, police prosecutor Senior Sergeant Komiti sought to further adjourn hearing of the charges as the police were not able to proceed. In Court, Susana’s father Su’a Fa’aaliga Stowers also sought leave to withdraw his daughter’s complaint informing the Court the parties had reconciled and his daughter had furthermore gone overseas and not likely to return. His application was accepted by the judge and the charges were dismissed.
It was clear from the evidence that during the police investigation and after Elena was charged Susana’s parents Su’a and his wife Peati Stowers were pressured by the village and the EFKS congregation at Lano to withdraw their daughter’s complaint. They were similarly requested also by Terry’s parents to withdraw Susana’s complaint. In turn, they requested Mrs Chang, president of SVSG on at least two separate occasions to withdraw Susana’s complaint. Each time, Mrs Chang refused. Throughout the same period, Terry also made several attempts on his own at first and later with his wife Elena to see Mrs Chang. On every occasion Mrs Chang also refused an audience. During an argument in the reception area of the SVSG Office in April 2013 between Elena and her husband however Elena’s voice while insisting on seeing Mrs Chang grew so loud that to avoid a scene Mrs Chang saw them. In Mrs Chang’s office Elena was visibly shocked when she discovered unexpectedly her husband Terry was a witness in the criminal charges pending against her. This revelation led a tearful Elena herself revealing to Mrs Chang something Mrs Chang was not aware of either. Terry Faiga was in a sexual relationship
with Susana when Susana lodged her complaint with SVS. When the shock eased on both women Elena was asked to contact CID while an apologetic Terry sheepishly took his leave. Mrs Chang later confronted Susana with the latest revelation. Susana not only admitted being in a sexual relationship with the pastor but Terry also accompanied her to SVS when she lodged her complaint against his wife Elena.
On or about the 25th of April 2013 a meeting was held in Mrs Chang’s Office at SVS in Apia. Present were Susana’s parents Su’a and Peati Stowers, Terry and Elena Faiga, Terry’s parents Tatau Taiti Faiga and his wife Piilua, and Mrs Chang. Superintendent Sala’a said he was not present but Su’a, his wife Peati, and his daughter Susana all claimed he was there but he said nothing. The purpose of the meeting was to find a way of reconciling the different sets of parties on the matter of Susana’s complaint. The outcome of the meeting was a consensus to withdraw Susana’s complaint from SVS and with the police. Susana was later brought into where the meeting was held and her father made her to apologise. She did. She was also released from the care of SVS the same day. On the 1st of July 2013, Mrs Chang claimed Susana and her father called into the SVS offices again to request withdrawing the charges.
On or about the 4th of July 2013 Susana claimed that Terry and Elena Faiga, Mrs Chang, Superintendent Sala’a and herself met at the SVS Office in Apia. The meeting was in relation to withdrawing the charges. Susana confirmed Supt Sala’a advised the meeting it was not his business to interfere with the charges before the court, and he further advised Susana she could if she wished write to the Commissioner of Police seeking the withdrawal of her complaint.
The next day the 5th of July 2013, Mrs Chang said Susana called at the SVS Office with her brother Mefi seeking help from SVS to withdraw the charges. The same day therefore, a letter written under the SVS letterhead to the Police Commissioner requested withdrawing the charges. Mrs Chang signed it as president of SVS and Susana as the complainant. The Commissioner responded by letter of the 12th of July 2013 refusing the request. He also advised (inter alia) the complainant may herself request withdrawal of the charges when called in Court.
FREE: Superintendent Sala’a Sale Sala’a.
On the 24th of July 2013 Susana left for American Samoa. After seeing her daughter off Peati said that Mrs Tumua Luafalealo called her to come to the SVS Office before returning to Savaii. She did and was told to go and see Superintendent Sala’a at the police station. She said Sala’a told her in his office what to say in Court the next day. Supt Sala’a denies coaching Peati about what to say in Court but admitted advising her of the appropriate steps to follow when seeking to withdraw charges in Court.
The next morning Superintendent Sala’a as head of the prosecution section in Apia went to Savaii. He went to hand over to Tuasivi police the prosecutorial function which up to that day had been handled by a team of prosecutors from Apia. He was in Court but did not say anything before or after the dismissal of the charges against Elena. As a matter of courtesy, he informed the Judge in chambers during the Court recess of the changeover of the prosecutorial function to the Tuasivi Police. He also thanked the judge for the courtesy shown to the police prosecutors during the time his team from Apia handled the prosecutorial role in Savaii. The same day after the charges had been dismissed a police vehicle from the Fagamalo outpost on Supt. Sala’a’s request picked up Elena from Samalaeulu and brought her to the Rosalote Hotel at Sapapalii where she had drinks in the evening with Supt. Sala’a and S/Sergeant Komiti. The next morning, Mrs Faiga was picked up from Rosalote hotel by a police vehicle prearranged to collect Supt Sala’a from his home in Sapapalii for the wharf at Salelologa.
On the 14th of November 2013 Susana made a statement to a Sergeant Tomasi Tuua at Fagatogo police station in American Samoa. In it, she claims her parents planned for her to go to American Samoa after the meeting of the 25th of April 2013 held at Mrs Chang’s office. She however left for American Samoa the day she did because of pressure from Mrs Chang and Mrs Luafalealo of SVS for her to leave before the case against Elena Faiga was heard. Peati also said her daughter Susana left for American Samoa earlier than planned because of pressure from Mrs Chang and Mrs Luafalealo. Susana further claimed Mrs Chang and Mrs Luafalealo called on her brother’s phone in Nu’uuli American Samoa in the second week of November 2013. She was told not to say anything to the police if they came except that their lawyer was Iulai Toma.
Records of calls made from Blue Sky telephone No. 7576602 was tendered as Exhibit “P6”. Telephone number 7576602 is registered under SVS. According to Exb “P6” three IDD or international direct dialed calls were made from telephone number 7576602 to telephone number 7315828 in American Samoa on Monday the 11th of November 2013. The American Samoa number the calls were made to is the same as the number Peati gave as her son Sosene’s phone number in Nuuuli American Samoa, where Susana was living the day the calls were made.
Mrs Chang strongly denied pressuring Susana or her mother Peati for Susana to leave the jurisdiction the day Susana left because her last involvement with Susana’s case was the letter of the 5th of July 2013 to the police. She had nothing more to do with Susana’s case after the letter and had no reason to. She did not see or talk to Peati on the 24th of July 2013 either because she was preoccupied with a UN project she was involved in from the 22nd to the 26th of July 2013. She also denied calling Susana in November 2013 because she does not know the phone number in American Samoa the calls from SVS were made to. Furthermore she did not know at the time the calls were made of a police investigation into the dismissal of the charges against Elena Faiga. She only knew about an investigation involving her in 2015.
Another witness for the prosecution in the charges of indecent assault against Elena was a young woman also from Lano named Foai Galue Malo. She presently resides in American Samoa but used to live with her parents at Lano. She regularly helped out with the chores at the pastor’s residence in the time Miss Stowers lived with Terry and Elena.
In February 2012 Foai left for American Samoa. She discovered there she was pregnant and returned in August 2012 accompanied by her mother Logogalu Malo who travelled across to escort her back. She was living with her parents at Lano when the police took a statement from her on the 17th of November 2012 in relation to Susana’s complaint against Elena. On the 20th of November 2012 Foai gave birth to a baby boy.
On the 20th of February 2013, Foai said Elena came and told her off for making the statement she made to the police the previous year. Later Elena came to her home and she and her reconciled in the presence of her mother Logogalu. Logogalu denied Elena ever visiting their home at Lano while she was living there with her husband and denied also being present at a reconciliation between the two.
On a later date, Foai said Elena urged her to go on a Lano EFKS fundraising trip to American Samoa. She did not however go because her baby was too young and at the time breastfed. According to her mother however Foai did not go because it was never part of their family’s plan for her to go. Only her, her husband and three of her sons went. After the fundraising trip returned from American Samoa Foai claimed Elena offered to pay her fare to go to American Samoa if she went and stayed there until the case involving the charges was over. She said she requested her uncle in American Samoa to get her a permit which he did. Once she had a permit she asked Elena for the money to pay her fare, but got nothing. She therefore requested her uncle again to pay for her fare which he also did. She left for American Samoa on the 10th of May 2013 leaving her five month old son in the care of her parents. She was still in
American Samoa when the charges against Elena Faiga were dismissed. Foai’s mother Logogalu
recalled differently. She is originally from American Samoa. Her father (Foai’s grandfather) and one of her brothers (Foai’s uncle) are American Samoans who live there. When it was discovered in American Samoa Foai was pregnant Logogalu’s airfare to go and escort her back was paid for by her father in American Samoa. It was her and her husband’s plan all along for their daughter to return to American Samoa to work, after she gave birth.
Logogalu talked to her father about her plans not only to get Foai back to American Samoa but where and who she was to live with. Organising of permits for Foai to enter American Samoa and payment of her airfare every time she travelled there was done by her through her father.
Lawyer Fepulea’i Patrick Fepulea’i with Caroline Stowers.
For this reason, Logogalu did not know of any reason why her daughter testified Elena urged her to go on the EFKS fundraising trip to American Samoa or Elena offering to pay for Foai’s airfare to go back to American Samoa. In her view Foai went back to American Samoa in May 2013 only because of her parent’s decision for her to find work and a better future in American Samoa. Foai did not go back because of any consultations Foai had with her grandfather or uncle in American Samoa.
Because she is of a younger generation it would be inappropriate for Foai according to Logogalu to consult her grandfather or uncle (Logogalu’s father and brother respectively) in American Samoa directly on matters such as permits and airfares. She disputed Foai herself organising her entry permit and airfare to American Samoa when she left in May 2013 because Logogalu herself did it after talking to her father and brother in American Samoa.
In Logogalu’s view her relationship with her daughter Foai is close. Despite this, Foai never told Logogalu what she told the police in her statement. Logogalu claimed she only knew of a scandal involving the village pastor Terry Faiga when the feagaiga or covenant between the congregation and the pastor ceased following the annual meeting of the EFKS Church at Malua in May 2013. Foai had by then left for American Samoa.
Information D2242/15 - As amended alleges that Elena Faiga attempted to defeat the course of justice…the criminal prosecution of herself for indecently assaulting Susana Stowers when she coerced between the 20th of February and 10th of May 2013 Foai Galue Malo to leave for American Samoa.
Information D2282/15 - Alleges that Lina Chang, Tumua Luafalealo, Sala’a Sale Sala’a and Elena Ulia Faiga attempted to defeat the course of justice…the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers in preparing the letter to the Commissioner of Police to withdraw the charges against the fourth named defendant.
Information D2283/15 - Alleges that Lina Chang and Tumua Luafalealo attempted to defeat the course of justice…the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers for coercing Susana to leave for American Samoa on the 24th of July 2013 before the court case.
Information D2284/15 - Alleges that Lina Chang and Sala’a Sale Sala’a attempted to defeat the course of justice….the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers for arranging between the 1st and the 25th of July 2013 for Susana’s parents to withdraw the charges against Elena Ulia Faiga.
Information D2285/15 - As amended alleges that Lina Chang and Tumua Lufalealo attempted to defeat the course of justice.....the police investigation into the dismissal of the criminal prosecution of Elena Ulia…assaulting Susana Stowers when they called Susana on the
11th of November 2013 and told her not to cooperate with the police.
Prima facie case
At the close of the prosecution case two matters were raised by defense counsels. First,
Mrs Heather-Latu submitted on behalf of all defendants the charges as laid and after amendments to some were allowed were defective for insufficient particulars, and ought to be quashed. The submission was denied and a ruling with the reason for the denial was delivered orally on the 1st of December 2015. Second, all three defense counsels also submitted to dismiss all charges on the basis a prima facie case in respect of each charge had not been made out. The submission with specific regard to the charge in Information D2282/15 against all four defendants was accepted and a ruling was similarly delivered orally with reasons the same day. Information D2282/15 was consequently dismissed and requires no further discussion here. The remaining charges for discussion are Informations D2242/15 (against Elena Faiga), D2283/15 (against Mrs Chang and Mrs Lufalealo), D2284/15 (against Mrs Chang and Supt. Sala’a) and D2285/15 (also against Mrs Chang and Mrs Lufalealo).
The charge as amended and further explained by prosecuting counsel in opening alleges that Elena Faiga attempted to defeat the course of justice by trying to coerce Foai Malo to leave for American Samoa between the 20th of February and the 10th of May 2013.
The prosecution relies in this charge on Foai’s evidence. She said Elena asked her to go to American Samoa on two separate occasions. The first was a day after the 20th of February 2013 when Elena told Foai to go with the EFKS fund raising group to American Samoa. The second was on a date after the fundraising trip had returned and before Miss Malo left for American Samoa on the 10th of May 2013. This time Elena told Foai she would pay her airfare if she went and stayed in American Samoa until the court case was over. Foai’s mother Logogalu contradicted her daughter about being present at a reconciliation. Similarly with the family members here and in American Samoa directly responsible for organising Foai’s permits and airfares as well as the reason Foai left for American Samoa in May 2013.
Counsel for Elena Faiga relies on the contradictions by Logogalu of her daughter’s evidence as providing adequate justification for a finding that Foai’s credibility as a witness generally and the reliability of her evidence Elena asked her to leave for American Samoa is both questionable and doubtful. There is some merit in what Ms Papalii argues regarding Foai’s credibility and a doubt could arguably also be raised from the contradictions in the testimonies of mother and daughter.
It does not necessarily follow however from such a finding that Foai’s evidence about what Elena asked of her twice did not happen the way Foai said it happened. The way I see it, the respective parts of Foai’s evidence which was not rebutted by the defendant or contradicted in any significant way by Foai’s mother supports the prosecution’s claim that Elena attempted at least once to frustrate the criminal proceedings brought by the police against her. She did it by asking Foai Malo, a witness for the prosecution to leave while the hearing of the case relating to the same said charges was pending before the Court. Even though Foai did not leave immediately or at all for American Samoa on either occasion she was asked to, that was not in issue. It goes without saying also that Elena had a motive to see the charges against her of indecently assaulting Susana fade away somehow. I am satisfied from the evidence that Elena between the 20th of February and the 10th of May 2013 attempted to defeat the course of justice being the criminal proceedings against her by doing what she did with regard to Miss Foai Malo, and find her guilty as charged.
The charge as explained by prosecuting counsel alleges that Lina Chang and Tumua
Luafalealo attempted to defeat the course of justice being the criminal prosecution of Elena Ulia
for…assaulting Susana Stowers when they coerced Susana to leave for American Samoa on the 24th of July 2013.
The prosecution relies in this charge on the evidence of Susana and her mother Peati, and to a certain extent the evidence of Su’a Stowers. As I recall, in Susana’s evidence in chief she mentioned Mrs Luafalealo calling her in Savaii and telling her to get ready to go to American Samoa. She told her parents what Mrs Luafalealo said. Susana also told Mrs Luafalealo that she had a brother named Sosene in Pagopago American Samoa. She gave Mrs Luafalealo Sosene’s phone number. Her brother got her an entry permit for American Samoa and paid for her airfare. She left on the first flight out the morning of the 24th of July 2013. According to Su’a Stowers, he and his wife Peati planned to send Susana to American Samoa after the April 25th meeting at SVS.
However, Susana left unexpectedly earlier than planned because of pressure from SVS. He did not elaborate who from SVS pressured him or why he gave into such pressure if that is what happened. According to Peati, Mrs Luafalealo called her in Savaii to ask if they had any relatives living overseas they could send Susana to. She also said the entry permit for Susana that her son in Pagopago applied for arrived on the 23rd of July 2013. After seeing her daughter off the next day Mrs Luafalealo called Peati to call into the SVS office. At the Office, she said Mrs Chang told her to go and see Supt Sala’a at the police station. When cross examined Peati said her and her husband Su’a decided to send Susana to American Samoa for her future after the court case.
But SVS called them to get Susana out of the country urgently before the court case. At its best the only prosecution evidence on this charge against Mrs Chang was her advising Peati at the SVS Office to see Sala’a after her daughter had left in the morning. There is no evidence of Mrs Chang making any calls to Susana or Su’a or even Peati urging anyone to send Susana anywhere. Mrs Chang denied also seeing Peati that day. But even if it was true that it was her Peati saw, not only is it the only evidence linking her to allegedly coercing Susana to leave for American Samoa before the court case, but also evidence of coercing Susana to leave after the fact she had already left. Again I am not satisfied by the whole evidence relating to this charge Mrs Chang attempted to coerce Susana to leave the country before the court case.
As far as Mrs Luafalealo’s guilt or otherwise of this charge goes her name was mentioned by both Susana and Peati as the member of SVS who called them in Savaii asking whether they had any relatives living overseas. Like her husband Su’a, Peati did not refer either to a specific name of a person other than saying it was pressure from SVS that prompted Susana’s departure before the court case.
The police in Tuasivi were unable to serve a witness summons on Susana because she left the morning of the day they tried to serve her. When she left for American Samoa therefore she had not been formally summoned to appear as a witness for the hearing scheduled for the 25th of July 2013.
In Mrs Luafalealo’s defense, her counsel submitted that Susana was free to travel overseas when she left because she was under no legal obligation to remain in the jurisdiction. That makes sense but hardly the issue. The issue is whether Susana’s departure before the court case was due to pressure from Mrs Luafalealo, or her own family’s decision, or both. Despite leaving before the court case, Susana could have stayed until after the court case. The question which arises is; was she forced to travel the day she did and if so by whom? I see no evidence of Susana leaving when she did under duress.
There is no evidence either of Su’a or Peati claiming they had no options available other than to succumb to the so called pressure. One cannot ignore the fact Mr and Mrs Stowers on the evidence decided after the April meeting at SVS to send Susana to American Samoa. In their own words that was their wish for her and her future. There was certainly no obligation on them to send Susana away the day she left. It appears from their evidence they sent Susana away the day she did, out of respect for SVS. That is the basis of the prosecution arguing the evidence of telephone calls Mrs Luafalealo made before Susana left is enough to find her guilty of attempting to coerce Susana to leave before the hearing of the court case.
Other than the evidence of Susana and Peati that Tumua called them and asked if they had relatives living overseas where Susana may go, the real question is whether the prosecution’s evidence against Mrs Luafalealo is any different from that against Mrs Chang in proving an attempt by her either alone or in concert with Mrs Chang to coerce Susana to leave before the court case. I have considered this question at length and have come to the conclusion I am not certain the evidence is enough to satisfy the court that Mrs Luafalealo’s acts of calling Peati and Susana should single-handedly bear the brunt of the collective wish and intent of Susana’s parents and possibly Susana herself for her to leave and more importantly for her to do so before the court case was heard. I am left with a nagging doubt in my mind and Mrs Luafalealo gets the benefit of that doubt. She is found not guilty.
In accordance with the prosecution’s closing submissions, this charge alleges that Lina Chang and Sala’a Sale attempted to defeat the course of justice being the criminal prosecution of Elena Ulia for indecently assaulting Susana Stowers by arranging for Susana’s parents to withdraw the charges against Elena Faiga between the 1st and the 25th of July 2013.
The prosecution relies significantly in this charge on certain events which occurred between the 1st and the 25th of July 2013. The first is a meeting held at SVS on the 4th of July 2013 at which Terry and Elena Faiga, Susana, Supt Sala’a and Mrs Chang were present.
The second is another meeting also at SVS on the 5th of July 2013 attended by Mrs Luafalealo, Susana and Supt Sala’a where the letter to the Commissioner of Police requesting a withdrawal of the charges was prepared and signed by Susana and Mrs Chang. The third is the letter in reply dated the 12th of July 2013 from the Commissioner refusing the request. There is no evidence who in SVS received the Commissioner’s letter or when it was received or the reactions if any from either Mrs Chang or Mrs Luafalealo to the letter. The fourth is the departure of Susana for American Samoa on the 24th of July 2013 and the respective roles allegedly played by either Mrs Chang or Supt Sala’a or both in her departure. Lastly, the dismissal of the charges on the 25th of July 2013, and the subsequent events involving Supt Sala’a.
According to Mrs Chang she only saw Supt Sala’a on the 4th of July during the whole of July 2013 when she asked him for his help on the appropriate procedure in withdrawing the charges. She did not see him on the 5th of July because she was in her own Office at SVS while the letter was being prepared outside. The letter was only given to her to sign in her office after Susana had signed it. She had no further involvement with Susana’s matter after that day and denies seeing Peati on the 24th of July at SVS and instructing her to go and see Supt Sala’a because she was preoccupied elsewhere on a UN project at the time.
According to Supt Sala’a he first became aware of any criminal charges by the police against Elena when Mrs Chang asked him to come to SVS on the 4th of July 2013 which he did. It was the first time he had met Susana, Terry and Elena Faiga. His advice was sought that day on the procedure to withdraw the charges.
He admitted to having telephone conversations with Elena after having met her. He did not deny helping out with the wording and formatting of the letter of 5th July to withdraw the charges. He admitted seeing Peati at the police station where she came to find him on the 24th of July 2013 but denied coaching her about what to say in court the next day. He admitted helping her with what to do rather than what to say when the charges were called in court. He went to Savaii on the 25th of July 2013 but strongly objected to suggestions he only went for this particular case.
He said he only went across to hand over the prosecutorial role to the Tuasivi Police. He also admitted asking the Fagamalo police to pick up Elena from Samalaeulu and take her to the Rosalote Hotel, and having a drink with her there together with S/Sgt Komiti the evening of the 25th of July 2013. As a police officer the propriety of having a social drink in the company of a defendant against whom charges brought by the police were earlier the same day dismissed was put to him by counsel. He did not seem to find anything improper on his part because the charges had already been dismissed. His explanation simply is he is innocent of any wrong doing regarding the police case against Elena. His purpose was to help in circumstances where and when it was sought, initially by Mrs Chang of SVS and later by Peati. His advice on the appropriate steps to take when trying to withdraw criminal charges was standard and accepted practice. That is what he said on the 4th of July when he was asked and again in preparing the letter of the 5th of July 2013.
JOYFUL MOMENT: Siliniu Lina Chang.
He did not do anything different to what he had done previously either when Peati came to see him. The fact he is