Supreme Court Justice questions witnesses no show

By Deidre Tautua-Fanene 12 June 2018, 12:00AM

Supreme Court Justice Leiataualesa Daryl Clarke was not happy when prosecution witnesses did not show up for a hearing last week Friday.

When the hearing of Eti Alapae, who is accused of stealing from the Auto Spare Parts at Matautu-uta, was called, lawyer Vaisala Afoa of the Attorney General’s Office told the Court the prosecution was ready to proceed.

Alapae of Apia, Leone and Vaimoso, is charged with one count of theft and one count of burglary.

According to the Police summary of facts, he is accused of illegally entering the Auto Spare Parts building at Matautu-uta. While inside the building, he stole $30, 160, US$4,560 (T$11,686.85), NZ$200 (T$360.80), $2,031.80 CNY (T$813.70), phone cards Digicel and Bluesky $1,500, N.Z. passport $350 and an iron box that is used to store money which cost $1,500.

The total cost of the stolen items came up to $46,371.30 belongings of Crystal Chang, a female of Matautu and Alafua. Alapae pleaded guilty to burglary but not guilty to the charge of theft.

Justice Leiataualesa questioned the defendant.

“Eti can you explain to me the essence of your plea of not guilty to the charge of theft?” Justice Leiataualesa asked.

“Because you seek to vacate your not guilty plea in respect of burglary which means you accept that you unlawfully entered the building of Auto Spare parts but you are pleading not guilty to theft.

“Is it because you dispute the items stolen? Do you accept that some of the materials in the charge were stolen or not?”

Alapae said yes.

“I only took $10,000 but the amount that I am hearing from charges I never took any of those amounts that is the only amount I took,” Alapae told the Court.

Justice Leiataualesa adjourned the matter for the registrar to go through the charges with the defendant and note down why he’s disputing the summary of facts. 

After their meeting, Justice Leiataualesa then explained to Alapae about the criminal charges.

“The charge of theft that you have been charged with, you are jointly charged with another person namely Lei’a,” he told the defendant.

“What that means is that if both of you together stole all the items or you were a party to the theft of those items with your co-defendant Lei’a then both of you together as a party stole all the items but Lei’a took the other items and you took the other items.

“That means you are both guilty of the full amount of the amount that was stolen from this building. Even if you took the part of it and Lei’a took the other part, you are guilty of all the items stolen because you are charged as a party.”

At the end Alapae still maintained his not guilty plea.

“My plea of not guilty remains and I have changed my mind as well in the burglary charge, I plead not guilty,” he said.

This was when Justice Leiataualesa had asked the prosecution to proceed with the hearing; however Ms. Afoa told the Court that only the complainant was waiting outside.

“Where are all the other witnesses,” asks Justice Leiataualesa. “Because prosecution came on the 31st May and applies to the C.J. they are ready to proceed for hearing before me today (Friday).”

At that point, Ms. Afoa told the Court that the Investigating Officer told her that he will be at Court with the witnesses.

“I was advised by our Investigative Officers that he will attend Court today, however I have just confirmed that it’s just the complainant that’s outside,” she said.

“So I am seeking the Court’s indulgence to have 10 minutes break so I can contact the Investigating Officer of this matter.”


After a break, prosecution had sought for the Court’s indulgence to have the matter adjourned because the witnesses will not be present during the hearing.

This made Justice Leiataualesa unhappy.

“Prosecution, this issue should not be arising, this is the hearing and you said you are ready to proceed as of Thursday last week,” he told the prosecution. “What that means is that you will be able to summon all witnesses and arrange for them to be here.”

But Ms. Vaisala could not do anything.

“My apologies, but have just got an update from the Investigating Officer that he is still trying to locate the witnesses,” she said.

It was then that Justice Leiataualesa asked the prosecution of the whereabouts of their witnesses.

“Why is he still trying to locate them, it is now Friday but the date was confirmed last week Thursday at call overs,” he said.

But Ms. Afoa said the problem falls on the Investigating Officer.

“We have done our part and we have informed the Police on 29th of May in regards to this matter,” she said. “So we are seeking for Your Honor’s indulgence for a final adjournment for prosecution to summon all witnesses.”

Justice Leiataualesa granted the motion.

“This matter has been given an early hearing date because prosecution opposes bail and then requested for an early hearing date today (yesterday),” he said.

“There is no satisfactory explanation from the prosecution as to why witnesses are not present and informing the Court that you have done your part is not a satisfactory explanation on why witnesses are not here.

“And if this has been an issue with the Investigating officer in delaying of his part, then prosecution should raise the matter with the Police so it does not reoccur.

“This matter is adjourned to Monday for mention to set another hearing date.”

By Deidre Tautua-Fanene 12 June 2018, 12:00AM

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