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Marina employees ask Court to revoke Departure Prohibition Order

The Supreme Court has been asked to revoke a Departure Prohibition Order (D.P.O.) in connection to a Police investigation into alleged tampering with evidence in the death of Jeremiah Malaki Tauiliili in December 2018.

The matter surfaced before Justice Tafaoimalo Leilani Tuala-Warren on Thursday when two employees of the Edge Marina View at Matautu, through their lawyers, sought to revoke the order imposed on them.

The employees are John Maiava and Miriama Maiava. They were represented by lawyers, Alex Su’a and Rebecca Schuster.

Mr. Su’a made an application to have the D.P.O. revoked to allow the applicants to travel to American Samoa for business purposes.

But the Attorney General’s Office lawyer, David Fong, opposed it. He told the Court the employees are part of an investigation in connection to the death of Mr. Tauiliili.

“There is an investigation into the Police and Westerlund matter and the applicants themselves are the subject of a separate investigation in (alleged) tampering of C.C.T.V. footage,” said Mr. Fong.

“The investigation was completed recently and the matter is now with our office, specifically the Prosecution division.

“How these things work is the Police carry out their investigation and make a recommendation that is referred to us. The prosecution is in the process of reviewing the file and will make a final decision to charges.”  

Mr. Fong also told the Court that the Police investigation may have been completed but the second stage of the investigation involving the Office of the Attorney General has not been completed.

The Court heard that the employees are also witnesses for the main trial into the death of Mr. Tauiliili, where Herman Westerlund and Suapaina Savai'inaea have both pleaded not guilty to manslaughter.

Mr. Fong said pursuant to the Immigration Act 2004, the Attorney General can impose a D.P.O. on a person that is under investigation.

According to the Act section 26 (e), a person is required to be available in Samoa as part of an investigation of a criminal offence punishable in Samoa or elsewhere by imprisonment for two years or more.

The lawyer said the applicants received the notification of the D.P.O. on 18th March 2019 and had only filed for an application ex-parte on 29th March 2019.

“That is nine working days after receiving the notice, not including the weekend, but it is at your discretion your Honour,” added Mr. Fong.  

Under the Immigration Act, a person subject to an order made by the Attorney General may apply to the Judge of the Supreme Court within seven days of receiving notification to revoke the order.

In addition, Mr. Fong argued that the interest of the public outweighs the interest of the two employees.

“When considering the D.P.O., we don’t look at the interest of the client alone,” he said. “You can appreciate the counsel argument. He is advancing business interest and these clients are traveling overseas to carry out shopping and we are saying that does not outweigh the public interest.

"This case has been substantially covered by the media, there is also public interest and there is a lot of complaints going on. So there was deep consideration in the circumstances.”

But Mr. Su’a maintains that the respondent is reliant mostly on speculative fear.

He said there was a request for the temporary lifting of the D.P.O. but it was eventually denied.

“The traveling is mainly to American Samoa, that was the intention,” Mr. Su’a said.

“However, it’s the fact that they have been part of an investigation that is now completed and there is suspicion of tampering with evidence and they may be charged but is yet to be confirmed.”

Mr. Su’a said the D.P.O. is unnecessarily causing inconvenience to the applicants and restricting their liberty to travel.

In response to claims from respondent that the public interest outweighs the interest of the two employees, Mr. Su’a said they are only asking to travel to American Samoa for one day.

“The fear is based on speculation,” he said.

Justice Tafaoimalo is expected to deliver her decision on Friday 14th June 2019.

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