The judge-only trial of two men accused of causing the death of Jeremiah ‘Malaki’ Akeli Tauiliili after a tragic incident involving Samoa’s youth at the Apia Marina Edge Bar is currently underway before Justice Mata Tuatagaloa.
The incident on the 30th of November 2018 sparked a tidal wave of emotional responses on social media from friends and family of Malaki, who is the son of Samoa’s Member of Parliament for Vaimauga i Sasa’e, Sulamanaia Fetaiai Tuivasa Tauiliili.
At the time of his death the 24-year-old scholarship student had recently returned to Samoa with a Bachelor of Mechanical Engineering and a Certificate in Business from Auckland’s University of Technology (AUT).
Herman Paul Westerlund and Suapaina Savaiinaea both entered not guilty pleas to the charge of reckless intent to commit murder and the lesser charge of manslaughter. Westerlund has engaged a New Zealand Queens Counsel Mr Aaron Perkins QC assisted by Muriel Lui, while Savaiinanea had to apply for legal aid and was assigned Leiataualesa Jerry Brunt assisted by Elizabeth Chan Tung–Peters.
The Court has had to hear many pre-trial matters before the start of this case, including requests by Westerlund’s lawyers to have separate trials for the two accused. Samoa’s Supreme Court did not grant separate trials, but did grant an application by defense for the matter to be heard before a judge only, to avoid a panel of assessors who may be compromised by the myriad of social media opinions and different versions of what took place.
Prosecution is being led by Silupevaelei Rexona Titi of the Attorney General’s Office, assisted by Ms Violina Leilua.
Silupevaelei told the Court that the evidence would show both defendants consecutively assaulted the deceased who never regained consciousness after the assault, passing away a few days later on the 5th of December 2018 at Motootua hospital.
“The defendants’ individual assaults were in very close proximity to each other, in time and in nature while the deceased was vulnerable”.
Prosecution seeks to establish that each defendant’s alleged assault resulted in the “reckless intent to commit murder.”
Should the Judge find that there was no reckless intent to commit murder, the prosecution submits that the substantial impact of both assaults caused the death of the deceased, consequently committing alternative offences of manslaughter.
Three of the 32 prosecution witnesses presented their testimonies on the first day of trial.
The first witness was Police Officer Toa Tafunai to present photos taken at the scene and establish a floor plan of the area.
The Court then heard from Puleiata Samuelu, a 28 year old male of Lotopa who works at the Quality Home Furnishing at Fugalei.
He recalled arriving at the bar around 11.30pm on the night of the 30th of November 2018 with his friends Paratiso Foaiaulima, Dwane Bentley, Harry Miller and four ladies.
The bar closed not long after they arrived, indicated by the lights going on and the music being turned off. He said it was then that he saw Malaki talking to someone while other boys were trying to pull him away, but he refused.
Samuelu then saw Herman swing a punch that landed on the left side of Malaki’s chin. He said both men fell down but the deceased went down first, falling on his back facing upwards.
He said he could hear the sound of Malaki’s head banging on the floor as he landed.
“Na ou lagona lelei le pa’õ o le ulu i lalo o le floor”
He said Herman also fell with the force of the punch, to the side of Malaki. The witness testified that Malaki looked to be unconscious when Herman got up and punched him again.
“Herman then got up on Malaki’s chest and punched him again, more than once. I don’t know how many more punches but it was more than one punch,” Samuelu told the Court.
Samuelu recalls that the deceased did not react from the other punches because he was unconscious. Aaron Perkins QC in crossing Samuelu asked if he had special qualifications to know when a person was unconscious. The witness insisted that Malaki was non-responsive and that he had heard him snoring when they came near.
According to Samuelu, others came and pulled Herman outside, and it was then that he saw another guy with a beard wearing a red t-shirt and a hat walk by and kick the deceased on the head.
Samuelu demonstrated the kick in Court, and said it was a full swing kick that landed on the right side of the deceased’s head.
He said it was then that his friend Paratiso came to Malaki’s aid. Paratiso turned Malaki on his side and tried to clear his airway by opening his mouth.
Vandalia Lynette Chong Wong, a 27 year old from Vaitele Fou had been in the same group as Samuelu. She told the Court that when the lights came on at about 12 midnight going on to 1am, she heard people arguing. She said she did see Herman trying to calm Malaki down, leading him towards the door of the bar when suddenly, he punched the deceased.
“And then out of nowhere Herman punched Malaki on his jaw; they both fell down and Herman got up and punched him again.”
“He fell back right on his head, on the floor; and when his head hit the ground it really echoed inside the room,” said Chong Wong.
“The echo sounded like a rock that you hold up and then drop it on the floor”.
She also testified that somebody walked from the bar and kicked Malaki on the head.
“His head moved but his body wasn’t responding at all.”
“The deceased never moved again,” she said.
Ms Chong Wong told the Court that people then rushed in to help Malaki, and also mentions Paratiso Foaiaulima trying to lay him on his side and open his mouth. She told the Court that she saw saliva and blood coming out.
She recalls the boys lifting the deceased onto the ambulance and testifies that the deceased was non-responsive the whole time.
Mr Aaron Perkins QC found discrepancies between Puleiata Samuelu’s written statement given to police and his testimony in Court. According to Perkins, the witness had told police in a signed affidavit given in December 2018 that “Malaki fell on his side and sat up and punched Malaki again”. Perkins deduced from the wording of the written affidavit that there had only been one more punch.
Leiataualesa on behalf of Savaiinaea established that Samuelu had been drinking alcohol on the night of the incident, and could not see the person that had kicked the deceased because it was a crowded bar and there were many people infront of him. Samuelu responded that he was able to see the man who delivered the kick.
Samuelu was not able to recall the names of the four ladies in their group, and Leiataualesa suggested that he was being selective with his memory of the events.
The hearing is expected to continue for the next four weeks.