A Samoan man who killed his wife’s lover has appealed his murder conviction, saying the judge did not take into account the traditional Samoan belief that her infidelity had made their son sick.
Solofa Aiono, of Auckland, was convicted in May 2012 of murdering his close friend, Kapelielu Motunuu, also known as Sanele Sanato or Mose, after Aiono’s partner confessed her infidelity to him.
She initially said she was raped, but later told him the sex was consensual.
At the time, the partial defence of provocation was still in operation so Aiono’s counsel argued the murder should be reduced to manslaughter as he was provoked.
The jury decided otherwise and convicted Aiono – who punched his friend to the ground and stomped on his head – of murder.
Aiono went to the Court of Appeal, arguing that the judge did not give enough weight to how severely he was provoked.
He argued not enough emphasis had been given to his Samoan cultural belief that his wife’s behaviour had made their son sick.
Their son was in hospital with whooping cough at the time and Solofa’s lawyer argued the judge should have recognised in her address to the jury that this could have provoked Aiono in a way that others would not be.
The Court of Appeal rejected the argument, saying it was briefly raised in Aiono’s wife’s evidence when she said: “Solofa said to me that, um, it’s my childish behaviour that’s why our son is sick.”
However, Aiono’s defence did not use this point in closing, but rather suggested Aiono had been provoked when he confronted Sanato.
“We are not satisfied that a sufficient evidentiary foundation had been laid for the proposition that a Samoan cultural belief affected the gravity of the provocation that may have been operating on Mr Aiono in a way which raised it as an issue that the judge ought to have addressed the jury on,” the court said.
The court also rejected an appeal that the jury was possibly flawed because nearly half of them were discharged for googling the case.
After the jury was selected, the judge, Justice Mary Peters sent them out while there was legal argument.
One of the jurors googled the case and told four others what they had found.
All five were discharged and the pool of prospective jurors was brought back the next day.
Of those 36, another five were discharged because they too had gone home and googled the case.
The judge continued and a full jury was constituted.
The Court of Appeal confirmed Justice Peters had taken “adequate precautions to ensure that the remaining jury members and panel members had not searched the internet for background to the case or talked to anyone who had”.
Aiono’s appeal against conviction was dismissed. He is serving a sentence of a minimum of 10 years.
– © Fairfax NZ News