Police v Sala [2015] WSDC 6 (30 January 2015)

DISTRICT COURT OF SAMOA
Police v Sala [2015] WSDC 6

Case name:	Police v Sala
Citation:	[2015] WSDC 6
Decision date:	30 January 2015
Parties:	POLICE v TAULOA SALA male of Leauvaa
Hearing date(s):	21 January 2015
File number(s):	D2193/14, D2194/14
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai Ameperosa Roma
On appeal from:
Order:	I find therefore on the evidence that the prosecution has proven beyond reasonable doubt that: (i) the complainant was caused actual bodily harm and / or injury; and (ii) the said harm and / or injury was caused by the accused’s assault on the complainant. I accordingly find the accused guilty of the charge against him.
Representation:	P Ualesi SGT for the Prosecution
	T I Ponifasio for the Defendant
Catchwords:	Actual bodily harm
Words and phrases:
Legislation cited:	Crimes Act 2013, s119(2, Police Offences Ordinance 1961, s16
Cases cited:
Summary of decision:

DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

TAULOA SALA, male of Leauvaa.
Defendant

Counsel:
Sgt Poe Ualesi for the Prosecution
Mr Tuala I. Ponifasio for the defendant

Hearing: 21^st January 2015.

Decision: 30^th January 2015.

DECISION OF JUDGE ROMA

Charges

1. The accused faces two (2) charges arising out of an incident at Tanoa Tusitala Hotel (“Hotel”) at Sogi in the early hours of the 5^th September 2014, around the time when the UN SIDS Conference was taking place here in Samoa.
2. The first and more serious is Information D2193/14 alleging that the accused caused one EJ Elia Afamasaga (“complainant”), a 24 year old male of Nofoalii, actual bodily harm (Crimes Act 2013, section 119(2)). The second (Information D2194/14) is one of being found drunk in a public place (Police Offences Ordinance 1961, section 16). On application by the prosecution prior to the commencement of the hearing, that second charge was withdrawn and dismissed.

Evidence

3. The prosecution called 3 witnesses, namely the complainant, Constable Sam Samoana who was on police patrol at the Hotel when the incident occurred and Fuimaono Dr. Peniamina Leavai, a Consultant Specialist in Oral Surgery, formerly with the National Health Services, Motootua and now a private practitioner who examined the complainant on the same day and hours after the incident.
4. The complainant is employed by the Hotel as a security guard. His evidence is that on the evening of the incident, he was assigned to the rear gate with one other colleague in an 8 hour shift from 3.30pm to 11.30pm. In the course of the evening and during their shift, a Chinese Embassy cocktail function was also being held at the Hotel’s conference room and in which the accused who is also their Hotel security manager was present. According to the complainant, when nearing the end of their shift, he and his other colleague got into a change of clothes and took out beer which they had kept in a security room and started drinking.
5. When the accused found them and inquired why they had changed and drank, he replied that the members of the new shift had already arrived. The accused seemed unhappy, told them off and returned to the cocktail. Subsequently when the accused again checked on the complainant and his colleague, he was not at the gate but had gone to buy smokes for one of the bosses named “Jason”. The accused was still around the vicinity of the rear gate when the complainant returned and following a verbal exchange, the accused punched him once on his mouth as he was turning to walk away.
6. One of the people present tried to break them off but already as a result of the punch, he had sustained a broken tooth and blood was coming from his mouth. He says that it was painful and after they were brought to the Police station later that morning, he requested to leave so that he could see a dentist for treatment.
7. Under cross examination, he was clear that the complainant did not push but punched him once as he tried to walk away. He denies that he fought with the complainant and that they both fell to the ground but maintain that he did not retaliate; that they were broken off immediately after he was punched; that he tripped over a rubbish bin and that the injuries he suffered were a result of the punch by the complainant.
8. The complainant further says that he and the accused have since met and reconciled and that he had requested the Police to withdraw his complaint. Obviously, the Police did not grant his request but decided to proceed with the hearing.
9. Constable Sam Samoana, the second prosecution witness’ evidence is that he was one of two (2) police officers and five (5) auxiliary members on duty at the Hotel on the evening and early hours of the day of the incident. He was patrolling around the vicinity of the rear gate when he saw the complainant and the accused talking. He was about 10 metres away when he saw the accused punch the complainant once. He was clear that the punch landed on the complainant’s mouth before he rushed over and tried to break them up. He further says that he saw blood on the complainant’s mouth. He conceded under cross examination that he is a distant relative of the complainant.
10. Fuimaono Dr. Peniamina Leavai was the prosecution’s final witness. He has had 16 years experience in Oral Surgery and confirms examining the complainant at the Oral Surgery Unit of the National Health Services, Motootua on 5 September 2014. He has since resigned but continues to practise as a private practitioner. His report (Exhibit P1) is clear on the injuries that the complainant presented himself with. It states that his examination revealed “second degree mobility of upper left canine and upper left lateral incisor; a fracture below the gum level of the upper left central incisor which had to be extracted and first degree mobility of both the upper right central and lateral incisors.” In his view, the complainant will require “a partial denture for his missing upper left central incisor to assist him in phonetics when speaking and functionally in mastication.”
11. The accused elected to give evidence. Apart from detail in his evidence about the briefings he had with the complainant and their other colleague at the beginning of the shift; the number of times he came to check on them during the course of the evening; the verbal exchange that took place between him and the complainant immediately before physical contact and the nature of that contact, his evidence is almost similar to that of the complainant.
12. The main point of difference however is his denial that he struck or threw a punch at the complainant. He says that not long before the incident, he called the complainant to come over because he wanted to talk to him; the complainant moved towards him with aggression and was swearing at him; he thought that the complainant would hit him then he pushed him away. The complainant bounced back and jabbed him before they were separated and the complainant fell and hit a rubbish bin nearby. Despite suggesting that the complainant’s injuries might have resulted from that fall, he concedes that he was not able to see how the complainant fell and where exactly of his body made contact with the rubbish bin.

Issue

13. There is no dispute that the complainant was caused actual bodily harm or injury on the early hours of 5 September 2014. The only element in issue is whether those injuries were caused by the accused’s assault of the complainant.

Law

14. Section 119 (2) the Crimes Act 2013 under which the accused is charged states:

“A person is liable to imprisonment for a term not exceeding five (5) years who causes actual bodily harm by assaulting that other person or by acting with reckless disregard for the safety of any other person.”

Discussion

15. Again, I have no difficulty finding that the complainant was caused actual bodily harm and injury on the evening or day of the incident. The defendant’s own evidence of his oral injuries is supported by Constable Sam Samoana who saw blood coming from his mouth. The extent of those injuries was explained clearly in the medical evidence of Fuimaono Dr. Peniamina Leavai, which evidence is also uncontested.
16. As to whether or not the injuries were a result of the accused assaulting the complainant, I am inclined to accept the evidence for the prosecution. Firstly, the complainant was clear in his own evidence on the verbal exchange between him and the accused; how he was punched by the accused; the pain he felt and the blood that came from his mouth and how they were stopped and separated by Constable Sam Samoana. He was also unmoved under cross examination.
17. Secondly, the complainant’s evidence is supported in material parts by that of Constable Samoana and having observed Constable Samoana’s demeanour and listened carefully to his testimony, I do not consider him to be any less reliable because of his relation to the complainant. He is young man who was newly recruited by the Police around the time of the UN SIDS Conference and I doubt that he would risk a new career in the Police force over inaccurate reporting to his superiors of an incident and especially by giving false evidence in Court in support of a relative.
18. On the other hand, I have difficulty accepting the version by the accused. Firstly, he was the security manager and supervisor of the complainant; he was clearly unhappy with the way the complainant carried out his duties, especially when he was not at his designated area on three (3) occasions when he checked on them. In my view, it is more plausible in the circumstances that he would be provoked and react by punching the complainant than the complainant swearing at him and coming towards him with aggression as was his testimony.
19. Secondly, whilst suggesting in his (accused) evidence that Constable Samoana was not at where the incident happened, the point was never put or suggested to Constable Samoana under cross examination. In fact, the cross examination of Constable Samoana by Counsel focused solely on what he saw happen between the complainant and the accused and how he saw it happen before they were separated.
20. Thirdly, in the absence of evidence as to how the complainant fell when they were separated and which, if any, part of his body came into contact with a nearby rubbish bin, the only logical explanation as to the cause of the complainant’s injuries would be by a strike or punch on his mouth as is the evidence of the complainant and Constable Samoana.

Decision

21. I find therefore on the evidence that the prosecution has proven beyond reasonable doubt that:

(i) the complainant was caused actual bodily harm and / or injury; and

(ii) the said harm and / or injury was caused by the accused’s assault on the complainant.

22. I accordingly find the accused guilty of the charge against him.
    

JUDGE FEPULEA’I A ROMA