Police v Tavita [2016] WSDC 29 (20 July 2016)

DISTRICT COURT OF SAMOA
Police v Tavita [2016] WSDC 29

Case name:	Police v Tavita
Citation:	[2016] WSDC 29
Decision date:	20 July 2016
Parties:	POLICE v TULUI TAVITA, male of Falevao
Hearing date(s):	13 May and 10 June 2016
File number(s):	D761/16, D762/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	JUDGE LEIATAUALESA D M CLARKE
On appeal from:
Order:	On the evidence and for the foregoing reasons, I find the Prosecution has not proven the charge beyond reasonable doubt and the charge of assault is accordingly dismissed.
Representation:	Ms F Ioane for National Prosecutions Office Defendant in person
Catchwords:	Assault – uttered threatening words
Words and phrases:
Legislation cited:	Crimes Act 2013 s.123 Police Offences Ordinance 1961 s.4 (g).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

TULUI TAVITA, male of Falevao
Defendant

Counsel:
Ms F Ioane for National Prosecutions Office
Defendant in person

Decision: 20 July 2016

RESERVED DECISION OF DCJ CLARKE

The Charge:

1. The defendant was charged with two charges summarized as follows:

(i) That on the 14^th day of February 2016, the defendant assaulted Sui Tauasosi, a female of Falevao in breach of section 123 of the Crimes Act 2013; and

(ii) That on the 29^th day of February 2016, the defendant uttered threatening words where a breach of the peace may be occasioned in breach of section 4(g) of the Police Offences Ordinance 1961.

2. The charge of threatening words was withdrawn and dismissed by leave on 13 May 2016 on the grounds of no evidence. The remaining matter for determination therefore is the charge of assault.

The Law:

3. The charge of assault against the defendant is brought pursuant to section 123 of the Crimes Act 2013. Section 123 provides:
   • “123. Common assault – A person is liable to imprisonment for a term not exceeding 1 year who assaults any other person.”
4. For the prosecution to establish the charge of assault, the Prosecution must prove beyond reasonable doubt that the defendant intentionally applied or attempted to apply force to the alleged victim.

The Evidence:

5. The Prosecution’s sole witness was Sui Tauasosi. Sui is a 12 year old female attending Primary School. She said that on the morning of 14 February 2016, she was at home. She was sleeping on the floor in their house. There were many of them in the room including her brothers and her grandmother who was sleeping on the mattress next to her. Between 6.00am and 7.00am, she said was shocked when someone came to her head, pulled her hair and ran off. She said it was dark (“pogisa”) but identified the defendant as having pulled her hair. She said she was able to identify the defendant because of a light shining in from the road, she described the distance of the light to the room as being from the balustrade of the exterior of the Court room to the witness box. Under cross-examination, she said she didn’t scream because she was scared. It is accepted that Sui knows the defendant as the defendant is in prison for earlier offending against her.
6. The defendant elected to give evidence and he also called 3 witnesses. All witnesses were called as alibi witnesses.
7. The defendant told the Court that he is currently a Prisoner. He said that on the 14^th February 2016, he was on weekend release. He was at home at Falevao. He woke early to make umu at about 4.00am with his aunty, parents and cousins and they finished making the umu at about 8.00am. The distance from where the umu was being made to where Sui lives is not far, a distance from the Court room to the taxi stand on the other side of the road to the Court House. He denied knowing Sui and said he had never seen her before and denied pulling her hair. Under cross-examination, he accepted that he did know Sui and in fact, he was serving a custodial sentence as a result of offending against her.
8. Timena Tavita gave evidence on behalf of the defendant. She is 40 years of age, resides at Falevao and is the defendant’s mother. She said that on the 14^th February 2016, she participated in the making of the umu with her family. The umu preparations started at about 4.00am. The defendant was present and involved in the preparations and making of the umu. After preparing the umu, they cooked the umu at about 7.00am. At about 7.30am, the defendant was asked to go cut palm fronds (lau niu) and he then went and cut the palm fronds.
9. Taveta Siaki was also called. He is 34 years of age from Falevao. He is related to the defendant. He said that at 4.00am or 4.30am, they made the umu together with the defendant. In cross-examination, he agreed that the defendant was present the whole time the umu was being made. At about after 7.00am, he left and went to go open the shop. The defendant left at the same time to go and cut palm fronds. It was light at that stage.
10. Usugafono Simati was the final witness called by the defendant. She is 36 years of age from Falevao and is related to the defendant. She said she was present on the morning they were making the umu. She arrived at about 5.00am. The defendant was present together with her parents. The defendant was present the whole time and did not leave until about 7.30am when he went to go and cut down the palm fronds.

Discussion:

11. There is no question on the evidence that the defendant was on Weekend Release and at Falevao on the 14^th February 2016. The question is whether in the early hours of that morning, has the prosecution proven beyond a reasonable doubt that the defendant then assaulted Sui Tauasosi as alleged. The sole Prosecution witness said she was sleeping on the floor next to her grandmother who was on an adjacent mattress. In the room sleeping were other family members. It was dark but there was some light shining into the area where she slept. She was shocked when her hair was pulled and the person who pulled her hair then ran-off. She identified the defendant, who she knew, as the perpetrator of the assault.
12. Based on the evidence, any observation by Sui of the alleged perpetrator was fleeting and in poor light. She was shocked to have her hair pulled and that person then running off. Whilst she slept next to her grandmother and there were others sleeping in the same room with her, none, so it seems, were woken by the perpetrator pulling her hair then running off in the dim light. For the defendant, he gave evidence and called three witnesses who also testified that on the morning of the alleged assault, the defendant never left the umu. They said that he arrived at about 4.00am and left at about 7.00am, or later based on the account of other alibi witnesses. Whilst the defendant’s evidence itself was evasive denying knowing the complainant for example, the alibi evidence coupled with the circumstances of the purported identification and recognition of the defendant gives rise to reasonable doubt in my mind that it was the defendant that pulled Sui’s hair. This doubt is further re-enforced by the evidence that when the alleged perpetrator ran off in the dim light after pulling her hair whilst she was on the floor, no one else in the room were woken by the purported perpetrator running off or as a result of what is alleged to have occurred.

Decision:

13. On the evidence and for the foregoing reasons, I find the Prosecution has not proven the charge beyond reasonable doubt and the charge of assault is accordingly dismissed.
    

JUDGE LEIATAUALESA D M CLARKE