Police v Gabriel [2016] WSDC 30 (22 July 2016)

DISTRICT COURT OF SAMOA
Police v Gabriel [2016] WSDC 30

Case name:	Police v Gabriel
Citation:	[2016] WSDC 30
Decision date:	22 July 2016
Parties:	POLICE v GEORGE GABRIEL, male of Alamagoto
Hearing date(s):	17 June 2016
File number(s):	D153/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Tuasivi
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	Having regard to the evidence in its totality and for the foregoing reasons, I find that the Prosecutions has proven the charge beyond a reasonable doubt.
Representation:	Mr A. Tumua for National Prosecutions Office Mr T.R. Faaiuaso for defendant
Catchwords:	Assault -
Words and phrases:
Legislation cited:	Criminal Act 2013 s.123
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT TUASIVI

BETWEEN:

POLICE
Informant

A N D

GEORGE GABRIEL, male of male of Alamagoto
Defendant

Counsel:
Mr A. Tumua for National Prosecutions Office
Mr T R Faaiuaso for defendant
Decision: 22 July 2016

RESERVED DECISION OF DCJ CLARKE

The Charge:

1. The defendant is charged with one count of assault in that it is alleged that on the 21^st February 2016, he assaulted Andrew Heather (Information D 153/16).

The Evidence:

2. The prosecution called 2 witnesses, Andrew Heather and Livi Gabriel. Andrew Heather is a 15 year old student of Leififi College. He resides at the A’ai o Fiti. On the 21^st of February 2016, he said that he went to his friend Livi’s house at Alamagoto and they hung out (‘eva’) there. Livi’s uncle George (the defendant) had been there and had been drinking beer. Later, he said he, Livi and Leva went inside the classroom on the property and hung out there. The defendant later came to the classroom and asked them what they had been saying about the defendant’s cousin. Andrew Heather’s evidence was that he replied that they had said nothing. He then lay down on the floor. When he laid down, the defendant then kicked his head on the left side. As he turned over, he was kicked again by the defendant. Livi and Leva were both present when this occurred. Andrew stood up and asked the defendant why he kicked his head and he was told by the defendant that he was kicked because of what he said about his cousin. The defendant then said he was going to get his gun so Andrew, Livi and Leva ran off.
   
3. Under cross-examination, Andrew said that the assault occurred between 9.00pm and 10.00pm. After they ran-off, they later returned and Police were called. He was cross-examined about the inconsistency in his Police witness statement which stated the time of the alleged assault was 2am and his evidence in Court that the assault occurred at 9.00pm to 10.00pm. It was put to Andrew that no assault was carried out but only that he was chased away, which Andrew Heather rejected.
4. Livi Gabriel gave evidence for the prosecution. He is 17 years of age, is a student and is the defendant’s nephew. In his evidence, Livi said that he had been hanging out with his friends Leva and Andrew at his grandmother’s classroom. Not long after, his uncle the defendant came to the classroom drunk. Andrew was lying on the floor at the front of the classroom near the door. He and Liva were at the back against the wall. The defendant turned on the light of the classroom when he came in, said what are they doing there, and then he turned and kicked Andrew in the mouth. When he (Livi) stood up and asked him why he did that, the defendant told Livi he has no ‘pule’ there and turned around and said he would go get his gun. This occurred at about 11.00pm. They later went to Police at about 1.00am. Andrew, Livi and Leva then left and went to the road. He confirmed that there were paint cans and brushes in the classroom.
5. The defendant elected to give evidence. He is 42 years of age and works at his mother’s pre-school doing repairs. He also works at his family’s night club, Club X in Apia. He said that on the night of 21^st February 2016, he had gone to work at Club X. He finished work at 12.30am and caught a taxi home. When he got home, his cousin Etimani Pereira told him that there were kids in the classroom. Etimani had tried to chase the kids away but they had ‘tau fasi him’ and had sworn at him. When he went to the classroom, the lights were off. The lights outside of the classroom were on. He turned the lights on, he saw three kids, one being his nephew Livi and two other kids he didn’t know. They had been lying down in the classroom. He confirmed in evidence that one of the boys in the classroom was Andrew Heather, who had given evidence. Andrew was closest to the door with his head towards the door. He said he chased them away, they had sworn at him but he never kicked Andrew Heather. The defendant and Etimani had been painting the classroom. He confirmed he was a little drunk (“tau oga”) but not too drunk. He denied in cross-examination being angry at the kids

Discussion:

6. There is no dispute on the evidence that on the night of the 21^st February 2016, Andrew Heather, Livi Gabriel and a third friend Liva were at Livi Gabriel’s home at Alamagoto. On that property is a classroom belonging to Livi Gabriel’s grandmother and the defendant’s mother, Mrs Gabriel. Andrew Heather, Livi Gabriel and a Liva went to the classroom that night and ‘hung out’ (‘eva’) in the classroom. The lights were off, the defendant came to the classroom, switched the lights on and then chased the three kids away, Andrew, Liva and Livi. The question is whether in doing so, did the defendant kick Andrew Heather in the head or mouth.
7. On the defendant’s evidence, he had been painting the classroom with his cousin Etimani that week. He had been told by his cousin Etimani that the kids were in the classroom, he had tried to chase them away but they had tried to beat him up (‘tau fasi ia’), swore at him and chased him away. The defendant admitted he had been drinking and was a little drunk (tau oga) but not too drunk. He confirmed the evidence of the Prosecution witnesses that they had been lying down, Andrew at the front of the classroom and in the defendant’s evidence, Andrew next to the door with his head near the door.
8. On the evidence, I am satisfied beyond a reasonable doubt that the defendant kicked Andrew Heather whilst on the floor at the front of the classroom area. The lights were on and this was evidence of both Andrew Heather and Livi Gabriel, the nephew of the defendant. Whilst there were some inconsistencies in the evidence of the Prosecution witnesses about the time when this occurred and where the defendant had been, there was otherwise significant consistencies in the evidence around what occurred in the classroom including between those of the Prosecution witnesses and the defendant himself. The key inconsistency is whether the defendant kicked Andrew Heather. I accept and prefer the evidence of Andrew Heather and Livi Gabriel which I found to be credible to that of the defendant. Having painted the classroom and on being told by Etimani that the three kids were in the classroom and they had sworn, chased and almost beat up Etimani, the defendant then went to the classroom and I am satisfied beyond a reasonable doubt, then assaulted Andrew Heather.

Result:

9. Having regard to the evidence in its totality and for the foregoing reasons, I find that the Prosecutions has proven the charge beyond a reasonable doubt.

JUDGE LEIATAUALESÃ D M CLARKE