Police v Pili [2017] WSDC 1 (20 January 2017)

DISTRICT COURT OF SAMOA
Police v Pili [2017] WSDC 1

Case name:	Police v Pili
Citation:	[2017] WSDC 1
Decision Date:	20 January 2017
Parties:	POLICE v UOLI TOOMALATAI EFU PILI, male of Matautu tai.
Hearing date(s):	23 November 2016
File number(s):	D3901/16, D3902/16, D3903/16, D3904/16, D3905/16, D3906/16, D3907/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE ATOA SAAGA
On appeal from:
Order:	Prosecution has proven beyond reasonable doubt that the Defendant had committed assault on Sarabijit Singh Prosecution has not proven beyond reasonable doubt that the Defendant had committed assault on Gurupreet Singh Lavana.
Representation:	Fuifui Ioane for National Prosecution Office Defendant in person
Catchwords:	Assault, Intentional Damage, Insulting Words, Misleading - Armed with a Dangerous Weapon.
Words and phrases:
Legislation cited:	Criminal Act 2013 s.123 and 184(2). Police Offences Ordinance 1961 s.4(g), s.10(2) & s.25
Cases cited:	Comptroller of Customs v Lelua [20SSC 72 (7 Au(7 August 2015)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

UOLI TOOMALATAI EFU PILI, male of Matautu tai.
Defendant

Counsel:
F. Ioane for National Prosecution Office
Defendant in person

Decision: 20 January 2017

RESERVE DECISION OF JUDGE ATOA SAAGA

The Charges

1. The Defendant is charged with the following charges:
   1. Insulting Words pursuant to Section 4(g) of the Police Offences Ordinance 1961.
   2. Intentional Damage pursuant to Section 184(2) (a) of the Crimes Act 2013.
   100. Armed with a Dangerous Weapon pursuant to Section 25 of the Police Offences Ordinance 1961.
   4. Misleading the Police pursuant to Section 10(2) of the Police Offences Ordinance 1961.
   5. Two counts of Common Assault pursuant to Section 123 of the Crimes Act 2013.
2. On the 20^th September 2016, the Defendant pleaded guilty to all the Charges except for the two counts of Assault. The particulars of these two charges are:
   • (i) On the 4^th September 2016, the Defendant assaulted Sarabijit Singh a male of India and Vaigaga.
   • (ii) On the 4^th September 2016, the Defendant assaulted Gurupreet Singh Lavana, a male of India and Vaigaga.
3. The Defendant does not dispute that he assaulted Sarabijit Singh. The Defendant’s claim is that he was justified in assaulting Sarabijit Singh because he was told by Sarabijit that he had a knife concealed under his shirt and that Sarabijit had threatened to use this knife on the Defendant.
4. The Defendant also disputes the second count of Assault on Gurupreet Singh Lavana.

The Evidence:

5. Three witnesses were called by the prosecution. They were Sarabijit Singh, Gurupreet Singh Lavana and Manpreet Singh. The Defendant called one witness Fuaiupolu who is a matai from Matautu tai. The Defendant also elected not to give evidence.
6. Sarabijit Singh on the 4^th September 2016 testified that he was at the seawall at Matautu tai at around 6.30pm with his family enjoying the beach when they were first approached by a man who told them politely to leave the seawall because of the village curfew. All the Prosecution witnesses referred to this man as the ‘nice man’. Sarabijit said that he immediately walked over to his family who were standing nearby in preparation to leave when the Defendant approached him from the seawall and yelling at him saying “Go back to your country. Fuck you and your family, you want to die. If you do not leave I will kill you.”
7. Sarabijit told the Defendant that he had no right to speak to him in that manner. The Defendant then retaliated by swearing at him before reaching out and grabbing his shirt whilst he tried to hit him with the stick he was holding. Mr Singh testified that he could smell alcohol on the Defendant’s breath and that his brother in law Gurupreet Singh Lavana had intervened by pushing the Defendant off him. That other people including his family then tried to keep the Defendant away from him whilst he called the Police who arrived 10 minutes later. He testified that until the Police arrived, the Defendant continued to point his stick at him and threatened to kill him.
8. Both Gurupreet Singh Lavana and Manpreet Singh gave evidence that they heard the Defendant yelling at Sarabijit to leave the country before grabbing his shirt. He also swore at the Complainant using words that these prosecution witnesses did not feel comfortable to reiterate in court. They also testified that Gurupreet tried to grab the Defendant’s hand but was pushed away by the Defendant. The Defendant had continued to call out to them whether they wanted to die.
9. During cross examination, the Defendant put to the Prosecution witness Sarabijit that he had a knife with him under his shirt and that he had threatened the Defendant with the knife causing him to retaliate. Mr Sarabijit Singh strongly denied having told the Defendant that he had a knife under his shirt and he strongly denied carrying a knife with him in public places. Mr Singh, his wife and brother in law Gurupreet Singh Lavana all testified that they had no reasons prior to the incident to be concerned about their safety in Samoa. They have also been living in Samoa for two years and had found Samoa a very safe place.
10. Fuaiupolu the Sole Witness for the Defendant indicated from the beginning of his testimony that he was there as a Village representative to explain the importance of the village curfew and the reason why village curfews are held by the village of Matautu tai. All the men were authorized by the Village Council to prohibit any person from hanging out on the beach during the time of the village curfew as this is the time when the families in the village all have their family devotions. He explained that all the men carried sticks to lean on and not for the purpose of inflicting harm on the members of the public who frequent the beach. The men were not authorized by the matais to use violence on any person. Fuaiupolu also confirmed that he was not present at the time of the incident.

The Law:

11. Section 123 of the Crimes Act 2013 provides that, “A person is liable to imprisonment for a term not exceeding 1 year who assaults any other person.”
12. Section 2 of the Crimes Act 2013 defines an assault as follows:

‘“assault’ means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his purpose; and “to assault” has a corresponding meaning”

13. Justice Wilson in R v Police v Kolio [1999] WSCC 46 stated that, “It is now established by the common law that the crime of common assaul#160;may bmay be constituted by either intention or recklessness. In the English Court of Appeal case of R v Venna
14. Judge Roma also outlined the elements of the offence in Police v Toeaoaana Afamasaga [2016] WSFC 1 at page 5, “The prosecution must prove beyond reasonable doubt
    • (i) There was an application of force, direct or indirect, by the accused on the person of another;
    • (ii) The application of force was intentional;
    • (iii) The accused did so without lawful justification.”
15. The Defendant can also raise Self Defence in justification of the assault. Section 17(3) of the Crimes Act 2013 provides as follows, “A person who has assaulted another without justification or has provoked an assault from that other by any blows, words or gestures, may nevertheless justify force used after the assault if:
    • (a) The person used the force under reasonable apprehension of death or grevious bodily harm from the violence of the party first assaulted or provoked in the belief or reasonable grounds that it was necessary for his or her own preservation from death or grievous bodily harm; and
    • (b) The person did not begin the assault with intent to kill or to do grevious bodily harm and did not endeavour, at any time before the necessity for preserving himself or herself arose, to kill or do grievous bodily harm; and

(c) Before the force was used, he or she declined further conflict and quitted or retreated from it as far as was practicable; and

(d) The force he or she uses is no more than necessary for the purpose of self defence.”

16. Lord Griffiths in the judgment of the Privy Council in Beckford v The Queen [1987] UKPC 1; [1988] AC 130 at page 144,

“The common law recognizes that there are many circumstances in which one person may inflict violence upon another without committing a crime, as for instance, in sporting contests, surgical operations or in the most extreme example judicial execution. The common law has always recognized as one of these circumstances the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing. If no more force is used than is reasonable to repel the attack such force is not unlawful and no crime is committed. Furthermore a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike. It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence , ised as an issue in a in a criminal trial, must be disproved by the prosecution. If the prosecution fail to do so the ad is led tacquitted because the prosecution will have failed to prove an essentiaential elel element ment of the crime namely that the violence used by the accused was unlawful.”

Discussion

• Assault on Sarabijit Singh

17. The Defendant grabbed Sarabijit by his shirt whilst he tried with his other hand to hit Sarabijit with the stick. The act was deliberate and intentional and it was an act done in response to Sarabijit telling the Defendant not to swear or speak disrespectfully to him.
18. The Defendant alleges that he was told by Sarabijit that he had a knife with him and had threatened to use the knife on the Defendant. I find that the Defendant had failed to establish the evidential foundation for self defence and I outline the reasons why I hold this view:
    • (a) There was no evidence that Mr Singh had concealed the knife. Whilst it was put to the Prosecution witness at cross examination and rejected by all Prosecution witnesses, the fact that it was put in cross examination is not evidence and there is simply no evidence to support the defence of Self Defence.
    • (b) The Defendant also approached the Complainant from the seawall so he was quite a distance away. He was also yelling at the Complainant and all the words that were spoken between the Defendant and the Complainant up to when he grabbed the Complainant’s shirt were heard by the Prosecution witnesses who were all standing next to the Complainant. If the Complainant had said to the Defendant that he had a knife under his shirt then he would have had to say it out loud in order for the Defendant to hear. The Prosecution witnesses would all have heard the Complainant tell the Defendant that he had a knife. The Defendant did not also call any witnesses who can testify that the Complainant did say to the Defendant that he had a knife hidden under his shirt and that he was going to use it on the Defendant.
    • (c) The assault was done not in preservation of life but of pride. The Complainant had stood up to the Defendant who was intoxicated, twice his size and was a countryman on duty during his village curfew and within the hearing and sight of all of the other men of his village. As the Defendant was also intoxicated, he could not control his emotions and his anger towards the Complainant.
    • (d) The Defendant did not also retreat nor cease from carrying out any further conflict. Rather he continued to threaten Sarabijit that he will kill him after he had committed the assault.
    • (e) I found all the Prosecution witnesses as credible witnesses.

• Assault on Gurupreet Singh

19. The assault on Gurupreet Singh was alleged to have occurred when the Defendant pushed Gurupreet away when Gurupreet intervened to help his brother in law by pushing the Defendant away from Sarabijit. I find that the Defendant’s action was in response to Gurupreet pushing him away and can amount to self defence. The reasons why I hold this view is because:
    • (a) The Defendant pushed Gurupreet away because Gurupreet was trying to push the Defendant away from Sarabijit.
    • (b) The Defendant was focused solely on Sarabijit and he retreated from further conflict with Gurupreet.
    • (c) The Defendant action was proportionate to the act carried out by Gurupreet in pushing the Defendant away from Sarabijit.
    • (d) Prosecution therefore has not satisfied its evidential duties.
20. I would also comment that by pushing the Defendant away from Sarabijit, Gurupreet act can also amount to an assault on the Defendant. Although self defence of another person can be raised under these circumstances, it will depend on the Court interpretation of Section 17(4) of the Crimes Act 2013 and whether Sarabijit is a person under Gurupreet’s protection.

CONCLUSION

• I find that the Prosecution has proven beyond reasonable doubt that the Defendant had committed assault on Sarabijit Singh
• I find that the Prosecution has not proven beyond reasonable doubt that the Defendant had committed assault on Gurupreet Singh Lavana.
  

JUDGE ATOA SAAGA