Police v Siale [2017] WSDC 26 (27 July 2017)

DISTRICT COURT OF SAMOA
Police v Siale [2017] WSDC 26

Case name:	Police v Siale & Tapumanaia
Citation:	[2017] WSDC 26
Decision date:	27 July 2017
Parties:	POLICE v POASA SIALE, male of Salelavalu & MEILANI ETEUATU TAPUMANAIA, male of Lalomalava.
Hearing date(s):	25 July 2017
File number(s):	D4669/16, D209/17
Jurisdiction:	DISTRICT
Place of delivery:	District Court of Samoa, Tuasivi
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:	I find the First and Second Defendant not guilty of the charges laid against them.
Representation:	I Atoa for Prosecution P L Masipau for defendants
Catchwords:	injury by reckless endangerment
Words and phrases:
Legislation cited:	Crimes Act 2013 section 120
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT TUASIVI

BETWEEN:

POLICE
Informant

A N D

POASA SIALE, male of Salelavalu
Defendant

AND

MEILANI ETEUATI TAPUMANAIA, male of Lalomalava
Defendant

Counsel:
I Atoa for Prosecution
P L Masipau for defendant

Decision: 27 July 2017

DECISION OF JUDGE ATOA SAAGA

The Charges.

1. The First Defendant on the 3^rd day of September 2016 negligently uses the Police Vehicle Pol 05 to hit the suspect Lafaele Aukusitino to perform a legal duty namely to arrest in circumstances reasonably likely causing injury to Lafaele Aukusitino, male of Safotu. The relevant section is section 120 of the Crimes Act 2013.
2. The Second Defendant on 3^rd day of September 2016, recklessly failing to perform a legal duty namely to arrest Lafaele Aukusitino, in circumstances likely to cause injury to Lafaele Aukusitino male of Safotu.

The Law:

3. Section 120 of the Crimes Act 2013 provides that, “A person is liable to imprisonment for a term not exceeding 5 years who by an act, or by omitting to perform a legal duty in circumstances reasonably likely to cause injury to any person, injures another person.”
4. The elements of the offence are that
   • (a) the person by an act OR by omitting to perform a legal duty
   • (b) In circumstances reasonably likely to cause injury to any person
   • (c) Injures another person.
5. A site visit was conducted after the hearing.

Evidence

6. The two Defendants are police officers who were stationed at the Fagamalo outpost. On Saturday night at around 10 pm, the outpost received a call from Safotu requesting assistance to arrest Lafaele Aukusitino who was responsible for stoning a store that belonged to Vaitogi. At the time, there were outstanding warrants against Lafaele Aukusitino.
7. The Police Constables who were instructed to respond to the call were the two Defendants and two other Constables Lualua and Lafaele. They travelled to Safotu in Police Vehicle 05, a double cab pick up with Poasa the First Defendant as the driver of vehicle. Upon arriving at Safotu, they talked to some people in front of the shop before heading towards Samauga. They turned however when one of the Officers thought he heard someone swearing.
8. Earlier that evening, Lafaele and his brother Malakai and their friends Paulo and Hans were drinking in front of the Safotu Primary School when they were stoned by people from across the road. They retaliated by throwing stones at Vaitogi’s place.
9. Upon seeing the Police Vehicle, Malakai and their drinking buddies hid next to stone wall that enclosed the Safotu Primary School. That corner is covered by a thick shrub of plants and trees. Lafaele continued to walk in the opposite side onto the road. Malakai saw the Police vehicle drive pass them and driving towards Lafaele who was walking on the road towards the other corner of the school compound.

Prosecution Evidence

10. The victim, his brother Malakai and Albertino Vilo said that they saw the right side of the Police Vehicle hit the victim . Malakai was at the corner of the road whilst Albertino stood in front of the school.
11. According to Lafaele he fell onto the road and sustained the wound on the left side of his head and the scratches on his upper cheek. The other Prosecution witnesses did not mention any injuries sustained by the Defendant other for the fact that the vehicle had hit him and immediately after, according to Albertino he ran off with the Police Officers chasing after him. Lafaele also testified that he got up immediately after he fell and ran across the road whilst the Police Officers gave chase.
12. The Police Officers found Lafaele hugging a large rock (“ala) further up the dirt road. Lafaele said that both Constable Lafaele and Meilani hit him on the lower sides of his body (“oo) When they managed to remove him from the rock they lifted him into the police vehicle. There were stones at that time thrown towards the Police vehicle and as soon as they lifted him into the back seat with three of them holding him, Poasa reversed the vehicle back onto the main road.
13. The police vehicle tyre got stuck in a rock near the main road. Poasa left the vehicle and asked people of the village standing nearby for help A single cab was also provided at the request of the Police Officers to transport Lafaele when they could not move the vehicle after several attempts. The police officers carried Lafaele onto the back of the single cab. The single cab was driven by Albertino.
14. Lafaele’s parents and sister Anstacia arrived at the scene soon after and his father who was armed with a timber slab was restrained by his wife. Lafaele’s sister held onto her brother. Both his parents and his sister said that they saw blood on Lafaele’s face before the vehicle moved away on the instructions of Constable Lafaele. Anastacia tried to hold on to her brother and to the vehicle but about 50 metres away, she fell off the vehicle and onto the road. The vehicle did not stop. In front of the vehicle was Albertino Vilo driving and in the back holding the Defendant were Meilani the Second Defendant and Constable Lafaele.
15. Further down in front of the Catholic church in front of the hump, Lafaele jumped off and ran inside the Catholic Church compound. He was chased by Constable Lafaele. Lafaele said that Constable Lafaele caught him, lifted him up and threw him against the cement wall. The cement wall collapsed and he fell onto the bricks. He said he only sustained a few scratches to his back but that he was not injured.
16. Albertino testified that he had stayed in the car when Lafaele ran off. Constable Lafaele pursued him. He said he heard a loud noise and saw the church cement wall collapse onto the ground followed by Lafaele who fell on top of the collapsed brick wall. He said he then backed his pick up to where Lafaele was lying and was asked by the Police Constables to assist in carrying Lafaele into the car. He said he held onto Lafaele’s head and noticed that the Defendant had a head injury ( kae le ulu) and there was blood flowing from his head. His shirt was also covered with blood from Lafaele’s head injury. The two Police Constables carried Lafaele and threw him onto the back of his pick up.
17. They arrived at the outpost and the Police Constables carried Lafaele off the pick up and threw him on the ground and Constable Lafaele stood on his chest. Afterwards they carried him into the small house at the back of the Police Station. He left afterwards.Months later, the parents of Lafaele, filed a Complaint with the Ministry of Police. Subsequently, the First and Second Defendant visited the family with a Senior Officer and presented the family with $500.00 tala and few fine mats. At the first visit, only the mother and the children were present. At the second visit, the whole family were present and the priest was also visiting the family at the time. The Defendants’ apology was accepted by the family.

Defence Evidence

18. After the hump in front of Safotu Primary School, the First Defendant who was driving the Police Vehicle swerved the vehicle onto the right lane directly next to Lafaele. He stopped the vehicle right next to Lafaele and reached out and grabbed Lafaele by his collar. Lafaele was startled. He pulled away and fell forward towards the front of the Police Vehicle.
19. The Second Defendant saw the First Defendant reach out his hand and immediately got out of the vehicle. He ran towards the front of the vehicle and saw the Defendant running past him and onto the dirt road opposite the main road. The Second Defendant chased after the Victim. Constable Lafaele also joined him whilst the First Defendant turned the Police Vehicle in the direction of the dirt road.
20. The Second Defendant found Lafaele further up the road holding on to a rock (‘ala”) tightly with both hands and he waited until the First Defendant arrived in the vehicle before he tried with Constable Lafaele to extract Lafaele’s hands and body from the rock. Both the Defendants heard and saw stones thrown towards the vehicle. After they managed to get Lafaele off the rock they carried him into the Police Vehicle
21. When they managed to remove him from the rock they lifted him into the vehicle. There were stones at that time thrown towards the Police vehicle and as soon as they lifted him into the back seat with three of them holding him, Poasa reversed the vehicle back onto the main road. Halfway down the road, the back tyre of the vehicle got stuck in the rocks near the road. Poasa had to get out to see the extent of the damage and to seek the assistance of the people of the village in moving the rocks off the vehicle tyre.
22. Whilst Poasa and the other Constables were trying to extract the tyre of the vehicle from the rocks, Lafaele tried to escape from the Police vehicle. He managed to get half of his body out of the vehicle but was hit on the head by Perenise Aila who lives in the house that Lafaele, his brother and their drinking buddies were stoning earlier. Lafaele slumbered back into the vehicle. Meilani noticed that there was blood oozing from Lafaele’s face. Lafaele remained still in the vehicle and showed no further resistance until he was transported to the other vehicle.
23. Perenise Aila pleaded guilty to a charge of causing injury to Lafaele and was sentenced in the District Court on 27^th July 2017.
24. Further down in front of the Catholic church in front of the hump, Lafaele jumped off and ran inside the Catholic Church compound up the stairs where he was chased by Constable Lafaele. The Second Defendant remained in the car. He was tired and exhausted from restraining Lafaele earlier. About ten minutes later he heard a noise and saw Constable Lafaele running down the stairs of the church whilst the cement wall onto his right was collapsing onto ground followed by Lafaele who fell onto the bricks. They lifted Lafaele onto the vehicle. He remained immovable and unconscious until after he was bathed with cold water by a prisoner.
25. Months later, on the Acting Police Commissioner instruction upon receipt of a complaint from the parents of Lafaele, the Defendants visited Lafaele’s family and offered an apology. The Defendant visited the family twice accompanied by a Senior Police Officer.

DISCUSSION

26. In my assessment of the charge against the First Defendant, I am not satisfied that the right side of the Police Vehicle 05 driven by Poasa actually hit the victim and caused his head injuries.
27. The victim has his back towards the police vehicle. He was very drunk at the time. There were people in front of the shop opposite and near where the stoning incident had occurred. The vehicle also would have had to slow down when it reached the hump and would have been on the first gear at the time it stopped next to Lafaele. We walked the distance from the hump to where the vehicle had allegedly hit the victim and calculated the distance to be less than 10 feet.
28. His brother Malakai was also hiding in the bush next to the school. It is quite a distance from where the vehicle allegedly hit Lafaele. There are no street lights also around this area other than the headlights of the vehicle so it would have been difficult to see from where they were hiding. Albertino said he was in front of Safotu primary school. He could not see who was inside the vehicle except that he saw Lafaele fall onto the wall of the school and that the vehicle had hit him. The wall however is a fair distance from the road and the vehicle would have had to hit the victim full on for him to be propelled some distance and onto the wall. Similarly, Lafaele maintained that he had fallen onto the tar sealed road.
29. Except for Lafaele, none of the other eye witnesses for both the Prosecution and Defence testified that they saw the Defendant with any injuries other than for the fact that he had immediately after falling, run off the dirt road at the opposite side of the road.
30. After hearing all the evidence, I am satisfied that the injuries sustained by Lafaele namely the wounds on his head and his face was not caused by when he fell onto the road. He would not have been able to recover immediately after and run off so soon after sustaining such critical injuries.
31. Having said, I am quite concerned with the way in which the First Defendant tried to detain the victim whilst the vehicle was stationary and the engine was still on. I do not condone this act as an acceptable practice of arresting any person. It can create circumstances likely to injure people and pedestrians.
32. In respect of the Second Defendant, I am not satisfied that his act in chasing the victim, restraining him and carrying him onto the vehicle was the main cause of the injuries sustained by Lafaele. The head injuries could have been sustained by Perenise Aila who has pleaded guilty to hitting Lafaele on the head with a rock. The injuries also could have been sustained when he fell off the cement wall onto the ground. The Second Defendant however was not present when Lafaele fell off the cement wall. Only Constable Lafaele was there but he has not been charged with any offence.
33. I do not accept the victim’s evidence that he only sustained minor injuries to his back when he fell. Considering how solid the brick wall was and the distance from the top of the stairs to the ground, there is no way that Lafaele could have survived that fall with minor injuries.
34. Albertino clearly described his shock in seeing blood flowing from his head injury (kae le ulu). Albertino testified that Lafaele remained still. The Second Defendant said that Lafaele was unconscious. He was revived only when water was poured over him by a prisoner who bathed him after they arrived.
35. Given these possibilities, I am not satisfied beyond reasonable doubt that the Second Defendant act in chasing, restraining and arrest of Lafaele caused the injuries to Lafaele head and face.

CONCLUSION

36. I find the First and Second Defendant not guilty of the charges laid against them.
    

Judge Atoa Saaga