Police v Ulia [2017] WSDC 3 (26 April 2017)

DISTRICT COURT OF SAMOA
Police v Ulia [2017] WSDC 3

Case name:	Police v Ulia
Citation:	[2017] WSDC 3
Decision date:	26 April 2017
Parties:	Police (Informant) and Ulia, male of Afega (Accused)
Hearing date(s):	19 April 2017
File number(s):	D2055/16, D2056/16, D3330/16
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	Senior DCJ Fepuleai A. Roma
On appeal from:
Order:	For the above reasons, I have reached the following conclusions: (i) On the charge of assault of Fata Pemane Seuseu, I find that the prosecution has proven the charge beyond reasonable doubt; (ii) On the charge of assault of Ulufale – Seuseu Fata F. Pito Faalogo, I find that the prosecution has proven the charge beyond reasonable doubt; (iii) On the charge of using insulting words, I find that the prosecution has proven the charge beyond reasonable doubt. The accused is remanded at liberty to 17 May 2017 at 12.30pm for sentencing
Representation:	Sgt. K. Stanley for Prosecution Mr. Te’o R Faaiuaso for the Accused
Catchwords:	Assault – insulting words – evidence by the Prosecution – evidence by the Defence – discussion
Words and phrases:
Legislation cited:	Crimes Act 2013 s17(1), s58, Police Offences Ordinance 1961 s4(g),
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

UTUTAALOGA CHARLIE ULIA, male of Afega.
Accused

Representation:
Sgt K. Stanley for National Prosecution Office
Mr. Te’o R. Faaiuaso for the Accused

Hearing: 19 April 2017
Decision: 26 April 2017

DECISION OF JUDGE ROMA

Charges

1. The accused faces 3 charges as follows:
   • (i) Assault of Fata Pemane Seuseu (“first complainant”), male of Afega (s123, Crimes Act 2013);
   • (ii) Assault of Ulufale – Seuseu Fata F. Pito Faalogo (“second complainant”), male of Afega (s123, Crimes Act 2013);
   • (iii) Using insulting words, namely “aikae ese ma le fagua”, whereby a breach of the peace may be occasioned (s4(g), Police Offences Ordinance 1961).
2. All 3 charges arise out of an incident that occurred inland of Afega on 28 June 2016.

Evidence by the Prosecution

3. Prosecution called 5 witnesses. Apart from the 2 complainants, evidence was heard from Tiliola Fata Pemane (“Tiliola”), wife of the first complainant; Eseta Faalogo (“Eseta”), wife of the second complainant, and Fata Falevalu Faasoa (“Fata”), a nephew of the first complainant.
4. Their evidence is that in the afternoon of 28 June 2016, all 5 prosecution witnesses headed inland of Leauvaa and Afega in a 2 door Nissan space cab pickup driven by Fata. The 2 complainants were seated in the cab whilst Eseta and Tiliola were in the tray at the back.
5. They were to visit and point out for the second complainant the boundaries of a land that was the subject of a hearing in the Land and Titles Court which involved the complainants on one side, the accused on another, and the 2 factions of the Alli and Faipule of Afega.
6. The hearing in the Land and Titles Court had taken place earlier in the week and the Court had ordered an inspection of the land to be carried out on the Friday.
7. The complainants’ visit started from the boundaries inland and continued towards the seaward side. Both complainants got out of the vehicle and walked alongside the road pointing at the direction of the land. Fata was inside the vehicle, Eseta and Tiliola were seated still at the back in the tray.
8. As the complainants were on the roadside pointing out the land, the accused suddenly pulled over in a black double cab pick up. He got out of the vehicle and asked the complainants what they were doing on the land.
9. The first complainant replied that he minds his own business and that they were visiting ‘their’ land, immediately before the accused reached him and started throwing him punches. The first complainant recalls being punched by the accused 5 times, each time landing on his head and face, before the accused was joined by one of his workers who had come with him, and kicked him on the side causing him to fall. The second complainant tried to stop the accused.
10. The second complainant also says that during the altercation, the accused threw a punch at him, which he dodged and landed on the first complainant’s chest. He adds that in his attempt to dodge the accused’s punch, his glasses came off causing a cut and bleeding on his face.
11. The altercation was seen by Fata, Eseta and Tiliola from where their vehicle was parked before they all rushed to where the accused and 2 complainants were. At the same time, Tiliola says that she called out to the accused to “please stop”.
12. When they reached the complainants and the accused, Fata tried to separate them, Eseta tried to take pictures with an ipad, whilst Tiliola helped her husband (first complainant) from the ground.
13. All prosecution witnesses say that during the altercation, the accused was seen and heard saying to the second complainant “Aikae ese ma le fagua, e le o se fagua o le malo o le fagua o Afega, eke alualu e ke kaa e sau faavevesi” or words to that effect.
14. Just when things had calmed and the complainants, Eseta and Tilioa were about to leave, Maulolo Tavita Amosa (“Maulolo”) arrived; he asked what had happened and told them that it was best that they leave.
15. Under cross examination, Tiliola concedes the possibility that the distance between their vehicle and where the complainants were standing when the accused arrived was about 50 metres. Other prosecution witnesses maintain that the distance was shorter. But all say that they were still able to see what was happening.
16. It was also put to prosecution witnesses under cross examination that the first complainant had grabbed the accused’s collar before the accused pushed him against the bumper of the vehicle. All deny that that was what happened.

Evidence by the Defence

17. The accused elected to give evidence. The Court also heard from Tino Maulolo (“Tino”) who had been working for him for about 3 years. Tino had accompanied the accused on the day of the incident.
18. The accused does not dispute that he came into contact with the complainants inland of Afega where the incident took place. His version is that he had been to Aleisa earlier that day to check on the various businesses that he runs there. He stopped next at his quarry from where he was able to see from a distance uphill people walking about on his land at “Magaui”. According to the accused, he had been working that land for over 20 years cultivating cocoa, coconuts, bananas and taro.
19. He turned around and drove down to where he saw people on the land to find out who they were. Tino was seated in the tray of the pick up.
20. He arrived at where the 2 complainants were walking about on the land and saw their pick up parked about 50 metres infront facing the seaward side. He got out and asked the old men (‘toeaiina’) what they were doing on the land. Both complainants approached him, the first complainant replying that it was none of his business and that they were there to inspect ‘their’ land (‘E leai sau feau lea e omai e vaai le makou fagua’).
21. The first complainant then struck him from the back hitting his chest. The first complainant also grabbed him causing a tear at the collar of his shirt, but he pushed him away towards the bumper of his vehicle causing the complainant to fall.
22. The accused denies having uttered the word “ufa”. He does not recall using the word “aikae”, but says that if he did, it was because he was not happy (‘lagona le lototiga’) at finding the complainants on the land pending the inspection by the Land and Titles Court.
23. Under cross examination, the accused maintains that he did not punch any of the complainants but pushed the first complainant away in self defence.
24. His evidence is supported by that of his worker Tino. Tino’s evidence is that the distance from where the complainants were standing to the pickup on which Eseta, Tiliola and Fata were seated when he and the accused arrived was about 50 metres. Tino concedes that from that distance, he was still able to see Eseta, Tiliola and Fata before they all came to where they were.
25. Tino also maintains that it was the first complainant who grabbed the accused’s collar causing a tear in the accused’s shirt, before the accused pushed him away.

Relevant Law

Assault

26. Section 123, Crimes Act 2013 under which the 2 assault charges are brought states that “A person is liable to imprisonment for a term not exceeding one (1) year who assaults any other person.”
27. Section 2 defines “Assault” as meaning:
    • “ ... 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 ... “
28. On the issue of self defence raised by the accused, section 17(1), Crimes Act 2013 relevantly provides as follows:
    • “A person unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force if the force the person uses:
      • (a) Is not meant to cause death or grievous bodily harm; and
        • (b) Is no more than necessary for the purpose of self defence.”
29. To sustain the assault charges, the prosecution must prove beyond reasonable doubt the following ingredients:
    • (i) The accused applied OR attempted to apply force to the person of another directly or indirectly;
      • (ii) The application of force OR attempt to apply force was intentional;
      • (iii) The accused did so without lawful justification.

Insulting Words

30. As to the insulting words charge, section 4(g), Police Offences Ordinance 1961 states:
    • “A person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine of 2 penalty units who uses any ... insulting words ... whereby a breach of the peace may be occasioned.”
31. To prove the charge as framed, the prosecution must satisfy the Court beyond reasonable doubt that:
    • (i) The accused used insulting words;
    • (ii) The use of such words might have occasioned a breach of the peace.

Discussion

Assault charges

32. The evidence as to whether the accused applied or attempted to apply force on the 2 complainants is conflicting.
33. On the evidence of prosecution witnesses, as soon as the accused’s vehicle pulled over, he got out and asked the complainants what they were doing on the land. As the complainants were responding, the accused approached them and started throwing punches at the first complainant. The punches landed on the first complainant’s head and face. He also threw a punch at the second complainant but missed and hit the first complainant on his chest.
34. On the evidence of the accused and Tino, it was the first complainant who first struck the accused from behind, then pulled and tore the collar of his shirt. In his defence, the accused pushed the first complainant; he hit the bumper of the pick up and fell on the ground. The accused says he knew of a medical condition that the first complainant suffered from, and could not have assaulted him or the second complainant as described by prosecution witnesses.
35. There is no question that the complainants and accused do not enjoy a warm relationship. Their differences are well known and relate to disputes concerning rights to the land on or near which the incident of 28 June 2016 occurred. They are on opposing sides of such disputes.
36. I remind myself also that all of the witnesses called are not independent of the parties. But I have observed the witnesses; listened to their evidence; given it careful consideration and I prefer the evidence for the prosecution.
37. Compared to the defence witnesses, I found the prosecution witnesses unhesitating and forthright in their evidence. I am particularly impressed by the evidence of the second complainant, his wife Eseta and Fata, and find their testimony as to how the events unfolded that afternoon, credible and convincing.
38. In my view, the accused was in the circumstances the ‘aggressor’. He was concerned the moment he saw from a distance people on ‘his’ land. Upon arrival, he was clearly upset at finding those people to be the complainants because he did not expect to see them on the land until the Court’s inspection a few days later. When he approached and asked the ‘old men’ (toeaiina) why they were there, the response that he minds his own business and that they were visiting ‘their’ land would have naturally provoked him to retaliate.
39. There and then, I find plausible the evidence of prosecution witnesses that the accused first punched the first complainant. I also find credible the second complainant’s evidence that as he tried to stop the accused, he was also punched but missed and his glasses fell off thereby causing a cut to his face.
40. I do not however accept that the accused punched the first complainant the number of times as claimed by the first complainant. The first complainant was in his late 60s; he appeared to take time moving around. In my view, 5 punches from the accused in the way described in his evidence would have caused him notable or serious injury. But there is no such evidence.
41. As to the accused’s claim that the first complainant punched him first and pulled his collar before he pushed him away in self defence, I find that difficult to accept in the circumstances. Again, the first complainant was an elderly man in his late 60s. Understandably, he would verbally respond to remarks by the accused. But it would be most unwise in my view, and very unlikely for him to deliver the first punch or pull the accused’s collar, let alone approach him in the circumstances.
42. It is not disputed that the accused’s shirt was torn at the collar. I find however that it was caused during the physical exchanges between the complainants and the accused, and subsequently when Fata and Tino intervened to separate them.
43. In respect of the first complainant, I find that at least once, the accused punched or applied force directly to the first complainant; that application of force was intentional; and it was not in the accused’s own defence.
44. In respect of the second complainant, I find that the accused attempted to apply force directly to the second complainant when he punched and missed him; that attempt was intentional and it was not in the accused’s own defence.

Insulting Words

45. Clearly, as soon as the accused arrived at where the complainants were, a lot was said in the verbal exchange between them; which all had to do with why the complainants had visited the land, and how they and the accused respectively claimed an entitlement to the land. Emotions were running high and understandably, verbal insults would have been uttered.
46. The accused denies that he used the word “ufa”. In fact, only the first complainant says that he did.
47. But all prosecution witnesses say that he used the word “aikae” when he told the second complainant “Aikae ese ma le fagua, e le o se fagua o le malo o le fagua o Afega, e ke alualu e ke kaa e sau faavevesi.”
48. In his evidence in chief, the accused neither recalls nor denies saying that. But he does say that if he did, then it would have been because he was angry at finding the complainants on the land days before the Land and Titles Court were to conduct their inspection.
49. I find on the totality of the evidence that the accused did use the words “aikae ese ma le fagua ... eke alualu e ke kaa e sau faavevesi... ” In the circumstances, the words caused a breach of the peace, if not further provoked an already existing breach of the peace.

Conclusions

50. For the above reasons, I have reached the following conclusions:
    • (i) On the charge of assault of Fata Pemane Seuseu, I find that the prosecution has proven the charge beyond reasonable doubt;
    • (ii) On the charge of assault of Ulufale – Seuseu Fata F. Pito Faalogo, I find that the prosecution has proven the charge beyond reasonable doubt;
    • (iii) On the charge of using insulting words, I find that the prosecution has proven the charge beyond reasonable doubt.
51. The accused is remanded at liberty to 17 May 2017 at 12.30pm for sentencing

JUDGE FEPULEAI AMEPEROSA ROMA