Police v Topito [2018] WSDC 1 (6 February 2018)

THE DISTRICT COURT OF SAMOA
Police v Topita [2018] WSDC 1

Case name:	Police v Topita
Citation:	[2018] WSDC 1
Decision date:	06 February 2018
Parties:	POLICE (Informant) and LOLESIO TOPITA, male of Magiagi (Defendant )
Hearing date(s):	05 February 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	- The Defendant Lolesio Topita is not guilty of the charge which should have never been brought against him in the first place. The charge is dismissed - I am entertaining awarding costs to the Defendant, before I decide on this; I will give the Prosecution the opportunity to file submissions so they may be heard on this issue. This matter is adjourned for that purpose to 2pm 20/02/18 for that purpose.
Representation:	Ms V Afoa for Prosecution Accused for himself
Catchwords:	Assault
Words and phrases:	Identification of accused in dispute
Legislation cited:	Crimes Act 2013 ss 123 & 33 Criminal Procedure Act 2016 s. 188 NZ Crimes Act 1961 s196
Cases cited:	Daley v R [1993] 4 ALL ER 86 P v Kolio [1999] EWSSC 46 P v Meli [2000] WSSC 56 P v Savea [2017] WSSC 14 R v Birkby [1993] NZCA 188; [1994] 2 NZLR 38 (CA) R v Turnbull [1977] 1 QB 224 R v Venna [1975] EWCA Crim 4; (1975) 3 All ER 788 per James L J at 793-794 R v Young 9/7/92, CA 86/92. Robertson, Adams on Criminal Law Vol 1 (Brookers, 1992) at CA 196.04.
Summary of decision:

THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

LOLESIO TOPITA male of Magiagi
Defendant

Presiding Judge: DCJ Alalatoa Rosella Viane Papalii
Representation: Ms V Afoa for Prosecution
Accused for himself
Hearing Date: 05 February 2018
Decision: 06 February 2018

DECISION

CHARGE

1. The charge against the accused, Lolesio Topita (“Lolesio”) alleges that on 26 July 2017 at Savalalo, Lolesio and a co –accused Tony Tom (“the Co- Accused”) assaulted Vaatausili Fatu a male of Tiavea and Mulinuu.
2. The charge is brought pursuant to ss 123 & 33 Crimes Act 2013 (“CA”). It was called for first mention on 29/05/17 where Lolesio denied it. The co – accused however failed to appear and a warrant of arrest was issued against him which remains outstanding.
3. The Court proceeded to hear the charge against Lolesio on 5/02/18. Both prosecution and accused were ready to proceed. At the conclusion of the evidence I informed counsel and Lolesio I intended to have my decision in writing which will be delivered the next day on 6/02/18 at 2pm. This is that decision.

LAW

4. Section 123 CA provides for the offence of common assault and states that a person is liable to imprisonment for a term not exceeding 1 year who assaults any other person.
5. Assault is defined in s2 CA as:
   • “The act of intentionally applying or attempting to apply force to another person, 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;”
6. Our s123 CA mirrors that of s196 NZ Crimes Act 1961 and it is the same for the definition of assault above.
7. What constitutes the mens rea element of “intentionally applying force” is settled law. It was considered by Justice Wilson in P v Kolio^[1] where he referred to the English Court of Appeal case of R v Venna^[2] where James L.J. said:
   • "In our view the element of mens rea in the offence of battery (the act of intentionapplying force to the person of another, directly or indirendirectly) is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another. . . .. We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault."
8. At common law it is sufficient if the defendant intentionally or recklessly applies force to another or causes another to apprehend the infliction of force.^[3] In NZ however, as observed by Adams on Criminal Law^[4] recklessness is not enough although reckless conduct is maybe an important evidential factor in determining if such an intention could be inferred.^[5]
9. This means the act of applying, attempting or threatening to apply force must be intentional.^[6] We have been following the NZ mens rea approach and it makes sense to do so given the similarity in our provisions.
10. Regarding the elements of common assault that Prosecution must prove beyond a reasonable doubt these are that:
    1. Lolesio was the person who committed the act of unlawfully assaulting the victim Vaatausili on the date in question; and
    2. If he did commit the act then he must have had the intention to do so.
11. Section 33 CA is the provision on parties and I will not be dealing with this as the hearing proceeded without the co-accused in the interest of justice and finality for Lolesio who has been turning up to Court on each occasion.

ISSUE

12. As it would seem from the evidence, the live issue for consideration is the identification of Lolesio as the culprit. Put simply, it is not disputed that the victim was hit by someone. The question is who?
13. If the identification of Lolesio as the culprit is not proven beyond a reasonable doubt, then the case stops there.

EVIDENCE

Prosecution Evidence

14. Prosecution called two witnesses.

Vaatausili Fatu

15. First up is the victim, Vaatausili Fatu (Vaatausili”) male of Tiavea and Mulinuu. He attends the Laumua o Punaoa Tech School at Faleula.
16. On the day in question after school, he was at the Savalalo bus station (“the Bus Station”) with three female class mates waiting for the bus to go home. On the same day, he recalls there was an altercation between students of Malua Fou College and Levaula - Wesley College.
17. Whilst he was waiting for the bus, he was surprised when a male he did not know at all approached him and punched him on the right side of his nape. He described this person as “pu’upu’u, e le lapoa tele ae e ta le pe’a i le tuaua”.
18. After the first punch he saw that the first assailant was about to hit him again, he turned his head and that was when the second assailant whom he identified as Lolesio punched him on the mouth.
19. He described the second assailant as “umi pae’e...fai le mitiafu lanu paepae... ma le ofuvae”. When asked about the second assailant’s hair he said it was cut short on the sides but long in the middle demonstrating the length as the same as his index finger.
20. During cross examination Lolesio put his version of events to Vaatausili that it was not him who punched him, that the second assailant had run past him and pushed him and it was this person who punched him. Vaatausili however was adamant that it was Lolesio who hit him.
21. Lolesio also put to Vaatausili that when he looked up from the blow administered by the second assailant, he saw him standing there and he immediately pointed out that it was him Lolesio who assaulted him. Vaatausili maintained his view it was Lolesio who hit him the second time.
22. Lolesio further put to Vaatausili that he had worn a short sleeve hoodie not a white T-shirt and his head was covered with the hoodie. Again Vaatausili did not agree with this.

Sinatala Ilounuuisiutu Mareko

23. The second witness for Prosecution was Sinatala Mareko (Sinatala).
24. She confirmed that she was with Vaatausili and two other female friends at the bus station after school at about 2.30pm on the day in question recalling it was the 26^th but she could not remember the month. They were standing on the seawall behind the bus shelters towards the easterly direction where Pasi o le Vaa is usually stationed.
25. Whilst there she saw a male person approached Vaatausili and punched him on the nape. Like Vaatausili she described the physical appearance of this assailant in the same manner.
26. She said she and her friends pulled Vaatausili away from the first assailant as she saw that he was about to retaliate against him. She held back Vaatausili’s hands and held him close to her.
27. But during this time, she saw a tall slim guy ran from the reserve “i lalo o niu” towards them. She saw this person pushed past her friends she was with causing them to stumble forward and he went straight to Vaatausili and punched him.
28. Afterwards the second assailant ran back towards the same direction he came from “i lalo o niu”. She said she only saw the second assailant in split seconds and did not really have long to study him compared to the first assailant. But she recalled he had a red bandana on tied around his forehead. His hair was about 3 inches long and he was wearing a white t-shirt and black shorts.
29. Unlike Vaatausili she did not identify Lolesio as the culprit.

Defence Evidence

30. Lolesio gave evidence.
31. He told the Court that on this day he did not work. At the time he was working at Max Rasmussen’s, Lotopa. Now he works for a different mechanical shop at Pesega. He used to attend Vaimauga Secondary School.
32. He had gone to buy cash power for his home at the TATTE building, Sogi. He caught the Magiagi bus to town at around 1.30pm.
33. After he bought his cash power he walked to the bus station and stood on the seawall behind the bus shelter. He was aware of the school fight between Malua Fou College and Wesley. So he was eager to catch the bus home.
34. Whilst on the seawall, he was surprised to see Tony whom he identified as the first assailant, approached the victim and punched him. He explained that he knew Tony as he sells cigarettes at the market and around the bus station.
35. Not long after, he saw a tall slim guy ran past, pumped into him causing him to stumble. This guy had on a red bandana around his forehead, white singlet and shorts. He headed straight towards the victim Vaatausili and punched him.
36. Lolesio said he was surprised when Vaatausili looked up and saw him standing there and immediately pointed out that it was him who assaulted him. So he walked away. But Police came after him and arrested him. He was held overnight in custody and released the next day.
37. On the day in question he was wearing his grey shorts he said was the same he wore to Court and a short sleeve hoodie. At the bus station he had the hood on covering his head area.
38. According to Lolesio, it was not him who assaulted Vaatausili but the guy he saw who pumped into him. However, he had been wrongly accused of this incident causing harm and shame to him and his family.

DISCUSSION

39. As alluded to above, the gist of this matter comes down wholly or substantially to the issue of the correctness of identity. Put simply, the question I must answer is whether the right person has been charged with this offence.
40. There is no doubt that Vaatausili was assaulted by two different assailants. But the question is has the Prosecution proven beyond a reasonable doubt that it was Lolesio who intentionally assaulted Vaatausili?
41. Having heard the evidence, I am far from satisfied that the prosecution has proven this key element. In fact I am of the view that this young man, should have never been charged with this offence in the first place.
42. Identification of an accused is a key element in any criminal offence. The principle of law on identification is well settled in our jurisdiction as noted by CJ Sapolu in P v Meli^[7]. It derives from the leading English authority of R v Turnbull^[8] and further confirmed by the Privy Council in Daley v R. ^[9]
43. Where the identity of an accused as here, is in dispute, I, as judge sitting alone must bear in mind the need for caution before convicting Lolesio in reliance on the correctness of the identification adduced in Court and in particular the possibility the witness may be mistaken.^[10]
44. As was said by Lord Widgery CJ in Turnbull quoted with approval by CJ Sapolu in Meli and Justice Tuatagaloa in P v Savea^[11]:
    • “Whenever a case against an accused depends wholly or substantially on the correctness of one or more identifins o accused of whif which theh the defence alleges to be mistaken, the Judge should warn the jury (or bear in mind if Judge alone) the special need autioore cting ccused in reliance on the core correctnrectness oess of thef the identification . The reason fos is that itat it is possible for an honest or convincing witness to make a mistaken identtion,a numb number of r of honest or apparently ccing sses ll be mistaken.”
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45. [12] But I bear in mind that these are not carved in stones as times have changed especially with this digital age and growing use of electronic devices:
    • “How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent &#/b>identification&#160 to olice there aere any maty material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?”
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46. Here, the only identification evidence to support the allegation against Lolesio was that of Vaatausili. For the reasons stated below and the circumstances in which it was taken, I regard his identification evidence as unreliable and unsafe.
47. In weighing Vaatausili’s identification evidence, I accept that although he might have seen the second assailant, it was but only a fleeting glance. He had just received two blows to his nape and mouth and would have felt disoriented from that. He had never seen Lolesio before.
48. Vaatausili’s identification evidence simply does not marry Sinatala’s one. Out of the two, she was the one standing restraining Vaatausili and facing the direction where she said the second assailant came from.
49. Sinatala herself told the Court she only observed the second assailant in split seconds. Unlike Vaatausili she did not suffer any blows and her memory was credible.
50. The crucial part of her evidence is her description that the second assailant wore a bandana and that after he hit Vaatausili, he ran off again to the same direction he came from i lalo o niu. I consider the identification of the second assailant wearing a red bandana as distinctive.
51. Sinatala also said that the second assailant had pushed past her two female friends she was with causing them to stumble forward. This part of Sinatala’s evidence to a large extent supports what Lolesio said that he was standing close by the victim when he saw the second assailant ran past him pumping into him causing his to fall forward.
52. He thought the second assailant was rushing to the aid of the victim Vaatausili. Instead he saw him punching Vaatausili on the mouth. Like Sinatala he too described the second assailant the same manner. Lolesio described his clothes he wore as a short sleeve hoodie and pants. This infers that Lolesio’s head area was covered and Vaatausili could not possibly see how long his hair was as he so described in Court.
53. According to Lolesio, as soon as Vaatausili looked up he saw him standing there and immediately pointed his finger at him saying it was him who assaulted him. He walked away to avoid being falsely accused. But that is exactly what happened here.
54. If Lolesio did inflict the second blow, then common sense tells me he would have taken off. The real culprit did take off as described by Sinatala. That culprit was not Lolesio.
55. Whilst I accept that Vaatausili might have been genuine, he was nevertheless mistaken. Here, it was easy for him to point the finger at Lolesio as he was the first person he saw when he looked up. Police pursued Lolesio on that basis.
56. There was no other form of identification elicited either primary of secondary to solidify the identification. There were other bystanders that could have been interviewed. There was no identification parade. I bear in mind though the provisions of section 35 Evidence Act 2016.
57. Sinatala’s evidence was in every respect where relevant on the issue of identification, supportive of Lolesio’s version.
58. In other words, as I said above, the wrong man was accused with this offence and has suffered tremendously as a consequence. Our Samoan saying, ua lavea fua Foaga e lei fai misa comes to mind.
59. Police should have done a thorough investigation on this matter especially after Sinatala’s statement was taken.
60. Prosecution in its role in reviewing its case should have looked at this element before insisting on proceeding with the charge and trial. This would have become evident during the briefing of witnesses.
61. I again urge Police and Prosecution to be vigilant in prosecuting matters independently and with fairness. It could save us all time and resources. Most especially it could save an innocent person from being falsely accused and facing a criminal charge.

CONCLUSION

62. Having heard the evidence, I have no difficulty in finding Lolesio not guilty of this charge which should have never been brought against him in the first place
63. Given the manner in which this matter was handled and my view here that this young man should have never stood trial, I am therefore entertaining awarding costs in favour of Lolesio.
64. Before I decide whether to do this given the requirements of s188 Criminal Procedure Act 2016, I will give the Prosecution the opportunity to be heard on this issue.
65. This matter is adjourned to 20/02/18 at 2pm for Prosecution to file their submissions. Lolesio may attend at his own freewill.

JUDGE A R VIANE PAPALII

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^[1] P v Kolio [1999] EWSSC 46
^[2] R v Venna [1975] EWCA Crim 4; (1975) 3 All ER 788 per James L J at 793-794
^[3] Ibid
^[4] Robertson, Adams on Criminal Law Vol 1 (Brookers, 1992) at CA 196.04.
^[5] Ibid
^[6] See R v Young 9/7/92, CA 86/92.
^[7] P v Meli [2000] WSSC 56
^[8] R v Turnbull [1977] 1 QB 224
^[9] Daley v R [1993] 4 ALL ER 86 pp 92 – 92. Also see R v Birkby [1994] 2 NZLR 38 (CA)
^[10] See Mahoney, McDonald, Optican & Tinsley on “The Evidence Act 2006 Analysis 3^rd Edition (2014, Thomsen Rheuters) at pp 265 o 266. Also D L Mathieson on Cross on Evidence 7^th Ed (2001, Butterworths) at pp 93 to 94.
^[11] P v Savea [2017] WSSC 14 a judgment of Justice M Tuatagaloa
^[12] Supra n 8.