Police v Fonoti [2020] WSDC 6 (13 March 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Fonoti [2020] WSDC 6

Case name:	Police v Fonoti
Citation:	[2020] WSDC 6
Decision date:	13 March 2020
Parties:	POLICE v LUPEOMANU PELENATO FONOTI, male of Nuu Fou
Hearing date(s):	13 February 2020
File number(s):	D2321/19
Jurisdiction:	DISTRICT COURT
Place of delivery:	Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:
Representation:	I Atoa for Prosecution
	A M Leung Wai for Defendant
Catchwords:	Assault –
Words and phrases:
Legislation cited:	Crimes Act 2013, s.123
Cases cited:
Summary of decision:	I hereby find the Defendant guilty of committing the charge of assault.

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

LUPEOMANU PELENATO FONOTI,
male of Nuu Fou
Defendant

Counsels:
I Atoa for Prosecution
A M Leung Wai for Defendant

Hearing: 13 February 2020
Decision: 13 March 2020

DECISION OF JUDGE SAAGA

CHARGE

1. The Defendant Lupeomanu Fonoti (“Lupe”) is charged with one count of Assault under Section 123 of the Crimes Act 2013. The particulars of the charge are:

“At Matautu tai on the 15^th day of August 2019, the above named Defendant of Saleufi and Nuu assaulted Papalii Moala Tavita, a male of Ululoloa.”

2. 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.”
3. The elements of the offence of assault are:
   1. A person
   2. Assaults
   100. Any other person
4. Section 2 of the Crimes Act 2013 defines an Assault as, “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.
5. The Defendant denies the charge in that he did not assault the victim. He attempted to assault the victim but his punch did not connect.
6. Prosecution bears the burden of proof of proving beyond reasonable doubt that the Defendant committed the offence of assault.
7. Prosecution called 8 witnesses. The Defendant elected to give evidence. The Defence also called Olive Jay To Alesana who was not called by the Police despite being interviewed and giving a statement to the Police.
8. At the conclusion of the evidence, a site visit of the Quarantine Conference room was conducted.

SUBMISSION SUMMARIES

9. Prosecution submits that the evidence adduced before the Court proves beyond reasonable doubt that the defendant intentionally applied force on the victim by punching the victim.
10. Defence Counsel submits that Prosecution has failed to prove its case beyond doubt due to the following two reasons:
    1. The Victim’s testimony is of tenuous character since it conflicts with other witnesses, grossly exaggerated and is unreliable due to his past differences with the Defendant.
    2. The alleged eye witnesses to the assault gave conflicting accounts so as to make the evidence unsafe.

PROSECUTION EVIDENCE

11. The offence is alleged to have been committed by the Defendant during the Pesticide Technical Committee meeting held at the Quarantine Office at Matautu tai on the 15^th of August 2019 at around 3pm in the afternoon.
12. The meeting was conducted in the conference room of the Quarantine Office at Matautu tai in the afternoon. The participants of the meeting were seated on plastic chairs around a rectangular table. The table is situated in the middle of the conference room. At the left side of the table are the windows and on the right side is the wall covered with photographs. There is enough space behind the chairs on either side of the table for one person to walk comfortably.
13. At the right side of the table from the front to the back were Tilafono David Hunter (“Tilafono”) the Chief Executive Officer of Ministry of Agriculture and Fisheries, Moafanua Tolo Iosefo who is the ACEO of Crops, Aualiitia Matalavea (“Aualiitia”) who is the Principal Officer of Crops, Fiasosoitamalii Siaosi (“Fiasosoitamalii”) who is the representative of MNRE and Fata Paulo Pemila (“Fata”) the representative from MOH
14. As the Defendant was doing the presentation on behalf of the Ministry of Agriculture and Fisheries, Tilafono who was the Chairperson moved from the shorter end of the table in the front to the right side of the table.
15. On the left side of the table from the front to the back were the Defendant, Olive Jayto Alesana the Pesticide Registrar and Apaula Tuisalega, the representative from MCIL.
16. The victim arrived late at the meeting. He was attending the Methodist Church Conference earlier. He sat at the back at the shorter end of the table on the left side facing the front. Taufono Solomona Liu, the representative of the Bluebird Company who had just returned from picking up his children sat at the right side of the victim.
17. No one was sitting at the shorter end of the table in front.
18. There was a member of the Agriculture Store who was excused to leave the meeting as the Store’s application for a license to import a 450 round up was discussed at the time.
19. Whilst discussing this application, Papalii expressed his disappointment in the late receipt of board papers. The Defendant advised the Committee members that the papers were only distributed that day because it was habitual for Committee members to ask for copies of the papers on the day despite the distribution of papers prior to the meeting. The victim interjected and refuted that he was one of the Committee members that Defendant was referring to. He maintained that he was always prepared and that he never asked for copies of the meeting.
20. A verbal argument ensued with the Defendant telling the victim that he was overtly disrespectful and that he will punch him on the mouth if he responds again (“Ua ova lou le mafaufau. E ke koe fai mai loa ou alu aku loa kui lou guku”) The victim responded by telling him to come and punch him. He was not expecting the Defendant to react.
21. Lupe stood up and walked behind Olive and Apaula towards Papalii. Papalii also stood up. He maintained that he was only leaning against his chair and did not pick up the chair. Other Prosecution witnesses saw Papalii lifting the chair. I reject that part of the victim’s evidence that he was only leaning against the chair that he was sitting on. I accept the other prosecution witnesses evidence that he was holding up the chair.
22. Tilafono who was sitting at the end of the table was unable to recall whether there was one punch or two punches and exactly where the punches landed. He also could not recall who the first person was who had intervened and when they intervened as it happened so fast. He maintained however that he did see Lupe punch Papalii.
23. Apaula and Aualiitia sat in the middle of the table opposite each other. Apaula did not see the punch. She only saw Papalii falling onto the floor. Aualiitia only saw Lupe throw a punch but he was unsure as to whether it connected as the people next to him intervened and blocked his view. The people sitting next to him to his left were Fiasosoitamalii and Fata.
24. Fiasosoitamalii and Fata who were sitting at the end of the table saw Lupe walk over to Papalii. Both saw Lupe push Papalii before punching him. The first punch did not connect but the second punch in the form of an upper cut landed on Papalii. At the time, Lupe and Papalii were standing close to each other (“pipii”)
25. Taufono who was sitting down at the time looked to his left and also saw the upper cut. He saw Lupe standing next to Papalii.
26. Fiasosoitamalii, Fata and Taufono all heard Papalii scream before he fell on the floor. Taufono stood up and pushed Lupe back whilst Fata assisted Papalii. Olive was standing behind Lupe and between Lupe and Papalii who was by then lying on the floor. Papalii lay on the floor for a period of between 5 to 10 seconds.
27. Papalii testified that Lupe hit him whilst on the floor. None of the other witnesses supported his evidence and I reject that part of his evidence.
28. With the assistance of Fata, Taufono and other members including Tilafono, Papalii was assisted and seated on his chair. Meeting was reconvened. Papalii was still upset and uttered threatening remarks at Lupe including threats to burn his house. It was not long after when Papalii excused himself from the meeting and Tilafono walked him out. Papalii drove to the Police Station and filed a complaint against the Defendant.

DEFENCE EVIDENCE

29. The Defendant was presenting the papers of the meeting. The paper that was in discussion at the time was an application lodged by Agriculture Store for a license to import 450 Round up Pesticide. At the time, there was already an approval for the importation of 360 Round up. There was a discussion between Papalii and Defendant whether the chemical was systemic or contact.
30. The Defendant not only reiterated the difference and similarities of the two chemicals but he also referred to the position of the applicant as a competitor of Farm Tech and that at the time, Farm Tech was supplying 360 Round Up and the importation and sale by Agriculture Store of 450 Round Up will affect the sale by Farm Tech of 360 Round Up.
31. The Chairperson instructed Olive to look for confirmation in respect of the previous approval of the 360 Round Up. Olive left the meeting to look for the approval whilst the meeting continued.
32. Papalii became upset and questioned why the minutes were not distributed earlier. His tone and his voice increased in volume. Lupe explained why the papers were not distributed before the meeting. Committee members were accustomed to asking them for papers on the day of the meeting despite the distribution of the papers prior.
33. Papalii became agitated and denied that he was one of the Committee members who habitually fails to turn up with papers. His voice was becoming louder that Lupe said to him, “Papalii, you are overtly disrespectful. This is not the first time you have acted disrespectfully in a meeting. You have done it so many times. You come to meetings acting as if you are the chief. It is not difficult to do what you want to do.” (Papalii, ua ova lou le mafaufau, ua fai soo lou amio lea e le faapea e faakasi pe faalua, ua fai soo,kele foi isi fonotaga e ke sau pei a oe o se sifi I totonu I ii.”)
34. Papalii responded by saying, “What are you searching for? This is the wrong person that you are talking to”. (“O lea le mea ga e ke suesue mai? E sese le kagaka gae e ke fai mai iai^[1]”)
35. Lupe responded by saying, “Leave it otherwise I will come and punch your mouth. It is not difficult to beat you up.” (“Kuu loa iga ou alu aku iga kui lou guku. E le faigaka le fasiga o oe”) Papalii became upset and agitated and called out to Lupe to come over. He stood up and held up his chair.
36. Olive had just sat down from getting the information requested by the Chairperson. Lupe walked over to where Papalii was standing. He admitted that he lost his patience. Olive saw Lupe stand up. She did not understand why until she looked up and saw Papalii holding the chair.
37. She stood up and followed Lupe and caught up to him just before he reached the end of the table. She held onto to his arm and pulled him back. Lupe threw a punch. She held him back.
38. Lupe’s punch did not land on Papalii as Taufono also intervened and with his back turned towards Lupe he blocked Lupe from getting to Papalii. Olive was also holding him back by holding onto his side.
39. Papalii was still holding the chair at the time. He lost his balance and fell on his back.

DISCUSSION

40. The element that is in dispute is the commission of the act of assault.
41. Assault is 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.
42. The seating arrangement is an important determinant of what each witness saw.
43. The evidence of the witnesses who were sitting from the middle to the front further away from the shorter end of the table were inconsistent. Apaula did not see the punch because she only looked towards the back when Papalii fell. Both Tilafono and Aualiitia saw Lupe throw punches. Tilafono however was unable to recall exactly where the punch landed but remained adamant that the punch landed on Papalii. Aualiitia’s view was obstructed by those sitting to his left who were Fiasosoitamalii, Fata and Taufono but he saw Lupe throw a punch. Lupe also conceded that he threw a punch but he missed. I will discuss the reason shortly.
44. Nevertheless, witnesses who were sitting closer to the shorter end of the table were more consistent with their evidence. Fiasosoitamalii, Fata and Taufono’s vision of Papalii and Lupe were unobstructed as both Papalii and Lupe were standing up at the time.
45. Fiasosoitamalii and Fata corroborated each other evidence in that they both saw Lupe push Papalii before he threw the first punch which missed the victim. The second punch however was in a form of an uppercut (“Sali”) which connected as Lupe and Papalii were standing together (“pipii’)
46. Taufono also saw one punch in the form of an upper cut (“Sali”) land on Papalii when he looked up and to the left and saw Lupe standing next to Papalii. All three of them heard Papalii scream before he fell. All of them testified they saw the upper cut which landed on the victim irrespective of which part of his face it landed. Papalii and Lupe were physically connected at the time (pipii) and it happened quickly.
47. Olive was behind Lupe. She was not in front of Lupe so could not see what he was doing as he was standing close to Papalii at the time he punched him. She said she was holding onto his arm before he reached the end of the table. He did however reach Papalii at the shorter end of the table so Lupe did continue walking notwithstanding that she tried to hold onto his arm. I have formed the view that she was unable to stop him. She is smaller in built than the Defendant.
48. Taufono, Fata, Fiasosoitamalii and Apaula all testified that Taufono only stood up to assist after Papalii fell. I do not accept the evidence of the Defendant that it was Taufono who had blocked him from punching the victim. Taufono did not stand up prior to Papalii falling to the floor. He only stood up when Papalii fell down. There was no one to block any punches.
49. I find a tenuous link in the defendant falling on his back due to him losing his balance whilst holding up the plastic chair.
50. After weighing the evidence, I am satisfied that Prosecution has proven beyond reasonable doubt that the Defendant assaulted the victim by punching him.
51. As I am satisfied that the Defendant did commit the act of assault, I need not consider the extended and all-encompassing definition of assault which includes an attempt to apply force.

CONCLUSION

52. I hereby find the Defendant guilty of committing the charge of assault.

JUDGE ATOA-SAAGA

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