Police v Fanene [2022] WSDC 2 (22 July 2022)

IN THE DISTRICT COURT OF SAMOA
Police v Fanene [2022] WSDC 2

Case name:	Police v Fanene
Citation:	[2022] WSDC 2
Decision date:	22 July 2022
Parties:	POLICE v THERESA GRACE FINAU FANENE, female of Malololelei and Apia
Hearing date(s):	11 November 2021
File number(s):
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Matautia Raymond Schuster
On appeal from:
Order:	Found not guilty of the charge of actual bodily harm but guilty of the amended charge of common assault which I found to be proven beyond reasonable doubt on the facts. The informations relating to armed with a plastic chair and throwing the said plastic chair are dismissed without prejudice.
Representation:	Inspector R. Ah Ching for prosecution U. I. Sapolu for Defendant
Catchwords:	assault –throwing object - causing injury – intent to cause actual bodily harm – common assault
Words and phrases:
Legislation cited:	Police Offences Ordinance 1961 s25 & 26, Crimes Act 2013 s17[1], s92, s93, s119[1]& [2], s123
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

THERESA GRACE FINAU FANENE, female of Malololelei and Apia
Defendant

Counsel:
Inspector Richard Ah Ching for prosecution
Ms I. Sapolu for Defendant

Hearing: 11 November 2021
Decision: 22 July 2022

DECISION OF JUDGE SCHUSTER

1. The accused is facing three (3) charges:
   • (i) that “... at Matautu on 22^nd day of October 2020, the abovenamed defendant of Malololelei and Apia was armed with an object namely, a “Plasti Chair” not being so armed for a lawful purpose” pursuant to section 25 of the Police Offences Ordinance 1961 (hereinafter referred to as the POA);
   • (ii) that “... at Matautu on 22^nd day of October 2020, the abovenamed defendant of Malololelei and Apia, threw an object namely a “Plastic Chair”, to the danger of a person(s) pursuant to section 26 of the POA; and
   • (iii) that “... at Matautu on 22nd day of October 2020, the abovenamed defendant of Malololelei and Apia, with intend to cause actual bodily harm, caused actual bodily harm to Solamalemalo Tulagafou, a female of Vaoala and Faleula” pursuant to section 119(1) of the Crimes Act 2013 (hereinafter referred as the CA2013).

The Law

2. Section 25 and 26 of the POA provides:

(1) A person who is armed with an offensive or dangerous weapon, instrument or thing and who cannot prove (the onus being on him or her) that he or she was so armed for a lawful purpose commits an offence and is liable to imprisonment for a term not exceeding 1 year.

(2) Every such weapon, instrument or thing is, by the conviction of the offender, forfeited to the State.

.............

(1) A person who throws or discharges a stone or other thing at or to the danger of a person, whether or not the stone or thing actually hits a person, commits an offence and is liable to imprisonment for a term not exceeding 1 year.

(2) Every such thing is, by the conviction of the offender, forfeited to the State.

3. Section 119(1) of the CA2013 states:

(1) A person is liable to imprisonment for a term not exceeding 7 years who, with intent to cause actual bodily harm causes actual bodily harm to another person.

4. The term assault is defined in section 2 of the CA2013 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

Facts

5. The prosecution called two witnesses: Faulalo Tupua, a 47 years old male of Alafua and Tulagafou Nofoagatotoa a 59 years old female of Vaoala who is the complainant and victim. The two witnesses are in a de facto relationship.
6. The facts are unremarkable and straight forward. The dispute started from facebook comments alleged made by the defendant affecting the victim and her family. On the 22^nd day of October 2020 at about 1pm the victim and her partner were at Matautu wharf to organise a shipment of goods to American Samoa. It was close to the end of business day when on their way out of the wharf the victim saw the defendant sitting at the Samoa International Game Fishing Association (SIGFA) compound. The victim stopped and called out to the defendant to come and talk. There is a dispute as to who said what but basically the victim called to the defendant to come and talk about the facebook issue but the defendant did not want to talk, verbally dismissed and allegedly hurled insults to the complainant.
7. The complainant then approached the defendant and tried to engage her into a discussion relating to the facebook comments. I take judicial notice that the complainant was found guilty of assault by punching the defendant arising out of the same incident before District Court Judge Kerslake. The complainant approached and punched the defendant hitting her behind the right ear. His Honour also found verbal provocation which was the cause of the assault.
8. The defendant testified that she only used the chair to try and stop the complainant from attacking her. On the other hand, the complainant asserts that the defendant used the chair to hit her over the forehead causing a laceration and blood to come out.

Discussion

9. As the trier of fact, I must firstly determine whether the defendant armed herself with a plastic chair for an unlawful purpose of committing actual bodily harm. If I am satisfied beyond a reasonable doubt based on established facts that the defendant did arm herself with intent to commit actual bodily harm, I must then consider whether the defendant was justified in doing so in the face of an unprovoked assault^[1].
10. The findings of DCJ Kerslake concluded that the defendant (turned complainant in this matter) was provoked given the verbal insults hurled by the defendant. I have no reason to reject the evidence of the complainant that the defendant did assault her using a plastic chair. However, I am not satisfied beyond a reasonable doubt there being no sufficient evidence that the defendant intended to cause actual bodily harm and did cause actual bodily harm. Though prosecution failed to provide a medical report or photograph(s) of the complainant’s injury, I accept the complainants sworn testimony of her injury. Nevertheless, the complainant’s injury falls short of the degree or gravity of an injury that is required which must be more than just a mere abrasion or laceration but short of a grievous injury. I apply my experience of human nature, logic and reason robustly in determining the significance of the injury alleged and what the law requires.
11. Although I dismiss the charge of actual bodily harm, I invoke section 92(1) of the CA2013 and find that part of the charge of common assault pursuant to section 123 of the CA2013 is proved beyond a reasonable doubt. Accordingly, applying section 93 of the CA2013, information D895/21 is amended from causing actual bodily harm to common assault given the sworn evidence proven before me.
12. Furthermore, I reject the defendant’s invocation of self defense pursuant to section 17(1) of the CA2013. As indicated earlier, it was the defendants verbal insults that provoked the complainant to approach her and by that very act of provocation negate self defense. I accept that the complainant merely wanted to talk to the defendant as the defendant and her mother were not strangers to the complainant as the complainant housed the defendant in the past in American Samoa. This evidence was not disputed.
13. As to informations D805/21 and D806/21, though I find proven beyond reasonable doubt on the facts, are superfluous and against the doctrine of one-act-one-crime. Though multiple offences have been committed, it was the same continuous uninterrupted act to effect the commission of the more serious offence of common assault.

Conclusion

14. The defendant is found not guilty of the charge of actual bodily harm but guilty of the amended charge of common assault which I found to be proven beyond reasonable doubt on the facts. The informations relating to armed with a plastic chair and throwing the said plastic chair are dismissed without prejudice.

JUDGE MATAUTIA RAYMOND SCHUSTER

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^[1] Section 17(1) CA2013