Police v Faalialia [2023] WSDC 4 (17 November 2023)

IN THE DISTRICT COURT OF SAMOA
Police v Faalialia [2023] WSDC 4 (17 November 2023)

Case name:	Police v Faalialia
Citation:	[2023] WSDC 4
Decision date:	17 November 2023
Parties:	POLICE (Informant) v MICHAEL FAALIALIA (Defendant)
Hearing date(s):	3rd November 2023
File number(s):
Jurisdiction:	CRIMINAL (District Court)
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Talasa Atoa-Saaga
On appeal from:
Order:	I hereby find the Defendant guilty of committing the charges of actual bodily harm and unlawful entry of building at night. The Assault Charge is dismissed.
Representation:	Corporal Tuiloma for Prosecution Defendant appears in Person
Catchwords:	Actual bodily harm – assault – unlawful entry.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 119(1); 123; 178.
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MICHAEL FAALIALIA

Defendant

Representation: Corporal Tuiloma for Prosecution

Defendant appears in Person

Hearing Date: 3^rd November 2023
Decision: 17^th November 2023

DECISION OF JUDGE ATOA-SAAGA

INTRODUCTION

1. The Defendant is charged with the following charges
   • (a) Actual Bodily Harm under Section 119(1) of the Crimes Act 2013.
   • (b) Assault as an alternative charge under Section 123 of the Crimes Act 2013.
   • (c) Unlawful entry pursuant to Section 178 of the Crimes Act 2013
2. The Defendant entered a Not Guilty plea to all 3 charges. Prosecution bears the burden of proving all the charges beyond reasonable doubt.

PROSECUTION EVIDENCE

3. On the 2^nd September 2022, the Victim was sleeping with her children by her side in front of the living room of their house. She was alone with her children as her husband was overseas.
4. Suddenly, she heard someone touching her feet and pulling away her sheet. She sat up and saw the Defendant kneeling directly over her. The living room was well lit as both the lights inside the living room and outside were turned on. The television in the living room was also on. She saw the Defendant’s face clearly as he was directly in front of her face when she sat up. He was wearing a black shirt and yellow lavalava.
5. The Defendant started hitting her face. His punches landed on her left eye and her nose. He also hit her on her mouth. She had difficulty opening her left eye after the assault.
6. The victim’s 10 year old son Tito Junior who was sleeping next to her woke up and screamed when he saw the Defendant kneeling over his mother and assaulting her. He screamed. The Defendant ran off. Tito Jnr saw that the Defendant was wearing a black shirt and yellow ie lavalava. He also recognized him as the Defendant.
7. They ran to the front of their house. The gate was locked but they found two stones and a bottle of alcohol in front of their gate.
8. On cross examination, it was put to the Victim that he was wearing that night a black shirt and black pants.
9. It was put to the Victim also that the Defendant does not consume alcohol. He only consumes Samoan kava. He was also at the time recovering from a traumatic experience of his wife leaving him. The Victim responded that she had not only seen him up close but she could also smell the alcohol on his breath.
10. The victim’s son cried on the stand while recounting the incident.

DEFENCE EVIDENCE

11. The Defendant elected to give evidence.
12. The Defendant’s parents also gave evidence
13. The Defendant had stayed at his parent’s house the whole day and overnight. The house is located two houses from the Victim’s house.
14. The Defendant’s father testified that the Defendant was at their house. They were at the time busy with the preparations for his mother’s funeral who had died two days earlier. They had left the house around 4 am and they saw the Defendant sleeping when they left. The Defendant’s mother also testified that when they left the Defendant was still sleeping. He was earlier crying over his wife and daughter leaving him. It was while they were at her husband’s place further away, that they were informed by their daughter who had stayed behind that the Defendant had been arrested.
15. Both testified that the Defendant consumed alcohol but had stopped when he was successful in his application under the RSE Scheme.
16. The parents also testified that they depend on the Defendant to look after them.
17. On cross examination, the Defendant’s conceded that he was not aware of his son’s whereabouts at the time of the offence as they were at his mother’s place.

DISCUSSION

18. The element that is disputed by the Defendant for all the 3 charges is the identification of the Defendant as the person who had committed the offences.
19. The victim saw the Defendant kneeling over her. When she sat up, he was at eye level and she was looking directly at his face. The lights were on inside the living room including the television.
20. The Defendant raised the defence of alibi. He was at his parent’s house at the time.
21. After hearing all the Defence witnesses, I have found their account of the Defendant’s whereabouts improbable.
22. The grandmother had passed two days prior. The grandmother lived further away from the Defendant’s parents’ house. The whole family were busy with the funeral preparations. Both parents gave evidence that they were both at the grandmother’s place and were informed that the Defendant had been arrested while they were there. While they both testified that they both saw the Defendant at home prior to leaving the day after, the Defendant’s mother contradicted that part of their evidence by indicating that they had left the night before rather than the morning afterwards. The latter account is plausible given that they should have been at the funeral preparations rather than consoling their 28 year old son that whole day and night.
23. I found the Victim and her son as credible witnesses. The son cried on the stand and had difficulty suppressing his emotions while recounting the assault on his mother.

Actual bodily harm and assault as an alternative charge

24. The Defendant has been charged with Actual Bodily Harm and Assault as an alternative charge. Under section 119(1) of the Crimes Act, I must be satisfied that there was an intention to cause actual bodily harm and that actual bodily harm was caused.
25. The Defendant was kneeling over the victim. When she sat up, she looked straight at this face. Punching the victim in her eye while she was in such close proximity to him proves his intention to cause actual bodily harm to the victim.
26. The victim’s eye was critically swollen and she had difficulty seeing through her left eye. I am satisfied that there was actual bodily harm caused by the Defendant in hitting her on her eye and mouth as evidenced by the medical report. As I am satisfied that he committed actual bodily harm, there is no need to consider Assault as an alternative charge.

Unlawful entry of building by night

27. The Defendant is married to the niece of the Victim’s husband. He does not visit nor live at the victim’s house. It was around 2am and there was no reason why he should be at the house when it was only the victim and her children alone at home. To be in the victim’s house at that time is not only unlawful but was solely for the purpose of committing a crime.

CONCLUSION

28. I hereby find the Defendant guilty of committing the charges of actual bodily harm and unlawful entry of building at night. The Assault Charge is dismissed.

JUDGE ATOA-SAAGA