Police v Maualaivao [2023] WSDC 5 (9 June 2023)

IN THE DISTRICT COURT OF SAMOA
Police v Maualaivao [2023] WSDC 5 (09 June 2023)

Case name:	Police v Maualaivao
Citation:	[2023] WSDC 5
Decision date:	09 June 2023
Parties:	POLICE (Informant) v PEPE SEIULI MAUALAIVAO (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	District Court of Samoa- CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Atoa-Saaga
On appeal from:
Order:	I hereby find the Defendant guilty of attempted assault
Representation:	Inspector Poe Ualesi for Prosecution Mr. Alex Su’a for Defendant
Catchwords:	Assault- attempted assault-complainant- interject- threatening- guilty common assault
Words and phrases:
Legislation cited:	Crimes Act 2013, ss 2; 2(1); 123; Crimes Act 1961 (NZ), s. 2(1).
Cases cited:	R v Kerr CA 143/87 [1987] NZCA 142; R v Horncastle (1972) 19 CRNS 362.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

PEPE SEIULI MAUALAIVAO

Defendant

Representation: Prosecution represented by Inspector Poe Ualesi.

Defendant Represented by Mr. Alex Sua

Decision: 9^th June 2023

DECISION OF JUDGE ATOA-SAAGA

BACKGROUND

1. The Defendant Maualaivao Pepe was charged initially with Assault on the victim at a village meeting at Malie. The charge was subsequently amended by Prosecution to “Attempted Assault.” The Defendant is alleged to have committed the offence during a village meeting at Malie.
2. The Complainant is Maualaivao Patelesio (Pat) Ah Him.
3. The Defendant disputed the commission of the offence.
4. Prosecution bears the burden of proving the charge beyond a reasonable doubt. Prosecution also called 5 witnesses to give evidence.
5. The Defendant elected not to give evidence.

EVIDENCE

6. On the 7^th of September 2020, the Complainant and his brother Muagututagata Peter attended the village meeting held at Malie at 8.00am. The Complainant was hoping to gain the support of the village council in his nomination as a candidate for the upcoming election in 2021.
7. The Defendant sat next to the Complainant. The Defendant and the Complainant sat a pole (“pou”) apart.
8. The meeting started with an opening kava session in which the Complainant heard the name of his kava bowl change from “Toatalaola” to “Sautiaimalae”. The said change was at the instruction of the Defendant. The Complainant refused to accept the kava bowl. It was then the Defendant said to kava bowl bearer, “A le igua le ava, asu ai maka i le ipu”.
9. When the complainant questioned the way in which he was treated by the Defendant, the Defendant said these threatening words, “e koe fai loa sau kala, ou kuiga loa oe,”
10. When the complainant tried to interject, the Defendant said to him, “aua gei koe faamaga mai lou kugu.” The Defendant moved to get up. Masuisui Farani who is referred to as the Defendant’s son walked over and laid across the Defendant holding onto him. On cross-examination, the complainant said that he closed his eyes when he saw the defendant trying to get up. He felt scared as the Defendant had a bigger frame than him.
11. Muagututagata Peter Ah Him was sitting next to the Defendant. Tauanuu Iolama the third witness who was assisting in the distribution of the kava also sat near the Defendant and the Complainant. On cross-examination, Tauanuu demonstrated the distance between himself and the Defendant at the meeting as between the witness dock and the Defendant’s dock.
12. Both Muagututagata and Tauanuu heard the Defendant instructing the kava bowl distributor (“tautu ava”) to throw water at the Complainant’s face if he refuses. (“Kago e asu i maka pea le iguiga”) They also heard the Defendant threatened to hit him. (“Kuu loa i ou alu aku kui oe.”)
13. Fuiava Faamausili the fourth witness who also attended the meeting sat quite a distance from the Defendant and the Complainant. From where he was sitting, he could hear the name of the kava bowl “Sautiaimalae” served on the Complainant. He also saw the Complainant reject the kava bowl. He saw the Defendant move to the left and hold up his fist. On cross-examination, the witness conceded that he was sitting at the back.
14. Auimatagi Pesamino the fifth witness was also at the meeting. He also heard Defendant say to the distributor of the kava bowl to throw the kava on Maualaivao’s face. (“Asu le ava i maka.”) He saw the Defendant turn to the Complainant and hold up his fist. He also overhead the Defendant say, “E ke koe fai mai loa kui loa oe.”
15. All Prosecution witnesses saw Masuisui Farani intervene. The Complainant, Muagututagata Peter and Tauanuu Iolama who were sitting next and across from the Defendant saw Masuisui Farani walk in and lay across the Defendant restraining him. Muagututagata and Fuiava heard Masuisui Farani say, “Onosai” to the Defendant.
16. After the intervention by Masuisui Farani, the mayor of the village ended the meeting.
17. During cross examination, Defence counsel put to all the witnesses that the Defendant had only uttered the threatening and insulting words once. Secondly, the Defendant was at an arm’s length from the Complainant so there was no need for him to get up from his seat to hit the Complainant. He could have just reached out and hit the Complainant seated next to him. All the witnesses conceded that what had happened at the meeting had not happened previously.

SUBMISSIONS

18. Prosecution submits that the evidence adduced proves beyond reasonable doubt that it was the Defendant who had attempted to assault or threatened the Complainant by acts and gestures and caused the Complainant to believe on reasonable grounds that he had the present ability to effect his purpose.
19. Prosecution also referred the Court to R v Kerr CA 143/87 [1987] NZCA 142.
20. Defence Counsel submits that irrespective of the words and gestures uttered by the Defendant, there was no intention on his part to assault the Complainant. The setting was in a village meeting and that the words that were uttered by the Defendant were within the faasamoa and faamatai village setting. It is Defence Counsel’s contention that the Defendant’s role as profound and senior matai gave him eligibility to utter the words that he spoke though everyone at the meeting knew the he would not have followed through with his threat. Notwithstanding his instructions also to the kava bowl distributor (“tautu ava”), the kava bowl distributor would not have complied with the Defendant’s instructions.
21. Defence Counsel contends also that notwithstanding the intervention by Masuisui Farani, as Prosecution did not call Masuisui Farani as a witness, there is no evidence to inform the Court of why Masuisui Farani laid on the Defendant’s knees. Therefore, the intervention cannot be attributed to the actions of the Defendant. He could have intervened to calm the Defendant rather than to restrain him.
22. The Defendant was also an arm’s length away from the Victim so there was no need for him to stand up if he had intended to assault the Defendant.

DISCUSSION

Attempted Assault

23. Section 123 of the Crimes Act 2013. Common assault – A person is liable to imprisonment for a term not exceeding 1 year who assaults any other person.
24. Section 2 of the Crimes Act 2013 defines 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, present ability to effect his purpose
    • or the person 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;
25. The elements of assault are:
    • (a) A person
    • (b) Attempts 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
    • (c) 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.
    • (d) “A person”
26. There is no dispute that the Defendant is the person.
    • “Attempts 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.”
27. In R v Kerr CA 143/87 [1987] NZCA 142, the New Zealand Court of Appeal made the following observation at page 3,
    • “At common law, assault is frequently used to inflict both an assault and battery. There an assault as distinction from battery is a threat by one person to inflict force upon another. Such conduct constitutes a crime at common law when the threatener by some physical act intentionally causes the other to believe that such force is about to be inflicted upon him.” The actus reus of assault thus consists in the expectation of physical contact which the offender creates in the mind of the person who he threatens. The mens rea consists in the realization by the offender that his demeanour will produce that expectation” The essential difference between battery and assault is often overlooked.”
28. In this case, the victim was asleep while sunbathing when the Defendant approached her and stood over her. He also held an axe at waist length and was seen pulling his pants down before he was interrupted by the observer. The Zealand Court of Appeal held at page 4,
    • “In our view, an assault for the purpose of the Crimes Act 1961 is committed when one person by a threatening act or gesture displays hostility towards another even through the person at whom the threatening act or gesture is unaware that it is being made provided always that the threatener has the present ability to effect his purpose. It is the aggressive conduct at which the legislation strikes. The mens rea is the intention to do the threatening act, the actus reus is doing it.”
29. Section 2(1) of the Crimes Act 2013 is identical to Section 2(1) of the New Zealand Crimes Act 1961.
30. The Court of Appeal also referred to the Canadian Authority R v Horncastle (1972) 19 CRNS 362. The Canadian Code also contains an almost identical definition of Section 2(1) of the Crimes Act 1961^[1]. At page 4,
    • “In R v Horncastle (1972) 19 CRNS 362... the New Brunswick Supreme Court, applying the definition held that the essentials of the offence are the threatening to apply force and the accused having the ability to carry out the threat. It held that a finding that the wife was not particularly alarmed had no legal bearing on the guilty of the accused. The Court said-The offence of assault is committed when a threat is intentionally made to apply force to the person of another and there is present ability to carry out the threat. Neither the degree of alarm felt by the person threatened nor the intent of the accused to carry out the threat are involved in the determination of the guilt of the accused.”
31. The Defendant intimidated the Complainant by changing the name of his kava bowl from “Toatalaola” to “Sautiamalae”. When the Complainant refused to accept the kava bowl, he threatened him and instructed the “tautu ava” to throw the kava on the Complainant’s face. When the Complainant objected, he threatened to hit him.
32. There appears to be inconsistency in the witnesses’ observation of the Defendant’s actions. Having carefully weighed the evidence, I have come to the conclusion that the witnesses’ observation was primarily dependent on where they were seated at the time.
33. The Complainant was sitting next to the Defendants’ side. Muagututagata Peter was sitting next to the Complainant so their observation of the Defendant was by looking sideways. Tauanuu Iolama was also sitting across so he shared similar observations with the victim and his brother. The other two witnesses Fuiava Faamausili and Auimatagi Pesamino were seated further away so shared what they observed from where they were seated. Fuiava said that he saw the movement of the Defendant to the left while forming a fist (“migoi atu I le itu tauagavale ma fua loa lana tui”). While Auimatagi said after giving the “tautu ava” instructions, the Defendant turned to the Complainant and formed a fist (“Ona fai lea o Maualaivao Pepe I le tufaava e asu le ava I mata. Ou te lei lagona atu se tala a Patelesio faliu loa ia Pepe ia Patelesio ma faafua lana tui.”)
34. All the witnesses saw Masuisui Farani walk in and restrained the Defendant by holding onto him. The inference could be drawn from his timely intervention that his decision to intervene was motivated by what he observed from where he was seated.
35. In my respectful view, the threats made by the Defendant prior to his attempt to stand up, were an attempt to apply force directly or indirectly on the Complainant. It was Masuisui Farani’s intervention that thwarted his attempt to apply force. Equally, the movements of the Defendant to get up are gestures threatening to the Complainant given that prior to his attempting to get up, he uttered threatening words that he would hit him.
36. Defence Counsel has argued that everyone knew that nothing would happen as the Defendant is a senior and profound matai and he is eligible to act the way he did in village meetings in Malie. It is my respectful view that the village fono is the epitome of the faasamoa and faatamalii. It sets the standard for respect and honour. The words and the instructions of the Defendant on that particular day fell far short of the faasamoa and faatamalii expected of his position and the essence of ava fatafata. All the witnesses conceded that this had never happened in previous meetings.
37. The law also does not work in silos. It applies to all spheres of influence and is not a respecter of person.
38. The noncompliance of the tautu ava to carry out the Defendant’s instructions does not exculpate the Defendant. That is the choice of the tautu ava who by not acting on instructions of the Defendant as paramount chief showed his exercise of wisdom and restrain.
    • (c)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.
39. The Defendant had the present ability to carry out his threat. He was sitting a pole away from the Complainant. He could have either reached across to his side and hit the Complainant or stood up and walked towards the Complainant and hit him. The latter would perhaps be more forceful.
40. The focus of the law is not on others which is the nuance in the Defendant’s submission but on the person who has been threatened. He believed that he was going to be assaulted by the Defendant had it not been for the timely intervention of Masuisui Farani.
41. I am satisfied after hearing the evidence that there was an attempt by the Defendant to assault the Complainant after threatening the Complainant that he was going to hit him, The Defendant’s subsequent move to stand up caused the Complainant to fear that he would carry out his threat to assault him as the Defendant was seated next to him and had the present ability to carry out his threat.

CONCLUSION

42. I hereby find the Defendant guilty of attempted assault.

JUDGE SAAGA

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^[1] Section 265(1)(b) of the Canadian Code265 (1)(b) A person commits an assault

(b) He attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

(b)