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Family Violence Court of Samoa
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Police v Brown [2015] WSFVC 1 (10 April 2015)

FAMILY VIOLENCE COURT OF SAMOA
Police v Brown [2015] WSFVC 1


Case name:
Police v Brown


Citation:


Decision date:
10 April 2015


Parties:
POLICE v SILI ALAPATI BROWN male of Vailima and Salelologa


Hearing date(s):
30 March 2015


File number(s):
D2871/14, D2872/14, D2874/14, D439/15, D440/15, D441/15, D442/15


Jurisdiction:
Criminal


Place of delivery:
Family Violence Court of Samoa, Mulinuu


Judge(s):
DCJ Fepuleai A. Roma


On appeal from:


Order:
- The accused is remanded at liberty to Thursday 30 April 2015 for a pre – sentence report and sentencing on the 4 charges of which he has been found guilty.


Representation:
I. Sapolu for the accused
Sgt Richard Ah Ching for prosecution


Catchwords:
Common assault – uttering threatening words – uttering insulting words - possession of a firearm without a permit – possession of a firearm without a valid certificate of registration


Words and phrases:


Legislation cited:


Cases cited:


Summary of decision:

FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU


BETWEEN


POLICE
Informant


AND


SILI ALAPATI BROWN male of Vailima and Salelologa


Counsel:
Ms I. Sapolu for the accused
Snr Sgt. Richard Ah Ching for prosecution

Hearing: 30th March 2015


Decision: 10th April 2015


DECISION OF JUDGE ROMA

Charges

  1. The accused faces 7 charges arising out of 3 separate incidents at Vailima and Vaivase uta on 6 December 2014, 9 December 2014 and more recently on 3 February 2015. The complainant in these proceedings is his wife Lusia Brown:

Evidence

  1. The accused and complainant have been married for about 37 years. Both are directors of a family company called ALCC Brown, a construction and general engineering business based at Vailima. The accused husband deals mainly with the construction and engineering side of the business whilst the complainant wife takes care of the administration and runs their resort, namely Lusia’s Lagoon Chalets, located at Salelologa on land belonging to the accused’s family.
  2. For years, the accused and complainant have been having marital problems, the main reason being the complainant’s suspicions over her husband’s alleged extra marital affairs which he denies and which clearly is not an issue for these proceedings.

6 December 2014 Incident

  1. On 6 December 2014 around midday, the accused was at Vaitele with some of their workers. The complainant, suspecting that her accused husband was there with a female, drove over to check on him. At Vaitele, the complainant met the accused in his vehicle at their gate. He was leaving the compound. The complainant followed the accused home and when they both reached home, they got into a heated argument over the accused’s alleged affairs.
  2. According to the complainant it was during that exchange that the accused said to her “o le a le mea ga e aikae aku ai ae le gofo e fai galuega” (You shit eater, why did you come over and not stay here and do the work). The argument continued until the accused told her that he has had enough and was going to beat her up. She saw the accused holding a closed fist and fearing for her safety, she grabbed the accused from the front by his collars and pulled him towards her and against her face so as to protect her from the accused. Meanwhile, the accused was punching her on the head.
  3. The evidence of Dr Malaki Malaki, who examined the complainant 2 days after the incident is that the complainant related to him that she was punched on the head and upper body and thrown on the floor. Upon examination, Dr Malaki found “slight bruising, swelling and tenderness on the complainant’s right arm and shoulder, the right side of her scalp, her back on the right side and on the lateral aspect of her right foot.”
  4. The accused disputes that he assaulted his wife. In his oral evidence, he admits that when they got inside the house, he and the complainant had a heated argument but denies that he swore at her. His version is that as they argued, the complainant grabbed him by his collars, pulled him side to side and began throwing punches at him. Some landed on his mouth and nose which caused him to bleed before he pushed the complainant away in self defence. At one point during their struggle, he told her “Koeikiki lava o’u fasiga loa oe” (I am going to beat you up very soon) but says he never meant it because she was a woman and that in his upbringing, he never saw his father lay hands on his mother. According to the accused, he tells his wife off and sometimes swears but never before has he laid hands on her.
  5. Consistent in most parts with his oral evidence, the following are relevant parts of his cautioned statement admitted by consent as Exhibit P5:

.....

Leoleo (Police): Sa e faia se faamatalaga faapea i lou toalua “o le a fasi loa oe?” (Did you say to your wife, I am going to beat you up now?)
Tali (Response): Leai ou ke le’i faia lea kala pau a le mea I have to push her away to defend myself, poo fea e ugai ai e ugai ese a.” (No I did not say that, all I did was push her away to defend myself, whichever way, I pushed her away)
  1. Following the exchange and upon a call from the complainant, the police attended the couple’s home at Vailima and accompanied the complainant to the Police Station where she formally made the complaint. According to the Investigation Officer, Constable Henifa Bryce, the officers who attended the complainant’s call confirmed that they found the accused inside the house with blood on his face.

9 December 2014 Incident

  1. On 8 December 2014, as a result of the complainant’s statement with the Domestic Violence Unit, Corporal Sailini Iopu and one other officer, on instructions of Sergeant Tofilau Junior Tofilau, accompanied the accused to his home and collected the 44 lever action rifle (Exhibit P1) and ammunition (Exhibit P2) from his vehicle. According to Corporal Iopu, that was the only firearm they brought back to the station from the accused.
  2. Sergeant Tofilau’s evidence however is that he received from Constable Iopu not 1 but 2 firearms, the 44 lever action rifle (Exhibit P1) and a 12 gauge pump action rifle (Exhibit P3). Sergeant Tagaloasa Todd Iosefa, the Arms Officer who was asked to inspect the firearms confirms that not only did he receive from Sergeant Tofilau both the 44 lever action and 12 gauge pump action rifles, he also inspected both and found them to be in good working condition.
  3. Furthermore, according to Police records, the 44 lever action rifle was registered under the name “Albert / Alapati Brown” of Salelologa and 12 gauge pump action under that of “Sa’olele”, a former and retired Police Superintendent. As to the certificate of registration of the 44 lever action rifle registered under the accused’s name, Sergeant Iosefa’s testimony is that the last time that it became valid was in 2011.
  4. The defence’s evidence suggests that the firearms were recovered from the accused following his interview with the police on 9 December 2014 and not the 8 December 2014 as is the evidence for the prosecution. Either way, the accused does not dispute that he was in possession of both firearms and that he handed both to the police. In fact, the cross examination by his counsel and his own evidence focused on why he was unable to register the 12 gauge pump action rifle under his name and how he overlooked applying to validate permits for the 44 lever action rifle since 2011.

3 February 2015 Incident

  1. After all that had happened and as a result of a protection order issued against the accused, he has since moved to live on one of their properties at Vaivase uta. On 3 February 2015, the complainant and some of their workers went to Vaivase uta to collect some belongings including a bed that they were to take to Savaii. When the accused arrived later, they again had a heated argument in which the accused, according to the complainant, told her “O oe o le magu” (You’re an animal). It was also during that argument that the accused told the complainant words to the effect “E ke vaai iai ou ke kulia ese oe ma Salelologa pe a uma le faamasigoga. Ou ke alu aku avage le aiga pokopoko e kuli ese oe ...” (You will see that I will chase you away from Salelologa after the court case, I will bring my extended family to chase you away).
  2. The first utterance was confirmed by Ricky Seiuli, who was there with other employees on instructions of the complainant to help move the stuff and who under cross examination confirmed that in his employment, he was being paid by the complainant and not the accused.
  3. The accused does not specifically deny the latter utterance. His version in respect of the former however is that what he said was “Ga o le magu e faapea oga fai. E le o a’u o se magu.”(Only an animal deserves this treatment, I am not an animal). He does not dispute that he was angry and that their argument was again heated but says that the reason was because he found that the complainant and her employees had turned his bedroom upside down with used stayfree pads, which he had no idea where they came from, scattered inside his room.

Issue

  1. Despite the number of charges, the overall issue is one of credibility and whether on the evidence, I am satisfied beyond reasonable doubt that the prosecution has proven the elements of each and every charge.

Law

Common Assault

  1. Section 123 of the Crimes Act 2013 states:

“A person is liable to imprisonment for a term not exceeding one (1) year who assaults any other person.”

  1. As to the defence raised by the accused, the relevant part of section 17 states:

“Self Defence – (1) A person unlawfully assaulted, not having provoked the assault by any blows words or gestures is justified in repelling force, if the force the person uses:

(a) Is not meant to cause death or grievous bodily harm;
(b) And is no more than necessary for the purpose of self defence.”

Threatening and Insulting Words

  1. Section 4(g) of the Police Offences Ordinance 1961 states:

“A person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine of 2 penalty units who:

uses any threatening, ... insulting words with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.”

Firearm Charges

  1. On the charge of being in possession of a firearm without a permit, section 7 of the Arms Ordinance 1960 relevantly states as follows:

“(1) Subject to the provisions of this Ordinance, no person shall, whether by way of purchase or in any other other manner, procure possession of any firearm or ammunition otherwise than pursuant to a permit issued under this section ...

(3) A permit under this section may be issued by the Arms Officer on payment of the fee prescribed in the First Schedule;

(4) Every person who commits ... a breach of this section is guilty of an offence and is liable on conviction for a term not exceeding 2 years or to a fine of 20 penalty units ... and the burden of proving the existence and terms of such permit ... shall be on the defendant

  1. As to one of being in possession of a firearm without a valid certificate of registration, the following provisions of section 9 are relevant:

“(1) It shall not be lawful for any person other than a licensed dealer to be in possession of any firearm for a period longer than 7 days unless he or she is registered as the owner thereof under this section ...

(7A) For the avoidance of doubt, every certificate of registration expires on the 31st day of March each year and, subject to subsection (1), it is an offence under subsection (11) for a person other than a licensed dealer to fail to renew a certificate of registration ...

(11) Every person who commits a breach of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding 50 penalty units, or to both such fine and imprisonment. In any prosecution for such an offence, if the defendant is proved to have been in possession of the firearm, the burden of proving that he was the holder of a valid certificate of registration in respect of thereof as aforesaid ... shall lie on the defendant”

Discussion

Common Assault

  1. There is no dispute that there was an actual application of force by the accused on the complainant. Both the complainant and accused confirm that in their evidence. Whilst the medical examination by Dr Malaki was never put to and confirmed by the complainant, the medical report Exhibit P2, tendered by consent refers to injuries that she suffered. Obviously, these injuries were a result, direct or indirect, of such physical contact.
  2. The issue however is whether I am satisfied beyond the required standard that the assault by the accused was not in his defence as he claims. The prosecution says that during the heated argument, the accused told the complainant that he was going to beat her up then proceeded to start punching her on the head as she grabbed the accused’s collars and held her face against the accused. On the other hand, the accused maintains that it was the complainant who first grabbed him by the collars and pulled him side to side then punched him on the face causing him to bleed. He pushed her away to defend himself.
  3. I have listened carefully to the evidence of both the complainant and accused, observed their demeanour in the witness box and am inclined to accept the evidence of the accused.
  4. Firstly, the complainant was clearly very upset earlier. She was suspicious of the accused’s attendance at Vaitele and thought that the accused was at it again (“toe fai foi”); she drove to Vaitele but turned around and followed the accused back to Vailima after they met at the gate of their Vaitele compound. At home, she was angry and started questioning the accused if he was at it again (“pe ua toe fai fo’i?”) and I accept that it was the complainant who first applied force on the accused when she held him by the collar and pulled him.
  5. Secondly, there is no doubt that the accused suffered injuries to his face. His undisputed evidence is that when the police came, they found him with blood on his face. The Investigating Officer also confirmed that she was made aware of that information by the officers who attended the Browns’ home later that afternoon. In my view, the accused could not have inflicted his own injuries. More importantly, they could not have been caused by the complainant grabbing the accused’s collars and guarding her face against the accused. The only logical explanation for the accused’s injuries would be because he was punched or struck on the face, at least once by the complainant.
  6. Thirdly, having listened to the evidence and observed the witnesses’ demeanour, the accused does not impress me as a violent person. In his own cautioned statement, he says in response to a question whether he had continued to punch the complainant’s head, that if he was someone else, the complainant would have suffered serious injuries but he was not the kind, he does not beat her up ( ... aga faapea o au se isi kagaka e makuai kigaiga a ou ke le fasiga a.) That part of his evidence, I also accept because in my view, the bruises and swelling on the complainant’s right arm and shoulder, the right side of her scalp, her back on the right side and on the lateral aspect of her right foot were most likely caused by hitting a chair or table as suggested by the police during the accused’s interview, if not a push as is the evidence of the accused.
  7. I find that the accused acted in self defence and that his actions were no more than was necessary to repel force applied by the complainant.
  8. The onus is on the prosecution to prove that when the accused inflicted harm on the complainant, he was not acting in self defence. I am not satisfied that the prosecution has discharged that burden. Information D2871/14 is accordingly dismissed.

Threatening & Insulting Words

  1. In relation to Information D2872/14 of uttering insulting words at Vailima on 6 December 2014, I find that the accused did utter words to the effect “o le a le mea e ke aikae ai ma e kaumulimuli aku ai ae le gofo e fai galuega gae.” (You shit eater, why did you come over and not stay here and do the work). There is no doubt that the accused was angry, he was again being accused by the complainant and they were obviously engaged in a heated argument. His version is that the complainant was the one telling him “alu e ai kae o au paumuku” (go eat your sluts’ shit) and his response was “alu e ai ma oe” (Go eat it yourself). In my view, it is more plausible than not that in an argument as heated as the one on 6 December 2014 which subsequently led to a physical confrontation and injuries, the accused would at least utter the words as charged. After all, he admits that he tells his wife off and sometimes swears but never has he beaten her up.
  2. I find in the circumstances that the words uttered were insulting and that they were intended to further provoke an already existing breach of the peace. The prosecution has proven Information D2872/14 beyond reasonable doubt.
  3. As to Information D439/15 of uttering threatening words at Vaivase uta on 3 February 2015, the complainant’s evidence is that during an argument over the removal of some of their belongings from the Vaivase uta property, the accused told her words to the effect “E uma loa le faamasigoga ou alu aku e aveese oe ma Salelologa ... ma avaku le aiga pokopoko e kuli ese oe.” (After the court case, I will remove you from Salelologa ... and bring my extended family to chase you away). The accused does not dispute saying those words. His explanation as I understand is that there were many angry people in his family because of what was happening in their marriage and the fact that their resort at Salelologa, which the complainant operates, is on his family’s land. He further says, that despite his family’s concerns, he told them that his differences with his wife were his own problem and that he still protects her.
  4. Whilst I find that the accused uttered the words referred to in paragraph 33 above, I am not satisfied that they amount to a threat in the sense and meaning provided for under the Police Offences Ordinance 1960. If anything, the words were a warning to the complainant of what would happen to the resort after their case, and the accused’s intent at the time, in my view was exactly that.
  5. I find that the prosecution has not proven Information D439/15 beyond reasonable doubt.
  6. Information D440/15 of uttering insulting words is also a consequence of the incident on 3 February 2015. The accused denies saying to the complainant “O oe o le magu, e ke le kea i se isi.” (You are an animal, you do not care about anyone). His version is that he was angry and upset upon finding his room in a big mess and his bed removed, and what he said was “Ga o le magu e faapea ga fai. E le o a’u o se magu” (Only an animal deserves this treatment, I am not an animal). Again, having listened to the testimonies and observed the witnesses, I prefer the evidence of the accused. On the other hand, I found Ricky Seiuli, who was there on instructions of the complainant, evasive and I have doubts about his credibility. Clearly for him, the fact that he was being paid by the complainant was an important factor.
  7. I am not satisfied beyond reasonable doubt that the words complained of were uttered by the accused. The prosecution has therefore not proven Information D440/15.

Firearm Charges

  1. For the charge of possessing a firearm without a permit (Information D2874/14), the prosecution must prove (1) that the accused was in possession of a firearm and (2) the possession was without a permit issued by the Arms Officer.
  2. I have no difficulty finding that the accused was in possession of the 12 gauge pump action rifle (Exhibit P3) on the 9 December 2014. The accused does not dispute that he was in possession of the firearm and that he handed the firearm to the Police when they asked for it. Likewise I have no difficulty finding that the accused had not been issued with a permit to be in possession of the firearm. The clear evidence is that the 12 gauge pump action rifle is still registered under the name of “Sa’olele” and it could not be registered under the accused’s name because he had not obtained the required consent from that previous owner.
  3. The accused pursuant to s7(4), Arms Ordinance 1960 bears the burden of proving the existence of the required permit. He has not discharged that burden. Accordingly, I find Information D2874/14 proven beyond reasonable doubt.
  4. In relation to the 2 charges of failure to renew certificate of registration (Information D441/15 & D442/15), the prosecution must firstly prove that the accused was in possession of the firearm(s) for a period of longer than 7 days, then the accused assumes the burden of proving that he was holder of a valid certificate of registration.
  5. Again I have no difficulty finding that the accused was not only in possession of the 44 lever action rifle (Exhibit P2) but also for a period of more than 7 days. The clear evidence of the prosecution is that the accused was found in possession of the 44 lever action rifle and the last time that a valid certificate of registration was issued was in 2011. I am also satisfied on that prosecution evidence alone that there was no valid certificate of registration for the periods 31 March 2012 to 31 March 2013 and 31 March 2013 to 31 March 2014.
  6. The accused however, pursuant to section 9(11) of the Arms Ordinance 1960 bears the burden of proving that he was the holder of a valid registration of title of the firearm. He has not discharged that burden for both periods. I find therefore Information D441/15 and Information D442/15 proven beyond reasonable doubt.

Decision

  1. On the evidence and for the foregoing reasons, I find as follows:
  2. The accused is remanded at liberty to Thursday 30 April 2015 for a pre – sentence report and sentencing on the 4 charges of which he has been found guilty.

JUDGE FEPULEAI A ROMA

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