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Police v Malietoa [2018] WSFVC 3 (27 May 2018)

THE FAMILY VIOLENCE COURT OF SAMOA
Police v Malietoa [2018] WSFVC 3


Case name:
Police v Malietoa


Citation:


Decision date:
27 May 2018


Parties:
POLICE V FAAMAUSILI MOLI MALIETOA, male of Faatoia and Fagalii Uta


Hearing date(s):
15 – 16 February 2018


File number(s):
D870/17; D871/17; D872/17; D873/17; D874/17; D875/17


Jurisdiction:
Family Violence


Place of delivery:
Family Violence Court of Samoa, Mulinuu


Judge(s):
Judge Talasa Atoa Saaga


On appeal from:


Order:
After hearing the evidence, I hereby conclude as follows,
(a) In respect of the charge of Armed with a dangerous weapon pursuant to Section 25 of the Police Offences Ordinance 1961, I hereby find the Defendant guilty.
(b) Throwing a glass pursuant to Section 26 of the Police Offences Ordinance 1961, I hereby find the Defendant guilty.
(c) Insulting words pursuant to Section 4(g) of the Police Offences Ordinance 1961, I hereby find the Defendant guilty.
(d) Assault pursuant to Section 123 of the Crimes Act 2013, I hereby find the Defendant Not guilty.


Representation:
K Komiti and K Stanley for Prosecution

G Latu and B H Latu for Defendant
Catchwords:
Assault
Armed with dangerous weapon
Insulting words


Words and phrases:


Legislation cited:
POO 1961 s. 25 & 4(g)
CA 2013 s. 123


Cases cited:
Police v Zhong[2017] WSDC7
Police v Harris [2018] WSDC 2


Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA


HELD AT MULINU’U


BETWEEN:


POLICE
Informant


AND:


FAAMAUSILI MOLI MALIETOA, male of Faatoia and Fagalii Uta
Defendant


Counsels: K Komiti and K Stanley for Prosecution
G Latu and B H Latu for Defendant


Hearing: 15 – 16 February 2018
Submissions: 02 March 2018
Decision: 27 March 2018


RESERVED DECISION OF JUDGEATOA-SAAGA

THE CHARGES.

  1. The Defendant was charged with the following charges:
  2. The particulars of the charges are:
  3. The Defendant pleaded Not Guilty through Counsel to all the Charges on 30th October 2017.

BACKGROUND:

  1. The Defendant allegedly committed the offences during a family meeting on the night of 22nd August 2017 at the residence of Tooa Tosi Malietoa. At this family meeting, were the Defendant Faamausili Moli (“Faamausili”), the victim Papalii TitiutoaMalietoa,(“Papalii Titi”), witnesses for the Prosecution Malietau Malietoa (Papalii Malietau) and Papalii Ioane Malietoa (“Papalii Ioane”) and defence witnesses Auimatagi Monalisa Savealii (“Auimatagi”), Papalii Momoe Malietoa Von Reiche (“Papalii Momoe) and Lefaga Von Reiche (“Lefaga”) Other family members who were at the meeting included Papalii Malama, Tooa Malietoa, Papalii Pene, Papalii Moana, Lily Malietoa, Uluiva and Eti.
  2. Faamausili, Papalii Titi and Papalii Ioane Malietoa are the sons of Malietoa Tanumafili II. They have different mothers. Faamausili, Tooa Tosi Malietoa and Papalii Momoe Von Reiche’s mother is Lili Tunu Malietoa Tanumafili II. Papalii Titiutoa’s mother is Falesefulu Fonoti. Papalii Ioane’s mother is Aolele Maualaivao. Papalii Malietau is their eldest brother Papaliitele Laupepa’s son. Papaliitele Laupepa is the eldest of Lili Tunu MalietoaTanumafili’s children. Papalii Laupepa passed away years ago.
  3. Papalii Malama, Papalii Pene and Auimatagi Monalisa are their first cousins. They are the children of Savealii Malietoa. Savealii Malietoa is Malietoa Tanumafili II youngest brother.

PROSECUTION EVIDENCE

  1. The Prosecution called 3 witnesses. Papalii Titi, Papalii Ioane and Papalii Malietau. Papalii Titi was advised by Auimatagi that there will be a meeting on 22nd August 2017. The time was originally scheduled in the afternoon but due to the unavailability of Papalii Ioane because of his working hours, the time was rescheduled to 8.00pm.
  2. Papalii Titi picked up Papalii Ioane and Papalii Malietau from Malie and Vaivase. They were the last to arrive at Malifa. They greeted the other members of the family before they sat down. Papalii Titi sat in the middle of Papalii Ioane and Papalii Malietau. Papalii Ioane was to his right side whilst Papalii Malietau sat at his left side.
  3. Traditional Pleasantries were exchanged before Faamausili commenced their meeting with a prayer. After the prayer, Papalii Malama opened discussions. She discussed the family relationships and made reference to the relationship between the descendants of Malietoa Tanumafili II.
  4. Papalii Titi spoke after Papalii Malama on behalf of Papalii Ioane and Papalii Malietau. He said that they were not interested in discussing the relationship between the descendants of MalietoaTanumafili II. They were only there to discuss the estate of MalietoaTanumafili I. He also made a comment that there are illegal dealings associated with the land. (“soligatulafono o loo fai I le fanua”) There were no specifics mentioned of what he meant or who was involved.
  5. Faamausili reacted immediately to the comment made by Papalii Titi by repeatedly saying to him “O a soligatulafono” (“What illegal activities”). He stood up, picked up a glass of water from the coffee table infront of him and threw it at Papalii Titi whilst saying to him, “Eke kaakaa I le auala kele lou pogaua e aikae mai” He also said “e pei o ou uso le valea.”
  6. The glass was thrown at Papalii Titi who ducked and the glass hit the post behind his chair just above his head. The glass shattered and debris of the glass injured his hand. Papalii Ioane said it was Papalii Titi’s left hand that was injured. Papalii Malietau told the Court first during examination in chief that it was Papalii Titi right hand that was injured. He saw blood flowing from the wound (“ole palapala na tafe mai I le lima o Papalii Titi). During cross examination however he changed his evidence that it was the left hand of Papalii Titi that was injured. He appeared indecisive although he remained calm and collected amidst murmuring from behind him.
  7. After throwing the glass, Faamausili walked towards Papalii Titi. Both Papalii Malietau and Papalii Ioane intervened by stepping in front of Papalii Titi and tried to restrain Faamausili from reaching Papalii Titi. They were joined by Lefaga and Uluiva.
  8. Papalii Titi, Papalii Ioane and Papalii Malietau left Malifa immediately after. PapaliiTiti denied saying anything from the time the glass was thrown to when they left. On cross examination he admitted that he may have said something in anger.
  9. During Cross examination, it was put to all the Prosecution witnesses that there was disagreement prior to the incident which ostensibly justified the Defendant’s actions. This disagreement stemmed from an objection that they had lodged with the Public Trust Office to prohibit the burial of Seiuli Launiusaelua at Faatoia a week before. All the Prosecution witnesses agreed that there was a disagreement the week before but all denied that this was the purpose of the meeting.
  10. The Prosecution witnesses were quite restrictive in their testimonies. Papalii Titi was quite defensive and argumentative on the stand. Papalii Ioane was very nervous and hesitant during his testimony. Papalii Malietau was calm and collected during his testimony. The only time he seemed hesitant was when he was cross examined as to the injury on Papalii Titi’s hand.

DEFENCE EVIDENCE

  1. The Defendant elected to give evidence. The Defendant also called 3 witnesses. Auimatagi Monalisa Savealii, Papalii Momoe Von Reiche and Lefaga Von Reiche.
  2. The Defence testimonies referred to an earlier incident weeks before. A week before Papalii Malama Savealii received a letter dated 10th August 2017 from the Public Trust Office advising her that they will not be able to bury their brother Seiuli on the land at Faatoia. Her brother Seiuli Launiusaelua who lived in American Samoa had died unexpectedly and they were making arrangements to bury him on the land at Faatoia. Currently Auimatagi lives at Faatoia.
  3. Papalii Malama and Auimatagi both approached Tooa Tosi and they consulted with Paniani and Evelyn of the Public Trust Office after which a letter dated 15th August 2017 was prepared and signed by the Defendant, his two sisters and Savealii Malietoa’s children. An objection was lodged with the Public Trust by Papalii Titi, Papalii Ioane and Papalii Malietau prohibiting the burial of Seiuli.
  4. On the 17thAugust 2017, Papalii Malama and Auimatagi visited Papalii Titi at Fasitoouta. Papallii Malietau was at the meeting also and he agreed with Papalii Titi that they will withdraw their objection for Seiuli to be buried on the land. Seiuli was buried on the 18th August 2017.
  5. At the meeting, they also agreed that Papalii Malama and Auimatagi will call a meeting and they will be responsible for contacting the other family members including the Defendant and his siblings.
  6. Papalii Malama and Auimatagi coordinated the meeting by liaising with TooaTosi and Faamausili. Both agreed to a meeting. Tooa Tosi advised Papalii Momoe of the meeting. All of them arrived on the 22nd August 2018 before Papalii Titi, Papalii Ioane and Papalii Malietau.
  7. Papalii Titi, Papaliii Ioane and Papalii Malietau were the last people to arrive. Papalii Titi was inappropriately dress in cut off shorts. Papalii Malietau was also dressed in shorts but Defence witnesses did not seem to find his attire totally inappropriate. PapaliiTiti did not greet the other family members except for a brief comment. Papalii Ioane and Papalii Malietau greeted the Defendant and other family members when they arrived.
  8. Papalii Titi sat next to Papalii Ioane who was seated at his left side. Next to Papalii Ioane was Papalii Malietau. To his left was Papalii Moana. Next to Papalii Moana was a couch where Tooa Tosi and Faamausili were sitting. Papalii Pene and Auimatagi sat next to that couch with Papalii Momoe on their left. Papalii Malama sat next to Papalii Momoe. A coffee table separated Papalii Malama from where Papalii Titi was sitting. She was sitting on the right side of Papalii Titi. Lefaga, Lily and Uluiva were sitting at the table behind.
  9. At the meeting after Faamausili said the prayer, Papalii Malama opened discussions. In her speech, she referred to the need for reconciliation andimproved family relationship between the descendants of Malietoa Tanumafili I. She also made references to the relationship between the descendants of Malietoa Tanumafili II. Whilst she was still speaking, Papalii Titi interjected telling Papalii Malama and family members present that they were not interested to discuss any matters except for the estate of MalietoaTanumafiliI. He also made a comment about illegal practices on the land.
  10. The comment was the impetus of the incident that followed with Faamausili and Papalii Malama both asking him to explain what he meant by illegal practices on the land. Immediately after Faamausili stood up and walked towards the coffee table in front of him. He picked up the glass in front of him and threw it across at PapaliiTiti. His intention was to stop him from intervening and insisting that they discuss the estate of MalietoaTanumafili I. Auimatagi was of the view that all of them were to be given the opportunity to speak.
  11. Faamausili Moli, Papalii Momoe and Lefaga all saw the glass thrown to the right side of Papalii Titi. Papalii Momoe said it went between Papalii Malama and Papalii Titi. Lefaga saw the glass thrown at medium height. Auimatagi did not see the glass thrown. She only heard the glass breaking presumably on the floor behind. She saw the debris after.
  12. There is conflicting evidence as to where the glass hit. All the Defence witnesses said that the glass landed on the floor some distance away from where Papalii Titi was sitting. The Defendant said it hit the wall behind Papalii Titi which was quite a distance from where he was sitting. All denied that the glass had hit the pole. Lefaga said there were two poles behind Papalii Titi and were not directly behind him. Lefaga swept the debris of the glass afterwards. The debris was in front of grandfather’s portrait which was quite a distance from the chairs. The Defendant denied Papalii Titi’s hand was injured from the debris.
  13. There was a commotion following the throwing of the glass. All of Defence witnesses said that Lily Malietoa jumped in and pulled her father back whilst Papalii Malietau stood between Faamausili and Papalii Titi. Lefaga and Papalii Ioane also tried to hold back Papalii Titi who was yelling out to release Faamausili (tuumai, tuumaiFaamau). Both Papalii Momoe and Lefaga saw Papalii Titi with a glass. Both the Defendant and the Victim were a distance from each other with family members between them.
  14. Papalii Titi left the premises with Papalii Ioane and Papalii Malietau whilst he was still yelling out that he will publicise the incident on TV and Facebook.
  15. There has not been any reconciliation. Faamausili has also visited PapaliiTiti at Fasitoouta but he will not accept his apology.
  16. Faamausili was calm and forthcoming with his evidence. Faamausili, Auimatagi and Papalii Momoe were quite emotional when discussing the events leading up to the meeting on 22nd August 2017. Auimatagi shed tears when she described her feelings when they were prohibited from burying her brother. I found Auimatagi, Papalii Momoe and Lefaga as candid and open with their testimonies.

DISCUSSIONS

  1. In determining whether the Defendant is guilty of any of the offences with which he has been charged, I need to be satisfied beyond reasonable doubt that the elements of each of the offences have been proven. The Prosecution bears the burden of proof.

Armed With a Dangerous Weapon

  1. Section 25 of the Police Offences Ordinance stipulates that, “ 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 1year.”
  2. Elements of the offence of being Armed with a Dangerous Weapon are:
  3. The charge stipulates that the Defendant was armed with a dangerous weapon namely a glass cup not being so armed for a lawful and sufficient purpose. Defence Counsel submits that the Prosecution has failed to prove beyond reasonable doubt that the Defendant was armed with a dangerous weapon because a glass is not a dangerous weapon. Defence Counsel concedes that a glass is a thing and that the charge should have read dangerous thing instead of a dangerous weapon. There is overwhelming evidence however before the Court to prove that the Defendant was armed with a glass. There is however discrepancy between the evidence and the charge.
  4. Section 93(1)of the Criminal Procedure Act 2016 stipulates that,” If on the trial of an information, there appears to be a variance between the proof and the charge in the information either as filed or as amended, or as it would have been if amended in conformity with any further particulars, the Court before which the case is tried or the appellate court, may amend the information, or any charge in it, in accordance with the evidence.
  5. Section 93(2) of the Criminal Procedure Act 2016 stipulates that, “If the Court is of the opinion that the defendant has not been misled or prejudiced in the defendant’s defence by the variance, the Court must make the amendment.
  6. Section 93(7) states that, “In determining whether the defendant has been misled or prejudiced in the defendant’s defence, the Court must consider all of the evidence adduced as well as the other circumstances of the case.
  7. Section 55(1) of the Criminal Procedure Act 2016 also provides that, “..if the Defendant appears to answer to a charge, the Court may amend the charges in any way at any time during the trial. This subsection is subject to sub sections (2) to (5).
  8. Section 55 (2) provides that , “At the trial of any person, a person may amend the charges pursuant to Section 1 in a manner that brings the charge into conformity with the evidence offered by the informant or prosecutor.”
  9. The power to amend any charges has been exercised by the Court of Appeal[1], the Supreme Court[2] and the District Court.[3] In Police v Zhong[2017] WSDC7, Senior District Roma stated at para 36, “In my view, the discretion under Section 55(2) may be exercised after the evidence has been completed and before a verdict is delivered because only then can the Court properly consider whether or not a charge requires an amendment to bring it in conformity with the evidence.”
  10. My sister Judge Papalii in Police v Harris [2018] WSDC 2 also sums up the exercise of the Court’s discretion at para 68-70 as follows:

Is there prejudice to the Defendant if the charge is amended to be in conformity with the evidence?

  1. In my opinion, the Defendant will not be prejudiced if the charge is amended by the deletion of the word weapon and substitution of the word, “thing”. There is uncontested evidence before the court that the Defendant was armed with a glass. Being armed with a glass still satisfies the elements of the offence under Section 25 of the Act.
  2. The Defendant bears the onus of proving why he was armed with a glass. He was not using it to drink which is the purpose why the glasses were distributed. In his own words, “ O le taimitonu a na, vaeatu le faamasinoga, o laefaasolo le vaiaisa a le matouaiga, iaoutagoloa I le ipuvaiaisaaetogiai. E le togiaialavea, aetogiia tau lava iafaatei.” (“ It was at this time, with all due respect to the court, that the ice water was distributed amongst our family members that I grabbed a glass of ice water and threw it. I did not throw it to hurt, rather I threw it to shock.”) Irrespective of whether he did not intend to hurt the Complainant, the intention for being armed with a glass was not a lawful purpose.
  3. Being satisfied that there begin no prejudice to the defendant if the charge is amended, I hereby amend the charge by deleting the word “ weapon” and substituting the word, “ thing” to bring it in conformity with the evidence before the Court.

THROWING A STONE

  1. Section 26 of the Police Offences Ordinance 1961 stipulates that, (1) A person who throws a stone or a thing at, or to the danger of a person, whether or not the stone or thing actually hits the person, commit any offence is liable to imprisonment for a term not exceeding 1 year.
  2. The Elements of the offence of throwing a stone at a person
  3. The charge stipulates that, “On the 22nd of August 2017, the Defendant throw a glass (cup) to the danger of a person.”
  4. Defence Counsel submits that the charge is technically defective because it fails to identify who the Defendant was throwing the glass at and who was in danger.
  5. With the exception of Auimatagi, all the witnesses saw the Defendant throwing the glass. The Prosecution evidence confirmed that the glass was thrown directly at PapaliiTiti but he ducked. It hit the post behind his chair. Defence witnesses denied that the glass hit the post but agreed that the glass was thrown towards where PapaliiTiti was sitting and shattered on the floor behind him. There is undisputed evidence that the person who was in danger was PapaliiTiti.
  6. I am satisfied that Prosecution has satisfied all the elements of the offence of throwing a glass beyond reasonable doubt.

INSULTING WORDS

  1. Section 4(g) of the Police Ordinance 1961
  2. The elements of the offence are:
  3. The Charge stipulates that, “ On the 22nd of August 2017, the defendant used insulting words namely, “ O a solikulafogolouaikae, kaakaa I le alakalaaesau o a soligakulafonolouaikae, aikae I le aualakele, e pe o ouuso le valea, whereby a breach of the peace may be occasioned.”
  4. Defence Counsel submits that some of the words were not insulting to the degree required by the provision. The words were spoken in response to the comments made by PapaliiTiti and were spoken in a private home rather than in public.
  5. In Police v Sapolu [2017] WSDC 11, I made reference to numerous authorities where both the Supreme and District Court have held that insulting words uttered inprivate places were still in breach of the peace. [4]Further, I referred to cases where the Court have held that insulting words spoken during a private conversation,[5] in a heated argument[6], in an altercation during an extended family gathering, [7]briefly in passing[8]whilst parked outside a home [9]amounted to a breach of peace.Further, in Police v Toamua (supra), the Court was satisfied that in the utterance of one insulting word a breach of peace was occasioned.
  6. All the witnesses for the Prosecution and the Defence heard the Defendant repeatedly say, “ O a soligatulafono”. I agree with Defence Counsel that these words are not insulting.
  7. Notwithstanding the denial by the Defendant that he did not say any of the words, Papalii Titi, Papalii Ioane and Auimatagi all heard him say, “Aikae and kaakaa I le auala.”. The Defendant was very angry at the time with all that had transpired in the past weeks and the comment made by PapaliiTiti.
  8. Aikae is an insulting word and I need not traverse the colourful translations of the word. Kaakaa I le auala is also offensive in that connotes someone who wanders aimlessly on the road. Ponaua was also uttered by the Defendant. PapaliiTiti, PapaliiIoane, PapaliiMomoe and Lefaga all heard the Defendant saying this word. It is similar to Aikae. It is a common insulting word. As Miles J said SiwiKurondo’s case, “...whether the speaker as a reasonable person should in all circumstances expect that the recipient would be insulted, and not merely hurt as to his feelings but insulted to the extent that he was deeply offended or outraged.”
  9. The insulting words Aikae, kaakaa I le auala and Ponaua were spoken after the glass was thrown by the Defendant. The words “Aikae” and “Ponaua” are insulting words. These words were not spoken in isolation but in combination with other words that are not as insulting but hurtful. The effect of uttering all these words was a continuation of the breach of peace that was already in existence from when the glass was thrown by the Defendant.

ASSAULT

  1. 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.”
  2. Section 2 of the Crimes Act 2013 defines an assault as follows:
  3. The Prosecution relied on the first limb of the Definition of Assault. The elements of the first limb of assault are:
  4. Evidence adduced by the Prosecution is the throwing of the glass at Papalii Titi and the injuries sustained by Papalii Titi as an indirect result of the application of force in throwing the glass. Whilst I do accept that there was an application of force in throwing the glass, I am not satisfied with the conflicting evidence provided by Prosecution through Papalii Ioane and Papalii Malietau as to which of Papalii Titi’s hand was injured. Whilst there is no requirement that there be bodily injury, there must be a contact with the person.
  5. Secondly, whilst there was much discussion and questions focused on the distance between Faamausili and Papalii Titi there was no evidence adduced on the distance between the post or the wall where the glass hit and Papalii Titi. Prosecution was not able to adduce evidence on which part of Titi’s hand was injured and how that hand could have been injured by the debris from the glass. If the post was directly behind Papalii Titi, his head would have been the first point of contact, his back and his forearms could have been injured. Papalii Ioane could also have been injured by the debris. Papalii Malama was sitting on his right but there was a coffee table separating her from Papalii Titi. The debris was swept further away from the chairs.
  6. Evidence adduced also proved there was no physical contact between Faamausili and Papalii Titi after the glass was thrown as family members including Papalii Ioane, Malietau, Lefaga, Uluiva and Lily Malietoa intervened.
  7. I am not satisfied that the third element of the first limb of assault has been proven beyond reasonable doubt.

CONCLUSION

  1. After hearing the evidence, I hereby conclude as follows,
(b) Throwing a glass pursuant to Section 26 of the Police Offences Ordinance 1961, I hereby find the Defendant guilty.
(c) Insulting words pursuant to Section 4(g) of the Police Offences Ordinance 1961, I hereby find the Defendant guilty.
(d) Assault pursuant to Section 123 of the Crimes Act 2013, I hereby find the Defendant Not guilty.

JUDGE ATOA-SAAGA

[1]Saolele v Attorny General [2007] WSCA 4
[2]Police v K [2017] WSSC 73, Police v Talataina [2017] WSSC 76
[3]Police v ZhongShuiming[2017] WSDC 7.
[4]Police v Hunt (2016) WSDC 1,Police v Brown [2015] WSFVC 1, Police v Toamua (2015) WSSC 50 Police v Toeaana [2016] WSFC 1, Police v Malaki (2015) WSSC 95,Police v Paselio (2016) WSDC 25.
[5] Police v Leupolu (2015) WSDC 1
[6] Police v Brown[2015] WSFVC 1
[7] Police v Toeaana [2016] WSFC 1
[8] Police v Paselio (2016) WSDC 25
[9] Police v Toamua( supra)

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