Police v Koliio [1999] WSSC 46 (18 March 1999)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

ALA KOLIO
of Samea Mulifanua
Defendant

Counsels: Mata Tuatagaloa for the Informant
Scott Reid for the Defendant

Hearing dates: 15, 16, 17, 18 & 26 February 1999
Reasons for Decision: 18 March 1999

REASONS FOR DECISION OF WILSON, J

This has been a trial before me as a Judge sitting alone. I have, therefore, been called upon to perform the function of both judge and assessors. I will shortly be announcing the reasons for my verdict.

The accused was charged with grievous bodily harm. It was alleged that on 3 December 1998 at Satui-Fou he, wilfully and without lawful justification, caused grievous bodily harm to Letelemaana Fuga Tiaina by an assault through the throwing of stones.

Before I deal with the issues that have arisen in this trial, I indicate that I have reminded myself of the presumption of innocence (which is in the accused' s favour), the onus of proof (which is on the prosecution), and the standard of proof (which is proof beyond reasonable doubt).

I have given careful consideration to the accused's sworn evidence bearing in mind the fact that he need not have given evidence on oath.

I have reminded myself that, where the evidence is circumstantial (as it is regarding what was in the accused's mind when he threw the stone which undoubtedly caused the victim's fractured jaw), it is for the prosecution to prove, not only that the events were consistent with the accused having wilfully (as opposed to recklessly) thrown the stone which caused the injury, but also that the events were inconsistent with any other reasonable explanation (or story), such as that he threw the stone in retaliation and without meaning to hit anyone. As these reasons will reveal, the prosecution has not proven that wilful stone-throwing (as opposed to reckless retaliation) was the only explanation.

THE ISSUES

The main legal issues in this trial are

(a) whether the mental element in the charge of grievous bodily harm (and the alternative charge of actual bodily harm) is satisfied by proof of recklessness, and

(b) whether the mental element in the alternative charge of common assault is satisfied by proof of recklessness.

The main factual issues in this trial are

(1) whether, there being no direct evidence to the effect that the accused had such an intention, there is circumstantial evidence from which I can be satisfied that the accused, when he threw the stone that struck Letele, intended that it cause grievous bodily harm and, if not, that he intended that it cause actual bodily harm.

(2) whether, there being no direct evidence to the effect that the accused deliberately threw the stone which struck Letele meaning to strike him, there is evidence (circumstantial or otherwise) from which I can be satisfied that the accused was reckless.

Of course, the ultimate questions for my decision are whether the prosecution has proved beyond reasonable doubt each of the elements of the offence charged, and, if not, whether the prosecution has proved beyond reasonable doubt each of the elements of a lesser charge so as to warrant a verdict of guilty of that lesser charge.

Before I discuss the law in this case and before I announce my conclusions in relation to those several issues, I summarise the evidence of the witnesses and my conclusions in relation thereto.

THE EVIDENCE OF THE WITNESSES

The evidence of the witnesses. The first witness was the victim's daughter, Tinoifili Pele, who, on the day in question and at about 6.00 p.m., saw the accused just after he had sworn at her child. The accused appeared to her to be angry. Later she saw the accused's brother, Siu, get a bush-knife from his house and then proceed to cut down some trees. He (Siu) was calling out to the witness's father (the victim) that he (Siu) was "going to cut (him) up into pieces". Later she saw Siu go to the back of the house and then come back with his brother (the accused). She saw her father walking towards the front and she heard Siu calling out those words previously mentioned. When her father walked to the front, she saw Siu throw the first stone - a stone bigger than a fist. It struck her father in the region of his eye and eye-lid, causing injury and bleeding. When her father, after initially being unconscious for a few moments, turned around, she saw a smaller stone throwing by Ala strike her father on the left side of his jaw. At that moment Siu ran over and was kicking her father; she pushed him away; and then he (Siu) ran away. She was aware that a third stone was thrown and that it struck her father on his back.

I was impressed by Tinoifili Pele as a witness. She gave an honest and accurate account of what she saw. Of course, she could not give any evidence as to what was in the accused's mind when he threw his stone.

The second witness was Pele Farani, the victim's son-in-law. He saw that part of the incident in which Siu was cutting bushes with his bush-knife and was threatening to "cut him (the victim) into pieces". Later, after hearing some swear words and after his wife had called out to the effect that her father was injured, he went over and saw the victim holding his injured eye. Shortly afterwards he saw Ala running away; he chased after him; and he caught up with him and he assaulted him.

I accepted Pele Farani's evidence, as far as it went.

The third witness was Elisara Fuga, who saw that part of the incident in which Siu was cutting down plants in front of his house with a bush-knife. Later he saw Siu and Ala "looking for rocks". He said that the accused threw a rock at him (but it missed him and it fell on the road), so "(he) hit him too". According to him, he (Elisara Fuga) hit both Siu and Ala.

Elisara Fuga's evidence did not assist me greatly, and it cast little light upon the important issue of whether the accused threw a stone at or towards the victim and with what result.

The fourth witness was Dr. Eric Asamoa, an oral and maxillo-facial surgeon, whose evidence I accept. His report was tendered and it became Exhibit 1. I am satisfied that the stone thrown by the accused caused the fracture of the ramus of the left mandible (the fracture of the victim's lower jaw). I am satisfied that such an injury constitutes grievous bodily harm (see the decision of the Chief Justice in Police v Lesa Farani Posala dated 1994).

The fifth witness was Bucky Taula Tiitii. Although he said in evidence that "Ala came over and aimed at and hit (the victim)", I am not satisfied beyond reasonable doubt that Bucky Taula Tiitii was giving accurate and reliable evidence when he said that "Ala aimed at"... (the victim)', because he was not able to say where the stone landed and because he acknowledged that he was standing "a fair distance away". Furthermore, without further explanation of what he actually saw the accused doing when, according to Bucky Taula Tiitii, he (the accused) was "aiming", his evidence as to that "aiming" was of little weigh.. In so far as his testimony on that topic might have represented an attempt on the witness' part to say what was in the accused's mind at the time, such testimony was inadmissible and could not be used by me as a basis for any finding adverse to the accused.

The sixth witness was Sergeant Aniteru Tago who produced the accused's caution statement. In so far as that statement (Exhibit 2) contains an admission, it contains no more than an admission that he "threw (a stone) towards Letele" and that he "didn't know if Letele was hurt or not". It contains no confessional evidence directed to the questions of why he threw the stone or of what he had in his mind at the time.

It certainly contains nothing to suggest that he had an intention to cause any harm to Letele. Of course, for a person to throw a stone (anything more than a pebble) "towards" another person, the inference is, generally speaking, overwhelming that the thrower must have known that such conduct would be likely to result in a blow, and even injury (perhaps even serious injury), to the person towards whom the stone was thrown, and the further inference is, generally speaking, overwhelming that the thrower must be seen as having been reckless.

The seventh (and last) witness for the prosecution was Letelemaana Fuga (the victim) who is a mayor and who holds a Matai title. He is a paramount chief I accept his evidence without hesitation, save and except for his statements as to which stone hit him and where after he was first struck. The victim, having heard that some men were drunk and swearing, reprimanded and punished the drunken Siu by slapping him. Siu responded by coming out with a bush knife and by cutting down his (Siu's) trees. Later stones were thrown at him from about 20 metres away. A stone thrown by Siu hit him in the eye. He fell down for a while having been dazed. Another stone, thrown by the accused (Ala), hit him also, and he (the victim) became unconscious for a time. He didn't see who threw a stone which hit him on the back.

The first defence witness was Siu Kotio. He was not an impressive witness, and he revealed himself to be a biased and unreliable witness. He was all too ready to mention his own injuries but he was reluctant to implicate himself in the injuries which the victim received. The drink he had consumed and its effects upon him were used by Siu, so I concluded, as a reason to avoid having to implicate the accused, who is his younger brother. I simply did not believe Siu when he denied that he was angry with the victim.

The second defence witness was the accused himself He was, I thought, frank and open. He revealed himself as having a motive to assault the victim, but not necessarily a motive to hurt him or to cause serious injuries to him. He said: "I felt sorry for my brother, because I saw him lying there he was assaulted not only by Letele but also by Letele's daughter's husband". Whilst I do not accept his initial firm assertion that the rock that he threw "did not hit anyone - it landed on the ground", I do accept that he did not actually see where the rock he threw landed. The accused frankly admitted that his mind was blurred with drink, that he was short-tempered (he said: "I think I was easy at getting angry"), and that his memory was affected by the injuries he received. Later in examination in chief he said: "As I stated earlier, I only threw one rock; as I turned around, that is when I was hit and I was unconscious", rather suggesting that things happened too quickly for him to have seen the rock land. In any event, he later admitted in cross-examination that he "didn't know where the stone landed, because (he was) too drunk".

During cross-examination, the accused maintained (honestly, I thought) that, although he was not happy with what the victim had done to Siu (by way of reprimand and punishment), he still had respect for the victim as his high chief.

It is reasonably possible that the accused's intention, when he threw the stone, was, as he testified, "to keep the people away from further assaulting (his brother)". It is reasonably possible that he threw the stone in retaliation, not in self defence. In re-examination the accused was asked:

"Q. Did you aim to hit Letele?

A. No.

Q. Did you aim to hit Letele because he had hit Siu?

A. The rock that I threw was to keep people away."

Not being prepared to reject that testimony as being lies, I find that his evidence had all the hall marks of retaliation and recklessness. I unhesitatingly reject the suggestion of self-defence; the prosecution has negatived (or disproven) that ground of ‘defence’.

THE LEGAL ISSUES

The accused is charged with grievous bodily harm (s.79 of the Crimes Ordinance 1961).

s79 provides:

"Everyone who wilfully and without lawful justification causes grievous bodily harm to any person is liable to imprisonment for a term not exceeding 7 years."

An alternative verdict open by virtue of s39 of the Criminal Procedure Act 1972, is guilty of actual bodily harm (s.80).

s.80 provides:

"Everyone who wilfully and without lawful justification causes actual bodily harm to any person is liable to imprisonment for a term not exceeding 2 years."

An alternative verdict, also open by virtue of s.39 of the Criminal Procedure Act, is guilty of common assault.(s.78)

s.78 provides:

"Common assault - (1) Every one is liable to imprisonment for a term not exceeding one year who assaults any other person. (2) ‘Assault’ means 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 has, present ability to effect his purpose; and ‘to assault' has a corresponding meaning."

I have had neither the opportunity nor the legal resources immediately available to me to research the legal issues arising in this case as I would have liked, and neither the prosecution nor the defence cited any authorities as to those legal issues, other than as to the meaning of 'grievous bodily harm'. So the reasons I am about to publish are necessarily somewhat tentative and subject to there not being in existence some binding or highly persuasive authority (for instance, of the Court of Appeal of Samoa or of the Supreme Court of Samoa) to the contrary.

What is the meaning of the word "wilfully"?

The word "wilfully" does not mean spitefully or wickedly.

The word "wilfully" applies to all elements of the offence. A state of mind directed at causing harm of the type contemplated must be proved.

The presence of the word "wilfully" does more than negative the notion of "inadvertently" or "unconsciously"; "wilfully" imports the notion of purpose (see the unanimous judgment of the High Court of Australia in Lewis v Judge Ogden (1984) 153 CLR 682 at 688).

In the earlier decision of that Court in the case of Iannella v French [1968] HCA 14; (1967-68) 119 CLR 84,
Barwick CJ said (at p.95).

"In my opinion, ‘wilful’ connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known........ in my opinion, the word (wilful) contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something."

Mc Tiernan J said (at p.98):

"The word ('wilfully') is used to express a specific state of mind that must accompany the commission of the overt act(s) prohibited by the sub-section, which I would describe as wilfulness."

and His Honour said (at p.99):

"taking the word ‘wilfully’ in its ordinary sense and speaking of its application to conduct generally, a deed for which ignorance, accident or compulsion can be pleaded as an excuse is not a wilful deed."

Windeyer J said (at p. 108-109):

"But the word 'wilfully' is part of the description of the offence created by the statute. It makes it indisputable that an element of mens rea in the common law sense is an ingredient of that offence. The meaning today of mens rea as an essential in criminal guilt at common law has probably never been better explained than by Jordan C.J. in R. v Turnbull [1943] NSWStRp 56; (1943) 44 SR (NSW) 108 at p.109 when he said of an accused person:

‘. . . assuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.’

When the word 'wilfully' forms part of the description of an offence, what is meant is an act done with knowledge of all the facts which make it an offence. For the sake of an illustration, suppose that it is an offence to sell bad meat, and that the offence should be committed by a shopkeeper selling had meat although he did not know that the meat he sold was bad. Yet if the offence were wilfully selling bad meat, then surely no offence would be committed unless the accused knew the meat was bad........... That would be because, using the words of Jordan C.J., the badness of the meat was an 'essential factual ingredient of the crime charged'. The accused could not be guilty if he had honestly and reasonably believed the meat he sold was flesh and suitable for human consumption. In such a case it could be said that the word 'wilfully' introduced mens rea. It is equally satisfactory to say simply that it formed part of the definition of the offence."

I think that being reckless as to whether harm of the kind contemplated in the relevant offence is not enough. Neither logic nor legal authority persuades me to the view that the element of mens rea in the offences of grievous bodily harm and actual bodily harm is satisfied by proof that the defendant recklessly caused the relevant harm.

In the case of Willmott v Atack (1976) 3 All E.R. 794, the question for the opinion of the High Court in England was whether, on a charge of wilfully obstructing a police officer in the execution of his duty, it was sufficient for the Crown to prove that the defendant had wilfully done an act which obstructed the police officer in the execution of his duty, or whether the Crown had further to prove that the defendant intended to obstruct the police officer. Croom-Johnson J, in applying the dictum of Darling J in Betts v Stevens (1910) 1 KB 8 to the effect that "the gist of the offence... lies in the intention with which the thing is done," said (at p.780):

"When one looks at the whole context of s. 51, dealing as it does with assaults on constables in sub-s.(3) with resistance and wilful obstruction in the execution of the duty, I am of the view that the interpretation of this subsection for which the appellant contends is the right one. It fits the words "wilfully obstructs" in the context of the subsection, and in my view there must be something in the nature of a criminal intent of the kind which means that it is done with the idea of some form of hostility to the police with the intention of seeing that what is done is to obstruct, and that it is not enough merely to show that he intended to do what he did and that it did, in fact, have the result of the police being obstructed."

(The emphasis is mine).

In agreeing with Croom-Johnson J. May J said (at p.800):

"I agree... that....... it is clear that ‘wilfully’ in this particular Act does import a requirement of mens rea."

In so far as the common law on this topic may have been inconsistently interpreted in some jurisdictions, I see no basis for the common law to be interpreted here in Samoa otherwise than in accordance with the cases which I have followed.

I agree with the learned authors of Smith & Hogan CRIMINAL LAW (4th Edition) when they stated (at p.l05):

"It is submitted that the better view is that 'wilful' should be held to apply to all the elements the offence."

To hold otherwise would not assist in the development of a Samoan jurisprudence adapted to the needs and circumstances of this island country.

How is intention to cause grievous bodily harm or actual bodily harm bodily harm to be proved? And has it been proven here?

A judge is not a mind-reader and cannot look, as it were, into a person's head to see what was in their mind at a particular time and therefore to ascertain what was their intention.

A person's intention may rarely be directly proved. It is more often indirectly proved. On some occasions a person's intention simply cannot be proved.

When a person's intention is indirectly proved, it is generally from what a person says or from what a person does or from what a person says and does that a judge can come to a conclusion as to what this person intended at a particular time. It is a matter of drawing inferences from proved facts or it is a matter of properly putting two and two together in the context of circumstantial evidence.

Regard may be had to all the circumstances in which the harm was caused including the weapon used and the means employed to inflict harm.

In his caution statement to the police the accused said:

"I then picked up a stone and threw it towards Letele, and I do not know if Letele was hurt or not."

I need not repeat all that I said when I discussed the sworn evidence of the accused, except to state that, applying the law of circumstantial evidence to the facts of this case (also discussed earlier), the prosecution has not proven its case to support a finding of guilty of grievous bodily harm or actual bodily harm. The mental element (or state of mind) directed at causing harm of the type contemplated either in s.79 or s.80 has not been proved.

What is the meaning of the words "intentionally applying ... force" in the context of the crime of common assault? And does "intentionally" include "recklessly?"

It is now established by the common law that the crime of common assault may be constituted by either intention or recklessness.

In the English Court of Appeal case of R v Venna [1975] EWCA Crim 4; (1975) 3 All E.R. 788 James L.J. said (at pp.793-794):

"In our view the element of mens rea in the offence of battery (the act of intentionally applying force to the person of another, directly or indirectly) is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another. . . .. We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault."

That common law principle is applicable here in Samoa.

ULTIMATE FINDINGS

On 26 February 1999 I announced my decision in this case and indicated that I would announce my reasons later.

I now announce these reasons as set out above, for my conclusion that it has not been proven beyond reasonable doubt that the accused acted wilfully, in the sense as understood by the law, when he caused an injury to Letelemaana Fuga.

I find the accused not guilty of grievous bodily harm. I find the accused not guilty of actual bodily harm.

I do, however, find the accused guilty of common assault upon the basis of recklessness.

I find that the accused recklessly applied force to the person of Letelemaana Fuga by throwing a stone towards him, not intending to hurt him, which stone hit him and, in fact, caused him very serious injury, namely a fractured jaw.

JUSTICE WILSON