Police v Anesi [2003] WSSC 49 (28 February 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Plaintiff

AND:

SIMI LAUPA’U ANESI,
male of Utuali’i
Defendant

Counsel: Mr H. Schuster & Ms Stowers for Prosecution
Mr RPMS Toailoa for Defence

Date of Hearing: 14 and 28 January 2003-03-03
Date of Verdict: 28 January 2003
Date of Reasons: 28 February 2003

REASONS FOR VERDICT OF NOT GUILTY

By information dated the 21st October 2002 the accused is charged that at Utualii on the 14th day of July 2002 the accused of Utualii wilfully and without lawful justification cause grievous bodily harm to Olive Poualii a female of Utualii. The complainant alleges that on the afternoon of the 4th July 2002 she and a female companion were working at her family’s banana plantation and were burning some rubbish. The smoke from the fire was blowing to the house of the accused who lives next door and the accused walked over to the banana plantation and asked the complainant if she had any brains. When the complainant did not answer the accused said to the complainant if she had a mouth. The complainant who was then sitting on the log of wood told the accused that she was burning her fire on her land. The accused then walked towards the complainant picked up a bush knife and struck the back of the accused and the log of wood so that the knife was stuck on the log behind the complainant. The accused then pulled the complainant’s hair and punched her on the mouth and his second punch hit her on the left side of the face. As a result of the punches she was injured on lips, eye and teeth, the most serious injury was to her teeth. The accused’s wife then arrived and joined in assaulting the complainant by pulling the complainant’s hair with her left hand and punching her with closed fists to the front of the face and mouth. As she walked away from the scene of the assault she says the accused threw rocks at her; two rocks landed on her back and one hit her on the leg. Both the complainant and her companion gave written statements to the Faleolo Police the same afternoon and the following day the 5th July she visited the dental clinic at the National Hospital as she was in great pain and unable to eat. X-rays were taken and she was sent home. The following day the 6th two bottom teeth and one top tooth were removed.

Under cross examination the complainant admitted that she was not struck on the back with a bush knife, in fact the accused struck the log of wood on which the complainant was sitting with the bush knife. The knife was stuck in the log behind the complainant. She also admitted to telling the police a different story in her written statement. In her statement to the police she said it was the accused’s wife who first punched her, and when she was asked for an explanation she answered she forgot to tell the police it was the accused who first punched her because she was in great pain. She also admitted that punches by the wife of the accused were heavy bunches as they did impair her vision as well as her memory. As she was assaulted by the wife of the accused who was standing in front of her pulling her hair and delivering punches to her face, the accused was standing behind her.

The complainant’s companion testimony was similar to and supported the evidence of the complainant to the effect that the accused first assaulted the complainant by punching her on the right jaw and left eye before the wife joined in the assault. But this witness like the complainant also told the police in her written statement that it was the wife of the accused who first punched the complainant. She also told the police that the accused struck the complainant on the back with the bush knife but as unfolded in the evidence of the complainant that allegation is not true. In fact in her own testimony she told the court the accused struck the tree with the bush knife. She also told the police the accused was holding the complainant while his wife was assaulting the complainant and the punches the accused delivered were to the back of the complainant.

The dental therapist who first attended to the complainant on the 5th July confirmed she was injured on left eye and lips, two teeth were missing (not as a result of the assault) and 1 front top tooth and 2 front bottom were loose. X-rays taken revealed the complainant to suffer from periodontitis (a disease which causes the affected teeth to loosen) and the 3 loose teeth were seriously affected. The other teeth were also affected but not as advanced as the 3 loose teeth which were subsequently removed. A dentist was also called and he testified that he also saw the complainant on the 5th July and he also viewed the x-rays which showed that only the two loose bottom teeth were affected by the disease periodontitis. Both the dental therapist and dentist were called by the prosecution and although their evidence somewhat conflicting as to the number of teeth affected by the disease, they in fact both confirm the complainant suffers from the disease. In any event the doubt raised in their conflicting evidence should be exercised in favour of the accused.

The accused admitted approaching the complainant on the afternoon of the 4th July when smoke was blowing to his house. He was angry. He admits asking the complainant if she had any brains and he also admits swearing at her. Unknown to the accused his wife was following and the wife approached the complainant who was then holding the knife. He then tried and did remove the knife. The wife then punched the complainant several times and the complainant fell onto the log of wood. He denied punching the complainant or restraining the complainant while his wife was assaulting her.

The wife admitted to following the accused on instructions from the father of the accused to tell the complainant to put out the fire. And because she was provoked by what the complainant said to her she approached the complainant who was then holding the knife. The accused then removed the knife and she held the complainant’s hair with her left and delivered four uppercut punches to her face; she then released the hair and delivered six more punches to the face with both fists, she was then told by her husband to stop.

As a result of the assault the wife has been charged with assault causing actual bodily injury. She had pleaded guilty to the charge and is awaiting sentence. For the same injuries suffered by the complainant the present charge was laid against the accused.

The evidence I heard tends to support the view that it was the wife of the accused who caused the injuries to the face and mouth of the complainant. It certainly creates a reasonable doubt as to the guilt of the accused so that even if I find that the accused did assault the complainant I am still left in a reasonable doubt that the assault caused grievous bodily injury to the complainant.

But the evidence also leaves me in a reasonable doubt as to whether the accused did assault the complainant. The explanation given by the complainant for the discrepancy in what she told the police and what she told the court is difficult to accept.

For the reasons given the charge against the accused is dismissed.

JUSTICE VAAI