Police v Fausia [2005] WSSC 15 (6 June 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

ASALEMO TEVAGA FAUSIA,
male of Samalaeulu
Defendant

Counsel: Mr K Koria for prosecution

Ms Peteru for the defendant

Hearing Dates: 31 May 2005
Decision: 6 June 2005

DECISION OF VAAI J

The accused aged 32 years of Samalaeulu is charged under section 79 of the Crimes Ordinance 1961 that on the 21^st October 2003 he willfully and without lawful justification caused grievous bodily injury to Isaako Iakopo a male of Patamea, Savaii. He denied the charge.

The complainant aged 42 years and his friend Patisone walked from Patamea to Samalaeulu to buy some beer and on their way back they met the accused and others who were waiting by the side of the road. The accused had been informed by another villager named Vaalele of the complainant’s trip to the shop. There is conflicting evidence as to what was said when the parties met; but in any event the accused then punched the complainant twice. Prosecution witness, comprising the complainant; the complainant's friend as well as Vaalele and his mother Faafetai testified that the accused punched the complainant on the mouth with a rock twice. Vaalele himself admitted that he also threw a rock at the victim and although I must in the circumstances treat his evidence with some caution I am satisfied that his rock which struck the complainant on the head did not cause or contributed to the injuries suffered and complained of by the complainant. Vaalele aimed the stone at the complainant’s hand as the complainant reached for a beer bottle to strike the accused. The accused admitted punching the complainant but he denied using any rock. He said the two punches landed on the chest of the complainant after he questioned the complainant about his bicycle which he suspected the complainant had damaged on a previous occasion. And he saw Vaalele threw the only rock at the complainant while he (the accused) was walking away. Musolini Piki, a friend of the accused gave a similar account that it was Vaalele who threw the rocks which struck the complainant on the head and mouth.

It must be remembered that it was the accused who was unhappy with the complainant over a bicycle; when the accused was told that the complainant was at the village shop the accused awaited his return; and the accused delivered the first punch which the complainant saw coming and struck the complainant on the mouth. As a result of the assault the accused fell to the ground and other villagers came to his rescue. One of the villagers is Faafetai Nikolao a 46 year old mother who witnessed the assault and who offered assistance. She is also the mother of Vaalele who threw a rock at the complainant and she does not deny Vaalele's involvement. I do not doubt the integrity of her evidence.

Defence evidence lacks credibility; nor does it create a reasonable doubt; as a result I am satisfied that it was the accused who struck the complainant twice on the month with a rock. As a result of the assault the complainant was hospitalized. He could not eat for five months. There was complete avulsion of 5 upper front teeth which the doctor testified could not have been caused by two punches with bare first; two other teeth which were loosened by the same assault were pulled out. For a whole week the complainant required a combination of antibiotics and painkillers. Hospital visitations were necessary after his discharge.

Indeed the injuries can only be described as grievous and were indeed inflicted intentionally and without any lawful justification. In conclusion the prosecution has proved all the elements of the charge beyond reasonable doubt and the accused is remanded to the 21^st June 2005 for a probation report and for sentence.

JUSTICE VAAI