Police v Fitu [2005] WSSC 42 (4 February 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

IOSEFA FITU
of Foaluga and Tiavea-uta
Defendant

Counsel: Mr L Petaia and Mrs R Wulf for the prosecution
Mr A Roma for the defendant

Hearing: 2 February 2005
Sentencing: 4 February 2005

ORAL RULING OF JUSTICE VAAI

The accused from the village of Foaluga, Savaii is charged under section 79 Crimes Ordinance 1961 that on the 24th day of June 2004 he wilfully and without lawful justification cause grievous bodily injury to Keni Alaiva’a and Ioane Su’a Fa’atea both males of Foaluga.

On the evening of the 24th June 2004 the two victims Keni and Ioane were walking inland after bathing at the village pool by the sea when they met the accused and his brother who were both armed with bush knives. The accused’s brother questioned Ioane why he had assaulted the accused two days earlier. In response Ioane challenged the accused’s brother to a fight and a scuffle ensued between the two of them which was joined by the other victim Keni who punched the accused’s brother and took the knife. The punch felled the accused’s brother who in the process of getting on to his feet tackled Ioane and pushed him towards the side of the road where they both fell down.

The victim Keni told the court that it was at that very moment and after he had thrown away the bush knife he took off the accused’s brother that he was struck across the face with the bush knife and he lost consciousness. He did not see who struck him; the cut has left a scar on his face extending from his lower right jaw going upwards across the front of his face on top of the mouth and across the nose. He was hospitalised for over three months; can no longer consume solid food due to injury to his jaw and back teeth.

In the meantime the victim Ioane who was wrestling with the accused’s brother on the ground at the side of the road was struggling to stand up when he saw the accused swinging at him with the bush knife which struck him on the top of the head, followed by a second strike injuring him on the face. He too has scars on his face and head as a reminder of the unfortunate incident. Injuries suffered by both victims were very serious indeed; Ioane was hospitalized for one month and he can no longer effectively perform physical work.

The accused elected to call no evidence. Through his written statement to the police and cross examination by his counsel the defendant says that when he inflicted the injuries on the two victims he was not acting wilfully; he was in fact preventing the two victims from inflicting serious injuries to his brother. He told the police in his written statement that the victim Keni took the knife from his (accused’s) brother and Keni joined in the fight and assaulted the accused’s brother who fell on the ground with the other victim on top of him. At that time Keni called the other victim to move away while he (Keni) will cut up the accused’s brother with the knife. It was at that moment the accused slashed Keni with the knife as Keni was aiming a blow at the accused’s brother; this was followed by two strikes on the other victim. Keni denied under cross examination he uttered the words which the accused alleged he uttered; he did not hold on to the knife; he disarmed the accused’s brother and threw away the knife. He did admit that after he threw away the knife he punched the accused’s brother. Immediately after he punched the accused’s brother he was struck with the knife. He was unshaken under cross examination and I accept his version of the events on the evening of the 24th which supports in material part the evidence of the other victim. Although I agree with counsel for the defence that the evidence of the victim Ioane at times was contradictory I should record that, in spite of those contractions and the criticisms levelled at him by counsel I considered him to be a person, though in some respects perhaps a little unusual, was indeed well worthy of credit.

It follows from my determination of the evidence that the accused at the time he delivered the blows to the two victims was acting wilfully and without lawful justification. As the accused was not at all threatened or placed under reasonable apprehension of any harm at all from the two victims the defence of self defence is not available to him.

At the close of the prosecution case defence counsel advised the court that the defence elects to call no evidence and wish to submit a no case to answer application on the grounds of identification as neither of the prosecution witnesses expressly pointed to the accused as the person who struck the two victims with the bush knife. Neither did the police officer who took the written statement identified the accused as the person who gave the written statement.

What is in issue here is not identity in the sense of recognition of the accused as the person seen to commit an act but of connecting the person who appeared in court to answer the charges with the evidence given concerning the person who was said to have committed them. The test to be applied as proposed by Speight J in Wilson v Ministry of Transport unreported 19/5/1975 and adopted by Somers J in MacDonald v Police (1980) 2 NZLR 482 is; does the evidence for the prosecution prove that the accused was the defendant. The accused was charged under the name Iosefa Fitu and pleaded guilty before he was assigned counsel under the Legal Aid Scheme. Counsel assigned under Legal Aid then filed an application for leave of the court to change plea from guilty to not guilty and an affidavit by the accused in support of the application was filed in which he deposed that he was the defendant Ioane Fitu of Foaluga charged with causing grievous bodily harm to Keni Alaiva’a and Ioane Su’a Fa’atea both males of Foaluga. He also deposed to some of the matters he stated to the police in his written statement which was produced by consent as exhibit.

Aside from the affidavit of the accused there is sufficient evidence upon which the only proper conclusion to be reached was that the accused was the offender spoken of by the two victims and the police officer who took the statement. In the first place is the cross examination of defence counsel which suggested that the accused Iosefa and acting in defence of his brother Uisile who was fighting with one of the victims. Secondly both victims and the accused are from the same village and the two victims referred to the accused by the name Iosefa throughout their testimonies. And before the fatal attack on the 24th the victim Ioane was questioned under cross examination about an earlier incident in which he assaulted the accused Iosefa; as well as another incident in which the accused Iosefa intervened when the victim Ioane was assaulting his wife Maota.

The evidence is overwhelming that the accused is the person Iosefa Fitu who delivered the blows with the bush knife to the two victims. The application to dismiss the information on the grounds that the accused has not been identified as the person who delivered the blows with the bush knife causing grievous bodily injuries is dismissed. As a consequence I rule that the prosecution has proved the elements of the charge beyond reasonable doubt and the accused is accordingly guilty as charged.

The accused is remanded on the same bail conditions to the 18th February 2005 for a probation report and sentence.

JUSTICE VAAI