Police v Ford [2007] WSSC 40 (15 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ALOFA FORD
female of Malaela and Satitoa, Aleipata
Accused

Counsel: L S Petaia and M Lui for prosecution
R Papali’i for accused

Hearing: 3, 4 May 2007
Judgment: 15 May 2007

JUDGMENT OF SAPOLU CJ

The charge

The accused, Alofa Ford is charged under s.79 of the Crimes Ordinance 1961 that at Satitoa, Aleipata, on the 1st day of March 2006 she wilfully and without lawful justification caused grevious bodily harm to the complainant Aimalefoa Tauinaola, a female of Satitoa, Aleipata.

Elements of the charge to be proved by the prosecution

A charge of wilfully and without lawful justification causing grievous bodily harm to a person consists of two elements which the prosecution must prove beyond reasonable doubt. These are:

(a) The accused caused grievous bodily harm to the complainant. "Grievous bodily harm" simply means bodily harm that is really serious; and

(b) The accused wilfully caused grievous bodily harm to the complainant

"Wilfully" simply means intentionally or deliberately.

There is no dispute as to the elements of the charge which the prosecution must prove.

Matters of lawful justification

The defence does not dispute that it was the accused who caused the injury sustained by the complainant. However, counsel for the accused raised two defences or matters of lawful justification in her brief closing legal submissions. The first is that the injury to the complainant was not wilfully caused by the accused and, secondly, that the accused was acting in self-defence.

The evidence

To prove the charge, the prosecution called four witnesses including the complainant. It is not necessary to refer to all the details of the evidence which was adduced by the prosecution witnesses. It is sufficient to refer only to the essential parts.

According to the testimony of the complainant who will now be 29 years old, she was at her family’s home at Satitoa, Aleipata, on Wednesday afternoon 1 March 2006, when a fight occurred on the public road not far from her family’s home between the wife of her brother and cousins of the accused. It is not clear from the complainant’s testimony what involvement, if any, did she have in that fight. After the fight was over, the complainant and the witness Poto Taua’a, her brother’s wife, were sitting inside a faleo’o (Samoan hut) of their family talking to one another. There were other members of their family present nearby. A short time later, the accused who was wearing a T-shirt and shorts, and holding a hand-towel, came to the faleo’o where the complainant was sitting and uttered some strong words at the complainant and also swore at her. The complainant then came out of faleo’o. There followed an exchange of angry words between the complainant and the accused with the complainant repeatedly telling the accused to go away from her family’s land. The complainant then fought with the accused by pulling each other’s hair while facing one another. The accused then swung her hand holding the towel over the complainant’s left shoulder as demonstrated by the complainant. The complainant said she then felt something "slipping" (se’e) on her back. She and the accused then both fell down while they were still fighting. Shortly afterwards, she passed out.

After the fight, the complainant was taken by members of her family to the Lalomanu district hospital where she was medically treated and given panadols to take. She was discharged the same evening and returned home. At home, the complainant’s condition became worse and more serious. So her family brought her the same night to the Tupua Tamasese Meaole Hospital in Apia where she was examined and treated by Dr. Pai Enosa. According to the complainant, a tube was inserted inside her left side to drain something from her left chest.

The witness Poto Taua’a, who is 47 years old and married to the brother of the complainant was also called by the prosecution. According to the testimony of this witness, at about 4pm on Wednesday afternoon, 1 March 2006, she was with the complainant at their home at Satitoa when the accused came holding a hand-towel in her right hand. She observed anger in the accused’s face. The accused came and said some strong words to the complainant concerning the assault on her cousin. The two women then exchanged strong words. The accused swore at the complainant and the complainant swore back telling the accused to leave her family’s land. Both of them were angry at each other. They then fought. This witness testified that the accused was holding the complainant’s hair with her left hand while her right hand was holding a hand-towel. She saw the complainant being injured from a small knife that the accused had with her.

The witness Iopu Mamea, a 32 year old male of Satitoa, was also called by the prosecution. This witness testified that while he was at home on 1 March 2006, he saw the accused walking past on the public road at Satitoa. He observed the accused holding a hand-towel with part of the hand-towel hanging down.

The final witness called by the prosecution was Dr Pai Enosa who had received, examined and treated the complainant upon arrival at the Tupua Tamasese Meaole Hospital. Dr Enosa prepared a report of the findings he made during his exanimation of the complainant. That report, after it was confirmed by Dr Enosa, was produced in evidence by the prosecution. According to Dr Enosa’s report, when the complainant was brought into the Tupua Tamasese Meaole Hospital, she was complaining of shortness of breath and bleeding from a stab wound above the left scapula. Clinical findings and x-ray results confirmed that the complainant’s left lung had collapsed due to the wound on her left scapula. An emergency chest drain was then inserted to relieve the complainant of her symptoms. This must be the tube that the complainant testified was inserted inside her left side. The complainant was admitted in the hospital for eight days.

In his oral testimony, Dr Enosa stated that the complainant was still bleeding from her wound when he received her at the hospital shortly after midnight. Even though the complainant’s vital signs were alright, her oxygen level was going down and down. Dr Enosa also stated that the complainant’s wound penetrated into the left lung space and the left lung collapsed. He further stated that between the external wound and the lung space is a hard ligament which would require much force to penetrate. He also pointed out that the edges of the wound were very regular and would require a very sharp object to cause it. Dr Enosa gave as his opinion that the wound he found on the complainant was a very serious wound because it had caused the complainant’s left lung to collapse. He also gave as his opinion that if the complainant had not been brought to the hospital early and a chest drain inserted, she would not have survived the following day.

The defence called three witnesses including the accused. It is not necessary to refer to all the details of that evidence. It is sufficient to refer only to the essential parts. According to the testimony given by the accused who is 39 years old, she was frying fish on Wednesday, 1 March 2006, between 4pm and 5pm in the afternoon at her home at Satitoa. She needed onions for her cooking. So she went to her family’s nearby shop to get some onions. On her way back from the shop with an onion, some boys who were playing rugby on the other side of the road called out to her that her cousin was being assaulted by the complainant. At that time, according to the accused’s testimony, she was holding in her right hand a knife she was using for her cooking, an onion in her other hand, and a hand-towel over her left shoulder. She then ran fast to where her cousin was being assaulted as her cousin had taken her baby with her and the accused was concerned about her baby. The accused’s cousin referred to here is the witness Lina Leaina who was also called by the defence.

The accused further testified that when she arrived at the scene of what was happening, the complainant pulled the head of her cousin and hit it on the road. She then intervened to stop the assault on her cousin by the complainant,. She asked her cousin as to the cause of the trouble. From her cousin’s answer related by the accused in her testimony, it is clear that the accused’s cousin was not the cause of the trouble at all. However, the accused said that she then beat up her cousin as she thought her cousin had been cheeky towards the complainant. This is somewhat difficult to reconcile with the accused’s testimony which shows that her cousin was not the cause of the trouble at all. Her cousin therefore could not have been cheeky to the complainant.

Anyway, the accused said she then told her cousin to go home whilst she went to talk to the complainant. At that time the complainant was already walking away. The accused said she called to the complainant to wait but the complainant kept on walking. The accused then followed the complainant to the complainant’s home whilst she was still holding the knife and hand-towel in her hand. It is not clear what had happened to the onion she had by that time. When the accused got to the complainant’s family, the complainant and the prosecution witness Poto Taua’a were talking inside a house. This must be the faleo’o that the complainant was referring to in her evidence. The accused said that she then asked the complainant as to why she had assaulted her cousin like that and the complainant replied that the accused’s cousin was being cheeky to women. There was then an exchange of words between the accused and the complainant and swear words were also uttered by one against the other. The complainant at the same time called to the accused to go away from her family’s land. From the words used during the exchange between the accused and the complainant as well as the swear words uttered by one against the other, it is clear that both women were very angry at that point in time.

The accused said that the complainant then rushed at her and held her hair. She then moved her right hand holding the knife and the hand-towel backwards and that must have been the time the complainant was injured on her back. When the accused was asked to demonstrate what actually happened at the time the complainant was injured, she said that she was turning away and therefore facing frontward when the complainant moved onto her right side and held her hair. The accused demonstrated where the complainant was standing in relation to her at that time. It was clear that the complainant was a short distance from the right side of the accused who was facing frontward but towards the back of the accused’s right shoulder. The accused then moved her right hand holding the knife backwards at the complainant. If this is correct as demonstrated by the accused, it is highly unlikely that the complainant would have been injured on the back of her left shoulder. One would have expected the complainant to have been injured somewhere on her right side which was next to the accused’s right hand that was holding the knife. I find the account of events given by the complainant to be credible. According to the complainant, she and the accused were face to face with one another pulling at each other’s hair. The accused then swung her hand holding the hand-towel over her (the complainant’s) left shoulder and she felt something "slipping" (se’e) on her back. That was the back of the complainant’s left shoulder. That was the time the complainant was injured.

Under cross examination, the accused said that she and her husband had apologised to the complainant. The accused also said that she had paid the complainant’s hospital bill.

The witness Malu Pulou called by the defence is the pulenu’u of Satitoa. It was clear from the evidence of this witness that when he came to the scene of this incident the fight between the accused and the complainant was already over. This witness testified that he only observed the accused being beaten up by members of the complainant’s family and he intervened as a matai and the pulenu’u of the village to stop the assault on the accused. He also said that when he saw the complainant, blood was coming out from under the sleeve of the shirt she was wearing.

The final witness called by the defence was Lina Leaina, the cousin of the accused whom the accused testified was assaulted by the complainant by pulling her head and hit it on the road. The evidence given by this witness related to the incident that occurred on the road where she said that the complainant assaulted her. Under cross-examination, this witness twice said that the food the accused was cooking on the afternoon in question was chicken soup. When it was put to her that the accused had testified that she was frying fish, this witness maintained that it was chicken soup.

After careful consideration of the evidence, I have decided to accept the evidence given by the complainant and the prosecution witness Poto Taua’a, the wife of the complainant’s brother, as to what occurred in this incident which resulted in the injury to the back of the complainant’s left shoulder. I find the evidence given by those witnesses to be more consistent with human nature and reality than the evidence given by the accused.

I find the evidence given by the accused as to why she was in possession of the knife to be lacking in conviction and does not inspire confidence. Her account that she followed the complainant to the complainant’s house because she wanted to talk to the complainant about the assault she inflicted on the witness Lina Leaina does not give the full explanation of why she was following the complainant. I am in no doubt that the accused was angry with the complainant for assaulting her cousin and she followed the complainant with a knife in hand covered with a hand-towel because she wanted to cause trouble to the complainant. The witness Poto Taua’a testified that when the accused came to her family’s house she saw anger in the accused’s face. That must have been because the complaint had assaulted the accused’s cousin. The exchange of strong words and swear words that ensued between the accused and the complainant is clear indication that not only the complainant was angry but also the accused. A fight then followed during which the accused stabbed the complainant with the knife she was carrying. The stabbing was clearly intentional and deliberate given the evidence of the prosecution which I accept. I do not accept the evidence given by the accused as to how she injured the complainant. I find the evidence given by the complainant as to how she came to be injured more realistic and credible. Dr Enosa also gave evidence that the wound which he found on the complainant penetrated the hard ligament which separates the lung space from the external surface of the back. In Dr Enosa’s opinion, it would require much force to penetrate the hard ligament that he referred to. This evidence supports rather than negates the inference that the complainant was deliberately and forcefully stabbed. It is also difficult to see how such a wound could have been caused by the back-hand movement with the knife as demonstrated by the accused. The doctor also gave as his medical opinion that the wound on the complainant was very serious and the complainant would not have survived the following day if she had not been brought to the hospital.

The subsequent actions by the accused in paying the complainant’s medical bill and apologising to the complainant are also not an indication of innocence even though they may be an indication of remorsefulness.

I have also decided that on the evidence that I accept, both defences raised for the accused, namely, that she did not wilfully stab the complainant and that she acted in self-defence, cannot be sustained.

Conclusion

For the foregoing reasons, I conclude that the prosecution has proved the charge beyond reasonable doubt.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Toa Law for defendant