Police v Tuialii [2007] WSSC 97 (26 September 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TAVITA TUIALII,
male of Laulii & Tafaigata
Defendant

Counsels: M. Lui & L. Su’a for the prosecution
Defendant in person

Hearing: 26 September 2007
Decision: 26 September 2007

ORAL DECISION OF NELSON J.

The defendant in this case is charged that on the 4th day of March 2006 at Tafaigata, he did willfully and without lawful justification cause grevious bodily harm to the complainant. Prosecution case is that on this day which was a Saturday the defendant and the complainant were inmates at Tafaigata Prison and in the afternoon, the complainant was returning from doing chores elsewhere in the prison to the cell he shared with the defendant. The defendant was inside the cell sitting on a bed beside the door-way playing a guitar. The complainant stood outside the locked cell door and called in to a fellow inmate Etuale Fuifui to fetch his washing. While Etuale was doing this it is alleged the defendant poked the complainant in the mouth with the guitar by shoving it through the bars of the cell door causing injury to his lips and to the upper right front incisor tooth of the complainant.

Complainant says the attack was unprovoked though it may have had something to do with the defendant coming to him while he was asleep in his bed the previous night. What the defendant came to do to him was not clear from the evidence. The defendant has disputed the charge and maintains that the complainant was hurt accidentally as a result of other inmates in the cell playing around and bumping the guitar he was holding causing it to strike the complainants mouth.

Of the inmates in the cell only Etuale Fuifui was called by the prosecution and his testimony was he was fetching the victims washing and did not see what happened. Blindness is a common affliction amongst prisoners. There was no mention by Etuale in his evidence of anyone playing around in the cell or of the presence in the cell of any other inmates other than one who was reading his bible, the rest being out on week-end leave. He also confirmed the complainant was standing outside the cell door and not inside the cell and it is difficult to see therefore how an accidental injury could have occurred as maintained by the defendant.

The victim was taken to the hospital and examined by Dr. Hunt who is an oral surgeon. She testified as to a fracture of the complainants upper right incisor tooth necessitating the removal of the tooth. She also said the complainant had some minor cuts to his lips. Her evidence satisfies me that the tooth injury was serious and the complainant has permanently lost his tooth, in fact as of today he has not had dentures put in to replace the tooth - he showed the court the gap in his upper right front incisor area during his evidence. I am perfectly satisfied the injury is grevious and that element of the charge has been established by the prosecution. The only remaining issue is whether the prosecution has proven to the necessary standard that the injury was wilfully caused by the defendant so as to amount to willfully and without lawful justification causing grevious bodily harm to the complainant.

Apart from the complainant, Etuale Fuifui and the doctor, two other witnesses were called by the prosecution namely two police officers one of whom Sergeant Malofou Aigao interviewed the defendant immediately after the incident. The sergeant gave evidence of a verbal admission to him by the defendant of causing the injury to the complainant but said that he was told by the defendant it was a result of the playing around that occurred in the cell. I am satisfied that given the complainant was outside the cell door and the fact that the guitar would have had to have been launched through the steel bars of the cell door from the defendants position of sitting on a bed inside the cell door-way, that it is highly improbable the injury was caused by accident. In addition there is no evidence from the complainant and Etuale Fuifui that there were any other inmates in the cell apart from the inmate reading the bible, let alone inmates playing in the cell as maintained by the defendant. I therefore do not accept the explanation advanced by the defendant as to how the injury was caused. The question therefore remaining is whether the complainants evidence together with the admission to the investigating officer is proof beyond reasonable doubt of the defendant wilfully striking the complainant in the mouth with the guitar, that is the tip of the guitar.

As to the admission of the investigating officer I have no hesitation in rejecting that as evidence against the defendant because it is clear from the evidence of the second police officer Constable Tua Vaai which I have no reason to doubt, that before the admission was obtained the investigating officer said to the defendant if you admit the allegation you will not be put into the pa-simā or the punishment cell used for purposes of solitary confinement, but if you dispute the allegation you will be placed into the punishment cell. That is a clear inducement to the defendant to make an incriminating admission contrary to the rules governing the admissibility of confessions and admissions. I do not propose to canvas the rules in detail as counsels for the prosecution as trained prosecutors should be very familiar with them. As stated in the locus classicus of Baron Park in R v Baldry (1852) 2 Den 430, 444:

"In order to render a confession admissible in evidence it must be perfectly voluntary and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority vitiates a confession." The matter was put thus by Lord Morris in DPP v Ping Ling [1975] 3 All ER 175, 178: "The test is simply whether the Crown have proved that a statement made by an accused was voluntary in the sense that it was not obtained from him either because some person in authority exercised fear or prejudice or held out hope of advantage. Stated otherwise, was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement? Did he make it because he was caused to fear that he would be prejudiced if he did not or because he was caused to hope that he would have advantage if he did? The prosecution must show that the statement did not owe its origin to such a course."

And the standard of proof is one of beyond reasonable doubt.

Similarly see Cross on Evidence 7th NZ Ed. at page 685 wherein the learned authors state:

"At common law anything suggesting that a suspects confession was made with the hope of obtaining some benefit will render it inadmissible. Everything depends on the circumstances but some of the expressions which have been held to have this exclusionary effect are. "Tell me where the things are and I will be favourable to you"; and "If you don’t tell me you may get yourself into trouble and it will be worse for you."

The suggestion by the investigating officer in this case that an admission would save the defendant from solitary confinement is one such inducing expression and amounts in my view to a promise or threat from a person in authority. That the sergeant being the senior officer on duty was a person in authority is beyond dispute. l have no doubt in my mind that in the circumstances that prevailed in respect of the defendant as an inmate of this facility, the promise or threat given by the investigating officer caused the admission to be made and it is not saved by section 18 of the Evidence Ordinance. Ironically the admission did not save the defendant from solitary confinement because after obtaining it the sergeant nevertheless ordered him placed into solitary confinement, according to the defendant for a period of three months. There is no question the evidence of this admission must be excluded as a matter of law.

This therefore leaves only the evidence of the complainant as to how the injury was sustained. As stated earlier I do not accept the contention advanced by the defendant. I prefer the complainants account of how he came to be injured. This is because Tavita the version put forward by the complainant is supported by the evidence before the Court.

Although the cause of the attack is not clear, I am sure that in a prison environment there is a cause for this incident. Notwithstanding that I am satisfied beyond reasonable doubt on the evidence that the defendant willingly inflicted the injury on the complainant and he will be convicted accordingly.

The question then is as to a sentence. Defendant is remanded on bail (he is now on parole) to 22 October 2007 at 12noon for a Probation Report and for sentence. Bail to continue. I will also require a Victim Impact Report.

JUSTICE NELSON