Police v Visesio [2009] WSSC 117 (23 November 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SAM VISESIO @ SAM MUAITAU,
male of Vaimoso
Defendant

Counsels: Mr G. Patu for the prosecution
Defendant unrepresented

Hearing: 23 November 2009
Decision: 23 November 2009

DECISION OF NELSON J.

The defendant in this matter is one of two males of Vaimoso charged with causing grevious bodily harm to the complainant on the 10 September 2008 at Vaimoso. His co-defendant pleaded guilty and has already been dealt with by the Youth Court as he is a young person. The defendant however is older and needs to be dealt with by this court. He pleaded not guilty to the charge essentially because he admits punching the complainant but denies that this punch caused the complainant grevious bodily harm as he only punched him once and used his fist.

His co-defendant has given evidence this morning and his testimony was that the two boys went looking for the complainant because of an incident earlier involving the complainant and the defendants sister. They found the complainant and the evidence of the co-defendant was that the defendant delivered the first punch. This punch caused the complainant to fall down backwards but the complainant then got up again ready to fight the defendant. So he intervened and punched the complainant who fell down again backwards onto the ground. The two of them then fled the scene in case boys of the complainants family came and assaulted them in retaliation for what they did to the complainant. The co-defendant does not know which punch caused the complainant to lose two of his teeth but he admitted that his finger was lacerated by the blow that he delivered and that it required five stitches. Such a laceration is consistent with a punch striking someones teeth. There is no evidence that the defendants knuckles suffered any such laceration.

The complainant in his evidence confirmed that he was the victim of two blows, the first from the defendant which caused him to see sparks and fall onto the ground and that while he was on the ground he suffered a second blow causing him to lose consciousness. He did not know which blow caused the damage to his teeth but he thought at the time that the defendant had delivered both punches.

The final prosecution witness Alosio did not add anything of any moment to this evidence.

It is clear from this testimony that it is more than likely and probable that it was the co-defendants punch which damaged and broke the complainants teeth. Hence the laceration to his hand which required five stitches. As I have said there is no evidence that the defendant had any such laceration to his hands. I also note from the complainants evidence that it was the second punch that caused him to lose consciousness. This is consistent with a forceful strike capable of breaking teeth.

In looking at the evidence called before the court I have no difficulty concluding that the prosecution have no case to answer on a charge of causing grevious bodily harm. However there is sufficient evidence of an assault by the defendant. The defendant does not deny that. Accordingly the defendant will be convicted, but convicted on the lesser charge of assault.

I note that the village council of Vaimoso has yet to deal with this matter because they await the outcome of these court proceedings. I also note that no formal reconciliation has taken place because the defendant did not attend the relevant village council meeting.

Accordingly I propose to remit this matter back to the village council to impose their penalty given that this defendant has now been convicted of an assault on the complainant. Village youths involved in this sort of brawling and unruly conduct is very much a village matter and it is appropriate that the village council be given an opportunity to impose a sentence they consider appropriate. The matter will then be returned to this court and the court will impose its sentence taking into consideration the penalty of the village council.

Accordingly the matter is adjourned to 21 December 2009 for a probation report and for sentence. Probation Office is ordered to advise the Vaimoso village council of this decision and to report the village council decision as part of its report in this matter. Bail to continue.

JUSTICE NELSON