Police v Tuai [2009] WSSC 5 (30 January 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUITOGA TUAI male of Lufilufi
Accused

Counsels: Mr G. Patu for the prosecution
Accused unrepresented

Hearing: 30 January 2009

Decision: 30 January 2009

ORAL DECISION OF NELSON, J.

The accused in this matter is charged that at Lufilufi on the night of 15 October 2007 he did willfully and without lawful justification cause grevious bodily harm to Amataga Talalelei a male of the village of Lufilufi. In support of that charge the prosecution have called seven (7) witnesses. Firstly the complainant Talalelei Amataga, secondly three (3) eye witnesses namely Mose Pa, Lui Ieremia and Wayne Masi, thirdly two doctors who treated the complainant at Tupua Tamasese Meaole Hospital at Motootua, Dr. Ah Kuoi and Dr. Enosa and lastly the investigating officer of this matter who interviewed the accused, Sergeant Misileota Tamaleaoa.

The evidence of the complainant Talalelei is that he was drinking with some friends on the evening of the 15 October 2007. Around 11pm he went to the house of the accused which he described as "the house of his girlfriend." There he found the accused, Mose and a man named Pita also drinking. He said he was chased out by the accused who it appears from the evidence is the grandfather of the complainants so-called girlfriend. He left and on the main road underneath a street light in front of the house of the Methodist pastor of the village, Mose grabbed him by the hand while Pita punched him from behind. He said he was struck twice on the back of the head, he yelled out ‘fiaola’ (I want to live) and he lost consciousness only awaking in hospital several days later. His injury he described as head injuries, abrasions and scratches and some paralysis of the right side of his body which has affected his ability to play rugby and volleyball. As well he now has memory problems. That is the evidence of the complainant Amataga but the evidence of the three eye witnesses is quite different.

Moses evidence was that he was at the drinking party at the accuseds house and he went out to do a feauvai (call of nature) when the complainant came out of the house saying he had been chased out by the accused. Mose said he took the complainant back inside but was chased out by the accused who told him that if he persists he can leave the house as well. Mose said the complainant swore at the accused and was generally noisy so he took him to the main road after leaving the house. This resulted in the accused and Pita coming after them. Mose said he managed to take the obviously belligerent complainant further away from the two men and the men turned back. However the complainant then threatened to get a gun and shoot the accused so they returned. He said he tried to stop the men but he could not because there were two of them and only one of him. He said an assault on the complainant took place and he saw the accused grab a large rock and throw it at the complainant's left shoulder and neck area. He also said in his evidence that he saw the accused punching and kicking the complainant. He did not know if the other man Pita also assaulted the complainant.

The evidence of the other two witnesses the brothers Lui and Wayne who came from a nearby house in response to the complainant's call of ‘fiaola’ corroborates Mose. Lui’s evidence was he saw the accused throw a large rock to the left side of the complainant's body and he said the complainants face was badly damaged and he was bleeding from his wounds. He was able to see all of this because of a street light where the assault was occurring. In cross examination the accused put to the witness that he did not see him at the scene of the supposed assault. The answer of the witness Lui was the reason why he did not see him was because he was too drunk on the night in question.

Lui’s brother Wayne gave similar evidence. He was at home with Lui when he heard the cry of fiaola from the road. He went to the road with his brother and witnessed the accused throwing a rock at the complainants head. He said the rock he saw was not a large one but fist size although he did see a large rock near where the complainant was lying. He was adamant in cross examination that he saw the accused assault the complainant.

The evidence of the two doctors confirms the complainant was admitted in the early hours of 16 October 2007 unconscious and suffering from significant head injuries. He strongly smelt of alcohol but x-rays revealed no skull fractures. The surgeon in charge of the complainant's treatment testified that the complainant was detained in hospital for twenty five days and that he only recovered consciousness after the fourth day. It is clear from the surgeons report the complainant suffered serious injuries, indeed life threatening injuries.

The final evidence produced by the prosecution was a statement purportedly taken from the accused. The accused was interviewed one week after the incident by Sergeant Misieliota and a written statement about this matter was introduced into evidence by the prosecution.

Unlike counsel for the prosecution I have had a good look at the statement. It is handwritten and signed by the sergeant but not by the accused. The reason for that was not explained or addressed in the sergeant's evidence. The document is therefore at best an unsigned record of a police interview and its admission into evidence must be treated with some caution. I also have not overlooked the initial evidence given by the interviewing officer that the interview was recorded on his computer. In fact the statement is handwritten, it is not a computer record at all.

Although the accused did not challenge the statement when he was given the opportunity to cross examine the sergeant I am still of the opinion it would be unsafe to receive the statement into evidence. The accused person is unrepresented and as such he would have no idea of the implications of his failure to question the sergeant concerning these matters and the purported statement. The statement is therefore rejected.

That then leaves the evidence only of the eye witnesses Mose, Lui and Wayne as well as the complainant himself. As I have stated the evidence of the complainant was that he was assaulted by someone else namely Pita. However I do not give that evidence much weight for two reasons: firstly it is clear the complainant was intoxicated on the evening in question and secondly the assault from Pita came from behind, how could he know who it was that hit him from behind. Furthermore the complainant has admitted in his evidence to having memory problems as a result of his beating in this incident.

I prefer the evidence of the three witnesses Mose Lui and Wayne. Their evidence is consistent with each other and more reliable. And I note Mose is a relative of the accuseds wife's family while Lui and Wayne are independent witnesses, they have no connection according to their testimony to either the complainant or the accused. Furthermore everyone else on this night seems to have been drunk except for these two boys.

I am satisfied from the evidence that I have heard that the accused assaulted the complainant and that this assault caused the injuries that led to his admission and stay in hospital for 25 days. There is no question the injuries were serious, this is clear from the medical reports of the doctors as well as the evidence of the complainant himself. I am therefore satisfied that you Tuitoga Tuai caused grevious bodily harm to the complainant on the day and at the time alleged in the charge, the charge is proven beyond reasonable doubt.

Defendant is remanded on bail to 27th February 2009 at 3.30pm for a Probation Report and sentence.

JUSTICE NELSON