Police v Vaai [2009] WSSC 96 (29 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

FALE VAAI
of Motootua and DANI GAGAMOE of Motootua and Fasitoouta.
Accused

Counsel: L Su’a-Mailo for prosecution
Accused in person

Hearing: 21 September 2009
Judgment: 29 September 2009 (delivery of the judgment was deferred to 7 October 2009 because of the earthquake and tsunami which happened on 29 September 2009)

JUDGMENT BY SAPOLU CJ

The charge

1. The accused Fale Vaai (Fale) and Dani Gagamoe (Dani) are jointly charged under ss.79 and 23 (1) (b) of the Crimes Ordinance 1961 that at Motootua between the 13th and 14th of February 2009 they wilfully and without lawful justification caused grievous bodily harm to Logoifiti Vaai (the complainant), a male of Vailoa, Faleata and Motootua.

The evidence

(a) Prosecution’s evidence

2. According to the evidence of the complainant, on Friday night 13 February 2009 at about 8pm, he walked from the house of Sefo Pau where he was staying at Motootua to the shop of Sefo Pau’s daughter at Motootua to buy a cup of coffee. On his way to the shop, he said that he saw Petelo, with whom he works for Sefo Pau, the accused Fale and two other boys. Later in his evidence, he said he saw Petelo, the accused Fale and the accused Dani.

3. The complainant also testified that he then called out to Petelo, Fale and Dani to stop making too much noise because they were uttering swear and insulting words. At that time a stone was thrown at him but he continued walking to the shop where he bought a cup of coffee and conversed with the shop assistants. When the shop closed at about 2am, he returned to the house of Sefo Pa’u to sleep. On his way, he was again able to see Petelo, Fale and Dani because of the light from the nearby taxi stand and the light from the engineering workshop of Sefo Pau’s daughter. He then said that Fale and Dani threw a stone which hit him on the left side of his face causing him to fall down, hit his head on the road, and became unconscious. When it was suggested to him that it was unrealistic for two people to hold a stone and throw it at him, he said that it was Dani who threw the stone while Fale was standing next to him. He also said that he was not acquainted with Fale and Dani but he was familiar with their faces as he often sees them.

4. Under cross-examination, the complainant said that he knew Fale assaulted him. He said when the stone hit him, he fell. Fale arrived at him at the same time as he was falling. He knew that because he was not unconscious at that time. He only lost consciousness when his head hit the road. The complainant also denied under cross-examination by Dani that he was under the influence of alcohol.

5. The complainant further testified that when he regained consciousness at about 4am, he was inside the hospital. Later the same morning, he was discharged from the hospital.

6. Dr Pai Enosa who was on duty at the emergency department of the National Hospital on early Saturday morning 14 February 2009, testified that he examined the complainant upon arrival at the hospital. The doctor said he found bruises and swelling on the complainant’s forehead and the left side of his face as well as a cut on his upper left lip. An x-ray was carried out of the complainant’s head but it revealed no broken bones. The accused was then kept in the emergency department of the hospital until he had fully regained consciousness. He was discharged with medication the same morning. Dr Enosa further said that the injuries he found on the complainant were moderate to severe. By that he meant that the injuries were neither moderate nor severe but somewhere in between.

7. Dr Enosa did not say that he had examined the complainant’s mouth. Apparently he had not done so because the complainant testified that he also lost three teeth as a result of the stone that hit him on the left side of his face. The complainant said his teeth were examined by a dentist but that dentist was not available to give evidence. After this incident, the complainant laid at home for three months as a result of his injuries.

8. Petelo Mago (Petelo) who was mentioned by the complainant in his evidence was also called as a witness by the prosecution. He testified that on Friday night 13 February 2009 he was drunk. He recalled that he went to the shop at Motootua of the daughter of Sefo Pa’u to buy a bottle of beer. When he came out of the shop, the accused Fale with whom he is acquainted and another boy named Centre were at the front of the shop. He then went to the house of Sefo Pa’u where he was staying and brought a bushknife. When he arrived back in front of the shop, someone he did not know snatched the bushknife from him. At that time, the accused Dani punched him and he fell down unconscious.

9. Petelo also testified that he did not know how the complainant was injured.

10. Tara Iputau, the telephone operator at the taxi stand near the place where this incident occurred was also called as a witness by the prosecution. He testified that on Friday night 13 February 2009, he heard someone uttering swear words after midnight. The voice sounded like that of the accused Fale. When he came to where the voice was coming from, he saw someone lying on the road and that person was asleep and snoring. He did not say who that person was whether it was Petelo or the complainant or someone else. He also did not say whether he saw how the complainant was injured.

11. The witness Mui Wendt (Mui) who was also called by the prosecution, testified that on Friday night 13 February 2009, she was working as a shop assistant at the shop of the daughter of Sefo Pa’u at Motootua. She said that the complainant came to the shop that night and bought a cup of coffee. She also said when she finished work at about 2am and came out of the shop, she saw the two accused assaulting the complainant by punching and kicking him. This witness also said that one of the accused was punching the complainant with a stone. However, she soon left as she was afraid in case she got hurt herself. She further said there was light from the nearby taxi stand towards where this incident occurred.

12. Under cross examination by the accused Dani, the witness Mui said that one of the assailants had long hair and was holding a knife. She identified that person as the accused Dani. This witness also said she had previously seen both accused when they come to buy at the shop.

13. The witness Autasia Misa (Autasia) who was working at the same shop on the night in question, also testified that the complainant came to the shop and bought a cup of coffee and then hanged around in the shop.

14. Detective corporal Kid Roache who investigated this matter was also called by the prosecution and he testified that he interviewed the accused Fale and he admitted to assaulting the complainant. Fale did not cross examine the police investigating officer regarding his evidence. Detective corporal Roache also testified that he had also interviewed the accused Dani and he admitted that he was at the scene of this incident but denied he assaulted the complainant.

(b) Accused’s evidence

15. The accused Fale elected to give evidence. In his evidence in chief, he merely said that he denies the evidence given against him. Under cross examination he maintained his denial.

16. The accused Dani also elected to give evidence. In his evidence in chief, he said he was at work at the Insel Ferhman hotel on the night of this incident. He finished work at 9pm and went home. When he arrived home, he heard that his cousin Fale had been injured and was trying to come to the road to take revenge on the person who injured him. Dani said he tried to stop Fale but could not do so. He then followed Fale to where he was going. When they met the complainant, he asked the complainant as to who had placed the knife on Fale’s neck and the complainant replied it was Petelo. He then punched Petelo and Petelo fell on the road. Dani also said when he met the complainant, the latter was holding a bottle of beer and was staggering. However, what Dani said about Fale was not mentioned by Fale in his own evidence whilst what he said about the complainant was denied by the complainant.

17. During cross examination, Dani said that the person who assaulted the complainant was one Eneliko. He also said he told the police investigating officer about Eneliko. However, when Dani cross-examined the police investigating officer he never mentioned Eneliko to the police investigating officer.

18. Dani also said during cross-examination that Eneliko is long haircut and he is the person that the witness Mui was referring to in her evidence. He also denied that he threw a stone at the complainant as the complainant had testified. He also denied the evidence given by the witness Mui that it was him and Fale who assaulted the complainant.

19. The accused Fale did not call any witness but the accused Dani called his wife Foini. The evidence given by Foini supported the evidence of her husband. She also testified that her husband was long hair before they lived together as husband and wife in 2002. However, when they lived together as husband and wife, her husband cut his hair and has always been short hair ever since. She also said she knows Eneliko and he is long hair.

Discussion

20. Dealing first with the evidence in relation to the accused Fale, the evidence given by the complainant clearly suggested that Fale assaulted him. The witness Mui also testified that one of the people she saw assaulting the complainant was Fale.

21. At the place where this incident occurred, there was light from the nearby taxi stand and the engineering workshop of Sefo Pau’s daughter. The complainant is also familiar with the faces of both accused as he often sees them before this incident. The witness Mui is also familiar with the faces of both accused because they used to come to the shop of Sefo Pau’s daughter where she was working.

22. The accused Fale had also admitted to detective corporal Roache that he assaulted the complainant and he did not cross-examine the police officer regarding his evidence about that admission. Even though Fale, when he gave evidence, denied that he ever assaulted the complainant, he never denied the evidence given by the police officer. I have no hesitation in disbelieving Fale’s evidence and accepting the evidence given by the complainant, the witness Mui and detective corporal Roache.

23. In respect of the accused Dani, there was no dispute that he was present at the scene of this incident. The complainant testified that he was facing both accused Fale and Dani when Dani threw the stone which hit him on left side of his face while Fale was standing next to Dani. There was light from the nearby taxi stand. The complainant also said as he was falling down Fale arrived at him but when his head landed on the road he lost consciousness. The complainant further testified that he is familiar with the faces of both accused as he often sees them.

24. The witness Mui was firm in her evidence that she saw both accused assaulting the complainant and that Dani was the assailant with long hair and holding a knife. This witness also said that she is familiar with the faces of both accused as they used to come to the shop where she was working. Even though under cross-examination by the accused Dani the witness Mui confirmed that there was a third person, she did not know who that person was. She was quite adamant that it was the two accused who assaulted the complainant.

25. The accused Dani testified that it was a boy by the name of Enoka with long hair who assaulted the complainant. The clear implication of Dani’s evidence is that it was not him or his cousin Fale who assaulted the complainant but Enoka. This is inconsistent with Fale’s admission to detective corporal Roache that he did assault the complainant. It is also inconsistent with the evidence given by the complainant and the witness Mui. Even though Dani also said that he told detective corporal Roache that it was Enoka who assaulted the complainant, he did not put this to the police officer when he was cross-examining the police officer.

26. Dani also testified that when he met the complainant, the latter was holding a bottle of beer and was staggering. The implication of this part of Dani’s evidence is that the complainant was under the influence of alcohol on the night of this incident. This is inconsistent with the evidence of the complainant that he was not under the influence of alcohol. He had gone to the shop of the daughter of Sefo Pau to buy a cup of coffee. Dani’s evidence is also inconsistent with the evidence of the witnesses Mui and Autasia who were working at the shop on the night in question that the complainant came to the shop and bought a cup of coffee.

27. The accused Dani also denied that he threw a stone at the complainant. This is also inconsistent with the complainant’s evidence that it was Dani who threw the stone that hit him on the left side of his face causing him to fall down.

28. Dani also testified that at the time of this incident he did not have long hair as his hair was always short as it its now. In Samoan, Dani said: "ou te le ulu uumi faamolemole, o lo’u ulu lava lea sa ou ola mai ma a’u lea lava ou te tula’i ai lava i le asō". In English that can be translated as follows: "I am not long hair please, this is my hair I was born with and it is still the same as I stand today". However, the witness Foini who is the wife of Dani testified that she ceased seeing Dani with long hair before they lived as husband and wife. When they lived as husband and wife in 2002, Dani cut his hair and up to now it is still short. It would appear that Dani’s evidence about his hair being always short since he was born is inconsistent with the evidence given by his wife.

29. I have given careful consideration to the evidence given by Dani and his wife as well as the evidence given by the complainant and the witnesses Mui, Autasia and detective corporal Roache and find the evidence given by Dani to be unreliable. I find the evidence of the complainant and the witnesses Mui, Autasia and detective corporal Roache to be reliable and credible. I therefore reject Dani’s evidence that he did not assault the complainant or throw a stone at the complainant.

30. I also find as a fact that the two accused jointly assaulted the complainant as a result of which the complainant suffered injuries. Even though Dr Enosa was of the opinion that the bruises and swelling he found on the complainant’s face as well as the cut to his upper left lip were moderate to severe, I am satisfied that the loss by the complainant of three of his teeth amounted to serious bodily harm. As a result of those injuries, the complainant laid at his home for three months.

31. As this is a case of a joint assault by both accused on the complainant, each of the accused is liable for the acts of the other accused and their consequences. Accordingly, I find the joint charge of causing grievous bodily harm against both accused to have been proved beyond reasonable doubt.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution