Police v Lavasii [2010] WSSC 20 (23 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FELAIAI LAVASII
male of Levi Saleimoa and

SELA FELAIAI
female of Levi Saleimoa
Defendants

Presiding Judge: Justice Vaai

Counsel: Precious Chang and Leone Su’a for the prosecution
Tasi Patea for the defendants

Sentence: 23 April 2010

SENTENCE

The Defendants

1. The defendant Sela Felaiai is 51 years, a traditional Samoan healer, who inherited her traditional healing skills from her ancestors. The defendant Felaiai Lavasii is the husband of the defendant Sela. He accompanied his wife during her visits to see her patients and assisted in the preparation of herbal medicines. He has no say or input in the healing process. Both defendants reside at Levi Saleimoa.

The Deceased

2. The deceased was from the village of Luatuanuu. At the time of her death on the 28^th January 2009 she was living with her husband at Faleasiu.

3. About 4 days before her death, the mother in law of the deceased, requested the defendant Sela to treat the deceased. The mother in law of the deceased knew of Sela as a traditional healer as the mother in law lived with the two defendants and was treated successfully by the defendant Sela about two weeks before the death of the deceased.

4. The two defendants paid for their own transport to travel from Saleimoa to Faleasiu to examine the deceased as requested by the mother in law. The deceased, unknown to the defendant Sela, has been bed ridden for quite some time. She had developed blisters on her back, backside and thighs from being bed ridden on the floor of the family house for several months.

5. The sleeping mats upon which the deceased has been lying continuously have stunk due to uncontrollable urination by the deceased.

6. There was also green discharge from her right breast. An ulcer, as the post mortem report confirmed, was in its advanced stage.

7. In short then, for several months, before the defendant Sela was requested to visit and treat the deceased, the husband and family of the deceased did not seek medical help with full knowledge that she had developed a lump on her right breast a condition which forced her to stop work and which finally confined her to bed.

Treatments by the Defendants

8. After the application of treatments on the first two days using herbs and leaves the deceased found some comfort and was able to sleep well during the night.

9. But on the third day, the defendant Sela ordered boiling water, herbs and leaves to be placed in a plastic container and the deceased was made to sit on the container. The deceased was removed when she complained of the heat.

10. The water was boiled by the deceased’s family and the defendant Felaiai. Herbs and leaves were placed in the container by the defendant Felaiai and the deceased was placed on the container by the two defendants and other family members. Herbal treatment was then applied to the body of the deceased as was done in the two previous occasions before the two defendants left for home.

11. But later that night the deceased’s condition got worst she was taken to hospital for the first time and she died soon after her arrival.

12. The post mortem examination found:

(a) first degree burn marks over the lower trunk region

(b) external genitalia were oedematous and red and revealed changes of first degree burn.

(c) first degree burn marks over the thigh and buttock regions.

13. Death was due to multi organ failure as a complication of the combined effects of septicemic blood infection and shock of burn. Her impending death by blood poisoning from the advanced ulcerated right breast was accelerated by the shock from the burns.

Assessors’ Verdict

14. The Not Guilty verdict for manslaughter is a reflection of total rejection by the assessors of the attempt by the family of the deceased to place total blame on the two defendants for the death of the deceased.

Factors to be taken into account

15. When the defendant Sela was requested to treat the deceased, the family knew she was a recognised traditional healer. Indeed she had treated and taken care of the deceased’s mother in law in her own home free of charge for a whole week before she was requested to attend to the deceased.

16. Those who normally come before this court charged with assault causing actual bodily harm, usually have the malicious intent to cause injury at the time they assault or force is applied. This was not the case here.

17. For three days the two defendants paid for their own transport to travel to Faleasiu and back to Saleimoa, to treat free of charge the deceased.

18. The traditional treatment was done in the open, in the presence of family members. For the first two days of treatments, the deceased found comfort and her family expressed appreciation to the defendants.

19. After the third treatment which led to the death, total blame was placed on the two defendants. The kindness displayed by the two defendants on two previous occasions was promptly forgotten.

Penalty

20. To consider the appropriate sentence I find that Felaiai the male defendant was not a traditional healer. He simply accompanied his wife and assisted her in collecting herbs and preparing the traditional medicine.

16. Despite the post mortem report which revealed in unambiguous language, the failure and negligence of the deceased’s family to seek medical help and care for the deceased for her ulcerated breast, only the defendants who took genuine efforts to assist the deceased have been charged with causing the death.

17. It would be totally against the interests of justice to impose a custodial sentence as contended by the prosecution in their written submission. In the circumstances the defendant Felaiai Lavasii is discharged without conviction. The defendant Sela Felaiai is convicted and placed on probation for 18 months on special conditions that she will attend any programme that the probation service will recommend and secondly that she will perform 50 hours of community work.

JUSTICE VAAI