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Supreme Court of Samoa |
Police v Niko [2013] WSSC 65
Case name: Police v Niko
Citation: [2013] WSSC 65
Decision date: 6 August 2013
Parties:
POLICE (prosecution) TUPE JACOB NIKO male of Fugalei (accused)
Hearing date(s):
File number(s): S8012/13, S8013/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation:
F E Niumata and O Tagaloa for prosecution
Accused in person
Catchwords:
Sentence, actual bodily harm, assault, grievous bodily harm
Words and phrases:
Loss of consciousness
Legislation cited:
Crimes Act 2013
Cases cited:
McLoughlin v O’Brien [1982] UKHL 3; [1983] 1 AC 410
Police v Papalii [2011] WSSC 130
R v Appleby [2009] EWCA Crim 2693
R v Brown (A) [1993] UKHL 19; [1994] 1 AC 212,
R v Chan-Fook, [1993] EWCA Crim 1; 99 Cr App R 147, CA;
R v Donovan [1934] 2 KB 498,
R (T) v DPP Crim LR 622
R v Foster [2009] EWCA Crim 2214
R v Hicks [2007] EWCA Crim 1500
R v Ireland; R v Burstow [1998] AC 14
R v Miller [1954] 2 QB 282
T v Director of Public Prosecutions [2003] EWHC 266,
Summary of decision:
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
FILE NOs: S8012/13, S8013/13
BETWEEN
P O L I C E
Prosecution
A N D
TUPE JACOB NIKO male of Fugalei.
Accused
Counsel: F E Niumata and O Tagaloa for prosecution
Accused in person
Sentence: 6 August 2013
S E N T E N C E
The charge
“A person is liable to imprisonment for a term not exceeding seven (7) years who, with intent to cause actual bodily harm, causes actual bodily harm to another person”
Actual bodily harm
“As to the expression ‘actual bodily harm’ used in the first element of this offence, the learned authors of Archbold 2006 state at 19-197
“ ‘Bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling: R v Donovan [1934] 2 KB 498, 25 Cr App R 1, CCA, cited with approval by Lords Templeman and Jauncey in R v Brown (A) [1993] UKHL 19; [1994] 1 AC 212, HL, at pp.230 and 242 respectively. It may include momentary loss of consciousness; where there is injurious impairment to the victim’s sensory functions, ‘it is axiomatic that the bodily harm was actual’: R (T) v DPP Crim LR 622, QBD, (Maurice Kay J).
“Actual bodily harm is capable of including psychiatric injury but it does not include mere emotions such as fear, distress or panic: R v Chan-Fook, [1993] EWCA Crim 1; 99 Cr App R 147, CA; R v Ireland; R v Burstow [1997] UKHL 34; [1998] AC 147, HL. Without appropriate expert evidence, the question whether an assault had occasioned psychiatric injury should not be left to the jury: R v Chan-Fook, ante”.
“We consider that the same is true of the phrase ‘actual bodily harm’. These are three words of the English language
which receive no elaboration and in the ordinary course should not receive any. The word ‘harm’ is a synonym for injury.
The word ‘actual’ indicates that the injury (although there is no need for it to be permanent) should not be so trivial
as to be wholly insignificant”
“The first question on the present appeal is whether the inclusion of the word ‘bodily’ in the phrase ‘actual bodily harm’ limits harm to the skin, flesh and bones of the victim. Mr Justice Lynskey rejected this submission. In my judgment he was right to do so. The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of these parts of his body responsible for this mental and other faculties. The matter was well summarised by Lord Wilberforce in McLoughlin v O’Brien [1982] UKHL 3; [1983] 1 AC 410 at 418:
“ ‘Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact.
“...
“Accordingly the phrase ‘actual bodily harm’ is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition”.
“3. There was an issue at the trial as to whether the ‘momentary loss of consciousness’ amounted to or was capable of amounting to, ‘actual bodily harm’... The justices were referred to some authority on the subject, including the case of R v Miller [1954] 2 QB 282. In the case stated they expressed the opinion that:
‘... in the light of R v Miller... the unconsciousness suffered by March as a result of the kick from the appellant amounted to actual bodily harm.’
“They, accordingly, found the appellant guilty and on 19 June 2002 he was sentenced by way of community punishment order of 40 hours and ordered to pay £50 costs.
“4. The question posed by the justices for the opinion of this Court is expressed in this way:
“‘Whether momentary loss of consciousness is sufficient to make out the offence of assault occasioning actual bodily harm contrary to sec. 47 of The Offences Against the Person Act 1861.’”
“In my view, it cannot be doubted that the loss of consciousness suffered by the victim in this case fell within the meaning of the word ‘harm’. Nor can it be doubted that that harm was ‘bodily’. It involved an injurious impairment to the victim’s sensory functions. It is axiomatic that the bodily harm was ‘actual’. In my judgment, ... the justices were entitled to find that the assault carried out by the appellant had occasioned actual bodily harm”.
“27. In coming to this conclusion we have borne in mind the decision of this Court in R v Hicks [2007] EWCA Crim 1500, which states that loss of consciousness can amount to grievous bodily harm. In that case a jury asked the question in the abstract, and the answer in the abstract was that necessarily it could. Moreover, on the facts of Hicks, the injuries went beyond unconsciousness.
“28. There is no disputing that unconsciousness can amount to grievous bodily harm. Nevertheless, unconsciousness may come in many different forms. In this case it was plainly accepted that there was a real issue as to whether the evidence of injury, including the evidence of unconsciousness, was necessarily to be characterised as grievous rather than actual bodily harm. The medical witnesses, who knew from the grazing of the head that a blow or blows had been caused to the complainant, were unable to say whether or to what extent his unconsciousness... was due to such blows or was due to his condition in drink”.
“The Crown Prosecution Service Charging Standard advises that minor injuries justify a charge of common assault, rather than assault occasioning actual bodily harm. They include grazes, scratches, abrasion, minor bruising and swellings, superficial cuts and reddening of the skin. Unlawful violence taking this relatively minor form can result in death and a conviction for manslaughter. The same Charging Standard indentifies the kind of injuries which should lead to a charge of assault occasioning actual bodily harm. They include loss or breaking of a tooth or teeth, extensive multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function, which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching. Grievous bodily harm is concerned with serious injuries”.
The offending
The accused
The aggravating and mitigating factors
The decision
CHIEF JUSTICE
Solicitor
Attorney-General’s Office, Apia, for prosecution
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URL: http://www.paclii.org/ws/cases/WSSC/2013/65.html