Police v Tuigamala [2015] WSSC 115 (19 March 2015)

THE SUPREME COURT OF SAMOA
Police v Tuigamala [2015] WSSC 115

Case name:	Police v Tuigamala
Citation:	[2015] WSSC 115
Ruling date:	19 March 2015
Parties:	Police (prosecution) and Dwayne Gafa Ulima Tuigamala, male of Sapulu Faleasiu & Sydney Australia (defendant).
Hearing date(s):	18 – 20 March 2015
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:
Representation:	R Titi for the Prosecution M V Peteru for the Defendant
Catchwords:	causing grievous bodily harm with intent to cause grievous bodily harm – possession of the dangerous weapon not for a lawful purpose –
Words and phrases:
Legislation cited:	Criminal Procedure Act s 39.
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

DWAYNE GAFA ULIMA TUIGAMALA
male of Sapulu Faleasiu and Sydney Australia
Defendant

Counsel:
R Titi for the Prosecution
M V Peteru for the Defendant

Hearing: 18 – 20 March 2015

Ruling: 19 March 2015

ORAL RULING OF JUSTICE E M AITKEN

First Trial Ruling

1. The trial has reached the point where all of the evidence has been concluded and I will shortly adjourn to enable Counsel to prepare their closing addresses.
2. At the conclusion of the evidence, on my own notion, I raised with the Prosecution an issue relating to the primary charge, which is one of attempted murder, and I have heard submissions from Ms Titi, very able submissions I might add, and from Ms Peteru, on whether this charge can be left to the Assessors.
3. The law on this particular point is clear and it is a matter of law for me, as the Judge, to determine whether to leave the charge of attempted murder to the Assessors. I can only do that if I am satisfied that there is evidence, which, if accepted by the Assessors, could, not would but could, support a finding, in this case of the requisite intention which is an intention to kill, also often described as a murderous intent.
4. I have carefully, I hope, reviewed the evidence in this trial and I proceed to refer to the evidence at its best – in other words, I am assuming that the facts advanced by the Prosecution are proved and that they could or would be accepted by the Assessors. At its best, the evidence before the Court is as follows:
5. Firstly, that the accused told Auamala that he was looking for the person seen by his daughter. What is relevant about that evidence is of course that there is no evidence as to who that person was or why they accused was looking for that person. The Prosecution clearly rely on inferences that can be drawn from such a statement.
6. Secondly, that that the accused had the machete with him for a relatively prolonged period of time and for no other lawful or reasonable purpose other than to use it on the complainant.
7. Thirdly, that the accused went to some lengths to find the complainant.
8. Fourthly, that he had been consuming alcohol throughout the evening.
9. And fifthly, that he then located the complainant; that he woke him up, that was Vaitoo’s evidence, and it was also Vaitoo’s evidence that he invited the accused into his house and as soon as his back was turned the accused struck him.
10. However, what is relevant about the evidence is as follows: firstly, there is no direct evidence that the strike was aimed at the complainant’s head and nor frankly is there any strong indirect evidence. There was a single strike. The injury was not, on the evidence before the Court, life threatening. It was not accompanied by any threats or any other statement by the accused. He did not give chase when the complainant left the scene, and there is no evidence before the Court as to the size of the machete. There is some evidence before the Court, although it comes from the accused, as to his ability with the machete. That evidence appears to be unchallenged and it was that he is not particularly familiar with using it – he being, to some extent, more a visitor to Samoa than someone who has lived here for a lengthy period of time.
11. So looking at the evidence at its best, I ask myself is the act of the striking with the machete in these circumstances evidence that could support a finding of the requisite murderous intention? And I have reached the view that even if the Assessors accept all of those facts as advanced in the Prosecution case, it is simply insufficient evidence that could support a finding of the requisite intention. I rely in particular on those matters already referred to and reach this conclusion because the evidence simply does not go far enough to lay the foundation for the finding of a murderous intent.
12. In particular I refer to the lack of evidence: as to the size of the machete, that the injuries were life threatening, that he did not aim at the head, and that the act was not accompanied by any explicit or implicit words of threat against Vaitoo specifically, nor at any time that evening, on the evidence before the Court, were those sorts of threats made. He certainly did not give chase. And all of these facts, if they are accepted as proven, come against a background of, on Vaitoo’s evidence (putting aside the defendant’s) of a friendly relationship between the two.
13. It would be unsafe in my view to leave this charge with the Assessors and in the circumstances I intend and do now dismiss that matter and the Assessors will be directed that they are to turn their attention only to the charge of grievous bodily harm with intent to cause grievous bodily harm.

Second Trial Ruling

14. In light of my finding that the charge of attempted murder cannot remain with the Assessors, the Prosecution seeks leave to, in effect, add another alternative charge which would be the charge of recklessly causing grievous bodily harm. At this stage of the trial, I decline that application.
15. I do so for two reasons: firstly, as a matter of fairness. The Prosecution case in respect of this accused has been, until now, that his actions were deliberate and intentionally and could have amounted to the most serious charge of attempted murder. To now put before the Assessors a charge of recklessly causing grievous bodily harm strikes me as unfair. It has deprived the accused of an opportunity to plea to that charge should he have chosen to do so, and it has never been part of the Prosecution case that this injury was anything other than intentional.
16. But secondly (and I express this view rather cautiously given the limited time I have had to consider section 39 of the Criminal Procedure Act) I also have a significant concern as to whether it can be said, as a matter of law, that a charge of causing grievous bodily recklessly is necessarily an included charge in a charge requiring specific intent. It seems to me, on the face of it, that they are alternative charges and it cannot be said that if one commits grievous bodily harm with intent to cause grievous bodily harm, one is also committing the act recklessly. They are dramatically different states of mind; one requiring a specific intent and one really requiring an absence of such intention. Further, it does not seem to me that section 39 was directed to this sort of situation.
17. In the circumstances the two charges that will remain with the Assessors are the charge of causing grievous bodily harm with intent to cause grievous bodily harm and possession of the dangerous weapon not for a lawful purpose.
    

_____________________
JUSTICE E M AITKEN