Police v Vailopa [2015] WSSC 216 (18 November 2015)

IN THE SUPREME COURT OF SAMOA
Police v Vailopa [2015] WSSC 216

Case name:	Police v Vailopa
Citation:	[2015] WSSC 216
Decision date:	18 November 2015
Parties:	POLICE (Prosecution) SEB VAILOPA, male of Fugalei. (Defendant)
Hearing date(s):	09 & 10 November 2015
File number(s):	S2133/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	I am satisfied from that evidence the charge has been proven by prosecution beyond reasonable doubt and you are found guilty as charged Seb.
Representation:	L Tavita for prosecution Defendant unrepresented
Catchwords:	Intentionally cause actual bodily harm
Words and phrases:	Found guilty as charged.
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SEB VAILOPA, male of Fugalei.
Defendant

Counsel: L Tavita for prosecution
Defendant unrepresented

Hearing: 09 & 10 November 2015

Decision: 18 November 2015

JUDGMENT OF THE COURT

1. The defendant is charged that on the night of Friday, 19 June 2015 in front of the RSA night club on Main Beach Road, he did intentionally cause actual bodily harm to the complainant a male of Lepea village. Prosecution case is that the complainant was socializing at the RSA with friends. He left the premises to get some more money from his vehicle. On his return to the club he was intercepted by the defendant. The complainants says the defendant grabbed him by the shoulder and started hassling him for money. He told him to let go but the defendant would not. An altercation resulted resulting in the defendant hitting the complainant. The complainant fell to the ground where he says he was punched and kicked by a number of people.
2. There was other evidence that the defendant was accompanied by a friend who also participated in the assault. The area of the assault is well lit by the nightclub lights and also by street lights. The defendant was identified by the complainant as his assailant.
3. The defendant was identified as the perpetrator by a female eye witness named Pauga Vaitolo who knows the defendant well because she is a friend of the defendants sister-in-law Geonita. The defendant was also identified as the assailant by taxi driver Eneliko Samoa Tasi whose vehicle was parked across the road in front of the ACB building. He was attracted to the scene by the commotion and he recognized the defendant as one of a group of males who always hang around the front of the RSA at night hassling patrons of the club.
4. The evidence of both Pauga and Eneliko was the defendant and his companion used a bottle to hit the complainant on the face while the complainant was on the ground. The assault was stopped by the RSA security guard Faasisila and other bystanders. The complainant was taken to the hospital. His medical report shows his jaw was fractured in two places and he also had other associated injuries.
5. The defendant elected to testify and he denied that he was the assaulter of the complainant. He says Taufusi boys named Lemapu and Ashlee carried out the assault. He says he did nothing and that the complainant, Pauga and Eneliko are all mistaken or are lying.
6. He called his older brother Ikilasi in support of his testimony. Ikilasi said that the assault was not carried out by the defendant but by Junior Liu and Clay Wilson. He said that the police officers took the defendant by mistake. But I note that Ikilasis evidence is inconsistent with the defendants own evidence identifying the people who assaulted the complainant. Because the defendant said it was Lemapu and Ashlee who carried out the assault but his brother mentioned two different people. Although the defendant did change his evidence in cross examination to say that Lemapu is also known as Junior Liu. I further note Ikilasis evidence is inconsistent with the defendants evidence as to the carrying out of the assault. Ikilasi said no bottle was used and that the complainant fell and hit his head on the concrete footpath.
7. The defendant also asked to be called other witnesses and the prosecution assisted because those witnesses are serving time at Tafaigata for different matters. They are there with the defendants brother Ikilasi. The first such witness was Tavae Tavae who said the boys who carried out the assault were bumming beer and cigarettes from the victim. And when the victim refused they hit the victim with a bottle. Then they assaulted him with their fists. Tavae identified the assailants as a number of drunk Taufusi boys who arrived after the RSA club had closed. Which is different from what the defendant and Ikilasi say, who said this assault occurred before the club closed.
8. Tavae’s evidence was supported by Iupeli Siu who is a neighbour of the defendant at Fugalei. Like Tavae he says the attackers were bumming cigarette from the victim. He identified the attackers as Lemapu and Clay. Both Iupeli and Tavae said the defendant was not at the scene. That is in contrast to the evidence of the defendant and his brother Ikilasi who said the defendant was there but he did not take any part in the assault. Both witnesses also said there were other assaults that occurred that night involving drunken boys from Taufusi.
9. I note the defendant and his witnesses are from neighbouring villages of Fugalei and Taufusi. Taufusi and Fugalei have had a long standing rocky relationship. There are many other areas where the evidence of the defendants witnesses are inconsistent with each other and inconsistent with the defendants own evidence.
10. I prefer the evidence of the police witnesses who were coherent, consistent and cogent and includes an independent witness taxi driver. It also involves the evidence of a friend of the defendants sister-in-law the girl named Pauga. Their evidence of identification is very clear as they both knew the defendant.
11. I am satisfied from that evidence the charge has been proven by prosecution beyond reasonable doubt and you are found guilty as charged Seb.
12. O le aso 07 o Tesema lea ua tolopo ai lau mataupu mo se faaiuga, faaauau pea lau nofo taofia e faatalitali ai le faaiuga a le faamasinoga.
    

JUSTICE NELSON