Police v Fepuleai [2015] WSSC 96 (11 September 2015)

IN THE SUPREME COURT OF SAMOA
Police v Fepuleai [2015] WSSC 96

Case name:	Police v Fepuleai
Citation:	[2015] WSSC 96
Decision date:	11 September 2015 (ruling)
Parties:	Police (prosecution) and Aiga Fepuleai, female of Falelauniu and Manono
Hearing date(s):	10 September 2015
File number(s):	S2265/15, S2264/15, S2263/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	The charge of uttering threatening words is dismissed. The charges of causing actual bodily harm and of being armed with a dangerous weapon have been proven.
Representation:	F Lagaaia for prosecution I Sapolu for defendant
Catchwords:	Actual bodily harm – armed with a dangerous weapon – threatening words -
Words and phrases:
Legislation cited:
Cases cited:	R v Donovan (1934) 2 KB 498
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AIGA FEPULEAI female of Falelauniu and Manono
Defendant

Counsel:
F Lagaaia for prosecution
I Sapolu for defendant

Ruing: 11 September 2015

Reasons for Oral Ruling

1. Howard Leiataua, a Malua Theological College graduate, the husband of Vanesa were both living at the relevant time at Ululoloa with Vanessa’s mother who was visiting from New Zealand. Howard’s mother (the accused) who was also visiting Samoa from the United States was living at Falelauniu village, a short distance away.
2. Howard’s mother, Aiga, has been charged with three offences, which she denied. They are:
   • (i) That on the 9^th July 2015, with intent to cause actual bodily harm, caused actual bodily to Loine Gabriel. Loine Gabriel is the mother of Vanessa.
   • (ii) That on the 9^th July 2015, was armed with a dangerous weapon namely a plastic water pipe not being so armed for a lawful purpose.
   • (iii) That on the 9^th July 2015, used threatening words namely “Ou ke fasiokia oe ma lau kama” to Vanessa Leiataua.
3. At the conclusion of the hearing of the prosecution evidence on the 10^th and 11^th September 2015 I dismissed the information alleging threatening words. The other two informations were deemed proven and the following constitute my reasons.

The Evidence

4. The All Blacks and Manu Samoa rugby game played at the Apia Park on the afternoon of the 8^th July 2015, was re-telecast on TV one in the evening and was watched by Vanessa, her mother, and other younger members of the household. Howard went out drinking, came home late and drunk when everyone was asleep. He woke up Vanessa who prepared some food, which he ate before he retired to bed.
5. At about the same time Vanessa’s mother (the complainant) was walking out of her bedroom to go to the bathroom. She asked Vanessa why she was still awake. Another younger member of the household was also awake. As the complainant entered the bathroom, Howard got up and questioned Vanessa about her mother, Vanessa did not bother to reply. Howard then grabbed a plastic chair and pushed it across the floor. He also started to swear loudly. He grabbed a portable speaker from a desk and smashed it to pieces by throwing it to the floor. He was still swearing and throwing tantrums when the complainant returned from the bathroom. When questioned by the complainant who he was directing his swearing at, Howard said it was her, and in response the complainant coughed back the same swear words back at Howard.
6. As they continued swearing by telling each other to eat shit, Howard punched the complainant on the face, causing her to fall on the floor. She was assisted to her feet by Vanessa. The complainant then picked up the chair and struck Howard with it.
7. In the meantime, Vanessa had run to the road a few matters to the front of the house and screamed for help. Some neighbours came. Howard aggressively demanded the car keys which were given by Vanessa to avoid further violence. He told the complainant and others he will get his mother. As he drove away one of the family members threw an empty beer crate which damaged the right side of the windscreen. The complainant, Vanessa, and some of the neighbours sat down outside at the steps of the house. Two of the complainant’s relatives also arrived.
8. Howard returned later with his mother as he declared before driving away. Also in the car were two adult females and two males. When the car stopped and doors opened, the accused walked direct to the complainant, demanding why her son was beaten. She reached for the complainant but the neighbours and others including Vanessa attempted to stop her advances. Others who came in the car also attempted to get at the complainant but managed to involve themselves in a scuffle with relatives of the complainant.
9. One of the eyewitnesses, Loine Nofoaiga, a cousin of the complainant, told the court the accused got out of the car with a piece of pipe. Another eye witness Togamau, who was observing a few feet away saw the accused strike at the complainant with a piece of pipe. Annie Togamau, another neighbour who was actively involved in trying to stop the attack by the accused and her party saw the accused struck the complainant on the head with the pipe. She also saw the complainant bleeding from the head. The same eye witness also testified, the accused later pulled herself away and came back with another pipe. She then called: “Where is Vanessa and her baby”.
10. When Vanessa discovered that her mother was bleeding she went with her child to the road to get help and to ring the ambulance. She told the court that as she was heading back to her mother she heard the accused calling:

“to find me and my daughter, e fasioki maua ma si a’u kama i le po lena ( page 13 transcript).

At that time some of the neighbours took her and baby to the pastor’s house next door.

Defence

11. It was suggested during cross examination that when Howard left in the car he told the complainant and her family, he was going to get his mother to assist him pack his belongings. This contention was flatly denied. Vanessa told the court that Howard demanded the car keys to get his wallet from the car. As he drove away he called out: you wait”.

Discussion

12. Howard did return soon after with his mother. But they did not go to the house to pack his personal belongings; there were four other adults in the car which logically meant there was neither room nor capacity for the car to carry more cargo. They instead went to wage war. Upon arrival they instantly went into combat, led by the accused who advanced direct and aggressively to the complainant who was sitting on the steps of the house. Despite attempts by Vanessa and neighbours to diffuse and stop the pending conflict, the accused and her party persisted in achieving their illegal mission in the early hours of the morning while most rugby enthusiasts were still celebrating the historical rugby game.
13. The accused was the only one seen by at least two eye witnesses striking the complainant on the head with the piece of pipe. The strike by the accused to the head of the complainant was willful and without lawful justification.
14. As a result of the attack the complainant was taken to the hospital and was seen by Doctor Taituave who noted a laceration to the right parietal area approximately two centimeters wide and one centimeter deep. Two stitches sutured the injury before the complainant was sent home.
15. The injury suffered by the complainant although not permanent, there was actual bodily harm in the sense that it interfered with the health and comfort of the complainant. It cannot be labelled as trifling or transient. See R v Donovan (1934) 2 KB 498. The three elements of intentionally causing actual bodily harm have been proven to the required standard.
16. In relation to the charge of use threatening words I have serious doubts as to the reliability and credibility of the evidence. Vanessa said she was on the main road at the front of the house calling the ambulance on her mobile phone when she heard the call. She obviously went to the road to be away from the commotion at the house. The complainant who was injured and under attack by the defendant and her party who were pulling her hair also said she heard the same threatening words. A neighbour (Annie) referred to in paragraph 9 said the accused directed her threat at Vanessa who was standing nearby. I am not satisfied to the required standard and this charge should be dismissed and is dismissed.

Result

3. The charge of uttering threatening words is dismissed.
4. The charges of causing actual bodily harm and of being armed with a dangerous weapon have been proven.

JUSTICE VAAI