Police v Malua [2016] WSSC 167 (9 August 2016)

THE SUPREME COURT OF SAMOA
Police v Malua [2016] WSSC 167

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Case name:	Police v Malua
Citation:	[2016] WSSC 167
Decision date:
Parties:	POLICE (Prosecution) v MALUA MALUA & TAUMAFAI MALUA both males of Nuu-Fou (Accused)
Hearing date(s):	5 August 2016
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	In assessing all the evidence, I find that the Prosecution has proved beyond reasonable doubt the disputed facts. I am satisfied beyond a reasonable doubt that the accused Malua kicked open the front door and entered the house whilst holding rocks at that time. He walked straight to the victim and punched him on the head using the rock. I am also satisfied beyond reasonable doubt that the accused Taumafai kicked open the back door and entered the house whilst also holding rocks. He then ran towards the victim and punched his head several times using a rock. The end result is that the accused will be sentenced on the basis that both used rocks to inflict grievous bodily harm on the victim. All that remains is a date for sentencing. This matter is adjourned to 18 August 2016 at 12.30pm for sentence.
Representation:	O. Tagaloa for Prosecution Both Accused in person
Catchwords:	causing grievous bodily harm
Words and phrases:
Legislation cited:	Crimes Act 2013 to section.118(1)
Cases cited:	Police v Sofala [2012] WSSC 108(3 July 2012) Court of Appeal i>R vnBryant [1980] 1 NZLR 264
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MALUA MALUA & TAUMAFAI MALUA both males of Nuu-Fou
Accused

Counsel:
O. Tagaloa for Prosecution
Both Accused in person

Hearing: 5 August 2016
Ruling: 11 August 2016

RULING OF TUALA-WARREN J ON DISPUTED SUMMARY OF FACTS

Background

1. In this case the accused on one joint charge of causing grievous bodily harm, pursuant to s.118(1) of the Crimes Act 2013, dispute that they had used rocks to inflict injury as contained in the Prosecution summary of facts at paragraphs 6 and 7.
2. The relevant paragraphs read as follows;
   1. Following that, the defendants and their other brother approached the victim. The victim’s wife saw this so she closed the doors. However Malua kicked open the front door and entered the house whilst holding rocks at that time. He walked straight to the victim and punched him on the head using the rock.
   2. At that point in time, Taumafai kicked open the back door and entered the house whilst also holding rocks. He then ran towards the victim and punched his head several times using a rock.
3. The accused and the victim are related by marriage. The victim is married to the sister of the accused. This is a case of family violence.
4. The Prosecution called three witnesses and the accused called five witnesses. The accused did not give evidence themselves.

Prosecution Evidence

5. Dr Vaimaila Salele, the victim Falaniko Manua and his wife, Sina Falaniko gave evidence for the Prosecution.
6. Dr Salele in her evidence told the Court that the injuries sustained by the victim, being a laceration to the forehead and a laceration to the back of the head could have resulted by either the use of hands or rocks if the impact was high. She did go on to say the injury on the forehead given its depth of 3-4 cm would have been likely caused by a rock and conceded that if the victim had fallen onto a rock, this kind of injury could have been sustained but it would have to be a high impact fall. The injury to the forehead of the victim was deep enough to see the skull.
7. The victim Falaniko Manua said that the accused broke down the door and hit the back of his head with a rock. He said he knows it was a rock because of its hardness on his head, different from the use of fists. He fell down and saw the rock fall onto the ground. When he fell down, he blacked out. He was very drunk having consumed two bottles of spirit with 3 others and one large bottle of beer. It has taken three weeks for his injuries to heal completely.
8. Sina Falaniko, the victim’s wife told the Court that her brothers, the accused and their father kicked open the door which she had closed when she saw the accused Malua Malua approach holding rocks. Taumafai Malua broke open the back door and came into the house with rocks. She tried to protect her husband’s head and face but both accused started hitting her husband on his head with the rocks. She then ran to get help. When she returned, her husband was lying on the cement floor and the accused were standing around still holding rocks. She thought her husband was dead.

Defence Evidence

9. The defence called five witnesses; two of them were the wives of the accused, one their younger brother and his wife, and their father. Both accused did not give evidence.
10. Taugaola Malua who is the younger brother of the accused gave evidence that he saw both accused and the victim engaged in a physical fight. He was standing outside the house of the victim and his wife. He saw the victim fall outside onto big rocks, his head hit the rocks and that is how he sustained the injuries to his head. He conceded under cross-examination that the victim was trying to fend off the accused with his hands, not actually fighting with the accused. He was adamant that the accused did not use rocks and that the injuries to the head of the victim were sustained when he fell out of the house onto rocks.
11. Malua Malua, who is the father of the accused and father-in law of the victim, told the Court that the accused beat the victim but did not use rocks. He was in the fale tele when the fight started. He said the distance of the victim’s house from the fale tele is comparable in distance to the breadth of the Court room. He said he could see the accused and the victim fighting with their fists. He came and removed Sina, his daughter so she would not get hurt. He was also adamant that the accused did not use rocks.
12. Both wives of the accused and Taugaola Malua’s wife gave evidence that they did not see any rocks.
13. Esi Malua who is Taugaola Malua’s wife said that she could see the accused and the victim fighting from her house. The fight happened inside the victim’s house. Esi Malua’s house is separated from the victim’s house by the fale tele. She then ran to get help. She says the accused used their hands to beat the victim. When she returned, the victim was lying inside the house. She did concede under cross-examination, that she did not see the beginning of the fight as she was inside her house.
14. Mele Malua, the wife of the accused Malua Malua, said that she was standing outside the victim’s house when her husband went inside the victim’s house. She never saw the accused using rocks to hit the victim, only their fists. She was uncertain as to whether the victim had fallen onto rocks or cement.
15. Malae Malua who is the wife of the accused Taumafai Malua, said that she went inside the victim’s house to get her husband. When she got inside, she saw the victim lying on the cement floor inside the house. Her husband then left with her. She did not see any rocks.

Law

16. In Police v Sofala [2012] WSSC 108(3 July 2012) Slicer J repeated the position of the New Zealand Court of Appeal in RyanBr/i> [1980] 1 NZLR 264 which reviewed the law in England and Australia and concluded that the plea admits no more than the elements of the offence set out in the Information or indictment. The applicable consequence is stated as:
    • Thus, where an offender denies some fact, alleged in a statement of facts, or to be found in depositions or the evidence at trial, or which is asserted independently, on which the prosecution wishes to rely (typically as a fact aggravating the offence), the prosecution must establish its truth by evidence admissible against [the offender] in accordance with ordinary legal principles.
17. Slicer J goes on to say that the Court did not address the question of degree of proof required in a disputed facts hearing but used the term ‘proper legal proof’ which this Court interprets to mean that the standard of proof, where the prosecution raises aggravating facts which are disputed, is one of ‘beyond reasonable doubt’.
18. Therefore in assessing the evidence, I am mindful that the Prosecution must prove the disputed facts beyond reasonable doubt.

Discussion

19. I place little weight on the victim’s evidence about the use of rocks as he was heavily intoxicated.
20. I prefer the evidence of Sina Falaniko ( the wife of the accused). She together with the victim and the accused were the only ones present at the material time. Her testimony was unwavering and clear. I accept what she said, that the accused were holding rocks and used the rocks to hit her husband’s head as she was trying to protect his head and face with her hands. It would not have been easy to give evidence against her brothers but I found her to be truthful and forthcoming.
21. The doctor’s evidence in relation to the depth of the injury to the victim’s forehead is accepted. I accept that the injury to the forehead could have been caused by the victim falling onto rocks if it was a high impact fall.
22. However, in relation to whether there was a fall, I do not accept that the victim fell onto rocks. The evidence of defence witnesses, Taugaola Malua and Mele Malua who said they saw the victim fall onto rocks was ambiguous and uncertain. Mele Malua was uncertain as to whether the victim fell onto rocks or cement. Taugaola Malua said that the victim fell onto the rocks sideways but predominantly backwards which does not explain the forehead injury. This evidence about the victim falling onto rocks is capricious and obviously geared to finding a reason for the injuries.
23. The defence witnesses were not present in the house of the victim at the material time when the disputed facts were said to occur. Esi Malua observed the incident from her house which is separated from the victim’s house by the fale tele. Mele Malua was outside the victim’s house. Malae Malua only went inside the victim’s house to get her husband and the victim was already lying on the floor, Malua Malua was in the fale tele, and Taugaola Malua was outside the victim’s house. Therefore their evidence is of limited value to the Court as it is unreliable. I place little weight on their evidence.
24. It is glaringly obvious that the evidence of all defence witnesses, being strikingly similar in their denial of the use of rocks by the accused, was given to protect the accused. This is not unexpected as the defence witnesses are all intimately related to the accused, one is their father, the other is their brother, as well as his wife, and their wives both gave evidence for them.
25. The Court finds disconcerting the noticeable division in this family, the majority of them appearing to give evidence to protect the accused. The sister and daughter of the family who is married to the victim has obviously been ostracised for standing by her husband. Whilst this Court has no jurisdiction to order some form of restorative justice between the accused and their sister as she is not the victim of their offending, it is something which the father of the family, may wish to address.

Result

26. In assessing all the evidence, I find that the Prosecution has proved beyond reasonable doubt the disputed facts. I am satisfied beyond a reasonable doubt that the accused Malua kicked open the front door and entered the house whilst holding rocks at that time. He walked straight to the victim and punched him on the head using the rock.
27. I am also satisfied beyond reasonable doubt that the accused Taumafai kicked open the back door and entered the house whilst also holding rocks. He then ran towards the victim and punched his head several times using a rock.
28. The end result is that the accused will be sentenced on the basis that both used rocks to inflict grievous bodily harm on the victim. All that remains is a date for sentencing. This matter is adjourned to 18 August 2016 at 12.30pm for sentence.
    

JUSTICE TUALA-WARREN