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Police v Vitale [2017] WSSC 137 (11 August 2017)

IN THE SUPREME COURT OF SAMOA
Police v Vitale [2017] WSSC 137


Case name:
Police v Vitale


Citation:


Decision date:
11 August 2017


Parties:
POLICE (Informant) and AARON VITALE, male of Faatoia (Defendant)


Hearing date(s):
7, 8, 9 & 30 June 2017


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Leiataualesa Daryl Michael Clarke


On appeal from:


Order:
  1. Prosecution has failed to prove the charge beyond a reasonable doubt. Accordingly, the charge against the accused is dismissed.


Representation:
L Su’a Mailo for Prosecution
L R Schuster for Accused


Catchwords:
assault caused the death - self-defence -


Words and phrases:
Prosecution has failed to prove the charge - the accused, in using force, did so in defence of himself or his child


Legislation cited:
section 125 of the Criminal Procedure Act 2016, section 92(2)(a), 102 and 108 of the Crimes Act 2013, Section 76 of the Evidence Act 2016,


Cases cited:
R v Kerr — [1976] 1 NZLR 335 at pp. 342 – 343 the New Zealand Court of Appeal, New Zealand Court of Appeal in R v Davis [1980] 1 NZLR 257, Police v Si'ilata [1998] WSSC 45 (2 July 1998), In Garrow and Turkington's Criminal Law in New Zealand (online looseleaf edn, LexisNexis) at [CRI 48.2],
In Atonio v Police [2002] WSCA 3 (2 December 2002) the Court of Appeal, Police v Papalii [2011] WSSC 138 (3 October 2011) Sapolu CJ, Police v Lima [2014] WSSC 31 (30 May 2014)Malosi J, Wilson J in Police v Ah Sui – Ruling 2 [1999] WSSC 37 (16 September 1999).


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E
Prosecution


AND:


AARON VITALE, male of Faatoia.
Defendant


Counsel:
L Su’a Mailo for Prosecution
L R Schuster for Accused


Sentence: 11 August 2017


JUDGMENT OF CLARKE J

The Charge:

1. The accused is charged with one charge that at Faatoia on about the 6th day of January 2017, the accused of Fa’atoia by an unlawful act namely assault caused the death of Kaisara Tagatauli (‘Kaisara’), male of Faatoia, thereby committing the crime of manslaughter (S213/17).
2. Pursuant to section 125 of the Criminal Procedure Act 2016, the accused elected trial by Judge alone.

The Law:

3. The accused is charged pursuant to section 92(2)(a), 102 and 108 of the Crimes Act 2013.
4. The elements that the prosecution must prove beyond a reasonable doubt for the charge of manslaughter are:
5. The accused has properly raised self-defence and defence of another under his protection pursuant to subsections 17(2), 17(4) and 17(6) of the Crimes Act 2013. For reasons that follow, I also apply subsection 17(1). The onus to prove that one or more of the legal ingredients of self defence or defence of another as lacking rests with the prosecution (Nauer v Attorney Geneal [2012] WSCA 8 (1 June 2012)). The legal ingredients of the defence of self-defence or defence of a person under protections is contained in section 17 which relevantly provides:

“17. Self-defence – (1) (1) A person unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force, if the force the person uses:

(a) is not meant to cause death or grievous bodily harm; and

(b) is no more than is necessary for the purpose of self defence.

(2) A person unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force by force although in so doing the person causes death or grievous bodily harm, if:

(a) the person causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purpose; and

(b) the person believes, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm; and

(c) the force the person uses is no more than is necessary for the purpose of self defence.

...

(4) A person is justified in using force, in defence of the person or anyone under that person’s protection, against an assault, if the force the person uses:

(a) is not meant to cause death or grievous bodily harm; and

(b) is no more than necessary to prevent the assault or the repetition of it.
(5) This section does not justify the wilful infliction of any hurt or mischief disproportionate to the assault that it was intended to prevent.
(6) A person is justified in using force, in defence of the person or anyone under that person’s protection, against an assault, although in so doing the person causes death or grievous bodily harm if:

(a) the person causes it under reasonable apprehension that the violence with which the assault was originally made or with which the assailant pursues his or her purpose will cause death or grievous bodily harm to the person under his or her protection; and

(b) the person believes on reasonable grounds that he or she cannot otherwise preserve the person under his or her protection from death or grievous bodily harm; and

(c) the force the person uses is no more than is necessary to prevent the assault or repetition of it.”

6. Except as to subsection 17(4) and (6), section 17 of the Crimes Act 2013 is largely identical to sections 15, 16 and 20 of the Crimes Ordinance 1961 (repealed). Subsections 17(4) and 17(6) in respect of defence of a person under protection however is similar though not the same as subsection 19 of the Crimes Ordinance 1961 (repealed).
7. The history of the self defence provisions contained in section 17 appear to be derived from sections 48 (self defence against unprovoked assault), 49 (self defence against provoked assault) and 50 of the Crimes Act 1961 (New Zealand), earlier also contained in the Crimes Ordinance 1961 (repealed). Subsection 17(4) and (6) is also similar though not the same as what was contained in section 51 of the Crimes Act 1961 (New Zealand) (repealed).
8. Sections 48, 49, 50 and 51 of the Crimes Act 1961 (New Zealand) were repealed on 1 January 1981 by subsection 2(1) of the Crimes Amendment Act 1980 (1980 No. 63) (New Zealand). The repeal of the corresponding New Zealand provisions appear due to judicial criticisms over the complexities for Judges and juries and no doubt counsels in applying sections 48 and 49. In R v Kerr — [1976] 1 NZLR 335 at pp. 342 – 343, the New Zealand Court of Appeal in its judgment delivered by Richmond J referred to these difficulties:

“The present case affords yet another illustration of the difficulties with which judges and juries are confronted in this country by the complex provisions of ss 48 and 49....

... Their Lordships were able to say, in relation to self-defence, that no set words or formula need be employed in reference to it and that only common sense is needed for its understanding. Regrettably the same thing cannot be said of ss 48 and 49 of the Crimes Act. We feel sure that many juries must find the varying tests and distinctions laid down by s 48(1), s 48(2) and s 49 quite incomprehensible: and, further, that they would in that situation tend to deal with the case in the commonsense way described by Lord Morris. We would strongly urge that ss 48 and 49 be replaced by some simpler form of legislation.”

9. These comments were reiterated by the New Zealand Court of Appeal in R v Davis [1980] 1 NZLR 257, which appear to have prompted the repeal of sections 48 and 49 and consequently, 50 and 51 of the Crimes Act 1961 (New Zealand).
10. The core aspects of the repealed New Zealand provisions remain law in Samoa by virtue of section 17. In R v Kerr (supra), the New Zealand Court of Appeal said in respect of the corresponding New Zealand self-defence provisions:

“In spite of the rather complicated language of s 49(a) - and the same comment applies to s 48(2)(a) and (b) - we believe that these we believe (sic) that these provisions should be applied in a commonsense way. We think that the following observations made by Lord Morris in Palmer v The Queen [1970] UKPC 2; [1971] AC 814; [1971] 1 All ER 1077 (PC) are in point:

‘If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken" (ibid, 832; 1088).”

11. The New Zealand Court of Appeal in addressing provocation and self-defence in R v Taylor [1968] NZLR 981 also stated at pp 986 - 987:

“Those observations were made before the decision of the House of Lords in Woolmington v D.P.P. [1935] A.C. 462; [1935] All ER Rep. 1. In the light of that decision it would now be correct to say that the accused is entitled to an acquittal not only where the jury believe the evidence of alibi but also when that evidence is enough to raise in their minds a reasonable doubt as to the proof of guilt.

To test the validity of the submission for the appellant in this case it is instructive to examine more recent authorities as to how other defences must be explained to a jury. Dealing with the defence of self defence in R. v Lobell [1957] 1 Q.B. 547 the Court of Criminal Appeal (per Goddard L.C.J.) at p. 551 said: "The truth is that the jury must come to a verdict on the whole of the evidence that has been laid [1968] NZLR 981 at 986 before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty. A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but that they must also consider the evidence for the defence. . . . If in the result the jury are left in doubt where the truth lies the verdict should be not guilty, and this is as true of an issue as to self-defence as it is to one of provocation".

12. The learned authors in Criminal Law and Practice in New Zealand, Second Edition, Sweet and Maxwell (NZ) Ltd, 1971 at 539 refers to the now repealed section 48 (identical to subsections 17(1) and (2)) and there stated:

“The two defences which the new section provides are not mutually exclusive, but overlap, and require to be considered in turn. A person who has in fact caused death or grievous bodily harm may have a good defence under subs. (1). It is only if that defence fails, either because the accused meant to cause death or grievous bodily harm, or because he used more force than was in fact necessary, that it is necessary to have recourse to subs. (2)...”

13. A similar stepped approach was adopted by Moran J in Police v Si'ilata [1998] WSSC 45 (2 July 1998).
14. In relation to subsections 17(4) and (6) of the Crimes Act 2013, similarly, consideration will first be given to subsection 17(4) and subsequently, to subsection 17(6).
15. Subsections 17(4) and (6) can be invoked in respect of the defence of “anyone under that person’s protection”. The persons traditionally included as under the protection of a person are those of the person’s civil and natural relationships. These include master and servant, parent and child, husband and wife (Criminal Law and Practice in New Zealand, (supra) at 551)). The difficulty with subsections 17(4) and (6) is defining the scope of the phrase “under that person’s protection”. The difficulty was also recognised in Criminal Law and Practice in New Zealand (supra) at 553. In this case however, it is clear that the very young child of the accused a year and some months old constituted a person under his protection. This is also recognized by section 85 of the Crimes Act 2013.
16. In Garrow and Turkington's Criminal Law in New Zealand (online looseleaf edn, LexisNexis) at [CRI 48.2], the learned authors explained self-defence as follows:

“An accused who is angry, acting out of revenge, or spiteful may also fear a future assault so that their actions are a reasonable response to a perceived threat. Such an additional mindset does not prevent an accused relying on the defence: Howard (2003) 20 CRNZ 319 paras [1as [17]-[27].”

17. In Atonio v Police [2002] WSCA 3 (2 December 2002), the Court of Appeal addressed self defence at common law stating:

“The common law recognizes that there are many circumstances in which one person may inflict violence upon another without committing a crime, as for instance, in sporting contests, surgical operations or in the most extreme example judicial execution. The common law has always recognized as one of these circumstances the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing. If no more force is used than is reasonable to repel the attack such force is not unlawful and no crime is committed. Furthermore a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.

It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime namely that the violence used by the accused was unlawful.” (emphasis added)

18. In considering self defence and defence of another, what constitutes grievous bodily harm is also relevant. In Police v Papalii [2011] WSSC 138 (3 October 2011), Sapolu CJ dealt with the meaning of grievous bodily harm under the Crimes Ordinance 1961 (repealed) at paragraphs 31 and 32, which I will not restate in full except as follows:

“As to the first element of the offence of causing grievous bodily harm, the Samoan Courts, following the decision of the House of Lords in DPP v Smith [1961] 290, have interpreted the words ‘grievous bodily harm’ to mean no more and no less than ‘really serious bodily harm’: Police v Lesa Farani Posala [1994] WSSC 23, Lesa Farani Posala v Attorney General [1995] WSCA 4...”

19. In Police v Lima [2014] WSSC 31 (30 May 2014), Malosi J made the important observation at paragraph 32 as follows:

“It is important to note that the definition of 'grievous bodily harm' in s.2 of the Crimes Act as 'serious bodily harm', is different from the definition in Papalii (supra) and Archbold (supra) which is 'really serious bodily harm'. In this instance the s.2 definition obviously prevails.”

20. In this case, accused counsel further submitted that there is no “chain evidence” identifying Kaisara to the attending physicians and in particular, in relation to the CT scan tendered as exhibit P7. Counsel refers and relies on the ruling of Wilson J in Police v Ah Sui – Ruling 2 [1999] WSSC 37 (16 September 1999).
21. Prosecution submitted that counsel was required to cross-examine on this issue if it was in dispute. Section 76 of the Evidence Act 2016 provides:

“76. Duty to put questions in cross-examination-(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2) If a party fails to comply with this section, the Judge may:

(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or

(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c) exclude the contradictory evidence; or

(d) make any other order that the Judge considers just.” (emphasis added)

22. Section 76 of the Evidence Act 2016 is identical to section 92 of the Evidence Act 2006 (New Zealand). In Cross on Evidence (online looseleaf edn, LexisNexis) at [EVA 92.2], the learned authors discuss the common law duty established in Browne v Dunn (1893) 6 R 67 (HL):

“At common law counsel had a duty to "put the case" of his or her client to the witnesses called by opposing counsel. Whenever it was proposed to ask the tribunal of fact to disve the evidence-in-chief ofef of a witness, that contradictory material, or at least the essence of it, normally had to be put to the witness so that he or she might have an opportunity of explaining the contradiction. Failure to do so might be held to imply acceptance of the evidence-in-chief.”

23. The learned authors continue at [EVA92.3]:

“The two purposes of the duty are to ensure fairness to the party and the witness whose evidence is contradicted; and to promote accurate fact-finding by ensuring the trier of fact has the benefit of the witness’s response. The duty is not intended to protect the interests of the party cross-examining the witness.”

24. In McNaughton v R [2013] 2 NZLR 467 at 478, the New Zealand Court of Appeal considered the duty under section 92 and stated:

“[32] In summary, counsel is under a duty to cross-examine under s 92 where these four criteria are satisfied: (a) the topic of cross-examination is a significant matter; (b) the matter is both relevant and in issue; (c) the matter contradicts the evidence of the witness; and (d) the witness could reasonably be expected to be in a position to give admissible evidence on it. As this Court has observed, the general purpose of the statutory obligation on counsel is “one of fairness”, continuing the common law’s longstanding policy that basic fairness requires that if a fact is going to be relied upon in closing it must be put to the relevant witness in cross-examination.”


Evidence:

25. Prosecution called 7 witnesses. Constable Afalua Fetu tendered the scene plan marked exhibit P1. Constable Vaimoana Krieg tendered photographs of the scene (exhibit P2) and of a deceased taken at Motootua Hospital (exhibit P3) on the 6th January 2017.
26. Prosecution alleges that injuries suffered by Kaisara causing his death were inflicted by the accused while they drove in their family Toyota Voxy registration 16812 (“Voxy”) from Faleatiu to Fa’atoia on the night of 5th January and early hours of 6th January 2017. The only witness that gave evidence in Court about what allegedly occurred in the Voxy on the return drive from Faleatiu was Leutu Tagatauli (“Leutu”). The only other evidence about what allegedly occurred in the Voxy on that drive is in the caution statement of the accused dated 6th January 2017.
27. Leutu is the accused’s 22 year old wife. She is also the younger sister of the Kaisara. She said that on the night of the 5th January 2017, she, Kaisara, the accused and her young child a year and some months old took her sister-in-law to Faleatiu. They left their home at Fa’atoia with Kaisara driving. They went to McDonalds Restaurant. At McDonalds, she then drove and Kaisara sat in the back seat. On the return from Faleatiu, in the back seat were Kaisara behind her on the right side, the accused and her baby. She could not say where the baby was seated in the back seat.
28. On the return to Apia, Leutu said:

“matou omai loa ma na faaali mai lava lagona faanoanoa o si ou tuagane ia te au fai mai i le alofa faapito o matou matua ia matou i isi o matou ae ou fai atu iai e leai e le faapena e alofa uma a tatou matua ia tatou aua ete faapena ae pei ua amata ona faavesivesi mai ma tele mai ana tala. Na ou le toe tali i sana upu ona oute iloa o la e onā i le taimi lena o tala lava a le onā...”

29. When they reached St Therese’s at Leauva’a however, Kaisara then said to her “Fuck you sis!” When Kaisara said this, Leutu’s said the accused intervened saying “sole, ua lava lena”. The accused had not been part of Leutu and Kaisara’s conversation until this time. Leutu accepted Kaisara sounded like he was angry. Leutu then said “e pei o iina la na amata ai loa ona fufusu”. She did not know who punched first but said:

“Wit. Na ou taumafai lava e vaovao la misa ae e le mafai ona o lea sa ou carry i le taimi lena ma o au foi lea e aveina le taavale oute popole lava i tupu se faalavelave lavevea atu ai ma maua ma si au tama. Ia na fusu fusu a le toe fufusu loa lea.
Pros o lea le uiga o lau tala sa fufusu e faafefea na e iloa o lae fufusu?

Wit oute faalogo atu a lae pa’o mai lae tu’i e le isi le isi ona uma ai loa lea ma sa ou faapea ai o lea le toe fufusu

Pros o fea lea ua oo mai ai ae uma loa le fusuaga?

Wit oute le iloa le nuu sa matou oo mai ai

Pros o lea ete faapea mai na oo mai loa i St Therese i Leauvaa e faalogo atu loa o fufusu

Wit i

Pros ete iloa o lea le umi na fufusu ai?

Wit e lei iai se umi na fufusu ai laua ia.”

30. In his caution statement, the accused told Police that it was Kaisara who first punched him after he had asked the Kaisara why he had sworn. After being punched by Kaisara and being injured, he then hit him with either the back of his hand twice as submitted by accused counsel or elbow twice as submitted by prosecution counsel. The translation of the words “o’u kaiga loa ma le alii lea i lo’u kua lima, kusa e fa’alua ga o’u kaiga le ali’i lea ma kau i le guku ma kae ai loga lauguku” with the words “kua lima” being in dispute as to whether it meant back of the hand or elbow.
31. The accused told Police this made Kaisara punch him more. This occurred whilst the baby was between Kaisara and the accused. The accused told Police he then moved his daughter to his side. He asked Leutu to turn into the Afega Police Station but Kaisara reached over and turned the car back on to the road. In her evidence, Leutu does not recall the accused saying to turn to Afega Police Station.
32. According to Leutu, after the initial altercation, she continued to drive and thought it was unlikely they would fight again. She was scared and can’t recall if anything further was said. She was then shocked when Kaisara and the accused started to fight again saying:

“...na ou taumafai loa e toso mai i luma lau tama teine lea ae i le taimi lena o la e ave a le taavale a ou vaai atu ua kilia le auala na ou faasaga lea ma fai iai e soia le fufusu ua lava na ma ou tago taumafai e toso mai lau tama lea ei tua ia laua i lavea. Na mafai loa ona ou tago sii mai ou tago loa faanofo i autafa i le nofoa o le pasese ae ua fufusu a i le taimi lea o le isi taimi oute vaai atu e pei ua amata ona tutu i luga.”

33. The baby was crying. In cross-examination, Leutu agreed that the accused had said “sole soia i tei ua lavea le teine” on this second part of the altercation. At Puipaa, Leutu’s evidence was that Kaisara said to the accused:

“vaai lea ua ta’e lou gutu amai foi la lou gutu sei ou tago e tu’i ia ta’e”.

34. Leutu then told the accused not to fight with Kaisara telling the accused:

“tuu ou foliga e tatu’i e Kaisara poo lea le mea e oo ai ia na tuu a lea o le isi taimi oute vaai atu na o le punou a i lalo o Arona ae tatu’i e Kaisara. . Na matou omai a lea ae oute iloa ua lelava foi e Arona tatali tu’i ia a Kaisara toe faasaga atu foi laia o ia toe fight back ia Kaisara ao le taimi lena faimai Kaisara e faatafa le taavale...”

35. The altercation she said ended “poo se mea o Vaitele”.
36. At the Malifa traffic lights, Leute’s evidence was that Kaisara said to the accused, “o le po a lenei e maua ai lou iuga”. When they reached the house at Faatoia, the accused left the car and said he was going to his home. As he said this, Kaisara said “o le po a lenei ete elo ai uso.” She told Kaisara that is enough and does he not look with love to her and her children. Kaisara replied “Sis, I love you” and she replied, “Yes Kais, I love you too.”
37. Leutu said she had no reason to think Kaisara was seriously injured. She thought listening to his voice that he was angry. He did not sound like a person in need of help but accepted ‘mapusela’ as descriptive of his voice. She walked to the main road to the accused. At this time, Malua Tagatauli said he came out of the house and went to the car. He described seeing Kaisara in the car sitting up in the car as follows:

“...ae o loo manavanava e pei o le tagata foi lea matuai sela a na fusu ou fesili ai loa, sole o lea foi le mea ua tupu alii ae na o le manavanava a pei o le tagata sela pei na fusu ae leai se tala.”

38. He described Kaisara as sitting up facing forward at the area marked number “4” in photo 4 of exhibit P2. Malua then went to the accused and Leutu and told them to come into the house to speak with their parents. Malua said the discussion lasted about half an hour. After the discussion, the accused packed his clothes and left.
39. Not long after the accused left, it began to rain. Malua was told to go and wind-up the car windows. When he reached the car, he turned the light on and saw Kaisara lying forward across the back seat with his head down where it is marked ‘3’ on exhibit P2 photo 4. His arms were on either side of him. He pulled Kaisara up and blood was coming from his nose and mouth. Kaisara was taken by Malua and his father to the hospital, Malua saying:

“Wit taunuu atu i le fomai toso atu i totonu ae tuli au e le isi fomai faimai oute alu e sue mai lana pepa ia oute foi mai la ae faimai ua oti ma toe o ai loa ma lou tama i le fale o iina la na ou nofo ai loa i le fale ae toe alu lou tama i le falemai.”

40. The Coroner’s Form (exhibit P4) states that at 2.50am, Kaisara was dead on arrival.
41. Leutu accepted that Kaisara is more ‘puta’ and taller than the accused. She also accepted that the Kaisara is strong (‘malosi’), though Malua said he is not strong. She described Kaisara as drunk.
42. Dr Pai Enosa was the Emergency Department physician who allegedly examined Kaisara on arrival though he gave no evidence as to how he identified the body as that of Kaisara Tagatauli. He tendered the Coroner’s Form (exhibit P.4). He said he pronounced the deceased dead on arrival and he ordered a CT scan:

“Wit: Your Honour the reason I ordered for a CT Scan was because of the wounds I saw on his face, he had a few lumps on his face, a few bumps as well and bruises as well as a cut above – on his lip and also some blood on his nose and mouth I noticed that early hours of the morning.”

43. When Dr Enosa described the location of the wounds, he referred to exhibit P3 photographs 1 and 2 and said “I can see them on his forehead just above his eyebrows and also just a little bit above his forehead as well and also around the cheek areas.”
44. Dr Enosa described the wounds observed as “usually from a very blunt object, hardly caused by any sharp object.” The blunt object can include a fist. He said that for blunt force to cause swelling, it can be from one blow but it is usually from ‘quite multiple blows’. In terms of bruising to the right forearm, Dr Enosa said that the injury is usually from a struggle with ‘exact force’ applied to the area to cause a bleed under the skin.
45. Based on Dr Enosa’s clinical examination and the CT scan results from Dr Tong, Dr Enosa concluded that the cause of death was “severe brain injury or severe head injury”. From the injuries, Dr Enosa opined that “Mr Kaisara wouldn’t have survived at least two to three hours.” He explained “[t]he main reason being it was quite a severe injury as well as the brain has already herniated and that is actually a dangerous sign if seen on the CT Scan.” Dr Enosa said that the pointers to the cause of death were:
46. In describing subdural and subarachnoid hemorrhages, Dr Enosa explained:

...

Wit: It is the subdural because it can extend all over the brain because it happens within the layer that surrounds the brain and so once the blood vessels actually rupture or once one of the blood vessels starts bleeding it can bleed all around the brain.

...

Wit: The subdural happens within the layers of the brain and the skull and so the bleeding in the subarachnoid spaces is a bleed that occurs within the brain so it’s mainly brain injury that causes a lot of this bleeding.”
47. In describing a cerebral edema, Dr Tong explained:

...

Wit the brain soft tissue swelling the normal sulcuses at the cisterns disappear as the left laterl ventricle compressed to the right hand side so that means edema.”
48. Dr Enosa said of an edema:
49. Dr Enosa said that the injuries alone could have been fatal. He described a brain or cerebral hernia as:

“it is actually caused in the case of the brain and because there’s bleeding in the brain it’s applying pressure to the brain itself and as in a container when there’s nowhere else to go it will find a hole to go through so the brain had nowhere else to go but to actually try and go down where the spinal chord is and that’s where the spinal chord’s main functions of the brains are and that actually contributed to the victim’s death.

...

When the brain herniates it herniates down to where the main functions of the brain is and that is the brain stem and as well as the spinal cord and that is where everything is controlled from and once the brain herniates down there it actually presses onto these tissues and it is very fatal.”

50. In his evidence, Dr Enosa said that the absence of a fracture to Kaisara’s head did not rule out a head injury. He said:
51. Dr Tong purportedly carried out a CT scan of Kaisara. He tendered his report (exhibit P6) dated 6 June 2017 which noted:
52. In his report however, Dr Tong concluded:
  1. Acute and extensive subdural hemorrhage in the left side with few bledding (sic) in the subarachnoid spaces, the volume of bleeding is about 81mil;
  2. Severe cerebral edema with midline shifting, cannot exclude cerebral hernia and injury.”

53. In his evidence however, Dr Tong clarified his report:

“Dc Okay we’ve agreed that you used the term suggestive because you can't be 100% sure right?

Wit No this edema is sure but not sure the hernia.

Dc Okay, so you’re saying now you’re sure of the edema but not the hernia.

Wit Mhm.

Dc Do you wish that part of the report to be changed because you’re saying now you’re sure of the edema but you’re not sure of the hernia is that right? Is that correct?

Wit Yes.”

54. Dr Tong said that the edema was to both sides of the brain but more on the left side. Under cross-examination, Dr Tong clarified that the extensive subdural hemorrhage on the left side was one injury and the subarachnoid hemorrhage was apparently another. Under cross-examination, Dr Tong said:

“Dc Also cerebral folcha and terrorium of cerebellum show hyperdensity changes, is that the second injury or the same injury?

Wit The second.

Dc And then you went and said of the second injury that is suggestive of subarachnoid hemorrhage.

Wit Yes.

Dc Right?

Wit Yeah

Dc So what you’re saying there is you think that because of the cereberal folch and terrorium cerebellum show hyperdensity changes you think that there is subarachnoid hemorrhage right?

Wit Yes, most like.

Dc But you can’t be 100% certain?

Wit But you see that’s why I say “suggestive” subarachnoid, that’s another small bleeding, another type of small bleeding but the hemorrhage that’s sure, make sure. Subdural hemorrhage I say suggestive, on second small bleeding I say suggestive.”

55. In terms of there being no fracture identified from the CT scan, Dr Tong said:

“Dc But in this case no fracture?

Wit No clear displayed fracture.

Dc Which almost means no fracture?

Wit Yeah almost, no fracture. No I can't see fracture.

Dc So if that’s the case then you can conclude that there was no extensive or strong force with trauma on this side of the head.

Wit No. You know no fracture but brain still have bleeding, swelling. I understand what you are meaning, this patient no fracture, maybe no injury, I can't conclude this.”

56. Dr Tong’s identification evidence about the patient subject to his report (exhibit P6) was unsatisfactory. Dr Tong’s evidence was that the details of the NHN number, name, sex, date of birth and village of residence was not entered by him. He explained that “I just write the comments.” In terms of how the “comments” were originally prepared and stored, Dr Tong’s evidence was also unsatisfactory. He could not say, it seemed, where the original comments were and when the information was entered into the computer system, first saying “maybe in June July January” and then subsequently saying “I am not sure.” His evidence was:

“Dc sorry your comments where is your written comments?

Wit in the computer system

Dc in the computer?

Wit yeah

Dc I’m asking about what you wrote there

Wit can you repeat

Dc I’m asking about your comments where are your notes that you wrote down on your comments?

Wit these comments where?

Dc yes

Wit in the system computer

Dc in the system?

Wit yeah

Dc no didn’t you say that you wrote it first and then you gave it to the xray staff to type it?

Wit oh I don’t know you should ask the xray staff I don’t know

Dc you don’t know where they are?

Wit yeah

Dc ok don’t those written notes go in a file patient’s file?

Wit I don’t know

Dc don’t know?

Wit umm

Dc when a doctor makes a note of a patient’s diagnosis or descriptions of an illness don’t those notes go into the file the original notes?

Wit I don’t know

Dc you don’t know?

Wit umm”

57. Dr Tong continued in re-examination rather unsatisfactorily:

“Pros the written notes you gave to xray staff to type

Wit yeah

Pros you remember that?

Wit you know this case came to hospital very early in the morning about 3 or 4 in the morning I’m not sure of that. I remember very early in the morning so I just finish report I put the xray front desk maybe on the working time our staff type the report Im not sure who type.”

Discussion:

58. Leute is the sole witness who gave evidence in Court about what occurred in the Voxy on the night of the 5th and early morning of the 6th January 2017. She was a witness who tried her best to fairly and accurately recount the events of that night.
59. Based on the evidence, the physical altercation between the accused and Kaisara can be broken down to two parts. The first part of the physical altercation started at St Therese Leauva’a following the exchange of words between Kaisara and Leute which culminated in Kaisara swearing at Leute. In this first part, the accused intervened saying “sole, ua lava lena”, or words to similar effect. The physical altercation then started but according to Leute, it did not last long at all although she could not recall where it ended. I accept that Kaisara started the altercation, properly conceded by prosecution.
60. The second part of the altercation came as a shock to Leute. She tried to pull her child to the front in case the child got injured. Leute could not say where this altercation started. However, at Puipa’a in the course this second part of the altercation, Kaisara said to the accused that his mouth was cut and he told the accused to give him his mouth to punch so it can be cut too. The accused then proceeded to punch the accused who adopted a defensive position described as “punou a i lalo o Arona ae tatu’i e Kaisara”. Only after being punched by Kaisara did the accused fight back. At that time, Kaisara told Leute to pull the car over. It was during this second part of the physical altercation that the accused said words to the effect of “sole, soia I tei ua lavea le teine.” The second fight was a stop start affair that ended at about Vaitele.
61. On the night of the 5th January 2017, the evidence shows that Kaisara was intoxicated, very aggressive and was the initiator of the violence. His aggressiveness was evidenced by his swearing, tone of voice and being the initiating source of the violence and his later demands to punch the mouth of the accused and to cause the accused injury. He was prepared to initiate the violence and assault the accused despite the clear danger such actions represented to the baby. Kaisara in my judgment very likely started the second part of the altercation. That view is reaffirmed by Leute’s evidence that as the second altercation was occurring, the accused said “sole, soia I tei ua lavea le teine.” The accused was concerned about the danger to his child, said as much and he told Police he moved his child away from Kaisara. There is no reliable evidence that the accused started any part of the physical altercation, that he swore or was otherwise aggressive in his behavior. In fact, according to Leute, when Kaisara demanded that he present his mouth to him to punch to injure it, the accused compliantly did as he was told. The accused only responded when that assault continued. That context leads me to the issues of self defence and defence of another.

Self-Defence and Defence of Another:

62. In terms of self defence and defence of another, if prosecution fails to disprove these beyond a reasonable doubt, even if I were satisfied that the accused caused Kaisara’s death, it is a complete defence to the charge of manslaughter. Any such force applied by the accused in self defence or defence of another is not an unlawful act.
63. Prosecution’s Supplementary Submissions applies the test for self-defence set out in Nauer v Attorney General [2012] WSCA 8, 1 June 2012 for a provoked assault by the accused (section 16, Crimes Ordinance 1961 (repealed)). In this case, I find that there was no evidence that the accused provoked the assault. The accused responded to an unprovoked assault. The words allegedly uttered by the accused to Kaisara do not in my view constitute provocation. The test in Nauer v Attorney General (supra) referred to by prosecution does not therefore apply.

Subsection 17(1) Crimes Act 2013 - Self Defence:

64. Under subsection 17(1), the prosecution must disprove beyond a reasonable doubt that the force used by the accused in repelling the force applied by Kaisara was not meant to cause death or grievous bodily harm and was no more than necessary for the purpose of self defence.
65. Prosecution relies on the caution statement and the alleged elbowing by the accused of Kaisara twice to establish that the accused in repelling the assault by Kaisara meant to cause death or grievous bodily injury to Kaisara. In dispute is the meaning of the words “kua lima” used by the accused in his caution statement. I understand ‘kua lima’ to mean back of the hand and ‘kuli lima’ to mean elbow. I understand what the accused told Police as referring to him having hit the deceased twice with the back of his hand, not with his elbow.
66. In respect of the first part of the altercation at Leauva’a, that part of the altercation started by Kaisara did not last long. It is unclear when considering Leutu’s evidence and the accused caution statement whether the accused struck Kaisara with his ‘kua lima’ during the first part of the altercation or the second. If the assault with his ‘kua lima’ occurred in the first part, that certainly does not lead to the inference that the accused meant to kill Kaisara or to cause to him grievous bodily harm. There is also little if any other specific evidence of the nature of the accused alleged assault of Kaisara to suggest that the accused meant to cause death or grievous bodily injury to him in relation to the first part of the altercation. The evidence certainly falls short of discharging the prosecution’s onus of disproving that the force used by the accused in repelling the force applied by Kaisara was not meant to cause death or grievous bodily harm.
67. In her written submissions, prosecution relies on the alleged use of the elbow by the accused to submit that the accused used more force than necessary for the purposes of self defence. As I have found, ‘kua lima’ is a reference to the back of the hand rather than the elbow. Even if it were a reference to elbow, the use of the elbow in the circumstances would not discharge the prosecution onus and burden of proof. I find that the Prosecution has also not disproven that the force used was no more than necessary for the purpose of self defence. In reaching these conclusions about the proportionality of the force used by the accused in this judgment, I also bear in mind what the New Zealand Court of Appeal said in R v Kerr (supra) at paragraph 10 above.
68. In relation to the second part of the altercation, I infer that second part of the altercation as having been started by Kaisara. In the course of that second part, when Kaisara referred to his cut mouth and demanded that the accused present his mouth to him to punch, the accused did so. He was further assaulted, adopted a defensive position and then repelled that assault as it continued. As Leute said, “Na matou omai a lea ae oute iloa ua lelava foi e Arona tatali tu’i ia a Kaisara toe faasaga atu foi laia o ia toe fight back ia Kaisara ao le taimi lena faimai Kaisara e faatafa le taavale...” Based on the evidence, I find that the prosecution has failed to disprove that the force used by the accused in repelling the force applied by Kaisara was not meant to cause death or grievous bodily harm. Prosecution has also failed to disprove that the force used was no more than necessary for the purpose of self defence.
69. In appropriate cases, inferences can be drawn from the nature of the injuries sustained by a victim. In this case, I cannot draw such inferences from the injuries because I am left in reasonable doubt that the medical evidence, particularly the CT scans, relate to Kaisara Tagatauli because of the unsatisfactory nature of the identification evidence which I address in more detail below.

Subsection 17(2) – Self Defence:

70. In the event that I am wrong in terms of 17(1), I turn to consider subsection 17(2). Firstly, for the reasons stated below, I am not satisfied beyond a reasonable doubt that the accused caused death or grievous bodily harm to Kaisara. Secondly, even if he did, prosecution has failed to disprove beyond a reasonable doubt that the accused caused it under a reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which Kaisara pursued his purpose.
71. The assault on the accused and his response to the assault cannot be viewed in isolation but as part of the full events that night. Kaisara was intoxicated, aggressive and upset about their parents favoritism. His voice sounded angry, he was argumentative and said a lot (“faavesivesi mai ma tele mai ana tala”). When the car reached Leauva’a, he then swore at Leute saying “Fuck you sis!” For simply being told, reasonably, “sole, ua lava lena”, Kaisara turned and assaulted the accused. Leute described seeing the fight as “o la oute tilotilo mai i le faitiota o le taavale o lae feoai la lima lae fufusu.”
72. In respect of the second part of the altercation, similarly, that followed a long pre-cursor of events that by that stage included Kaisara initiating the physical altercation with the accused. As it progressed, Kaisara then demanded the accused present his mouth to Kaisara so he can punch and injure him. The accused complied with the demand, was assaulted and after adopting a defensive position, only then again responded as Kaisara’s assault continued.
73. Section 2 of the Crimes Act 2013 defines “grievous bodily harm” as ‘serious bodily harm’. In all the circumstances, I find that the prosecution has failed to disprove that the accused caused death (if that were proven) was under a reasonable apprehension of grievous bodily harm as defined by section 2 with which the assault was originally made or with which Kaisara pursued his purpose.
74. Secondly, the prosecution must disprove that the accused believed, on reasonable grounds, that he or she cannot otherwise preserve himself from death or grievous bodily harm. In this context, Kaisara’s assault on the accused occurred in the confined space of the back seat of the Voxy shown in Exhibit P2 photo 4. This shows the front seats of the Voxy in a forward position. When the altercation occurred, the front seats would have been in their normal positions, being a space even smaller space than that shown in photo 4. Given Kaisara’s actions that night culminating in the physical altercation in the confines of the back seat of the Voxy as it drove to Apia, the circumstances of the assault occurring in the back seat of the Voxy left the accused with very little option on how to respond. He even said in his caution statement, though not recalled by Leute, that he attempted to turn the car to Afega Police Station. He went so far as to offer his mouth for Kaisara to punch but then that assault by Kaisara continued. The accused had, it would seem, also attempted other options. On the available evidence, prosecution has failed to disprove beyond a reasonable doubt that the accused believed, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
75. In terms of the force the accused used being no more than was necessary for the purpose of self defence, that also has not been disproven beyond a reasonable doubt. I have addressed this earlier in my judgment.

Subsection 17(4) Defence of Another:

76. The accused has also raised defence of another under his protection. I accept that the child is a person under the protection of the accused. The question then is, did the accused, in using force, do so in defence of himself or his child. The onus is on the prosecution to disprove the defence and I have dealt earlier with the accused actions in defence of himself.
77. The prosecution’s Supplementary Closing Submissions only briefly touches on defence of another in paragraph 6.2.5. Prosecution says that the accused “moving his daughter behind him was not so much to protect his daughter but more so that he can fully fight back against the Kaisara. The child was in no danger and the child would have indeed prevented the fight from escalating.”
78. With respect, there is no direct evidence in my view for the submission made by the prosecution. It is also not an inference that I can reasonably draw from the evidence. According to the accused in his caution statement, he said the baby was between the accused and Kaisara. As photo 4 of exhibit P2 clearly shows, the space in the back seat of the Voxy was very small. Kaisara was intoxicated, aggressive, swearing and angry. Kaisara started the altercation and continued it, even with the baby between him and the accused. That baby in the confines of that back seat where an altercation was occurring was in real danger. The accused told Police:

“peikai ua akili ai foi oga ka kui mai a’u e le ali’i lea o Kaisala ae o si o’u afafige lea o sa moe I le ma va I luga le gofoa ua ala I luga ma kagi. Ma ga ou kago aku loa sii mai si o’u afafige ma kuu mai I le isi iku o le gafoa ma ou faliu aku ooa ma avau loa ma le alii lea.”

79. Leutu also recognized the danger to the child saying in evidence “...na ou faasaga lea ma fai iai e soia le fufusu ua lava na ma ou tago taumafai e toso mai lau tama lea ei tua ia laua i lavea.” In the course of the second part of the altercation, the accused also said “sole, soia I tei ua lavea le teine.”
80. I find that the prosecution has not disproven that the accused, in using force, did so in defence of himself or his child.
81. Secondly, prosecution has not disproven beyond a reasonable doubt that the force used by the accused was not meant to cause death or grievous bodily harm. I have addressed that evidence relating to the accused response to the assault by Kaisara and which fails to disprove this ingredient of the defence.
82. Thirdly, on the evidence I have referred to earlier, the prosecution has also not disproven that the force used was no more than necessary to prevent the assault or the repetition of the assault by Kaisara.

Subsection 17(6):

83. Whilst I am satisfied that subsection 17(4) has not been disproven by the prosecution, I turn to subsection 17(6) in the event that I am wrong.
84. First, I am satisfied that the accused, in using force, did so in defence of himself or his child in accordance with subsection 17(6). Even if the accused did cause Kaisara’s death, prosecution has not disproven that the accused caused it under a reasonable apprehension that the violence with which the assault was originally made or with which Kaisara pursued his purpose will cause death or grievous bodily harm to the baby.
85. The baby was in real danger in the back seat of the Voxy throughout both the first and second parts of the altercation while in the back seat. This is so whether the child was between the accused and Kaisara or to the accused side away from Kaisara. That danger can include death or grievous bodily harm to the baby in the circumstances in which the assault by Kaisara was carried out. The onus and burden of proof is on the prosecution to disprove and that duty on the evidence has not been discharged.
86. Prosecution has also not disproven that the accused believed on reasonable grounds that he or she cannot otherwise preserve his child from grievous bodily harm. The assault occurred in the backseat of the Voxy. He could not leave or escape with the child and moved the baby to his side to attempt to protect her. He told the accused to stop in case the baby gets injured. The confines of the Voxy left the accused with few options but to respond to the assault by Kaisara.
87. Finally, prosecution has also not disproven beyond a reasonable doubt that the force the accused used was no more than is necessary to prevent the assault or repetition of it for the reasons earlier mentioned. Prosecution has also therefore not negated the defence under subsection 17(6).
88. There is no doubt that the accused assaulted Kaisara. The Prosecution however has failed to prove the first element of the offence manslaughter, that is, the accused carried out an unlawful assault. For completeness, I will turn to consider the second element and that is that the application of force by the accused caused Kaisara’s death.

Identification of Deceased and Cause of Death:

89. Prosecution concedes that there is no ‘chain evidence’ of identification of Kaisara to either Dr Enosa or Dr Tong. However, prosecution submits that there is sufficient evidence before the Court “to draw the conclusion that the same person that was assaulted by the defendant was the same person to whom the medical evidence refers” (paragraph 6.1.2, 6.1.2.1 – 6.1.2.5 Supplementary Submissions). Prosecution also submits that identification of Kaisara was not put in issue, and that this was required by section 76 of the Evidence Act 2016.
90. Counsel for the accused says that it is for the prosecution to prove the identification of the alleged deceased beyond a reasonable doubt. The accused submits that there was no “chain evidence” identifying Kaisara as being person the allegedly examined by Dr Enosa and the subject of the CT scan and report by Dr Tong. What accused counsel is really saying is that he does not dispute that the medical reports refer to Kaisara Tagatauli but that in the absence of “chain evidence” of identification, the weight that can be placed on that identification is minimal. As there was no chain evidence nor any assertion of chain evidence by prosecution to be contradicted, there was no duty to cross-examine. Section 76 of the Evidence Act 2016 is not triggered.
91. Exhibit P4 “Report of Medical Doctor to Coroners” states “Kaisara Tagatauli M/33 yrs Faatoia”. The medical report of Pauli Dr A Pau Enosa Exhibit P5 dated June 6th, 2017 states “Medical report; Mr Kaisara Tagatauli D.O.B 31/05/1983 NHN; 1103-6477”. The medical report of Dr Tong dated 6 June 2017 (Exhibit P6) refers to “Mr Kaisara Tagatauli” and “NHN 11036477” and date of birth “31/05/1983”.
92. There is no evidence that any family member identified Kaisara Tagatauli to either Dr Enosa or Dr Tong. In his evidence, Dr Enosa was shown exhibit P3 which are photos of a person examined by him. Exhibit P3 however was not shown to Leute, Malua or Uelese Tagatauli to enable the identification of the person examined by Dr Enosa as Kaisara Tagatauli through use of the photos.
93. Prosecution submits that it is sufficient to rely on the insertions by Dr Enosa of the name “Kaisara Tagatauli” in exhibit P4 and exhibit P5 as identification of Kaisara Tagatauli. Prosecution further submits that there is identification with exhibit P6, stating “Kaisara Tagatauli”.
94. With respect, there is no evidence about how Dr Enosa identified “Kaisara Tagatauli”. There is also no evidence that the body of the person shown in exhibit P3 is “Kaisara Tagatauli”. Exhibit P3 was not shown to Leutu, Malua or Uelese Tagatauli, a step that may have remedied the failure to identify Kaisara Tagatauli through the chain evidence. In the circumstances, I am not satisfied that (a) the person examined by Dr Enosa is “Kaisara Tagatauli”; and (b) that the injuries that Dr Enosa observed were injuries to “Kaisara Tagatauli”.
95. Whilst the reports have been admitted into evidence, the real question is whether that evidence satisfies me beyond a reasonable doubt that the person examined by Dr Enosa was Kaisara Tagatauli. On the evidence, I am not so satisfied.
96. Even if it was established beyond a reasonable doubt that the person examined by Dr Enosa was Kaisara Tagatauli, I am not satisfied as to the cause of death. In this respect, Dr Enosa’s findings on cause of death were materially based on the CT scans and report of Dr Tong. Dr Tong gave no evidence that he physically examined or even saw the body of the deceased. Dr Tong was also not shown exhibit P3 to confirm that the body viewed by Dr Enosa was the same body viewed by him, if indeed Dr Tong viewed the body at all.
97. Also highly unsatisfactory in Dr Tong’s evidence is that the details of the NHN number, name, sex, date of birth and village of residence on the CT report was not entered by him. Dr Tong was cross-examined on this point and his evidence was quite clear – he was not sure who entered these details. Whoever entered Kaisara’s details on the report was not called to give evidence to confirm identification.
98. Dr Tong’s evidence raise real doubts over the identification of Kaisara in his reports and whether they in fact they relate to Kaisara Tagatauli. As Dr Tong’s report formed the basis upon which Dr Enosa’s final opinion as to cause of death was based, I cannot be satisfied as to cause of death stated by Dr Enosa. Dr Tong’s evidence was entirely unsatisfactory in terms of identification of the body subject to the CT scan and this simply exacerbates the problems associated with the prosecution’s medical evidence.
99. Accordingly, I am not satisfied as to the identity of the deceased in the medical evidence. As a consequence, I am not satisfied beyond a reasonable doubt that any injuries inflicted by the accused caused the death of Kaisara.

Section 76 – Evidence Act 2016:

100. Finally, prosecution submits that if identification of the deceased was in dispute, the accused by virtue of section 76 of the Evidence Act 2016 was required to put that to the relevant prosecution witnesses. Section 76(1) relevantly requires that in any proceeding, a party must cross-examine a witness on significant matters that:
101. Firstly, the obvious point in respect of Dr Tong whose CT scan report and comments formed the basis of Dr Enosa’s opinion on cause of death was cross-examined about the details about who inserted the NHN number, name. sex and village of residence to exhibit P6. He said it was not him. Section 76 cannot be said to be triggered.
102. Secondly, in respect of Dr Enosa, he gave no chain evidence of identification of the deceased body that he examined. Furthermore, no other witness gave any evidence identifying Dr Enosa as having been the examining doctor who saw Kaisara. Whilst the identification of the deceased is significant and in issue, no evidence was therefore led about identification of the deceased to Dr Enosa from Dr Enosa or any witness. It cannot therefore be said in my respectful view to be contradictory to Dr Enosa’s evidence and the duty to cross-examine Dr Enosa under section 76(1) is not triggerred.

Result:

103. Prosecution has failed to prove the charge beyond a reasonable doubt. Accordingly, the charge against the accused is dismissed.

JUSTICE CLARKE

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