Police v Leapai [2019] WSSC 41 (7 June 2019)

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Case name:	Police v Leapai

Citation:	[2019] WSSC 41

Decision date:	7 June 2019

Parties:	POLICE v PAUL LEAPAI male of Malie and Vaitele.

Judgment date(s):	7 June 2019

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- I am satisfied that the Accused caused serious bodily injury with intent to Vailepa and Timoteo as charged. I am also satisfied that the charge of being armed with a dangerous weapon has also been proven beyond a reasonable doubt. - The Accused is remanded on the same bail conditions to re-appear on Wednesday, 3rd of July 2019 at 12.30pm for Pre-Sentence Report, Victim Impact Report and Sentencing.
Representation:	F Ioane for Prosecution M Lui for the Accused

Catchwords:	armed with a dangerous weapon – grievous bodily harm

Words and phrases:
Legislation cited:

Cases cited:	Police v Papalii [2011] WSSC 138 Police v Lima [2014] WSSC 31 Nauer v Attorney General [2012] WSCA 8 Police v Vitale [2017] WSSC 137

Summary of decision:

[2] Prosecution called seven (7) witnesses. These witnesses were Auuaola Vailepa Pili (“Vailepa”), Timoteo Ropati (“Timoteo”), Fuatino Vailepa, Elizabeth Timoteo, Eka Faamoana, Esther Vaana and Fetu Siaifoi.

[3] For the Accused, he elected to give evidence. Natasha Leapai, Samuelu Posui and Vatau Posui also gave evidence for the defence.

[4] The prosecution must prove the charges beyond a reasonable doubt. Informations S356/18 and S358/18 (assault grievous bodily harm) are brought pursuant to section 118(1) of the Crimes Act 2013 (“the Act”). The prosecution must prove beyond reasonable doubt:

[5] In terms of the armed with a dangerous weapon charge, the prosecution must prove beyond reasonable doubt that:

[6] Information S358/18 is particularized to allege that “at Fasitoo-uta on the 23rd day of December 2017, the above-named defendant (Paul Leapai) of Malie and Vaitele with intent to cause grievous bodily harm to Timoteo Ropeti, male of Fasitoo-uta, caused actual bodily harm.” (emphasis mine)

[7] That the Accused caused ‘actual bodily harm’ is not an element of the offence under section 118(1) of the Act. For the purposes of section 118(1), the Accused must cause either “grievous bodily harm to another person, wounds, maims, disfigures, or causes grievous bodily harm to that other person.” It is not disputed by the Accused that he did cause wounds that are grievous in nature against both Vailepa and Timoteo (Closing Submissions, 25/02/2019 at paragraph 2). Accordingly, information S358/18 is amended by deleting the words “caused actual bodily harm” and inserting the words “caused grievous bodily harm”. I am satisfied that the evidence at trial and the concession made by counsel for the Accused is appropriate and there is no prejudice to the Accused.

[8] Section 2 of the Act defines grievous bodily harm to mean “serious bodily harm.” In Police v Papalii [2011] WSSC 138 (3 October 2011), Sapolu CJ dealt with the meaning of grievous bodily harm under the Crimes Ordinance 1960 (repealed) and stated at paragraphs 31 and 32:

[9] In Police v Lima [2014] WSSC 31 (30 May 2014), Malosi J made the observation however at paragraph 32:

[10] The Accused has raised self-defence pursuant to subsections 17(2), 17(3) and 17(6) of the Act. I will also address subsection 17(1) because that may also apply given the submissions for the Accused (see commentary below at paragraph 15). The onus to prove that one or more of the legal ingredients of self defence is lacking is with the prosecution (Nauer v Attorney Geneal [2012] WSCA 8 (1 June 2012)).

[11] In Police v Vitale [2017] WSSC 137 (11 August 2017), I considered the background to the self-defence provisions in section 17 and some relevant authorities on self-defence. I will not recite those here but I apply that law in this judgment.

[12] The key events in this trial are those alleged to have occurred at Fasito’o-uta in the early morning of Saturday 23rd December 2017.

[13] It is not disputed by the Accused that (a) the Accused; (b) caused grievous bodily harm to both Vailepa and Timoteo; and (c) he inflicted those injuries using a machete. What is disputed by the Accused case is that in doing so, he acted in self-defence; he did not intend to cause grievous bodily harm; and the prosecution has failed to disprove self-defence beyond a reasonable doubt.

[14] The prosecution and defence evidence concerning the events of the 22nd December and morning of the 23rd of December 2017 are quite different in key respects, particularly in terms of the circumstances in which the Accused struck Vailepa and Timoteo with the machete. It is accepted by counsel for the Accused that if I accept the prosecution narrative, self-defence does not arise on the prosecution facts.

[15] There was a significant amount of factual evidence in these proceedings. I do not propose to set out all the evidence of all the witnesses but refer to some of the key parts of each case to set out generally the factual circumstances asserted by the defence and that for prosecution. Set out in the judgment are also some of the relevant events prior to the Accused striking Vailepa and Timoteo with the machete as it is relevant to my findings of the Accused’s state of mind when he went to Fasitoo-uta.

[16] The Accused runs a lawn mowing business. He wanted to buy pigs for his work Christmas party and asked his employee Eka Fa’amoana (“Eka”) to find the pigs.

[17] Vailepa lives at Fasitoo-uta. He is a school teacher but also sells pigs. On Thursday 21st December 2017, Eka approached Vailepa at Fasitoo-uta and asked if Vailepa had two pigs for their work Christmas party. Eka gave Vailepa the Accused business card and the Accused and Vailepa spoke on the phone. Vailepa and the Accused discussed the price of pigs and their arrangements. According to Vailepa, he told the Accused he could not slaughter the pigs until they had been paid for.

[18] The next evening on Friday 22nd December, the Accused went to Fasito’o-uta to Vailepa’s home together with Eka and the Accused’s two nieces. Further discussions between Vailepa and the Accused occurred and $500 was then paid by the Accused to Vailepa for the pigs.

[19] According to Vailepa, after he and the Accused had reached agreement on the price and the pigs, the Accused asked Vailepa to clean (slaughter) the pigs and he told the Accused he could do so for a fee. Vailepa said that the Accused however offered for Eka to remain behind and help with the cleaning of the pigs and so Eka stayed and helped.

[20] The cleaning of the pigs took some time. After it was done, Vailepa rang the Accused that it was finished. The Accused then asked Vailepa if they could deliver the pigs and Vailepa agreed to do so for $50.00. Vailepa, Eka, Timoteo and Lepupa then drove from Fasitoo to Vaitele. When they reached Faleasiu, Vailepa received another phone call from the Accused saying that the pigs should have already been there as they needed to be taken to Taro King. Vailepa says he told him to be patient and that is why he had told the Accused to come and get the pigs himself.

[21] When they reached Malua however, the Accused again called Vailepa and this time, his tone had changed. Vailepa said in his evidence:

“O iina la na pei e sui ai le tone ma le talanoa atu a Paul ia te au faimai “kua kaea kele au puaa ua leva na faatali atu”, ou fai atu onosai mai lou uso o le mea lena na fai atu ai ete onosai mai e leai foi se vave ma se saoasaoa ae ua faatafa lena o le taavale i Malua.”

[23] In his evidence, Eka said that when he arrived at Vaitele with the pigs, the Accused came out to him with a machete but was restrained by his wife. He was asked where Vailepa was. In his evidence, Eka said that he had told the Accused he was at Malua where their car had broken down. He asked where the pigs were and was told it was in the boot of the car. When he looked at the pigs, the Accused said they smelt of kerosene and it was past the time for delivery to Taro King for cooking. The Accused then went to his car with the machete, placed it in the boot and left. He could see because the lights of the shop were shining. The Accused left with his son in the pick-up, who I accept was mistakenly a reference to Samuelu. He said the time was Friday night Saturday morning somewhere around 2.00am.

[24] When cross-examined about events at Vaitele, Eka confirmed that the Accused had come to him with a machete. His evidence however when questioned about his prior statement to Police identifying the Accused as having come to him also with a gun was that:

“Dc ioe a lea sa fai lau mau faimai na oso atu Paul ma le sapelu a lea foi e tau atu i lau faamatalaga e ese foi le mea sa e faamatalaina i leoleo e faapea na oso atu ma le fana

Wit o le fana na ou vaai o sau Paul ma le fana i le taimi lea ua matou i fafo ma le taavale

Dc ua toe sui foi la lau faamatalaga lea ua fai? Na ou fai atu lelei a pe nao le sapelu na alu atu ma Paul a lea ua toe sui foi lau mau

[25] According to Vailepa, he and Timoteo returned home after Eka took the pigs to the Accused. They returned home, continued to drink and play billiards. After about half an hour, a car arrived and a woman approached asking where the guy is that owns the pigs. Vailepa said he identified himself and asked if something was wrong. She said she had come to return the pigs and get their money. In his evidence, Vailepa said:

“Ou fai atu vaai tina oute le malamalama poo ai oe ae faimai o lo’u toalua lea na sau e faatau puaa ou fai atu ok la, susu lelei mai ii i le fale e fai se tataou tala o a’u lea oute le malamalama poo le a le mea lena ete sa’i mai ai. Na tetele atu a le fafine faimai pau a le mea avatu le tupe ae toe faafoi mai a’u puaa ona sa’i a lea o le fafine ou fai atu laia laa ova lou le mafaufau ae faapea mai le tala a le fafine ia te au o lea laa matou o e aumia leoleo. Ou faapea atu laia ua lelei tina e sili ai lena, e sili ai le tou susu i Faleolo pe toute o i Afega e fai poo fea le pou e pito sili ona lata mo oe a lea la’u faatali atu ae agai e amai leoleo e faigofie ai ona fai se tatou tala.”

[26] The accused wife Natasha left and Vailepa said he then waited for Police to come with her. He then saw two cars approaching believing one was a Police car. The cars however were that of the Accused and the second car following being that of the Accused’s wife, Natasha Leapai.

[27] The Accused car came in and parked behind Vailepa’s taxi which was in the garage that was connected to the billiard fale. The Accused came out of his car and said to Vailepa, I have come to return your pigs and you repay my money. According to Vailepa, he asked the Accused to come into his house and so they can properly discuss the matter. The Accused complained that the pigs were no good so Vailepa asked where Eka was. He said it was difficult to calm the Accused down and all he said was that he only wants one thing, the return of the pigs and the repayment of his money.

[28] Vailepa said he asked the Accused to come into the house so that they can discuss the matter properly but the Accused was very angry. He came out to see the Accused. The Accused went into his car and went to the driver’s side. He told the Accused to bring the pigs and he will have the youngsters clean the pigs. He said that when he was speaking with the Accused, he was standing next to the car on the Accused’s side. That was when someone came from the passenger side of the Accused car, went past the front of the engine and hit Vailepa. In his earlier statement to Police on the 25th December 2017, Vailepa had said this person was Eka. Vailepa described being struck and his injury and actions as follows:

[29] As they were fighting with this person, Vailepa then describes being struck as follows:

“Wit o i la i le mea lea na pau ai Timoteo na ou oso atu i le uso lea na tu’ia a’u ma fufusu loa foi ma iu ai ina pau ai le tama lea. O le taimi la lena lea oute fao atu i le tama lea ae ou lavea loa ae ou faalogoina loa ua ou lavea ua lavea lo’u patua. Oute leiloa poo le a le mea na ou lavea ai ae na ou lagonaina le tiga o le maini o le lavea na ou lavea ai ona ou savali ese lea ma i i le mea lea na iai le tama lea na matou fusu. Oute savali ese mai ou toe tilotilo mai i tua o lea e folo atu le tagata ia te au.”

[30] In his statement to Police on the 25th December, contrary to his evidence in Court where he did not identify the weapon used to cut him, Vailepa said that the man (the Accused) had cut him with a sapelu (machete).

[31] Vailepa identified the Accused as the person following him. As he went towards a fale he described as their fale tuai and before reaching the pae ma’a, he was struck again, this time on his left shoulder. Vailepa described the second occasion as follows:

“Wit ia ina ua uma lena ona ou faasaga mai ou toe faasaga loa oute alu, oute lei au la i le paema’a ae ou toe lavea loa i lo’u lavea lona lua lea ia Paul. O iina la na ou toe liliu mai ai loa ae ou iloa mai ai loa ua fuli atu le tua o Paul ua savali ese mai alu atu loa ta Timoteo.”

[32] He saw the Accused then turn around and walk away from him. He then saw the Accused strike Timoteo. He says he could see it was the Accused because the outside lights of the house were on as well as Paul’s car lights.

[33] In her evidence, Fuatino Vailepa describes attempting to calm her father down at Fasitoo and trying have her father return to the house. She said that what caused her father to become angry was when he was next to the Accused’s car with her, they were almost struck by the second car. Her father Vailepa was then struck by another male. Timoteo then punched that male and then Vailepa and Timoteo then beat him up. The man being beaten fell down. She saw the male who had come to the garage earlier (ie. the Accused) come out of the car but did not see where he went. He however returned with something in his hand which she believed was a stick. She called out to her father, the man with the stick struck down towards Timoteo’s legs and missed. He then struck Vailepa’s back in the shoulder. Vailepa then left to the pa’e ma’a. The male followed Vailepa and again struck Vailepa in the back at the ‘tail’. He then came and struck Timoteo.

[34] In his evidence, Timoteo says that he had been drinking since 10.00am. In terms of the injuries he suffered at Fasito’o, he said he didn’t see Vailepa being struck by Paul at the time they were beating the male (ie. Samuelu). He saw Vailepa leave and the Accused chasing (tuliloa) Vailepa. He did not catch Vailepa so he returned and came back and struck Timoteo in the back.

[35] Vailepa and Timoteo both attended Leulumoega District Hospital that morning and were examined by Registered Midwife Fetu Siaifoi. In her Report dated 1 February 2019 (exhibit P1), she reported that she saw Vailepa on the 21st of December 2017 at 1.10am. She noted two lacerations as follows:

“A horizontal lacerated wound on the kidney region on the left side of back. It was 18cm long and 4 cm deep.”

[37] According to the Accused, he had ordered two pigs from Vailepa through Eka. The Accused and Vailepa had a phone discussion at least a day prior to Friday 22nd December where the Accused ordered the two pigs, they were to be slaughtered, cleaned and picked up on Friday 22nd December 2017 after work. The agreed price was $200 per pig.

[38] After work on Friday 22nd December, the Accused, his two nieces and Eka went to Fasito’o to pick up the pigs. Vailepa however had not prepared the pigs because Vailepa had told him he had looked at the pigs again and $200 per pig was not appropriate. He also insisted that he had to be paid first before slaughtering the pigs. Asked by the Accused what the price was then, he was told $250 per pig. According to the Accused, there was nothing wrong with that, he will pay the $250 and if they have not been cleaned, to catch and shoot them and put them on his truck. He was then told by Vailepa that the second pig belongs to his brother-in-law and he had not come home yet. Vailepa told him if Eka could stay, they will clean the pigs and deliver them to his house. The Accused said he had told Vailepa that the pigs were required before 10.00pm as they had been booked at Taro King to cook.

[39] The Accused returned home. At approximately 9.45pm, he called Vailepa. Vailepa told him that the pigs were now in the car and they were coming to deliver it. When around 10.30pm the pigs had still not been delivered, the Accused again called Vailepa and he was assured that they were on their way.

[40] At approximately 11.00pm or a little after, Eka arrived in a taxi with the pigs and stopped in front of their shop. Natasha greeted Eka. Samuelu and the Accused then came out and saw the pigs in the boot of the taxi. According to the Accused, he was not angry. According to Natasha, Eka was told off by the Accused. The pigs smelt of kerosene, were not properly cleaned and inedible. According to Samuelu, the Accused was angry.

[41] Eka was asked where Vailepa was and he told the Accused that their car had broken down at Malua. The Accused told Samuelu, Vatau and Natasha to put the pigs in the freezer. The Accused then went to the back, got his car key, went to his car which was at the back of the shop and he drove off. Samuelu hopped into the back tray of the truck.

[42] Natasha told Vatau who was looking after the shop to close up the shop, get the two the nieces and for them follow the Accused. In explaining her reason for going to Fasitoo, Natasha explained:

[43] When the Accused and Samuelu reached Malua, Vailepa was not there. They continued on to Fasito’o but did not take the correct turn to Vailepa’s house. Meanwhile, Natasha, Vatau and the two nieces arrived at Vailepa’s house before the Accused and Samuelu. The Accused’s car was not there. When they arrived, there were three men seen by Natasha, one standing and two sitting. Natasha said she spoke to the man standing and asked where the man was that sold the pigs to her husband. She said in her evidence:

[44] Natasha returned to the car with her nieces. Vailepa came to her at the car and told her he was not happy with what she said and she told him there was nothing wrong with what she said and to give their money back and the pigs would be returned.

[45] They then left Vailepa’s house but as they were leaving Vailepa’s drive way, they met up with the Accused’s car coming in the driveway. The Accused drove in and parked facing the garage. Natasha then turned around and followed the Accused and Samuelu and she parked facing the house. The Accused got out of his car and went to Vailepa. He saw Vailepa there with another man drinking. As he approached, a third man was also there who walked to the back of the garage. The Accused told Vailepa that he had come to get his money back and for Vailepa to pick up his pigs from his house at Vaitele. He told Vailepa that the price for the pigs he got was not appropriate, that the state of the pigs was unacceptable and they smelt of kerosene.

[46] According to the Accused, Vailepa replied that there was nothing wrong with the pigs and how they were cleaned. He then said to Vailepa to let it be then until tomorrow because he was intoxicated. He described Vailepa as appearing angry.

[47] After the exchange with Vailepa, the Accused returned to his car with Samuelu with the intention of leaving. He and Natasha reversed their cars with the cars then also directly facing eachother. The Accused evidence was that his wife’s car lights shone towards his car and his car lights shone towards her car.

[48] Vailepa at this time quickly came out of his house towards the Accused’s side of his car. His daughter was hanging onto him and trying to convince him to go back home. According to the Accused, she was saying to Vailepa “aua le fa’atupua se vevesi”. Vailepa was carrying a large rock which the Accused compared to the size of the box of tapes on the Registrar’s desk. The Accused said Vailepa came to the Accused car and asked the Accused if he is ‘fia ulavale’ coming back to his house at night. The Accused said he is not ‘fia ulavale’ and he came for return of his money and he would return the pigs. Vailepa then said to the Acuused to come out of the car “manu oute lei togiina oe i le maa.” At this time, one of the three men that were with Vailepa was standing at the car port but the Accused could not see the third man.

[49] Natasha whose car was facing the Accused car beamed her lights, distracting Vailepa. Vailepa called out to Natasha to turn off her lights because it was shining to where he was. She couldn’t hear Vailepa so he then left where the Accused was and went to Natasha’s car on the passenger’s side. The Accused, concerned for Natasha, came out of his car. At this time, the two men who had been with Vailepa walked down from the car port. The Accused however had followed Vailepa to Natsha’s car while Vailepa was carrying the rock. Vailepa went to the passenger side of Natasha’s car and called out to turn off the lights. Vailepa also then went to Natasha’s side of the car and threatened her with the rock.

[50] At this time, Samuelu had gotten out of the passenger side of the car and was standing at the front of the truck watching Vailepa and the Accused as they were near Natasha’s car. The other two men however walked from around the back of the Accused car and then hit and dragged Samuelu. Samuelu was beaten by these two men. In her evidence, Vatau said that Samuelu was dragged by one man, not two but a second did appear. Vatau says it was dark and she could not recognise the faces but then said that these two men were not Vailepa.

[51] While Vailepa was at Natasha’s car, Vatau and the two nieces then went to Samuelu’s aid. As Vatau approached his beating, she was told not to come over. She however ignored this and ran towards her husband to shield him by lying on top of him. This was when Vailepa then went back to the garage and the Accused said he then went to help Samuelu as did Natasha. In his evidence, the Accused said:

“Wit: a o lea ua ou faiatu ia Vailepa i le taimi lea e tuu i lalo le maa tei ua lavea sesi ae talanoa poo le a le mea e te finagalo ai- o le kaimi a la ga tatala ai le faitotoa o le taavale lea o loo iai lesi a’u niece ma Vatau- feosofi mai loa i fafo taufetuli atu e fesoasoani ia Samuelu lea ua fasi e tama ia e toa 2. Savali ese loa Vailepa ma ii toe foi i le car port ae ou foi mai loa ii ou fesoasoani ia Samuelu lea e fasi toa 2 ma o’u niece ia e vaovao ia le fasiga o Samuelu ae toe foi loa ia Vailepa i o le car port.”

[52] In her account of what occurred and Vailepa’s movements at this time, Natasha gave a different account of where the Vailepa went saying quite clearly:

“And then he’s measuring his throw towards my car and I’m sort of freaking out and I’m sort of gather my wits whether to take off and then I hear Paul say leave him alone and then I got scared for a moment and then I see this man being dragged across. Just being dragged behind Vailepa there was this man being dragged across and this guy beating this guy up punching, kicking, and hitting him with something and punching and kicking him. And then Vailepa turned away from me and went over that way where he was and then he started punching and kicking and then I could see a head and I could see it was Samuelu’s head and then I was going shit because I went to help him and when I ran the guy with the rock turned around and said if you come any closer I’m going to throw at you. I was panicing at anything that went at that time so I slipped and I was on the ground and I sort of scared because he had that rock ready to throw at me and then he turned and went back to where Samuelu was and then next minute I see him lift up the rock it was a big rock and he was going to smash Samuelu’s head because all I can see was rock Samuelu’s head, man holding the rock, Samuelu’s head and I thought he smashed the man’s head then I see something jump over on Samuelu to protect him then I realise that was Vatau later on that she had jumped on him to protect her husband.”

[53] Under further examination, Natasha continued when re-questioned on the point reiterating her earlier evidence saying:

[55] In her evidence, as she was shielding her husband, Vatau says that the men had picked up a rock and were hitting her and her husband with it.

[56] The Accused also intervened in the beating of Samuelu by punching a male with a rock that was beating Samuelu. The rock fell and the man beating Samuelu ran away and started throwing rocks towards them. At this point, Samuelu and Vatau got up and Vatau ran to Natasha’s car. Samuelu who was facing the Accused saw a man approaching the Accused with something long like a stick and he then called out that there is a person about to hit him. As the Accused turned, he saw a person (Vailepa) approaching with a machete in one hand and a rock in the other. As Vailepa prepared to swing the machete at the Accused, the Accused caught his hand and turned his back to Vailepa so that his hand was on the Accused shoulder, then the Accused pulled on it in order to force the release of the machete. This, according to the Accused submission was “a defensive stance aimed at disarming Vailepa.” Vailepa was forced to release the machete. Vailepa fell towards the ground. The Accused turned around and Vailepa “who had fallen down prepared to stand up and throw the rock again he was holding at Mr Leapai. It was then that Mr Leapai quickly reacted by swinging the machete and hitting Vailepa on the back of the shoulder, as he was still bent and had not managed to fully stand up.” (Defence Closing Submissions, para. 34.)

[57] The rock he was holding then fell to the ground. Vailepa then proceeded to pick it up again and he prepared to throw it again. The Accused ‘quickly reacted’ by swinging “the machete and hitting Vailepa on his lower back as he was still bent over from picking up the rock.” (Defence Closing Submissions, para. 35).

[58] At this time, Timoteo who had been earlier punched by the Accused reached for the same rock to try and throw it at the Accused. The Accused quickly swung the machete again hitting Timoteo on the left of his back, as he was also bent from picking up the rock.

[59] The Accused is a martial artist, kick boxer and boxer. I accept by his own account that he had been involved in those since 1998 to 2007 and that “it’s pretty good - make money out of it for a living”.

[60] For his 2017 work Christmas party, the Accused enquired with his employee Eka whether he could get two pigs for their party. There was a significant amount of evidence by both prosecution and defence witnesses around the arrangements concerning the buying and delivery of the pigs between the Accused and Vailepa. I do not need to determine all the conflicts between the prosecution and the defence witnesses on this part of the evidence. However, the key issue arising from this evidence concerns the Accused state of mind on that Friday night, 22nd December and Saturday morning 23rd December 2017.

[61] In his evidence, the Accused denied being angry about the delay in the delivery of the pigs and their state. In her evidence, Natasha Leapai also denied being angry about what had occurred, expressing instead disappointment.

[62] I do not accept the denials by either the Accused or by Natasha Leapai. More broadly, I found their evidence generally unconvincing, elaborate and calculated to minimize evidence that may be construed negatively for the Accused.

[63] I accept that when the Accused left Vaitele to go to Vailepa, he was angry. He was angry because the price of the pigs had increased from $200 to $250 per pig. I accept the evidence that Vailepa and the Accused argued over the price of the pigs and I do not accept as credible that the Accused accepted the higher price without dispute as he suggested. He was also angry because the pigs were not ready when he went there on Friday after work; he was angry because he had spoken by telephone to Vailepa about the delivery of the pigs but the pigs were still delivered after 10.00pm and late for cooking at Taro King. When the pigs did arrive, they were in a very poor state, badly cleaned and smelling of kerosene. They were inedible according to Natasha Leapai. The Accused told off Eka. Accordintg to Samuelu, the Accused was angry. As Samuelu said:

[64] The Accused then got his keys and left to go to Vailepa. He left quickly without much hesitation or thought because I am satisfied he was angry and he wanted to confront Vailepa and demand his refund. Not much could be done at that late hour and early Saturday morning about the pigs and their poor state. Had he not been angry and only wanted to calmly exchange the pigs for a refund, he could have waited until the daylight. At the very least, he would have taken the pigs with him in their poor state to show Vailepa and ask for his refund, yet he did not.

[65] When the Accused went to Fasitoo-uta, he was angry and he went to confront Vailepa. I reject the Accused evidence to the contrary that he was not angry.

[66] Having considered the evidence of both the prosecution and the defence, I also do not accept the defence version of what occurred at Fasitoo-uta in terms how the Accused inflicted the injuries to Vailepa and Timoteo.

[67] First, and as I stated previously, I found the Accused and Natasha’s evidence generally unconvincing and calculated to minimize evidence that may be construed negatively for the Accused. Indeed, in terms of the defence case of where Vailepa went after leaving Natasha’s car, the Accused said (see paragraphs 51 – 54 above) that Vailepa went to the car port. This is the area where a key contention for the defence is that Vailepa came from there with the machete. It is a key part of the Accused narrative placing Vailepa as later coming to the Accused with the machete.

[68] In her evidence however, Natasha Leapai clearly stated that from the cars, Vailepa went directly to the beating of Samuelu and participated in that beating (see paragraphs 52 and 53 above). She maintained this over a number of questions. This is consistent with the prosecution evidence but not that of the Accused, that is, Vailepa was involved in the beating of Samuelu. She however then subsequently modified her evidence in what I can only describe as in quite unconvincing fashion.

[69] Second, and linked to my first point in terms of the evidence of the Accused generally, I also found the Accused evidence rehearsed and exagerrated, particularly in terms of how it is contended the injuries were inflicted by the Accused on Vailepa and Timoteo. That evidence I set out in more detail below.

[70] Third is the location of the injuries to Vailepa’s back part of shoulder and middle of back and to Timoteo’s kidney region on the left side of back. I found highly implausible and not credible how these injuries were sustained in the way contended by the Accused. The evidence was in my view concocted for the facts to support the location of the injuries and a self-defence submission. I do not accept that the injuries were sustained in the way contended for by the Accused.

[71] In this context and according to evidence for and by the Accused, after Samuelu had been beaten, Vailepa ran towards the Accused with a machete in one hand and a rock in the other which the Accused likened to the size of the box of tapes on the Registrar’s desk in Court. Samuelu called out to the Accused about the person running towards him from behind, he turned and saw Vailepa and as Vailepa prepared to strike him with the machete, and then struck at him, he disarmed him. The Accused gave extensive evidence of how he says he disarmed Vailepa. In one description of how he disarmed Vailepa, he described grabbing hold of Vailepa’s hand, turning and then:

“he (Vailepa) flipped over and then he nearly fall and then I grabbed hold of the machete and it’s got hairs of the pigs so I assume that’s the machete they were using to clean up the pigs.”

“Wit: well o le self-defence, when you’re turning and that’s where he off balance and you’ll be able to take the weapons off the person and Vailepa was only 1 hand compared to my 2 hands was trying to take it off so I win the battle and I take the machete off him and he’s still holding the rock on the other hand. So from the time I grab hold on to the machete he turned and from the time he tried to exchange rocks to the right hand to throw and then that’s the time I stop him from the machete and then I got him- stop him, that’s where I got his shoulder.

[73] The Accused evidence was that in disarming Vailepa, he elbowed Vailepa’s ribs saying in his evidence:

[74] However, under cross-examination, the Accused said he did not elbow Vailepa in the ribs saying:

[75] When questioned by the Court, the Accused then again said that he elbowed Vailepa and also described the full incident striking Vaielpa and Timoteo in the following way:

[77] After striking Vailepa a second time with Vailepa facing the Accused as the Accused struck Vailepa the second time, the Accused described the rock to fall down as follows:

“the rocks still falling down right in front of him- between him and the other fella.”

[78] If the rock fell down in front of Vailepa, it is difficult to understand how the rock could have fallen between Vailepa and Timoteo as explained by the Accused.

[79] The Accused also appeared to change his evidence about elbowing Vailepa. Accepting his version however that he did elbow Vailepa in the ribs to disarm him of the knife in his right hand, it is difficult to believe that with the elbow to the ribs and being disarmed of the knife and falling or almost falling to the ground, Vailepa managed to hold on to the quite large rock in his left hand which the Accused compared to the box of tapes in the Court room.

[80] Nevertheless, despite holding on to the quite large rock in the left hand after being elbowed, ‘bending – just nearly falling’, it is also not credible nor do I believe that from bending position to the Accused, Vailepa would then exchange the ‘quite large rock’ from his left hand to right hand nor would he be able to throw it or move to throw it from that position at the Accused. Nevertheless, according to the Accused, Vailepa did so explaining “o lea ua exchange le maa e togi ai a’u- le taimi a la ga fesuiai ai loa laa togi a’u and then both at the same time- we both at the same time but I got him before he got me.” The evidence is simply not plausible or believable.

[81] The location of Vailepa’s injury at the back of his left shoulder is also very doubtfall able to have been caused by striking Vailepa in the way the Accused says he did and in the circumstances that he claims he struck Vailepa, that is, as Vailepa went to throw the rock at him.

[82] It is also not plausible, credible or believable that after striking Vailepa with a machete in the left side of the back of his shoulder causing a 4 cm deep laceration with shoulder bone to be seen described by the nurse as ‘huge’ in her report that Vailepa would then again go to pick up the quite large rock despite his significant and serious injury. Nevertheless, according to the Accused, after striking Vailepa the first time, the rock falls and Vailepa goes down and as bent down (punou) for the rock a second time exposing his back to the Accused that he is struck again in the back, this time, to the middle of Vailepa’s back. This is despite his other evidence where the Accused said that he inflicted the second strike as follows:

[83] The location of the second injury based on this part of the Accused evidence is not credible bearing also in mind Vailepa’s height as observed in Court.

[84] In addition to my comments above at paragraphs 77 and 78 above, Timoteo is said to then stand up and go for the same rock again but as he goes for the rock, he is then struck by the Accused to stop him from using the rock against the Accused. The Accused said in examination in chief that Timoteo was facing him when he struck him. This however was more ambiguous when questioned by the court. The injury to Timoteo is however a horizontal laceration in the kidney region on the left side again to his back. The location of the injury on Timoteo given the mechanics of how the injury was said to have been inflicted and the injury being horizontal in nature I found rehearsed, implausible and also not credible.

[85] The injuries suffered by Vailepa and Timoteo I find are in fact explained by the evidence of Vailepa, Fuatino, Timoteo and those of the prosecution witnesses. In saying this, I accept that there are discrepancies between the prosecution witnesses evidence but this in part is explained by the state of Vailepa and Timoteo’s intoxication, the lighting they described and the nature and speed of the events that occurred that night. They however gave an account of the events that I found was credible and honest though mistaken in certain parts.

[86] I accept that Vailepa had gone to the Accused truck as the Accused and Samuelu went to leave Fasitoo-uta. There, Vailepa engaged in words with the Accused about what had just transpired. I accept that this conversation was heated, including by Vailepa and that at the same time, Fuatino was trying to take her father back to the house. Samuelu came out of the Accused truck and I accept that Samuelu went to Vailepa and struck him. As a result, Timoteo who was also present then assaulted Samuelu. Vailepa then joined in and together with Timoteo, they beat Samuelu. As Samuelu was being beaten on the ground, it was then that the Accused came out of the truck, retrieved the machete from the back of his truck and struck Vailepa with the first strike. I accept Vailepa’s evidence that this first strike hit his back. It was a serious injury as observed by nurse Fetu Siaifoi and Vailepa is best placed to recall where he was first struck. After being struck on the first occassion, Vailepa left and went towards their house and he was followed by the Accused. As he followed, the Accused again struck Vailepa with the machete, this time hitting his shoulder. Timoteo also saw the Accused following Vailepa, though he did not observe the Accused strike Vailepa. This is likely explained by Timoteo’s state of intoxication and his being involved in beating Samuelu. As he returned, the Accused then struck Timoteo in his back and he then left. This strike being observed by Vailepa, Fuatino and Timoteo himself.

[87] The prosecution evidence credibly explains how Vailepa and Timoteo suffered the injuries they suffered and where those injuries were located.

[88] I have touched on the evidence from the defence explaining when Vailepa is alleged to have gone to get the machete. Given what I have said earlier, I do not accept that Vailepa went to the garage area to get the machete. There is however another part of the Accused evidence which I had my serious doubts over and that was his explanation of the pigs hair on the machete. The Accused in his evidence said that the machete was brought by Vailepa. In giving this evidence, he linked the machete to that presumably used to slaughter the pigs by saying that when he disarmed Vailepa of the machete, “I grabbed hold of the machete and it’s got hairs of the pigs so I assume that’s the machete they were using to clean up the pigs.”

[89] Under cross-examination, he elaborated further adding that after the incident, there was fur (fulufulu) from the machete still on his hand, and from the smell “a oute leiloa- manogi a foi nei fulufulu puaa o loo piipii i le tino o le gaifi ina ua uma le faalavelave i le po lea o loo pipi ii o’u lima ua alai ona ou iloa- leiloa poo le gaifi lea ga faaaoga i le faamamaina o puaa ia ga aumai.”

[90] I found the Accused explanation of the pigs hair to be implausible and calculated to support his rejection of the prosecution evidence that it was he that brought the machete to Fasitoo-uta. Whilst Eka’s evidence was in some material parts uncertain and unreliable, I however do accept as reliable his evidence that he observed the Accused place the machete in the back of his truck as he left Vaitele. Eka’s evidence was supported by Elizabeth Timoteo. When she came to see the commotion and remove her father from it, she saw a man in the car come out of the car, go to the back of the car and grab something long from the back. I accept that the man she saw was the Accused and that what he grabbed from the back of the truck was the machete that Eka had said the Accused placed there when he was leaving Vaitele.

[91] In the defence case, much was made of whether or not Eka could have observed the Accused place the machete in the back of the truck as Eka said he saw. I am satisfied that he was able to see it and did see the Accused do so. In his evidence, Samuelu said that you could see the truck from the front of the shop as follows:

[92] In all, I found the Accused to be a calculating and therefore unreliable witness whose account of the events on the 23rd of December 2017 was elaborate, self-serving and not credible. Similarly, I found Natasha Leapai’s evidence as also unreliable, unsatisfactory and tailored to support her husband. She downplayed evidence that may be detrimental to the Accused’s case, such as whether he was angry when he left Vaitele. For Samuelu and his wife Va’atau, I do not accept their account as credible or reliable. On the evidence, they appear to follow the directions of the Accused and Natasha Leapai as they did in the early hours of the 23rd of December 2017. More relevantly however, the altercation turned violent on the prosecution evidence because of Samuelu. Whilst their had certainly been a heated exchange of words between Vailepa, the Accused and Natasha, there had been no violence. I accept however that Samuelu struck Vailepathereby triggering the altercation. The violence that morning was initiated by Samuelu. It was then that the Accused engaged in that physical altercation started by Samuelu by taking the machete and striking Vailepa and Timoteo.

[93] Samuelu and Vatau have reason to contest the prosecution case, lived together with the Accused and his wife on the same property at Vaitele and I do not accept their evidence in the material parts relating to what occurred at Fasitoo-uta and the inflicting of the injuries as truthful.

[94] In terms of the other prosecution witnesses, I found the evidence of Esther Vaana unreliable and vague. In terms of Elizabeth, I accept that she attempted to give her evidence honestly but that she was mistaken in some material parts of her evidence about how events unfolded and when Vailepa was struck and when Timoteo was struck. Her evidence however about about the man coming out of the car, going to the back and coming with a long item fits in with and is consistent with the Accused coming to Vailepa and Timoteo beating Samuelu and then carrying out his assault there. It also is consistent with Eka’s evidence that the Accused brought the machete to Fasitoo-uta with him.

[95] In terms of Fuatino, I found her to be a compelling and a credible witness although in saying this, I also accept that she was mistaken in terms of which injury was sustained when by Vailepa. She however in my assessment endeavoured to give an accurate account of the events that early morning as she observed them to be and she had not been drinking alcohol. She explained how she intervened and tried to get her father back to their house.

[96] Fuatino’s evidence is in a number of respects consistent with the evidence of the defence witnesses in terms of her intervening with her father Vailepa. Where there are inconsistencies however, I accept and prefer her evidence and explanation of her involvement to that of the defence witnesses.

[97] For the reasons that I have set out and having considered all the evidence that I heard, I am satisfied that the Accused caused serious bodily injury with intent to Vailepa and Timoteo as charged. I am also satisfied that the charge of being armed with a dangerous weapon has also been proven beyond a reasonable doubt.

[98] For completeness, I have decided to consider the alternative self-defence argument put forward by the Accused briefly based on the defence’s generally asserted facts. In this case, I will address subsections 17(1), (2), (3) and (6).

[99] First, I address subsection 17(1) in terms of the assault on Vailepa. I am satisfied that the evidence establishes beyond reasonable doubt that when the Accused struck Vailepa twice, he intended to cause grievous to him bodily harm. The submissions on behalf of the Accused is that because he acted in self-defence, he could not have formed the intention to cause grievous bodily harm, that is, serious harm. I disagree. The Accused took a machete and as his own evidence demonstrated, intentionally used the machete to twice strike Vailepa. By using the machete and in striking him with it, I am satisfied that he intended to cause Vailepoa serious harm. This is further borne out by the injuries suffered by him.

[100] In the circumstances where Vailepa was in my view in a vulnerable lower body position compared to the Accused and he being significantly intoxicated having consumed alcohol over a very long period of time, he also did not pose a serious threat to the Accused once disarmed of the machete in the circumstances. Relevant to the proportionality of the Accused response to the alleged threat from Vailepa is that the Accused is a boxer, kick boxer and martial artist good enough to make a living out of it overseas. With those trained skills and having disarmed an intoxicated Vailepa of the machete, his use of the machete in the circumstances even if Vailepa held a rock as alleged was substantially more than necessary for the purposes of self-defence.

[101] In terms of section 17(2), I will address each of the two alleged strikes at Vailepa with the machete. In terms of the first strike hitting Vailepa’s shoulder, if I accepted the Accused evidence (which I do not), I do not accept that the first injury was caused by the Accused 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. Vailepa had been disarmed of the machete and did not then in his state pose a serious threat to the Accused. I am also satisfied that it is disproven beyond reasonable doubt that the Accused believed, on reasonable grounds that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm. Vailepa is in a lower position to the Accused, vulnerable in terms of the lower body positioning to the Accused and intoxicated. He could not pose a serious threat to the Accused and in those circumstances and with the Accused boxing, kick boxing and martial arts background, he could not reasonably believe that he could not otherwise preserve himself except by using the machete to strike Vailepa in the back of his shoulder. The force was in the circumstances substantially more than necessary for the purposes of self-defence.

[102] In terms of the second machete strike to Vailepa’s back, that injury is more blatant. After striking Vailepa on the first occasion to the left back part of the shoulder, Vailepa drops the rock. Vailepa is then said to have gone for the rock a second time and as he gets the rock and moving upwards, according to the Accused, he’s going to throw it, the Accused then strikes him the second time, this time however in the lower back.

[103] In terms of subsection 17(2), I am satisfied that it is disproven that the Accused caused that second injury under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made of with which Vailepa pursues his purpose. First again, Vailepa was in a lower more vulnerable position as I have earlier touched on. He was intoxicated and in a vulnerable position and even with the rock in his hand, he did not pose a serious threat to the Accused such as the Accused would have a reasonable apprehension of death or grievous bodily harm. Second, the Accused could not have believed on reasonable grounds, that he could not otherwise preserve himself except by striking Vailepa with the machete in the back. This returns to his background in boxing, kick boxing and martial arts with skills of such a degree that he could earn a living from it. It also takes into account Vailepa’s body position and state of intoxication and in terms of this second strike to Vailepa’s back, Vailepa was already seriously injured from the machete wound to the shoulder. Third, I am also satisfied that it is disproven that the force used was no more than necessary for the purposes of self defence. In this context, with Vailepa’s lower and more vulnerable body position compared to Vailepa, his state of intoxication and his already serious injured from the first machete strike, the use of the machete to strike Vailepa in the lower back was more than necessary for the purposes of self-defence.

[104] In terms of subsection 17(3), if it applied, which it does not because on the defence evidence, there was no provocation by the Accused, for the reasons that I have earlier stated, I am satisfied that subsection 17(3)(a) has been disproven for the reasons earlier mentioned. In terms of subsection 17(3)(b), the Accused used a machete to assault Vailepa and for the reasons that I have also already touched on, I am satisfied that he intended to do serious harm to Vailepa when he struck him with the machete. Third, he never declined further conflict and quitted or retreated from it as far as practicable. Indeed, the Accused could have retreated from the situation entirely once he had disarmed Vailepa of the machete yet he did not. I am also satisfied as to section 17(3)(d) as having been disproven.

[105] Turning to subsection 17(6), the Accused submits that this section applies given that it refers to “in defence of the person”, that is, the Accused. It is raised in terms of the assault on Timoteo. In my respectful view, this section does not apply and is disproven nevertheless on the basis that:

(i) In terms of subsection 17(6)(a) and (b), there is no evidence of a person under the Accused’s protection as those two subsections expressly refer to in terms of Timoteo. Second, I am satisfied that the Accused was not under any reasonable apprehension that Timoteo pursued his or her purpose to cause him death or grievous bodily harm nor that when the Accused inflicted the injuries on Timoteo, the Accused believed on reasonable grounds that he could not otherwise preserve himself or anyone under his protection. Timoteo, similar to Vailepa, was intoxicated, in a vulnerable body position and in my view even with a rock, did not pose a serious threat to the Accused such that he could not otherwise preserve himself; and

(ii) I am also satisfied that given Timoteo’s condition and his vulnerable body position, the force that the Accused used was more than necessary to prevent an assault by Timoteo.

[106] As I have said, I am satisfied that the Accused caused serious bodily injury with intent to Vailepa and Timoteo as charged. I am also satisfied that the charge of being armed with a dangerous weapon has also been proven beyond a reasonable doubt.

[107] The Accused is remanded on the same bail conditions to re-appear on Wednesday, 3rd of July 2019 at 12.30pm for Pre-Sentence Report, Victim Impact Report and Sentencing.

Supreme Court of Samoa

Police v Leapai [2019] WSSC 41 (7 June 2019)