Police v Tapusatele [2019] WSSC 94 (22 November 2019)

SUPREME COURT OF SAMOA
Police v Tapusatele [2019] WSSC 94

Case name:	Police v Tapusatele
Citation:	[2019] WSSC 94
Decision date:	22 November 2019
Parties:	POLICE v TAFESILAFAI IOSEFA TAPUSATELE male of Salesatele Falealili
Hearing date(s):	01 & 13 November 2019
File number(s):	S897/19, S900/19, S1015/19
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- Your defence of self-defense is rejected I find you are guilty on all the charges and you are now to be remanded for a pre-sentence report and to a date for sentence.
Representation:	A Matalasi for prosecution L Tamati for defendant
Catchwords:	Armed with a dangerous weapon – grievous bodily harm – self defense
Words and phrases:	Specially challenged deaf and dumb mute – satisfied beyond reasonable doubt
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAFESILAFAI IOSEFA TAPUSATELE male of Salesatele Falealili.
Defendant

Counsel:
A Matalasi for prosecution
L Tamati for defendant

Hearing: 01 & 13 November 2019

Ruling: 22 November 2019

ORAL DECISION OF THE COURT

1. The defendant is charged that on the 04^th of April 2019 at Salesatele Falealili, he was armed with a dangerous weapon namely a bush knife. He is also charged that on that day at that place he used the bush knife to cause grievous bodily harm to the complainant Oliva Malio.
2. The complainant is a 39-year-old specially challenged deaf and dumb mute. He is a member of the extended family that the defendant belongs to and is known to all in the family and village as a “gūgū”. The complainant and defendant work on adjacent properties inland of their respective houses which are not far apart. There is no evidence of any prior dispute or altercation between the defendant and the complainant.
3. The evidence before the court establishes to the courts satisfaction that on the day in question, the complainant was working at his plantation. Two boys from the village came to “fai fafie” on the complainants property and asked his permission. The complainant directed them to a spot approximately fifty (50) meters from where he was working. The complainant was using a machete for his work.
4. Meantime it was reported to the defendant who was also working on his plantation by the defendants daughter that while they were picking nonu on the property of Aumua Taituuga, the complainant aggressively approached her and a younger sibling and began cutting down banana plants and nonu trees. As his activities progressed towards them they became fearful and ran away from the “gūgū” and reported what had happened to the defendant.
5. The defendant accordingly after working on his plantation headed inland to see the complainant. On arrival he met the two boys and enquired of the whereabouts of the complainant. They pointed him out in another bushy area of the property and he went to the where the complainant was working.
6. According to the defendants evidence he walked up to the complainant and questioned him as to whether there was anything wrong. The defendant said he was conversing with the “gūgū” and suddenly the complainant struck out at him with the machete. The defendant said the strike injured his right hand and he fell down. And the complainant aimed a second strike at his head which he parried with his knife. In retaliation he struck the complainants leg and the complainant fell down. The two men then grappled over possession of the complainants knife. Which he was able to remove from the complainant. Page 3 of the transcript of evidence records this portion of the defendants evidence as follows:

“Ia ou kago aku loa a’u sei le gaifi lea ei le gugu, ga ma kaufao i le gaifi ma ou kago loa ave. Ga ou fai aku i le gugu ae faamolemole mai. Ou kago loa sei le gaifi ma ou alu loa.”

And later on in his evidence “ua ou iloa la ua aafia”.

7. The complainants evidence on the matter is quite different. He testified through an interpreter and using his hands to convey his evidence, that what happened was the following: he was working on his plantation and was surprised when the defendant circled around and came up behind him. He said the defendant slashed at him with his sapelu and the defendant had not one sapelu but two, one in each hand. But I do not believe that part of his evidence as it is not supported by any other witness. And there is no reason for anyone to work a plantation with two bush knives. I accept the defendant was in possession of one sapelu at the relevant time.
8. The complainant said the first slash from the defendant injured his right hand below his right thumb and he showed the court a scar a few inches long. He said this slash and injury caused him to run away pursued by the defendant. He ran into a tree or fell over a tree onto the ground. He said the defendant caught up with him and then cut his left leg. He said the defendant then strangled him and he demonstrated vividly the defendants hands around his throat. And he said the defendant put the tip of his sapelu to his stomach. Whereupon he then pleaded for mercy. The defendant stopped what he was doing and left the area.
9. It is clear that throughout the incident the complainant was screaming for help which eventually came in the form of his brother in law, who together with the two boys carried the complainant to his house and subsequently to Poutasi Hospital where his wounds were treated and stitched.
10. Eventually he was transferred to Apia where x-rays revealed an underlying fracture of his left fibula and tibia. There was also evidence from the doctor of severed tendons of the left leg. The complainant spent some considerable time in the hospital and according to his mother underwent four operations.
11. The complainant is obviously still suffering from his injury as evidenced by his inability to walk into court without the aid of the relatives and crutches. The complainants previous mobility and status as a hard worker as testified to by other witnesses obviously has been grievously affected by his injuries.
12. Given the discord between the evidence of the complainant and the defendant the testimony of the two boys who were working at the other side of the complainants plantation becomes critical. And defendants counsel focused on their credibility and what they were able to see and hear from where they were working. Suggesting to both witnesses that they did not see what they claimed to have seen.
13. The evidence of these two boys is important in particular from two aspects: firstly the fact that they asked permission indicates the complainant was at the relevant time working on his familys land. And the complainant insisted that any trees or plants that he cut down that day were trees and plants planted by him. He said the reason he cut these trees and plants was because people of the defendants side of the family were stealing the fruits.
14. The other crucial aspect of the boys evidence is the fact that it favours the account given by the complainant. Although the boys accepted they could not see the complainant all the time from where they were working, they both related seeing the defendant using his knife to assault the defendant. Sinapati Siulepa said in cross examination he saw the defendant standing and striking the complainant several times with the knife. Although he could not see the complainant whom he assumed was on the ground. The other boy Tuiloma Ola said he saw the defendant chasing the complainant and when the complainant fell down he saw the defendant deliver the strikes. He describes these strikes as “sa fue i le lau o le sapelu”. Neither boy was in a position to see where the strikes landed but both said they heard the complainants screams. Which alerted them to the incident in the first place. Both boys also testified they were afraid to intervene.
15. Furthermore they said that the defendant waved good-bye to them before he left the area. About which the defendant said he was trying in fact to attract their attention to the wounded complainant. So it is clear from the defendants own evidence he could see where the boys were. And therefore the reverse must also be true.
16. It is also significant in the assessment of what happened that the defendant took no action to help the injured and helpless complainant even though he well knew the complainant was injured by his strikes. He said in his evidence he went seaward to seek help but help was already there in the form of the two boys fifty meters away. It would have been a simple matter for him to get those boys to help him take the complainant seaward.
17. In reviewing all this evidence Tafesilafai I am satisfied beyond reasonable doubt from the evidence of these two boys you were not acting in self-defense. And that you were the aggressor in this matter. You went to where the complainant was working, armed with a bush knife after having been told what you were told by your daughter. But even if it is true as you say that the complainant attacked you first which I highly doubt, the evidence of the two boys indicates that your retaliation was out of all proportion to such an attack. Furthermore you had an opportunity to retreat but instead elected as testified to by one of the boys to pursue the complainant and inflict upon him further injuries.
18. Your defence of self-defense is rejected I find you are guilty on all the charges and you are now to be remanded for a pre-sentence report and to a date for sentence. O lou mataupu Tafesilafai o le a tolopo e toe valaau i luma o le faamasinoga i le 12:30 aso 09 Tesema 2019. E tatau ona e oo i le Ofisa Faanofo Vaavaaia e tapena mai sou lipoti, aua le faatamala i le lipoti lena e tele le fesoasoani mo oe. Tulaga lea e tatala ai oe i tua aemaise lou saini i le Ofisa o Leoleo e tatau ona faaauau pea e faatali ai le faaiuga o le mataupu lenei.

JUSTICE NELSON