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Police v Agafili [2023] WSSC 5 (17 February 2023)

IN THE SUPREME COURT OF SAMOA
Police v Agafili [2023] WSSC 5 (17 February 2023)


Case name:
Police v Agafili


Citation:


Decision date:
17 February 2023


Parties:
POLICE (Informant) v SIO AGAFILI, male of Vaivase & Tanumalala (Accused)


Hearing date(s):
13th, 14th, 15th September 2022


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Fepulea’i Ameperosa Roma


On appeal from:


Order:
For the above reasons, I conclude as follows:

(a) Prosecution has not proven beyond reasonable doubt the charge of causing grievous bodily harm against the accused;

(b) Even if the discretion under s55(2) Criminal Procedure Act 2016 to amend the charge to bring it into conformity with the evidence offered by prosecution is exercised, prosecution cannot exclude beyond reasonable doubt the justification under s32(2) Crimes Act 2013 available to and raised in defence;

(c) The charge is accordingly dismissed.


Representation:
T. Sasagi for the Informant
M. Lui for the Accused


Catchwords:
Causing grievous bodily harm


Words and phrases:


Legislation cited:
Crimes Act 2013, ss. 26; 27; 28; 29; 30; 31; 32; 32(2); 118(1);
Criminal Procedure Act 2016, s. 55(2);
Police Service Act 2009, s. 62;
Prison and Corrections Act 2013, ss. 13; 13(1).


Cases cited:
Young v. Attorney General HC AK CIV 2002 404 001981 [2008] NZHC 2147 (23 December 2008).


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN


P O L I C E


Informant


AND:


SIO AGAFILI male of Vaivase and Tanumalala.


Accused


Counsel: T. Sasagi for Prosecution

M. Lui for the Accused

Hearing: 13, 14, 15 September 2022
Submissions: 6 October & 4 November 2022 for Prosecution
21 September & 1 November 2022 for Accused
Judgment: 17 February 2023


JUDGMENT

Charge

  1. The accused faces one charge of causing grievous bodily harm contrary to s118(1) Crimes Act 2013. The information alleges that at Tanumalala Prison on 23 March 2020, the accused with intent to cause grievous bodily harm, wounded Billy Panapa, male of Vailele and Tanumalala.

Evidence

  1. Prosecution called evidence from 10 witnesses - two (2) police officers Corporal Tuli Filipo and Sergeant Mose Lotomau; a prison officer Luilui Vaelei; a medical officer Dr. Nuualofa Mauiliu; and 6 inmates including the victim Billy Panapa and his older brother Vaai Panapa, Karl Makei, Koroseta Laifa, Latana Fretton and Nepata Nepata.
  2. The evidence is in large parts undisputed. Prison Officer Luilui Vaelei was on duty in the evening of 23 March 2020. At about 9pm, he went around the blocks on routine inspection and roll call. During the inspection, the officers released the accused from Block 3 to Block 6 where those infected with measles were isolated. The inspection continued onto Blocks 2 and 1. Inside Block 1, the inmates attacked Luilui, he suffered injury and became unconscious. The inmates then broke out, many trying to escape whilst the officers were running for help. The situation worsened to the point where the officers were unable to control the inmates, it was total chaos and they were in desperate need of assistance from police.
  3. Karl Makei, Koroseta Laifa and Nepata Nepata were inside Block 5, Vaai Panapa was in Block 6 and Latana Fretton was infront of Block 6 when violence broke out in Block 1.
  4. The victim Billy Panapa was inside Block 1 and amongst the group that ran out. He headed towards Block 6 where his brother Vaai was held. Using a rock, he tried to break the lock so he could get to him. According to Vaai and Latana, they told Billy to stay outside their Block and not go anywhere for his own safety but Billy did not comply. He ran up towards Block 5 where the accused was trying to break open the lock using a crowbar so that its inmates could render the prison officers assistance. Next to Block 5 was the fence and entrance to the kitchen. The entrance was also locked.
  5. The victim climbed the fence. He was escaping towards the kitchen area. With his back towards the victim, the accused was alerted to the victim climbing the fence by inmates inside Block 5. The accused turned around and struck the victim with the crowbar on the side of his face. He fell and lay on the concrete.
  6. There is a dispute as to whether the accused struck the victim with the crowbar a second time. In his evidence, the victim says that whilst on the ground, the accused struck him again with force before he lost consciousness. He woke up in hospital to find a laceration on his head; injuries to his mouth and bruising on his side.
  7. But the evidence of inmates Karl Makei, Koroseta Laifa, Latana Fretton and Nepata Nepata is that the accused struck Billy just once on the right side of his face. He fell and lay injured on the ground before Ikilasi and BJ arrived.
  8. The evidence further diverges as to what happened next. Karl and Latana’s evidence is that BJ and Ikilasi delivered further blows to Billy whilst on the ground and dragged him onto the grass. Their evidence is consistent with the testimony of Vaai who says further that another person named Dougie also kicked Billy on the mouth. The evidence of Koroseta and Nepata on the other hand is that Ikilasi and BJ left the victim alone when they told him not to do anything to him.
  9. It was also the evidence of prosecution that prison officer Auina subsequently managed to unlock Block 5 and released its inmates to assist. By the time they got to the front office, police had arrived. On their return to the cells they lifted the victim who was still lying injured, his face covered with blood on a table and moved him to the front office for police to transport to hospital.
  10. Dr Nuualofa Mauiliu was prosecution’s last witness. She saw the victim when brought to the Emergency department the night of the incident. Her medical report dated 18 February 2022 produced as Exhibit P4 identifies 4 injuries: a cut to the upper lip already stitched by the emergency doctor on duty; mild bleeding from his nose; a cut along the right ear lobe that had already been stitched; and a cut on the forehead above his right eye that had also been stitched. The victim was admitted to Acute 7 for observation and antibiotic treatment for his wounds.
  11. Under cross examination, Dr Mauiliu concedes that although the injuries were likely to have been caused by strong force, she could not identify if each of the injuries were caused by a kick or punch or by a strike with a crowbar tool.
  12. The accused elected not to call evidence. But his cautioned statement admitted as Exhibit P1 states as to what happened:
  13. As to intention, the statement reads:
  14. As to the second time he struck the victim, the statement reads:
  15. The accused further told police under caution that other inmates assaulted the victim after he struck him the second time.

Discussion

  1. To sustain the charge, prosecution must prove beyond reasonable doubt the following elements:

The accused wounded or caused Billy Panapa grievous bodily harm

  1. Dealing with the second element first, the evidence is that the accused struck the victim twice with the crowbar when he fled from Block 6 and tried to escape by climbing the fence near the kitchen entrance. But there is conflict as to when those two instances occurred. On one hand, the victim claims that the first was on the right side of his face when he climbed the fence which caused him to fall on the concrete; the second when he was on the ground. He looked up and saw the accused strike him again. He became unconscious and woke up later in hospital injured.
  2. The accused on the other hand by his own admission under caution says the first time was when the victim ran up with other inmates to where he was after a rock thrown at his direction just missed him. He turned to find the victim and struck him causing him to stagger before taking off. The second when the victim was climbing the fence to escape.
  3. After a careful consideration of the evidence, I accept that the two occasions were as what the accused told police under caution, and reject that the accused struck the victim again whilst on the ground. It is consistent with the evidence of Karl Makei, Koroseta Laifa, Vaai Panapa, Latana Fretton and Nepata Nepata who say they that they saw the accused hit the victim only once when he climbed the fence; it was with force and the victim lay injured and motionless on the ground before Ikilasi and BJ got to him.
  4. The evidence is unclear as to whether the accused’s first strike wounded the victim. I find however that the second strike on the right side of his face when he was climbing the fence and which caused him to fall caused the cut along the right ear lobe and on his forehead above his right eye as identified in Dr Mauiliu’s report. I also accept the evidence that BJ and Ikilasi delivered further blows to the victim whilst on the ground.
  5. I am satisfied therefore that prosecution has proven the second element of the charge

The accused intended to cause Billy Panapa grievous bodily harm

  1. I am not satisfied however that the accused intended to cause the victim grievous bodily harm. When he first struck the victim, inmates were running towards him, rocks had been thrown at his direction including one that only missed him. The crowbar was in his hands having been instructed by officers to break the lock to Block 5. He turned around in time for the victim to reach him and saw that he had rocks in his hands. I accept that in the circumstances, the accused was in fear of his safety and his intention was to avoid harm and protect himself.
  2. As to the second strike that wounded the victim, I am also not satisfied that he intended to cause him grievous bodily injury. Inmates that broke out of Block 1 were running looking to escape, the accused who was already outside of the blocks was told to assist by breaking the lock to Block 5 so that its inmates could help the officers. He was alerted to the victim escaping by climbing the fence by occupants of Block 5. Again the crowbar was in his hand, he turned and immediately struck the victim once and I accept that his intention was to prevent the victim escaping. Further as I have found, he did not strike the victim again whilst on the ground.
  3. The required intent is not to simply assault or cause the victim bodily injury. He must have intended to cause him grievous bodily injury. For the reasons abovementioned, I am not satisfied beyond reasonable doubt that he had the necessary intent.
  4. I find therefore that prosecution has not proven the charge beyond reasonable doubt.

Discretion to amend the charge

  1. Under section 55(2) Criminal Procedure Act 2016, the Court may amend a charge at trial in a manner that brings it into conformity with the evidence offered by the prosecutor. In my view, the discretion under section 55(2) may be exercised after the evidence has completed and before a verdict is delivered because only then can the Court properly consider whether or not a charge requires an amendment to bring it into conformity with the evidence.
  2. The Court may exercise that discretion in this case and amend the charge to one of common assault and find proven on the evidence both (i) a direct application of force by the accused on the victim; (ii) the application of force was intentional; and (iii) the victim did not consent.
  3. But the accused raises the following provisions in defence which I must consider.

Section 13 Prison and Corrections Act 2013

  1. Section 13(1)(i) provides
  2. Section 62 Police Service Act 2009 then provides:
  3. The defence argues that the accused cannot be convicted of the offending because he was acting pursuant to a call for assistance by the prison officers under s13 Prison and Corrections Act 2013.
  4. Section 13 deals with powers privileges and protection of sworn members of the Prisons service. In my view it does not provide a specific defence to the offending but the question of whether he acted pursuant to a call for assistance by prison officers is relevant nevertheless to the issue of whether he had the required intent. As I have found, his intention was to assist the officers and not cause the victim grievous bodily harm.

Justification under sections 26 & 27 and Protection under sections 28, 29 & 30 Crimes Act 2013

  1. The defence further argues that the accused is justified under sections 26 and 27 Crimes Act 2013 because he was assisting a constable in the arrest of the victim; and arresting the victim without warrant. Furthermore, he is protected from criminal responsibility under sections 28, 29 and 30. The sections state:
  2. I need not consider in detail each provision because whilst they refer to particular circumstances giving rise to justification of a person’s actions or protection from criminal responsibility, section 31 then provides that where force is applied by that person, “the justification or protection shall extend and apply to his use of such force as may be necessary to overcome any force used in resisting the ... arrest, unless the ... arrest (can be) made by reasonable means in a less violent manner; and must not have been effected by force intended or likely to cause death or grievous bodily harm.” (see Young v. Attorney General HC AK CIV 2002 404 001981 [2008] NZHC 2147 (23 December 2008), para 181 for a discussion of the equivalent section 39 of the New Zealand Crimes Act 1961.)
  3. The full text of section 31 Crimes Act 2013 reads:
  4. In the present case, hitting the victim with the crowbar cannot be said to have been force applied or used to overcome any force on the victim’s part in resisting arrest. Indeed, the victim was fleeing and trying to escape by climbing the fence. He was avoiding being captured not resisting arrest. He had not applied any force on the accused that became necessary to overcome. Therefore, even if the accused satisfied the requirements for exoneration under sections 26 to 30, the extension of the justification and protection under section 31 to apply to his striking the victim with the crowbar cannot be sustained.

Section 32 Crimes Act 2013 – Preventing escape or rescue

  1. But the accused further relies on section 32(2) which relevantly provides:
  2. In contrast to section 31, the force justified under 32(2) need not be a response to overcome any force used by a person in resisting arrest. So long as the force was necessary to prevent the escape; and the escape could not have reasonably been prevented in a less violent way, such force is justified under section 32(2).
  3. Therefore, in proving its case, prosecution must also exclude the following requirements of the justification under section 32(2) beyond reasonable doubt.
  4. As to the first requirement, it is not disputed that the victim was a prisoner who was escaping from lawful custody. With other inmates, he escaped his cell following the assault of the prison officer by inmates. He tried to break open the lock to his older brother’s cell before heading towards Block 5 where he climbed the fence to escape prison through the nearby kitchen.
  5. On the second requirement, prosecution do not also dispute that the accused was called upon by prison officers to assist. He was outside the blocks having been released to Block 6 for isolation with those infected with measles when the inmates inside Block 1 broke out. The evidence is that prison officers were calling for help and one who was inside the kitchen area had passed onto the accused through the fence the tool, and instructed him to break the lock to Block 5 and allow its inmates to render assistance.
  6. As to the third requirement, prosecution argues that the force applied was not necessary to prevent the escape because the accused was not in any danger. I do not agree. Prison officers had been attacked and inmates who broke out of Block 1 were running and trying to escape. Rocks had also been thrown at the accused’s direction. He was already in possession of the crowbar trying to break the lock to Block 5 under instruction from a prison officer when the inmates told him about the victim escaping by climbing the fence behind him. Under those circumstances, I find reasonable his immediate reaction of turning and hitting the victim. It was one strike and as I have found, he did not inflict further harm whilst the victim was on the ground. The evidence does not also suggest that the accused would have struck the victim but for the fact he was escaping.
  7. On the fourth requirement of the justification, I also find that the victim’s escape could not have reasonably been prevented in a less violent way. It was chaos in the prison facility that evening and the prison officers were outnumbered and unable to control inmates. The accused’s use of the crowbar in the circumstances was immediate and instinctive. He could not have prevented the victim escaping in a less violent way.
  8. Accordingly, I am not satisfied that prosecution has excluded beyond reasonable doubt the requirements of the justification under section 32(2).

Conclusion

  1. For the above reasons, I conclude as follows:

JUSTICE ROMA


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