Police v Muta [2023] WSSC 87 (27 October 2023)

IN THE SUPREME COURT OF SAMOA
Police v Muta [2023] WSSC 87 (27 October 2023)

Case name:	Police v Muta
Citation:	[2023] WSSC 87
Decision date:	27 October 2023
Parties:	POLICE (Prosecution) v IOSUA MUTA, male of Malie (Defendant)
Hearing date(s):	02 October 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	The Court finds that prosecution has proven beyond reasonable doubt that the defendant, Iosua Muta was armed with a machete with intent to cause grievous bodily harm did cause grievous bodily harm to Kaisa Niulevaea. The Court finds the defendant, Iosua Muta, guilty of the charges of grievous bodily harm pursuant to section 118(1) of the Crimes Act 2013 and being armed with a dangerous weapon not for a lawful purpose pursuant to section 25 of the Police Offences Ordinance 1961.
Representation:	DJ Fong for Prosecution S Ainuu for the Accused
Catchwords:	Causing grievous bodily harm – armed with a dangerous weapon.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 118(1); Police Offences Ordinance 1961, s. 25.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

IOSUA MUTA, male of Malie

Defendant

Counsel: DJ Fong for Prosecution
S Ainuu for the Defendant

Hearing: 02 October 2023
Decision: 27 October 2023

JUDGMENT OF JUSTICE TUATAGALOA

This is the reserved decision of the Court.

The Charges

1. The defendant is charged that at Faleula on 30^th July 2022:
   • (i) With intent causes grievous bodily harm^[1] to Kaisa Niulevaea; and
   • (ii) Being armed with a dangerous weapon^[2], a machete not being so armed for a lawful purpose.

The Law

2. The prosecution must prove the charges beyond reasonable doubt. For the offence of grievous bodily harm, the prosecution must prove beyond reasonable doubt:
   • (i) That the defendant;
   • (ii) With intent;
   • (iii) To cause grievous bodily harm to another person;
   • (iv) Caused grievous bodily harm to Kaisa Niulevaea.
3. For the purpose of section 118(1) the Defendant must with intent to cause grievous bodily harm to another person, wounds, maims, disfigures or causes grievous bodily harm to that other person.
4. In terms of the armed with a dangerous weapon charge, the prosecution must prove beyond reasonable doubt that:
   • (i) The defendant;
   • (ii) Was armed with a dangerous weapon; and
   • (iii) Without lawful purpose.

The Evidence

5. The Defendant elected not to give evidence nor call any witnesses.
6. The only evidence before the Court was that of the Prosecution. Prosecution called six (6) witnesses:
   • Senior Sergeant Mose Lotomau (Forensic – Victim’s injury)
   • Sergeant Thor Tafuna’i (Forensic – Machete)
   • Constable Randy Ng Lam (Forensic – Crime Scene)
   • Pauli Dr Pa’i Enosa (Treating Physician)
   • Kaisa Niulevaea (Victim)
   • Taina Faalifu (Witness).
7. The Police officers who gave evidence were from Forensics and their evidence was to the photos they took as follows:
   • Senior Sergeant Mose Lotomau attended the hospital and took photos of the injury sustained by the victim on the right side of his back^[3]. The photos showed a deep open wound.^[4] The injury was confirmed by the victim, Kaisa Niulevaea, to have been caused by a machete.
   • Sergeant Thor Tafuna’i took photos of the machete alleged to have caused the injury.^[5] The photos of the machete were only taken on 4^th May 2023. According to Sergeant Tafuna’i the machete had been in the custody of the Police at the Afega Post and it was only brought to the Police Forensic Unit on the day the photos were taken. In the photos it was clearly marked on the machete the words, “Pol vs Iosua Muta”.
   • Constable Randy Ng Lam took photos of the crime scene. The photos showed the front and the left side of a blue shop where the offending allegedly took place.^[6]
8. Dr Pa’i Enosa^[7] was the doctor on duty when the victim was brought to the hospital in the early hours of 30^th July 2022. Dr Enosa confirmed to the Court when shown the photos that they were of the victim’s injury that he treated. He said that the length of the wound and the character of the wound required 8-10 or more stitches. Dr Enosa said the injury was caused by a sharp object such as a machete, a small knife or a broken glass. The injury he said was 10-12 cm in length and 3-5 cm in depth. He rated the injury to be of moderate to severe and said that if the wound were any deeper it would have proven fatal for the victim.
9. The only evidence as to what happened and identified the defendant, Iosua Muta, as the offender were Kaisa Niulevaea (victim) and witness, Taina Faalifu as follows:
   • Kaisa Niulevaea’s evidence is that he went to his best friend Eseta’s house in the evening of the day before the incident for drinks. On his way, his friend Taina called to make plans and he told Taina to come over to Eseta’s house. Kaisa got to Eseta’s house and went to the outside kitchen where he saw Iosua (defendant) scraping coconut (valu popo) with another man, it looked like they were making a umu. He said that he saw a Taula bottle next to the defendant. He and Eseta stayed for a while in the outside kitchen talking whereby Eseta gave him $80 and told him to give the money to the defendant to go buy them a box of Taula strong. The box he said contains twelve big bottles. Iosua went and bought the box of beer. Not long after Kaisa and Eseta went to one of Eseta’s houses (faleoo kele) talked and shared a bottle of beer drinking from one glass. Kaisa said that is normally how they drink. Shortly after, Taina arrived and they continued sharing one bottle of beer. Not long after, Iosua (defendant) and the other man joined them. In his evidence, Kaisa spoke of Iosua’s behaviour on the night in question and how he talked as, “E kalagoa fia malosi ma fia faasausili. Kele ia o le kaimi e faaleaga e Iosua makou kalagoaga”^[8] but he kept calm and ignored him. At one point, Taina went to pee and he shortly followed to go pee as well. While he was outside, Iosua walked over and deliberately bumped into him and he almost fell over. At the same time Iosua asked him, “Pe fia ulavale;” he responded, “Ou ke ulavale.” Kaisa then threw a punch at Iosua and a fight ensued. Taina broke up the fight by pulling Kaisa away. Kaisa left and walked to the shop on the main road. Taina followed. Not long after Iosua followed and called out challenging Kaisa and Taina to a fight and take them one by one, “Pe e iai seisi o ma’ua e ulavale ae ma ke aua’i kaikasi aku”^[9]. Taina in attempts to calm Iosua down told him to go and sleep as he was too drunk. Kaisa said he thought Iosua had gone home and he sat down in front on the left side of the shop talking with Taina who stood not too far in front of him, when Eseta called out to him warning him of a machete – “Kaisa le sapelu!”^[10]. Kaisa turned around to look and saw Iosua running towards him with a machete in his hand. Kaisa said that it was too late for him to get up when Iosua slashed at him from behind wounding the right side of his shoulder. He got up and ran towards a vehicle parked next to the shop and Iosua chased after him – “Kusa ga uma ga kipi o’u ku i luga u’u lo’u kua kaamilo i leisi iku o le taavale ae alaku Iosua ma kuli i le kaavale, ma kuli ma le sapelu lea e alaku Iosua e koe kipi a’u, e maga’o e koe kipi a’u i le sapelu.”^[11] Kaisa when asked said that the injury or wound required eleven (11) stitches.
   • Taina Faalifu’s evidence is basically the same as that of Kaisa (victim). He said of the defendant’s behaviour towards him to be challenging – “Ia o la’u faalogo i le kalagoa a le uso lea o Iosua ga amaka a le evaga pei e kau lu’ilu’i a’u e Iosua i le po ga ae ou ke lē amagaia Iosua”^[12]. Taina’s evidence corroborated the evidence of Kaisa as follows:
     • - Iosua deliberately bumped into Kaisa when he (Kaisa) went to pee: “Sau loa Iosua sau a alu aku agai o le piko la e ku ai Kaisa, alaku kaia i loga kauau le kua o Kaisa.”^[13]
     • - Kaisa and Iosua fought: “E le’i leva ae ou vaai aku loa ae fai mai fusuaga a le aualii ia. O’u momo’e mai loa vaovao.”^[14]
     • - Kaisa and Taina went to the main road and next he saw Iosua coming from the opposite direction in front of the shop and challenged both Kaisa and Taina to a fight,
     • - Taina tried to calm Iosua down and told him to go sleep as he was too drunk.
     • - Iosua left but then came back with a machete approaching from the right side of the shop opposite to where Kaisa was sitting with his back facing where Iosua was approaching from. Kaisa at the time was talking to Eseta who was standing not far in front of him (Kaisa):“O le aluga la lea o Iosua i kua i le fale ga alu aku loa sau ma le gaifi kaamilo mai leisi piko o lae kalagoa Kaisa ma Eseka i aukafa o le faleoloa, o a’u lea ou ke ku i luma le auala lea ou ke ku ku e faakali sa’u kaavale i le kaimi lea.”^[15]
     • - Taina called out to Kaisa to warn him of the machete. Due to Kaisa’s slow reaction, he was not able to get up fast enough and Iosua slashed his back with the machete,
     • - Kaisa stood up and ran off and Iosua chased after him with the machete around a parked vehicle and then Kaisa ran over to where Taina was standing and Iosua walked off with the machete, ‘Olo solo i luga o le mutia’.^[16]
     • - Taina saw a big wound or injury on Kaisa’s back.^[17]

Discussion

10. The evidence is very clear that there were five people drinking on the night prior to the incident: Kaisa (victim), Taina (witness), Eseta, Iosua (defendant) and another man referred to in the evidence as, “le isi taule’ale’a”. This other man according to the evidence of Kaisa and Taina left their drinking session before Kaisa and Iosua had a fight. The evidence also is that this taule’ale’a was never seen again after he left. There was no other evidence before the Court to doubt the evidence of Kaisa and Taina. This means that the only people that were present when the offending took place were Taina, Kaisa, Eseta (who did not give evidence and from the evidence is most likely a relative of the defendant), and Iosua.
11. Mr Ainu’u, counsel for the defendant’s line of questioning tried to create doubt as to the identity of the person who slashed and wounded Kaisa on the back by raising that Kaisa and Taina had never seen or met Iosua prior to that night; Kaisa and Taina were drunk therefore their vision may have been impaired; that Kaisa being drunk and only had one good eye therefore could not have seen the person who slashed at him with clarity; Taina could not have properly seen the person approaching with the machete because it was dark and that Iosua could not have done what he is defendant of as he was too drunk. For the latter, Mr Ainuu should know better that intoxication is not a defence under the law.
12. As for the rest of what was raised by Mr Ainuu, the evidence of both Kaisa and Taina were both reliable. They were both consistent throughout their evidence despite Mr Ainuu’s cross examination as to identity. Taina maintained that he clearly saw the defendant who left to go home and came back with a machete and caused the injury to Kaisa’s back, who did not leave or run off after having caused injury but instead chased after Kaisa around a parked vehicle (tuli faatamilo i le taavale ma Kaisa); the same defendant he (and Kaisa) observed, ‘Olo le sapelu i luga o le mutia,’ before walking off to go home.
13. Kaisa first met the defendant earlier on in the evening at his friend Eseta’s house before they started drinking. He spoke with Iosua when he gave him the money to buy them a box of beer; and later on he (Kaisa) and others sat drinking with Iosua whom he fought with prior to the offending. At the shop when he was warned by Taina of the machete, he looked up and saw Iosua come at him and attack him with the machete before he managed to get up and run and Iosua chased after him with the machete around a parked vehicle.
14. It can be said that both Kaisa and Taina prior to the offending had ample opportunity to familiarise themselves with what the defendant looked like to be able to identify that it was the defendant who had caused injury to Kaisa with a machete. The evidence established beyond reasonable doubt that it was the defendant who caused injury to Kaisa on his back. Furthermore, the use of the machete to have caused the injury was never challenged.
15. For the avoidance of doubt as to identity, even if I find that Kaisa’s vision may have been impaired that night due to being under the influence and having one good eye, the evidence of Taina was solid, well measured and unwavering that I would accept his evidence as to the identity of the defendant.

Conclusion

16. The Court finds that prosecution has proven beyond reasonable doubt that the defendant, Iosua Muta was armed with a machete with intent to cause grievous bodily harm did cause grievous bodily harm to Kaisa Niulevaea.
17. The Court finds the defendant, Iosua Muta, guilty of the charges of grievous bodily harm pursuant to section 118(1) of the Crimes Act 2013 and being armed with a dangerous weapon not for a lawful purpose pursuant to section 25 of the Police Offences Ordinance 1961.

JUSTICE NIAVA MATA TUATAGALOA

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^[1] Crimes Act 2013, s.118(1).
^[2] Police Offences Ordinance 1961, s.25.
^[3] Exhibit P3 – Medical Report dated 24 April 2023
^[4] Exhibit P1- Victim’s Injury.
^[5] Exhibit P2 – machete taken on 4^th May 2023.
^[6] Exhibit P4 – crime scene taken on 2^nd May 2023.
^[7] Exhibit P3 – Medical Report dated 24^th April 2023; Transcript, pp 4-8.
^[8] Transcript, p.12.
^[9] ibid.
^[10] ibid., p.13.
^[11] ibid.
^[12] ibid., p.23.
^[13] ibid.
^[14] ibid., pp.23 & 27.
^[15] ibid., p.24.
^[16] ibid., pp.24 & 29.
^[17] ibid., p.24.