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Police v Milford [2019] WSFVC 6 (5 August 2019)

FAMILY VIOLENCE COURT OF SAMOA
Police v Milford [2019] WSFVC 6

IN THE FAMILY VIOLENCE COURT OF SAMOA

HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

MUA MILFORD,
male of Tuanai and Australia
Defendant

Counsels: V Afoa for Prosecution
T Patea for Defendant

Hearing: 17 July 2019
Decision: 5 August 2019

DECISION OF ATOA-SAAGA

THE CHARGES

2. The Defendant was charged with two counts of assault pursuant to Section 123 of the Crimes Act 2013.123 provides that, “A person is liable to imprisonment for a term not exceeding 1 year who assaults any other person.”
3. Section 2 of the Crimes Act 2013 defines an assault as follows:

‘assault’ means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his purpose; and “to assault” has a corresponding meaning.

4. The elements of the offence of assault are:
   • (a) The Defendant
   • (b) Assaulted by way of intentionally
   • (c) Applying or attempting to apply force
   • (d) To the person of another
   • (e) Directly or indirectly
5. The Defendant disputes that he had assaulted the victim.
6. The Prosecution bears the burden of proving these charges beyond reasonable doubt.
7. Prosecution called two witnesses. The victim and her mother. The Defendant elected not to give evidence.

BACKGROUND OF PROCEEDINGS

8. On the 22^nd February 2016, the Defendant pleaded guilty to both charges.
9. The Defendant was ordered to attend a Samoa Victim Group conferencing. Sentencing was set down on 4^th April 2016. On the 4^th April 2016, a Warrant of Arrest was issued for the non-appearance of the Defendant.
10. On the 31^st December 2018, the Defendant was arrested and remanded to appear for mention on the 22^nd January 2019. The matter was not listed on the 22^nd January 2019. It was further adjourned to 28^th January 2019 for mention and subsequently to the 4^th February 2019 when it was adjourned for sentencing on the 6^th February 2019.
11. On the 6^th February 2019, the Defendant disputed the Summary of Facts and it was adjourned to 6^th March 2019 for hearing of the disputed facts. On the 6^th March 2019, both parties were unable to proceed and it was adjourned to 1^st May 2019 for hearing. As there was a Family Violence Workshop scheduled on 1^st May 2019, this matter was adjourned to 12^th June 2019.
12. On the 12^th June 2019, the Defendant through Counsel vacated his Guilty Plea to a Not Guilty plea. The matter was set down for hearing on the 17^th July 2019.

EVIDENCE

13. The victim who was 18 years of age met the Defendant a 56 year old male in August 2015. She was working at the Treasure Garden restaurant during a night shift and was waiting for her bus in front of CCK shop when he pulled up in his vehicle. He asked her if she needed a ride and she agreed. On the way home, he stopped by the Fridam Rentals Motel where they had a discussion. He informed her of his business in Australia and offered her employment. They started seeing each other from then. He met her family and even gave them an oven, a bed and assisted with the fees of a sibling attending University. In December 2015, he left for Australia and returned in January 2016.
14. She arranged for a taxi to take her to the airport. She asked her mother to accompany her. At the airport, the Defendant gave her mother some money and told her that he had arranged for a rental vehicle for him and the victim. Her mother left in the taxi whilst the victim travelled with the Defendant in the rental vehicle to town.
15. They parked at Sogi and she drank a mixed drink of Jim Beam Whisky that he had bought from the Duty Free. Shop at the airport Whilst they were at Sogi, he asked her if they could honestly discuss relationships that they had been involved in during the month that they were apart. The Defendant confessed that he had an affair with a woman in Australia. She told him about a male from her village that she had been involved with.
16. The Defendant became angry and pulled her hair. He also slapped her on her cheek. She cried. They made up and spend that night at Tanoa Hotel. In the morning he apologized and they went to Fridam Rental Hotel where she stayed whilst he went to visit a friend.
17. When he returned, he became upset again over her telephone and slapped her three times in the room. Later he said sorry.
18. On Wednesday morning, they picked up her mother to accompany the victim to her court case. She was sentenced that morning for a traffic offence and was fined $500. The Defendant did not accompany her to her court case.
19. The victim’s mother noticed that her face was bruised and swollen. She asked her as to what had happened. She told her that the Defendant had hit her. Her mother requested a meeting and they had lunch with the Defendant at Top Taste. She voiced her concern with the Defendant. There was an inconsistency in her statement and what she relayed in Court in that he had admitted and apologized to her. Notwithstanding the issue in respect of the payment of the fee was discussed and he agreed to pay the victim’s fine of $500.00.
20. The victim was beaten by her father earlier. He used a chair to hit her back and her body. Whilst these bruises were put to the victim as the bruises that were seen by her mother on her face, both prosecution witnesses denied that these were the bruises on her face and that she was beaten in late 2015.
21. On Saturday, following that meeting at Top Taste, the Defendant came over to their place. He brought chicken, pizzas and sausages and apologized to the victim’s mother and her father for assaulting the victim. They accepted his apology and acknowledged the Defendant’s kindness towards the victim and her family.
22. Later on in February 2016, the victim discovered that she was pregnant. The Defendant denied paternity. The victim gave birth in October 2016.

DISCUSSION

23. The motive for filing the charges was raised by the Defendant. The charges were filed by the victim’s mother the day after she discovered that the victim had bruises on her face. Similarly, the relationship between the Defendant and the victim deteriorated from the meeting at her home to when he denied paternity. She has since moved on with her life. She has had two children. She still maintains that her 2 years old child’s father is the Defendant.
24. Whilst motives for laying the complaints is relevant, the paramount consideration for the Court is to determine whether the offences were committed by the Defendant.
25. After hearing the evidence of the Prosecution witnesses, I find the evidence compelling that he did commit the acts of assault for which he has been accused of. I am satisfied that he did slap the victim on both occasions.
26. When the Defendant arrived at the airport, both Prosecution witnesses were present. There is no evidence that she had any bruises on her face. It was only on Wednesday when her mother saw her at the court house that she noticed those bruises. From when she last saw her at the airport to when she saw again at the courthouse, the only person that she had spent time with is the Defendant.
27. Following that meeting at Top taste restaurant, at their home, the Defendant also apologized to the mother who gave evidence and her father. He brought food to the family and admitted to the victim’s parents that he did assault her. They forgave him.
28. I find both Prosecution witnesses credible witnesses.
29. I am satisfied beyond reasonable doubt that the Defendant committed the acts of assault for which he has been charged.

CONCLUSION

30. I hereby find the Defendant guilty of two counts of assault.

JUDGE ATOA-SAAGA