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Police v Manusamoa [2023] WSFVC 1 (20 September 2023)

IN THE FAMILY VIOLENCE COURT OF SAMOA
Police v Manusamoa [2023] WSFVC 1 (20 September 2023)

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SEFULUAI MANUSAMOA

Defendant

Representation: F. Kolia for Prosecution

A. Matalasi for the Defendant.

Submissions: 6th July 2023

Decision: 20th September 2023

DECISION OF JUDGE ATOA-SAAGA

INTRODUCTION

1. The Defendant is charged with Actual Bodily Harm, Armed with a Dangerous Weapon, and Assault. The victim is his wife. The Defendant pleaded Not Guilty to all the charges and a hearing was scheduled on the 26th May 2023.
2. On the 26th May 2023, the Prosecution sought the withdrawal of the charges as the Victim did not wish to give evidence against the Defendant.
3. Counsels were ordered to file submissions given the duty to prosecute by the Police under Section 16 of the Family Safety Act 2013.

SUBMISSIONS

4. Prosecution submits that the Police must prosecute. As the Prosecution is carried out by the Attorney General’s Office, the duty not to withdraw the charge is to be upheld by the Prosecution. Nevertheless, under Section 84 of the Criminal Procedure Act 2016, it is ultimately up to the Court to order the victim to give evidence or answer questions otherwise, she will be taken to custody for a period not exceeding 7 consecutive days.
5. Defence Counsel submits that while it is conceded that there was a report of alleged physical violence, there is insufficient evidence, and therefore Prosecution is not in breach of the duty to prosecute.
6. Both Counsels request the Court to provide a written ruling on the issue to guide future cases on duty to Prosecute under Section 16 of the Family Safety Act 2013.

DISCUSSION

7. The Family Violence Court was established in 2013 by way of a case management mechanism whereby it operates as a division of the District Court to exercise both criminal jurisdiction and quasi-criminal jurisdiction. The criminal jurisdiction empowers the Family Violence Court to hear all criminal charges involving parties in a domestic relationship. The quasi jurisdiction provides the Family Court with the jurisdiction to preside over all protection orders matters.
8. The preamble of the Family Safety Act 2013 (hereinafter referred to as “FSA 2013”) stipulates the primary purpose for its enactment as, “An Act to provide for the greater protection of families and the handling of domestic violence and related matters.”
9. Section 2 of FSA 2013 provides an all-encompassing definition of domestic relationship domestic violence
10. Under the Criminal jurisdiction of the Family Violence Court, most if not all charges are laid pursuant to the Crimes Act 2013, Police Offences Ordinance 1961, and Arms Ordinance 1961. The procedures applied by the Family Violence Court when exercising its criminal jurisdiction are under the Criminal Procedure Act 2016, Evidence Act 2015, Sentencing Act 2015 and Community Justice Act 2008.
11. Nevertheless, the relevant provisions that apply to the Family Violence Court under the Family Safety Act 2013 when exercising its criminal jurisdiction are Section 2, Section 11, Section 15, Section 16, and Section 17. The Court can also make an order under Section 14 to prohibit the publication of any proceedings or attendance by any person of the Court proceedings.
12. Section 16 of the Family Safety Act 2013 stipulates that,
    • (1) Subject to sub section (2), where a report of domestic violence involves any form of physical or sexual abuse, and provided that there is sufficient evidence for doing so, a Police Officer handling the matter shall: Ensure and undertake to do all things necessary in order that a charge or information is laid with the Court in order to commence prosecution of the matter in Court and Not endeavour to withdraw a charge or information laid under paragraph (a).
    • (2) Where a report of domestic violence involves any other form not being physical or sexual, the Police Officer may where the Police Officer considers it appropriate to do so and in accordance with applicable guidelines have the matter referred to an authorised counselling agency and from there, monitor progress of such an arrangement, or lay a charge or information to commence prosecution, particularly in cases of repeated offending of a similar nature.
    • (3) Failure by a Police Officer to comply with an obligation imposed in terms of this constitutes misconduct for the purposes of the Police Service Act 2009.”
    13. The duty to prosecute is primarily the duty of the Police Officer who receives a complaint. The Officer has two mandatory duties. First to determine whether the report involves a physical act of domestic violence and/or sexual abuse. Secondly where there is sufficient evidence. Once a Police Officer is satisfied that there is a physical act of domestic violence or sexual abuse and there is sufficient evidence then the Officer is mandated to do all things necessary to lay a charge or information before the Court. The Officer is prohibited from withdrawing a charge.
    14. It is only a Judge of the Family Violence Court exercising its criminal jurisdiction who has the discretion to decide whether a charge should be withdrawn or not. The procedure that is followed by the Family Violence Court when exercising its criminal jurisdiction is under the Criminal Procedure Act 2016.
    15. Section 54 of the Criminal Procedure provides the procedure for the withdrawal of a criminal charge.
    • 54. Withdrawal of information with leave - (1) Any information laid in or transferred to a District Court may, with leave of that Court, be withdrawn by the informant:
      • (a) at any time before it is determined or
      • (b) the Defendant has pleaded guilty before sentence has been imposed
    • (3) The withdrawal of charges pursuant to this section does not prevent any further or other proceedings against the defendant for the same offence.
16. The withdrawal of the charge requires the leave of the Court before a charge can be withdrawn.
17. The question then becomes as to whether I should grant leave for Prosecution to withdraw this charge.
18. The preamble of the Family Safety Act 2013 provides the purpose for the legislation. It is an Act to provide for the greater protection of families and the handling of domestic violence and related matters.”
19. The Defendant has been charged with 3 charges including Actual Bodily Harm. The charges were filed against the Defendant by the victim. She has since changed her mind and does not wish to proceed with the charges.
20. They have reconciled and want to resume their relationship because of their children.
21. While I accept that there has been reconciliation, her safety is a paramount consideration especially as they intend to continue with their relationship. Women normally become advocates for their husbands after the fact when their husbands are taken into custody or live apart from them. This is particularly true when they live with the husband’s family.
22. The impact on the children is also a reason why women apply for the withdrawal of charges especially when the father is the sole bread earner or he is close to the children. After weighing the consequences, women will always weigh the interests of the children above their interests. They resigned themselves to become the sacrificial lambs for the sake of the family and the children.
23. I need to be satisfied that the withdrawal of the charges is not attributed to any of these reasons. Victims must accept that the only way to stop any form of violence is to address it by bringing it into the light of public scrutiny especially when that is an intention to continue the relationship. It is also for the benefit of the children who are the voiceless victims in these matters.
24. The Defendant is innocent until proven guilty. It is only in his interest that the matter proceeds so that his innocence is proven.

JUDGE ATOA SAAGA