Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Falaniko [2001] WSSC 10 (20 March 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SILA FALANIKO, SALOI VE’A,
SAUTIA POFASA AND LUI PAULO, all of Satui
Defendants

Counsel: Messrs R. Schuster & D. Potoi for the Prosecution
Ms I. Sapolu for Defendants – Sila Falalaniko & Saloi Ve’a
Mr T.K. Enari for Defendants – Sautia Poufasa & Lui Paulo

Hearing Dates:
Date of Ruling: 20 March 2001

RULING OF JUSTICE VAAI

The four accused are charged that on the 14^th day of December 2000 at Satuimalufilufi they wilfully and without lawful justification caused grievous bodily harm to Ioselani Manu. In the early evening of the 14^th December the victim together with three of the accused and other youths were drinking beer and spirits by the main road at Satuimalufilufi. They were all friends. At around midnight and as a result of the noise they generated through their nubriated state, they were told by one of the village matai to disperse. At the suggestion of the victim three of the accused and the victim proceeded inland to the house of one of the accused Saloi Ve’a to continue drinking the unfinished bottles of spirits. Faamanu Ve’a and one of the accused Lui Paulo who were asleep at the house of the accused Saloi were awoken by the arrival of the noisy drunken visitors. They all sat around the small hut using one glass to drink the spirit. Not long after they sat down to assume their drinking binge the victim decided to get aggressive. He swore and threw the glass at Paulo. Paulo ducked and the glass smashed against a box besides the accused Paulo Lui. The victim was immediately punched by the accused Sautia while the accused Saloi stood up and grabbed a 12 gauge gun and told the victim “I will finish you off.” The victim said Sautia and Sila continued to punch him and he lost consciousness. He regained consciousness at the Motootua Hospital.

Faamanu Ve’a who also testified for the prosecution gave a different version. He saw the victim stood up and punched Lui who was sitting down. The victim then sat down; continued to swear; and then threw the glass at Lui who ducked. Saloi then told the victim to leave but the victim tried to grab something and Sila who was sitting next to the victim grabbed the victim. At that time the accused Saloi got up and grabbed what appears to be the gun and the victim called to Saloi to give him the cartridge to eat. Faamanu then walked away from scene. He returned when his brother Saloi called out to him and on his return he saw the victim lying outside about 2 meters from the house with Sila standing besides him and Saloi sitting in the house. Lui came from behind the house and on instructions from Saloi both he and Faamanu carried the victim to the school compound. The witness Faamanu denied that further assaults by Lui and Sila were done to the deceased as the deceased was being carried away and after he was left at the school compound.

This witness gave a written statement to the police in which he stated that the victim was assaulted by the accused Lui and Sila while he was being carried away and after he was left at the school compound. The prosecution were therefore allowed to cross examine him to show that he had earlier made a statement part of which is inconsistent with part of the evidence he has given in court. This witness has given an explanation for the inconsistency and I accept his explanation. In any event the inconsistency relates only to a very small portion of his written statement. I accept his oral testimonial and furthermore I accept that the victim was behaving in a violent manner on the night in question and before he was assaulted.

In the early hours of the following morning the victim was found by his brother lying where Lui and Faamanu left him and was taken to Leulumoega District Hospital where he was treated before transfer to the Motootua Hospital. Police were informed by the Leulumoega Hospital staff. Informations received by the Police from those who accompanied the victim to the hospital led to the interrogations of the four accused and cautioned written statements obtained from each of them. These statements were challenged on the grounds that they breached article 6(3) of the Constitution and secondly the statements by the defendants Sautia and Lui were involuntary in that the two accused were subject to assault or violent treatment by the police before the statements were taken. Thirdly for the defendants Sila and Saloi they did not understand the caution and their statements are therefore not voluntary.

After receipt of information from the Leulumeoga Hospital the police went looking for the four accused and others including Faamanu who testified for the prosecution. Sautia was the first accused to be found at his home. I accept from the evidence of Sargent Aniteru Tago and Doctor Thomsen that the accused was apprehended sometimes around 10 a.m. on the morning of the 15^th December 2000 and taken to Faleolo Police post. As he was observed to be still under the influence of alcohol he was left on his own at the Faleolo Police post until about 1 o’clock in the afternoon when Sergeant Tago started to interview him. He was informed of his rights and he was also cautioned.

In his evidence the accused said he was arrested from home about 6-7 a.m. and taken to Faleolo Police Post and as he got out of the police car at Faleolo he was asked by Sargent Tago if he wanted a lawyer but he replied he wanted to talk to his family first. And when they got inside the office he was punched by Sargent Tago in the presence of another police officer. I have no difficulty in rejecting the evidence of the accused Sautia. In the first place the police could not have gone to his place between 6 a.m. to 7 a.m. because the doctor at Leulumoega Hospital did receive the victim between 6 a.m. to 9 a.m. and he tested his vital signs, examined all the injuries and did some treatments before making arrangements for transfer to the Motootua Hospital. Police were then informed and police attended to the hospital to gather information before proceeding to look for the accused. Having found against the accused as to the time of his arrest I also reject his allegation of assault against the police.

As for the accused Lui Paulo the allegation of assault was never put to the police officers during cross examination and the accused himself in his evidence did not allege any wrong doing or violent conduct by the police against him. I therefore find that the statements by both defendants Lui Paulo and Sautia Pofasa were voluntarily given as they were not assaulted or subjected to violent conduct by the police.

In the case of the defendants Sila Falaniko and Saloi Ve’a, it is argued by counsel that the accused did not understand the caution and their statements are therefore involuntary. The caution complained of is translated as:

“You are not obliged to make a statement, but any statement you make will be taken and used as evidence.”

It is not argued that a caution was not given. The thrust of the argument is that the

Caution was insufficient in that it did not impress upon the accused that whatever they say in their statements will be used as evidence against them.

The short answer to the submission is that what was expressed in the caution was sufficient to bring home to the accused the substance of the caution. The caution was administered after they were advised of their right to counsel.

They understood the caution and they voluntarily gave their statements.

All the four accused argued that article 6(3) of the Constitution was breached in that the four were not advised of their right to a lawyer promptly. The written statements given by the four accused to the police are relied upon by the prosecution as evidence against the accused. Each statement the prosecution says are inculpatory in most parts and reveals the role of each accused in the alleged crime.

Article 6 (3) provides that every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay.

Except for the accused Sautia, the other three accused were under arrest when interviewed by the police and the interviews started immediately upon their arrival at the police station. The accused Sautia was arrested at his home and taken to the Faleolo Police but because he appeared drunk he was left on his own for two hours to rest. He was also shown a vacant corner to lie down and when the interview started he was informed of his right to counsel. The accused alleged that they were advised of their rights to counsel after the written statements were taken and signed. Furthermore it is alleged by the accused Sila that he was told of his right to consult counsel but he did not understand it at the time because he was too weak from lack of sleep and influence of alcohol. Saloi also admits he was advised of his right to counsel but through ignorance and misunderstanding he said No because he did not know what use a lawyer was to him at the time. The most obvious inference that I can deduce from the remark of the accused Saloi is that he was willing to make a statement with or without legal advice at that stage.

The reference by the investigating police officer to contacting a lawyer may have been misinterpreted by the accused Saloi and Sila, or it may have been ambiguous but they certainly did not claim that they misunderstood their rights or were misled by the police officer. I accept the evidence of the police officers that the advice to counsel was given at the beginning of the interview and each defendant was asked whether he understood. It was recognised R v Mallison (1993) 1NZLR 528 and approved by the Samoa Court of Appeal in A.G. v Semi Tupai Ieti C.A. 24/93 that the ultimate question is whether on all the evidence the particular accused understood that he had a right to a reasonable opportunity to obtain legal advice before any continuation of the interview. The evidence leads me to only one conclusion that the four accused were at the beginning of their interviews advised of their rights to counsel and the words by the police officers brought home to each accused the substance of his right to legal advice without delay. I there rule that the statements by each of the four accused are admissible.

The accused Sautia Pofasa admits to kicking and punching the victim inside the house and while the victim was lying in the house he and the accused Saloi picked up the victim and threw him outside onto the rocks where his head struck the large rock.

Sila Falaniko said he started the assault by kicking the victim on the jaw and when the victim fell down he and the others assaulted the victim. He and Sautia then threw the victim outside where he proceeded to strike the victims body, face and head with a stick. Sautia tried to protect the victim from Sila’s strikes but he also was struck in the head and went away. Accused Saloi then stopped Sila. He says in the last paragraph that all the injuries on the victim were from his assault.

Saloi Ve’a on the other said he was angry with the victim after the victim swore and thew the glass at Lui. He then punched the victim and Sila and Sautia joined in the assault until the victim was knocked out. He then threw the victim outside and Sila and Sautia proceeded to assault the victim but he stopped them. He then told Lui and Faamanu to take the victim to the school compound.

Lui said he was challenged by the victim after the victim threw the glass at him. Sila punched the victim and he joined in punching the victim. Saloi then threw the victim outside. After the victim was left at the school compound the accused Lui delivered further punches to the face and jaw.

I bear in mind that the four accused are jointly charged with the offence of causing grievous bodily inquiry and the statements made by each one is not admissible against the other three co-accused. The oral evidence and the written statements of the four accused do not, as stated by the prosecution, show that the four accused were acting in concert or aided and abetted each other when they assaulted the victim on the night in question. In the first place the victim and the four accused had been drinking beer and spirit in the early evening and by the time of the incident which I accept to be after midnight they were all heavily intoxicated. Secondly each one reacted differently to the victim’s aggressiveness. Saloi for example went and grabbed the gun; Sila kicked the victim and Sautia and Lui joined in the affray. Thirdly others retracted earlier from the assault and tried to protect the victim. Lui for example delivered about five punches and stopped. Sautia tried to protect the victim and he was injured in the process. Saloi actually stopped the accused Sila from delivering further blows with the stick to the victim. In summary, I find there is insufficient evidence of active approval and encouragement by each accused upon the others.

It follows therefore that the prosecution must prove that each one of the four accused committed the offence. For if two or more persons are jointly charged for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of Not Guilty in the case of all the defendants because the prosecution has not proved the case. See R v Abbot (1955) 39 Cr. App. R.141.

I now turn to the medical evidence. Upon arrival at Leulumoega Hospital the victim was observed by Doctor Thomsen to be in really bad shape. He then examined the patient and found all the vital signs to be present. The injuries which required treatment were the three deep lacerations at the back of the head. The smallest laceration was 3 cm long and required four stiches, whilst the largest of 6 cm required 8 stiches. Depth of the three lacerations were not measured. There were also lacerations on his upper and lower lips but they were so minor to require stitching. The victim also had broken upper gums with four upper left teeth recently or freshly removed. Other injuries were multiple abrasions and scratch marks on his back, hips and left ankle and these were cleaned and dressed and the victim was then transferred to the Motootua Hospital where he was seen by Doctor Vaai. In his very brief report he Dr Vaai states:

“He had multiple facial abrasions and scalp, with several broken teeth, lacerated upper and lower lips. Both eyes were all swollen.

He was admitted and treated in our ward both the Surgical team and the Dental team. He was discharged home on 20/12/2000 with follow up in the Surgical and Dental Clinic.”

The Elements of the offence

The prosecution must prove beyond reasonable doubt:

(1) The four accused caused grievous bodily harm to the victim; and

(2) That the four accused did so wilfully i.e. they intended to cause grievous bodily injuries; and

(3) That they did so without lawful justifications.

I deal with the first element namely whether the four accused caused really serious bodily injury to the victim. The prosecution submits that all the injuries viewed together should be termed as grievous. The accused Sila in his written confession said he caused all the injuries suffered by the victim but I am not prepared to accept that inculpatory admission considering the evidence before the court as to the events of the night of the incident. I view that particular part of the statement to be largely police invention which runs contrary to the flow of the evidence. At the same time however I accept that the accused Sila was the most aggressive of the four accused when they all assaulted the victim. It is also accepted that the accused Saloi grabbed the gun and pointed it at the victim and did nothing further with the gun. It is not disputed by the four accused that they all assaulted the victim.

But I do not accept that all of the injuries taken together should be viewed as grievous because the two doctors called by the prosecution did not say so. Although Doctor Thomsen said that when the patient arrived he was observed to be in a really bad state yet when he examined the victim all the vital signs were present and the only injuries which needed treatment were the three lacerations at the back of the head. I have reasonable doubt whether the three lacerations can be termed as grievous injury and that doubt should be exercised for the benefit of the four accused. I am also not satisfied that the four missing teeth together with the three lacerations could be classified as really serious bodily injury. But even if they were, the prosecution still has to prove that each of the four accused inflicted the injuries.

The prosecution has failed to prove the first element of the offence and the information should accordingly be dismissed. On the other hand all the four accused have admitted to assaulting the victim and pursuant to Section 39 Criminal Procedure Act I convict the four accused on the offence of common assault and dismiss the charge of causing grievous bodily harm.

JUSTICE VAAI