IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MA’ALAULI VALOVASA FELISE,
male of Tuanai
Defendant

Counsel: Mr K Koria for prosecution
Mr S Toailoa for the defendant

Hearing: 2 August 2005
Decision: 12 August 2005

DECISION OF VAAI J

On Saturday night the 17th April 2004 Kelekolio Muliagatele Tovia the complainant was assaulted twice at his home village of Tuanai. After the second assault he was admitted to the Motootua hospital with injuries to his face and mouth which included multiple lacerations of the face, missing upper and central incisors and severe fracture of the jaw. The fracture was so severe that the complainant was transferred to New Zealand for treatment which required the use of sophisticated equipment not available in Samoa. Under cross-examination the fracture according to the doctor could not have been caused by a punch with a fist; in fact a kick or a blow with an instrument like a rock or timber caused the fracture. Prior to the complainant’s departure for New Zealand he was given temporary reduction and immobilisation of the mandible with arch bars under general anaesthesia, as well as intravenous fluids and antibiotic administrations.

The accused is charged that he wilfully and without lawful justification caused the grievous bodily injury. At the close of the prosecution case the defence elected to call no evidence and submissions were heard from both counsels. Neither counsel addressed the nature of injuries as described by the doctor. I accept as uncontested by counsels and from the evidence of the doctor that the injuries were grievous.

What is contested is that it was the accused who wilfully and without lawful justification inflicted the grievous injuries. The evidence is brief and fairly straight forward. In the early evening of the 17th April 2004 the complainant together with Mala and others were drinking home brew beer at Tuanai at the house of Mala. The complainant then left to get some of his relatives and friends to join the party; but instead of going to get the others the complainant diverted to the house of the accused; woke up the accused's 14 year old daughter and asked her to go to the Tuanai back with him, She did not go; instead she told her uncle Eni (younger brother of the accused) who then went looking for the complainant and assaulted the complainant.

The accused who did not witness the assault took the complainant home; he was not happy with his brother Eni for assaulting the complainant, but after the accused was told by Mala why Eni assaulted the complainant the accused's anger turned away from Eni. He was now visibly angry with the complainant. Mala took the accused home away from the complainant but soon after the accused returned and again Mala and others intervened. The accused's parents also came and they took the accused away but again the accused unknown to anyone returned and assaulted the complainant. This assault was brought to the attention of Eni who heard the call from the complainant and Eni in turn called to Mala. Eni went over and he saw the accused delivering two punches. Mala also went over and this time he noticed that the complainant had a broken jaw and his lips were bleeding. Mala and others then took the complainant to the hospital after Mala took the accused home.

Counsel for the accused submits the dismissal of the charge on two grounds namely:

the prosecution has not proved beyond reasonable doubt that it was the accused who caused the injuries.

the accused was not positively identified by Eni or by Mala as the person who delivered the punches.

I shall deal with both grounds together. Counsel submits that neither of the prosecution witnesses pointed to the accused in the dock and testified that the accused was Ma'alauli Valovasa Felise who punched the complainant. Both witnesses Mala and Eni referred to the accused as Ma'a and counsel for the defence is quite correct that neither of the witnesses pointed to the accused as the person Ma'a whom they saw punching the complainant. But the accused’s daughter was also called as a witness to confirm that the complainant did come to their house on the evening in question and asked her to go with him to the back. She told the court and pointing to the accused in the dock as her father Ma'alauli Felise. On the totality of the evidence I am satisfied that the identity of the accused has been proved beyond reasonable doubt. In addition to the evidence of the daughter I have referred to, there is also the evidence of Eni brother of the accused who said that after he assaulted the complainant, he told Mala and others not to tell Ma'a why the complainant was assaulted. Furthermore the accused appeared personally on the 21st June and entered a not guilty plea and he was remanded on bail to the 19th November for hearing. On the 19th November when the matter was called before Sapolu CJ for hearing the court accepted an application by the accused to consult counsel and the proceedings were further adjourned to the 29th November for counsel to appear. According to the court file Mr Toailoa appeared on the 29th November as counsel for the accused and the hearing date was then set. It is without doubt that the person Ma'a referred to by the witness Mala and Eni is the one and the same person named in the information who was seen by his brother Eni assaulting the complainant the second time which caused the injuries to the jaw requiring medical attention the same evening. The only conclusion reached from the evidence is that the accused was the offender spoken of by the witnesses Eni and Mala as well as the accused's daughter. As was said by Somers J in MacDonald v Police (1980)2 NZLR 482 at 483-

"……what is required is evidence which satisfies the learned Magistrate upon the appropriate onus of proof that the person before him is indeed the person who is alleged to have committed the offence….."

It is also correct neither of the eye witnesses saw the accused deliver the blows to the complainant which caused the fractures. But again the evidence points squarely to the accused. When Eni heard the call from the complainant the accused was then assaulting the complainant and inflicted the injuries to the jaw which were not there after the first assault by Eni. It was the second assault by the accused which necessitated hospitalisation. It was wilful and without unlawful justification.

The accused is guilty as charged.

JUSTICE VAAI