IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

FERILA PAPALII female of Siusega.
First Accused

AND:

EFO MOALELE female of Palisi and Lalovaea.
Second Accused

Counsel: P Chang and G Patu for prosecution
R Papalii for first accused
L R Schuster for second accused 

Hearing: 21, 22, 23 September 2011

Submissions: 29 September, 3 October 2011

Judgment: 7 November 2011

JUDGMENT OF SAPOLU CJ

The charges

1.	The accused are two female police officers. They are on suspension pending the outcome of this trial. The first accused is constable Ferila Papalii (constable Papalii) and the second accused is sergeant Efo Moalele (sergeant Moalele). They stood trial on one joint charge of grievous bodily harm pursuant to s.79 of the Crimes Ordinance 1961, one joint charge of actual bodily harm pursuant to s.80 of the Ordinance, and two separate charges of assault against each of them individually pursuant to s.78 of the Ordinance. In both joint charges of grievous bodily harm and actual bodily harm, s.23 which is the parties provision is also cited as one of the charging provisions.

2.	The said charges arose from the alleged assault by the accused of one Faasalafa Sione (Faasalafa) on Thursday 13 January 2011 at the Lalomanu police post. The said Faasalafa and her husband Faafetai were suspects in the alleged killing of their missing daughter. They subsequently pleaded guilty to the charge of murder.

The evidence

(a)	Background

3.	In the early morning of 13 January 2011, a team of police officers which included male officers and both accused went out from Apia to Tiavea to search for the missing body of a young girl suspected by the police of being killed and buried somewhere at Tiavea by her parents, the said Faasalafa and Faafetai. The police took with them Faasalafa and Faafetai who were then in police custody.

4.	When the police arrived at Tiavea, Faafetai, the father of the missing girl, told the police that his daughter's body was buried up in the mountains. At that time Faasalafa, the mother of the missing girl, was under the immediate control and supervision of both accused. The police together with Faafetai and Faasalafa climbed up the mountains to where Faafetai said his daughter was buried. It took about four hours.

5.	When the police reached the spot where Faafetai said his daughter was buried, they dug a big hole about six feet deep but did not find the girl's body. Faafetai then told the police that he and Faaslafa had abandoned their daughter's body at the river called Kilo. The police went to that river but again did not find the girl's body.

6.	The police then returned seaward to the village where they were told by Faasalafa that her daughter was buried behind the house they had been living in. The police dug another big hole but again did not find the girl's body. It was then about 1pm in the afternoon and the police decided to go to the police post at Lalomanu for a rest.

(b)	Assault 

7.	At the Lalomanu police post, some of the police officers had a rest outside smoking cigarettes while others played ping-pong. At that time, the two accused took Faasalafa for interrogation inside a room used as a kitchen by the police stationed at Lalomanu.

8.	Constable Nu'utofi Tuese (constable Nuutofi), a female police officer stationed at the Lalomanu police post, was one of the officers smoking outside. She testified that she heard a voice saying "auoi" from inside the kitchen. She went there and found Faasalafa sitting cross-legged on the floor. At that time constable Papalii was standing in front of the sink while sergeant Moalele was standing next to Faasalafa scolding her that the police had suffered much because of her telling lies instead of telling the truth. Because sergeant Moalele was so angry with Faasalafa, she told Faasalafa to put up her fingers. With one hand, sergeant Moalele then picked up a stick which looked like a smooth handle of a spade but with a sharp end and hit the tips of Faasalafa's fingers with it. Constable Nuutofi said that sergeant Moalele then scolded Faasalafa again for lying and not telling the truth. However, Faasalafa continued not to tell the truth. Sergeant Moalele then again held the stick with one hand and again hit the tips of Faasalafa's fingers with it.

9.	At that time, constable Papalii who was wearing boots walked over and kicked Faasalafa on one side and then on the other telling her to stop lying. At that time, sergeant Moalele was standing by looking at what constable Papalii was doing to Faasalafa. After kicking Faasalafa, constable Papalii then stood by folding her arms.

10.	Constable Nuutofi further testified that there was then a call on sergeant Moalele's cell-phone and sergeant Moalele said to constable Papalii that she was going outside to smoke a cigarette but for her not do anything that would cause any injury to Faasalafa. Sergeant Moalele then left the room and walked out.

11.	At that time, according to constable Nuutofi's testimony, constable Papalii picked up the stick used by sergeant Moalele and struck Faasalafa's feet with it. Constable Papalii then delivered a second strike which hit Faasalafa on the thighs. Faasalafa at the time was bending down and crying from the pain. Constable Papalii then said something to which Faasalafa responded. Again, constable Papalii twice struck Faasalafa with the stick. On the last strike, Faasalafa raised her head and the stick hit her on the bridge of the nose (nasal bone) resulting in an injury to her nose. Faasalafa collapsed while blood was spurting from her nose. A pool of blood formed on the floor which was covered with blood.

12.	Constable Papalii was shocked and in a panic. She looked for something to stop the bleeding. Likewise constable Nuutofi. A few minutes later, according to constable Nuutofi, sergeant Moalele returned to the room where Faasalafa had been interrogated. She was shocked to see what had happened. She cried and said to constable Papalii that this was exactly what she had told her not to happen; now I do not know what to do.

13.	Sergeant Moalele then instructed constable Nuutofi to run to the Lalomanu district hospital for medical assistance. The hospital advised constable Nuutofi that it was for the police to bring Faasalafa to the hospital. That was done.

14.	Constable Nuutofi had made two statements to the police during the investigation of this matter. In her first statement, she told the police that Faasalafa's injuries were the result of a fall on the steps of the Lalomanu police statement. This statement was put to her during cross-examination by both counsel for the accused. She said that statement is false. The reason why she had said in her first police statement that Faasalafa sustained her injuries from a fall on the steps outside the Lalomanu police post was because of her love for the accused and she wanted to protect her police colleagues. But in her second police statement she said she told the truth which is much the same as what she said in her oral testimony.

15.	I have given careful consideration to this part of the evidence given by constable Nuutofi. I am satisfied from all of the evidence that constable Nuutofi is right that her first statement about this matter is false. Her second statement is more correct and was the one she adopted. I, therefore, do not consider her first statement which is so inconsistent with her oral testimony to have adversely affected the credibility of that testimony.

16.	The second eye witness of the alleged assault by the accused that was called by the prosecution was Junior Tupai (Junior) the prisoner who is serving his sentence at the Lalomanu police post. Junior testified that when he entered the kitchen where sergeant Moalele, constable Papalii, constable Nuutofi, and Faasalafa were, sergeant Moalele was coming out. He then saw Faasalafa sitting on the kitchen floor while constable Papalii was standing next to her telling her that the police have suffered much because of her telling lies as to where her daughter's body was buried. Constable Papalii then struck Faasalafa about three times with the stick. This was the same stick used by sergeant Moalele. Faasalafa was crying "auoi".

17.	Junior said that the last strike by constable Papalii hit Faasalafa on the nose and blood spurted out. Constable Papalii was shocked. She panicked. She grabbed the cloth that was on the table and a bed sheet and covered Faasalafa's nose trying to stop the bleeding. The floor of the kitchen was covered in blood and there was a pool of blood on the floor. Constable Nuutofi who had been standing by also gave assistance to Faasalafa.

18.	Under cross-examination by counsel for constable Papalii, Junior said that it would be a lie if a witness were to say that Faasalafa's injuries were caused when she fell on the steps outside the Lalomanu police post.

19.	Both accused elected not to give evidence. Sergeant Moalele, however, had written a letter dated 13 April 2011 to the Commissioner of Police wherein she admits that she did assault Faasalafa with a stick. She did not explain how she assaulted Faasalafa.

20.	Surprisingly, Faasalafa was not called as a witness by the prosecution but by the accused. Faasalafa testified that her injuries were caused when she slipped and fell down the steps outside the Lalomanu police post. She denied that any of the accused assaulted her or that her injuries resulted from such an alleged assault. Whilst it may be divine for Faasalafa to forgive the accused, I find her evidence totally unbelievable having regard to all of the evidence that was adduced by the prosecution. Her evidence was also totally inconsistent with what is said in the statement that the assistant commissioner of police Leaupepe Fatu Pula testified Faasalafa had made to him.

(c)	Injuries

21.	Ulima Maka Mati (Ulima) the registered nurse who received, examined, and treated Faasalafa at the Lalomanu district hospital was also called as a witness by the prosecution. She testified that Faasalafa was very weak when she was brought into the hospital. She was supported on each side by a police officer. She was not fully aware of her condition because she could not reply to questions put to her.

22.	Ulima examined Faasalafa and made clinical notes of the injuries she found and the treatments she applied. Those notes were produced in evidence by the prosecution. They show that Faasalafa had a severe cut to the bridge of her nose (nasal bone), bruises and swelling on the right to left arm, a fractured and swollen right arm, lacerations on the left hand, and bruises and a swelling on the lower left leg. The injuries were treated and Faasalafa was transferred to the National Hospital in Apia.

23.	 Under cross-examination by counsel for constable Papalii, Ulima said that the bridge of Faasalafa's nose was severely cut and that the sides of the cut were splintered (nuti). Under cross-examination by counsel for sergeant Moalele, Ulima said that the injury to Faasalafa's nose was an open wound; the nasal bone was cracked and severely cut and bits of bones were removed from the nose. One of the treatments she gave Faasalafa were IV fluids which she said "runs full speed".

24.	Dr Mikaele Ah Kuoi who received and examined Faasalafa upon arrival at the National Hospital in Apia was also called as a witness by the prosecution. He prepared a medical report of the findings of his examination which was produced in evidence. In his report, Dr Ah Kuoi says that that he found on Faasalafa a 5cm deep cut across her mid-nose, a depressed looking wound upon lifting up of the cut skin of the mid-nose, a swelling on the left wrist and forearm which was painful upon touch, pain on the left fingers, swelling and pain on the left knee, and bruises, swelling and tenderness on the left outside ankle. X-rays which were carried out on the patient showed a depressed fracture of the nasal bone and a broken ankle bone (fibula). Faasalafa was admitted the same afternoon by an expatriate doctor who was then a member of the surgical unit at the National Hospital.

25.	Dr. Ah Kuoi in his evidence also said that in his medical opinion the injuries to Faasalafa, including the one to her nasal bone, were not serious because none of those injuries was life threatening and Faasalafa was in a stable condition when she was brought into the National Hospital from Lalomanu.

26.	Dr Aleki Fuimaono the head of the surgical unit at the National Hospital was also called as a witness by the prosecution. He gave evidence as to the notes of the expatriate doctor who admitted Faasalafa. Those notes show that Faasalafa had an open wound on the nose, a tender left leg, and a swollen left hand. X-rays revealed that she had a linear fracture of her fibula and a depressed fracture of her nasal bone. When the infection was settled, she was referred to the ENT specialist for review.

27.	When asked under cross-examination whether the injuries to Faasalafa were serious, Dr Fuimaono said that in his medical opinion they were not. In re-examination by counsel for the prosecution, Dr Fuimaono explained that the reason why in his opinion the injuries to Faasalafa, including the injury to her nasal bone, were not serious was because those injuries were not life threatening.

28.	Dr Toga Potoi the ENT specialist to whom Faasalafa was referred by the surgical team at the National Hospital was also called as a witness by the prosecution. He testified that he saw Faasalafa on 19 January 2011. He found a healed wound across her nasal bone with a clinical fracture with some degree of obstruction of the nasal airways. The patient looked comfortable and was not distressed. Dr Potoi then says in his medical report that on 27 January 2011 he carried out a surgical procedure under general anaesthesia for reduction of the fracture in the nasal bone. Faasalafa made an uneventful recovery and her post operative was satisfactory as her nasal airway had improved and was slowly getting better.

29.	The medical evidence also shows that Faasalafa was admitted into the hospital on 13 January 2011 and was discharged on 19 January 2011 after she was seen by the ENT specialist. She was re-admitted on 27 January 2011 for ENT surgery and was discharged on 1 February 2011. She was again seen by the ENT specialist the next day as an out-patient.

The elements of the charges
(a)	Grievous bodily harm

30.	In terms of s.79 of the Crimes Ordinance 1961, the offence of grievous bodily harm consists of the following three elements which the prosecution must prove beyond reasonable doubt: 

(a)	the accused must have caused grievous bodily harm to the victim;

(b)	the accused must have acted wilfully; and

(c)	the accused's act was without lawful justification

31.	As to the first element of the offence of causing grievous bodily harm, the Samoan Courts, following the decision of the House of Lords in DPP v Smith [1961] 290, have interpreted the words "grievous bodily harm" to mean no more and no less than "really serious bodily harm": Police v Lesa Farani Posala [1994] WSSC 23, Lesa Farani Posala v Attorney General [1995] WSCA 4. It would therefore be an error to use the old formula in R v Ashman (1858) 1 F & F88 that for a harm to amount to grievous bodily it has to interfere seriously with the health and comfort of the victim.

32.	In the English text of Archbold 2006 at 19-206, the learned authors explained the expression "grievous bodily harm" in these words:

" 'Grievous bodily harm' should be given its ordinary and natural meaning of really serious bodily harm, and it is undesirable to attempt any further definition of it: DPP v Smith [1961] AC 290, 116; R v Cunningham [1982] AC 566, HL; R v Brown (A) [1994] 1 AC 212, HL; R v Brown and Stratton [1998] Crim LR 485, CA. It is not necessary that grievous bodily harm should be either permanent or dangerous: R v Ashman (1858) 1 F & F88. Nor is it a pre-condition that the victim should require treatment or that the harm would have lasting consequences; in assessing whether particular harm was 'grievous', account had to be taken of the effect on, and the circumstances of, the particular victim: R v Bollom, The Times, December 15, 2003, CA. Bodily harm includes psychiatric injury: R v Ireland; R v Burstow [1998] AC 147, HL".

33.	In the New Zealand text of Adams on Criminal Law (1992) vol 1 at CA. 306.04, the learned author state:

"This expression ['grievous bodily harm'] was formerly held to require the infliction of bodily harm of greater severity than would be necessary to constitute actual bodily harm, but that it need not be either permanent or dangerous provided it was such as to interfere seriously with the comfort or health of the victim. But it has now been authoritatively held that the expression should be given no meaning:

" 'other than that in which the words convey in their ordinary and natural meaning. 'Bodily harm' needs no explanation, 'grievous' means no more and no less than 'really serious' 'DPP v Smith [1961] 3 A11 ER 161, 171 (HL).

 " As a result, it is now a misdirection to adopt the old formula and invite a jury to find a person accused of an offence involving intent to do grievous bodily harm guilty if the only intent established is intent to interfere seriously with health or comfort: R v Metharam [1961] 3 A11 ER 200 (CA)".

34.	As to the word "wilfully" in the second element of the offence of causing grievous bodily, Lord Keith in the leading case of R v Sheppard [1981] AC 304, HL, said at p.418 in relation to an offence under s.(1) of the Children and Young Persons Act 1933 (UK):

 " The primary meaning of 'wilful' is 'deliberate'. So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equipirated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence. But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty".

35.	In Archbold 2006 at 17-48, the learned authors submit that in the absence of a specific decision on a specific provision to the contrary, any provision containing the word "wilfully" in the definition of a crime should be construed in accordance with the approach in R v Sheppard [1981] AC 394, HL. The learned authors then go on to say:

" See also Attorney General's Reference (No.3 of 2003) [2004] 2 Cr App R '23, CA, where it was said that there was no material difference between Sheppard and R v G [2004] 1 AC 1034, HL (now the leading case on recklessness), and in which it was said that "wilful" misconduct means deliberately doing something that is wrong, knowing it to be wrong, or with reckless indifference as to whether it is wrong or not…"

36.	From the English authorities, I am of the view that for the purpose of the offence of grievous bodily harm provided in s.79 of the Crimes Ordinance 1961, the word "wilfully" used therein should be taken to mean "deliberately" or "with reckless indifference".

37.	As to "without lawful justification" in the third element of grievous bodily, that must mean any common law or statutory justification, excuse, or defence: see Part II of the Crimes Ordinance 1961. In practical terms, the prosecution is not required to prove beyond reasonable doubt the absence of every defence that can be imagined to a charge of grievous bodily harm. But if a justification, excuse, or defence is arguably open on the evidence, the prosecution must prove beyond reasonable doubt that such a justification, excuse, or defence is not available to the accused.

(b)	Actual bodily harm

38.	In terms of s.80 of the Crimes Ordinance 1961, the offence of actual bodily harm consists of the following three elements which the prosecution must prove beyond reasonable doubt:

(a)	the accused must have caused actual bodily harm to the victim;

(b)	the accused must have acted wilfully; and

(c)	the accused's act was without lawful justification.

39.	What I have said in relation to the second and third elements of the offence of grievous bodily harm would also apply to the second and third elements of the offence of actual bodily harm.

40.	As to the expression "actual bodily harm" used in the first element of this offence, the learned authors of Archbold 206 state at 19-197:

" 'Bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling: R v Donovan [1934] 2 KB 498, 25 Cr App R1, CCA, cited with approval by Lords Templeman and Jauncey in R v Brown (A) [1994] 1 AC 212, HL, at pp. 230 and 242 respectively. It may include a momentary loss of consciousness; where there is injurious impairment to the victim's sensory functions, 'it is axiomatic that the bodily harm was actual': R (T) v DPP [2003] Crim LR 622, QBD (Maurice Kay J).

 " Actual bodily harm is capable of including psychiatric injury but it does not include mere emotions, such as fear, distress or panic: R v Chan – Fook, 99 Cr App R 147, CA; R v Ireland; R v Burstow [1998 AC 147, HL. Without appropriate expert evidence, the question whether an assault had occasioned psychiatric injury should not be left to the jury: R v Chan-Fook, ante".

(c) Assault 

41.	It is not necessary in this judgment to set out the elements of the offence of assault as provided in s.78 of the Crimes Ordinance 1961. The term "assault" is explained in s.78(2).

Mode of participation 

42.	The accused constable Papalii and sergeant Moalele are jointly charged with grievous bodily and in the alternative with actual bodily harm. Each of them is also separately charged with assault.

43.	The evidence of both eye witnesses constable Nuutofi and Junior showed that sergeant Moalele was not present in the room where Faasalafa was interrogated when constable Papalii started striking Faasalafa with a stick. Sergeant Moalele had already left the room by that time and gone outside to smoke a cigarette. The evidence of constable Nuutofi also showed that sergeant Moalele had only hit the tips of Faasalafa's fingers twice and as she was about to leave the room, she told constable Papalii not to do anything that would cause any injury to Faasalafa. Constable Nuutofi further said that when sergeant Moalele later returned to the room and saw that Faasalafa was injured she was shocked. She also cried and said to constable Papalii that this was exactly what she had told her not to happen. It is also clear from the evidence of constable Nuutofi and Junior that Faasalafa's nose was injured by constable Papalii while sergeant Moalele was absent.

44.	For sergeant Moalele to be found guilty of the acts committed by constable Papalii which caused the injuries to Faasalafa, the prosecution has to show that sergeant Moalele was a party to those acts in terms of s.23 of the Crimes Ordinance 1961.

45.	In the commentary in the New Zealand text of Adams on Criminal Law (1992) vol 1 on s.66(1) of the New Zealand Crimes Act 1961 which is identical in terms to s.23(1) of our Crimes Ordinance 1961, the learned authors state at CA 66(1).03(a):

 " 'Aiding' means assisting, helping, or giving support to. Although s.66(1)(b) stipulates only that a person does or omits an act 'for the purpose of aiding', the mere commission of an act intended to have that effect is insufficient. To sustain a conviction for aiding there must be proof of 'actual' assistance: Larkins v Police [1987] 2 NZLR 282; (1987) 3 CRNZ 49. The reference to 'purpose' in s.66(1)(b) is descriptive of the state of mind of the aider and 'superimposes' a requirement in that respect upon the need for proof that the accused did an act which had the effect of aiding': Larkins v Police, above;… Minimal assistance will suffice and it is not necessary to show that the aid caused the principal party to commit the offence". 

46.	As to the meaning of the terms "abets" "incites", and "counsels" used in s.66(1)(c) and (d) of the New Zealand Crimes Act 1961, Adams on Criminal Law (supra) states at CA 66(1) 03(b):

"These terms [abets, incites, and counsels] overlap on their ordinary meanings. 'Abet' and 'incite' both convey the sense of urging on, instigating, or encouraging. The primary meaning of 'counsel' is to advise or recommend, though in a narrower sense it is sometimes treated as equivalent to inciting or instigating. At common law abetting and counselling were distinguished by reference to the time at which the act of participation was performed. An abettor was one who was actually or constructively present at the scene of an offence as a principal in the second degree, whereas a counsellor was involved earlier as an accessory before the fact. Arguably, this distinction is reflected in the language of s.66(1)(c) and (d): whereas para (c) refers to abetting 'in the commission of the offence' and carries an implication that the abetting occurs while the offence is being committed, the words 'to commit the offence' in para (d) may contemplate inciting, counselling, or procuring before the commission of the offence…

"In recent practice abetting has been broadly equated with encouragement… Encouragement may be given by words or conduct, eg where intentional presence is an incentive to the principal party to commit the offence. It may also take the form of passive acquiescence where there is a duty to act… In the context of s.66(1)(d), 'counsels' seems more apt to describe the provision of advice or information, though such conduct can also be regarded as aiding under s.66(1) (b)… Inciting involves an element of persuasion, inducement, coercion, or pressure beyond encouragement. This is the sense in which the term is usually explained at common law in relation to the inchoate offence of incitement…

"To be effective, there must be some connection between the abetting, inciting, or counselling, and the commission of the offence by the principal party. Although it is not necessary to prove that the encouragements caused or even influenced the principal party to commit the offence, the principal party must at least have been aware of the fact of encouragement: R v Clarkson [1979] 1 WLR 1042 (abetting), R v Calhaem [1985] QB808 (counselling); Attorney-General's Reference (No1 of 1975) [1975] QB 773 (abetting and counselling). Proffered advice, encouragement, or persuasion that has no effect because it does not reach the mind of the principal party is not culpable under s.66(1)(c) – (d): see Smith and Hogan's Criminal Law (7th ed, 1992) pp 127-128".

47.	AS to the meaning of the term "procures" used in s.66(1)(d) of the New Zealand Crimes Act 1961, Adams on Criminal Law (supra) states at CA 66(1).03 (c):

 "A person 'procures' another to commit an offence by deliberately causing that person to commit the offence. 'To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening': Attorney General's Reference (No. of 1975) [1975] QB 773, followed in Cardin Laurant Ltd v CC [1990] 3 NZLR 563;… Unlike the other forms of secondary participation in s.66(1)(b) – (d), the ordinary meaning of procuring implies achievement of the result intended. There must be a 'causal link' between the procuring and the offence in the sense that the offence was committed 'in consequence' of the procuring: Attorney General's Reference (No 1 of 1975). In Blakeley v DPP, procuring was said to require an act which in fact causes 'to a significant extent at least', the committing of the offence by the 'principal party'. See also R v EF [1976] 2 NZLR 389 (CA) for the requirement of 'effective cause' in relation to the offence of procuring sexual intercourse under s.149…"

48.	As to the mens rea requirement to establish liability under s.66(1)(b)-(d) of the New Zealand Crimes Act 1961, Adams on Criminal Law (supra) states at CA 66(1).05:

 "The mens rea required to establish secondary liability under s.66(1)(b) –(d) is usually described as an intention to help or encourage the principal party. This general requirement is well established by a line of authority dealing with liability for aiding or abetting by presence at the scene of an offence: R v Lewis [1975] 1 NZLR 222 (CA); R v Pene 1/7/80, CA 63/80; R v Genet 10/4/83, CA 146/83; R v Witika (1991) 7 CRNZ 621 (CA); Larkins v Police [1987] 2 NZLR 282; (1987) 3 CRNZ 49; see also R v Tomkins [1985] 2 NZLR 253 (CA); R v Samuels [1985] 1 NZLR 350 (CA); R v Curtis [1988] 1 NZLR 734 (CA). These cases make it clear that to constitute liability under s.66(1)(b)-(d) there must be proof of both help or encouragement in fact and an intention help or encourage. More specifically, the general requirement of an intention to aid, abet, etc comprises two distinct elements: (i) knowledge of the essential matters that constitute the offence committed by the principal party; and (ii) an intention or purpose to help or encourage the principal party to do the acts that constitute the offence…"

49.	In respect of s.66(2) of the New Zealand Crimes Act 1961 which is in very similar terms to s.23(2) of our Crimes Ordinance 1961, Adams on Criminal Law (supra) state at CA 66(2).01: 

 "Whereas s.66(1) (b) – (d) deals with intentional participation in the very offence committed by the principal party, the common intention rule in s.66(2) establishes secondary liability in a different situation: see R v Curtis [1988] 1 NZLR 734 (CA)… compare G Orchard "Parties to an Offence: The Function of s.66(2) of the Crimes Act" [1988] NZLJ 151. Where A and B form a common intention to prosecute an unlawful purpose, under s.66(2) A is liable for every offence committed by B in carrying out that purpose if A knew the commission of the offence was a probable consequence of carrying out the common purpose. It is immaterial that A did not intend the offence to be committed, did not intend to help or encourage its commission and did not in fact help or encourage B to do the acts that resulted in the offence: R v Curtis… R v Hamilton [1985] 2 NZLR 245 (CA). Section 66(2) has particular application to the case where one of the parties to a plan to commit offence X commits a different 'collateral' offence Y in carrying out the plan…"

50.	Further on at CA 66(2).02, the learned authors of Adams on Criminal Law (supra) state:

"[Section] 66(2) applies only where there was a 'common intention' between the parties 'to prosecute any unlawful purpose, and to assist each other therein'. If the provision is to be invoked there must therefore be evidence of a common intention to which the accused was a party: R v Curtis [1988] 1 NZLR 734 (CA)".

51.	At CA 66(2).03 of Adams Criminal Law (supra), the learned authors state:

 "For secondary liability to arise under s.66(2) there must be proof that one of the parties to the common intention actually committed the offence charged, though that person need not have been convicted of the offence: R v Zanini [1967] SCR 715;… Hence if s66(2) is invoked to sustain a charge of murder in a case involving several persons, the particular elements of murder as charged must be established against one before there is any basis for attaching secondary liability to the others: R v Nathan [1981] 2 NZLR 473. The offence must also have been committed 'in the prosecution of the common purpose': R v Phillips [1967] Qd R 237. This requirement would appear to exclude liability where the offence charged was not a consequence or incident of carrying out the common purpose but the result of some unrelated and independent initiative by a party to the original common intention…"

52.	I would recommend that counsel who practise criminal law should read in full and study Part IV on "Parties To the commission Of Offences" in Adams on Criminal Law (1992) vol 1.

Discussion 
(a)	Grievous bodily harm

53.	In considering the liability of each of the two accused in relation to the charge of grievous bodily harm, I would have to consider first the liability of the first accused constable Papalii as the principal party because she was the person who actually committed the act that the prosecution is alleging to have caused grievous bodily harm to the victim Faasalafa. In terms of s.23(1) (a) of the Crimes Ordinance 1961, a person who "actually commits the offence" is a party to the offence. Such person is commonly referred to as the "principal party": Adams on Criminal Law (1992) vol 1, CA 66.04.

54.	The evidence given by the prosecution witness constable Nuutofi showed that constable Papalii first kicked Faasalafa on each side, in the presence of sergeant Moalele the second accused, inside the room where Faasalafa was being interrogated. After sergeant Moalele had left the room, constable Papalii, according to the evidence of constable Nuutofi and the other prosecution witness Junior, hit Faasalafa with a stick three or four times. These hits appeared to be powerful hits because they made Faasalafa to say "auoi". The last of these hits injured and fractured Faasalafa's nasal bone. Blood spurted out from the injury. The floor was covered in blood and there was also a pool of blood on the floor. The witness Junior said Faasalafa fell to her side unconscious. Constable Papalii was shocked by the injury. She grabbed a cloth which was on the table and a sheet to try and stop the bleeding from Faasalafa's nose.

55.	When sergeant Moalele returned to the room, she too was shocked to see the injury on Faasalafa's nose. The police then hurriedly took Faasalafa to the Lalomanu district hospital which was the nearest hospital.

56.	The prosecution witness Ulima who was the registered nurse who received, examined, and treated Faasalafa at the Lalomanu district hospital testified that when Faasalafa was brought to the hospital she was very weak. She was supported on each side by a police officer. She was not fully aware of her condition because she could not reply to questions put to her.

57.	In describing the injuries that she found on Faasalafa, Ulima said that there was a severe cut to the bridge of her nose (nasal bone). Under cross-examination, Ulima said Faasalafa's nose was severely cut and that the sides of the cut were splintered (nuti). She also said that Faasalafa's nasal bone was cracked and severely cut and bits of bones were removed from her nose. One of the treatments she gave Faasalafa were IV fluids which she said "runs full speed". Faasalafa was brought by ambulance to the National Hospital the same day for further treatment.

58.	Dr Ah Kuoi who received Faaslafa at the National Hospital testified that amongst the injuries he found on her were a 5cm cut across her mid-nose and a depressed looking wound upon lifting up of the skin. X-rays that were carried out showed a depressed fracture of the nasal bone and a broken ankle bone. He said that none of the injuries he found on Faasalafa was serious as they were not life threatening and Faasalafa was in a stable condition when she was brought into the National Hospital. She was admitted the same and was discharged six days later on 19 January 2011.

59.	 Dr Fuimaono, who was called by the prosecution in relation to the notes taken by the expatriate doctor who admitted Faasalafa, testified that on the basis of those notes he was of the opinion that the injuries to Faasalafa were not serious as they were not life threatening.

60.	Faasalafa was re-admitted to the hospital on 27 January 2011 for medical surgery. Dr Potoi, the ENT specialist, performed a surgical operation to reduce the fracture in Faasalafa's nasal bone. Dr Potoi testified that Faasalafa made an uneventful recovery and her post operative was satisfactory as her nasal airway had improved and was slowly getting better.

61.	The question of whether an injury is really serious so as to amount to grievous bodily harm is for the Judge as trier of fact to decide: Police v Lesa Farani Posala [1994] WSSC 23. It is not for the doctors to decide even though their medical opinions are usually given due weight and respect.

62.	In law, grievous bodily harm means really serious bodily harm: DPP v Smith [1961] AC 290 which was followed in Police v Lesa Farani Posala [1994] WSSC 23; Lesa Farani Posala v Attorney General [1995] WSCA 4. It is not synonymous with bodily harm that interferes seriously with the health or comfort of the victim: R v Smith [1960] 3 A11 ER 161, 171; Adams on Criminal Law (1992) vol 1, CA 306.04. As pointed out in Archbold 2006 at 19-206, it is not necessary that grievous bodily harm should be either permanent or dangerous; nor is it a precondition that the victim should require treatment or that the harm would have lasting consequences; and in assessing whether a particular harm was grievous, account had to be taken of the effect on, and the circumstances of, the particular victim.

63.	In the medical opinions of Dr Ah Kuoi and Dr Fuimaono, the injury to the nose of the victim was not serious because it was not life threatening. This was like saying that the injury was not serious because it was not dangerous to life. But Archbold 2006 points out at 19-206 that it is not necessary that grievous bodily harm should be dangerous bodily harm. It would also be an error to treat grievous bodily harm as meaning the same as bodily harm that interferes seriously with the health or comfort of the victim. As Archbold 2006 further points out at 19-206, the expression "grievous bodily harm" should be given its ordinary and natural meaning, and in assessing whether a particular harm was grievous, account had to be taken of the effect on, and the circumstances of the victim. This is the same approach this Court applied in Police v Lesa Farani Posala [1994] WSSC 23 and by the Court of Appeal in Lesa Farani Posala v Attorney General [1995] WSCA 4.

64.	In this case, when constable Papalii hit the victim on the nose as she was sitting cross-legged on the floor, the victim fell to her side unconscious. Blood spurted out from the victim's nose. The floor was covered in blood. A pool of blood formed on the floor. The evidence of constable Nuutofi and the witness Junior was that "ua lepa le koko i luga o le floor". Even constable Papalii was shocked by the injury. So shocked was she that she stopped hitting the victim and grabbed the cloth on the table and a sheet to help the victim with her injury. Even sergeant Moalele was also shocked when she returned to the room and saw the injured victim. She also cried and told constable Papalii that this was exactly what she had told her not to happen but it has happened. The police then hurriedly took the victim to the Lalomanu district hospital. Evidently, all these actions show that the police were very concerned about the victim's injury and condition. They would not have stopped the interrogation and rushed the victim to the hospital if it was not a serious injury.

65.	I have already referred to the evidence of Ulima the nurse who received, examined, and treated the victim at the Lalomanu district hospital. She said the victim was very weak and was supported on each side by a police officer when she was brought into the hospital. This suggests that the victim could not walk or could hardly walk without being supported. The victim also could not reply to questions put to her and she appeared not to be aware of her condition. The victim also had to be transferred by ambulance to the National Hospital that very same day.

66.	I need not repeat in detail the nature of the injury to the victim's nose and the treatments Ulima gave her. Essentially the victim's nasal bone was cut and fractured (cracked). The bones at the sides of the cut were splintered and bits of bones were removed from her nose. Amongst the treatments that Ulima gave the victim were IV fluids that "ran at full speed". The victim was later x-rayed the same day on arrival at the National Hospital and she was found to have suffered a depressed fracture to the nasal bone. The victim was admitted the same day and she was not discharged from the National Hospital until six days later. She was later re-admitted for about five days for surgery to reduce the fracture to her nasal bone.

67.	In my respectful view, the injury to the victim's nose was really serious harm and therefore amounted to grievous bodily even if it was not life threatening.

68.	I am also satisfied that the act by constable Papalii which caused grievous bodily harm to the victim was 'wilful' in the sense that it was deliberate or inflicted with reckless indifference. There was also no lawful justification for such an act. The charge of grievous bodily harm has therefore been proved beyond reasonable doubt against the first accused constable Papalii.

69.	As the second accused sergeant Moalele was not present when grievous bodily harm was caused to the victim Faasalafa, she was not a principal party to the commission of the offence in terms of s.23 (1) (a) of the Crimes Ordinance 1961. Section 23(1)(a) applies to a person who "actually commits the offence" and sergeant Moalele did not actually commit the offence of grievous bodily harm. 

70.	For sergeant Moalele to be found guilty of the offence of grievous bodily in terms of s.23 (1), her liability would have to be established as a secondary party under s.23 (1) (b) – (d). Section 23(1) (b) provides:

 "Everyone is a party to and guilty of an offence who does or omits an act for the purpose of aiding any person to commit the offence".

71.	It is crucial that for a person to be convicted as a secondary party in terms of s.23(1) (b) there must have been an "aiding" by him or her of the principal party. "Aiding" means assisting, helping, or giving support to. To sustain a conviction for aiding there must be proof of "actual" assistance: Adams on Criminal Law (1992) vol 1 CA66 (1).03 (a) citing Larkins v Police [1987] 2 NZLR 282;(1987) 3 CRNZ 49.

72.	There is no evidence that sergeant Moalele actually assisted, helped, or gave support to constable Papalii in causing grievous bodily harm to Faasalafa. To the contrary, sergeant Moalele told constable Papalii not to cause any injury to Faasalafa. When she returned to the room and discovered that Faasalafa was injured she told constable Papalii that this was exactly what she had told her not to happen. On this evidence, sergeant Moalele cannot be liable as a secondary party under s.23 (1) (b).

73.	Section 23(1) (c) provides:

 "Every person is a party to and guilty of an offence who abets any person in the commission of the offence". 

74.	In Adams on Criminal Law (1992) vol 1, CA 66 (1).03(b) the learned authors state that "abet" and "incite" both convey the sense of urging on, instigating, or encouraging. In recent practice abetting has been broadly equated with encouragement. This may be given by words or conduct, for example, where intentional presence is an incentive to the principal party to commit the offence or it may take the form of passive acquiescence where there is a duty to act.

75.	There is no evidence that sergeant Moalele urged on, instigated, or encouraged constable Papalii to cause grievous bodily harm to Faasalafa. If anything, sergeant Moalele before she left the room where Faasalafa was interrogated, instructed constable Papalii not to cause any injury to Faasalafa. So sergeant Moalele could not have abetted constable Papalii to cause grievous bodily harm to Faasalafa. Sergeant Moalele therefore cannot be liable as a secondary party to the offence of grievous bodily harm under s.23 (1) (c).

76.	Section 23 (1) (d) provides:- 

 "Everyone is a party to and guilty of an offence who incites, counsels, or procures any person to commit the offence".

77.	As for the term "incite", Adams on Criminal Law (1992) vol 1 at CA 66(1).03 (b) states, as already pointed out, that like the term "abet" the term "incite" conveys the sense of urging on, instigating, or encouraging. Inciting involves an element of persuasion, inducement, coercion, or pressure beyond encouragement. On the evidence, sergeant Moalele did nothing of these things. So she could not have incited constable Papalii to commit grievous bodily harm on the victim in terms of s.23 (1) (d).

78.	As for the term "counsel", Adams on Criminal Law points out at CA66(1).03 (b) that the primary meaning of "counsel" is to advise or recommend though in a narrower sense it is sometimes treated as equivalent to inciting or instigating. It is further pointed out that "counsels" seems more apt to describe the provision of advice or information though such conduct can also be regarded as aiding under s.66 (1) (b) of the New Zealand Crimes Act 1961 which is identical in terms to s.23 (1) (b) of our Crimes Ordinance 1961. There is no evidence to show that sergeant Moalele provided any advice, recommendation, or information to constable Papalii to make the latter cause grievous bodily harm to the victim. So sergeant Moalele could not have counselled constable Papalii to commit grievous bodily harm on the victim in terms of s.23 (1) (d).

79.	In respect of the term "procure", Adams on Criminal Law points out at CA 66(1).03 (c) that to procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. Again, there is no evidence that sergeant Moalele did any such thing. So she cannot be said to have procured constable Papalii to commit grievous bodily on the victim in terms of s.23(1) (d).

80.	It follows from what has been said that sergeant Moalele cannot be liable of grievous bodily as a principal party in terms of s.23(1) (a) or as a secondary party in terms of s.23(1) (b) – (d) of the Crimes Ordinance 1961.

81.	I turn now to s.23(2) which provides:

 "Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by anyone of them in the commission of the common purpose if the commission of that offence was or might have been known to be a probable consequence of the prosecution of the common purpose".

82.	For sergeant Moalele to be found a party in terms of s.23(2), it is crucial for the prosecution to show beyond reasonable doubt that there was a "common intention" formed between sergeant Moalele and constable Papalii "to prosecute any unlawful purpose, and to assist each other therein". Evidently, there was no evidence of such a common intention. Not only was there no evidence of any common intention to prosecute an unlawful purpose but there was also no evidence of a common intention to assist each other therein. So s.23(2) does not apply. It follows that sergeant Moalele cannot be liable as a party for the offence of grievous bodily in terms of s.23(2).

83.	Sergeant Moalele is therefore not guilty of the offence of grievous bodily harm.

(b)	Actual bodily harm

84.	In relation to the offence of actual bodily harm I will again have to consider first the liability of the first accused constable Papalii as the principal party because it appears from the evidence adduced by the prosecution that it was her who caused the injuries which the nurse Ulima and Dr Ah Kuoi found on the victim Faasalafa. The evidence of constable Nuutofi was that as sergeant Moalele was interrogating and scolding Faasalafa for continuing not to tell the truth about where her daughter's body was buried, she would tell Faasalafa to lift up her fingers and she would hit the tips of Faasalafa's fingers with the stick. That was only done twice. From constable Nuutofi's evidence these would appear to be relatively soft hits. Her evidence was to the effect that "Na tago Efo tātā tumutumu lima o Faasalafa. The word "tātā" suggests that they were relatively soft hits. There was no evidence that sergeant Moalele delivered any other hits. 

85.	Apart from the injuries to Faasalafa's nasal bone, the other injuries found on her were bruises and swelling on the right to left arm, a swollen right arm, lacerations on the left hand, bruises and a swelling on the lower left leg, swelling on the left knee, bruises and swelling on the left outside ankle, and a broken ankle bone (fibula). There was really no dispute that these injuries or most of them constitute actual bodily harm.

86.	In Archbold 2006 at 19-197, actual bodily harm is explained to include any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent but must be more than merely transient or trifling; and it may also include a momentary loss of consciousness.

87.	The evidence by the prosecution clearly suggests that the injuries found on Faasalafa were caused by the strikes with the stick delivered by constable Papalii. Such strikes were evidently wilful in the sense that they were deliberate or delivered with reckless indifference. There was also no lawful justification for such acts. The charge of actual bodily harm has therefore been proved beyond doubt against the first accused constable Papalii.

88.	In respect of the second accused sergeant Moalele, for her to be found guilty of actual bodily harm, the prosecution would have to show beyond reasonable doubt that she was a secondary party in terms of s.23(1) (b) –(d) or s.23(2). I have already discussed those provisions in relation to the charge of grievous bodily harm and I need not repeat that discussion. Suffice to say that that discussion also applies to the present charge of actual bodily harm.

89.	On the evidence, I am not satisfied beyond reasonable doubt that in terms of s.23(1) (b)-(d) sergeant Moalele did or omitted an act for the purpose of aiding constable Papalii to commit actual bodily, or abetted constable Papalii in the commission of actual bodily harm, or incited, counselled or procured constable Papalii to commit actual bodily harm. I am also not satisfied that in terms of s.23(2) sergeant Moalele and constable Papalii formed a "common intention to prosecute any unlawful purpose, and to assist each other therein". Sergeant Moalele is therefore not guilty as a secondary party to the offence of actual bodily harm.

(c)	Assault 

90.	The accused are each separately charged with assault. Their respective liabilities on that charge is therefore to be considered on an individual basis without reference to s.23. The prosecution also did not rely on s.23 for the assault charges.

91.	On the evidence which I have decided to accept, I am satisfied beyond reasonable doubt that each of the accused did assault Faasalafa. Both of them are therefore guilty of assault.

Conclusions 

92.	For the foregoing reasons, I have come to these conclusions:

(i)	In respect of the first accused constable Ferila Papalii, I am satisfied beyond reasonable doubt that the charge of grievous bodily harm has been proved against her.

(ii)	I am also satisfied that the charges of actual bodily and assault have been proved against her.

(iii)	In respect of the second accused sergeant Efo Moalele, I am not satisfied beyond reasonable doubt that the charge of grievous bodily harm has been proved against her. That charge is therefore dismissed.

(iv)	I am also not satisfied that the charge of actual bodily harm has been proved against her. That charge is therefore also dismissed.

(v)	I am, however, satisfied beyond reasonable doubt that the charge of assault has been proved against sergeant Efo Moalele.

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia, for prosecution
Papalii Law Firm for first accused
Schuster and Annandale Law Firm for second accused