supreme court of samoa
Police v Lima [2014] WSSC 31

Case name: Police v Muliagatele Anae Pala Brian Lima
Citation: [2014] WSSC 31
Decision date: 30 May 2014  
Parties: police (prosecution) and Muliagatele Anae Pala Brian Lima male of Letogo  
Hearing date(s): 24 – 25 April 2014, 7 – 9 May 2014
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice ida m malosi
On appeal from:
Order:
Representation: 
L Sua-Mailo for prosecution
R Drake and M Vaai for defendant
Catchwords: 
Words and phrases:
causing serious bodily injury with intent, threatening words, armed with an object, throwing an object
Legislation cited:
Crimes Act 2013, ss.118(1), 119(1)
Police Offences Ordinance 1961, ss.4(g), 25, 26
Crimes Ordinance 1961, ss.2, 79, 80
Cases cited:
R v Clarence (1888) 22 QBD 23
R v McCreedy [1978] 3 All ER 967
R v Latimer (1886) 17 QBD 359 (CR C R)
R v McMasters [1920] GLR 351
Chandler v R, HC Napier AP4/93, 10 February 1993
Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 (DC)
Narayan v Police [2010] NZAR 36 (HC)
Attorney General’s Reference (No 3 of 1994) [1998] 1 CrAppR 91
Police v Papalii [2011] WSSC 138 (3 October 2011)
Police v Lameko [2014] WSSC 12 (21 February 2014)
DPP v Smith [1961] AC 290
Police v Lesa Farani Posala [1994] WSSC 23
Lesa Farani Posala v Attorney General [1995] WSCA 5
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
R v Ashman (1858) 1 F & F88
R v Bollom, The Times December 15, 2003, CA
R v Ireland
R v Burstow [1998] AC 147, HL
R v Methara [1961] 3 All ER 2000 (CA)
R v Donovan [1934] 2 KB 498, 25 Cr App RI
R(T) v 	DPP [2003] Crim LR622, QBD
R v Waters [1979] 1 NZLR 375
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
muliagatele anae pala brian lima male of Letogo
Defendant

Counsel:	L Sua-Mailo for prosecution
R Drake and M Vaai for defendant
Hearing:	24 – 25 April 2014, 7 – 9 May 2014
Submissions:	28 and 29 May 2014
Judgment:	30 May 2014
Reasons:	19 June 2014
Charges:	Causing serious bodily injury with intent (2), causing injury (2), using threatening words (1), armed with an object (1), throwing an object (1)

JUDGMENT OF MALOSI J
Introduction
1.	Muliagatele Brian Lima and Lemalu Sina Retzlaff were once husband and wife, but after some 14 years of marriage were divorced in 2011.  However, they remain devoted parents to their three sons.  Between his distinguished rugby career and her prominent business profile in Samoa they are used to public scrutiny, but perhaps none so piercing as that which this case has brought to bear on them and their loved ones.
2.	Muliagatele stood trial on the following charges:
(i)	Causing serious bodily injury with intent - s.118(1) Crimes Act:  with intent to cause grievous bodily harm wounded Sina Retzlaff, and in the alternative causing injury - s.119(1) Crimes Act: with intent to cause actual bodily harm causes actual bodily harm to Sina Retzlaff.
(ii)	Causing serious bodily injury with intent - s.118(1) Crimes Act:  with intent to cause grievous bodily harm wounded Sialofi Fuatogi, and in the alternative causing injury - s.119(1) Crimes Act: with intent to cause actual bodily harm causes actual bodily harm to Sialofi Fuatogi.
(iii)	Using threatening words – s.4(g) Police Offences Ordinance;
(iv)	Being armed with an object, namely a bottle – s.25 Police Offences Ordinance; and finally
(v)	Throwing an object to the danger of a person – s.26 Police Offences Ordinance.
3.	Closing submissions which should have been filed on or before 23 May 2014 were filed late due to the transcript of the trial not being available to Counsel within the timeframe anticipated.  The submissions were extensive.  Consequently, on 30 May 2014 only the verdicts were able to be handed down.  
4.	Muliagatele was found guilty of causing serious bodily injury with intent to both Lemalu Sina Retzlaff and Sialofi Fuatogi, using threatening words, being armed with an object/bottle and throwing that.  The two alternative charges of causing serious bodily injury with intent to Lemalu and Sialofi were dismissed.  
5.	My reasons for those verdicts now follow, preceded by an issue which is important to place on the record.
6.	In a country such as Samoa, bound together by kinship (amongst other things), there are very few degrees of separation between most of our people.  That is arguably our greatest strength as a nation.  So it is, in this case, that I have connections to both Muliagatele and Lemalu, although to be fair much closer to him.
7.	Despite that being well known to the parties it was formally raised by me with Counsel at the commencement of the trial, and an opportunity given to Muliagatele and Lemalu to consider whether they wished to have another Judge preside (who would inevitably have some connection to one or other of them, just different ones).  It was made clear to Counsel that if either of the parties objected to me presiding I would immediately recuse myself, no argument on the point necessary.  As it turned out neither of them did, and the trial proceeded. 
8.	In these circumstances then, I have constantly reminded myself of the importance of putting to one side all previous knowledge of the parties (including extensive media coverage about this case), and the need to make decisions uninfluenced by prejudice or sympathy for either of them or anyone connected to them.  That is no more than adherence to the oath each Judge takes upon appointment, and the same impartiality which must be applied to every other case.
Background
9.	The charges arise out of an incident which occurred just after midnight on Friday, 13 December 2013 outside the Paddles Restaurant and Y-Not Bar in Matautu-Tai.  These are conjoined, road front establishments facing seawards with views of the harbour and township.  It is a two storey complex.  There is vertical off street parking right out front, and street parking available on both sides of the road.  On the opposite side of the road there is a seawall, popular with locals and visitors alike.  Lemalu's car was parked in the off street car park, facing Y-Not.  Muliagatele's car was parked out on the road in front of the seawall.
10.	She arrived at Y-Not at approximately 11.00pm, after attending a debate at the National University of Samoa.  She was accompanied by Sialofi Fuatogi, a man she had only been seeing for about 2-3 weeks.  Muliagatele arrived just on the 12.00am closing time, but was still allowed entry.  He had been at his St Joseph's Class of 1988 fundraising meeting.  
11.	All three had consumed alcohol before arriving at Y-Not, and had more whilst there, but there was no suggestion that any of them were heavily intoxicated.  Muliagatele and Lemalu did not encounter one another inside Y-Not, but did come across one other in the off street car park after the Bar had closed. 
12.	The Prosecution case was that whilst Lemalu and Sialofi were in her car about to leave (he in the driver’s seat and she in the passenger's seat) Muliagatele drove up beside them, got out of his car and proceeded to talk to them leaning against the driver’s window of her car.  After a brief innocuous conversation things turned nasty.  Muliagatele proceeded to punch Sialofi then Lemalu in the face.  She exited the car first and cried out for help.  Meanwhile Sialofi was struggling with Muliagatele but eventually managed to get out of the passenger’s side of the car as well.  At that very moment he saw Lemalu fall to the ground.  Muliagatele had punched her in the face again.  When Security Guards intervened he uttered, ‘O le kagaka a e pai mai ia ke au e oki’ or words to that effect. (‘No one touch me again or you will die’).  He then picked up an empty beer bottle which he threw at Sialofi, hitting his head.
13.	The Defence case was that Muliagatele did not punch Lemalu while she was in her car.  He was adamant about that.  He conceded punching her once outside of the car, but said that only happened when she unexpectedly stepped into a punch intended for Sialofi who had been swearing and threatening towards him.  So far as the other allegations in respect of Sialofi were concerned, Muliagatele admitted punching him twice whilst he was in the car, but explained that was simply an instinctive response to comments Sialofi made about his children.  He said he never intended to cause him grievous bodily harm or actual bodily harm.  His overriding concern, he claimed, was for the safety and wellbeing of his children.  He outright denied any threatening language or use of a bottle.
Witnesses
14.	What started out as a 2 day trial ended up being a 4 ½ days.
15.	In addition to Lemalu and Sialofi, the Prosecution called eight other witnesses; three Security Guards from Y-Not, three Police Officers and two Doctors.
16.	Muliagatele elected to give evidence and called three witnesses in his defence; a man who had been with him at one point at Y-Not, and two people (not previously known to him) who happened to be on the seawall that night.
Relevant law
17.	Certain fundamentals apply to every criminal trial in this country.  Arguably the most important is the presumption of a Defendant’s innocence until and unless guilt is established, followed closely by the time honoured rule that from beginning to end the onus is on the Prosecution to prove a Defendant’s guilt through establishing each element, of each offence, beyond reasonable doubt.  That is a very high standard which the Prosecution will have met only if, at the end of the trial, the Court is sure that a Defendant is guilty.  There is no onus on a Defendant to prove his/her innocence.  
18.	In relation to the lead charge of causing serious bodily injury with intent (more commonly referred as grievous bodily harm), the elements the Prosecution must prove beyond reasonable doubt are:
(i)	That the accused;
(ii)	With intent;
(iii)	To cause grievous bodily harm to another person;
(iv)	Wounded that other person.
19.	So far as the alternative charge of causing injury is concerned (more commonly referred to as actual bodily harm) the Prosecution must prove beyond reasonable doubt that: 
(i)	That the accused; 
(ii)	With intent;
(iii)	To cause actual bodily harm;
(iv)	Caused actual bodily harm to another person.
20.	In terms of the using threatening words charge, the Prosecution must prove beyond reasonable doubt that:
(i)	The accused;
(ii)	Used threatening words;
(iii)	Whereby a breach of the peace may be occasioned.
21.	In relation to the being armed with an object charge, the Court must be satisfied beyond reasonable doubt that:
(i)	The accused;
(ii)	Was armed with a dangerous thing;
(iii)	Without lawful purpose. 
22.	Finally in relation to the throwing an object charge the Prosecution must prove beyond reasonable doubt that:
(i)	The accused;
(ii)	Threw a thing;
(iii)	At or to the danger or any person.
Whether or not that ‘thing’ actually hits any person is irrelevant.
23.	Although the Prosecution submit that 'assault' is an element of the grievous bodily harm charge: R v Clarence (1888) 22 QBD 23, the modern view is that it is not:  R v McCreedy [1978] 3 All ER 967, at p. 970 per Lawton LJ.
24.	Intent is the mens rea or mental element, either explicit or implicit, in all of the charges which the Defendant faces.  Usually proof of intention rests on circumstantial evidence:  Adams on Criminal Law – Offences and Defences at CA188.02.  It is a matter of common sense that sometimes really serious harm is occasioned that was never intended.
25.	At other times harm is intended for one person but suffered by another.  That scenario is covered by the doctrine of transferred malice.  In Adams (supra) at CA196.04 it is explained as follows:
“If the defendant intended to apply force to one person but unintentionally struck 	another, whether by missing the intended victim and hitting another or by hitting the victim and thereby applying force to a third party, that is still an intentional assault on the third party.  The so-called doctrine of transferred malice applies.  R v Latimer (1886) 17 QBD 359 (CR C R);  R v McMasters [1920] GLR 351;  Chandler v R, HC Napier AP4/93, 10 February 1993; Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 (DC); Narayan v Police [2010] NZAR 36 (HC); see also [CA66.17] and [CA167.07].”
26.	By way of an actual example of the doctrine having been applied, the High Court of New Zealand case, Narayan (supra) is helpful.  There French J held that:
“[23]  Although the doctrine has been criticised as lacking any sound intellectual 	basis (Attorney General’s Reference (No 3 of 1994) [1998] 1 CrAppR 91) it has a long pedigree and its application is well established.  Undoubtedly, it is part of New 	Zealand Law (Chandler v R, HC Napier AP4/93, 10 February 1993, Greig J).
[24]  The basis of the doctrine is that if a defendant with the mens rea of a particular crime causes the actus reus of the same crime, he is guilty even although the result is in some respects an unintended one.  In this case, the appellant applied force to the 	child.  He may not have intended to do that but he did intend to apply force to Mrs Wardlaw.”
27.	As to the term ‘grievous bodily harm’ that was not previously defined in the Crimes Ordinance 1961, but is in s.2 of the Crimes Act 2013, as ‘serious bodily harm’.  
28.	Sections 118 and 119 of the Crimes Act replace s.79 (grievous bodily harm) and s.80 (actual bodily) respectively of the Crimes Ordinance 1961.  In his inimitable way, the Chief Justice in Police v Papalii [2011] WSSC 138 (3 October 2011) traversed the meanings of ‘grievous bodily harm’ and ‘actual bodily harm’ in relation to charges laid under the Crimes Ordinance.  Then in Police v Lameko [2014] WSSC 12 (21 February 2014), he examined the meaning of ‘wounds’ in relation to a charge of grievous bodily harm laid under the Crimes Act.
29.	In paragraph 31 of Papalii (supra) Sapolu CJ held that:
“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.” 
30.	Then at paragraph 32 he borrows from the English text of Archbold 2006 at 19-206 where the learned authors opine that:
“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.”
31.	I consider that as a matter of logic, this inclusion of psychiatric injury in the definition of bodily harm opens up the possibility of psychological injury being included as well.
32.	Then at paragraph 33 of Papalii (supra) the Chief Justice looks to the New Zealand; Adams on Criminal Law (1992) Vol 1 at CA 306.04, where the learned authors 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.
...  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 Methara [1961] 3 All ER 2000 (CA)”
33.	It is important to note that the definition of 'grievous bodily harm' in s.2 of the Crimes Act as 'serious bodily harm', is different from the definition in Papalii (supra) and Archbold (supra) which is 'really serious bodily harm'.  In this instance the s.2 definition obviously prevails.
34.	In relation to the term 'actual bodily harm', I return to the Chief Justice's comments in Papalii (supra), this time at paragraph 40:
“As to the expression ‘actual bodily harm’ used in the first element of the 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 KB498, 25 Cr App RI, CAA 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 a injurious impairment to the victim’s sensory functions, ‘it is axiomatic that the bodily harm was actual’: R(T) v DPP [2003] Crim LR622, QBD (Maurice Kay J).”
35.	As to the meaning of ‘wound’, Sapolu CJ in Lameko (supra) again refers to Adams (supra) at CA188.08.09:
“A breaking of the skin would be commonly regarded as characteristic of a wound.  The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound would more often than not be 	external.  But there are cases where the bleeding which evidences the separation of tissues may be internal:  R v Waters [1979] 1 NZLR 375 per McMullin J.”
36.	Finally in terms of applicable legal principles, a brief mention is necessary of the defence of self defence which is provided for in s.17 of the Crimes Act.  Once an evidential foundation has been laid for self defence then it is for the Prosecution to prove beyond reasonable doubt that the Defendant was not acting in self defence.  In order words the burden does not shift.  Three broad questions arise:
(i)	What were the circumstances as the accused believed them to be?
(ii)	In those circumstances, was the accused acting in the defence of himself/herself or another?
(iii)	Was the force used reasonable against the circumstances as the accused believed them to be?
Assessing the evidence
37.	I turn now to consider the evidence presented during this trial.  The credibility and reliability of each witness must be assessed objectively.  I remind myself that sometimes even credible (honest) witnesses can be mistaken and therefore their evidence, either in whole or part, deemed unreliable.   I am also mindful that in highly volatile situations such as this one, people are bound to recall some of the same thing(s) differently.  It is the role of the Court to somehow make sense of all of that, with due regard to the totality of the evidence. 
The initial encounter
38.	By her own admission Lemalu is a regular at Y-Not.  Her evidence was that in the preceding two weeks she and Sialofi had been there a ‘few times’.  There was no dispute that on Thursday, 12 December 2013 they arrived at the Bar at about 11.00pm.  Muliagatele arrived on his own about an hour later, around midnight.  He said that after leaving his St Joseph’s fundraising meeting he wanted to have one more beer so decided to stop at Y-Not.  Muliagatele and Lemalu did not see one another inside the Bar, or if they did there was certainly no acknowledgement of that.  
39.	On that night Lemalu was driving a silver Tucson, Licence Plate R-032 which is a vehicle that belongs to Apia Rentals; a company she and Muliagatele set up during their marriage and continue to jointly own and operate.  I have no doubt Muliagatele knew Lemalu was using this car.  She parked right outside the Bar, mere metres away from the main entrance.  He parked on the road by the seawall (just past Y-Not heading towards the Marina) despite accepting under cross examination that there was room right out front where Lemalu had parked.  He rejected the suggestion he parked there deliberately to avoid being seen by her.  Indeed his evidence was that he did not see Lemalu’s car until he was in his car and had turned around, about to go home.  It was then, he says, he decided to stop and say hello.
40.	Although the precise content of the conversation that unfolded between the parties is disputed, the fact that it centred on Muliagatele and Lemalu’s children and her new relationship is not.  I find that before that night Muliagatele knew there was a new man in Lemalu’s life.  
41.	Given Muliagatele’s evidence that he turned his car around when he left Y-Not, I find that he must have driven past Lemalu’s car when he first arrived.  If he did not see it then (which I consider highly unlikely) he must have seen it when he entered the Bar, there being few cars around at that time.  
42.	I do not accept it was simply a coincidence that Muliagatele came to be at Y-Not at the same time as Lemalu.  To suggest, as he did, that he stopped there just because he felt like another beer is disingenuous. 
43.	I find that he drove past the Bar because he knew from conversations with their children that Lemalu was seeing someone; knew she was a regular there; and wanted to see if she and Sialofi were there.   I also find that when he saw her car he deliberately parked his away from it, and waited until she and Sialofi were about to drive off before approaching them.
The trigger event
44.	There was no dispute that Muliagatele drove up and parked on the right hand side of Lemalu’s car which was facing Y-Not, closest to Sialofi who was in the driver’s seat, next to Lemalu who was in the passenger’s seat.  Although there was some discrepancy as to whether Muliagatele parked closer to the neighbouring Samoa Shipping Corporation than Paddles, I do not consider that issue to be material.  
45.	I accept that Muliagatele was smiling as he walked up to Lemalu’s car, and that in an act of courtesy Sialofi wound the window down whereupon Muliagatele starting talking to Lemalu.  He did not appear to be interested in talking directly to Sialofi at all.  The conversation started harmlessly enough with Muliagatele asking how she was, and who it was that was with her.  His evidence that he shook Sialofi’s hand when he was introduced to him is consistent with the initial tone of the encounter.
46.	According to Lemalu things changed when Muliagatele kept asking her if he (referring to Sialofi) was the person she was seeing, and whether he had met the boys (referring to their children).  On the third round of the same questioning she said she realised it was not a ‘normal conversation.’  So instead of just saying ‘yes’ again, she said ‘something not nice’ namely, ‘It’s been three years’.  Accordingly to her, Muliagatele then replied, ‘So you’re fucking him on our bed?’  After she asked ‘what bed?’ the next thing she knew Muliagatele had thrown his first punch at Sialofi.  
47.	Unsurprisingly, Muliagatele’s account of this conversation is different.  Although he concedes asking Lemalu whether Sialofi had met their children and her replying he had, his evidence was that he also asked her whether Sialofi was the man who would take care of the children to which Sialofi replied, it was none of his business.  Muliagatele said that when he asked Sialofi what he had just said, he repeated the same answer.  Under cross examination Lemalu and Sialofi were adamant no such exchange took place.  As to the reference to their former marital bed, Muliagatele was indignant at the suggestion he would have said such a crude thing.  
48.	Bearing in mind that I have found Muliagatele purposefully engineered the encounter with Lemalu and Sialofi, I also find that he deliberately baited them as he leaned into her car.  In my view his questions about who she was with were calculatingly provocative, and those regarding their children completely ill timed.  In the face of that it seems to me Lemalu and Sialofi did their best to contain, rather than inflame, the situation.  
49.	I accept Lemalu’s evidence that this was only the third date she and Sialofi had been on.  Unlikely then in my view that he would have felt compelled to stake any claim regarding the children whom he barely knew.  
50.	As unpalatable as Muliagatele’s reference to their former marital bed was, in context I find it was not an altogether surprising response to Lemalu’s reminder to him about how long they had been divorced, and entirely consistent with what I find was his difficulty in seeing her with another man.  
51.	All in all I prefer Lemalu and Sialofi’s evidence about the conversation which took place while they were still in her car, and Muliagatele was leaning against the driver’s window.  
Physical altercation inside of the car
52.	On any account of that initial conversation things quickly deteriorated between the parties.
53.	As Muliagatele continued to lean against, and at times slightly into, Lemalu’s car he punched Sialofi in the face; once when Lemalu was still in the car and the second time after she had got out of it.  I accept that in the course of the ensuing struggle between Muliagatele and Sialofi, Muliagatele was kicked in the face by him but I find that was a defensive act during his attempt to exit the car through the passenger’s door.  
54.	Muliagatele frankly admitted punching Sialofi twice in the car but said he only did so out of concern for the safety and welfare of his children, and as an instinctive reaction to Sialofi telling him his children were none of his business.  He was adamant that he was not angry when he punched Sialofi, and equally adamant that he did not intend to cause him grievous bodily harm.
55.	I simply do not accept that in this context Muliagatele was able to disassociate his acts of violence against Sialofi from feelings of anger.  I find that the two were intrinsically linked.  Indeed I find that at this point Muliagatele was enraged.
56.	Muliagatele flatly denied assaulting Lemalu whilst she was still in the car.  That differs from her account.  Lemalu said after Muliagatele’s first punch to Sialofi’s face he (Sialofi) ‘fell sort of towards me’ and then Muliagatele punched her on the right side of her face.  Her evidence was that her eyes ‘felt blurry’ and blood immediately starting gushing out of her nose.  As she screamed ‘hysterically’ Sialofi reached across and opened up the passenger’s door enabling her to get out.
57.	Sialofi’s revealed that he did not actually see Lemalu being hit by Muliagatele because, consistent with her account, when he was punched he ‘kind of fell towards her’ and ‘the next second she was yelling and then I looked up and there’s blood everywhere’.  When Sialofi was asked under cross-examination how he knew Lemalu had been punched if he did not see it, he replied ‘What else could it be? ... It was just him outside and us inside the car.’
58.	Simi Papali’i Poutoa is a 40 year old Security Guard at Y-Not who has worked there for the last 16 years.  He is therefore very experienced at what he does.  During his evidence he came across as a gentle man which was somewhat at odds with his imposing stature.  It was apparent that the Court process was a daunting one for him.  Although at times he became confused during his evidence I found him to be a genuine witness. 
59.	In terms of what happened on the night in question Simi’s evidence was that after the Bar had closed that night he had been cleaning up when he heard the owner yell out for ‘us’ (presumably the Security Guards) to go the front where an incident was in progress.  He says he followed another Security Guard, named Vala (Faasavala Faautauta) outside.  Upon arriving at the place of the altercation his evidence was that he saw Lemalu and the man she was with (obviously Sialofi) sitting inside the car with blood on their faces.  He said he saw Muliagatele throw three punches at them.
60.	To’osavili Faanene (39 years old) was another Security Guard working that night.  As a witness he was much more self assured than Simi; a no nonsense type.  He said that as he was cleaning the upstairs part of the Bar he heard a female voice calling for out help.  He looked out and saw Lemalu at the back of a car with blood on her face.  He then went onto give evidence about (amongst other things) going down to where the altercation was taking place and seeing Muliagatele punch Lemalu in the face causing her to fall to the ground.
Physical altercation outside of the car
61.	Lemalu’s evidence was that when she got out of her car she walked towards the back of it, holding her nose and screaming out for help.  She could see Sialofi inside the car struggling with Muliagatele.  After a while (she was not sure how long) she said Muliagatele came around to where she was standing on the passenger’s side of her car which was parked alongside another car, also facing Y-Not.    She said she screamed at him, ‘Why did you do that?’  Muliagatele then approached her and took a ‘second swing’ striking her on the left side of her face causing her to fall to the ground.  She was adamant that there was no mistaking the punch was intended for her and not Sialofi.
62.	Although she did not know whether she lost consciousness (never having experienced that before) she recalled ‘sort of coming to’.  It was while she was rousing that she heard the words, ‘Aua gei pa’i mai seisi ia a’u o le tagata e pa’i mai ia te au i le po lenei e oki’.
63.	She said she then stood up and managed to get into her vehicle.  She described herself as ‘no longer concentrating’ as her main focus was on leaving.  She did recall however, that when she tried to get into her car and close her door Muliagatele was surrounded by Security Guards and was ‘still in a fit of rage’.
64.	Having got herself into her car Lemalu then said she drove off but was stopped by someone just in front of the Samoa Shipping Office who was standing with Sialofi.  He jumped into the passenger’s seat and they continued on towards the Vaisigano Bridge.  According to Lemalu and Sialofi, Muliagatele pursued them in his car.  Just as they passed Aggie Grey’s Hotel he overtook them, stopped his car and jumped out.  Lemalu did a U turn in reverse and drove back across the Bridge to her cousins’ home in Vini-Fou.  They then took them to the Hospital where they were treated and discharged.
65.	Sialofi evidence was that ‘there was a split second’ after he managed to get out of the passenger’s side of Lemalu’s car when he saw her drop to the ground with Muliagatele standing in front of her. 
66.	He says he then heard Muliagatele saying to people that were standing there, ‘Tou te iloa lava le mea e tupu, o le tagata e tago mai ia te au e oti le po lea.’
67.	Thereafter he advanced towards Muliagatele but someone held him back.  As he turned to push that person away he said he felt an object hit the back of his head.  He heard it ‘crack’, but did not know what it was.  This much was confirmed by Simi who gave evidence that he was the one who lead Sialofi away from the scene of the altercation by placing his left hand against the back of Sialofi’s neck.  His evidence was that he saw Muliagatele throw a Vailima beer bottle which hit his left hand.
68.	The next thing Sialofi remembered was being dragged to the front of the Samoa Shipping Corporation (which differs from Simi’s evidence that he led him to the Bar).  Sialofi’s evidence about being picked up from there by Lemalu, chased by Muliagatele across the Vaisigano Bridge, and seeking refuge with her family at Vini-Fou, was consistent with hers.
69.	Again, Muliagatele’s account of this particular altercation differs from that of Leamlu and Sialofi.  He said that as soon as Sialofi got out of Lemalu’s car Sialofi called out to him in Samoan, ‘I’m not afraid of you’, then in English, ‘Do you want me to shoot you?’  According to Muliagatele he then called Sialofi to come to him but Sialofi walked away in front of the cars parked alongside Lemalu’s, and headed towards Y-Not where she had gone to get help.  Shortly thereafter he says she returned with two or three Security Guards.  All of them came to be standing in between Lemalu’s car and the car parked to the left of it (Muliagatele’s car being on the other side).
70.	Muliagatele said he kept advancing towards Sialofi but was held back by one of the Security Guards.  He said he uttered the words, ‘Aua le taofia au i tei ua ou lavea.’  (‘Don’t stop me in case I get injured.’)  According to him he was worried about being attacked while he was being restrained.  When he was eventually released he described Sialofi as being almost where Lemalu was standing on the left side (passenger’s side) of her car.
71.	In terms of what happened next his evidence was that he told Sialofi not to say his children were none of his business again, to which Sialofi immediately repeated it and swore at him.  By this stage Lemalu and Sialofi had their backs towards Y-Not and Muliagatele had his back towards the seawall.  They were still between the two cars.  Sialofi was standing just behind Lemalu slightly to Muliagatele’s right side, on Lemalu’s left side.
72.	Muliagatele’s evidence was that when Sialofi answered him back he ‘looked like someone who wanted to fight back.’  He then went onto explain that ‘for my safety reasons’ in case Sialofi punched him first, he lifted his hand and delivered a pre-emptive strike intended for Sialofi.  According to him, Lemalu suddenly moved to the front (ie got in the way of the punch) and was hit instead of Sialofi.  She fell down, got up by herself and walked straight to her car.  Muliagatele accepts he walked towards her, but says she reversed and drove off towards the Vaisigano Bridge.  He did not give any evidence in chief about any car pursuit, and emphatically denied having a bottle and/or throwing one at anyone.
73.	There appears to be no dispute that the Security Guard who restrained Muliagatele just before he punched Lemalu in between the cars was Simi.  His evidence was that after he managed to calm Muliagatele (only momentarily as it turned out) he handed him over to the other Security Guards, Faasavala and To’osavili.  Simi then turned his attention to taking Sialofi towards the Bar which he did by guiding him with his left hand resting on the back of Sialofi’s neck.  It was at this point Simi said Muliagatele threw a Vailimi beer bottle which simultaneously hit his left hand and Sialofi’s head.
74.	Toosavili’s evidence was that when he went to the scene of the altercation Simi and Faasavala were already there ‘trying to help the commotion’.  He said that was where he heard Muliagatele say, ‘Don’t touch me, someone will die.’
75.	Significantly, during his evidence in chief he also described Muliagatele trying to get to Sialofi but Lemalu ‘walked first and Brian eventually punched her.’  He then confirmed what everyone else said, namely Lemalu fell to the ground.  Under cross examination however, Toosavili became somewhat indignant at the suggestion that Muliagatele had unintentionally punched Lemalu.  The exchange between him and Mrs Drake was as follows:
D:  When Brian lifted his hand he was throwing a punch at Sina’s friend.
T:	No.
D:	And that he’s ... you said Sina walked towards Brian and that’s when she was hit and fell to the ground.  
T:	I don’t know whether Counsel is trying to confuse my version but the only thing I know is when Brian turn and punched Sina.
D:	I put it to you that as Brian approached where Sina and her friend were standing he lifted his ... throw a punch at Sina’s friend but at that moment Sina moved forward and the punch hit her instead.  That’s what I’m putting to you.
T:	Brian was trying to come to where Sina’s friend is but he can’t because we were trying to hold him, that’s when he turned and punched Sina at that time.
76.	After that Toosavili recounted seeing Simi leading Sialofi to the Bar and Muliagatele chasing them and throwing a bottle of beer in their direction.  Toosavili tried to restrain him at that point.  Muliagatele said once more, this time to him, ‘Don’t touch me again, you will die if you touch me again’.  When he thought that Sialofi was safe he released Muliagatele but said he immediately went back to Lemalu and he saw him ‘holding her neck’.  Although he did not say where that occurred it is consistent with Faasavala’s account that it happened while she was in her vehicle about to drive towards the Vaisigano Bridge.
77.	Faasavala is the oldest of the Security Guards at 50 years old.  His evidence was that after the Bar had closed that night he heard a cry for help so went outside.  Although Simi’s evidence was that it was Faasavala who was first on the scene, I find it was Simi because it was him, not Faasavala, who gave evidence of witnessing the earlier assaults in the car.
78.	Faasavala evidence was that when he got to where Muliagatele and Lemalu were in between the two cars, he saw Lemalu on the ground.  When she tried to stand up he could see her face was injured (blood coming out of her mouth and nose).  Muliagatele was screaming, ‘Don’t touch me’.  According to Faasavala he and Sialofi helped Lemalu get up.  Although other witnesses, including Lemalu herself, said she got up by herself I do not consider that inconsistency to be of any great moment. 
79.	Faasavala then said Muliagatele kept trying to approach Lemalu but he stopped him.  She eventually got up on her feet and managed to get into her car.  As she was reversing to drive off Faasavala says he almost reached Muliagatele but was pushed back by him.  He said he then saw Muliagatele ‘touch the collar’ of her top, before suddenly releasing it and jumping into his car to give chase.
80.	Maselino Paulino is a member of the Samoa ‘A’ Rugby Team which Muliagatele used to coach.  They happened to meet at Y-Not that night.  I accept that a friend of Maselino’s gave Muliagatele a bottle of beer because the Bar had closed and they were not serving any by the time he got there.  I also accept that when Muliagatele left the Bar he did not take that (or any other) bottle with him.
81.	Elena Sweeney and Fualaga Tafua (51 years old) both work at the Ministry of Education, Sports and Culture.  She is the mother of four children.  Although her age was not established she appeared to be a mature woman.  Her evidence was that she arrived at Y-Not at about 9.45am after she had attended to her normal chores at home, fed her children and asked permission from her family to go there and relax.  Quite by chance she said she ran into Fualaga.  Even in this enlightened day and age I have to say I found Elena’s scenario difficult to accept.
82.	Both of them gave evidence as to what they saw of the altercation.  Somewhat surprisingly, they were not interviewed by the Police nor did they see fit to contact the Police themselves.  Fualaga said he thought about telling them what he had seen but he was ‘not a gossip’.  Elena’s evidence was that she and Fualaga had a discussion about the incident shortly after the matter was first reported in the newspaper in December last year.  That was at odds with Fualaga’s recall that the only discussions they had after that night were when Muliagatele’s Counsel, Mrs Drake called them to come into her office sometime this year, and when they were served with a summons to appear at this trial.
83.	Accordingly to Elena, at about 12.30am (on 13 December 2013) as she was sitting with Fualaga on the seawall across from Y-Not, she heard a scream for help and saw female (Lemalu) get out of a car parked outside Paddles, and walk towards Y-Not.  She described a male (Sialofi) inside the car struggling with another male (Muliagatele) who was standing outside the car.  Her evidence was that Sialofi eventually got out through the passenger’s side and went to the front of the car and called out, ‘I’m not afraid of you’ and then in an American accent, ‘You want me to shoot you?’  At this point Muliagatele was more towards the back of the cars. 
84.	She then said Lemalu came back from Y-Not with two or three Security Guards. Muliagatele was restrained by the bigger of them, but then released whereupon he went up to Sialofi who by now was standing behind Lemalu.  She says she heard Muliagatele say to Sialofi, ‘What did you say to me?’ to which Sialofi swore and replied ‘It’s none of your business.’  The same question was put and the same response received.  According to Elena that was when Muliagatele threw a punch at Sialofi with his right hand but Lemalu suddenly stepped forward and fell.  She stood up, got in her car and drove off.  Elena then described seeing Sialofi walk off towards the ‘right side’ and Muliagatele drive off in the same direction as Lemalu.
85.	Fualaga’s evidence largely corroborates Elena’s.  He said he heard a commotion coming from the direction of the Paddles carpark.  He looked over and recognised Lemalu getting out of a car heading towards the Bar calling for help.  He saw another person (Sialofi) get out of the passenger’s side and walk in front of the cars.  A third person, he came to recognise as Muliagatele, walked around the back of the cars.  He said he heard Sialofi say in an American accent, ‘I’ll shoot you.’ Lemalu then came back with a ‘big’ Security Guard and he recalled he heard Sialofi continuing to verbally threaten Muliagatele who was getting closer to him.  His evidence was the ‘big’ Security Guard then grabbed Muliagatele from behind and held him.  Muliagatele told him to release him, which he did.    By this point Lemalu and Sialofi were standing close together with their backs to Y-Not and Muliagatele was standing in front of them with his back to the seawall. 
86.	According to Fualaga, Muliagatele then aimed a punch at Sialofi’s chest and it was at that precise moment that Lemalu crossed in front of him and was hit instead of Sialofi.  She then fell down, stood up, went to her car and drove off.  Meanwhile Sialofi walked off towards the Vaisigano Bridge.
87.	There was no substantiation that either Elena or Fualaga knew Muliagatele personally, but how they came to give evidence in his defence was unclear.
Medical evidence/injuries
88.	Dr Faleluafua Matatumua
Dr Matatumua was on duty in the Accident and Emergency Department at the TTM Hospital when Lemalu and Sialofi were brought in.  She examined Lemalu.  Her report dated 22 April 2014 revealed that:
“She had both cheeks significantly swollen and bruised, with narrowing of both eyes as a result of the significantly swollen cheeks.  She had a laceration on her nasal bridge with a slow ooze of blood from it that received 3 stitches.  Head and mandibular x-rays done showed no fractures.” 
During his evidence in chief Dr Matatumua described the laceration as approximately 4-5 cms diagonal downwards, .5 to 1cm in width and the same in depth.  She conceded that although the x-rays did not reveal any fractures to her head or jaw, a CT scan might have but one was not possible because the machine was not working at the time.
89.	Under cross-examination the Doctor was of the opinion that the injury to the nose and the injuries to the cheeks would have been caused by different blows.  She did agree however, that the bruising to the right eye could have come from the blow that injured her nose.
90.	When questioned by the Court as to what protocols the Hospital had in place for dealing with complainants of domestic violence, the only measure the Doctor was aware of was that the Police had to be called.  She was not aware of who called the Police on this occasion.
91.	Dr Fuimaono Junior Leavai
Dr Leavai happens to be Lemalu’s cousin.  It was his house she went to at Vini-Fou.  He examined both her and Sialofi at the Hospital and filed reports in respect of each of them.  Although his estimate of the size of the laceration to Lemalu’s nasal bridge was bigger than Dr Matatumua’s, under cross-examination he accepted her estimate of 4-5cms.  He concurred with her evidence in relation to the swelling and bruising on her face.
92.	He could not however, be persuaded to her view that there were no fractures.  He was of the opinion that Lemalu had sustained an undisplaced fracture (hairline) to the upper jaw bone, and a fracture to her nasal bone.  These, he said, were very hard to see on an x-ray.
93.	Another point of different was that he described Lemalu as bleeding ‘profusely’ at the time of examination and could not be moved to agree with Dr Matatumua’s description of the blood as ‘oozing’.
94.	Finally, Dr Leavai was of the opinion that Lemalu’s injuries could have been caused by one or two ‘forces’.  That of course differs from Dr Matamutua who was more resolute that it had to have been more than one blow.
95.	In relation to Sialofi he also assessed him as having sustained a fracture to his nasal bone.  His evidence was there was also a laceration to the back of his head, approximately 10 cms long, which required stitches and bleeding from his mouth and nose due to other lacerations.
96.	Neither Lemalu nor Sialofi required hospitalisation and were discharged immediately following their treatment.
97.	In terms of the emotional impact of what occurred that night Lemalu described it as a ‘traumatic experience.’  She felt scared, was in shock and was shaking.  She went onto say:
“My soul was hurt.  I felt emotionally more pain than I did physical pain to be honest Your Honour.  I felt ashamed to have been beaten publicly.  I felt ashamed of the people behind me at the seawall.  I felt ashamed of (sic) my male cousin’s were there, sorry you’re asking about the physical injuries but I, emotionally was perhaps more painful.”
Police involvement
98.	While Lemalu and Sialofi were at the Hospital, Constable Tafale Junior Afereti attended and took photographs of Lemalu, but not of Sialofi.  By the time those photographs were taken however, she had been treated already and therefore cleaned up as it were.  No photographs had been taken by the Hospital prior to treatment (as is the practice in some countries).    Furthermore, no statements were taken from either of them at the Hospital.  Lemalu and Sialofi took the initiative and went to the Domestic Violence Unit after they were discharged and did not then get home until about 4.30am/5.00am.
99.	The next morning, at about 8.00am, Detective Sergeant Tofilau Junior Tofilau rang Lemalu to advise he was the Investigating Officer and suggested that she should write down an account of what had happened and bring that into the Police Station.  She did that on her computer at home, as did Sialofi.  Although I find that he essentially 'cut and pasted' off her document I am satisfied that the contents were still an accurate account of what happened from his perspective.  
100.	Lemalu also took photographs of her vehicle that same morning (which showed blood splatters), and Sialofi’s blood stained shirt.  She then took photographs of her injuries the following week as evidence of the extent of her injuries through the healing process. 
101.	When Detective Sergeant Tofilau was asked by the Court about any protocols between the Hospital and the Police in relation to domestic violence matters, and specifically the gathering of evidence, his reply was that photographs were taken of those who were injured and then a report requested from the attending Doctor.  As to when and where statements were taken from complainants he said that was determined according to the convenience of the complainant.
102.	I am bound to say (and do not do so lightly) that the response by the Police, and particularly the Domestic Violence Unit, to this situation was woeful.  Immediately following the complaint made by Lemalu; the most critical time for gathering evidence (which could be to the benefit of an accused in some situations), I find that no urgency was afforded to this case and should have been. 
103.	Lemalu should not have had to take herself down to the Police Station after treatment to make her statement, on her own initiative.  There was no reason given by the Police as to why they did not do that at the Hospital when they went there to take photographs of her, or why they did not take any photographs of Sialofi.  According to Lemalu there was a Police Officer in the Domestic Violence Unit when she went there after the Hospital.  I find she was offered little to no support by the Police, which appears contrary to the ethos of that specialist unit.
104.	In my view there should not have been any need for Lemalu and Sialofi to do further statements that very morning, at home, if the Police had taken sufficient evidential statements from them in the first place. 
105.	The fact that photographs of the blood splattered car, Sialofi’s shirt and Lemalu’s injuries approximately one week later were presented by the Defence should have been an embarrassment to the Police.
106.	This case might very well prompt the Police to review its protocols and practices in relation to investigating complaints of this nature and if satisfied as to those, examine what might have been done better on this occasion.
Discussion/Findings
107.	In relation to the allegation that Muliagatele punched Lemalu while she was still in the car, the Defence submit it would not have been possible for him to do so because the distance between them was too great, and it would have required him to put his body (or a good part of it) through the driver’s window to reach her.  They submit that would have been impossible because Sialofi was in the driver’s seat. 
108.	With respect, I do not accept any of that.  Lemalu's evidence was that when she asked Muliagatele what bed he was referring to (just before he punched Sialofi the first time) she was leaning towards him.  That seems to me to have been a natural body position to adopt given he was outside of the car leaning in and Sialofi was in between.  Coupled with the evidence, which I accept, that after Sialofi was punched the first time he fell towards Lemalu, I find that would have allowed sufficient space for Muliagatele to get a clear shot at her.
109.	Furthermore, I find Lemalu's car to have been of medium size, such that it posed little difficulty for Muliagatele given his reach and agility.
110.	The Defence also submit that when Muliagatele punched Sialofi the first time he was not even looking at him.  They rely on his evidence that he was looking straight ahead and therefore was not focussed on either Sialofi or Lemalu.  Both punches to Sialofi he described as 'short' punches, more like jabs than full force blows.  He persistently stressed the punches were simply instinctive reactions to the suggestion his own children were none of his business, and his concern for their safety and welfare.
111.	Frankly the suggestion that Muliagatele was looking straight ahead when he punched Sialofi, and his demonstration of that, is just as disingenuous as his evidence that he was not angry when he punched him.  Whether or not they were short punches, long punches, soft or hard, the fact remains he punched him.  I am not anywhere near persuaded that concern for his children's safety and welfare at that particular point in time could have justified such a violent response, let alone one that was justified in law.
112.	As to the blood seen on Lemalu’s face while she was inside of the car, and as she got out of it, that is explained by the Defence as blood from Sialofi’s injuries which came to be on her when he fell towards her after he was punched the first time.
113.	Simi's evidence, which I accept, was that when he arrived at the scene he saw Lemalu and Sialofi inside her car with blood on their faces.  Furthermore, he was clear that he saw Muliagatele throw three punches while they were still in the car.  As already acknowledged, during his evidence Simi did get confused at times (for instance about the difference between left and right, and whether Sialofi got back in the car soon after he alighted) but overall I found him to be a credible and reliable witness.
114.	Likewise, I accept the evidence of To'osavili that when he looked outside he saw Lemalu at the back of her car with blood on her face.  I find this blood would not have been from the punch delivered by Muliagatele after she got out of the car, because To'osavili evidence's was that was a separate event.
115.	All in all, I do not accept the blood on Lemalu's face was from Sialofi's injuries. I find it was from her own injuries.
116.	Much was made during the trial about whether or not when Lemalu got out of the car she went to Y-Not to get help.  Based on the evidence of all three Security Guards, I find that although she walked towards Y-Not, the Security Guards were alerted by her screams (or in the case of Simi by the owner) and came outside before it was even necessary for her to enter the Bar.  Whilst I find the Security Guards arrived on the scene at different times, they were separated by mere minutes, if not seconds.  In that regard then I prefer the evidence of Lemalu and the Security Guards, over the evidence of Muliagatele, Elena and Fualaga.
117.	When Lemalu came face to face with Muliagatele between the two cars I find she did scream at him, 'Why did you do that for?'  Given my finding that she was punched by Muliagatele in the car, I do not accept the Defence submission that this comment was only in relation to what Muliagatele had done to Sialofi in the car.
118.	Although I have found that Sialofi exercised some moderation at the beginning, I consider all of that went out the window after Muliagatele assaulted him and Lemalu in the car.  I find that when Sialofi got out of the car he was swearing and generally being verbally abusive towards Muliagatele.  I do not accept Muliagatele told him not to repeat the ‘it’s none of your business’ comment given that I have found it was not said in the first place.
119.	Elena and Fulaga were adamant they heard Sialofi say to Muliagatele ‘I’m not afraid of you’, then ‘Do you want me to shoot you?’  Critically, during cross examination of the Security Officers that was not put to any of them and it should have been given they were right there.  I am not satisfied those particular words were uttered by Sialofi.
120.	As to contest regarding alternative versions of what Muliagatele said, I do not consider it out of the realms of possibility that he pleaded for the Security Guard to release him in case he got hurt/hit particularly since he knew one of them through rugby circles.  Indeed under cross examination Faasavala said he heard Muliagatele say that, although not directly to him.
121.	The more contentious issue is whether or not Muliagatele said words to the effect that if someone touched him again they would die.  Lemalu, Sialofi and To’osavili all confirm that.  I find that Muliagatele was enraged at this point in the altercation.  He was being held back from Sialofi who was hurling verbal abuse at him.  Relying particularly on To’osavili’s evidence I am satisfied beyond reasonable doubt that Muliagatele did say these threatening words, or words to that effect.  I consider that is sufficient to make out the elements of the threatening words charge.
122.	As to whether or not Muliagatele had a bottle and threw it, I prefer the evidence of To’osavili and Simi over all other witnesses.  Whilst I acknowledge the injury to the crown of Sialofi’s head is inconsistent with the evidence of To’osavili and Simi as to where the bottle struck, that injury to the top of his head could just have easily occurred during the assaults in the car.   I am not troubled by the fact that there was no injury to Simi's hand or the back of Sialofi's head.  At the end of the day the Prosecution do not have to prove the bottle hit anyone.  Although I have found Muliagatele left the Bar without a bottle, I find he picked one up somewhere outside the Bar during the course of the altercation and threw that to the danger of Simi and Sialofi.
123.	The parties would agree that the most contentious issue is where Sialofi was when Lemalu was punched the second time.  Although Lemalu said she was conscious of people being around at that time she was adamant that, ‘there wasn’t a time during the night where Lofi and I were standing together and Brian approaching us.’  Muliagatele’s version of course was that Lemalu was standing right in front of him with Sialofi just behind her to her left, Muliagatele’s right.  That was corroborated by Elena and Fualaga.
124.	I do not accept Sialofi’s evidence that he was just about to exit the car when he saw Lemalu drop to the ground.  To’osavili’s version, which I prefer, was that Sialofi was already out of the car at this point and Muliagatele, who was being restrained (as confirmed by Simi who was doing the restraining) was trying to get to him.
125.	I find that Lemalu was genuinely mistaken about where Sialofi was at this point.  Her focus, for obvious reasons, was on Muliagatele.  I am satisfied that Sialofi was behind her but not so close that he was within her peripheral vision, or even aware he was there.
126.	I find that ultimately To’osavili’s evidence was that Muliagatele deliberately punched Lemalu when he found he could not get to Sialofi.  I consider he was a credible and reliable witness.
127.	In response to the suggestion that Lemalu stepped into the punch intended for Sialofi, Lemalu’s evidence was that, ‘With respect, there was not a single instinctive bone in my body that wanted to jump in front of a man when another man was hitting him.  That night my concern was for my safety.'  I am bound to say I was completely persuaded by this particular part of Lemalu’s evidence.
128.	I do not accept that Muliagatele’s punch was intended for Sialofi.  I find that he deliberately punched Lemalu when he realised he could not get to Sialofi.  Even if I were to accept Muliagatele's version of events the doctrine of transferred malice would apply, leading to the same finding as to culpability.
129.	As Lemalu was reversing her car to drive off, I am satisfied that Muliagatele approached her again and reached into the car, grabbing at her around her neck area.  Although she did not give evidence about this herself, I am mindful that she did say her focus at this time was on getting away.  More importantly, I accept the evidence of To’osvaili and Faasavala that they did see this occur.
130.	I do not consider the defence of self defence is available to Muliagatele on the evidence.  I find that he was the main aggressor at all critical times and never at any appreciable risk of harm from Sialofi or Lemalu, or indeed any of the Security Guards.
131.	Having regard to all of the evidence I have been satisfied beyond reasonable doubt that Muliagatele caused serious bodily injury with intent to Lemalu and Sialofi.  In circumstances where I consider he was enraged at seeing his former wife with another man, I find that his intention was clear.  He meant to cause serious bodily harm to them and as it turns out he did, by way of wounding them physically and in the case of Lemalu, psychologically.
132.	Finally, as to the Medical evidence I note that Dr Leavai has been practising as a Doctor and Dentist since 1998, and Dr Matatumua for just three years.  Each however, gave helpful evidence.  I find that Dr Leavai’s familial ties to Lemalu did not sway him away from giving impartial expert opinions eg her injuries could have been caused by one force or two.  Although he was adamant that both Lemalu and Sialofi had sustained fractures to their face area and Dr Matatumua relied on the x-ray of Lemalu’s face which did not reveal any, I note that she conceded a CT scan might have given a different result.
133.	As to the other differences of opinion between the Doctors, at the end of the day the medical evidence is but one piece of evidence, to be considered alongside all of the other evidence.
Result
134.	Ultimately, for all of the above reasons, I was satisfied beyond reasonable doubt that Muliagatele caused serious bodily injury with intent to Lemalu and Sialofi.
135.	Accordingly, the alternative charges of causing injury were dismissed.
136.	I was also satisfied beyond reasonable doubt that:
(i)	Muliagatele used threatening words whereby a breach of the peace was occasioned; 
(ii)	Armed himself with a bottle, it being a dangerous thing in the circumstances, without lawful purpose; and 
(iii)	Threw that to the danger of both Sialofi and Simi.	

							..............................................
							Justice I M Malosi