SUPREME COURT OF SAMOA
Police v Toala [2014] WSSC 46

Case name: Police v Toala
Citation: [2014] WSSC 46
Decision date: 5 September 2014
Parties: POLICE Prosecution AND ATIVALU TOALA male of Sinamoga and Samalaeulu, Savaii. Accused
Hearing date(s): 
File number(s): S1167/14-S1171/14
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
C Tafua-Rivers and S Ainuu for prosecution
Accused in person
Catchwords: 
Words and phrases:
internationally causing damage to property, sentence, aggravating and mitigating features,
Legislation cited:
Crimes Act 2013s.184 (2) (a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S1167/14-S1171/14

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

ATIVALU TOALA male of Sinamoga and Samalaeulu, Savaii.
Accused

Counsel
C Tafua-Rivers and S Ainuu for prosecution
Accused in person

Judgment:	5 September 2014  

JUDGMENT OF SAPOLU CJ
Preliminary 
1.	The judgment of the Court in this case was to be delivered on 21 August 2014.  However, the accused did not appear.  A warrant was therefore issued for his arrest.  Up to now there is no information that the police, who are extremely busy with the SIDS Conference held in Samoa, have been able to locate the accused.  I have therefore decided to deliver this judgment in the absence of the accused as it is unknown when he could be located and arrested by the police. 
The charges
2.	The accused Ativalu Toala of Sinamoga and Samalaeulu in Savaii faces five charges which relate to an incident that happened at Sinamoga on the night of 1 June 2013.  These five charges are: (a) firstly, internationally causing damage to property, namely, a Mitsubishi taxi which was the property of the complainant, one Manuleleua Mere Talitau of Vaimoso and Sinamoga, (b) secondly, using threatening words, namely, “e ke vaavaai iai ou ke alu e aumai lau faga e faga ai oe toe faga ai lou koa’lua”, (You will se that I am going to get my gun to shoot you and to shoot tour wife) whereby a breach of the peace may be occasioned, (c) thirdly, throwing stones to the danger of a person, (d) fourthly, throwing stones to the danger of a building, and (e) fifthly, being armed with a dangerous weapon, namely, a stone, not being so armed for a lawful purpose.
3.	Except for the charge of intentionally causing damage to property which falls within the jurisdiction of this Court because of its maximum penalty of seven years imprisonment provided under s.184 (2) (a) of the Crimes Act 2013, the other four charges are laid by the prosecution under the provisions of the Police Offences Ordinance 1961 and therefore fall within the jurisdiction of the District Court.  For convenience and expediency, all the charges have been preferred in this Court so that they can be tried together and therefore avoid having two separate trials, one in this Court and one in the District Court.
4.	Initially, the accused pleaded not guilty to all the charges.  However, on the date of trial he vacated his plea of not guilty to the charges of throwing stones to the danger of a person, throwing stones to the danger of a building, and being armed with a dangerous weapon, namely, a stone, and entered a plea of guilty to those charges.  The accused maintained his plea of not guilty to the remaining charges of intentionally causing damage to property and using threatening words whereby a breach of the peace may be occasioned.
5.	Of the charges against the accused, he was jointly charged with his co-accused, Tauvela Sahib, of intentionally causing damage to property, throwing stones to the danger of a person, throwing stones to the danger of a building, and being armed with a dangerous weapon, namely, a stone.  The co-accused was also separately and individually charged with intentionally causing damage to property.  He pleaded guilty to the joint charge of intentionally causing damage to property and the prosecution withdrew the other charges against him.  He was called as a witness for the accused after being sentenced.
The evidence
6.	It appears from the evidence that on the night of 1 June 2013, the complainant Manuleleua Mere Talitau (Manuleleua) and her husband Isaako Tuiatua (Isaako) were at their home at Sinamoga.  Manuleleua was watching television while Isaako was drinking beer.  When Isaako finished his beers, he left the house to buy some more beers.  I am satisfied that when Isaako went to buy some more beers, he came across a man whom he then assaulted.  At that time, Isaako was seen by the accused and the co-accused.
7.	Isaako testified that the accused and the co-accused then came over and threw bottles of beer at him.  So he ran to his house for safety.  However, stones from the accused and the co-accused followed him to his house.  When he entered his house and turned off the lights, the accused and the co-accused stoned the front and the sides of his house.  Louvers and the front lights of his house were all broken.  Doors were also damaged.  Isaako also testified that he saw the accused picked up one of the rocks that lined the side of the road in front of his house and hit the back, the rear windscreen, and the side windows of his wife’s car that was parked in front of their house.  Isaako said he also saw the co-accused picked up a brick and hit the front windscreen and the side windows of his wife’s car.  At the same time, the accused and the co-accused were still throwing stones at his house.  One of these stones entered the house and hit his wife.  Isaako estimated the stoning of his family’s house and car to have lasted about an hour until the police arrived.
8.	Isaako further testified that while the accused and the  co-accused were throwing stones at his house and hitting his wife’s car with stones, the accused called out to him “Faatali au, la’a alu e aumai le fana e fana ai au ma lo’u toalua” (You wait, I am going to get the gun to shoot you and your wife).  Isaako said he was sure it was the accused who said those words to him because of the built and the height of the accused. He is also acquainted with the accused.
9.	The complainant Manuleleua testified that on the night of 1 June 2013 she was watching television at home with her husband Isaako who was also drinking beer.  When Isaako finished his beer, he stood up and walked out of the house.  About fifty minutes later, Isaako rushed back into the house and switched off the lights at their kitchen.  When she asked Isaako as to why he had switched off the lights at the kitchen, Isaako replied that the accused and the co-accused were throwing stones at him.  Shortly afterwards, stones started hitting their house.  She also heard someone calling out to Isaako to come out you would see what would be done to you.  At that time, stones were landing on the roof of their house.  Some of the stones came inside their house.  Manuleleua then rushed to the bedroom where her baby was sleeping and hid with her baby under the bed.  She said at that time, she heard someone calling out “Isaako sau i fafo, sau i fafo, ole a ma o e aumai le faga e faga ai oe ma faga ai lou koalua”.  (Isaako come out, come out, we are going to get the gun to shoot you and to shoot your wife).  When the police arrived later that night, they advised Manuleleua and her family to leave their house and sleep somewhere else for their personal safety.  Manuleleua and her family then went and slept in a motel.
10.	The family of the complainant and the family of the prosecution witness Bob Asomaliu (Bob) who is 17 years old are nextdoor neighbours.  Bob testified that on the night of 1 June 2013, his family heard stones landing on the house of the complainant.  In spite of instructions from her mother for no one to go to the house of the complainant in case someone got hurt, his curiosity was too much for him. So he went and stood at the fence between his family’s land and the complainant’s land and watched what was happening.  Bob said he saw the accused walking by the complainant’s house calling out loudly: “E ke vaavaai iai, ole a ou alu e aumai la’u faga e faga ai oe koe faga ai lou koalua”.  (You’ll see, I am going to get my gun to shoot you and to shoot your wife).  Bob also said that he knows the accused and is acquainted with him as the accused was a nextdoor neighbour and used to come to his family’s house before this incident.  He also saw that the accused was drunk.
11.	The prosecution witness Noel Tiatia (Noel) who is 32 years old and is also a neighbour of the complainant, testified that on the night in question he was watching television at home when he heard stones  being thrown at the house of the complainant.  He then walked to the complainant’s house to see what was happening when he heard someone saying:  “Ole a ou alu e aumai le faga e faga ai oe ma faga ai lou ko’alua”.  (I am going to get the gun to shoot you and to shoot y our wife).  Noel could not recognise the face of this person as it was dark.
12.	Constable Siuli Burgess who investigated this matter testified that on the following day after the stoning of the house and the car of the complainant, he visited the complainant’s house.  He observed stones being lodged in the door, louvers of the house being damaged, and rocks inside the house.  He then took photographs of the house and the car.  The photographs of the car were produced by the prosecution and they show that the front windscreen, the rear windscreen, and the side windows had all been broken into bits and pieces.  Constable Burgess also interviewed the accused but the accused did not want to make a statement to the police.
13.	The accused in his evidence said that he and his co-accused had been drinking and while they were standing on the road, they saw the prosecution witness Isaako assaulting a man on the road.   When he called out to Isaako “Sole,” Isaako ran away.  The accused also said that the co-accused then gave chase to Isaako while he was trying to stand up the man who had been assaulted by Isaako.  When this man stood up, the accused said he then heard many stones being thrown by the person who was being chased by the co-accused.  This person must have been Isaako and it would be absurd to believe that Isaako would be throwing stones at his own house where his wife and baby were.  The accused further said that he then threw stones at one side of the complainant’s house but there were many other people throwing stones at the complainant’s house.
14.	The accused denied that he used any threatening words such as “Ole a ou alu e aumai le faga e faga ai oe ma faga ai lou ko’alua” (I am going to get a gun to shoot you and to shoot your wife).  He said there were many people at the scene and one of those people might have said those words.  He also denied that he hit any part of the complainant’s car with a stone.
15.	The witness Henry Voorwinden (Henry) testified that when the stoning of the complainant’s house occurred he was inside the premises of his mother’s flats.  He then came and stood at the entrance gate and watched many people throwing stones at the complainants’ house.  He did not see the accused amongst those people and he did not hear any words. “Ole a ou alu e aumai le faga e faga ai oe koe faga ai ma lou ko’alua”. 
16.	The co-accused Tauvela Sahib who was called as a witness by the accused testified that on the night in question he did not hear the accused saying any threatening words: “Ole a ou alu e aumai la’u faga e faga ai oe ma koe faga ai lou ko’alua”.
Discussion 
17.	Having considered the evidence as given by the prosecution witnesses and by the accused and the witnesses called on his behalf, I have decided to accept that the accused did utter the threatening words “O le a ou alu e aumai le faga e faga ai oe ma faga ai lou ko’alua”, or words substantially to the same effect, which may cause a breach of the peace. I have also decided to accept that the accused damaged the complainant’s car and that he did it intentionally.
18.	In relation to the threatening words, the prosecution witness Isaako testified that he did see and hear the accused calling out to him that he was going to get a gun to shoot him (Isaako) and his wife.  The prosecution witness Bob who is acquainted with the accused testified that he saw the accused who appeared drunk walking by the house of the complainant and calling out loudly that he was “going to get my gun to shoot you and to shoot your wife”.  The prosecution witness Noel also testified that he heard the same words being called out but he could not recognise who called out those words because it was dark.
19.	It is clear from the evidence of those prosecution witnesses that they did hear the said threatening words being called out and I accept that those words were actually being called out.  I also accept the evidence of the witnesses Isaako and Bob that it was the accused who called out those words.
20.	I reject the evidence of the accused that he did not call out the threatening words alleged against him.  He was clearly in an angry and drunken mood when the he saw Isaako assaulting a man on the road and when he called out “Sole” Isaako ran away.  Even though the accused said he did not immediately chase after Isaako, he did say that soon thereafter he himself threw stones at the side of the house of Isaako and his wife the complainant.  The threatening words alleged against him would be consistent with the state of anger he was in as manifested by his throwing stones at Isaako’s house.
21.	The evidence by the defence witness Henry was that he did not see the accused amongst the many people who were throwing stones at the complainants.  However, the prosecution witnesses Isaako and Bob testified that the accused was there.  The accused himself also admitted that he was there and that he, too, was throwing stones at the side of the complainant’s house.  Henry also said that he did not hear the threatening words alleged against the accused.  Even if that is true, it does not negate the evidence given by Isaako and Bob that they did see and hear the accused calling out those threatening words.  What Henry might not have heard was seen and heard by Isaako and Bob.
22.	The evidence by the co-accused Tauvela Sahib is to the same effect as the evidence of the defence witness Henry.  The co-accused’s evidence was that he did not hear the accused calling out the threatening words alleged against him.  That might have been so but it does not negate what Isaako and Bob said they saw and heard from the accused.
23.	In relation to the damage caused to the complainant’s car, I have also decided to accept the evidence of the witness Isaako that he saw the accused picked up a rock and hit the back, the rear windscreen, and the side windows of his wife’s car.  As a result, the new windscreen and the side windows of the car were shattered.  Isaako was inside his house and his wife’s car was parked just outside of the house so that it was only a short distance from where Isaako was inside of the house to where the car was parked outside of the house.  Isaako is also acquainted with the accused and is familiar with his facial features, built and height.  Even though the accused denied causing damage to the complainant’s car, I have decided not to believe him.  He has admitted to throwing stones not only to the house of the complainant but also to throwing stones to the danger of persons.  So he was armed with stones on the night in question and using them to dangerous effect.  It was one of those stones held by the accused that Isaako said the accused used to cause  damage to his wife’s car.
24.	All in all then, I accept the evidence of the prosecution witnesses and reject the evidence of the accused in relation to both of the remaining charges of intentionally causing damage to the complainant’s car and using threatening words.
25.	In consequence, I find both those charges to have been proved by the prosecution beyond reasonable doubt.
26.	As the warrant of arrest issued against the accused is still outstanding, I will not set a date for sentencing.  

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								CHIEF JUSTICE