IN THE SUPREME COURT OF SAMOA
Police v Agafili [2023] WSSC 5 (17 February 2023)

Case name: 	Police v Agafili 	
		
Citation: 	[2023] WSSC 5	
		
Decision date: 	17 February 2023	
		
Parties: 	POLICE (Informant) v SIO AGAFILI, male of Vaivase & Tanumalala (Accused)	
		
Hearing date(s): 	13th, 14th, 15th September 2022	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Fepulea’i Ameperosa Roma	
		
On appeal from:		
		
Order:	For the above reasons, I conclude as follows:

(a) Prosecution has not proven beyond reasonable doubt the charge of causing grievous bodily harm against the accused;

(b) Even if the discretion under s55(2) Criminal Procedure Act 2016 to amend the charge to bring it into conformity with the evidence offered by prosecution is exercised, prosecution cannot exclude beyond reasonable doubt the justification under s32(2) Crimes Act 2013 available to and raised in defence;

(c) The charge is accordingly dismissed. 		
		
Representation: 	T. Sasagi for the Informant
M. Lui for the Accused	
		
Catchwords: 	Causing grievous bodily harm  	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013, ss. 26; 27; 28; 29; 30; 31; 32; 32(2); 118(1); 
Criminal Procedure Act 2016, s. 55(2);
Police Service Act 2009, s. 62;
Prison and Corrections Act 2013, ss. 13; 13(1).	
		
Cases cited:	Young v. Attorney General HC AK CIV 2002 404 001981 [2008] NZHC 2147 (23 December 2008).	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

AND:

SIO AGAFILI male of Vaivase and Tanumalala.

Accused

Counsel:	T. Sasagi for Prosecution
M. Lui for the Accused
	
Hearing:	13, 14, 15 September 2022
Submissions:	6 October & 4 November 2022 for Prosecution
21 September & 1 November 2022 for Accused 
Judgment:	17 February 2023	

JUDGMENT
Charge
1. 	The accused faces one charge of causing grievous bodily harm contrary to s118(1) Crimes Act 2013.  The information alleges that at Tanumalala Prison on 23 March 2020, the accused with intent to cause grievous bodily harm, wounded Billy Panapa, male of Vailele and Tanumalala.
Evidence
2. 	Prosecution called evidence from 10 witnesses - two (2) police officers Corporal Tuli Filipo and Sergeant Mose Lotomau; a prison officer Luilui Vaelei; a medical officer Dr. Nuualofa Mauiliu; and 6 inmates including the victim Billy Panapa and his older brother Vaai Panapa, Karl Makei, Koroseta Laifa, Latana Fretton and Nepata Nepata.
3. 	The evidence is in large parts undisputed.  Prison Officer Luilui Vaelei was on duty in the evening of 23 March 2020.  At about 9pm, he went around the blocks on routine inspection and roll call.  During the inspection, the officers released the accused from Block 3 to Block 6 where those infected with measles were isolated.  The inspection continued onto Blocks 2 and 1.  Inside Block 1, the inmates attacked Luilui, he suffered injury and became unconscious.  The inmates then broke out, many trying to escape whilst the officers were running for help.  The situation worsened to the point where the officers were unable to control the inmates, it was total chaos and they were in desperate need of assistance from police.
4. 	Karl Makei, Koroseta Laifa and Nepata Nepata were inside Block 5, Vaai Panapa was in Block 6 and Latana Fretton was infront of Block 6 when violence broke out in Block 1.  
5. 	The victim Billy Panapa was inside Block 1 and amongst the group that ran out.  He headed towards Block 6 where his brother Vaai was held.  Using a rock, he tried to break the lock so he could get to him.  According to Vaai and Latana, they told Billy to stay outside their Block and not go anywhere for his own safety but Billy did not comply.  He ran up towards Block 5 where the accused was trying to break open the lock using a crowbar so that its inmates could render the prison officers assistance.  Next to Block 5 was the fence and entrance to the kitchen.  The entrance was also locked.
6. 	The victim climbed the fence.  He was escaping towards the kitchen area.  With his back towards the victim, the accused was alerted to the victim climbing the fence by inmates inside Block 5.  The accused turned around and struck the victim with the crowbar on the side of his face.  He fell and lay on the concrete.
7. 	There is a dispute as to whether the accused struck the victim with the crowbar a second time.  In his evidence, the victim says that whilst on the ground, the accused struck him again with force before he lost consciousness.  He woke up in hospital to find a laceration on his head; injuries to his mouth and bruising on his side.
8. 	But the evidence of inmates Karl Makei, Koroseta Laifa, Latana Fretton and Nepata Nepata is that the accused struck Billy just once on the right side of his face.  He fell and lay injured on the ground before Ikilasi and BJ arrived.
9. 	The evidence further diverges as to what happened next.  Karl and Latana’s evidence is that BJ and Ikilasi delivered further blows to Billy whilst on the ground and dragged him onto the grass.  Their evidence is consistent with the testimony of Vaai who says further that another person named Dougie also kicked Billy on the mouth.  The evidence of Koroseta and Nepata on the other hand is that Ikilasi and BJ left the victim alone when they told him not to do anything to him.
10. 	It was also the evidence of prosecution that prison officer Auina subsequently managed to unlock Block 5 and released its inmates to assist.  By the time they got to the front office, police had arrived.  On their return to the cells they lifted the victim who was still lying injured, his face covered with blood on a table and moved him to the front office for police to transport to hospital.
11. 	Dr Nuualofa Mauiliu was prosecution’s last witness. She saw the victim when brought to the Emergency department the night of the incident.  Her medical report dated 18 February 2022 produced as Exhibit P4 identifies 4 injuries: a cut to the upper lip already stitched by the emergency doctor on duty; mild bleeding from his nose; a cut along the right ear lobe that had already been stitched; and a cut on the forehead above his right eye that had also been stitched.  The victim was admitted to Acute 7 for observation and antibiotic treatment for his wounds.
12. 	Under cross examination, Dr Mauiliu concedes that although the injuries were likely to have been caused by strong force, she could not identify if each of the injuries were caused by a kick or punch or by a strike with a crowbar tool.
13. 	The accused elected not to call evidence.  But his cautioned statement admitted as Exhibit P1 states as to what happened:
	“Ma omai loa ma le leoleo ma kuku loa i le poku 6.  Pe a ma se 10 miguke … ae ma faalogo aku loa ua pakia paka mai le faalava lea 1.  Alu loa le leoleo ae ou sau ou saofai ai a i luma le faikokoa ae ou ke’i a i le kaufekuli mai o kagaka sasa le faikokoa o le poku 6 a la ou ke saofai mai le isi faikokoa.
	Koeikiki a ou lavea i le isi maa ga kogi mai ou alu loa agai i le poku lima.  Ou ke gofo ai i le makie i ou lavea.  Ou kei a ou ke savali ae sasa loa ma le maa i le pa.  Ou ke oo loa i luga ae koe sasa foi le isi maa i le pa.  Ou ke le iloa o iai gi leoleo i le umukuka, aumai ai loa e leoleo le kolopa fai mai e sasa le loka ma kalepe.
	Kaimi ga lae kaufekuli aku kagaka ae sasa foi le isi maa koikiki ou lavea ai ae oo aku loa ma le kagaka.  Ga ou faliu aku loa i le kolopa lea ga ou uua ka ai loa, kifa a laia koe kamoe agai i luga.  Ga ou fai i leoleo ou ke leiloa poo ai oga e pogisa fai mai e ka le loka ae ou fai ai e leai kei o’u afaiga ae fai mai a e ka.  Kamoe aku a le kama lea ga ou kaaga pea i luga le pa laa alu i fafo ga o ga ou aapa aku a ka loa i le kolopa a lea ou ke uua.
	Ga ou iloaiga a o le kagaka lea ga sau mai luga i le vaega lea ga vevesi ai.
14. 	As to intention, the statement reads:
	“F31.	O gafea tonu lea na e muai taina ai le tama lea sa tamo’e atu ina ua e umiaina le tolopa?
	T31.	I luga o le sikepu agai i le faikokoa alu agai i le umukuka.
	F32.	O le a le faamoemoega sa ia oe ua mafua ai ona e taina le tama lea?
	T32.	… o le kaimi ga ua oo ia au le fefe ma o le mea ga ga ou kaaga ai le kama pau le mea ia alu ese mai ma o le mea lea sa ou iai.
	F33.	O le a se gaioiga a le tama lea sa tamoe atu na fai ia oe na mafua ai ona e fefe?
	T33.	Laga ga ou vaai aku la e uu maa.  Ma e malamalama a le mea ga kamoe aku ai.  Ou kago loa ka oga ua ou fefe i ou lavea ai.
	…
	F38.	Sio sa e silafiaina o lau gaioiga lea sa fai e solitulafono?
	T38.	Sa ou iloaiga e aafia ai au i le kulafogo ae o le sefega o lo’u ola ga mafua ai ga ou kaaga le kagaka lea ile kolopa.”	
15. 	As to the second time he struck the victim, the statement reads:
	“F39.	I lou taina lona lua o le tama lea, o le a se vaaiga na vaai ai i le tama.
	T39.	Pau a le mea na ou vaai atu ua taatia.
	F40.	O gafea foi lea na e taina lona lua ai le tama lea?
	T40.	Kaimi ga la ua pe’a i luga o le pa sima.
16. 	 The accused further told police under caution that other inmates assaulted the victim after he struck him the second time.
Discussion
17. 	To sustain the charge, prosecution must prove beyond reasonable doubt the following elements:
(a) 	the accused intended to cause Billy Panapa grievous bodily harm; and
(b) 	the accused wounded or caused Billy Panapa grievous bodily harm.
The accused wounded or caused Billy Panapa grievous bodily harm
18. 	Dealing with the second element first, the evidence is that the accused struck the victim twice with the crowbar when he fled from Block 6 and tried to escape by climbing the fence near the kitchen entrance.  But there is conflict as to when those two instances occurred.  On one hand, the victim claims that the first was on the right side of his face when he climbed the fence which caused him to fall on the concrete; the second when he was on the ground.  He looked up and saw the accused strike him again.  He became unconscious and woke up later in hospital injured.
19. 	The accused on the other hand by his own admission under caution says the first time was when the victim ran up with other inmates to where he was after a rock thrown at his direction just missed him.  He turned to find the victim and struck him causing him to stagger before taking off.  The second when the victim was climbing the fence to escape.
20. 	After a careful consideration of the evidence, I accept that the two occasions were as what the accused told police under caution, and reject that the accused struck the victim again whilst on the ground.  It is consistent with the evidence of Karl Makei, Koroseta Laifa, Vaai Panapa, Latana Fretton and Nepata Nepata who say they that they saw the accused hit the victim only once when he climbed the fence; it was with force and the victim lay injured and motionless on the ground before Ikilasi and BJ got to him.
21. 	The evidence is unclear as to whether the accused’s first strike wounded the victim.  I find however that the second strike on the right side of his face when he was climbing the fence and which caused him to fall caused the cut along the right ear lobe and on his forehead above his right eye as identified in Dr Mauiliu’s report.  I also accept the evidence that BJ and Ikilasi delivered further blows to the victim whilst on the ground.
22. 	I am satisfied therefore that prosecution has proven the second element of the charge
The accused intended to cause Billy Panapa grievous bodily harm
23. 	I am not satisfied however that the accused intended to cause the victim grievous bodily harm.  When he first struck the victim, inmates were running towards him, rocks had been thrown at his direction including one that only missed him.  The crowbar was in his hands having been instructed by officers to break the lock to Block 5.  He turned around in time for the victim to reach him and saw that he had rocks in his hands.  I accept that in the circumstances, the accused was in fear of his safety and his intention was to avoid harm and protect himself.  
24. 	As to the second strike that wounded the victim, I am also not satisfied that he intended to cause him grievous bodily injury.  Inmates that broke out of Block 1 were running looking to escape, the accused who was already outside of the blocks was told to assist by breaking the lock to Block 5 so that its inmates could help the officers.  He was alerted to the victim escaping by climbing the fence by occupants of Block 5.  Again the crowbar was in his hand, he turned and immediately struck the victim once and I accept that his intention was to prevent the victim escaping.  Further as I have found, he did not strike the victim again whilst on the ground.          
25. 	The required intent is not to simply assault or cause the victim bodily injury.  He must have intended to cause him grievous bodily injury.  For the reasons abovementioned, I am not satisfied beyond reasonable doubt that he had the necessary intent.
26. 	I find therefore that prosecution has not proven the charge beyond reasonable doubt.
Discretion to amend the charge
27. 	Under section 55(2) Criminal Procedure Act 2016, the Court may amend a charge at trial in a manner that brings it into conformity with the evidence offered by the prosecutor.  In my view, the discretion under section 55(2) may be exercised after the evidence has completed and before a verdict is delivered because only then can the Court properly consider whether or not a charge requires an amendment to bring it into conformity with the evidence.
28. 	The Court may exercise that discretion in this case and amend the charge to one of common assault and find proven on the evidence both (i) a direct application of force by the accused on the victim; (ii) the application of force was intentional; and (iii) the victim did not consent.
29. 	But the accused raises the following provisions in defence which I must consider.
Section 13 Prison and Corrections Act 2013
30. 	 Section 13(1)(i) provides 
	“In addition to the powers conferred by this Act, a sworn member: … (i) may call for assistance in accordance with section 62 of the Police Service Act 2009, and any person who fails to render assistance commits the offence prescribed in that section;’”
31. 	Section 62 Police Service Act 2009 then provides:
	“62. Members may call for assistance – (1) A sworn member of the Service, when in the lawful execution of a duty, may call upon any male person, not being under the age of 18 years, to aid or assist the member to arrest or secure any person or to convey any person in the member’s charge to a police station or other place, when reasonable necessity exists for calling for that assistance.
	(2) A person who fails to aid or assist a sworn member of the Service when called upon commits an offence and is liable on conviction to a fine not exceeding 5 penalty units.”
32. 	 The defence argues that the accused cannot be convicted of the offending because he was acting pursuant to a call for assistance by the prison officers under s13 Prison and Corrections Act 2013.
33. 	Section 13 deals with powers privileges and protection of sworn members of the Prisons service.  In my view it does not provide a specific defence to the offending but the question of whether he acted pursuant to a call for assistance by prison officers is relevant nevertheless to the issue of whether he had the required intent.  As I have found, his intention was to assist the officers and not cause the victim grievous bodily harm.
Justification under sections 26 & 27 and Protection under sections 28, 29 & 30 Crimes Act 2013
34. 	The defence further argues that the accused is justified under sections 26 and 27 Crimes Act 2013 because he was assisting a constable in the arrest of the victim; and arresting the victim without warrant.  Furthermore, he is protected from criminal responsibility under sections 28, 29 and 30.  The sections state:
	“26. Persons assisting constable or officer in arrest – (1) A person called upon by a constable to assist him or her in the arrest of any person believed or suspected to have committed any offence is justified in assisting unless the person knows that there is no reasonable ground for the belief or suspicion.
	(2) Where in any enactment it is provided that any officer or person, not being a constable, may call upon any other person to assist him or her in arresting without a warrant anyone who has committed or is found committing any offence, a person so called upon is justified in assisting unless the person knows that there is no reasonable ground for believing that the person to be arrested has committed the offence.
	27. Arrest of persons found committing certain crimes – A person is justified in arresting without warrant:
	(a) any person whom the person finds committing any offence against this Act for which the offence is punishable by imprisonment; or
	(b) any person whom the person finds by night committing any offence against this Act.
	28. Arrest of person believed to be committing crime by night – A person is protected from criminal responsibility for arresting without warrant any other person whom the person finds by night in circumstances affording reasonable grounds for believing that that other person is committing an offence against this Act.
	29. Arrest after commission of certain crimes – Where any offence against this Act has been committed, a constable who believes, on reasonable grounds, that any person has committed that offence is protected from criminal responsibility for arresting that person without warrant, whether or not that person committed the offence.
	30. Arrest during flight - (1) A person is protected from criminal responsibility for arresting without warrant any other person whom the person believes, on reasonable grounds, to have committed an offence against this Act, and to be escaping from and to be freshly pursued by any one whom the person believes, on reasonable grounds, to have lawful authority to arrest that other person for the offence.
	(2) This section applies whether or not the offence has in fact been committed, and whether or not the arrested person committed it.”
35. 	I need not consider in detail each provision because whilst they refer to particular circumstances giving rise to justification of a person’s actions or protection from criminal responsibility, section 31 then provides that where force is applied by that person, “the justification or protection shall extend and apply to his use of such force as may be necessary to overcome any force used in resisting the … arrest, unless the … arrest (can be) made by reasonable means in a less violent manner; and must not have been effected by force intended or likely to cause death or grievous bodily harm.” (see Young v. Attorney General HC AK CIV 2002 404 001981 [2008] NZHC 2147 (23 December 2008), para 181 for a discussion of the equivalent section 39 of the New Zealand Crimes Act 1961.)
36. 	 The full text of section 31 Crimes Act 2013 reads:
	“31. Force used in executing process – Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him or her of such force as may be necessary to overcome any force used in resisting the execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:
	PROVIDED that, except in the case of a constable or a person called upon by a constable to assist him or her, this section does not apply where the force used is intended or likely to cause death or grievous bodily harm.
37. 	In the present case, hitting the victim with the crowbar cannot be said to have been force applied or used to overcome any force on the victim’s part in resisting arrest.  Indeed, the victim was fleeing and trying to escape by climbing the fence.  He was avoiding being captured not resisting arrest.  He had not applied any force on the accused that became necessary to overcome.  Therefore, even if the accused satisfied the requirements for exoneration under sections 26 to 30, the extension of the justification and protection under section 31 to apply to his striking the victim with the crowbar cannot be sustained.
Section 32 Crimes Act 2013 – Preventing escape or rescue
38. 	But the accused further relies on section 32(2) which relevantly provides:
	“Where any prisoner of a prison is attempting to escape from lawful custody, or is fleeing after having escaped from prison, every constable, and every person called upon by a constable to assist him or her, is justified in using such force as may be necessary to prevent the escape of or to recapture the prisoner, unless in any case the escape can be prevented or the recapture effected by reasonable means in a less violent manner.”
39. 	In contrast to section 31, the force justified under 32(2) need not be a response to overcome any force used by a person in resisting arrest.  So long as the force was necessary to prevent the escape; and the escape could not have reasonably been prevented in a less violent way, such force is justified under section 32(2).
40. 	Therefore, in proving its case, prosecution must also exclude the following requirements of the justification under section 32(2) beyond reasonable doubt.
(a) 	A prisoner escaped from lawful custody;
(b) 	The accused was called upon by a constable to assist;
(c) 	The force the accused applied was necessary to prevent the escape;
(d) 	The escape could not have reasonably been prevented in a less violent way.
41. 	As to the first requirement, it is not disputed that the victim was a prisoner who was escaping from lawful custody.  With other inmates, he escaped his cell following the assault of the prison officer by inmates.  He tried to break open the lock to his older brother’s cell before heading towards Block 5 where he climbed the fence to escape prison through the nearby kitchen.
42. 	On the second requirement, prosecution do not also dispute that the accused was called upon by prison officers to assist.  He was outside the blocks having been released to Block 6 for isolation with those infected with measles when the inmates inside Block 1 broke out.  The evidence is that prison officers were calling for help and one who was inside the kitchen area had passed onto the accused through the fence the tool, and instructed him to break the lock to Block 5 and allow its inmates to render assistance.
43. 	 As to the third requirement, prosecution argues that the force applied was not necessary to prevent the escape because the accused was not in any danger.  I do not agree. Prison officers had been attacked and inmates who broke out of Block 1 were running and trying to escape.  Rocks had also been thrown at the accused’s direction.  He was already in possession of the crowbar trying to break the lock to Block 5 under instruction from a prison officer when the inmates told him about the victim escaping by climbing the fence behind him.  Under those circumstances, I find reasonable his immediate reaction of turning and hitting the victim.  It was one strike and as I have found, he did not inflict further harm whilst the victim was on the ground.  The evidence does not also suggest that the accused would have struck the victim but for the fact he was escaping.
44. 	On the fourth requirement of the justification, I also find that the victim’s escape could not have reasonably been prevented in a less violent way.  It was chaos in the prison facility that evening and the prison officers were outnumbered and unable to control inmates.  The accused’s use of the crowbar in the circumstances was immediate and instinctive.  He could not have prevented the victim escaping in a less violent way.   
45. 	Accordingly, I am not satisfied that prosecution has excluded beyond reasonable doubt the requirements of the justification under section 32(2).
Conclusion
46. 	For the above reasons, I conclude as follows:
(a) 	Prosecution has not proven beyond reasonable doubt the charge of causing grievous bodily harm against the accused;
(b) 	Even if the discretion under s55(2) Criminal Procedure Act 2016 to amend the charge to bring it into conformity with the evidence offered by prosecution is exercised, prosecution cannot exclude beyond reasonable doubt the justification under s32(2) Crimes Act 2013 available to and raised in defence;
(c) 	The charge is accordingly dismissed. 	 

JUSTICE ROMA