YOUTH COURT OF SAMOA
Police v J S and T L [2013] WSYC 1

Case name: 	Police v J S & T L	
		
Citation: 	[2013] WSYC 1	
		
Decision date: 	23 December 2013 (given Orally)	
		
Parties: 	POLICE v J S and T L, both males of  Nofoalii	
		
Hearing date(s): 	16 and 17 December 2013	
		
File number(s): 	D3306/13, D3307/13	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Youth Court Samoa, Mulinuu	
		
Judge(s): 	DISTRICT COURT JUDGE VAAI	
		
On appeal from:		
		
Order:	1	On the admissible evidence, I am not satisfied I could convict either J S or T L for causing grievous bodily harm to Solo Siaosi as charged. There is no evidence at all on which I could convict either one of assault. Even assuming that the admissible evidence establishes a prima facie case of the young offenders having held a common intention to assault Siaosi on the facts, the lack of any admissible evidence they assaulted Siaosi still renders the prosecution’s case short of the required standard of proof in which the Court could convict either one of either charge. I accept the submission by defense counsels. A prima facie case has not been made out by the prosecution on the evidence against the two young offenders. It follows the two joint charges against them are both dismissed.

Representation: 	Ms L Mailo and Ms B Faafiti Lo Tam for Prosecution                                     
Ms H Wallwork for 1st defendant
Ms T Atoa for 2nd defendant	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.118 s.118 and 33 (2)	
		
Cases cited:		
		
Summary of decision:		
                                                                                                                                              
IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A     N      D:

J S and T L both males of Nofoalii 
Defendant

Counsel:	Ms L Mailo & Ms B Faafiti Lo Tam for prosecution
Ms H Walwork for 1st defendant
Ms T Atoa for 2nd defendant

Decision:	23 December 2013 (given orally)

DECISION OF THE COURT
Background
1	The 16 year olds J S and T L are young offenders in terms of the Young Offenders Act 2007. They are jointly charged under Sections 33(2) and 118(1) of the Crimes Act 2013 with an adult defendant Vilo Taimalie of Nofoalii for allegedly with intent to cause grievous bodily harm wounded Solo Viliamu Siaosi of Nofoalii at Nofoalii on the 22nd day of June 2013. They are similarly also jointly charged with Taimalie under Sections 33(2) and 118(2) of the same Crimes Act for assaulting and causing grievous bodily harm to the same said Solo Viliamu Siaosi of Nofoalii at Nofoalii the same day as in the other charge. The charges arose from an incident which occurred at Nofoalii on Saturday evening the 22nd of June 2013 where Solo Viliamu Siaosi was seriously injured on his face from an assault. He was admitted to Leulumoega Hospital the same evening for treatment before he was transferred to Tupua Tamasese Meaole Hospital (TTMH) at Motootua early Sunday morning the 23rd of June 2013 for specialist dental treatment. 
2	That same Sunday J S and T L were apprehended by the police and taken to Faleolo Police station where they were interviewed separately. J S was interviewed by Constable Mataua Maua. He informed Constable Maua he was 16 years of age. He denied any involvement in the assault on Siaosi. Lafaele was interviewed by Corporal Erika Falevalu. He informed Corporal Falevalu he was born on the 4th day of April 1995, making him 18 years of age at the time. He admitted in the interview to punching Siaosi once on the mouth but denied causing any injury to him. Neither young offender was interviewed in the presence of a parent or guardian by the respective police officers who interviewed them. 
3	After the young offenders were charged they appeared in the District Court for first mention on the 16th of July 2013 with the adult co-defendant. On application of the prosecution the three defendants were transferred to the Supreme Court for mention. They appeared in the Supreme Court for first mention in that Court on the 22nd July 2013. That day, the Supreme Court referred the charges against J S to the Youth Court because of his age, and retained for further mention in the Supreme Court the charges against T L presumably on the basis he was 18 years of age and outside the definition of a young offender in the Young Offenders Act. After the first mention in the Supreme Court, the charges against JS and TL were inter-changeably called several times before the Supreme and the Youth Courts. This confused state of affairs went on until it was brought to the attention of his Honour Sapolu CJ when these matters were again called in the Supreme Court on the 19th of September 2013 that TL was in fact 16 years and not 18 years of age as in his statement to the police. His date of birth was in fact the 4th of April 1997. As a result, the Chief Justice referred the charges against the young offenders to be dealt with by the Youth Court. It is clear that the prosecution knew on the 19th of September 2013 TL was a young offender by definition and therefore subject to the jurisdiction of the Youth Court in the charges he faced. Both young offenders pleaded not guilty to the charges. Fifteen witnesses were called at the hearing and at the close of the prosecution case three applications were made by defense counsels.  
4	First, Ms Atoa submitted that the caution statement taken from TL by the police ought to be ruled inadmissible on the basis he was not accompanied by either counsel or an adult during his interview. She relied on Nelson J’s reasoning in his judgment in Police v Vailopa (2009) WSSC 69. I ruled in favour of Ms Atoa’s application and ruled inadmissible the statement taken from TL for reasons which follow later in the judgment. 
5	Secondly, both Ms Wallwork and Ms Atoa jointly applied to exclude the evidence of Dr Chatterjee, Dr Soon and Registered Nurse Senetenari Fuauli. For reasons which follow later also in this judgment, I denied the application. 
6	Finally, defense counsels sought dismissal of the two joint charges against Sikoti and Lafaele on the basis, a Prima Facie case against them on each charge had not been made out on the evidence. The ruling that no prima facie case had been made out delivered orally on the 23rd of December 2013 makes up the last section of this judgment. 
TL’s Caution Statement
7	The joint charges against these young persons were finally heard in this Court three months after the prosecution became aware TL was in fact 16 years of age and not 18 years as first understood. It was apparent from the evidence of Cpl Falevalu that he was not made aware of the fact TL’s actual birth date had come to light in the Supreme Court some three months after he took his statement at Faleolo in June 2013. He said he would have done another interview of TL if he was made aware of his real age. Two points arise. First, the prosecution conceded that as a matter of police policy a parent or a guardian should always be present during police interviews of young offenders. It follows therefore, when the prosecution realised TL was a young offender because of his actual age, a second interview could have been conducted. Despite the concession, the prosecution argued that TL’s caution statement could nevertheless be admitted because there was no evidence it was taken involuntarily. It means that even equipped with the knowledge that TL was in law a young offender, the prosecution still elected to run the risk of seeking admittance of his statement at trial despite the manner it was obtained possibly infringing his Constitutional rights as a young offender. Second, Corporal Falevalu conceded he would have done a second interview if he was made aware that TL was in fact 16 years of age instead of 18 years he originally was led to believe. There was no second interview done. The absence of a parent or guardian during the interview is the reason counsel for TL relied on in her submission. She cited Nelson J’s ruling in Police v Vailopa and the reasons his Honour declared inadmissible a cautioned statement taken by the police from a young offender without an adult present in that case. The decision discusses fully the principles canvassed in the Convention on the Rights of Children (CRC) in specific relation to the treatment of children under police custody. I will not embark on another discussion of the spirit and intent of Article 37 (a), (b), (c) and (d) of the CRC. Nelson J’s discussion in Pol v Vailopa is clear and authoritative enough. In this case, I merely wish to say I endorse fully Nelson J’s observations and perhaps add that ratification of the Convention meant the treatment of children under police custody meant much more to the Samoan Government than merely paying lip service to the spirit of and the protection provisions of the CRC. 
8	The main reason TL’s statement was ruled inadmissible was because of the risk he may not have fully appreciated or understood the nature of his right against self incrimination by virtue of his age, as well as the way the caution regarding his right to silence was worded. I accept the prosecution’s view that there was no evidence TL’s statement was taken involuntarily after he was cautioned. But in my opinion, voluntariness in the contextual meaning it is used when taking a cautioned statement from an accused person implicitly requires a pre condition in an accused’s mind that he understood the full consequences of whatever he does say, after he’d been cautioned. As I see it, there was no evidence that when Corporal Falevalu cautioned TL on his right against self incrimination he explained the caution in a language Lafaele could understand, that whatever he said would be recorded and could be used as evidence not only against others in general but more importantly against himself. In other words, TL’s statement was not properly and /or unfairly obtained in the circumstances it was taken by Cpl Falevalu at Faleolo in June 2013. 
Joint Application to exclude the Medical Evidence
9	The application to exclude the medical evidence was on the basis the prosecution had failed to comply with the Court order regarding full disclosure of trial documents to defense counsels. It was submitted by defense counsels that failure of the prosecution to comply with disclosure of the medical evidence within time was not only an abuse of the Court’s processes, but also a breach of the young offenders’ right to a fair trial under Article 9(4)(a) & (b) of the Constitution. It was tantamount they said, to a trial by ambush. The prosecution on the other hand submitted the medical evidence should not be excluded because the circumstances which led to the late disclosure of the reports to defense counsels were beyond its control. Prosecuting counsel did not have the reports when the time for disclosure stipulated in the Court Order lapsed. Therefore the prosecution could not be said to have abused the Court’s processes because they neither deliberately withheld from nor refused defense counsel access to the medical evidence in the circumstances leading up to trial. Prosecuting counsels did the best they could in the circumstances. I accept that the prosecution adhered substantially with disclosure, in terms of the Court Order that was issued of all the evidence except the medical evidence. 
10	The question that needed answering was whether the right of the two young offenders to a fair trial was prejudiced by the late disclosure of the medical evidence which formed part of the overall evidence on which guilt was determined. 
11	In my view, it did not because the relevance of the medical evidence was to explain the extent of the injuries suffered by the complainant and the most likely cause(s), not who caused them. Further, the evidence sought to be excluded was insignificant in determining the young offender’s guilt because the complainant’s injuries to which the medical evidence referred bears little or no connection to the young offenders in view of the lack of evidence that they assaulted the complainant. For those reasons the application to exclude the medical evidence was denied. 
Prima Facie Case 
12	Before the assault, the circumstances were that the victim Solo Siaosi who was drunk from a rugby team party came across the two young offenders and their adult relative sitting on graves in front of their home listening to music. He asked if he could dance and was apparently told by TL it was fine so long as he did not yell ususu. He seemed to have taken exception to TL’s comment and chased him. He said he did not catch him. He then left and went to where a congregation Bingo was held. He later left the Bingo and decided to go home. On his way home he again saw the two young offenders and their adult relative standing where the assault on him took place. He claimed all three were mad at him for chasing TL earlier. He said Sikoti accused him of causing scratches to Lafaele’s neck. He denied ever grabbing TL’s neck because he said he did not catch him. He approached his accuser Sikoti and rubbed his finger tips on Sikoti’s chest to show him that he had no fingernails with which he could have scratched TL’s neck. He was facing JS as he was rubbing his chest. At the same time he said he saw TL standing several meters behind Sikoti. The young offenders’ adult relative Vilo Taimalie was behind him. He said he suddenly lost consciousness. Siaosi does not know who assaulted him or how he was assaulted. He does not even remember whether he was assaulted from the front where both the young offenders were standing or from behind where the adult defendant Taimalie was. 
13	The evidence of the victim Siaosi and Faitau Matagitau place both the young offenders at the scene of the crime before Siaosi was assaulted. The evidence of Fereti Seve and Sagisarah F. Seve who say they saw the young offenders walking away from the scene places them at the scene of the crime after the assault. 
14	The test on which the Court determines whether or not a prima facie case by the prosecution has been established is whether there is admissible evidence on which the Court could (not would) convict the young offenders. The prosecution submitted, from the evidence of the four witnesses mentioned above, the Court could infer from their presence at the scene before and after the assault that JS and TL in retaliation for the scratches caused to TL’s neck: (a) held a common intention to assault Siaosi, and (b) assaulted Siaosi causing him grievous bodily harm. It is arguable whether the young offenders felt provoked the way the prosecution described they were in view of Siaosi having chased TL before he left for the Bingo and also towards Sikoti by rubbing his fingertips on his chest. That is why the prosecution must not only show that Sikoti and TL by being present at the scene before and after the assault and from the circumstances leading up to the assault that they held at the time a common intention to beat the victim  up. 
15	The prosecution further argued that an inference could equally be made from both their presence at the scene and the circumstances which led up to the assault that Sikoti and Lafaele could have assaulted Siaosi. 
16	On the admissible evidence, I am not satisfied I could convict either JS or TL for causing grievous bodily harm to Solo Siaosi as charged. There is no evidence at all on which I could convict either one of assault. Even assuming that the admissible evidence establishes a prima facie case of the young offenders having held a common intention to assault Siaosi on the facts, the lack of any admissible evidence they assaulted Siaosi still renders the prosecution’s case short of the required standard of proof in which the Court could convict either one of either charge. I accept the submission by defense counsels. A prima facie case has not been made out by the prosecution on the evidence against the two young offenders. It follows the two joint charges against them are both dismissed.

JUDGE VAEPULE VAEMOA VAAI