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Police v Niko [2013] WSSC 50 (19 April 2013)

SUPREME COURT OF SAMOA

Police v Niko [2013] WSSC 50

Case name: Police v Niko

Citation: [2013] WSSC 50

Decision date: 19 April 2013
Parties:
POLICE v TUITAMAI NIKO aka MOEGALUPE NIKO male of Vailele.

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
L Taimalelagi for prosecution
R V Papalii for defendant

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Police v Papalii [2011] WSSC 130

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

TUITAMAI NIKO aka MOEGALUPE NIKO male of Vailele.

Defendant

Counsel: Ms L Taimalelagi for prosecution

Ms R V Papalii for defendant

Decision: 19 April 2013

DECISION OF NELSON J

1. This case once again shows how rational individuals under the influence of alcohol can become strange and belligerent. The evidence establishes that on Friday, 20 July 2012 the complainant and his drinking partner Asosi were consuming alcohol around the front of the local village store. They were partying to celebrate the completion of a job. At 10:00 pm the usual curfew for the village was declared. Moegalupe Liki, the defendants brother was one of the matais responsible for policing the curfew. Even though he held that role he admitted he too had been drinking earlier that evening.
2. When he came upon the defendant and his mate there were some resistance by them to dispersing. Asosi said they asked Liki for a little more time to finish their beer. The complainant said that an argument developed between Liki and Asosi. The complainant also stated in his evidence that Liki was the second matai to come to them requiring them to cease their drinking party and go home.
3. There is no doubt the complainant and Asosi were in breach of the village curfew which they would have known about as residents of the village. However instead of leaving the drunken men alone and reporting their behaviour to the village council the defendant and Liki took matters a step further. A confrontation occurred, insults were traded and by this stage the defendant was involved in the fracas as the defendants house is located next to the village store. In fact the complainant is a neighbour of the defendant and Liki.
4. The defendant too had been drinking and was intoxicated. The inevitable happened the incident escalated resulting in the complainant assaulting Liki. And the defendant retaliated by throwing a rock at the complainant which hit him in the mouth resulting in damage to some of his teeth. The complainant says he lost 7 teeth in the incident and is now required to wear false teeth. His treatment cost him over $200.
5. There is no question contrary to defence counsels argument that such injuries amount to “really serious bodily harm”. See the discussion of this aspect of the offence in Police v Papalii [2011] WSSC 130. Where it was noted at paragraph 62 that:

“It is not necessary that grievous bodily harm should be either permanent or dangerous; nor is it a pre-condition that the victim should require treatment or that the harm would have lasting consequences; and in assessing whether a particular harm was grievous account had to be taken of the effect on and the circumstances of the particular victim.”

6. The court found in that case that the complainants injury amounted to grievous bodily harm even though it was not life threatening. I therefore reject the argument that the loss of 7 teeth and accompanying lacerations to the complainants mouth are not really serious injuries. I accept these are not necessarily life threatening but that is not the legal test.
7. The complainants version of events is that the defendant was swearing at Asosi and when Asosi went over and confronted the defendant he the complainant intervened. At that point Liki joined the affray insulting him resulting in his assaulting Liki. However he denied hitting Liki with a bottle and said he only used his fists. And the next thing he knew he was hit by the rock thrown by the defendant. A blow which was severe enough to knock him out.
8. The evidence indicates that the complainant is not a matai of the village of Vailele where this happened. And that the land he occupies is freehold land. But it is clear from his actions and what he told Liki that it appears he did not consider himself bound by the village curfew. Hence the continuation of the drinking despite the curfew and hence their not obeying the instruction given by the first matai to break up their party. This is always a tricky position to maintain when one lives in a village run in accordance with our “tu and aganuu” (custom). But the court is happy to learn that the parties differences have been reconciled in accordance with that custom. And the required apology to the complainant has been made. I also note a village council penalty awaits the outcome of these proceedings. Irrespective of any other outcome I would have certain recommendations to the village council but this will await delivery of sentence in this matter.
9. Asosis version of the incident generally corroborates that of the complainant. He said the defendant swore at him and he confronted him resulting in the complainant intervening and taking him back to the store to get his bike to leave the area. He went to get his bike and when he looked back he saw the complainant hit Liki twice followed by the rock striking the complainant at close range. He confirmed the complainant used only his fists to assault Liki.
10. The store owner Kalauati Tusi witnessed some of these events. He said Liki was indeed the second matai sent to break up the complainant and Asosis drinking party. And that Asosi exchanged words with the defendant which the complainant defused. And that when Liki intervened the complainant hit Liki causing the defendant to join in by throwing a rock at the complainant.
11. The other eye witness called by the prosecution was the complainants wife. But she did not really add much credible evidence to these accounts. And the court must be careful of her evidence as she is not an independent witness. Further, she admitted she discussed these events as one would expect with her husband.
12. The defendants case is that he intervened in order to save his brother Likis life. He elected not to testify but he said as much to the police in his cautioned statement. His brother Liki was called as a defence witness however. He said the complainant and Asosi were guilty of breaching the village curfew, the “sa”. So he advised them he was taking them before the village council for breach of the sa. But as he was walking away they followed and assaulted him. He said the complainant hit him on the back of the neck with a bottle. Which dropped onto the road and cracked. Also that the complainant punched him in the face and the defendant had to intervene to save him from further assaults. In his testimony he denied his brother swore or provoked the complainant and Asosi. But he accepted that he had been drinking earlier on in the evening.
13. The defendants corroborative witness was a young National University Student Mata Lino who was standing across from the store observing these events. She confirmed there was an exchange of words or “taugaupu” between the defendant and Asosi and that the complainant hit Liki in the neck but she did not say with what. She also confirmed the defendant threw a rock at the complainant at point blank range.
14. My analysis of the evidence does not establish that the defendants actions were necessary in order to protect Liki or were required to preserve his life or save him from grievous bodily harm or injury. I am satisfied beyond reasonable doubt no self defence situation existed and that the prosecution have negatived self defence. Self defence in this context meaning not the defendant defending himself but defending his brother. There were no reasonable grounds existing for apprehending that death or grievous bodily harm would be caused to Liki if the defendant did not act in the way that he did.
15. I also do not accept the complainant used a bottle to initially strike Liki in the neck. This was denied by both the complainant and Asosi but more significantly the independent eye witness the store owner whose testimony I found credible and reliable, said the complainant used his fists only to assault Liki. He had no relationship to the parties involved in what was unfolding before him. The court accepts what he says.
16. The other independent witness the female student does not support what Liki says that he was struck by the complainants bottle. Furthermore no witnesses referred in their testimony to a bottle cracking or to the complainant being in possession of a bottle. Or remnants of a bottle or any glass shards being found on the road.
17. I am satisfied the prosecution have proven the charge to the required standard. I have no difficulty in finding the defendant willfully threw the rock and that he threw it deliberately and/or with reckless disregard. As stated earlier the rock caused grievous bodily harm to the complainant. The defendant is found guilty as charged of causing grievous bodily harm to the complainant on the day and at the place alleged in the information. It only remains now to adjourn the matter to a date convenient to counsel for sentencing of the defendant who will be required to attend the probation office for a probation report.
18. Tusa ai ma le faaiuga a le fa’amasinoga o lea ua fa’amaonia lau solitulafono i le mataupu lenei, tolopo le mataupu i le aso 06 Me mo se fa’aiuga mai le fa’amasinoga. Tulaga o le tatalaga o oe i tua o le a fa’aauau pea. A fa’apea o lena e te saini fa’aauau lau saini. E manaomia lou o’o i le ofisa o fa’anofo vaavaaia i le asō e logo i ai le aso o lau fa’amasinoga.

...............................

JUSTICE NELSON