IN THE DISTRICT COURT OF SAMOA
Police v Moananu [2024] WSDC 1 (08 March 2024)

Case name: 	Police v Moananu	
		
Citation: 	[2024] WSDC 1	
		
Decision date: 	08 March 2024	
		
Parties: 	POLICE (Informant) v SALALE MOANANU (Defendant)	
		
Hearing date(s): 	Hearing: 15 November 2023
Submissions: 14 December 2023	
		
File number(s): 		
		
Jurisdiction: 	District Court – CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Atoa-Saaga	
		
On appeal from:		
		
Order:	The defendant is found guilty of presenting firearm, armed with a dangerous weapon and uttering threat to kill. The charges of unlawful possession of firearm and Assault are hereby dismissed.	
		
Representation: 	Inspector Natia for Prosecution
Ms. Lui for Defendant	
		
Catchwords: 	Threat to kill – unlawful possession of a firearm – presentation of a firearm – armed with a dangerous weapon – assault.	
		
Words and phrases:		
		
Legislation cited:	Arms Ordinance 1960, ss. 7(1)(4); 9; 9(1); 9(11); 15;
Crimes Act 2013, ss. 2; 123 & 188;
Police Offences Ordinance 1961, s. 25.	
		
Cases cited:	Reeves v New Zealand Police [2021] NZHC 1775;
Beckford v The Queen [1988] AC 130.	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

P O L I C E

Informant

A N D:

	SALALE MOANANU, male of
Vaitele Uta

Defendant

Counsels:		Inspector S. Natia for Prosecution
			M. Lui for the Defendant

Hearing:		15th November 2023
Submissions:		14th December 2023
Decision:		8th March 2024

DECISION OF JUDGE ATOA-SAAGA
THE CHARGES
1. 	The Defendant is charged with 5 offences. The offences are arranged according to the sequence of events that unfolded. The offences are:
(a) 	Threat to Kill pursuant to Section 188 of the Crimes Act 2013.
(b) 	Unlawful possession of a firearm pursuant to Section 7(1)(4) of the Arms Ordinance 1960.
(c) 	Presentation of a firearm at Palasi Satau under Section 15 of the Arms Ordinance 1960.
(d) 	Armed with a dangerous weapon under Section 25 of the Police Offences 1961.
(e) 	Assault pursuant to Section 123 of the Crimes Act 2013.
2. 	The Defendant entered a Not Guilty plea to all the Charges.
3. 	Prosecution bears the burden of proving all the charges beyond reasonable doubt.
4. 	Prosecution called eight witnesses which included 6 Police officers and the Complainant Palasi and his wife Sene. The Defendant elected to give evidence. He also called a witness Fata Paul Loibl.
EVIDENCE
Prosecution’s evidence
5. 	The Complainant is a Police Officer who is currently ranked as a Sergeant within the Tatical Operation Section (“TOS”) of the Ministry of Police. He has been working with the Ministry of Police for 15 years. The Defendant and his wife Sene live at Matautu.
6. 	On the 2nd July 2022 at around 1pm, while driving on the inner lane at Tuanaimato with his wife, the Ford Ranger driven by the Defendant swerved in front of them suddenly. To avoid a collision, Palasi stepped on the brakes to prevent their vehicle from veering off the road. They saw the number plate of the vehicle was SSFA 02. The number plate caused the Complainant great anxiety and resentment towards the driver of identified Government vehicle. He not only signaled to the driver in front of him but shared his concerns with his wife about the abuse of Government vehicles. 
7. 	Nonetheless, they continued driving down the road. While he maintained that he did not pursue the Defendant’s vehicle, on cross examination, his previous statement to the Police and his wife’s testimony confirmed that they pursued the Defendant’s vehicle heading towards Vaitele. 
8. 	They discovered the Defendant’s vehicle at the corner of the road opposite the Jehovah Witness’s compound. The Complainant overtook the Defendant’s vehicle and while adjacent to the Defendant’s vehicle yelled out, “Kekē faalelei ou maka i luma o le auala kele ma le kupu o le lavevea o kaavale.”
9. 	 Palasi and his wife continued driving towards the intersection at Vaitele. This intersection to the right and left leads to Maota o Samoa and Siusega on opposite sides. Ahead of them was the road to Nuu. They were taken aback when the Ford Ranger pulled up to their vehicle near the intersection. They both heard the Defendant yell out, “E te fia ulavale?”  and “Vaai oe i ou alu atu faga oe.”
10. 	The Complainant and his wife continued driving up and past the intersection on the road to Nuu. Just after the slope, Palasi drove their vehicle off the side of the road onto a grassy patch. The Defendant drove up and parked right next to their vehicle on the main road. The Defendant yelled out to them again, “E te fia ulavale? Vaai oe i ou alu atu faga oe.” Palasi responded, “Aua le faatautala i taavale a le Malo ma le tutupu o faafitauli.”
11. 	Palasi saw the Defendant reach for something at the back of the car. Both Palasi and his wife saw the barrel of the gun through window of the vehicle. Palasi was momentarily stunned. He was motionless for about 4 minutes. Both saw the Defendant throw the gun to the back. 
12. 	Meanwhile, Palasi after recovering from the shock, got out of their vehicle and walked towards the Defendant’s car.  Palasi was consumed with anger. He also screamed at the Defendant to shoot him if he had any guts. The Defendant drove off immediately after. 
13. 	Palasi and Sene followed after the Defendant’s vehicle. Palasi was concerned that the Defendant will attempt to dispose the gun. He followed the vehicle to the three corners near Fia Store. The Defendant drove off towards the three corners at Vaitele which is opposite the Horse Racing Track. He could see the Defendant try to overtake the vehicles in front of him. There was another vehicle that turned from in front of the main road which hindered the Defendant from overtaking any more vehicles. Seeing the Defendant’s vehicle stuck in traffic, Palasi got out of their car and stormed after the vehicle.
14. 	He walked towards the Defendant’s car door and knocked on it. The Defendant got out of the car angrily, collared him and pushed him away. His wife who was sitting in the car could see her husband standing outside the vehicle. She also saw the Defendant holding onto her husband’s shirt.
15. 	By then, the vehicles were beeping as there was space now available for the vehicles to move. The Complainant walked backed to their car and they continued to follow the Defendant’s vehicle. They managed to catch up with the vehicle turning into the SSFA compound. Upon parking the driver got out. He apologized to the Complainant. The Complainant ignored him and rang the Faleata outpost to report the gun inside the vehicle. 
16. 	Soon after, Lorenese and Frank of the Faleata Police Outpost arrived in Police Vehicle 35. Lorenese and Frank were informed by Palasi that there was a gun in the vehicle. They walked over to the vehicle and saw the gun at the back of the vehicle. Lorenese also spoke to Salale. They contacted their Commanding Officer Norman who contacted Forensic and TOS for assistance in clearing the gun. 
17. 	Soon after, Sergeant Thor Tafunai of Forensic arrived in Police Vehicle 14. They continued to wait for representatives of TOS who arrived 20 minutes later. The officers from TOS were Sergeant Tyrone who checked the gun, Sergeant Ioane Tavai and Corporal Mao. 
18. 	Sergeant Tyrone discovered 5 bullets inside the gun. There was 1 in the chamber and 5 in the magazine. The safety of the gun was on. He removed all the bullets and took the bag that was inside the vehicle. The bag contained 38 cartridges. Thor took 3 photographs of the vehicle, the back seat showing the gun at the back and the bag of cartridges.
19. 	The gun and bag of cartridges were handed over to Sergeant Ioane Tavai. Lorenese advised the Defendant of his legal rights. He contacted their Commanding Officer who directed Sergeant Ioane Tavai to release the Defendant. Lorenese advised him that they will contact him on Wednesday.
20. 	The gun was taken to the Main Office and examined by Sergeant Junior Fereti. He checked the gun against the Arms Tracker System and found that the gun was registered to Fata Paul Loibl. The gun was a 12 gauge pump action. The gun was a Remington model. The gun was for farming purposes. After examination of the gun, they filled in a seizure note and transferred the gun into their exhibit room.
21. 	The Complainant and his wife conducted their interview at Police Station that afternoon.
Defendant’s Evidence
22. 	The Defendant is the Chief Executive officer of Samoa Sports Facilities Authority (SSFA). He also holds several chiefly titles at Falefa and Fagaloa. He has a large plantation at Falefa with an estimated 7000 taro plants (“tiapula”). He has had problems with the wild boars that frequently damage his plantation. He had a gun that he used to scare off the wild boars from coming onto his plantation. He had since given his gun to a supplier who had given him 3,000 tiapulas. 
23. 	He was looking for another gun for his plantation. He contacted his friend Fata Paul Loibl who is a licensed firearm dealer for a gun. Salale has a license for firearms. He was informed by Fata that he had a gun that he can test. They made arrangements to test out the gun at his plantation at Falefa.
24. 	On the 1st July 2022, Salale picked up Fata from his place at Lepea. Fata brought with him the gun which is currently the subject of this dispute. They were on their way to Falefa and had just reached Fagalii, when Fata received a call from an employee at Vaitele that they needed the keys for the storage room. On the request of Fata, they travelled back to Vaitele. While at Vaitele, some Chinese businessmen arrived expressing an interest to purchase one of Fata’s properties. Fata informed him that he will not be able to accompany him. 
25. 	Salale maintained that Fata forgot the gun at the back. During cross examination, it was put to the Defendant that the gun was not forgotten but was purposely left by Fata in Salale’s vehicle. Salale drove to Falefa with the gun at the back of his vehicle. At the time, he was driving SSFA 01. He decided that he will stay overnight at his plantation. The next morning after having breakfast, he drove back into town to get some money for church contribution on Sunday. The Defendant is a lay preacher at his church.
26. 	There was something wrong with the vehicle SSFA 01. Salale decided to replace vehicle SSFA 01 with SSFA 02. He went to his office and transferred everything including the gun and the bag of cartridges that was in SSFA 01 to SSFA 02. He intended to return the gun and cartridges to Fata.
27. 	After leaving the SSFA Building, Salale drove on the outside lane of the Tuanaimato Road with the intention of purchasing some goodies from Maryon Samoa for his children at home. Salale’s wife was overseas at the time. Just after Maota Samoa supermarket, he changed his mind and decided to go home instead and send his son to purchase the goods for his young children. He looked sideways at the inner lane and assessed that there was sufficient space for him to maneuver his vehicle between the vehicles travelling on the inner lane. He signaled just before driving onto the inner lane.
28. 	Salale heard a loud beeping noise from behind him. He looked at his rearview mirror and saw the driver in the vehicle behind him gesturing him wildly and giving him the “finger”. He decided to ignore the obscene gesture and accepted as justified the driver’s reaction in turning unexpectedly onto the inner lane. He drove off towards Vaitele road without any further regards for the driver of the vehicle.
29. 	Salale was passing the corner of the road opposite the Jehovah’s Witness compound at Siusega when a vehicle behind him suddenly overtook him. The driver also drove close to his car. It propelled his car towards the compound and onto the footpath adjacent to the compound. Salale had to readjust the SSFA 02 vehicle by driving it off the footpath onto the main road. The actions of the driver angered him. He chased after him by driving closely behind the truck and signaling to the driver to stop. At the time, the air condition of SSFA 02 was on and all his windows were up.
30. 	Salale followed the Complainant past the intersection onto the road going towards Nuu. Palasi drove off the road and parked on the side of the road. Salale drove up and parked next to Palasi’s car. As soon as he parked his car, Palasi got out of his car and walked to Salale’s car. At the time, all the windows were up and the doors were locked. Palasi tried to open the passenger door. When he could not open the door, he walked in front of the engine of the car. Salale wound the window halfway down and called out, “O lea lau mea na fai I tua I o?”
31. 	Palasi responded by saying, “O e iloa au? O au ou ke le fefe I se kagaka ola. O oe ua tatau na sau I fafo lou faiai.” Salale responded to Palasi, “Vaai le faga lea e I kua ii.” He also pointed to the gun at the back of his car, “Gei kei ua ou alaku faga ai lou guku.” 
32. 	Salale’s response caused the Complainant to move back from the car. Salale used the opportunity to drive off from the Complainant.  While driving off, he saw the Complainant driving after him. He decided that he could not go home despite his house being a few meters from where they were. He realized that only his children were at home. He decided to drive back to his office at SSFA as it was likely to be deserted at that time.
33. 	As he drove, he could see from his rearview mirror the Complainant’s vehicle following him. He drove back to Vaitele and Siusega. While he was waiting for the traffic to clear at the 3 corners at Siusega opposite the Race Track, he was shocked when he heard someone knocking furiously on the window of his vehicle. He saw the Defendant trying to open the door of the vehicle. At the same time, he was yelling at him continuously, to shoot him if he had any guts.
34. 	Salale jumped out of the car and tried to appease Palasi but Palasi was relentless and continued with the barrage of “shoot me if you have any guts.” Salale pushed him off to stop him. At the time, cars were beeping for him to move as his vehicle was stopping the traffic. He jumped back in his vehicle and drove off to the SSFA office. 
35. 	As soon as he arrived at the office, he jumped out. Soon after the Complainant drove into the compound and parked near his vehicle. He walked over to the Complainant and apologized to him profusely. He said to the Complainant, “Malie lou loto. Fale I le fale o le Atua lou finagalo. Ua lava ia mea.”
36. 	The Complainant however insisted that he is to be locked up. He responded by saying, “Leai. O lea e vaai I lau mea e fai ia oe. Leai o le a e vaai iai e te iloa o taavale a le Malo lea e te fealuai ai. E te iloa o kaavale ia a le Malo ao lea e ke alu sooga fai.”  It was then the Defendant suspected that the Complainant was a police officer. He tried to explain to Palasi that he had right to use the Government vehicle but Palasi responded, “O lona uiga o oe o se ACEO. O oe o se ACEO, o lea e vaai la iai I au mea ia e fai e ACEO ae laku sooga fai kaavale a le Malo.” Palasi continued to ignore him and called someone on his phone.
37. 	Not long after, Police vehicle arrived from Faleata. A few minutes, Forensic vehicle arrived. It was then Salale was fully cognizance that Complainant was a police officer. He was informed by the officers not to talk to Palasi as he had insisted that he be locked up.
38. 	Not long after, the Police van arrived. The Police officers exited and checked the vehicle, the gun and the cartridges inside the bag. The supervisor who knew him walked over and told him that they were going to take the gun to the office but he was free to go. They did not caution him then but told him to come down to the Main Police Station on Wednesday.
39. 	It was not until Wednesday, when the Police called him in the morning. He was in a Church meeting. After the meeting at 11am he went down to the Police Station at Apia. He wanted to lay a complaint against the Complainant for his unbecoming behaviour. He was however informed, cautioned, charges and arrested. The Police also locked him until the Registrar was available to release him in the afternoon.
DISCUSSION
Unlawful possession of a firearm 
40. 	The Defendant has been charged under Section 7(1)(4) of the Arms Ordinance 1960 which stipulates as follows:
	“(1) Subject to this Ordinance, no person shall, whether by way of purchase or in any other manner, procure possession of any firearm or ammunition otherwise than pursuant to a permit under this section.
	(4) A person who breaches or attempts to breach this section commits an offence and is liable on conviction to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 2 years, or both, and the burden of proving the existence and terms of any such permit as aforesaid lies on the defendant.”
41. 	The Defendant has raised as a defence Section 9 of the Arms Ordinance 1960 which stipulates as follows:
	
(1) A person, other than a licensed dealer, must not be in possession of any firearm for a period longer than 7 days unless the person is registered as the owner of the firearm under this section.
	(2) Registration under this section is effected by paying the prescribed fee and obtaining a certificate of registration from the Arms Officer.
	(7) A certificate of registration issued under this section expires on 31 March next following the issue thereof and may be renewed by application made to a member of Police and on payment of the prescribed fee. Such application shall contain such particulars as may be prescribed by the Arms Officer. (7A) For the avoidance of doubt, a certificate of registration expires on 31 March each year and, subject to subsection (1), it is an offence under subsection (11) for a person other than a licensed dealer to fail to renew a certificate of registration or to be in possession of a firearm without a certificate of registration after that date
	(11) A person who breaches this section commits an offence and is liable on conviction to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years, or both. In any prosecution for the offence, if the defendant is proved to have been in possession of the firearm, the burden of proving that the defendant was the holder of a valid certificate of registration in respect thereof as aforesaid, or that the defendant has not been in possession thereof for more than 7 days, or that the defendant was lawfully in possession thereof pursuant to this section, lies on the defendant.
42. 	The Defendant had procured the possession of the gun from Fata Paul Loibl. Fata Paul Loibl is a licensed arms dealer and sells both new and old guns. While it has been contended by the Defendant that Fata Paul Loibl had forgotten the gun in his car, I am of the respectful view that the Defendant was fully aware that the gun was left in his vehicle. The purpose of the visit to Falefa that morning was to try out the gun to see whether it was suitable for the purpose sought. It was the intention of the Defendant to purchase the gun if it was deemed satisfactory. The gun was registered with the Arms Tracker System for farming purposes also. I am satisfied that he was in possession of a firearm without a valid license for possession under Section 7 of the Arms Ordinance 1961.
43. 	Nevertheless, the Defendant has a valid defence under Section 9(1) and (11) of the Arms Ordinance 1960 notwithstanding that the Defendant did not have a certificate of registration. The Defendant was only in possession of the gun for less than 7 days. On the 2nd July 2021, he was only in possession of the firearm for 2 days. Therefore, the Defendant can invoke Section 9 of the Arms Ordinance 1961. As he has a valid defence under Section 9 of the Arms Ordinance 1961, I hereby find him not guilty of this charge. 
Threat to Kill pursuant to Section 188 of the Crimes Act 2013.
44. 	The Defendant does not dispute the utterance of the words for which he had been charged. The Defendant submits however that the words were spoken in response to the Complainant’s aggression.
45. 	As the Defendant has pleaded guilty to this charge, it is appropriate that I deal with this charge during sentencing and determine then whether the Complainant’s aggression is a mitigating factor of the offending. 
Presentation of a firearm at Palasi Satau
46. 	 Section 15 of the Arms Ordinance 1960 stipulates that:
47. 	“A person who, except for some lawful and sufficient purpose, presents a firearm, whether loaded or unloaded, at any other person, commits an offence and is liable on conviction to a fine not exceeding 50 penalty units or to a term of imprisonment not exceeding 2 years, or both.”
48. 	Prosecution submits that the Defendant presented the firearm at Palasi and relies on the evidence of Palasi at page 26:
	“...ma aapa lava i tua i le taimi lea ma ou vaai atu ua piki mai e iai le mea faitino o loo tago ai le tama i tua o le taavale, na ou iloa o le laau malosi ina ua oo mai i luma o le faamalamala o le taavale.”
	At page 27, 
	 “O iina na ou iloa atu ai o le laau malosi po’o o le faga le mea faitino lea ua tuu ane i luga ma faau mai le gutu ia te au i le ma taavale ma lou toalua.”
49. 	Prosecution further refers to the description by the Complainant:
	“O le faga sa ou iloa e umi lona gutu pe ona taua i lau faamatalaga o le barrel o le faga o le vaega lea o le paipa o le gutu o le faga, o le vaega muamua lea o le faga sa ou vaai iai ma faalala mai ia te au. O le uiga o le faalala ua u sao mai ia te au le gutu o le faga pe ua point ma ia te au le gutu o le faga.”
50. 	Prosecution also refers to the evidence of Sene who corroborated her husband’s evidence and their description of the Defendant’s movements in getting the gun from the back. Palasi also demonstrated how the gun was held by the Defendant and how it was presented to them.
51. 	Defence Counsel submits that the Defendant did not touch the firearm. Salale only pointed to the gun that was at the back of the vehicle. Therefore, the Defendant cannot be found guilty of presenting the firearm because he did not touch the gun nor move the gun. It is submitted that the transferring of the gun from the back of the car would have been very difficult as it would require the use of two hands just to get the gun over the head rest so that it can be pointed at the Complainant.
52. 	Counsel also refers to Reeves v New Zealand Police [2021] NZHC 1775. 
53. 	The case of Reeves v New Zealand Police can be distinguished from this case on the basis that appeal was allowed against the conviction of the Defendant because the High Court ruled that the Defendant was shaking the gun rather than aiming it at the Complainant. Notwithstanding, I do find the case useful for two reasons:
(i) 	The first reason is that it provides a general Principle that I consider applicable in interpreting the elements for Section 15 of the Arms Ordinance 1960 given the similarities in wording with the Section 52 of the Arms Act 1983 (NZ).
	The principle enunciated by Cooke J in Reeves v New Zealand Police is, “…. that under s 52 the firearm not only must be presented, but that it must be presented “at any person” (emphasis added). The dictionary definitions of “present” have as one of the more particular meanings the holding of the firearm in an aiming position. When interpreting the text in light of its purpose, the offence can be thought of as involving a threat to discharge a firearm at a person by the physical act of displaying the firearm to that person. Normally that would involve aiming or pointing it at that person. But there will be other physical acts of display on the firearm that are equivalent of pointing it.”
(ii) 	The second reason is that the offence of presenting of the firearm was not considered in isolation from the events prior. The High Court also examined and considered as relevant consideration the actions of the Defendant and what he said prior to the presentation of the firearm.
54. 	Palasi and Sene both gave evidence that they saw the Defendant pointing the gun towards them from the window of his car. While there is inconsistency in Sene’s evidence of when Palasi exited the vehicle, the common theme across their evidence is that they were both able to describe the gun when it was pointing at them and the Defendant’s actions in transferring the gun to the back of the gun afterwards. 
55. 	All parties agreed that they were a meter apart and they could clearly see through the window. I also observed the demeanour, conduct and attitude of both witnesses and found them credible and genuine in their account of the firearm. The Complainant’s raw emotion during cross examination on this particular aspect of the evidence was compelling also. The demonstration also of how the Defendant was holding the gun is also plausible within the confinement of the vehicle.
56. 	In my observation of the photographs of the vehicle, the compartmentalization of the vehicle in having a gap between the driver’s seat and the passenger’s seat provides sufficient space for the Defendant to retrieve the gun from the back. The Defendant is tall and from my observation of his physique he has a long reach. While it may be difficult to remove the gun from the back, it is not impossible to reach behind through the gap between the chairs and pull the gun from the back onto the front over the head rest. The safety was on so the gun could be held singlehandedly by the barrel. Despite the reference by Sene to the Defendant as a “toeaina” the Defendant has the physical strength and capability to move the gun from the back seat to the front window.
57. 	Assessment of the events leading up to the presentation of the firearm is also critical in determining the most logical sequence of events. Leading up to the presentation of the firearm, the Complainants had overtaken the Defendant’s vehicle just before the Jehovah’s Witness compound. While both the Complainant and his wife disputed the impact caused by them overtaking the Defendant’s vehicle at this junction, their action caught the Defendant by surprise. It was at this junction also that the Defendant discovered that the Complainant was not as dismissive of him overtaking them earlier at the inner lane at Tuanaimato road. Not only was he beeping the whole time he overtook the Defendant’s vehicle but their vehicle was in close proximity to the Defendant’s car causing the Defendant to veer off the road onto to the footpath.
58. 	The discrepancy in the evidence from this point onwards required a careful weighing and assessment of the evidence of the Complainant and his wife against the evidence adduced by Defendant. The Complainant and his wife alleged that the Defendant overtook their vehicle just before the intersection. They also overheard him call out, “E ke fia ulavale” and “Vaai i ou alu aku faga oe.” They continued driving up the Nuu road while the Defendant continued to follow them closely. Palasi decided to turn to the side of the road to allow the Defendant to drive by. 
59. 	The Defendant’ evidence is that he pursued the Complainant’s vehicle by driving closely behind the vehicle and signalling to the Complainant to stop. He was also beeping the horn of his vehicle. He disputed calling out to the Complainants as at the time, all the windows were up as the air condition of the vehicle was on so he could not be overheard by the Complainants even if he did call out.
60. 	After weighing the evidence, I am inclined to accept the Complainant and his wife’s version. The Defendant was provoked by the Complainant’s earlier intervention which caused him to swerve the vehicle off onto the pedestrian footpath adjacent to the Jehovah’s Witness’ compound. He admitted to pursuing the vehicle and blasting his horn. To deny calling out on the basis that the air condition was on and that the manual winding of the window would have been difficult does not negate the allegations as implausible. There was ample time for the Defendant to wind down the window while he was pursuing the Complainant’s vehicle. The Defendant is very tall, he has a long reach and while he cannot comfortably wind down the window on the passenger seat, he can definitely lean towards the window and wind it down. After the act of provocation also, he was not as calm and collected as he appeared in Court. The inclination would be to retaliate rather than a restrained approach of driving closely behind and signalling to the Complainant who had just caused his vehicle to run onto the footpath. 
61. 	The Defendant also does not dispute uttering the threat to kill words. These words also were to the Complainant and his wife empty threats until they saw the gun pointed at them. The Complainant gave evidence of how shocked he was when the gun was pointed at him. Sene also gave evidence that she was not as apprehensive when she heard the words spoken until she saw the gun. 
62. 	After weighing the evidence, I am inclined to accept the evidence of the Complainant and his wife that the Defendant removed the gun from the back and pointed it towards them from the window. Afterwards, he threw the gun to the back seat before he drove off. 
Armed with a dangerous weapon pursuant to Section 25 of the Police Offences Ordinance 1961.
63. 	As I have ruled that the Defendant obtained the gun from the back of the vehicle and presented it at the Complainants, I therefore also find him guilty of being armed with a dangerous weapon.
Assault pursuant to Section 123 of the Crimes Act 2013.
64. 	Section 123 of the Crimes Act 123. Common assault – A person is liable to imprisonment for a term not exceeding 1 year who assaults any other person.
65. 	Section 2 of the Crimes Act 2013 defines assault as, 
	“The act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, present ability to effect his purpose or the person causes the other to believe on reasonable grounds that he or she has, present ability to effect his purpose; and “to assault” has a corresponding meaning.
66. 	The elements of assault are:
(a) 	A person
(b) 	Attempts to apply force to the person of another directly or indirectly, or	threatening by any act or gesture to apply such force to the person of another 
(c) 	If the person making the threat, has or causes the other to believe on reasonable grounds that he or she has present ability to effect his purpose.
67. 	Defence Counsel has raised the common law defence of pre-emptive strike. 
68. 	Lord Griffiths in the judgment of the Privy Council in Beckford v The Queen [1988] AC 130 at page 144:
	“The common law recognizes that there are many circumstances in which one person may inflict violence upon another without committing a crime, as for instance, in sporting contests, surgical operations or in the most extreme example judicial execution. The common law has always recognized as one of these circumstances the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing. If no more force is used than is reasonable to repel the attack such force is not unlawful and no crime is committed. Furthermore, a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike. It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fails to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime namely that the violence used by the accused was unlawful.”
69. 	The Complainant and his wife were in pursuit of the Defendant’s vehicle when they reached the intersection. There were two vehicles in front of their vehicle and there was also incoming traffic causing a traffic standstill. The Complainant left his car and walked towards the Defendant’s vehicle. The Complainant’s intention according to evidence adduced was to challenge the Defendant to shoot him. The Defendant did not know that the Defendant was walking towards his vehicle until he heard the Complainant hitting the window of his vehicle while trying to open his door.
70. 	The Complainant testified that the Defendant collared him. Sene said that she saw the Defendant holding Palasi’s shirt. The Defendant denied collaring Palasi. He admitted that he pushed him away as he continued to taunt him to shoot him. 
71. 	Irrespective of whether the defendant collared Palasi or whether he pushed him, both acts constitute assault.
72. 	Nevertheless, I am satisfied that the circumstances justified the action of the Defendant in either holding his shirt or pushing him away. There was no justification for the Complainant to leave his car on the main road in a traffic queue to pursue the Defendant while he was also on the road. Irrespective also of whether he is a police officer by profession, at the time, he was a civilian. He had also left his wife in the car and was oblivious to all the other vehicles and the occupants of those vehicles. I find that Prosecution has not negated this defence as there is no justification for the Complainant walking to the Defendant’s vehicle and taunting him to shoot him. The action of the Complainant can easily be perceived as an act of bravado border lining on stupidity or an after effect of a traumatic experience. The Defendant also after pushing him off retreated by getting back into his car and driving off as the other vehicles were beeping their horns.
73. 	While I am satisfied that the Defendant committed assault by either pulling his shirt of pushing him away, I find the Defendant’s action is justified in repelling the Complainant who at this time was the aggressor. He also retreated after he committed the act of assault.
CONCLUSION
74. 	I hereby find the Defendant guilty of presenting firearm, armed with a dangerous weapon and uttering threat to kill.
75. 	I have dismissed the charges of unlawful possession of firearm and Assault.

JUDGE ATOA-SAAGA