FAMILY COURT OF SAMOA
Police v Toeoaana [2016] WSFC 1

Case name: 	Police v Toeoaana and Afamasaga	
		
Citation: 	[2016] WSFC 1	
		
Decision date: 	23 March 2016	
		
Parties: 	POLICE v LEAITUA TAUA FALEFITU TOEOAANA and FAUMUINA TAIMANE AFAMASAGA, both males of Vailuutai and Palisi.	
		
Hearing date(s): 	25 February 2016	
		
File number(s): 	D2958/15, D2959/15 & D2986/15.	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court Samoa, Mulinuu	
		
Judge(s): 	DISTRICT COURT JUDGE ROMA	
		
On appeal from:		
		
Order:	•	(i)	On the charge of Threat to Kill against the first accused, I am not satisfied that the prosecution has proven the charge beyond reasonable doubt.  I find the first accused not guilty of the charge;
•	(ii)	On the charge of Common Assault against the second accused, I am not satisfied that the prosecution has proven the charge beyond reasonable doubt.  I find the second accused not guilty of the charge;
•	(iii)	On the charge of Insulting Words against the second accused, I am not satisfied that the prosecution has proven the charge beyond reasonable doubt.  I find the second accused not guilty of the charge.  

Representation: 	G. Nelson and F. Ioane for prosecution
L. Taimalelagi for second defendant
First defendant in person	
		
Catchwords: 	Assault – Threat to kill – Insulting words – common assault – verbal threats	
		
Words and phrases:	Intent to provoke a breach of peace - 	
		
Legislation cited:	Crimes Act 2013 s.123 & 129 & Police Offence Ordinance 1961 s.4 (g)	
	Police Offences Ordinance 1961, 4(g)	
Cases cited:		
		
Summary of decision:		

IN THE FAMILY COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

LEAITUA TAUA FALEFITU TOEOAANA and FAUMUINA TAIMANE AFAMASAGA, both males of Vailuutai and Palisi.
Defendant

Counsel:	
G. Nelson and F. Ioane for Prosecution
L. Taimalelagi for second defendant
First defendant in person

Decision :	19 February 2016

DECISION OF JUDGE ROMA
Background
1	The 2 accused face 3 individual charges, 1 against the first accused and 2 against the second, all resulting from an incident at Vailuutai in the afternoon of Sunday 1 November 2015 during an extended family meeting.
2	Both accused were present when things got heated and exchanges took place, before some members managed to get them under control.  Police also arrived in response to a call from a family member.
3	The first accused faces one charge, D986/15, of verbally making a threat to kill under section 129, Crimes Act 2013.  The charge alleges that he made a verbal threat to one Afamasaga Mautofu, namely “Ou ke alaku loa i luga e oki loa.”  (When I get up, you will die).
4	The second accused faces the following charges:
•	(i)	D2958/15 - common assault of Leaitua Sausaulele, male of Vailuutai under section 123, Crimes Act 2013;
•	(ii)	D2959/15 - using insulting words, namely “ufa” (ass) and “shit” whereby a breach of the peace may be occasioned, under section 4(g), Police Offences Ordinance 1961.
Evidence by the Prosecution
5	The prosecution called 4 witnesses.  Iaeli Pualilo Iloa (“Iaeli”) and her daughter Sootuli Iloa (“Sootuli”) were the first 2 witnesses.  Their evidence relate to the charge against the first accused.  The testimonies of the last 2 witnesses, Otineru Titi (“Otineru”) and Leaitua Sausaulele (“Sausaulele”) relate to the charges against the second accused.
6	Iaeli and Sootuli say that in the afternoon of the incident, they were present at a family meeting at Vailuutai, to discuss plans for the funeral of an elderly deceased family member.  The meeting followed the usual Sunday toonai (lunch), and present amongst other family members were the first accused, Sausaulele, Otineru, and children of the deceased.
7	Iaeli’s evidence is that they did not know about a ‘toanai’ (lunch), but they were present, and waiting for Afamasaga Mautofu (“Afamasaga”), who is the father of the second accused to arrive.  
8	Shortly after ‘toanai’ and as the members were conversing, Afamasaga, his wife and their daughter Taimane (the second accused) arrived.  Afamasaga went inside the house and greeted some of the matais including the first accused and Otineru.  He did not shake hands with Sausaulele.  As Afamasaga was about to sit, Sausaulele who was seated across, threw a cup at him.  Afamasaga managed to dodge and the cup broke when it hit a wall behind him.  Sausaulele then walked over and punched Afamasaga on the mouth.  Afamasaga fell and blood was seen on his mouth.
9	As others tried to calm the commotion, Iaeli heard the first accused call from where he was again seated across the house, “Ou ke ku aku loa e oki loa” (You will die when I get up).  According to Sootuli, what the first accused said was “E feololo le ga, ou ke ku loa i luga e oki loa” (It will be worse when I get up, you will die).  Both witnesses say that these remarks by the first accused were directed at Afamasaga.
10	When tension finally calmed and after the police arrived, both Iloa and Sootuli accompanied Afamasaga and others to Faleolo Police Post where they made statements.
11	Iaeli and Sootuli are close relatives of Afamasaga.  Sootuli refers to Afamasaga as her uncle.  Under cross examination, both say that they only witnessed what the first accused said.  They did not see the alleged assault by the second accused on Sausaulele.
12	The prosecution’s other witnesses Otineru and Sausaulele both confirm the family meeting and the time when Afamasaga, his wife and the second accused arrived.  They also confirm that shortly after, tension erupted between Afamasaga and Sausaulele, during which a cup was thrown and broken, and Sausaulele himself, punched Afamasaga.  According to Sausaulele, they were not too happy when Afamasaga turned up at the meeting because at the time, he had not been accepted back at the village.
13	But Otineru and Sausaulele go on to say that when tension calmed and Sausaulele resumed his seat between Otineru and the first accused, the second accused, who by then was inside the house, walked across and hit Sausaulele on the head with a black bag.  Sausaulele was still seated.  Otineru says that the second accused did this once but according to Sausaulele, he was hit three times, once on the head and twice at the back of his neck.  
14	At the same time, the second accused directed remarks at Sausaulele.  Otineru says that what the second accused said was “E ke koe pa’i loa i lo’u kama, e vaai iai i le mea e kupu” (You will see what happens if you ever lay hands on my father again) and “ufa, shit” (ass, shit).  On the other hand, Sausaulele himself says that the second accused used the words “isa” (how dare you) and “o ai oe” (who are you).
Evidence by the first accused
15	The first accused elected to call evidence and was his only witness.  He confirms that tension grew amongst the older members of their family when Afamasaga, his wife and the second accused arrived.  He says that they were concerned about how the village might see it because Afamasaga had not been allowed back in the village.
16	He did not hear the cup break nor did he see Afamasaga injured.  But he says that there was a lot of noise and he too tried to break up the parties, and calm his family members.  
17	Whilst admitting that he was not happy when Afamasaga turned up, he denies that there was animosity between them, and says that he himself greeted and shook hands with Afamasaga when he arrived.  He strongly denies that he used the words “Ou ke ku aku loa e oki loa” (You will die when I get up) or directed similar remarks at Afamasaga.
18	In chief, he does not give evidence of an assault by the second accused but when the point was raised by Counsel for the second accused under cross examination, he says that he did see the second accused hit Sausaulele with a black bag once.
Evidence by the second accused 
19	The second accused also elected to testify and called her father Afamasaga as a witness.
20	The second accused’s evidence is that when they arrived at Vailuutai, her parents walked inside the house where their family had gathered, whilst she was still outside taking a phone call.  Not long after, her attention was drawn to what was happening inside the house by the sound of a cup breaking, followed by a heated verbal exchange.  As she made her way inside, she saw Faletua Titi and Afamasaga Siaosi trying to help her father up, and shield him away from others who were trying to get to him.  Amongst those trying to get to her father were Sausaulele and the first accused’s son, Kepaoa Falefitu.
21	She saw blood on her father’s chin, and was at his side when angry family members including Sausaulele came towards him.  Raising her hands in an attempt to shield her father, a black folder that she normally carries around, and which she had then, flew out of her hand.  She does not know where the folder landed, and whether it hit any person.  The folder contained a writing pad and her mobile phone, and both items dropped from the folder.  
22	She denies walking across the house and hitting Sausaulele with the folder.  She denies making any physical contact with Sausaulele but concedes the possibility that the folder might have hit him when it flew off her hand. 
23	The second accused also denies saying “shit” and / or ”ufa” (ass) to Sausaulele.  She says that she does not swear.
24	Under cross examination, she maintains that when she came into the house, she was not concerned with anyone but the injuries and safety of her father. 
25	The evidence of the second accused’s father, Afamasaga, confirms how things got heated upon their arrival.  He says that he was chased out of the house, but Afamasaga Siaosi took him and sat with him.  He confirms that as he was about to sit, Sausaulele threw a cup at him, which he managed to dodge, before Sausaulele walked over and delivered him a punch.
26	As to his second accused daughter’s involvement, he supports her version that she was outside when the incident occurred, before she rushed inside and tried to shield and defend him from family members who were trying to get to him.
27	Afamasaga did not hear the second accused make any threats or insulting remarks at Sausaulele.  But he witnessed the first accused call out to him “Ou ke ku aku loa i luga, fasioki oe.” (When I get up I will kill you).
Issues
28	The issue in this case is one of credibility.
29	Ultimately, in respect of the first accused, the question is whether on the evidence, I am satisfied that the charge has been proven beyond reasonable doubt.
30	Likewise in respect of the second accused, the question is whether on the evidence, I am satisfied that both charges have been proven beyond reasonable doubt.
31	If in respect of the common assault charge against the second accused, I do so find, then I must also consider whether on the same evidence, I am satisfied beyond reasonable doubt that the second accused did not do so in defence of a person under her protection.
Law
Threat to Kill (Crimes Act 2013, s129)
32	To prove the charge, the prosecution must satisfy the Court beyond reasonable doubt that:
(i)	The accused
(ii)	Verbally made a threat to kill
(iii)	Any person
Common Assault (Crimes Act 2013, s123)
33	The prosecution must prove beyond reasonable doubt:
(i)	There was an application of force, direct or indirect, by the accused on the person of another;
(ii)	The application of force was intentional;
(iii)	The accused did so without lawful justification.
34	As to the defence of a person under the accused’s protection, being lawful justification to an assault, section 17(6) of the  Crimes Act 2013 relevantly provides as follows:
“A person is justified in using force, in defence of the person or anyone under that person’s protection, against an assault, although in so doing the person causes death or grievous bodily harm if:
(a)	 the person causes it under reasonable apprehension that the violence with which the assault was originally made or with which the assailant pursues his or her purpose will cause death or grievous bodily harm to the person under his or her protection; and
(b)	the person believes on reasonable grounds that he or she cannot otherwise preserve the person under his or her protection from death or grievous bodily harm; and
(c)	 the force the person uses is no more than is necessary to prevent the assault or repetition of it.
Insulting Words (Police Offences Ordinance 1961,  s4(g)) 
35	The prosecution must prove beyond reasonable doubt that:
(i)	The accused used insulting words;
(ii)	With intent to provoke a breach of the peace; or
(iii)	Whereby a breach of the peace may be occasioned.
Discussion
First Accused – Threat to Kill
36	The evidence of both Iaeli and Sootuli is that as some members were trying to calm the parties, the first accused was seen and heard call out to Afamasaga “Ou ke ku aku loa e oki loa” (You will die when I get up) and “E feololo le ga, ou ke ku loa i luga e oki loa.” (It will be worse when I get up, you will die).
37	But there is also the evidence of the first accused denying that he made any such threats.  He admits that he was not happy with Afamasaga when he arrived, because of his concern for the village, but still greeted and shook hands with him.  He was also one of the members who tried to calm the parties.
38	Clearly, all those present inside the house when the incident occurred are members of the same extended family, the first accused, Iaeli and her daughter Sootuli all included.  Arguably therefore, Iaeli and Sootuli, as the prosecution suggests, have nothing to gain but much to lose by giving evidence against their relative.
39	However in my view, having listened to the testimonies and observed their demeanour, it is obvious that these two witnesses are closer to Afamasaga than to the other members of their family who were involved.  Unlike the others, Iaeli knew that Afamasaga would come to the meeting.  She says in evidence that they were waiting for him to arrive.  Her daughter Sootuli referred to Afamasaga as her uncle, and subsequently, both accompanied Afamasaga to Faleolo Police to make statements.
40	I am also mindful that of everything that took place and was said inside the house, and amongst many family members present, their evidence was mainly directed at what was done and said to Afamasaga, specifically, what the first accused called out to him after the parties were broken up.  In fact, when asked about the alleged assault by the second accused on Sausaulele, they both say that they did not see anything.
41	On the other hand, aside from the first accused’s denial that he made such verbal threats, and the fact that no other witness was called to support his evidence, the first accused impressed me as a witness.  He does not deny that he was unhappy when Afamasaga arrived, but explains that they greeted each other and he too tried to calm their family members when the incident broke out.  He was also unmoved under cross examination.
42	In my view, the evidence of the first accused, taken at its lowest, casts a reasonable doubt on the evidence of the prosecution witnesses, on whether he made the verbal remarks or threat as alleged by the prosecution.
43	The benefit of that doubt must be exercised in favour of the first accused.
44	I find therefore, that the charge against the first accused has not been proven beyond reasonable doubt.
Second Accused – Common Assault
45	The prosecution relies on the evidence of Otineru and Sausaulele himself, that after the parties had calmed and Sausaulele was again seated at the front part of the house, the second accused walked across and hit him on the head with a black bag.
46	The second accused’s version, on the other hand, is that she did not walk across and hit Sausaulele.  Rather, it was after she had come inside the house and rushed to where others were trying to help her injured father, that she realised some including Sausaulele were moving towards them.  In an attempt to shield her father, she raised her hands and a black folder she held in her right hand flew out, and might have hit Sausaulele.
47	In relation to the evidence of the prosecution, I again bear in mind that whilst everyone present are related, Otineru and Sausaulele were on the other side of the family who had already gathered when Afamasaga arrived, and who did not like the idea of the second accused’s father turning up at the meeting.
48	But I also find it difficult to accept that the second accused would walk across the house where an elderly matai was seated, hit his head with an object whilst he was still seated, and walk back across to where she was, without provoking a further incident and attracting insult and abuse from those present.
49	In an extended family meeting where matais, elders and many family members are present, it would be outright disrespectful and normally attracts verbal and physical abuse from not only the complainant matai, but the other members of the family.
50	From the evidence, apart from the elder matais, there were many family members present.  If anything, the incident had ended and the situation had calmed when the second accused, as alleged by the prosecution, walked across and assaulted Sausaulele.  Yet, neither Sausaulele nor any of the other members present reacted.  That in my view is unheard of.
51	In my view also, if the second accused had assaulted Sausaulele in the open, as Sausaulele and Otineru say she did, especially when things had calmed, then that assault should have also attracted the attention of the other prosecution witnesses Iaeli and Sootuli who claim to have also been present.  But Iaeli and Sootuli say they did not see anything.  Either they were selective, or no such assault took place.
52	Compared to the prosecution’s version, the account by the second accused as to how she might have caused the folder, to make contact with Sausaulele, is in my view plausible.  She was unaware if the folder had hit anyone, and it was unintentional in the circumstances.
53	Taken at its lowest, the second accused’s version increases doubt in my mind that she walked across the house and hit Sausaulele once or twice on the head, as alleged by the prosecution.
54	In saying that, I do not place any weight on the evidence by the second accused’s father as to her daughter’s involvement.  He was clearly injured by the time the second accused made it inside the house; there were other people inside, some trying to calm the parties; and having observed and listened to his testimony, I do not rule out the possibility that he had discussed with the second accused, her version prior to trial.
55	Still, on the totality of the evidence, I am not satisfied beyond reasonable that the second accused intentionally applied force, direct or indirect, to the person of Sausaulele.
56	I need not therefore consider whether the second accused’s father was a person under her protection, and whether the second accused acted in defence of that person, as is raised in the submissions by Counsel for the second accused.
Second Accused – Insulting Words
57	The prosecution’s case is that at the same time of the second accused’s assault on Sausaulele, she also called out to him insulting remarks “shit” and “ufa” (ass).
58	I have stated above the reasons why I am not satisfied that the second accused walked across the house and assaulted Sausaulele.  For the same reasons, I am also not satisfied that she there and then, directed the insulting remarks at Sausaulele, as alleged by the prosecution.
59	In addition to the second accused’s denial, there is also the inconsistency between the evidence of the 2 prosecution witnesses Otineru and Sausaulele as to the words uttered.  Otineru says that the words used were “ufa” (ass) and “shit”.  But Sausaulele himself, to whom the remarks are alleged to have been directed, says that the words used by the second accused were “isa” (how dare you) and “o ai oe” (who are you).
60	Whichever of those remarks, they are in my view, insulting and likely to provoke a breach of the peace in the circumstances of this case.
61	On the evidence however, I am not satisfied that the second accused used those words, just as I am not satisfied that she walked across the house and intentionally applied force on Sausaulele by hitting him with a bag.
Conclusion
62	For the foregoing reasons, I have reached the following conclusions:
•	(i)	On the charge of Threat to Kill against the first accused, I am not satisfied that the prosecution has proven the charge beyond reasonable doubt.  I find the first accused not guilty of the charge;
•	(ii)	On the charge of Common Assault against the second accused, I am not satisfied that the prosecution has proven the charge beyond reasonable doubt.  I find the second accused not guilty of the charge;
•	(iii)	On the charge of Insulting Words against the second accused, I am not satisfied that the prosecution has proven the charge beyond reasonable doubt.  I find the second accused not guilty of the charge.  

JUDGE ROMA