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Police v Osooso [2017] WSSC 2 (30 January 2017)

IN THE SUPREME COURT OF SAMOA
Police v Osooso [2017] WSSC 2

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FAAVALE OSOOSO, male of Leonē
Defendant

Counsel:
F Ioane for Prosecution
Defendant appears in Person

Date: 30 January 2017

DECISION OF TUATAGALOA J

The charges:

1. The accused Faavale Osooso is charged with the following:
   • (i) Two counts of intent to cause grievous bodily to Ioane Viliamu and Vaililo Saio both of Leonē on 12 October 2015 under s. 118(1) of Crimes Act 2013.
   • (ii) Two counts of actual bodily harm to the same victims on the same day; pursuant to s. 119(1) of Crimes Act 2013.
   • (iii) Armed with a dangerous weapon namely a kitchen knife without a lawful purpose under s. 25 of Police Offences Ordinance 1961.

The background:

2. The accused and the victim Ioane Viliamu are all of an extended family. They all live closely in the village of Leone. The victim, Ioane Viliamu’s aunty died and the whole family including that of the accused contributed to the funeral which was held in Savaii. It is said that the accused family were not happy with the distribution of money and food stuff received from the funeral and the accused brother on Saturday night, 10 October 2015 went and swore at Ioane’s father and family. Meanwhile, Ioane was in Savaii at the time returned on Monday, 12 October 2015 and heard what Tuiko did.

Evidence:

3. The Prosecution called seven witnesses including the two victims, Ioane Viliamu and Vaililo Saio and the doctor who treated the two victims at the main hospital.
4. The accused gave evidence and called three witnesses.
5. The Prosecution witnesses including the two victims, the accused and two of his witnesses basically said the following:
   1. The victim Ioane Viliamu went to the accused house around 6.00pm on 12 October 2015 (Monday) swore and called out to the accused brother Tuiko to come and fight with him;
   2. The accused brother Tuiko opened the door and threw a glass cup at Ioane;
   100. The cup hit Ioane on the hip and broke;
   4. Ioane and Tuiko fought. The victim Ioane’s brother Viliamu Viliamu and the accused both joined in.
   5. The victim Vaililo Saio saw what was happening, punched the accused and pulled Ioane away;
   6. Both victims were taken to the hospital.
6. The inconsistency with the evidence is in regards to the use of a kitchen knife and the victims falling on the ground. The Prosecution witnesses said they saw the accused stabbed the two victims with a knife while the accused and two of his witnesses, Salome Paulo and Temukisa Paulo said there was no knife.
7. The victim Ioane Viliamu did not see a knife he said that he felt something sharp on his back twice while he was fighting with the accused brother Tuiko. Viliamu Viliamu the brother said he went in to break up the fight and the accused stabbed at him, missed, turned and stabbed his brother Ioane on the back twice while Ioane was fighting with the accused brother Tuiko.
8. Viliamu said the knife was small with a jagged edge and black handle. Vaililo Saio said he saw the accused with a knife stabbing at Ioane, ran in and punched the accused to save Ioane and the accused also stabbed at him twice.
9. The other three (3) Prosecution witnesses Heta Matai (Vaililo Saio’s mother), Tala Alovale and Leilua Niusila all said they saw the accused stab the victims with a knife.
10. The accused gave evidence and said that he did not have a knife but that he fought with Ioane and Vaililo using only his fists. When asked about the injuries he said that it could have been from the broken cup on the ground when the victims fell down.
11. The other two witnesses for the accused Salome Paulo and Temukisa Paulo said the accused did not have a knife but that the injuries could have been caused from when the victims fell on the ground where pieces of the broken cup were. The witness Mata’u Paulo did not even see anything and should not have been called.
12. None of the prosecution witnesses said in evidence that the victims and/or with the accused and his brother Tuiko fell on the ground fighting.

The injuries:

13. Dr Isaia Taualapini was on duty when the two victims were presented to the hospital and treated the following injuries on the victims:

Ioane Viliamu

(i) 3x1 inch cut at the upper back close to the root of the neck posterior;
(ii) 1.5x1.5 inch cut over the left shoulder blade;
(iii) Minor abrasion on right hand over little and ring finger dorsally;
(iv) Chest x-ray showed no evidence of penetration into the thoracic cavity.

Vaililo Saio

(i) 3 x 1 inch cut across the root of the neck posteriorly
(ii) 1 inch superficial cut medial end clavicle area
(iii) Minor abrasions right elbow and neck anteriorly
(iv) Chest X-ray showed no evidence of any penetration into the thoracic cavity.

14. When asked what could have caused the injuries Dr Taualapini said of the injury in (i) it was consistent from the use of a sharp object like a knife or tin. While as the injuries in (ii) could be caused by a sharp or blunt object.
15. Dr Taualapini also said the same thing of what could have caused the injuries (i) and (ii) on the victim Vaililo Saio.
16. Dr Taualapini said that the victim Ioane Viliamu was bleeding profusely and had to repair the wound urgently to control the bleeding. He said that the wound of 3 x 1 inch on Ioane Viliamu was much more serious than that on Vaililo Saio thus the reason why Vaililo was sutured and discharged on the same day while Ioane was admitted overnight for observation.
17. In light of the inconsistency in the evidence for the accused, the fact that the accused is unrepresented and the evidence by himself and his witnesses were never put to the Prosecution witnesses especially the doctor, the Court pursuant to s.84 of the Evidence Act 2015 recalled the evidence of Dr Taualapini.
18. Dr Taualapini when recalled was asked about the injuries in (i) and (ii) as to whether such injuries could be caused when the victims fell on broken glasses. In relation to injury (i) on Ioane Viliamu, Dr Taualapini said that the seriousness and depth of that injury which was bleeding profusely could only be caused from the use of a sharp object. In relation to injury (ii) on Ioane, that injury could be caused from the use of a sharp object or from falling on sharp objects.
19. As to the victim Vaililo Saio, Dr Taualapini said that injuries (i) and (ii) could be caused from the use of a sharp object or from falling on sharp objects like broken glass.

The Law:

20. The elements of the charges:
    1. Grievous bodily harm or causing serious bodily injury with intent.
       • (i) The accused wounded the victims, Ioane Viliamu and Vaililo Saio;
       • (ii) The accused did so with intent to cause grievous bodily injuries.
    2. Causing injury OR actual bodily injury.
       • (i) The accused caused bodily harm to the victims Ioane Viliamu and Vaililo Saio;
       • (ii) The accused did so with intent to cause actual bodily harm.
21. The law is well settled as to what amounts to ‘grievous bodily harm’ to mean no more and no less than “really serious bodily injury.”^[1] “In assessing what or whether a particular harm was grievous account had to be taken of the effect on, and the circumstances of the victim.”^[2]
22. Bodily harm does not only include physical hurt and injury but also includes psychiatric injury.^[3]
    100. Armed with a dangerous weapon.
         • (i) Accused was armed with a dangerous weapon namely a kitchen knife;
         • (ii) Accused was not armed for a lawful purpose.

Discussion:

23. The evidence in relation to the use of a knife by the Prosecution and defence witnesses are poles apart. The Prosecution witnesses said they saw the accused stabbing the two victims with a knife while witnesses for the accused said there was no knife. The witnesses called are either related to the victims or to the accused.
24. The alleged ‘knife’ was never produced by Prosecution as evidence. In this instant, the ‘knife’ is simply hearsay so to speak. However the evidence of the doctor who treated the injuries on the victims said that the 3x1 inch cut on Ioane Viliamu’s upper back close to the root of the neck could only be caused by the use of a sharp object not from falling and rolling on sharp objects while following injuries the 1.5x1.5 inch cut over Ioane’s left shoulder blade and the 3x1 inch cut across the root of Vaililo Saio’s neck and 1 inch superficial cut on his left collarbone could be caused by the use of a sharp object or from falling on to sharp objects like broken glass.
25. What it really comes down to is who the Court believes or how credible a witness is. On the whole of the evidence the Court believes the evidence by the prosecution which was more credible and consistent with the independent evidence of the doctor.
26. On the other inconsistency issue of evidence whether the two victims and the accused and his brother had fallen on the ground I accept the evidence that none of the victims with the accused and his brother fell on the ground fighting. If there was any falling it would be that of the victims when they were stabbed with a kitchen knife.
27. The following injuries on the two victims of 3x1 inch, 1.5x1.5 inch and 1inch were injuries sustained from the use of a sharp object which sharp object is consistent with the evidence of the prosecution witnesses of a kitchen knife.
28. Both victims according to Dr Taualapini have 3x1 inch cuts at the root of their necks at the back but said that the injury on victim Ioane Viliamu was more serious than that on victim Vaililo Saio because it was bleeding profusely and was admitted overnight for observation while Vaililo was treated and discharged.
29. It is no longer that an injury can only be said to be grievous if injury is permanent or dangerous or that the person needed treatment or that the injury would have lasting consequences.^[4] The Chief Justice in Police v Papalii^[5] at [61] said:

“The question of whether an injury is really serious so as to amount to grievous bodily harm is for the Judge as trier of fact to decide. It is not for the doctors to decide even though their medical opinions are usually given due weight and respect.”

30. The evidence is both victims were stabbed. They were both bleeding and were taken to the hospital because their families were concerned. I am of the view that the injuries sustained by the victims were really serious.
31. I am satisfied that the accused by arming himself with a kitchen knife was not for a lawful purpose but to cause injuries by stabbing the victims. I am also satisfied that the accused intended to cause serious injuries to the two victims when he stabbed them with the kitchen knife.

Conclusion:

32. In the totality of the evidence I find that the prosecution has proven the following beyond reasonable doubt against the accused Faavale Osooso:
    • (i) The two charges of grievous bodily harm; and
    • (ii) The charge of armed with a dangerous weapon namely a kitchen knife.
33. The charges of actual bodily harm which to my understanding were filed as alternative charges are dismissed.
    

JUSTICE TUATAGALOA

^[1] D.P.P v Smith [1961] A.C. 290; Lesa Farani Posala v Attorney General [1995] WSCA 4.

^[2] See Archbold 2006 at 19-206 referred to by Chief Justice Sapolu in Police v Papalii [2011] WSSC 130 (7 November 2011) at [63]

^[3] See CJ in Police v Papalii [2011] WSSC 130 (7 November 2011) at [40]

^[4] Archbold in Police v Papalii [2011] WSSC 130 (07 November 2011) at [62]
^[5] ibid., at [61]