IN THE SUPREME COURT OF SAMOA
Police v Telea [2017] WSSC 34

Case name: 	Police v Telea	
		
Citation: 	[2017] WSSC 34	
		
Decision date: 	08 March 2017	
		
Parties: 	POLICE (Prosecution) and SANELE TELEA male of Satapuala. (Defendant)	
		
Hearing date(s): 	06 March 2017	
		
File number(s): 	S3815/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	The defence of self defence succeeds, the charge against you is accordingly dismissed.	
		
Representation: 	F Ioane for prosecution
L R Schuster for defendant	
		
Catchwords: 	Grievous bodily harm – self defence	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	SANELE TELEA male of Satapuala.
Defendant

Counsel:	
F Ioane for prosecution
L R Schuster for defendant

Hearing:	06 March 2017

Decision:	08 March 2017

ORAL DECISION OF NELSON J
1.	The defendant is a male of Satapuala and he is charged that at Satapuala on 13 October 2014 he did with intent cause grievous bodily harm to Tapusilia Tuala a male of their village.  He pleaded not guilty and the matter proceeded to a defended hearing.  
2.	Prosecution called five witnesses, the first being Senior Sergeant Sione Menefata the investigating officer of the case.  The Senior Sergeant produced the cautioned statement but not the gun or pistol allegedly involved in the incident. The court requested the pistol be produced last Monday but I am advised this morning by prosecution counsel the key to the Police armory where the pistol is kept is now kept by Cabinet.  They have been unable to obtain the necessary approval.  This does not assist their case against the defendant.  
3.	Second witness was police constable Tiavi Galuvao who produced photos allegedly of the ulu tree involved in this incident and the scene of the assault.  The remainder of the prosecution case consisted of three eye witnesses.  Firstly Papa Taofia who had been drinking with the complainant that day and who was standing next to him when the attack occurred.  Secondly Lafaele Olasa who was standing nearby watching what was happening.  Finally there was Mailata Vili who was watching from at least 50 meters away.  
4.	The evidence of all three eye witnesses was unsatisfactory.  Papa Taofia, because he was by his own admission very drunk, having helped the complainant consumes eight large bottles of Taula prior to the incident.  He had not had anything to eat and had engaged in this beer drinking session after playing sports, when one can expect what is ingested by a person to be immediately metabolised into the bloodstream.  
5.	The second eye witness Lafaele was unhelpful because of the many contradictions in his evidence between evidence in chief and answers in cross examination.  He also refuted parts of his police statement taken by the police two days after the incident occurred in October 2014, some two and a half years ago.  The largest contradiction in his evidence was his claim that it was Steven who went inland with the victim not Papa.  Steven was not called as a witness but both Papa and Mailata say it was Papa who was near the victim when the defendant struck the victim.  
6.	The third eye witness Mailata was not much better.  It appeared he had not refreshed his memory from his police statement prior to giving evidence at trial.  With the result that his sworn evidence in parts contradicted his statement to the police taken two days after the incident in October 2014.  After allowing him at his request the opportunity of re-reading his statement, he recanted a lot of his evidence and agreed that what was in the statement was the correct version of events.  The statement was not sought to be produced but to a large extent it corroborated what Papa said. 
7.	Of the three witnesses, Papa notwithstanding his inebriated condition was the best placed to witness the attack.  He said that as the two of them walked inland, the victim sat down under an ulu tree beside the dirt road and gave him a cigarette.  The defendant then approached and asked the victim “why did he try to shoot him”. Referring to a confrontation earlier that day referred to in the defendants cautioned statement where the defendant said the victim pointed a pistol at him and threatened him.  The victim did not answer the defendant, whereupon the defendant then grabbed a laau lying on the ground and hit the victim in the face.  The “laau” was a dry tamaligi branch about the size of a mans arm according to the eyewitnesses.  Papa said the blow was not a forceful one but was sufficient to break the stick.  When the victim fell down the defendant unzipped the victims bag and left with the victims pistol.  People nearby arrived and took the victim to hospital.
8.	Whilst no medical report was adduced, everyone agrees the strike injured the victim causing bleeding from his mouth, nose and ears.  The seriousness of his injuries meant he was transferred from the Leulumoega District Hospital to the main hospital at Apia for treatment.  
9.	The victim died at the end of December 2014 at the National Hospital but it is clear from the pathologists report on file that the cause of death was gastrointestinal hemorrhaging and was unrelated to the injury inflicted by the defendant.  No doubt that is why the charge of murder originally filed against the defendant was properly withdrawn by the prosecution.  
10.	In relation to the matter at hand, Papas versions of events as confirmed by Mailata and to some extent Lafaele is consistent with the defendants cautioned statement given to the police a few days after the assault.  That statement was produced as Exhibit “P-1” for the prosecution and the pertinent parts read:
“Fesili:	O le a la sau tala e uiga i lou faia o le faaoogamanu’a ia Tapusilia Tuala?
Tali:	O a’u sa ou alu ou te faatau i le faleoloa o Isaleli i Satapuala, ae sau Tapusilia ma fai mai ia te a’u ou te alu e aumai ni ana fagupia se lua i le faleoloa o Isaleli, ae faitalia ia ma totogi.  Sa ou fai  iai e le mafai ona ou alu ona e leai se tupe ma o a’u na ou alu atu ou te faatau.
Fesili:	O le a la se tala a Tapusilia?
Tali:	Sa faapea mai ia te a’u, e aua ou te fia tama leaga ma tago i totonu o lana ato au tasi ma sipi le sipi ae se’i mai fafo le tama’i fana ma kaki ma ta’i atu ia te a’u le fana.
Fesili:	o le a la leisi au gaioiga na fai?
Tali:	Na uma loa ona ou po eseina le lima sa u’u ai e Tapusilia le fana ma ta’i mai ia te a’u o’u savali ese loa.
Fesili:	O fea na e savali agai iai?
Tali:	Na ou alu i lo matou fale.
Fesili:	O le a la le taimi na e toe agai ane ai ma e faaoo le manu’a ia Tapusilia?
Tali:	Tusa o le taimi na ou alu ai i uta i le feau ma ou toe foi mai o loo tutu atu ia Tapusilia ma Papa.
Fesili:	O fea na tutu atu ai?
Tali:	O uta i le pito ta o le auala.
Fesili:	Na e agai la i le vaega na tutu atu ai le aualii na?
Tali:	Tusa ou te la’a mai iina ae ou faalogoina le tala a Tapusilia o faapea, “E oki a le kagaka i le aso legei ia ke ia.”
Fesili:	O le a la lau gaioiga na fai iai?
Tali:	Na ou faalogo atu loa i lana tala lena, ma ou vaai atu ua saofai i lalo ma laga lana ato, o’u tamo’e atu loa ta i le laau tamaligi.
Fesili:	E mata pe mago le laau tamaligi na e taina ai Tapusilia?
Tali:	E mago.
Fesili:	O fea tonu na tau ai lau ta?
Tali:	O luma o foliga.
Fesili:	Na gau le laau na e taina ai foliga o Tapusilia, pe leai?
Tali:	Na gau
Fesili:	Na manu’a foliga o Tapusilia i lou taina i le laau tamaligi?
Tali:	Ou te iloaina na mau’a.
Fesili:	E faapefea ona e iloa na manu’a?
Tali:	Ona sa toto foliga i le taimi na uma ai ona ou taina i le laau.
Fesili:	Na matapogia Tapusilia i le taimi na uma ai ona e taina i le laau?
Tali:	ia
Fesili:	Na pa’u i lalo i le taimi na e taina ai?
Tali:	Na pa’u agai i luga o le mati’e
Fesili:	O le a leisi au gaioiga na fai ina ua maea ona e taina foliga o Tapusilia?
Tali:	na uma loa ona ou taina, o’u tago loa i le fana na aliali mai i fafo mai le ato a Tapusilia ma se’i ma ou tamo’e  loa ma ave le fana.
Fesili:	O fea la na e tamo’e aga iai?
Tali:	Na ou tamo’e agai i totonu o le pa a Muliolo.
Fesili:	O fea na e alu iai ma le fana?
Tali:	Na ou alu tuu i tua i lo’u uncle o Manaia, ma faamatala iai le mea na tupu.”
11.	The defendants uncle Tapuala Manaia testified as a witness for the defence and said that when he found out the defendant had the victims pistol he took it away from him.  He also said the weapon was in working condition because he fired off all the five shells it contained.  The weapon was subsequently given back to the defendant who took it with him to the Police Post when he went for his interview.  The court has not had the benefit of seeing the pistol in question but there is no doubt a pistol in working condition with live ammunition is a lethal not to mention an unlawful weapon. 
Discussion 
12.	There is no evidence the defendant came to the scene of the confrontation armed with the laau that he used.  Papa said he picked it up from the ground before striking the victim.  The defendant says he did that after being threatened again by the victim who had begun unzipping his bag while sitting down under the ulu tree.  It is clear from the defendants statement he believed the victim was going to shoot him, this time for real hence he picked up the laau and struck him in the face.  He then removed the pistol from the bag and took it with him, no doubt to prevent a repetition of the sort of incident that already occurred that day.  
13.	It is not clear what the problem was between you and the victim.   But what is clear is the evidence indicates the victims intent towards you was deadly.  He had threatened you with the pistol earlier.  And when you approached him he was in the process of unzipping the bag to gain access to the pistol.  Prior to doing that according to your statement he also said to you “e oki le kagaka i le aso legei ia ke au.”  
14.	I am satisfied from all these words and actions that you were accordingly under reasonable apprehension of grievous bodily injury or worse.  And that you acted to preserve your own life and safety.  In the very least I am in reasonable doubt about whether or not you acted to preserve your own life and safety.  The prosecution have accordingly failed to prove beyond reasonable doubt an essential element of the offence namely the intent to cause grievous bodily harm.  It is not necessary to refer to the law on this subject but if such is required there are numerous reported decisions on the matter including at Court of Appeal level.  
15.	The defence of self defence succeeds, the charge against you is accordingly dismissed.

JUSTICE NELSON