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Police v Lauaniani [2018] WSSC 105 (3 August 2018)

SUPREME COURT OF SAMOA
Police v Lauaniani [2018] WSSC 105

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

IONA LAUANIANI male of Tuanai-uta and Afega.
Defendant

Counsel:
R Titi for prosecution
S Leung Wai for defendant

Hearing: 09, 10 & 11 July 2018

Submissions: 20 July 2018

Decision: 03 August 2018

ORAL DECISION OF NELSON J

1. The defendant faces two charges S1357/17 that at Tuanai-uta on 30 September 2017 he fatally assaulted Maletino Moananu a 38 year old male of Tuanai-uta and he did thereby commit the crime of murder.
2. Secondly same date and same place he was armed with a dangerous weapon namely a piece of timber for no sufficient or lawful purpose. To both charges the defendant pleaded not guilty.
3. At the trial it was conceded by his counsel that the defendant struck the deceased twice with a piece of timber. But he argued that the defendant did so without murderous intent. The only issue therefore was in relation to the defendants intent at the relevant time.
4. As this courts also sits in a Coronial capacity I issue a Coronial Finding that the deceased Maletino Moananu 38 years old of Tuanai died at Tuanai-uta on 30 September 2017 as a result of this unlawful assault. I further certify that alcohol played a prevalent part in this matter and that the person accused of Maletinos death has been dealt with according to law.
5. The facts of this matter are as follows: the evidence establishes that on the Friday night preceding the fatal incident the defendants neighbour Taiala Muliaga had a drinking party at his house. When Taiala awoke on the Saturday, 30 September 2017 he was still drunk and decided not to do anything useful that day except continue drinking consuming the beer and other alcohol left over from the previous night. Not long after, the deceased Maletino arrived as the two men were supposed to attend a “galuega” for the church choir. Taiala told Maletino to go to the work as he was still drunk. Maletino tragically decided to stay and join Taiala in his merry-making.
6. At some stage other young men of the area joined the drinking party. Including the defendant who had been out fishing the night before and after selling his fish was at his house drinking Taulas. When he finished his Taulas he heard noises from his neighbour, went to investigate and found the party in progress.
7. After the leftover beer and other alcohol was consumed the participants of the party collected money to buy more. The defendant and the deceased took the money to a nearby shop and because they did not have enough the defendant put the balance of the price of a large bottle of Omo Vodka on his account. The two men returned to the party and the drinking continued.
8. All were obviously by this time well lubricated and the inevitable occurred. An argument broke out between the deceased and one of the boys over the very important issue of who would control distributing the vodka (“pa ina le fagu”). Culminating in a fight and the deceased grabbing the bottle and leaving the party.
9. The defendant followed the deceased and the two went to the deceaseds “umukuka” behind the main house. By all accounts the two men when in a jovial mood laughing and joking. One of the deceaseds children described them as swaying (“kifa”) and when they entered the umu “fai ai lea o le la fale koē i kua”. But something must have gone drastically wrong because the defendant then assaulted the deceased with a piece of timber.
10. The evidence of the deceaseds 9-year-old daughter Malelega Moananu was that she saw from the “fataipu” behind the main house the defendant pick up a piece of wood and hit her father on the head. She said at the time the defendant was standing and her father was seated with his eyes closed on a block of wood in the rear left part of the umukuka. She testified to a second blow by the defendant to the deceaseds shoulder, a third blow to the eyes and several subsequent blows she does not know to where.
11. It is difficult to accept the totality of Malelegas evidence. The plan of the scene produced by the prosecution shows Malelega’s view from the “fataipu” would have been partially obstructed by a “pupu fa’i” in front of the umukuka. She also would have been looking from the outside into the dark interior of the umu. Photos one and two also show esis and other trees growing in front of the umukuka. She certainly could not have seen the details she described in her evidence for example as to her fathers eyes being closed and his being seated on a block of wood.
12. The evidence of her 10-year-old brother Tavatele Moananu does assist her in that he said he heard from the main house a sound of two heavy strikes coming from the direction of the umukuka. He described the strikes as “makuai pa’ō a” causing him to go to the umukuka to investigate. He met the defendant leaving the umu holding a piece of timber. And he confirmed his younger sisters evidence that the timber was the leg of an old bed. And that the defendant left their property carrying a piece of timber.
13. Both children went to the aid of their father whom they found slumped over and unconscious in the rear part of the umukuka. He was bleeding from his wounds and the crime scene photographs show considerable smears of what looks like blood. Efforts by the children and their siblings to aid the deceased came to naught and it is likely the deceased passed away at the scene of the assault before the police arrived and took him to the National Hospital.
14. The defendant elected to testify and gave his version of these events. He said all was going well with their drinking party and the deceased was dispensing their alcohol when suddenly his comments took on a different tone. Not long after the deceased suddenly stood up, grabbed the bed leg and struck out at him. He caught the blow seized the piece of timber and hit the standing deceased. He also delivered a second blow which struck the deceased on the head broke the timber and caused the deceased to slump down. He then exited the building carrying the broken timber and went to his house. He placed the piece of wood inside a “pupu teuila” in front of his house, had something to eat and then went to sleep. He told neither his wife nor anyone of his family about what had just happened. When he awoke he went fishing and only on the Sunday did he find out the deceased had died.
15. He said he had no intent to kill the deceased he was merely defending himself. He was unsure where the first strike landed but was certain the second strike hit the deceased on the head. When demonstrating the swing it was clear the defendant was left handed something he confirmed in his evidence.
16. The medical evidence in this case in particular the Pathologists Report indicates that the majority of the deceaseds injuries were to the right side of his head and upper body. This is consistent with a swing to the right side, a natural movement for a left handed person. The Pathologist was unable to say whether the ten (10) injuries listed in his report were caused by individual blows or any combination thereof. Although he identified at least four (4) probable areas of contact with a blunt object such as a piece of timber. He said the combination of bleeding into the right side of the brain and subsurface bleeding from these wounds including aspiration of blood into the deceaseds lungs is what caused his death.
17. There is no evidence any other person assaulted the deceased or that he fell at any stage pre-assault causing any of the injuries particularly the crucial injuries numbered 1 to 4 in the Pathologists Report.
18. I am accordingly satisfied beyond reasonable doubt that you were responsible for all of the deceaseds injuries. Furthermore, given their severity and extensive nature I have little difficulty in concluding that you had the necessary murderous intent. If not to kill, then certainly to cause serious bodily injury known to be likely to kill but you were reckless as to whether it did or not. The majority of the blows be they two or four or more but most likely two or more were delivered to vulnerable areas of the deceaseds body. No one else delivered them only you and they targeted the head and upper body. Furthermore they were inflicted using the leg of a bed described initially by the defendant in his evidence as a piece of “2 x 4 palagi” timber. This is a lethal weapon.
19. The defendants demonstration of the strikes show that the strikes were forceful even though not surprisingly they seemed to lose force when he was asked to repeat the demonstration. These were powerful blows and they resulted in substantial damage.
20. It is also notable that the defendants actions post-attack show his callous disregard for the deceased. He told no one he had assaulted the deceased not even the deceaseds children that he encountered when leaving the property. He then proceeded to deliberately conceal the weapon used in his “pupu teuila”. And when being fed by his wife never mentioned the incident to her or any other member of the family that day or even the following day. He carried on as if nothing had happened and went fishing. All this evidence evinces a clear intention to try and get away with what he had done.
21. Defence counsel has raised the issue of self defence based on the testimony of the defendant. But the defendants own evidence was clear: he disarmed the attacking deceased and therefore there was no imminent threat to him. There was thus an opportunity for the defendant to retreat, take the piece of timber and leave the scene. Instead the defendants response was to strike the deceased not once but twice. The second blow being the decisive one to the head that caused the deceased to slump down.
22. The evidence of self defence is also not consistent with the injuries sustained by the deceased. Or with the evidence of the children who had heard two heavy “pa’ō”. It is also a defence raised for the first time at trial. Your claims sir that you were merely defending yourself are simply not credible.
23. I also reject the suggestion a bush knife played any part in this incident. No witness agreed that a bush knife was on the shelf beside where the two men were drinking. And I do not accept that photo 4 shows a bush knife. Certainly no evidence from anyone including the defendant about the deceased using or attempting to use a bush knife even if there was one present.
24. The defence of self-defence fails. The defendant can and should be found guilty of the murder of his relative and friend Maletino Moananu on 30 September 2017 at Maletinos umukuka at Tuanai-uta. I convict him accordingly of the charge of murder.
25. In the circumstances the second charge of armed with a dangerous weapon is superfluous, that is dismissed.
26. The lawyers agree what the law clearly prescribes. There is only one penalty for the crime of murder. It is no longer the death penalty in this country but it is life imprisonment. Accordingly you are convicted of the charge of murder Iona and sentenced to life in prison.
    

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JUSTICE NELSON