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Police v LA [2014] WSYC 4 (22 May 2014)

THE YOUTH COURT OF SAMOA
Police v L.A [2014] WSYC 4

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

L.A, male of Leauvaa Uta.
Young Person

Counsel:
B Lo Tam-Fa’afita for the Prosecution
S Leung Wai for the Young Person

Hearing: 22 April 2014.

Decision: 22 May 2014.

DECISION OF DCJ TUALA-WARREN

The Charges

1. The young person is charged with four offences. He is charged under Section 118(1) of the Crimes Act 2013 with intent to cause grievous bodily harm to F.V (‘the complainant’). In the alternative he is charged under section 119(1) of the Crimes Act 2013 with intent to cause actual bodily harm to him. He is also charged under section 25 of the Police Offences Ordinance 1961 with being armed with a dangerous weapon namely a stone without lawful purpose and section 26 of the Police Offences Ordinance 1961 with throwing a stone to the danger of a person.
2. The Police say that some time during the evening on 25 December 2013 the young person was at his home at Leauvaa Uta, and threw a stone at the complainant thereby causing injury to his forehead.
3. The young person was 16 years old at the time of the incident. Therefore he was tried in the Youth Court.

Relevant Law

4. The burden is on the Prosecution to prove each element of the charges beyond a reasonable doubt which are as follows:

Causing serious bodily injury with intent

(a) With intent;

(b) To cause grievous bodily harm to another person;

(c) Wounds, maims, disfigures or causes grievous bodily harm to that person.

Causing serious bodily injury with intent

(a) With intent;
(b) To cause actual bodily harm to another person:
(c) Causes actual bodily harm to that person.

Persons armed

(a) Armed with a dangerous weapon, instrument or thing;

(b) Without lawful purpose.

Throwing a stone at a person

(a) Throws or discharges a stone or thing;

(b) To the danger of another person.

5. The two main issues in this case are:
   • (i) The intention behind the young person’s actions during the incident in question (ie the mens rea); and
   • (ii) Whether or not the defence of self defence, or defence of others, has been made out.
6. A person’s intention is not often glaringly apparent, and nearly always open to interpretation. Usually the Court must have regard to the overall circumstances of the case. For example if a weapon is used, the Court will examine what kind of weapon it was and the means employed to inflict any harm: per Wilson J in Police v Kolio [1999] WSSC 45 (2 July 1998).
7. So far as elf defence is concerned, once there is some evidential foundation for it then it is for the Prosecution to prove beyond a reasonable doubt that the defendant was not acting in self defence or defence of others: Police v Siilata 1998] WSSC 45 2 July 1998).
8. Section 17 of the Crimes Act 2013 provides as follows:
   • 17. Self-defence – (1) A person unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force, if the force the person uses:

(a) is not meant to cause death or grievous bodily harm;
and
(b) is no more than is necessary for the purpose of self defence.

(2) A person unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force by force although in so doing the person causes death or grievous bodily harm, if:

(a) the person causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purpose; and

(b) the person believes, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm; and

(c ) the force the person uses is no more than is necessary for the purpose of self defence.

(3) A person who has assaulted another without justification, or has provoked an assault from that other by any blows, words or gestures, may nevertheless justify force used after the assault if:

(a) the person used the force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked and in the belief, on reasonable grounds that it was necessary for his or her own preservation from death or grievous bodily harm; and

(b) the person did not begin the assault with intent to kill or go grievous bodily harm and did not endeavour , at any time before the necessity for preserving himself or herself arose, to kill or do grievous bodily harm; and

(c) before the force was used, he or she declined further conflict and quitted or retreated from it as far as was practicable; and

(d) the force he or she uses is no more than necessary for the purpose of self defence.

(4) A person is justified in using force, in defence of the person or anyone under that person’s protection, against an assault, if the fore he or she uses:
(a) is not meant to cause death or grievous bodily harm;
and

(b) is no more than necessary to prevent the assault or the repetition of it.

(5) This section shall not justify the willful infliction of any hurt or mischief disproportionate to the assault that it was intended to prevent.

(6) 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 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 uses is no more than is necessary to prevent the assault or repetition of it.

9. There is no burden on the young person to prove his innocence by giving or calling evidence, but on this occasion he chose to give evidence himself.

The Evidence of the Prosecution

10. At the hearing of this matter, the Prosecution called six witnesses, one of them being an expert, namely Dr Salote Vaai.
11. The others were a group of friends and/or cousins aged between 15 years and 18 years. They included A.K (15 years), F.V (18 years), P.I (18 years), L.A (18 years) and A.L (aged not specified, but looked to be around the same age as the older witnesses). In true Samoan fashion these young people are all related in some way.
12. Dealing firstly with the evidence of Dr Salote Vaai, there was no challenge to her evidence that when she examined the complainant there was a compression fracture of his frontal skull region causing indentation of his forehead, and three small lacerations over the forehead. As it turned out the indentation was still apparent when he gave his evidence at this trial.
13. The evidence of F.V, P.I, L.A and A.L was largely consistent. They say that on Christmas Day, 25 December 2013, they were all drinking at F.V’s house at Leauvaa Uta. They were all drinking vodka. F.V said he had started drinking at 12 noon and had about 15 glasses. P.I recalled having around 10 glasses, whilst L.A could not recall how many glasses he had but conceded he was starting to get drunk. Similarly, A.L did not know how many glasses of vodka he had drank. He admitted to being drunk but claimed he still knew what was happening.
14. Sometime around 8.00pm, while the group was still drinking, A.K (the youngest of the witnesses) rang his cousin, P.I to tell him that he had been beaten up by S and JJ (surnames unknown) who are next door neighbours of the young person. P.I and the others he was drinking with then walked to get A.K who was somewhere near the young persons' house.
15. When the five of them were altogether they went to S's house and called out for him, and possibly to the young person as well. They wanted to know why S and JJ had beaten A.K up.
16. S’s house is behind the young person's house. All of these prosecution witnesses recounted that as they called out for S to come out the young person was standing in front of his house and it was him who answered asking for one of them to come and fight with him.
17. They all said it was dark but they could see the young person in the light shinning from his front house. When L.A began walking towards the young person, he claims the young person said to send someone comparable to him in size. So F.V walked towards him instead. F.V’s evidence was that as he got nearer to the young person, the young person threw a stone at him causing him to fall to the ground.
18. Although this group of five young people all say they were drunk they all maintain they could still comprehend what was happening around them. They deny swearing or throwing stones at the young person or his house. They say they simply came to ask S why he had beaten their younger cousin and friend, A.K.

Evidence of the Young person

19. The young person's evidence was that he was home at the time with his four younger cousins ranging in age from 5 years to 9 years old. Some were playing inside and others outside in front of his house.
20. Shortly after 8pm, he had just finished having a shower when he heard stones landing on the roof of his front house. As some of his younger cousins were playing outside, he ran outside to take them inside. He estimated that over 10 stones landed on his roof.
21. He saw approximately 6 or 7 people standing nearby on the road. As it was dark, he did not see their faces but heard their voices. They were swearing.
22. He said he called out to them to ask why they were throwing stones at his house. The reply from the road was for him to come out. They were still shouting swear words.
23. The young person said that he then saw L.A and F.V walking towards him. He could not see if they were holding anything as it was dark. As they were advancing he grabbed a stone and threw it at them as he was running away to the back of the house.
24. Under cross-examination the young person said that as F.V walked towards him, stones were still being thrown at his house.

Discussion

25. The caution statement was tendered by consent. Insofar as it contains an admission, it is no more than an admission that he threw stones towards the group of boys who were outside his house. It contains no direct confessional evidence as to why he threw the stone or of what he had in mind at the time, but it was apparent someone was throwing stones at his house, his parents were not at home, he was alone with his young cousins, so he threw a stone back. It contains nothing to suggest that he had an intention to cause any harm to F.V.
26. As to the lead charge of causing serious bodily injury with intent, and the alternative of causing injury I am easily satisfied beyond reasonable doubt that the stone thrown by the young person caused the compression fracture of the frontal skull region of the complainant's head, causing indentation of the forehead and three small lacerations over the forehead.
27. That then satisfies all of the elements of those offences, bar intention. That issue is not nearly as straight forward.
28. I accept the young person's evidence that when he saw L.A and then F.V walking towards him he grabbed a stone and threw it at them because he was scared for his own and his young cousins’ safety. All the while he was running away. He threw the stone even though he could not see if L.A and F.V were holding anything.
29. I bear in mind that he was only 16 years old at the time, had the sole care of his 4 much younger cousins, and was faced with a group of young men who he believed had just thrown stones at his house and were calling him (or S) to come out.
30. I find that his action in throwing the stone, when he immediately retreated was to bide time so he could run away to where he would be safe.
31. The Prosecution witnesses F.V, L.A, P.I and A.L would have this Court believe that after drinking for many hours (on Christmas Day incidentally) they went peacefully en masse to S’s house to ask calmly why he had beaten up their younger friend and cousin, A.K.
32. A.K will have the Court believe that after being beaten up by S he did not feel any anger or resentment at the material time.
33. Despite their various degrees of intoxication all of these prosecution witnesses maintain that they all stood calmly on the road and simply called out to S and the young person to come out and discuss the issue with A.K.
34. The consistency of the evidence of these witnesses was so overwhelming that it is difficult to accept, especially as all had been drinking and logically one would have expected some variance. They all vehemently deny throwing stones at the young person's house. They all vehemently deny swearing in front of his house and they all say that they stood on the road peacefully.
35. I reject this evidence. No doubt an amount of dutch courage was gained from not only the amount of alcohol consumed (as much as 15 glasses of vodka for the complainant) but also from being in a big group.
36. I find that this group of five were all angry and geared up for a fight. A.L and A.K admitted under cross examination that they were ‘faalii’ (or angry). L.A too, because he says the young person called on them to fight which I do not accept. The young person was hopelessly outnumbered, with the care of his young cousins to take into account.
37. The complainant said that he followed the other boys as he suspected there would be an altercation (‘vevesi’) as the boys were angry with what had happened to A.K. The complainant also said that the boys were calling to the young person to come and ‘fusu’ or fight when they were standing on the road.
38. I simply do not accept the evidence A.K, L.A, P.I and A.L who say they stood peacefully on the road in front of the young person's house and did not swear or throw stones towards his house.
39. I find that in the circumstances in which the young person found himself, he did not have the requisite intention at the time he threw the stone to cause grievous or actual bodily harm. Therefore the intention element of the charges has not been made out beyond a reasonable doubt.
40. Given that the mens reas element has not been made out I do not need to consider self defence or defence of others in relation to the charges of causing grievous bodily harm and causing actual bodily harm.
41. However, in the event I am wrong about that I find that the young person who was unlawfully assaulted, not having provoked the assault by any blows, words or gestures, was justified in throwing the stone, as the stone was not meant to cause death or grievous bodily harm and his action of throwing the stone was no more than was necessary for the purpose of self defence.
42. The young person had reasonable grounds to believe that the older boys walking towards him would inflict serious injury to him and/or potentially his cousins. I find they had been throwing stones at his house, swearing and calling him to come to the road, and then he was confronted in the dark with two people walking towards him.
43. In relation to the charges of throwing stones and being armed with the stone for no lawful purpose, the defence of self defence invoked by the young person succeeds in relation to these charges which were all part of the same incident which caused injury to the complainant.
44. I find the young person was under a reasonable apprehension that he or his younger cousins would be assaulted by the complainant and L.A.
45. The action of the complainant and L.A which was walking onto the land of the young person towards the young person would have caused a reasonable apprehension in the young person that he would be assaulted by the complainant and L.A.
46. This is particularly threatening because they walked onto the young person’s land while stones were being thrown at the home of the young person.
47. The young person’s action of using a stone to defend himself is justified in repelling the assault on him and his younger cousins and the force he used in throwing the stone was no more than necessary to defend himself while he ran away.
48. The Prosecution has not proved beyond a reasonable doubt that the young person was not acting in self defence.

Decision

49. In relation to the charge of causing grievous bodily harm with intent, I find that the Prosecution has not proved beyond a reasonable doubt that the young person had intent to cause grievous bodily harm to the complainant.
50. In relation to the alternative charge of causing actual bodily harm with intent, I also find that the Prosecution has not proved beyond a reasonable doubt that the young person had intent to cause actual bodily harm to the complainant.
51. In any event, the Prosecution has not negated beyond a reasonable doubt that the young person was not acting in self defence when he inflicted the injury on the complainant.
52. I find in relation to the charge of throwing stones and being armed with a stone without a lawful purpose, the Prosecution has not negated beyond a reasonable doubt that the young person was acting in self defence.
53. All four charges against the young person are dismissed accordingly.
    

...............................
Judge Leilani Tuala-Warren