Justice Mata Tuatagaloa Court Acquittal Ruling On Westerlund and Savaiinaea

 POLICE (Prosecution) v HERMAN PAUL WESTERLUND, male of Palisi, Samoa & SUAPAINA PETELO SAVAIINAEA, male of Vaisigano, Apia.

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

1. HERMAN PAUL WESTERLUND, male of Palisi, Samoa;
2. SUAPAINA PETELO SAVAIINAEA,male of Vaisigano, Apia.

Defendants

Counsel: R. Titi & V. Leilua for Prosecution

Perkins QC & M. Lui for Herman Westerlund

J. Brunt & E. Peters for Suapaina Savaiinaea

Hearing: 24^th – 29^th February 2020; 2^nd March 2020

DECISION OF JUSTICE TUATAGALOA

Background

1. The defendants, Herman Westerlund and Suapaina Savaiinaea and the deceased, Jeremiah Malaki Tauiliili were all at the Glass Lounge at the Marina Nightclub on Friday night, 30th November 2018 to early hours of Saturday morning, 1st December 2018.
2. Both defendants assaulted the deceased.
3. Jeremiah was taken to the hospital and was found to have suffered from severe brain injury; which injury he died five days later on 5 December 2018.
4. The defendants, Herman Westerlund and Suapaina Savaiinaea do not know each other but Herman knows the deceased, Jeremiah.

The charges

5. The defendants are charged with the offences of murder and manslaughter in the alternative as follows:
   • “At Matautu-tai between the 30^thNevember and 1^st December 2018 the above-named defendants by an unlawful act, namely assault, caused the death of Jeremiah Malaki Tauiliili a.k.a. Jeremy Malaki Fetaiai Tauiliili, a male of Letogo, Laulii and Fasitoo-tai at the Tupua Tamasese Meaole Hospital on the 5^th day of December 2018, thereby committed the crime of Murder.”
   • Sections 90, 92, 99(b), 103 Crimes Act 2013
   • “I, Falepule Tomasi, Police Constable of Apia say on oath that I have reasonable cause to suspect, and do suspect that at Matautu-tai between the 30^thNevember and 1^st December 2018 the above-named defendants by an unlawful act, namely assault, caused the death of Jeremiah Malaki Tauiliili a.k.a. Jeremy Malaki Fetaiai Tauiliili, a male of Letogo, Laulii and Fasitoo-tai at the Tupua Tamasese Meaole Hospital on the 5^th day of December 2018, thereby committed the crime of Manslaughter.”
   • Crimes Act 2013 sections 92(2)(a), 102 & 108
6. The defendants are not jointly charged as parties pursuant to section 33 (party liability) of the Crimes Act 2016. Their acts are considered separate and distinct albeit a short time apart (referred to in paragraph 60).

Elements of the charges

[7] Murder

(a) That each defendant committed an unlawful act;
(b) The unlawful act or acts caused the death of Jeremiah Malaki Tauiliili; and
(c) That at the material time each defendant had the criminal intent to kill or that each defendant caused bodily injury known to him to be likely to cause death but was reckless whether death ensued or not.

[8] Manslaughter

(a) That the defendants, each committed an unlawful act; and
(b) The unlawful act or acts caused the death of Jeremiah Malaki Tauiliili.

Case for the Prosecution

Murder

9. The Prosecution’s case against Herman Westerlund is:
   • (a) Herman punched Jeremiah four (4) times – twice before they fell on the floor and twice whilst Jeremiah was on the floor facing upwards and motionless;
   • (b) That the assault by Herman upon Jeremiah was an “ongoing/continuous assault” even when Jeremiah was lying on the floor motionless;
   • (c) That Herman was reckless as to whether Jeremiah would die or not when he punched Jeremiah again twice around the head area.
10. Prosecution says that Jeremiah was unconscious when he fell and his head hit the concrete floor; he never recovered and that he died five (5) days later.
11. The Prosecution’s case against Suapaina is that the kick he delievered to Jeremiah’s head while he was on the floor motionless was with force. The assault by way of the kick was with reckless intent as to whether Jeremiah died or not.

Manslaughter

12. Alternatively, the Prosecution claims that if there is no murderous intent of either or by both accused for the charge of murder then their assaults each led to the death of Jeremiah Tauiliili.

Cases for the Defence

13. Counsels for both defendants say that the prosecution cannot prove beyond reasonable doubt that both defendants (or either) caused the death of Jeremiah, or that each defendant at least contributed to the death in a substantial and operative way.
14. Both Counsels raised the issue of causation and lack of murderous intent on the part of each defendant as defences. Mr. Perkins raised a further defence of pre-emptive strike (or self-defence) on behalf of the defendant, Herman Westerlund.
15. Mr. Perkins raised three defences on behalf of the defendant, Herman Westerlund. These are:
    • (i) Causation (full) – It could not be proven beyond reasonable doubt that the punches thrown by Herman were the substantial and operative cause of death;
    • (ii) Pre-emptive strike (full) – That Herman punched Jeremiah genuinely thinking that Jeremiah was about to punch him (lawful self defence); and
    • (iii) There was no murderous intent (partial) by way of recklessnesson the part of Herman when he punched Jeremiah. That is, Herman caused bodily injury known to him to be likely to cause death but was reckless whether death ensued or not.
16. Mr. Brunt in defence of the defendant, Suapaina Savaiinaea, submitted:
    • (a) There is no evidence suggesting that Suapaina had an argument with Jeremiah so as to give him a reason to kick (or beat up) Jeremiah;
    • (b) Suapaina’s kick was not intended to cause any bodily injury nor to kill rather it was to try and wake up Jeremiah;
    • (c) The kick did not or could not have been the substantial and/or operative act that caused the death of Jeremiah.

Onus/Standard of Proof

17. The prosecution carries the onus of proving any criminal charge or offending beyond reasonable doubt. This onus remains with the prosecution and never shifts to the defendants.
18. In proving its case, the prosecution called twenty five (25) witnesses – 14 civilian witnesses; 2 paramedics; 4 police officers; and 5 doctors including Dr. Tuilagi Chandler (first attending doctor), Dr. Tong (Radiologist), Dr. Botterill (Pathologist). Three other doctors who were part of the surgical team whose evidence by way of reports were tendered by consent.
19. Neither accused gave evidence nor was any witness called for the defence. The defendants do not have to prove their innocence for they are presumed innocent until proven guilty.
20. All facts need not to be proved beyond reasonable doubt, only the elements of each charge.

The evidence

21. According to the evidence before the court,^[1] the deceased Jeremiah prior to the incident which led to his death was acting aggressively and in a confrontational manner towards a Rob Ash. The evidence of Rob Ash is that he does not know Jeremiah but that Jeremiah shoulder charged him for no reason in the men’s bathroom. Jeremiah continued on with this aggressive attitude inside the nightclub and was quite inciteful when he poked the finger at Rob and challenged him to a fight. This led to both men walking towards each other and Rob said he ‘slapped’ Jeremiah on the mouth causing Jeremiah to fall to the floor in a sitting position. Rob demonstrated how he slapped Jeremiah with what seems to be a half-closed fist as opposed to an open hand.
22. When Jeremiah got up from the floor Herman was seen taking or leading Jeremiah away.^[2] According to the witnesses, whilst Herman was leading Jeremiah away towards the sliding doors to exit the Glass Lounge, Jeremiah continued talking over Herman to someone behind him,^[3] that person being Rob Ash. He (Jeremiah) was obviously angry^[4] and relentlessly trying to free himself from Herman^[5] in order to get to Rob.^[6] Wesley Te’o, a friend of Herman’s, assisted Herman in trying to remove Jeremiah away from what would obviously be a fight with Rob Ash. Wesley Te’o is seen (in the video) holding on to Jeremiah’s left hand while Herman had both his hands around Jeremiah. They had almost reached the sliding doorwhen Wesley let go of Jeremiah’s hand and walked away. It was when Wesley let go of Jeremiah’s hand that Jeremiah who was still trying to free himself from Herman pushed at Herman towards his face and Herman reacted by punching him.^[7] The punch landed on Jeremiah’s left jaw^[8] and both men fell.^[9]
23. Those who saw the punch and the fall said that Jeremiah’s head hit the floor;^[10] those who did not see the punch say they heard a loud noise which caused them to look and they saw Jeremiah on the floor facing upwards and was motionless.
24. The witnesses all described what they heard differently but they all described the noise as being loud and most (if not all) likened it to a head hitting the floor not two bodies hitting the floor. It is therefore, reasonable and fair to accept that Jeremiah’s head hit the floor when he fell backwards.
25. According to the witnesses, Jeremiah was motionless when his head hit the floor and was in the same motionless state when the defendant, Suapaina Savaiinaea walked up and kicked him towards the head.^[11]
26. The paramedics^[12] found Jeremiah to be in the same motionless state but was snoring and shivering. Although he had a pulse Jeremiah was not responding to any first aid the paramedics applied to try to wake him up. Jeremiah was received by Dr. Chandler Tuilagi^[13] at the hospital who confirmed that Jeremiah was unconscious and already suffering from brain damage, although he was snoring and had a pulse. Jeremiah was referred to Dr. Tong who carried out a CT scan and also confirmed that Jeremiah was indeed suffering from severe brain injury.^[14]
27. There is strong inference that the deceased was under the influence of alcohol not only that he smelt of alcohol,^[15] his aggresive and confrontational behaviour strongly suggests the level of intoxication that he was under at the time of the incident.

The cause of death

28. Dr. Paul Botterill is a forensic pathologist, an expert witness called by the prosecution. His evidence is discussed in much detail throughout the judgment.
29. According to Dr. Botterill the cause of death was by blunt force head injury sustained from being struck in the face, kicked in the head or falling to the floor. Dr. Botterill could not at autopsy, specifically determine which of these events (the punch or punches, the fall or the kick) resulted in the lethal injuries to the head:
    • “Any one of those described contacts – a blow to the front of the face, the fall to the ground, blows whilst he was on the ground or a kick could have resulted in transmission of force into the brain causing the brain injury…”^[16]

Evidential issues

30. There are evidential issues raised by Counsels in their final submissions:
    • (a) There is a dispute as to the number of times Herman punched Jeremiah as well as the number of punches Herman delivered before getting off from the floor; and
    • (b) Mr. Brunt for the defendant, Suapaina Savaiinaea suggested the likelihood of two people kicking the deceased while he was on the floor.

The number of punches by Herman

31. The question is, why is the number of punches delivered relevant? For the prosecution it goes to the level of violence and most importantly to reckless intent of the defendant, Herman. The defence says that the prosecution by pursuing that there were four punches instead of two is an attempt to try and intensify the gravity of the level of violence so as to try and prove murderous intent of Herman which for a murder trial and based on the evidence before the Court is a very weak case.
32. Prosecution in their final submissions say that Herman delivered four (4) punches – two (2) punches before Jeremiah hit the floor and two more punches when Herman sat up whilst Jeremiah was lying on the floor face up and motionless. Prosecution relies on Herman’s caution statement^[17] and the video clip^[18] which they say supports two (2) punches by Herman prior to he and Jeremiah both landing onthe floor; whilst the evidence of the civilian witnesses Puleiata Samuelu^[19] and Paratiso Foaiaulima^[20] attested that there was more than one punch delivered by Herman to Jeremiah when Jeremiah was on the floor.

The caution statement has Herman saying:

“Ga ou ku’ia muamua kau i laga left lower jaw ma kaimi ga lae mau mai Jeremiah i lou ofu ae la foi ou ke mau i laga ofu, ma ma pa’u’ū faakasi loa i lalo.
E ma ke pa’u’ū lae fai le pulou a Jeremiah, gou koe kago koe ku’i Jeremiah ma kau i le right side o laga upper jaw ae ma te le’i oo na i luga o le foloa.”

Herman further clarified the number of punches (on the next page) of his statement as follows:

Q: Fai lou faamakalaga i le kaimi ga lua pa’u’ū ai i lalo.
A: Ia e lua ku’i, left lower jaw le muamua, ae o le right upper jaw le loga lua.

33. The defence says that the evidence is, there were only two punches – the first punch before both Herman and Jeremiah fell and the second punch when Herman sat up from the floor. Mr. Perkins for Herman submits that Herman Westerlund’s caution statement must be read in the context of the whole of the evidence including the majority of the prosecution witnesses who only witnessed two punches – first punch prior to falling^[21] which caused Jeremiah to fall and second punch when he sat up from the floor.^[22]
34. In any event, Mr. Perkins submitted that the number of punches is irrelevant to their primary defence of causation.

(i) The cautioned statement

35. Although, Herman opted not to give evidence, he voluntarily gave a statement to the police which was tendered by consent and therefore becomes evidence. Herman in his statement said that he delivered two punches before they both hit the floor. The first punch landed on the left side of his jaw and the second punch landed on the upper right side of Jeremiah’s jaw.
36. There is some discrepancy over what Herman said in his caution statement and what the prosecution witnesses say. Examples of such discrepancies are:
    • Herman said in his cautioned statement that it was Wesley Te’o who punched Jeremiah earlier on; Rob Ash in evidence said it was him (refer to paragraph [22] – last two sentences);
    • Herman said that the ‘tension’ upon first arriving at the Marina was between Jeremiah and Wesley. According to the evidence it was between Rob Ash and Jeremiah;
    • There is Herman’s version where he threw two punches before he and Jeremiah hit the floor, yet the witnesses only saw one punch which caused Jeremiah to fall.
37. I am mindful that all this happened very quickly and was over in a matter of seconds. I am also aware that the witnesses would all have differing recollections and interpretations of what they saw happened. It is therefore more appropriate that what Herman said in his cautioned statement must be viewed and considered in light of all the other evidence, including the video clip.

(ii) The video clip

38. Caution must be taken when viewing the video clip as the clip was not clear and the footage was not at normal speed but slowed down.
39. However, in the course of writing this judgment I had the opportunity to view the video clip up close. The video clip^[23] at [1.22 – 1.25 time frame] clearly shows the following:
    • (a) The first punch by Herman towards Jeremiah’s face and Jeremiah seen falling, which punch according to Herman in his caution statement connected with Jeremiah’s jaw;
    • (b) Jeremiah seen falling down, his feet are seen going under Herman’s feet;
    • (c) Herman seemed to be falling forward;
    • (d) Wesley Te’o bending to pull Herman up from the floor;
    • (e) Herman seen getting up from the floor and bent towards Jeremiah who was lying on the floor accordingly facing upwards – this may be the time that Herman threw the other punch (second) that Wesley Te’o, Vandahlia Chang Wong and Annette Tamasese saw.

(iii) The civilian witnesses

40. The prosecution called fourteen (14) civilian witnesses who were in the Glass Lounge that night. Only six (6) of those witnesses either witnessed a punch or punches delivered by Herman. Five witnesses^[24] saw only one punch thrown by Herman before Jeremiah fell (first punch); three (3) witnesses^[25] saw only one punch by Herman while Jeremiah was on the floor (second punch) and only two (2) witnesses^[26] said they saw Herman punch Jeremiah more than once towards his face on the floor.
41. The witness Vandahlia went to the Marina with a group of friends including Samuelu Puleiata, Dwayne Bentley and Paratiso Foaiaulima. They had drinks at Dwayne’s house before heading to the Marina. Vandahlia said she only had two beers – one beer at Dwayne’s house and one at the Marina; whereas Samuelu and Paratiso consumed more beers at Dwayne’s and continued to drink at the Marina. Of the three of them, Vandahlia was the sober one. The evidence of Samuelu and Vandahlia were basically the same except for the number of punches. I find difficulty in accepting the evidence of Paratiso as his recollection of events that happened that night is inconsistent and differs greatly in many parts with what was relayed by other witnesses.
42. I lean towards the evidence of Wesley Te’o, Vandahlia Chang Wong and Annette Tamasese who only saw Herman punch Jeremiah once when he got up from the floor. In terms of the level of sobriety, the witnesses Vandahlia and Annette would be considered sober as opposed to the other four (4) witnesses. Vandahlia only had one small beer and was on her second bottle and Annette was on her first drink. Annette witnessed the whole incident from the beginning to the end starting from the initial dispute with Rob Ash right up to when the paramedics arrived and took Jeremiah. In relation to Wesley Te’o, as he bent down to help Herman up off the floor when Herman punched Jeremiah before they left, he would be in a better position to view and see how many punches were thrown by Herman when he sat up or got up from the floor. I find their evidence to be credible and more reliable.
43. In considering the whole evidence, I accept that Herman only delivered two punches – the first punch before Jeremiah fell and the second punch when Jeremiah was on the floor.

Was there another person other than the defendant, Suapaina Savaiinaea who kicked the deceased, Jeremiah?

44. Counsel for the defendant, Suapaina Savaiinaea in his submissions raised that the evidence surrounding the kick strongly suggests the possibility that there was more than one person who kicked Jeremiah as he lay on the floor. If so, there would be the likelihood of more than one kick.
45. I must say this is a very weak argument by Counsel for Suapaina. There is overwhelming and reliable evidence by the prosecution identifying Suapaina as the only person who kicked the deceased, Jeremiah once towards his head as he was lying on the floor.^[27] Only two (2) witnesses saw where the kick landed on the right side of Jeremiah’s head.^[28]
46. Counsel refers to the evidence of Delphina Stowers who said that she saw two kicks to both sides of Jeremiah’s head. She admitted that there were people standing around where Jeremiah was lying as, “…she saw there were many feet around (him)” but what was clear was two kicks to both sides of Jeremiah’s head but she did not say if it was carried out by two people because all she saw were the two kicks not whether it was carried out by one or two people. One person can deliver two kicks as in the evidence of Dwayne Bentley who said that this man walked over and kicked the deceased with his two feet.^[29]

At p.398: Mr. Brunt cross examining witness, Delphina Stowers:

Witness: All I saw is one kick from one side, another kick from the other
DC2: What if I put it to you that in your statement to the police you were referring to “Vae o ni tama.”Was that plural or was that singular language “Vae o ni tama.”
Witness: I would say I was referring to plural because I saw many other feet around it, between me and where it happened but all I know for certain is that one kick came from one side and the other came from the other side.

47. Counsel also raised the possibility by relying on identification evidence of Paratiso Foaiaulima who identified the person in the video as wearing a white t-shirt as opposed to a red t-shirt and a black hat. As I said earlier, everyone has different recollections of what happened and this also includes what people may have been wearing; ones memory or recollection of what they say they saw and what happened that night can be distorted (or unclear) given the amount of time that has passed since the night of the incident and the time the witness gave evidence at the trial. What is clear from this witness’ evidence is that there was only one kick and by one man. I find most of this witness’ evidence difficult to comprehend and not one to rely upon solely.
48. The evidence is overwhelming that it was the defendant, Suapaina Savaiinaea who walked from the direction of the bar and kicked the deceased on the head. Suapaina himself in his cautioned statement^[30] said that he kicked the deceased to see if he would wake up.

The evidence accepted by the Court

49. The following is therefore a summary of facts established from the evidence:
    • (i) It is clear that the deceased, Jeremiah was acting in an aggressive manner towards a Rob Ash and not the defendant, Herman Westerlund;
    • (ii) Rob Ash slapped Jeremiah with a half-closed fist on the mouth causing Jeremiah to fall to the floor in a sitting position;
    • (iii) When Jeremiah got up, he wanted to fight with Rob Ash;
    • (iv) Herman (with Wesley Te’o) were seen leading Jeremiah away from where Rob Ash was towards the sliding doors to exit the Glass Lounge;
    • (v) Wesley Te’o let go of Jeremiah; Jeremiah pushed at Herman’s face;
    • (vi) Herman punched Jeremiah (first punch) which punch landed on Jeremiah’s left jaw;
    • (vii) Jeremiah and Herman fell to the floor;
    • (viii) Jeremiah fell backwards while Herman fell on his side next to Jeremiah.
    • (ix) Jeremiah’s head hit the concrete floor;
    • (x) Herman got up from the floor and punched Jeremiah towards the face (second punch);
    • (xi) Herman left;
    • (xii) The defendant, Suapaina Savaiinaea walked over and delivered one kick to Jeremiah’s head;
    • (xiii) Jeremiah was motionless when he fell and hit his head on the floor;
    • (xiv) Jeremiah was in the same state when transported to the hospital and was confirmed to be suffering from severe brain injury.
50. I also accept that:
    • (a) Herman’s intention in leading Jeremiah away was genuine to avoid any physical altercation between Jeremiah and Rob Ash;
    • (b) Jeremiah resisted being led away and tried to free himself from Herman (and Wesley Te’o) to get to Rob Ash; and
    • (c) Jeremiah was under the influence of alcohol (refer paragraph 27).
51. The prosecution accepted that Jeremiah pushed at or towards Herman’s face while Herman was leading him away.^[31]
52. Assessment of what happened must be considered in light of the evidence accepted by the Court.
53. I will now deal with the issue of Causation raised as a defence by Counsels for both defendants. The reason being that Causation as a defence, if succeeds, means that both defendants would be entitled to acquittal on both charges.

The Issue of Causation

54. The offences of murder and manslaughter have the same first two elements of: (i) that each accused did an unlawful act and; (ii) the unlawful act caused the death. It is the ‘unlawful act’ (the assaults) by either of the defendants that is disputed by both Counsels to have caused the death of Jeremiah Tauiliili.
55. Mr. Perkins has correctly summarised the key legal principles involved with causation as a defence. These are:^[32]
    • (i) For either murder or manslaughter, the prosecution must prove beyond reasonable doubt that the unlawful act caused the death of Jeremiah or that at least contributed to the death in a substantial and operative way (more than de minis); and

(ii) Where there are separate and discrete assaults and it is not possible to prove beyond reasonable doubt who was responsible for the fatal blow, both defendants must be acquitted of both murder and manslaughter.^[33]

56. Counsels for both defendants submit that prosecution cannot prove beyond reasonable doubt which blunt force action was the cause of death. The prosecution therefore, cannot identify to the required standard who caused the death of the deceased.
57. Counsels for the defendants rely on the post mortem (autopsy) report of
    Dr. Botterill, the pathologist. The evidence and findings of Dr. Botterill must be considered together with the evidence accepted by the court.

Causal requirement

58. Causation is defined by the law to:
    • “…mean something immediately and directly connected with the death; something operating to result directly in the death, something substantially resulting in the death.”^[34]
59. Further, the law says that a person is deemed to have caused death of another person although his act is not the immediate or sole cause of death but that his contribution must be a “ substantial and operative” cause of death. That is, the force must be more than de minimis.^[35]
60. As mentioned earlier, the defendants are not charged as parties which if they were, prosecution would not have to identify which of the defendants that inflicted the fatal blow; it would be “all for one, one for all” (so to speak). The assaults by the defendants are separate and distinct. They are each viewed a principal offender.

Relevant substantive issues

61. The question is, at what point of impact did Jeremiah sustain brain injury? In order to find out, we need to address the following substantive issues:
    • (a) Which act(s) of assault caused death;
    • (b) Which act(s) was (or were) the “substantial and operating cause” of death.
62. Relevant to the “substantial and operating cause” of death is the degree of force used.
63. First and foremost, the prosecution must convince (me) beyond reasonable doubt that the assaults (individually) in the evidence caused the death.

Which unlawful act(s) caused death?

64. It is clear from the evidence that each defendant assaulted the deceased separately. Herman Westerlund in his cautioned statement told Police that he punched the deceased twice^[36] while Suapaina Savaiinaea said he kicked the deceased on the head.^[37] Both cautioned statements were tendered by consent of both counsels for each defendant.
65. The prosecution says that each of the assaults by the defendants caused brain injury to the deceased and that injury sustained at the Marina was the substantial and operative cause of death. I must say, I am confused with this submission by the prosecution.
66. Mr. Perkins on the other hand says that at best the punches only contributed to the fall that is, the punch or punches were not of any greater force and could not have caused brain injury nor were the punches forceful enough to have caused Jeremiah to fall heavily as he did.
67. Mr. Brunt says that the kick was not intended to cause any bodily injury rather it was to try and wake up Jeremiah. In other words, Mr. Brunt says that the kick was not forceful and could not have been the substantial and operative cause of death.
68. Dr. Paul Botterill says that any one of the blunt forces of a punch (or punches), the fall or the kick could have caused the brain injury but there was just no way of knowing. At p.342
    • Pros: Now given your findings on the cause of death, are you able doctor to ascertain which of those assaults caused the death?
    • Dr. Botterill: No. Any of those described contacts – a blow to the front of the face, the fall to the ground, blows whilst he was on the ground or a kick could have resulted in transmission of force into the brain causing brain injury…
69. Dr. Botterrill by saying that any of the described contacts of a punch or punches, the kick and the fall could have caused death is actually not saying anything at all. That is, Dr. Botterill cannot say which of the blunt force caused the brain injury.
70. The prosecution seem to be saying that both assaults caused the brain injury. If it is, Dr. Botterill’s evidence was simply that there was just no way of knowing whether the brain injury was caused by one event rather than two or three combined.

At p.359: Mr. Perkins cross examination of Dr. Botterill:

DC1: Understood. So it might be the more likely way (referring to the fall) but at the end of the day you just cannot exclude that its the punching or kicking that had caused the rupturing of the veins. Correct?
Witness: That’s true. Yes.
DC1: And nor Doctor – correct me if I’m wrong, nor can you exclude the possibility that it was only one event that caused rupturing of the vein rather than two or three combined?
Witness: Yes. That’s correct.
DC1: There’s no way of knowing is there?
Witness: That’s true.

71. The prosecution do not have to prove that either defendant was solely responsible for causing death but they must prove beyond reasonable that either of their actions substantially contributed to death.

What would be the most likely force that caused the brain injury or the substantial and operating cause of death?

72. There was a mildly displaced linear fracture (9.3mm) on the left back side of the deceased’s skull that was revealed when Dr. Tong carried out a CT Scan on the deceased when he got to the hospital. Dr. Botterill did not find such fracture. His reasons being that the fracture was subtle or that the fracture may have been in the part of the skull that was removed during surgery or that the fracture was used as a surgical incission. In any event, Dr. Botterill maintains that whether there was a fracture or not, does not change the cause of death for the deceased. Dr. Botterill says it is the transmission of force into the brain that caused the brain injury.
73. There are four factors of impact – the first punch, the fall, the second punch and the kick. Which impact would have transmitted enough force to cause brain injury?

Did the first punch cause brain injury?

74. The pathologist cannot say. In any event, the existence of facial injuries examined by Dr. Botterill of a black eye (10x5mm), a small ulceration (1cm) on the left side of the lower lip and a bruise on the upper left lip were not life threatening and were considerably minor.
75. Furthermore, Dr. Botterill did not find any facial fracture or fractures from his examination of the deceased; nor was any picked up by a CT Scan.^[38]
    • DC1: And Doctor if there were fractures to facial bones would you expect them to be picked up in a CT Scan?
    • Witness: Yes. And indeed that’s one of the reasons why I suggest that CT’s be done if possible in cases of head injuries in addition to autopsy.
    • DC1: …in this case there’s no suggestion of any facial fractures from the CT Scan correct?
    • Witness: I know that now, yes.
76. Dr. Botterill was asked to describe the level of force that would cause rupturing of the veins or brain injury to which he responded that a minor force cannot contribute.
77. The injuries (or lack of it) would be inconsistent with the description of any punches delivered with great or substantial force.
78. It is fair then, to draw the reasonable inference that a punch (or punches) were not of any substantial force and therefore, could not have caused the brain injury suffered by Jeremiah.

Did the fall cause brain injury?

79. Although Dr. Botterill cannot say which blunt force caused the brain injury, he said that the degree of force that would most likely have transmitted the greatest amount of potential injury to the brain would be from the fall (evidence below).^[39] He says this purely based on Jeremiah’s height of 1.8m tall (5’11) and solid build to which he refers to at (p.344) as “a hefty weighted 1.8m tall man.” According to Dr. Botterill it would have been a heavy fall.
    • Dr. Botterill: …..In terms of the likelihood because of the degree of force that’s transmitted, because of his height and striking the ground, striking a hard surface that’s most likely to be the force that has resulted in the greatest amount of potential injury to the brain –
    • Pros: Which force is this?
    • Dr. Botterill: So that’s the force that’s associated with a fall striking the ground….
80. If it was the fall that caused brain injury, can it be said that the punch by Herman which was not of substantial force to cause brain injury, was solely responsible for the deceased heavy fall? According to the evidence, there were other factors that would have influenced or contributed to the fall.
81. The Court has accepted that the deceased was under the influence of alcohol. The deceased’s level of intoxication and strong resistance by trying to free himself from Herman who was trying to lead him away from Rob Ash would no doubt have contributed to his state of “unsteadiness” and caused him to lose balance and fall heavily.
82. Doctor Botterill when asked in relation to one “ being unconscious” says that ruptured veins does not necessarily lead to unconsciousness or when one is thought to be unconscious does not necessarily means that he has suffered ruptured veins.^[40] It therefore, cannot be said with certainty that Jeremiah being motionless when his head hit the floor to mean that it was at that point that he sustained brain injury.
83. Dr. Botterill also said that he did not find any bruising at the back of the head that would be expected from someone falling back heavily with the back of the head hitting the concrete floor.^[41] He also said that bruising can occur on the opposite side of the head from where the contact occurred. This he said is called “contrecoup injury” and that although such injury does not manifest in most cases, he would not be surprised to see it because it does occur. Such injury did not manifest in the present case
84. Doctor Botterill by saying that the fall is more likely to generate more force may be a strong statement of likelihood; but the fact remains that he cannot exclude that the punching or kicking caused the brain injury. His evidence is, there was just no way of knowing.

At p.359: Mr. Perkins cross examination of Dr. Botterill:

DC1: Now you also at one point indicated that of the three events – punching, falling, kicking you would find the most likely would be the fall in your view?
Witness: Yes, based on the likely force as generated by a punch or a kick or falling your full height onto the ground, the most force is likely to be generated by the fall to the ground. But as I said that’s a statistical thing, I cannot say that necessarily was the cause, I can only say its more likely based on the force generated.
DC1: Understood. So it might be the more likely way (referring to the fall) but at the end of the day you just cannot exclude that it’s punching or kicking that had caused the rupturing of the veins. Correct?
Witness: Correct.

85. Furthermore, if the pathologist was certain that Jeremiah sustained severe brain injury from the fall, he would have said so but he only said it was a likelihood.

Did the second punch substantially contribute to brain injury?

86. Dr. Botterill cannot say. In light of the above facial injuries and reasons, the answer is simply ‘no’.

Was the ‘kick’ the substantial and operative cause of death?

87. The defendant, Suapaina Savaiinaea walked up and kicked the deceased on the head while he was lying on the floor faced up.^[42] Five civilian witnesses saw the kick and they all described it differently. The kick ranged from a tap to the head, to medium range to a full swing kick. According to the witnesses the kick was to the side of the head.
88. If the kick was a full swing, that would mean it would be of great force that a fracture or bruising would have been evident to the side of the head. The pathologist did not find a fracture or bruising or anything that could indicate to him an injury to have caused by a kick of substantial force.
89. The injuries examined by the pathologist of an ulceration and bruise on the left lip and bruising across the right upper eyelid were more suggestive of a punch or punches rather than from a kick and even if they are, it indicates a lesser degree of force used.
90. There was a kick but there is no evidence or not enough evidence for the prosecution to prove beyond reasonable doubt that the kick caused brain injury or that it was the substantial and operating cause of death.
91. The likelihood of the fall causing brain injury means that the kick being the substantial and operative cause of death remains doubtful.

Other possible contributors to death

92. There is also the possibility of two contributors that could lead to the rupturing of bridging veins which in any event could lead to brain damage as opposed to simple insult to the brain from direct force. Dr. Botterill at [p.358] on ruptured bridging veins:
    • “…a bleed of that sort of dimension, unless it’s managed to be treated early will inevitably be lethal.”

At p.359: Mr. Perkins cross examination of Dr. Botterill

DC1: Understood. So it might be the more likely way (referring to the fall) but at the end of the day you just cannot exclude that it’s punching or kicking that had caused the rupturing of the veins. Correct?
Witness: That’s true. Yes.
DC1: And nor Doctor – correct me if I’m wrong, nor can you exclude the possibility that it was only one event that caused rupturing of the vein rather than two or three combined?
Witness: Yes. That’s correct.
DC1: There’s no way of knowing is there?
Witness: That’s true.

93. What is clear from Dr. Boterrill’s evidence is that there could possibly be more than one cause of death. That is, there is the possibility of two contributors that could lead to death – the rupturing of bridging veins which in any event could lead to brain damage as opposed to simple insult to the brain from direct force.In this case, it was clear that there had been rupturing of bridging veins but what was not certain was whether the brain injury could have been caused by separate blunt force or whether the one and the same blunt force ruptured the bridging veins and caused brain injury which may well have occurred but there was no way of knowing.^[43]

Findings on Causation

94. Medical experts including forensic pathologists speak of ‘likelihood’ and ‘possibilities’ rather than absolute certainties. In the criminal context, I must be sure (beyond reasonable doubt) of an accused’s guilt before I can convict.
95. Following on from the above discussions, the Court finds as follows:
    • (i) Dr. Botterill cannot say which of the blunt force – a punch or punches, the fall or a kick was the lethal force to have caused brain injury. Doctor Botterill cannot say at what point or when exactly did brain injury occurr nor can the doctor exclude the possibility of a combination of two or all three could contribute;^[44]
    • (ii) The punch or punches were not of any substantial force to have caused brain injury; at best the first punch contributed to the fall;
    • (iii) The likelihood of the fall generating sufficient force to cause brain injury cannot be attributed solely to the first punch; there were other factors that would have influenced or contributed to the fall;
    • (iv) There was a kick but there is no evidence or not enough evidence for the prosecution to prove beyond reasonable doubt that the kick caused brain injury or that it was the substantial and operating cause of death. The likelihood of the fall causing brain injury means that the kick being the substantial and operative cause of death remains doubtful;
    • (v) There is the possibility of two contributors to the cause of death. Dr. Botterill explained that brain injury could be caused by direct blunt force or by ruptured bridging veins.
96. These are ‘likelihood’ and ‘possibilities’. Likelihood and possibilities are just that; they are not beyond reasonable doubt. An example of the possibility of more than one cause of death arises when the pathologist could not say which blunt force action or impact caused brain injury. Therefore, there is a doubt as to causation in this case which would be to the benefit of the defendants.
    • “Whilst the changes would be in keeping with injury sustained from being struck in the face, kicked in the head or falling to the floor, it was not possible at autopsy to specifically state which of these events resulted in the brain injury.”^[45]
97. It is not enough that Dr. Botterill cannot exclude the possibility that the scenarios of assault have contributed to death, but prosecution must prove beyond reasonable doubt that either defendant caused the death or at least contributed to death in a substantial way. The prosecution needed Dr. Botterill to say that it was the punch or the fall that contributed or that it was the kick.
98. In the present case, there was just no way of knowing at what point Jeremiah suffered brain injury.

Conclusion

99. I find that there is too much uncertainty surrounding the cause of death and that the prosecution cannot prove beyond reasonable doubt that the punch or punches, the fall or the kick was the cause of death.
100. Both defendants are acquitted of the charges of murder and manslaughter. The charges are accordingly dismissed.

JUSTICE TUATAGALOA