Koko v Police [1994] WSCA 18; 11 1992 (31 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 11/92

BETWEEN:

FAOFUA KOKO and SIONE SIONE
Appellants

AND:

THE POLICE
Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 31 March 1994

Counsel: P. Fepuleai & T.K. Enari for Appellants
M.B. Edwards & K. Latu for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

Appellants in this case appeal against convictions for murder which followed a 3 day trial in October 1992 before the learned Chief Justice and 5 Assessors.

Both appellants were granted leave to appeal against their convictions for murder on what we call the "translation" ground and that will be clarified hereafter. Both accused in this Court made some attempt to raise the exclusion by the Chief Justice of the defence of self defence for consideration by the Assessors. We have no doubt on the evidence that was a correct ruling and when the facts of the killing are outlined it will be clear. There was another point which has some slight association with the self defence argument but is in reality quite separate. It was undisputed in the hearing and also at the trial before the assessors that the deceased was a hardened criminal with a violent disposition. The Chief Justice made several references to that in his summing up. At times by questioning counsel for the accused attempted to bring this out before the Assessors and their questioning along these lines was prevented by the trial Judge. Mr Fepuleai in his argument makes something of this saying it prevented a fair trial and was relevant to self defence. The general bad character of a deceased cannot be used as a foundation for self defence which must related specifically to the conduct and actions of the deceased within the fact situation that brought about his death. We think the Chief Justice was correct to rule out that line of questioning because it was irrelevant to the issues before the Assessors. We think the Chief Justice put the matter correctly when he succinctly said the deceased was not on trial but the accused were.

We turn now to the main ground of appeal which we have called the "translation" ground. Very briefly the facts of the case were as follows. The two appellants on 16 November 1991 were confined in the security block at Tafaigata Prison. Another prisoner said he heard something unusual happening inside a cell and stood up and observed what was happening. The short description is that with a galvanised pipe and a bottle both accused committed violent assaults on the deceased and unquestionably through those assaults he died.

The defence of provocation was raised so as to reduce the crime of murder to manslaughter. That seemed to be the substance of the defence which went to the Assessors but judged by their verdict it was rejected.

The ground of appeal concerns the way provocation was put to the Assessors, not by the trial Judge in his direction given in English, about which there is no complaint, but in a single instance of what the Assessors heard in the translation into the Samoan language. Counsel put the factual account to us in an affidavit sworn and filed by Caroline Antonina Schmidt who in October 1992 was employed as the Judge's Associate in the trial. She speaks both English and Samoan. On 22 October 1992 she was present during the trial taking down in shorthand the direction to the Assessors by the trial Judge. We reproduce paragraphs 5, 6 and 7 of the affidavit:

"5. THAT in the second sentence of the penultimate paragraph of the summing up His Honour used the words "....a reasonable Samoan...."

"6. THAT I heard the translator, in translating that phrase use the words " .... ose tamali'i Samoa ua lelei atoatoa lona faiai...."

"7. I would agree that the Samoan words mentioned in paragraph 6 hereof can be translated into "A Samoan high chief whose brain is in excellent condition".

We accept the above factual account and it is on that basis we make our decision.

To clarify the position we repeat the English version of the trial Judge throughout the summing up was unobjectionable. The problem arose over this very last direction on "reasonable Samoan" in the translation which was as outlined above.

We have no doubt that the direction in the Samoan language is a misdirection in law if taken in isolation. The standard to be applied is that of the ordinary or reasonable Samoan not a Samoan high chief whose brain, or mind, is in excellent condition.

Having said that we do not believe the Assessors would have been misled as to the correct standard to apply when the summing up is examined as a whole. The learned Chief Justice when introducing the subject to the Assessors said this and it was correctly translated:

"The test to be applied is that of the effect of provocation on a reasonable Samoan so that an unusually excitable individual is not entitled to rely on provocation which would not have led a reasonable Samoan to act as he did. In essence the real question for you to decide in relation to provocation is that: Would a reasonable Samoan in the circumstances of the two accused in this case given the provocation by the deceased have lost their self-control and acted in the same way as the accused did and caused the death of the deceased".

In the sentence which preceded the challenged translation he said this, which was correctly translated:

"As I had already indicated the test to be applied is that of a reasonable Samoan".

It must also be remembered that the Assessors heard the correct direction in English and whilst we cannot be certain it is probable at least some of the Assessors spoke and understood English. Furthermore both counsel heard the mistranslation but did not raise the matter with the trial Judge at the time to have it corrected immediately. If they thought it of sufficient importance that was the proper course to follow.

Both appeals are dismissed.

Solicitors:
Fepuleai and Apa & Enari, Apia for Appellants
Attorney-General's Office, Apia for Respondent