Atonio v Police [2002] WSCA 3; 09 2002 (2 December 2002)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 9/2002

IN THE MATTER of the Judicature Ordinance 1961 of Samoa.

AND

IN THE MATTER of an appeal pursuant to Section 164K
of the Criminal Procedure Act 1972 of Samoa.

BETWEEN

LIO MAMEA ATONIO
male of Puapua.
Appellant

AND

THE POLICE
Respondent

Coram: The Rt Hon Lord Cooke of Thorndon
The Rt Hon Sir Maurice Casey
The Rt Hon Sir Gordon Bisson

Hearing: 28 November 2002

Counsels: TRS Toailoa for appellant
R Schuster and D Clarke for respondent

Judgment: 02 December 2002

JUDGMENT OF THE COURT
DELIVERED BY LORD COOKE OF THORNDON

This is a difficult criminal case. The appellant, a man 67 years of age, was found guilty at a trial before the Chief Justice and assessors of murdering Kosene Taala, a man aged 48. The mandatory death sentence was imposed. The deceased was married to a daughter of the appellant’s brother. The appellant did not give evidence at the trial and a police statement taken from him, which the prosecution tendered, was ruled inadmissible upon objection by counsel then representing him and a voir dire hearing.

The substantial defence raised at the trial was provocation, which would have reduced murder to manslaughter. By their unanimous verdict the assessors rejected that defence. Mr Toailoa, who was not the counsel who represented the accused at the trial, now contends that a defence of self-defence by pre-emptive strike was available and should have been presented at the trial; and that there should be a new trial to enable this defence to be considered. If successful it would amount to a complete defence. The onus of negativing it would be on the prosecution.

The Evidence

The evidence at the trial indicated that there were two relevant phases in the events of the night of 14 to 15 March 2002. The appellant and his wife lived in a house on family communal land at Puapua. The evidence about the first phase came from neighbours, Lauvao Tailo and his wife Aisaga Lauvao Tailo. At about 9.00pm they heard the deceased’s vehicle stopping at the appellant’s house and a loud exchange of words in Samoan between the deceased and the appellant. The deceased yelled out words to the effect ‘Get off the land and you want a bullet on your forehead’. The appellant said ‘Shoot, shoot’. The deceased drove back to the road but then back to the house again, calling out ‘Get off the land. If I find someone there that person will be shot’. We take this account primarily from the evidence of Lauvao Tailo; his wife’s evidence is to much the same effect.

The evidence about the second phase comes from Ugapo Tumui, another resident of the same village, aged 49. He said that he was at a drinking party at about 10pm when the deceased arrived in his vehicle and joined the party. About midnight the deceased asked that they leave in his vehicle. The vehicle (a van) turned beside a breadfruit tree. The inside of the house was fully illuminated, apparently from the lights of the van. The witness asked the deceased why they had turned into this house. The deceased said that he was going to check their house. He went into the rooms and scooped up a mosquito net, but no one was inside. He returned to the van and from inside it called out that no one was to step into the land and house. He was not holding anything.

In less than two minutes the witness heard the appellant saying ‘You are married into the family but you want to be boss in the family’. The witness told the appellant not to make a noise as it was late at night. Then he heard what he took to be punching. He got out of the car, went around to the other side, and opened the driver’s door. He asked the deceased to move over and let him drive, as the deceased was very drunk. Then he discovered that the deceased was bleeding from injuries from which he later died.

There was also evidence about a bush knife which appears to have been used by the appellant in inflicting these injuries. No gun or other weapon was found in the van. The medical report identified wounds to the right hand, the mid right forearm, the front of the right elbow, the right shoulder, the left upper limb, the left mid forearm and the left wrist. Death was due to haemorrhagic shock, as a result of the deep incised injuries cutting through tissues and main arteries supply.

The Police Statement

The statement signed by the appellant was excluded from evidence because before making it he had not been adequately informed of his constitutional right to consult counsel. But in order to consider the ground of appeal now raised it is necessary for this Court to examine the statement. There must be an order, however, that until further order of the Supreme Court or this Court no report or account of the contents of the statement may be published.

As translated the main part of the statement reads-

I recall on Thursday 14/3/2002 at about 9pm, I walked from my house heading the main road when suddenly the van of this man Samoata Kosene turned in my land and then he stopped the car and Samoata asked me who were staying here, I answered that it was me and my wife, Samoata Kosene then again said to me as thus; "no one owns here except him (Samoata Kosene) who owns the land and the family", I again answered him that no one owns this land except me (Lio).

Samoa Kosene again said whether I wanted a bullet on your forehead (Lio) and I did not answer, then I heard the door opened and I looked inside the van and saw a piece of iron which looks like a gun holding by Samoata, I then walked away from the van and went around the other side as I wanted to get the bushknife which was lying infront of the house, when I got the bushknife then I turned around to go towards the car when he reversed onto the main road and went heading to the Ili Laupapa and I followed behind it.

When I reached in front of Lauvao Tailo’s house, his wife Aisaga Lauvao met me and she hugged me saying for us to go home as he was going straight and she reached for the bushknife held in my left hand, I said to her that my wife was using the knife for her job and then she released the bushknife then we bid farewell and we went home to sleep while Aisaga went to her home.

When we arrived home, we put on our mosquito net and we slept on the bed, it had been quite a while since we slept when I woke up when a car tyres were making noises infront of our house, I woke up and saw lights of the car shining inside our house while Samoata reached inside and he kicked the door and went inside and then he turned around and called out to the car that no one while I was dropping myself out of the house and walked towards the van and saw another person sitting inside and I saw it was Ugapo Tumui, then I went around the other side on the right where the driver was saying things that Samoata is the boss, Samoata owns the land and he got inside his car.

At the same time, Samoata was saying things when I reached his door and I said to him that Samoata is not the boss, I own here but he kept on saying to me that Samoata owns it while he was sitting at the driving wheel of his car and I was standing outside, I again answered that he is not owner of this land and then he said to me, you are going to die, I saw his right hand reaching behind inside the van and then ran and got the bushknife lying in front of the house.

I turned around with my bushknife as i reached near the car door of Samoata when the door was opened and perhaps it was about one foot the door was opened and he was trying to get down from the car when I struck the bushknife and my first struck between the door which was opened and I could feel that it landed well and a second struck was thrown and I knew it landed on his left hand, the said second struck was firstly landed on the van’s body before it landed on Samoata’s hand, the third struck again landed on the left hand which used to open the door, the door was then closed and I reached for the door but it was locked and I heard Samoata said to Ugapo that he was injured, Samoata moved over to where Ugapo was sitting while Ugapo got outside and stood in front the van’s enginge and I again reached the window and threw two more strikes towards Samoata with the bushknife and landed on his right hand.

. . . . . . .

Sergeant Tasi Ainuu has again shown me the bushknife and a white piece of material being tied around the handle of my bushknife, and this incident took place because this man Samoata was trying to run our family and during the time we were exchanging words, Samoata was sitting inside his car and facing towards me.

The Legal Principles

There are two particularly material principles of law. The first relates to self-defence and is authoritatively stated by Lord Griffiths in the judgment of the Privy Council in Beckford v The Queen [1987] UKPC 1; [1988] AC 130, 144-

The common law recognizes that there are many circumstances in which one person may inflict violence upon another without committing a crime, as for instance, in sporting contests, surgical operations or in the most extreme example judicial execution. The common law has always recognized as one of these circumstances the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing. If no more force is used than is reasonable to repel the attack such force is not unlawful and no crime is committed. Furthermore a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.

It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful that self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution. If the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime namely that the violence used by the accused was unlawful.

If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully.

The second principle is that, although an accused person is usually bound by the way in which his defence has been conducted at trial, an omission to raise an arguable defence may be so serious that in the interests of justice an appellate court should permit it to be put forward as a ground for a new trial. If counsel has made a manifest misjudgment the Court of Appeal may thus put the matter right. Cases in this category are quite rare, and the court is not easily persuaded to allow the case to be reopened, but the jurisdiction does exist.

Applying the Principles

This case is near the border line. There are obvious difficulties in the way of a defence of pre-emptive strike, not least the fact that the deceased had returned to his van. No gun was ever found. On the other hand, according to the evidence there had been repeated and vociferous threats of shooting by a man who in the second phase was drunk and outrageously intruded into the appellant’s home. We note, too, that Aisaga Lauvao Tailo appears to have said that quite soon after the attack the appellant told her that a gun was shown to him. His attack on the deceased was violent and continuous. Arguably it was inspired by anger rather than an instinct for self-preservation. We have to remind ourselves, though, that these are properly questions for the assessors. It is not for this Court to give the verdict on the facts.

On balance we think that the interests of justice will be served by allowing a new trial at which the defence of pre-emptive strike may be presented. Provocation could also be put forward as an alternative. If the prosecution wishes to put in the appellant’s statement, it may be unwise for his counsel to object. In any event the appellant will be able to give evidence.

The course that we are taking involves no criticism of the Chief Justice’s conduct of the first trial. Apart from the question of self-defence, his summing up has not been attacked. In case it is of any assistance at the second trial, however, we add that the handwritten script of the summing up contains an entirely correct general direction as to the onus of proof on the prosecution, but that when dealing with the defence of provocation it is preferable to be explicit that here likewise the onus is on the prosecution.

For these reasons the appeal will be allowed and the conviction quashed. There will be an order for a new trial and an order that until the further order of the Supreme Court or this Court no report or account shall be published of the contents of the police statement signed by the appellant.

Solicitors:
Toailoa Law Firm for appellant
Attorney General’s Office for respondent