IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 8/08

BETWEEN:

MUAIAVA UFIUFI
of Lotofaga, Safata
Appellant

AND

POLICE
Respondent

Coram: 	The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 	08 September 2008

Counsel:	S. Leung Wai for Appellant
S. Petaia and P. Chang for Respondent 

Judgment:	19 September 2008

JUDGMENT OF THE COURT

1.	The appellant was originally charged on seven informations for acts of sexual misconduct against his stepdaughter. On presentment for trial the respondent withdrew 3 of the informations and the appellant was required to plead to the remaining four. Those four alleged one charge of rape with an alternate charge of unlawful sexual intercourse, with a girl under the age of 16 (Informations numbered 1077/08, 206/08 and one charge of attempted rape committed on a separate occasion with an alternate charge of indecent assault (Informations numbered 1078/08, 1076/08).

2.	The particulars in each case identified the same complainant and averred the dates of the 2 separate events as occurring between 1 June and 30 August 2007. The prosecution case was that the act of rape predated the attempt.

3.	The appellant entered a plea of guilty to the charge of unlawful sexual intercourse and pleas of not guilty to the remaining informations. The prosecution sought to have those three charges tried together as permitted by the Criminal Procedure Act 1972 s32 (The Act), which relevantly provides

" 31 (1) Any number of informations for any offences may be tried together …..

(2) 	If the court thinks it desirable or expedient in the interests of justice to do so it may order that the defendant shall be tried upon any one or more of such informations separately. 

4.	The appellant sought the aid of the Act s87 claiming entitlement to trial by judge alone on informations 1077 and 106 of 2008. In effect he was seeking severance of those matters from the trial of rape. The learned trial judge refused to grant severance. 

5.	In all respects, other than statutory entitlement, he was entitled to do so. The allegation involved the same complainant, acts separated but briefly in time and the allegations of sexual misconduct were of like nature. Witnesses intended to be called at trial were identical. Only one record of interview which encompassed the allegations was to be tendered. A joint hearing was desirable and severance "needlessly artificial (Police v Faigalotu 2004 WSSC 38). The learned trial judge considered possible prejudice to the respondent and the desirability of not requiring a young girl to be subject to two hearings of a matter involving intimate detail and the trauma of providing evidence against a step-father. His Honour concluded that it was not "desirable or expedient in the interests of justice… that the defendant be trial alternate upon (the) informations separately".

6.	The appellant does not here challenge that portion of His Honour’s reasoning or basis for his determination. He claims entitlement, as of right, to separate trials. His ground of appeal claims:

" the learned trial judge erred in law when he, with respect denied the application pursuant to section 87 of the Criminal Procedure Act 1972 to have separate trials to hear the rape charge before assessors and the attempted rape and indecent assault charges before a judge of the Supreme Court siting alone. 

Trial by Assessors or Judge Alone

The Act ss86, 87 provides: 

"86.	Constitution of Supreme Court on criminal trials – On a criminal trial the Supreme Court shall sit either with or without assessors in accordance with the provisions hereinafter contained.

"87.	Supreme Court with assessors – The Supreme Court shall sit with assessors n the trial of any person for an offence punishable by death or by imprisonment for more than 5 years if he pleads "not guilty" thereto."

7.	Conviction for rape attracts a mandatory penalty of life imprisonment (The Crimes Ordinance 1961 s.42 (2) (The Ordinance). Trial can only be by a judge sitting with assessors. Attempted rape (The Ordinance ss27, 48, 114) and indecent assault (The Ordinance s.53) permit a penalty of 10 and 7 years respectively and as such come within the ambit of the proviso stated in the Act s.87. Trial by judge alone on all these matters together was precluded by law. Thus the conduct of a joint trial could only be conducted by assessors.

8.	The appellant claims ‘entitlement’ and as such contends that there remains no option but to sever the two informations from the rape. He relies on the requirement of strict interpretation of a criminal statute and the exercise a right protected by the Constitution Article 9. He contends that the Act s87 ‘stands alone’ or is ‘paramount’ in the grant of right or entitlement. He relies on the wording of comparable legislation of the New Zealand Parliament, as providing guidance for the interpretation he seeks. Its enactment is the Crimes Act 1961 (NZ) s316 B (4) which provides:

"The Judge to whom any matter is referred under subsection 3 of this section shall order that the accused be tried by a Judge without a jury unless, having regard to the interests of justice, the Judge considers that the accused should be tried before a Judge with a jury, in which case he shall order accordingly."

The argument, by analogy, is that absent the distinction made in the Samoan enactment, the New Zealand provision permits general discretion whilst the Act s87 permits no such option.

9.	Two answers may be given to the contention. A trial of rape by assessors permits the return of alternate verdicts of attempted rape, unlawful sexual intercourse or indecent assault. (The Act ss37, 39). The proviso would not preclude the trial of an alternate but lesser crime. The second is that the Act must be read as a whole. Joinder would require or permit the trial of all matters other than murder or rape, by a judge sitting alone. A person charged could not avoid joinder by simply making an election on some of the charges; eg burglary from the concomitant stealing, by an election or entitlement provided for by the Act s.87. Section 31 provides for the form or nature of the proceedings whilst s.87 permits an election of forum or mode of trial. In that sense s.31 governs the operation of s.87. The operation of s.31 also precedes the election of mode of trial. A trial commences with the presentation of information or informations and the taking of the plea. The prosecution may then seek ‘any number of informations to be tried together’ almost as of course or presumption (The Act s31). The defendant may then argue for severance on the basis of prejudice, unfairness or expediency, in which case court could exercise its discretion. Dependant on that exercise recourse may be had to the election provided for by s.87. But in the case of a crime requiring the imposition of life imprisonment, the ‘lesser’ charges attach to the primary information which permits only trial by a judge sitting with assessors.

10.	Read in that light s.31 can be said to be paramount to s.87 or at least precedent in its operation. The entitlement is to the mode of trial of these matters which are the subject of the informations. If all matters come within the proviso then there is entitlement solely within the province of the defendant. If, as here, they are mixed then trial is determined by law. The trial of a matter involving the prospect of life imprisonment, trial is, by law, to be determined by assessors.

Right to A Fair Trial

11.	The appellant contends that any reading down of the Act s.87, in the manner above stated, offends a right protected by the Constitution. The Constitution Article 9 relevantly states:

" 9 (1) Right to a fair trial – In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of moral, public order or national security, where the interest of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.

(4) Every person charged with an offence shall be presumed innocent until proved guilty according to law.

(a)	To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)	To have adequate time and facilities for the preparation of his defence;

(c)	To defend himself in person or through legal assistance of his own choosing and, if he has not sufficient means to pay for legal assistance, to be given it free when the interest of justice so require;

(d)	To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)	To have the free assistance of an interpreter, if any doubt exists as to whether he can understand or speak the language used in Court.

12. 	Those general rights are not offended by the operation of the Act ss86, 87. Parliament has been concerned to reserve the right of a fair trial, in the most serious matters, to be conducted by citizens of the State of Samoa. Here the Appellant contends that the trial of separate acts of sexual misconduct by the forum of assessors will be prejudicial in that the assessors, having heard evidence of repeated conduct might be tempted to return an unsafe or unsatisfactory verdict because of the volume or weight of multiple allegations, especially in a sexual case. But Parliament itself in enacting s.87, and its requirement that the most serious crimes be tried by assessors, has placed its trust on the integrity of its citizens. Parliament has also afforded an additional ‘protective’ mechanism in its enactment of s.100. That section which states:

"100.	Concurrence of presiding Judge - If the presiding Judge is of the opinion that the defendant should not be convicted, or if less than 3 out of 4 or 4 out of 5, as the case may be, of the assessors concur in his conviction, the defendant shall be acquitted."

permits the trial judge to prevent an erroneous verdict. If there is risk of a ‘perverse verdict’ the protection of trial by judge alone is preserved.

Here the law of evidence would permit the prosecution to lead evidence of the attempt in support of its case of rape. Relationship evidence, evidence of propensity (Makin v Attorney General for NSW 1894 AC 57, DPP v Broardman 1975 AC 421, Hoch v The Queen 1988 165 CLR 292, S v The Queen 1989 89 ALR 321) and the general evidence of the mother would be relevant to and admissible on both trials.

The Act and its operation does not affect the respondent’s constitutional rights. The joint trial of the informations and the evidentiary sequelae do not deny the appellant of the right to a fair trial. 

The appeal ought is dismissed.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher