Attorney-General v Kolio [2008] WSCA 7; CA 03 of 2008 (19 September 2008)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 03/08

IN THE MATTER:
of an Appeal pursuant to Section 146L of the Criminal Procedure Act 1972

BETWEEN:

THE ATTORNEY-GENERAL
Appellant

AND:

ALAIMOANA KOLIO, ROY TAFATOLU
AND MAKELUSA MAKELUSA
of Ululoloa
Respondents

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

Hearing: 9 September 2008

Counsel: Mr K Koria and Ms L Su’a for Appellant
Ms R Papalii for First Respondent
Mr J Ponifasio for Second Respondent
Mr A Roma for Third Respondent

Judgment: 19 September 2008

JUDGMENT OF THE COURT

Introduction

1. In April 2008 the respondents faced trial for murder before Nelson J and a panel of assessors in the Supreme Court of Samoa sitting at Apia. At the close of the prosecution case Nelson J upheld the respondents’ submission that there was no case to answer. He dismissed the charges and discharged all respondents. From that decision the Attorney-General has appealed.
   

Facts as found by Nelson J

2. Having reviewed the prosecution evidence, Nelson J concluded that at its highest it could establish only the following.
   
3. On the evening of 31 May 2006 the deceased, Teila Fui, was the victim of three distinct episodes of assault.
   
4. The first episode occurred at Mulifanua under a fau tree on the seaward side of the road at Mulifanua. On this occasion the first respondent, Alaimoana, punched the deceased. Also present was a man named Kolio who was not charged. There was no evidence that the other two respondents, Roy or Makelusa, were involved.
   
5. The second episode occurred later under the street light on the inland side of the road while waiting for a bus. On this occasion the deceased was the subject of punches and blows from three people - the first respondent, the second respondent, and Kolio, the man who was not charged.
   
6. The third episode occurred on the bus on the way from Mulifanua to Faleolo. On this occasion the deceased was kicked and stomped in the head by two people - the second respondent, and the third respondent. Although the first respondent and the other person Kolio were present, there was no evidence that they were physically involved.
   
7. The medical evidence called by the prosecution was that the cause of death was the head injuries sustained during these assaults but that it was not possible to identify which blow or blows caused the death.
   

Prosecution case in the Supreme Court

8. In the Supreme Court the prosecution opened its case to the assessors on the basis that it was relying upon both subsections (1) and (2) of s 23 of the Crimes Ordinance 1961. In his opening Mr Koria said in effect that the prosecution was advancing its case on several alternative bases in relation to each accused. One was that the accused was guilty as a principal party in terms of s 23(1)(a). Another was that the accused aided, abetted or incited one of the other accuseds in terms of s 23(1)(b), (c) or (d). Another was that "all three accused formed a common intention to assault Teila by punching or kicking him and that it ought to have been known that causing death was a probable consequence of assaulting him in that manner" for the purposes of s 23(2). The prosecution evidence was presented against that background.
   
9. At the close of the prosecution case the three respondents applied to have the charges dismissed on the basis that there was no case to answer. The principal ground was the difficulty the prosecution faced in demonstrating a causal link between any one episode of assault, or any one blow, on the one hand, and death on the other. It was common ground that in principle where there are separate attacks by each of two or more accused, and where it can not be established which of them caused the fatal blow, all or both are entitled to an acquittal – see, for example, Police v Moli and Ene [1970-1979] WSLR 224 and Police v Ah Sui and others (unreported Wilson J 16 September 1999 Samoa Supreme Court).
   
10. The respondents pointed out that in the present case no one respondent was shown to have been involved in all of the episodes of assault. It followed that it was open to any particular respondent to argue that death could have been caused by an episode of assault in which that respondent had not been a participant.
    
11. Faced with that challenge, counsel for the prosecution recognised that they could not point to any particular respondent as a principal party for the purposes of s 23(1)(a). For reasons which are unclear, they also thought that they would not be able to show involvement as secondary parties in terms of s 23(1)(b), (c) or (d). Taw ssaw s 23(2) as the sole solution. Nelson J therefore recorded in his judgment "As counsel for the prosecution has clarified their case now rests solely on s) of the Crimes Ordinance 1961".
    
12. As to the requirements of s 23(2), Mr Koria submitted to Nelson J that "it is not necessary to show who caused the fatal injuries it is only enough to show that they all acted with a common intent and that in pursuing the common intent fatal injuries were caused." He relied upon the following passage from R v Tangye [1997] 92 A Criminal R 543, a decision cited with approval by Chief Justice Sapolu in Police v Fuamai and others (28 Feb 2007):
    

(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

Nelson J’s decision

13. In relation to the first of the three assaults Nelson J noted that "there is no evidence however that this punch caused or was an operating or substantive cause of death because the pathologist’s evidence was that it was the collective effect of the head injuries sustained by the deceased that caused his death...it is even possible the punch did not injure the deceased for as the pathologist testified not all punches can cause an injury...". Later in his judgment he recorded that "the medical evidence is the cause of death was the collective effect of the head injuries but it cannot be said by whom these injuries were sustained or when or where these injuries were sustained". He also noted that "the evidence is such that it is not known which injuries were caused by which assaulters or by which assaults". In short, the cause of death could not be sheeted home to the blows of any particular respondent or to any particular episode out of the three episodes of assault.
    
14. Nelson J also found that the prosecution evidence did not disclose any relevant common intention. On that subject he held "there is no evidence [that] a pre-arranged plan to assault or beat the deceased was made by the accused or any of them. There is no admissible evidence or indeed cogent evidence given that Kolio was the source (sic) that there was a pre-arranged plan to apprehend the deceased and hand him over to the police. This was vigorously denied by the Police. Neither is there any evidence that all three of the accused at any one time joined in a simultaneous attack on the deceased. And one of the alleged assaulters is not an accused."
    
15. Nelson J’s view as to the effect of the prosecution evidence can therefore be summarised as follows:
    
    • (a) There were three distinct episodes of assault upon the deceased:
      1. One involving assault by the first respondent.
      2. A second involving assault by the first and second respondents together with another person not charged.
      3. A third involving assault by the second and third respondents.
    • (b) On the prosecution evidence it was not possible to say which of the blows, respondents, or episodes of assault, caused or contributed to the death.
    • (c) The prosecution evidence did not disclose any relevant common intention between those involved.
      
16. In his judgment Nelson J traversed the evidence, the dilemma faced by the prosecution in sheeting home the cause of death to any particular individual, assault or episode of assault, and in consequence the prosecution’s exclusive reliance upon s 23(2).
    
17. As to s 23(2), he noted the requirement that, among other things, there be a common intention to pursue an unlawful purpose. He said "Common intent and s 23(2) has been argued as being a basis upon which criminal liability can be found against the three accused charged. It is a valiant attempt to salvage a very difficult factual situation but I agree with the submissions made by counsel for the accused that there is insufficient evidence of common intent under s 23(2)".
    
18. Given the prosecution’s sole reliance upon s 23(2), and the conclusion that the prosecution evidence did not demonstrate the formation of any relevant common intention, the Judge concluded that the case against all respondents failed. He dismissed the charges and discharged all three respondents.

Standard of review in this court

19. From that decision the Attorney-General has appealed under s 164L(4) of the Criminal Procedure Act 1972 which provides:
    
    • (4) Where on the trial of a person on any charge before a Judge sitting with Assessors that person is acquitted of that charge, the Attorney-General, on the ground that an error of law has occurred, may appeal to the Court of Appeal against that acquittal.
      
20. It will be noted that in a case of this kind the Attorney has no general right of appeal. He can appeal only on the ground that the judge in the court below made an error of law.
    
21. Where the prosecution is given the right to appeal for error of law, "error of law" is normally confined to only three situations - (i) an error made in answering a conventional legal question arising from unchallenged facts, (ii) a positive factual finding unsupported by any evidence, or (iii) a failure to draw the only reasonably available inference from unchallenged primary facts: Nankivell v O’Donovan (1895) 13 NZLR 60, 61-62; Edwards (Inspector of Taxes) v Bairstow [1956] AC 36; Auckland City Council v Wotherspoon [1989] NZHC 705; [1990] 1 NZLR 76.
    
22. There is an exception, however, where the appeal lies from the dismissal of a prosecution following a successful submission that there was no case to answer. In that situation alone the appellate court must take all the prosecution evidence at its face value unless it has been expressly rejected by the court at first instance. Within those limits, the role of the appellate court is to put itself in the place of the judge at first instance.
    
23. The judge at first instance is required to ask not whether, if compelled to do so, he or she would have convicted or acquitted but whether the evidence was such that a reasonable tribunal might have convicted: Practice Note [1962] 1 All ER 445; R v Newcastle-upon-Tyne Justices ex parte Hindle [1984] 1 All ER 770, 778; Auckland City Council v Wotherspoon supra, 92. For this purpose it will not be appropriate to make credibility choices between conflicting witnesses unless the evidence of a witness is so patently absurd that it is beyond belief. At this stage of the case it is to be assumed that it will be open to the trier of fact to accept the evidence of those witnesses most favourable to the prosecution case and to reject the evidence of witnesses to the contrary.
    
24. As applied to trial by jury or panel of assessors, the question is therefore whether the prosecution evidence, taken at its highest, could have properly led to a conviction by a properly directed panel of assessors: R v Galbraith (1981) 73 Cr Appeal R 124.
    
25. It follows that on appeal we are required to put ourselves in the position of Nelson J and to ask whether, taken at its highest, the prosecution evidence could have properly led to a conviction by a properly directed panel of assessors. It will be convenient to refer to this threshold as a "prima facie case". In answering that question we bear in mind that the respondents were said to be implicated as parties under s 23(2) of the Criminal Ordinance 1961.
    

Ingredients of the prosecution case

26. The combined effect of ss 61, 65 and 78 of the Crimes Ordinance is that an accused is guilty of at least manslaughter if he has killed any other person by assaulting that person. What would otherwise be manslaughter is then elevated to murder if the accused meant to cause the death of the person killed (s 63(a)) or if he meant to cause bodily injury that he knew to be likely to cause death and was reckless whether death ensued or not (s 63(b)).
    
27. For the purpose of the no case application the prosecution relied upon s 23(2) of the Crimes Ordinance. To put that provision in its full context, s 23 relevantly provides:
    

23 Parties to offences

(1) Every one is a party to anl guilty of an offence who—

(a) Actually commits thence; ore; or

(b) Does ors an act for the pure purpose of aiding any person to t the offence; or

(c) Abets any pern the cthe come commission of the offence; or

(d) Incitesnsels, or procure pere person to commit the offenoffence.

(2) Where 2 or more personm a cm a common intention to prosecute any unlawful purpose to assist each other therein, each of them is a party to e to every offence committed by any one of them in the prosecution of the c purpose if the commission sion of that offence was or ought to have been known to be a probable consequence of the prosecution of the common purpose.

28. In invoking s 23(2) Mr Koria explained that the unlawful purpose relied upon was the purpose of assaulting the deceased. Where assault is relied upon to support a conviction for manslaughter as a party under s 23(2), the foreseen assault must be more than a trivial one: R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA). However it is not necessary to foresee death, as opposed to the assault itself. If death ensues, it is immaterial that it was not foreseen by the accused: R v Rapira supra.
    
29. In this context "probable" does not mean "more probable than not". It will be sufficient if the accused knew that the commission of the offence was a "substantial or real risk" or an event which "could well happen": R v Gush [1980] 2 NZLR 92 (CA); R v Te Moni [1998] 1 NZLR 641 (CA).
    
30. The result was that in response to the no case application so far as it affected manslaughter, the prosecution had to show a prima facie case that in relation to any given respondent the following elements could be satisfied:
    
    • (a) That that respondent was party to a common intention with other persons ("the group") to assault the deceased and to assist each other in doing so;
    • (b) That with that intention, one or more members of the group did assault the deceased causing his death; and
    • (c) That the respondent in question had known, or ought to have known, that an assault of more than a trivial nature could well happen.
      
31. If the prosecution evidence established a prima facie case in relation to each of those three elements with respect to any given respondent, that respondent had a case to answer in relation to at least manslaughter. The case to answer would support the more serious charge of murder if there was also a prima facie case in relation to two further elements:
    
    • (d) That at the time of the assault or assaults that caused the death, the assaulting member or members of the group meant to cause death or meant to cause bodily injury that he or they knew to be likely to cause death and was or were reckless whether death ensued or not ("murderous state of mind"); and
    • (e) The respondent in question knew or ought to have known that in assaulting the deceased the member or members of the group responsible could well have that murderous state of mind.
      
32. It is therefore necessary to take each respondent in turn and to ask whether, in relation to that particular respondent, the prosecution evidence established the above elements to the prima facie level previously discussed.
    

Case against first respondent

33. The first question in relation to the first respondent is whether there is evidence that he was party to a common intention with other persons to assault the deceased and to assist each other in doing so. Against the first respondent there is evidence on this point from which it would be open to the assessors to come to the following conclusions (we in no way comment upon whether they would in fact be likely to come to these conclusions):
    
    • On the night in question the first respondent punched the deceased in the presence of Kolio Ifopo under the fau tree (evidence of Lumfale and Kolio)
    • Kolio then left to make a phone call to the police (evidence of Kolio)
    • The police gave permission to Kolio, the first respondent, and a third person called Motuga, to catch the victim, beat him, and take him to the police (evidence of Kolio). We point out that for no case purposes one must put to one side the conflicting evidence from police witnesses.
    • The first respondent also left to make a phone call to the police (evidence of Lumafale)
    • The first respondent went to a house nearby saying that he needed a number to reach the police, and that he had been given police permission to assault the deceased because the deceased was wanted on criminal charges (evidence of Silafaga Leiataua)
    • The first respondent then rejoined Kolio and the deceased, along with the other two respondents, under a lamp post near the bus stop at Mulifanua.
    • The first and second respondents, together with Kolio, then repeatedly punched the deceased on the ground in the head and neck while the third respondent stopped an approaching bus (evidence of Taelase).
    • The third respondent boarded the bus followed by the first and second respondents and Kolio carrying the deceased. They placed the deceased face down in the aisle (evidence of Taelase, Seilala and Cordtz).
    • The first respondent told the bus driver that the deceased was wanted by the police and that they, the respondents, had been instructed to catch him and turn him in (evidence of Seilala Iosefa)
    • The first respondent was still in the bus when the second and third respondents repeatedly kicked the deceased in the area of the head (evidence of Fili Seilala, Cordtz and Taelase).
      
34. To subject this evidence to a precise and detailed analysis would be to usurp the function of the assessors. The question at this stage is simply whether a properly directed panel could have reasonably concluded that the first respondent had been party to a common intention with other persons to assault the deceased and to assist each other in doing so.
    
35. In answering that question it is important to note that the panel would not be required to assess any particular item of evidence in isolation. Nor would it be required to rely upon direct evidence as opposed to an inference drawn from a number of sources considered in their totality. In the nature of things common intention will usually be established by inference from the concerted conduct of the parties: R v Fa’apusa (NZ Ct of Ap 13/12/06, CA 300/06). Neither prearrangement nor formal consensus is required; the mutual intention to pursue an unlawful purpose may arise at the very moment of commission of the offence: R v Vang (1999) 132 CCC (3d) 32; 21 CR (5th) 260 (Ont CA); R v Petters [1995] Crim LR 501; R v O’Flaherty [2001] UKHL 12; [2004] 2 Cr App R 20.
    
36. In the present case the panel would therefore be entitled to draw an inference from the combined effect of such diverse items as the first respondent’s own statements regarding arrangements with the police, Kolio’s direct evidence of an arrangement with the police, and – importantly - the subsequent concerted conduct of the various members of the group over an extended period. Having considered all of that evidence, the assessors would be required to stand back from the details and ask whether it was proper to draw the requisite inference as a whole.
    
37. We have concluded that approaching their task in that global way, it would have been open to the assessors to conclude that by the time of, and during, the second episode of assault at the bus stop the first respondent had formed a common intention with others – the second and third respondents and Kolio - to assault the deceased and to assist each other in doing so. It would also have been open to the assessors to infer that that intention continued during the third episode of assault during the bus trip.
    
38. We do not think that this extends to the first assault under the fau tree. There is insufficient evidence to support the formation of such an intention at that time given that it occurred prior to any alleged calls to the police and without concerted action on the part of other members of the group.
    
39. The second question is whether, at a time when the first respondent held the requisite common intention, one or more of the group assaulted the deceased causing his death. By this point we have concluded that there is insufficient evidence to support the formation of such an intention at the time of the first assault. However the medical evidence suggested that no single blow on the night would have been sufficient to cause death. The evidence is that the first incident involved only one blow. It follows that death must have been wholly or substantially caused by subsequent assaults. We have already concluded that during those assaults the first respondent did have the requisite intent. It follows that this element is satisfied also.
    
40. The third question is whether the first respondent knew or ought to have known that an assault of more than a trivial nature could well happen. Clearly there was evidence to support that inference. It follows that there was a prima facie case of at least manslaughter against the first respondent.
    
41. The fourth question is whether the assaulting member or members of the group who caused death meant to cause death, or meant to cause bodily injury that he or they knew to be likely to cause death and was or were reckless whether death ensued or not ("murderous state of mind"). It is not necessary for the prosecution to show which member or members of the group were responsible for causing death but it is necessary to show that, whoever was responsible, he must have had a murderous state of mind at the time.
    
42. In deciding whether the unidentified member or members responsible had a murderous state of mind, the assessors would have had two potential sources of evidence. One was the evidence that although intending to beat the deceased, the group were in the process of taking him to the police station. It could be argued that if that is where they were taking the deceased, it is unlikely that they would have had a murderous state of mind on the way.
    
43. The other available source is the evidence of what the members of the group actually did. Here there is an important timing question because the potential inferences from conduct may differ according to which of the three episodes is considered.
    
44. On the prosecution evidence, death was due to multiple blows. On that subject the pathologist’s evidence was a trifle inconsistent, largely because he was frequently asked about the number of blows that must have been required to cause the injuries rather than the number that must have been required to cause the death. However on a fair reading of his evidence as a whole, we think that it would have been open to the assessors to conclude that the number of blows required to cause the death was "more than two".
    
45. Since the punch under the fau tree could not have caused death on its own, it follows that blows wholly or substantially causing death must have been landed during either the second episode at the bus stop, or the third episode while on the bus, or both.
    
46. There is evidence that during the second episode the first and second respondents and Koria punched the back of the deceased’s head and neck while he was lying face down on the ground. The severity and duration of that beating was such that he had to be carried on to the bus (evidence of Taelase). Then on the bus itself the evidence is that the deceased was repeatedly kicked in the head area while lying face down in the aisle.
    
47. The question is whether it would have been open to the assessors to infer from those two sources – the stated aim of the expedition and the way in which members of the group acted - that the members of the group responsible for death were acting with murderous intent.
    
48. It is not for us to express a view as to whether that evidence justifies an inference that there was murderous intent. We expressly refrain from commenting on that issue. But it was pre-eminently an issue for the assessors to decide, not the trial Judge or this Court. Accordingly we accept that there was prima facie evidence to support this element.
    
49. The final question in relation to the first respondent is whether he knew or ought to have known that in assaulting the deceased the member or members of the group responsible could well have a murderous state of mind. This we think is in the same category. It is for the assessors to decide, after seeing and hearing the witnesses, whether that inference is justified. For present purposes it is sufficient to say that there would have been evidence before them which left that inference open to them.
    
50. There is available evidence in relation to each of the five elements previously identified as necessary to support a charge of murder against the first respondent. If follows that the no case application made on behalf of the first respondent ought to have been dismissed.
    

Case against second respondent

51. The primary question in relation to the second respondent is whether there is evidence that he was party to a common intention with other persons to assault the deceased and to assist each other in doing so. The matter is to be approached afresh without regard to the evidence against the first respondent.
    
52. Against the second respondent there is evidence on this point from which it would be open to the assessors to come to the following conclusions:
    
    • After the first respondent punched the deceased in the presence of Kolio, the police gave Kolio, the first respondent, and a third person called Motuga, permission to catch the victim, beat him, and take him to the police (evidence of Kolio)
    • The second respondent later joined Kolio, the deceased, and the other two respondents, under a lamp post near the bus stop at Mulifanua.
    • The second respondent joined the first respondent and Kolio in repeatedly punching the deceased on the ground in the head and neck while the third respondent stopped an approaching bus (evidence of Taelase).
    • The second respondent helped to carry the deceased on to the bus and place him face down in the aisle (evidence of Taelase, Seilala and Cordtz). The bus was heading in the general direction of the police stations at the airport and at Apia.
    • On the bus the second and third respondents repeatedly kicked the deceased in the area of the head (evidence of Fili Seilala, Cordtz and Taelase).
      
53. There is, of course, no direct evidence that the second respondent was party to a common intention with other persons to assault the deceased and to assist each other in doing so. However we bear in mind the principles discussed earlier, namely that common intention is usually to be established by inference from the concerted conduct of the parties; that neither prearrangement nor formal consensus is required; that the evidence is to be considered as a whole; and that the mutual intention to pursue an unlawful purpose may arise at the very moment that the offence is committed. We also bear in mind that the ultimate decision is not for us. On that basis we conclude that there is evidence on which properly directed assessors could reasonably find the requisite common intent.
    
54. In relation to the other elements which the prosecution had to show prima facie evidence, the second respondent’s position did not differ from that of the first respondent.
    
55. It follows that the no case application made on behalf of the second respondent should also have been dismissed.
    

Case against third respondent

56. The primary question in relation to the third respondent is similarly whether there was evidence that he was party to a common intention with other persons to assault the deceased and to assist each other in doing so. Against the third respondent there is evidence on this point from which it would be open to the assessors to come to the following primary conclusions:
    
    • After the first respondent punched the deceased in the presence of Kolio, the police gave Kolio, the first respondent, and a third person called Motuga, permission to catch the victim, beat him, and take him to the police (evidence of Kolio)
    • The third respondent later joined Kolio, the deceased, and the other two respondents, under a lamp post near the bus stop at Mulifanua.
    • While the third respondent was stopping an approaching bus, the first and second respondents and Kolio were repeatedly punching the deceased on the ground in the head and neck (evidence of Taelase).
    • The bus was heading in the direction of the police stations at the airport and at Apia. The third respondent, and the others who were carrying the deceased, all got onto the bus. The deceased was placed face down in the aisle.
    • On the bus the third respondent told a passenger that the deceased was a prisoner, that they had assaulted him on the instructions of the police, and that they were taking him to the police because he had been wanted for a long time (evidence of Fili Seilala).
    • While in the bus, the third respondent repeatedly kicked the deceased in the area of the head (evidence of Fili Seilala, Cordtz and Taelase).
      
57. For reasons which parallel those already outlined in relation to the first respondent, we conclude that on that evidence it would have been open to the assessors to conclude that the third respondent did have the requisite common intent. In relation to the other elements for which the prosecution had to advance prima facie evidence, the third respondent’s position did not differ from that of the other respondents.
    
58. If follows that the no case application made on behalf of the third respondent should also have been dismissed.
    

Notice that s 23(2) relied upon

59. At one point in his decision Nelson J expressed his concern that the prosecution may not have given the respondents sufficient warning that they were relying upon s 23(2) of the Crimes Ordinance. He questioned whether this satisfied the respondents’ right to a fair trial and to be informed promptly and in detail of the nature and cause of the accusation against them for the purposes of Arts 9(1) and 9(4)(a) of the Constitution.
    
60. In the end the Judge gave no ruling on the point and in this court the respondents did not seek to rely upon it. For the sake of completeness, however, we have considered whether this could have represented an independent source of injustice.
    
61. In our view the respondents were given adequate notice. The information was amended by consent to add express reference to s 23(2) on 11 July 2007 – some nine months before the trial began. The prosecution expressly included s 23(2) in their opening to the assessors.
    
62. Nor does there appear to have been any prejudice stemming from Mr Koria’s amplification of this aspect during the no case application hearing. As Nelson J noted in his no case ruling:
    

The prosecution case here is that the three accused formed a common intention to assault the deceased Teila. They gave effect to that common intention by assaulting Teila and they are therefore all equally guilty of causing his death if that was or ought to have been known to them to be a probable consequence of their assault. In such a case it becomes irrelevant which of the accused inflicted the fatal injuries. It is sufficient that they all participated in the prosecution of their unlawful purpose namely to assault pursuant to their common intention.

Ms Papalii’s first submission is that this basis of criminal liability was not pleaded in the information laid by the police. But again we come back to the matter of no request for particulars having been made and no apparent prejudice to the defence caused by the failure to specify this in the information.

63. We are satisfied that the respondents’ rights in this respect have been adequately safeguarded. They had nine months notice of the proposed reliance on s 23(2), did not seek further particulars, and were unable to point to any prejudice when the factual basis was discussed by Mr Koria before Nelson J.
    

Reliance upon s 23(1)

64. At the outset in this Court Mr Koria sought to revert to the position which he had taken at the outset of the trial, namely that s 23(1) and s 23(2) were both available to the prosecution. This change in position was opposed by counsel for the respondents. They pointed out that the way in which the no case application had been determined in the Supreme Court stemmed from the prosecution’s stated position that it relied exclusively upon s 23(2). They argued that on appeal it would be unfair to allow the prosecution to resile from the position taken at that time.
    
65. In our approach to this appeal we have accepted the respondents’ position. To have allowed the prosecution to rely upon s 23(1) in this court could have caused irrevocable prejudice to the respondents. If the prosecution had been successful on that ground, the respondents could have been brought back to face another trial solely because the prosecution had resiled from the position they had taken in the Supreme Court.
    
66. The position is different, however, once the prosecution has shown a prima facie case under s 23(2). Given that a retrial is justified under s 23(2) in any event, the respondents can not point to any procedural prejudice if the prosecution reverts to its original position of relying on both subsections in the Supreme Court.
    

Conclusions

67. By the close of the prosecution case in the Supreme Court the prosecution had presented prima facie evidence in relation to each of the three respondents that by virtue of s 23(2) of the Crimes Ordinance they were parties to murder. Their respective submissions that there was no case to answer were unsustainable.
    
68. Since there will need to be a retrial in any event, it will be open to the prosecution to rely upon s 23(1) as well as s 23(2) of the Crimes Ordinance at the retrial.
    
69. The appeal is allowed. The respondents are committed to a new trial in the Supreme Court at Apia on a date to be fixed by the Supreme Court. The respondents are to present themselves to that Court on a date and time to be fixed by the Registrar. Any applications for bail are to be determined by the Supreme Court.
    
70. There will be an order directing that there be no publication of the reasons for this decision, as opposed to the result of this decision, until after retrial of the respondents or any earlier direction by the Supreme Court that these reasons may be published.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher