Attorney General v Sefo [2009] WSCA 7 (9 October 2009)

IN THE SAMOA COURT OF APPEAL
HELD AT APIA

C.A 17/09

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

BETWEEN:

ATTORNEY GENERAL
Appellant

AND:

ESAU SEFO
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: P Chang and L Su’a for Appellant
D Clarke for Respondent

Hearing: 6 October 2009
Judgment: 9 October 2009

JUDGMENT OF THE COURT

The appeal is dismissed

REASONS OF THE COURT

The appeal

1. The Attorney General has appealed against the order of acquittal on a charge of rape made by the learned trial judge, Vaai J, pursuant to the power afforded by s 100 of the Criminal Procedure Act 1972 (the CPA) which states:
   

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.

No reasons were given for the decision.

2. The primary issue is whether, as the respondent argues, the section requires the Judge to form his own opinion on whether the accused is guilty; or whether, as counsel for the Attorney General contend, his role is limited to determining whether the assessors’ verdict was open to them. We have concluded that the respondent’s argument is correct.
   
3. There was added at the hearing a further issue, whether the Judge erred in failing to give reasons. We are satisfied that reasons should have been given. But under s 164L(5) we must either dismiss the appeal or uphold the appeal and direct a new trial. In exercising judgment under that subsection we have examined the evidence and are satisfied that that the appeal should be dismissed.
   

The primary issue

4. The Respondent was found guilty, upon trial by 4 assessors, of the crimes of rape and assault contrary to ss 47 and 78 of the Crimes Ordinance Act 1961. Following their unanimous verdict and after hearing submissions by counsel, the learned trial judge determined under s 100 of the CPA that ‘the defendant should not be convicted’ and ordered that he be acquitted of the crime of rape. He did not interfere with the guilty verdict on the information alleging assault.

5. Section 87 of the CPA permits an accused to elect trial by assessors or, on matters ‘for which the punishment is other than death or imprisonment for life’, by judge alone, an option not open on the charge of rape. Since the trial was before a judge with four assessors, three were required to concur in conviction.

The text of s 100

6. The governing words of s 100 are "if the presiding judge is of the opinion that the defendant should not be convicted." Read alone they contain no constraint on how the judge should form the opinion beyond the constitutional presumption that it should be based on admissible evidence and conform with the conventional rules as to onus and standard of proof.
   
7. The section has no equivalent in New Zealand or Australian jurisprudence. The Criminal Procedure Code of Vanuatu (Laws of the Republic Ch. 136) provide for a similar but not identical method for the delivery of verdict in the following terms.
   

VERDICT OF JUDGE

185. (1) The judge shall then consider his verdict upon each count of the information against each accused person in the case and may retire or adjourn the proceedings for this purpose.

(2) In considering his verdict, the judge shall take into account the opinion of the assessors and any additional statement they may have made.

(3) If the verdict of the judge upon any count of the information differs from the unanimous opinion of the assessors thereon, the judge shall record his decision in writing stating the reasons for his decision.

DELIVERY OF VERDICT

186. Upon reaching his verdict upon each count of the information against each accused person, the judge shall deliver the same in open court and the accused shall be acquitted or convicted accordingly.
     

The context

7. Section 99 requires for conviction the concurrence of no less than 3 of 4 (or 4 of 5) assessors. Section 101 states that their concurrence is not necessary for any act of the Supreme Court other than conviction. The word "concurrence" is common to the headings of each of sections 99 – 101 and, if considered, might be seen as a form of scheme defining differing duties and responsibilities. But, although the term "concurrence" does appear in the substance of ss 99 and 101 (although not 100), the headings may not be used in the interpretation of Section 100 (Acts Interpretation Act s5 (e)). Judicial ‘concurrence’ is not required upon a verdict by assessors of acquittal.
   
8. The combined effect of the above sections, when read together, is to strengthen the interpretation that the trial judge must undertake the very process required by the assessors: to make a personal decision whether the charge has been proved and, if not, to acquit. In the case of difference as to acquittal the opinion of the trial judge prevails.
   
8. The argument for the Attorney would require words to be read in to s 100. There are in our opinion no policy considerations that could justify such course. Samoa elected against the more cumbersome process of other common law states of trial by jury of 12. We understand the reasons; it may be mentioned that New Zealand has recently facilitated the use of fewer than 12 jurors and even, in some cases, trial by judge alone. But a majority of 3 of four assessors is not a large number to provide a definitive decision in a serious case.
   
9. We have no doubt that the power to veto a conviction, conferred on the judge by s 100, was enacted deliberately as a balance to the relatively small number of assessors. Section 100 operates as a safeguard in cases where the dynamic of a small group might disadvantage an accused in a difficult trial. The safeguard is not a reflection on assessors but acknowledgment of the central tenet of criminal justice requiring proof beyond reasonable doubt. The test of ‘opinion’ is limited to acquittal and is constrained by judicial not personal responsibility. It cannot be exercised by whim or caprice and must be grounded on evidence or its absence.
   

The secondary issue: reasons

10. In accordance with former practice, recently departed from by Nelson J in another case, the learned trial judge did not provide reasons sufficient to show the basis on which he had formed an opinion that ‘the defendant should not be convicted or why that opinion differed from an opposite view reached with respect to the charge of assault. His reasons simply stated.

"It is not sufficient for me to overrule the verdict of the assessors if I simply disagreed with their verdict. I should only set that verdict aside if I find upon the evidence that it is unreasonable or cannot be supported having regard to the evidence that was heard in this court. Or if I find that the assessors acting reasonably must have entertained a reasonable doubt.

Having regard to the evidence and the submissions by counsel I concur with the assessors on their verdict on the charge of assault. As to the count of rape I find that I cannot concur with the verdict.

I therefore find the defendant not guilty of the charge of rape. On the charge of assault for which the defendant has been found guilty he is remanded ... for ... sentence.

11. The reasons did not disclose the basis on which the opinion was formed or the test applied by the learned trial judge in setting the verdict aside. His Honour had entertained opposing submissions of counsel and had time to articulate the basis for his decision after due consideration. It was not an ‘ex tempore’ ruling made in the course of a trial or during the testimony of a witness. It was not to be briefly stated as a necessary expedient during trial. Unlike the circumstances considered in Connell v Auckland City Council [1977] 1 NZLR 630 the matter was neither simple nor dealt with by a busy, but untrained Justice of the Peace.
    
12. The charge being rape and the judge’s decision being to veto a verdict of assessors, it was not one to be taken lightly. Public perception and confidence in the application of the criminal law are central to the integrity of the criminal justice system. Whilst assessors ought not to be expected to disclose their deliberation or provide explanation for their satisfaction beyond reasonable doubt or its converse, more is required of a judicial officer required by law to give effect to an opinion and alter a verdict.
    
13. In R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644 the Court of Appeal of New Zealand stated that there can be "no inflexible rule of universal application". That is true. But any suggestion that in a serious case reasons can be dispensed with was dispelled by the judgment of the Chief Justice in Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) which was confirmed by the Privy Council in Tito v The Queen [2003] 3 NZLR 577.
    
14. The reasons for decision under s 100, like those in a judge alone trial under New Zealand practice, need not be elaborate. But they must identify and deal with the essential issues and contentions in the case.
    
15. That is for several overlapping reasons. First is the discipline the requirement places on the judge to ensure that the process of reasoning covers all necessary bases and does so convincingly. Secondly and vitally, the parties and especially the losing party, are entitled to know how their contentions have been dealt with and why the decision is as it is. Thirdly, the assessors are entitled to know why the judge has disagreed with them. Fourthly, not only are the parties entitled to reasons to determine whether to appeal but without reasons the appellate court cannot properly perform its functions. Finally, confidence in the rule of law depends upon the judges acting transparently. Reasons are an essential element of the same open justice that requires public access to the courtroom.
    
16. The former practice, of withholding reasons for orders under s 100, was erroneous in principle and should no longer continue.
    

The judgment under 164L(5)

17. The remaining question is how we should make the judgment under s 164L(5), empowering us to dismiss the appeal or to uphold it and direct a new trial. The error in failing to provide reasons could in other circumstances justify a new trial. We are however satisfied from our own analysis of the evidence of independent witnesses and surrounding circumstances that there was substantial basis for the Judge’s conclusion that there was reasonable doubt as to the guilt of the respondent. To comply with our own obligations requires a brief account of our reasons.
    
18. The allegation of rape depended in large part on the accuracy of the account provided by the complainant and her credibility as a witness. She had left her mother’s home on the evening of 24 July and met a man called Arona whom she had encountered three days earlier. They were intending to go to his home. On the way the pair came across three men, one of whom was the respondent. The complainant stated that the respondent punched her companion and dragged her by the hand to the back of a small church and raped her. She said that the respondent took her clothes off, required her to remove her clothing, removed his own clothing and, despite her screams and protestations, had intercourse with her. Whilst she could not see her assailant’s face she recognised him as one seen often by her at the market where she had met Arona some days before. So the Attorney relied on the fact that the respondent had assaulted Arona for no known reason and invited us to conclude that as a stranger he had then abducted and raped the complainant.
    
19. But two witnesses called by the respondent gave evidence that they had seen the complainant and the respondent a month or two earlier, drinking together and embracing at a social function.
    
20. In cross examination the complainant denied that she had held the assailant’s hand while accompanying him and maintained that she had screamed on a number of occasions. She agreed that the event occurred close to a home which she knew to be occupied by a police officer, and that the struggle had taken place close to a number of residences. Her testimony varied during the course of examination, cross examination and re-examination. She denied a long term relationship with Arona, agreeing that the relationship had existed for but a few days, but described him to police as her ‘toalua’ (husband).
    
21. Counsel for the Attorney properly accepted that in cross- examination the complainant had made what we regard as the remarkable concession that she had cried rape as a cover for being caught with the respondent.
    
22. During re-examination the following exchange occurred between the complainant and prosecution counsel:
    

Pros: do you recall being questioned regarding your evidence where you were asked whether it is correct you laid your complaint with police in case Arona was not happy with the sexual intercourse you had?

Wit: yes

Pros: what was it again, you were asked/ questioned to come to give false evidence in case Arona is unhappy with you?

Wit: yes

Pros: what is the truth about your evidence?

Wit: Arona was unhappy I had sexual intercourse with this guy.

Pros: do you get concerned/worried if/when Arona is unhappy?

Wit: yes

Pros: do you come and lie in your evidence if Arona is not happy?

Wit: yes

Pros: what was the answer?

Wit: Arona was unhappy when we went to his house.

Pros: do u recall yesterday ....., my learned friend asked you that the reason you laid your complaint with police was in case Arona gets unhappy with you?

Wit: yes

Pros: what was the reason for laying your complaint with police?

Wit: scared in case Arona beats me.

Pros: why would Arona beat you?

Wit: I had sex with this guy.

Pros: but did you consent to have sex with this guy?

Wit: no.

The passage too is open to interpretation as admission of a false complaint made to placate Arona.

23. A scene plan and accompanying photographs showed the close proximity of a number of dwelling adjacent to the scene of the event making it unlikely that any scream from that point would have remained unheard. A villager deposed that he had seen the respondent and a girl walking hand in hand past his home. They had climbed over the fence and he saw "the girl remove clothing from her body and lay down and then they had sexual intercourse". He heard no screams or commotion and his observation of the couple was ‘like the guy and the girl had known each very well’. He heard no commotion until after a police officer arrived. A second villager had seen two naked people having sex but gave no account of violence. Inspector Seiuli who had come across the injured Arona then located the complainant and the respondent and advised other officers accordingly. He gave the opinion that the complainant’s voice ‘sounded like she was crying’. But that was after she had been found in compromising circumstances and could well have been due to embarrassment on that score.
    

Decision

24. Our jurisdiction under s 164L(4) is confined to correction of errors of law. While we have held that the learned Judge erred in failing to give reasons for his decision we consider that the error does not warrant the course of retrial. We are satisfied that we have a sufficient command of the facts to discern why the Judge ruled as he did. Having made our own appraisal of the facts we consider that his ruling was well open to him to make.
    
25. We decline under s 164L(5) to direct a new trial and dismiss the appeal.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher