Farao v Police [2010] WSCA 9 (24 September 2010)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

C.A. 04/10

MAPU FARAO, male of Mulifanua
Appellant

AND:

POLICE
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: L Tamati for the appellant
P Chang and G Patu for the respondent

Hearing: 20 September, 2010

Judgment: 24 September, 2010

JUDGMENT OF THE COURT

1. The appellant was convicted of the crimes of attempted murder and wilful damage to a window and sentenced to terms of imprisonment of 10 years and 4 years (concurrent).
   
2. On 3 November 2008, a person fired five cartridges from a 12 gauge shotgun at a home in Mulifanua owned by Taimalelagi Naotala, the twin brother of the complainant, Tupuivao Naoupu who was visiting. Tupuivao had been asleep, during a power blackout which had occurred between 8 and 10pm. When the power returned, Tupuivao woke up and as he stood up a shot was fired through the glass louvre windows above where he had been sleeping. That shot shattered the window and some of the glass fragments caused injuries to Tupuivao's feet. The second shot struck the complainant in the face. The injuries were severe and life threatening.
   
3. Three more shots were fired after the complainant's son had turned off the lights but the complainant managed to avoid further injury.
   
4. The appellant lived in the same village as the complainant. There was a history of friction and antipathy between members of the EFKS Church with which the appellant was associated and Taimalelagi who was the matai of the appellant's family. That antipathy led to proceedings in the Lands and Titles Court concerning the pule over the land on which the Church had been built. Further, as a result of the discord the complainant's brother and family had been ostracized from the affairs of the village. The decision of the Lands and Titles Court had been handed down on Friday 31 October 2008, and was in favour of the complainant's brother and family. The shooting occurred three days later and the prosecution case relied on the link between the two events as providing the appellant with a motive to cause harm.
   
5. At trial the prosecution called the appellant's brother Taimalelagi as a witness. He gave evidence that shortly before the Court hearing he had heard the appellant make threats on more than one occasion to the effect "o le aso e faasa'o ai upu o le tatou nu'u, o le aso foi lea e oti ai ma le tagata" (The day that our village sayings are changed is the day someone will die). Naotala had understood the threats to have been directed at him.
   
6. Trial was held before the Chief Justice and assessors. The assessors were entitled to use that evidence in determining the question of specific intent to bring about a death only if they were satisfied that the appellant was the assailant. That the assailant may have mistaken the identity of the victim did not affect the legal principles governing the case. It was open to the assessors to return an alternative verdict of guilty of causing actual bodily harm if they were not satisfied on the issue of specific intent.
   

GROUNDS OF APPEAL

7. The grounds of the appeal are stated as:
   
   • (a) the verdict of the assessors should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence;
     
   • (b) there was a miscarriage of justice; and/or
     
   • (c) a nullity arose in the course of the trial.
     
8. Grounds (b)–(c) as articulated concern a claimed infringement of the appellant's right of silence afforded by the Constitution Article 9 (5), but in the course of legal argument were enlarged so as to include the Common Law principles governing permissible cross examination and comments on the failure of a defendant to earlier provide a version of events to an interviewing police officer.
   

Unreasonable Verdict

9. This ground accords with the Criminal Procedure Act 1972, section 164 N1 (A). Its import has been stated in a number of authorities of this and the New Zealand jurisdictions (Nepa v Attorney General [2010] WSCA 1; Owen v The Queen [2007] NZSC 102).
   
10. Here the appellant relies on inconsistencies and contradictions between witnesses as showing the verdict to be both unreasonable and unsafe.
    
11. Central to any verdict was the question of identity. The discharge, from short range, of five cartridges from a 12 gauge shotgun at a figure behind a glass louvre and into a room, suddenly illuminated, and the firing of three further shots after the light was extinguished was compelling evidence of an attempt to take the life of another. If the assessors were satisfied beyond reasonable doubt of the identity of the assailant they could readily find attempted murder irrespective of motive or the identity of the actual victim.
    
12. The evidence of identity included:
    
    • (1) the assailant and victim lived in the same village and were known to each other;
      
    • (2) the appellant owned and possessed a 12 gauge shotgun;
      
    • (3) the appellant owned and possessed a yellow raincoat identified by witnesses to the shooting or its immediate aftermath. It had been raining heavily before the shooting event;
      
    • (4) the appellant was recognized by a person known to him as being near the scene immediately after the shooting;
      
    • (5) the appellant was seen to retrieve a yellow raincoat from the water shortly after the shooting incident.
      
13. The appellant's position was that he was not at or near the scene at the relevant time and that he only became aware of the incident when told by another. If the assessors accepted that he had been present at or near the scene they could more readily accept an unlawful presence and, by inference, guilt. This component of the prosecution case is also relevant to any consideration of the third ground of appeal.
    
14. A plan and photographs tendered by the prosecution, and the place where the discharged cartridges were recovered assisted the witnesses to describe and the assessors to follow the sequence of events and the various movements of persons at or near the scene.
    
15. Taimalelagi Naotala was at home with a relative named Reupena in a house directly opposite and across the main road from that occupied by Tupuivao. He confirmed that the power to the area had been off between 8 and 10pm. When the shots were fired Naotala and Reupena walked to where they had heard the fired shots and towards the curfew and committee houses. They came across three men who were prepared to go fishing and were waiting for the resumption of power. Two of those men were called as witnesses on the trial. They had been sitting under a Tamaligi tree, which was some four houses distant from the scene of the shooting and where the spent cartridges had been found. As the five men were conversing, Naotala saw the appellant's son Semi walking (T18) towards them and Semi did not speak, turned around and walked back towards his own house(T24). Naotala did not see the appellant that evening but did say that he had often seen him wearing a yellow raincoat identical to the exhibit tendered at trial.
    
16. Fiaui Paepaelelei was one of the three men under the tree. He said that before the shots were fired, he had spoken with a man who claimed to be a security guard for Taimalelagi(T33). He stated after the power had been restored he saw a man raising a gun over the fence and discharge it five times. Soon after he had seen a man wearing a yellow raincoat coming from where the weapon had been discharged.
    
17. After the shots were fired, Fiaui saw a man wearing a wearing a yellow raincoat with a hood. He described the man as old by the way he was running. The claimed inconsistency of his description of the movements namely, walking or running, is of little import(T34, 39). He could not recognize the man and did not identify the appellant. He saw the man reach the Tamaligi tree,(T35) because the lights had come on(T36). He described the man as big and short(T38) and the raincoat as similar to the exhibit(T45-6). A claimed inconsistency between his witness statement and evidence at trial was linguistic not substantive(T48). Fiaui then met up with Taimalelagi and his brother.
    
18. The second of the three men Viliamu Sefulu confirmed the substance of the above. He had earlier seen a man walking east while the power was off. In his evidence in chief, he stated:
    

"I did not take notice of him walking, we continued talking and after about 10mins the 1st car from the Apia direction lit up the road and where the person was standing and the power had just come on also so I clearly saw this person and then I told the other guys I would have thought the person who went passed would have been way inland by now but the person is standing at the Taimalelagi house on the inland side, I saw the person lift up the gun on the fence, I saw it when the lights came on and he was facing Taimalelagi's house then discharged the gun, unload and then reloaded, discharged it again and after the second time I felt scared, the guys were also scared and told me we should go hide and then jump into the sea and hid there while I sat still even though I was scared I want to know who this person was, the guys then hid at the sea while I sat and looked, and it was when the person turned and faced me that I then saw it was Farao, he then ran eastward."

19. He explained why he had not told police the identity of the assailant on the night of the shooting in the following terms:
    

"Because I felt scared I then asked the guys to come into the house and sit there and not to stand up in case we were affected by this trouble, I was certain of the person (gentleman) but it was difficult for me to relate it to police that night. My statement now is the truth and honest as I have now been sworn on the Bible but it was difficult for me to tell the name of the person that night when I was brought because the village is in dispute with Taimalelagi after a Court case over land, the high chief of the village also said in one of the meetings I was at that if anyone is seen talking, or go into Taimalelagi's property they will be punished by the village and if unable to come up with a fine then they will be banished. Because I was so scared from being banished from the village is the reason why I have just related today I honestly saw Farao doing it as I have now sworn on God's Word so I'm no longer scared of the village and whatever decision they make about me, as I am afraid of God."

20. He said he could clearly see the appellant through the lights of a vehicle and over the Tamaligi tree. He made a dock identification of the appellant(T54). He remained firm in his identification(T56) of the raincoat and the face of the appellant(T58).
    
21. In cross examination Viliamu identified on the plan where he had seen the man standing before the shooting(T11). When asked about other clothing worn by the man, he said during the following exchange:
    

"DC so you're saying just now that he was wearing a ie lavalava this person who was shooting, is that correct?

Wit lea lava o le ie sa fai. (yes wearing lavalava).

DC how long was this ie lavalava, where did it come to, to his legs?

Wit the wrap around its length was further down from the length around the rain coat, a little bit longer than the rain coat, and the reason why my vision was now clear of the wrap around was after the 5 bangs rang out, then ran towards me and face directly to me and I recognize what he was wearing and face and I clearly saw him because I know I will be suspected because if Tupuivao had died I would have been sitting from that dock, that's why I focused on this person so I can clearly capture his face and what I saw was that this is an incident that had occurred. That's why these guys were hiding that we came together when 2 shots bang, when these 2 shots ran out I knew then that this was a dispute, that's why I felt scared and feared what had happened but I still had to focus and keep an eye on him because if I didn't I would be in jail.

DC so you saw this man's ie lavalava and you would have seen what he was wearing on top, is that correct?

Wit very clear, he was wearing a white shirt inside."

22. He corroborated Fiau's general account although there were differences in detail, but fear, speed of events especially those occurring at night and outdoors often produce those differences. Fiaui had jumped behind the seawall whilst Viliamu had remained so that he could see the assailant. (T14)Both men had seen and recognized Semi.
    
23. Reupena Tafao who had been with Taimalelagi was 15 years old. He had gone with him after the shots were fired and met up with the three men 'hiding at the Samoan house(T24). He had then met up with the appellant and followed him to the water and saw a yellow raincoat floating 'on the sea'(T28). The appellant had retrieved and kept the raincoat(T29). The appellant was known to him and the witness had seen the appellant wearing a yellow raincoat on previous occasions(T34). He said that the appellant was wearing a white shirt, evidence similar to that given by Viliamu(T39). He later saw the appellant still carrying the raincoat as he was walking home(T40-41). The evidence was not weakened through cross examination.
    
24. The evidence of Fagaloia Puai, an experienced police officer with the CID will be separately considered. In relation to Ground 1, its relevance is that of linking a firearm and the raincoat with the appellant. Other forensic evidence is uncontroversial.
    
25. The appellant gave evidence. He told the Court:
    

"At that time in the evening, the usual after daily chores, evening devotions, there was a power failure and we were resting in my house lying down not going anywhere until about 9 or 10 because of our village curfew I had to work policing and patrolling our village where the others were posted/stood but it is my job to walk around the village. I was walking towards Taimalelagi's house not knowing what had happened as I had not heard anything about what happened. I arrived at the second guard house and not far from two other houses at the 3 corners and one other on the side of Taimalelagi's house and that was where I sat down. After 10pm nobody was about because nobody should be out at that time and then I stopped this kid by the name of Reupena walking to the seaward side and backward, up and down. I went and asked him what was happening and then he told me what had happened. We walked around by the light of a torch and Reupena was telling me where the person went to, where he stood and where he jumped into the sea. I told him to shine the torch into the sea and then I noticed a rubbish bag floating on the sea and I reached down and picked it up and put it in the house. After that I told Reupena to go home as it was curfew time. I was surprised the next morning."

26. He maintained that he had found out about the incident through Reupena and had gone with him to the front of the Tamaligi tree on the seaward side of the road where with the aid of a torch;
    

"I saw the orange tarpaulin in the sea"(T62) and "we went to where it was I reached for it lifting it up. I did not go into the sea as it was high tide at the time."

27. He said that he had left the tarpaulin at a nearby house and returned home without it.
    
28. Reupena had earlier given evidence that the appellant had repeatedly insisted that the object retrieved from the sea was a 'tapolen' and not a raincoat despite his (Reupena's) claim repeated three times that it was a raincoat.
    
29. There was a clear difference between the witnesses as to the identity of the object. That difference remained a matter for the assessors. Even if no raincoat had been retrieved from the appellant or the evidence excluded, the difference would have remained.
    
30. The appellant denied that he had earlier made threats of death to Taimalelagi, a further difference to be considered by the assessors. He made light of any hostility between himself and the brothers saying that they had a close relationship. He told the Court that he had inherited the shotgun from his father and kept it hidden at the plantation. Police had earlier said that both they and the appellant had been unable to find the weapon and that the appellant had suggested that it must have been stolen. He rejected the account given by Viliamu.
    
31. It was open to the assessors to prefer the evidence of Taimalelagi, Viliamu and Reupena, especially where corroborated by Fiaui, to that given by the appellant. The appellant has not shown the verdict to be unreasonable or against the weight of the evidence. The ground is dismissed.
    

Identification

32. A matter raised by the bench in the course of argument was whether the assessors should have been warned of the dangers of identification evidence. This had not been advanced as a ground of appeal but we considered that it should be addressed in the interests of justice.
    
33. The trial Judge did not give nor was he asked to provide a direction warning the assessors of the dangers of identification evidence. The law is succinctly stated by the High Court of Australia in Domican v R (1992) 173 CLR 555 by the majority, Mason CJ, Deane Dawson, Tooley Gaudron and McHugh JJ stated at 561:
    

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the guilty of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula, but it must be cogent and effective."

34. The Court set out the form and adequacy of the warning when it said 565:
    

"The adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the opportunity to observe the person subsequently identified, the length of time between the incident and identification and the nature and circumstances of the first identification – not by reference to other evidence which implicates the accused."

35. It cited with approval the decision or advice of Privy Council in Freemantle v R [1994] 3 All ER 225, involving a witness who had known the appellant for a long period of time, and dismissed the appeal.
    
36. The formula is similar to that required by the courts of the United Kingdom (R v Turnbull [1977] QB 224) and of New Zealand. In R v Vaenga Turaki [2009] NZCA 310, the Court of Appeal dealt with a group attack involving a number of whom were family and friends assembled at a party and others from outside. Some fifteen persons were in the attacking group. The question was whether it was the appellant who was the principal attacker who had kicked and hit the victim while he was on the ground. The Court was required to consider an identification warning which given the terms of the Evidence Act, section 126, was inadequate. The Court was cited a range of authorities including Turnbull (supra), Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1 and R v Hohepa [2008] NZCA 316. The Court accepted that there was a distinction between recognition and identification evidence, the latter requiring a more detailed and careful warning. But it accepted that recognition evidence is not trouble free (R v Bentley [1991] Crim LR 620; R v Borden [1993] Crim LR 479).
    
37. A warning should have been given. We return to this topic in the context of "the proviso" as it is called in other Commonwealth jurisdictions.
    

Right of Silence

38. The right is recognised by Article 9(5) of the Constitution which provides:
    

"No person accused of any offence shall be compelled to be a witness against himself."

39. It has been considered by the learned Chief Justice in Afoa v Police [1994] WSSC 3 when he said:
    

"Thus it appears that at the core of the right to silence is the freedom of a 'suspect' to make a choice of whether to make a statement or not to make a statement to the authorities. This right to silence is also intertwined with the right to counsel and the right against self-incrimination. The right against self-incrimination is of course enshrined in Article 9(5) of our Constitution as a fundamental tenet of the right to a fair trial. It must follow that the silence of a suspect or accused confronted by the Police must not be interpreted in any way to mean an admission of guilt on his part. Silence is not an admission of guilt in this context and must not be given any evidentiary value. To say silence infers guilt would be a violation of the right to silence."

40. The New Zealand equivalent doctrine has been examined by the Court of Appeal in R v Coombs [1983] NZLR 748 when Cooke J in delivering judgment stated at 748-9:
    

"As New Zealand case law stands, there are three relevant principles. First, in general a suspect has a right to silence under interrogation by police or other law enforcement officers, whether before or after caution. This is elementary. Secondly, while a Judge may properly comment upon the fact that an explanation has been given for the first time at a trial, such observations have to be made with care and fairness to the accused in all the circumstances of the case: R v Ryan [1973] 2 NZLR 611, 615. Thirdly, while occasionally the accused's silence when confronted with an allegation may amount to evidence of acceptance of it by him, this is exceptional – and especially so when the allegation has been made by or in the presence of a police officer on other investigating authority: R v Duffy [1979] 2 NZLR 432.

"The Privy Council and English authorities which have influenced the evolution of those principles in New Zealand need not be cited again here, but it is noteworthy that the dividing line between what is fair comment and what is not has been recognised to be a fine one: see 11 Halsbury's Laws of England (4th ed) para 299; Archbold's Pleading, Evidence and Practice in Criminal Cases (41st ed, 1982) <<>> 4-430. In some cases, both England and in New Zealand, it has been said that there is a clear distinction between drawing an inference of guilt from silence and taking prior silence into account as diminishing the weight of any explanation given by the accused for the first time in evidence at the trial. In R v Gilbert (1977) 66 Cr App R 237, 244, Viscount Dilhorne, delivering the judgment of a Court of Appeal of which Lord Scarman was also a member, saw no clear dividing line, as in each situation the jury are being invited to draw an inference adverse to the accused on account of his exercise of the right to silence. We respectfully agree that the distinction is often too fine to be of practical value in a jury trial. When the accused has made no prior statement, comment on the belatedness of explanation advanced for the first time at the trial will usually not be fair unless his right to silence is also clearly explained and the jury are warned not to draw an inference of guilt from silence."

41. In Australian, Canadian and New Zealand jurisdictions comment on a defendant's failure to give evidence is prohibited by statute (R v Ngatai [1999] 1 NZLR 446 and cases referred to therein). In Samoa the Criminal Procedure Act 1972, section 60(1) provides:
    

"Adverse comment – (1) Where the defendant refrains from giving evidence as a witness, no comment adverse to the defendant shall be made thereon."

42. Here the appellant was made aware of his right of silence. He exercised that right when interviewed by police. No objection was made to the reception of the evidence of the police officer Puai. No objection was taken to the recovery of the raincoat or its presentation as an exhibit.
    
43. The appellant, represented by counsel, elected to give sworn testimony and expose himself to cross examination. He denied any involvement in the crime. Counsel was entitled to test that claim. The impugned questions must be examined in the context of his evidence in chief. He had then told the Court that, after he had given the raincoat to police.
    

"When we arrived in front of Taimalelagi and Tupuivao's house the car stopped and was surprised with what Tupuivao said to me. My children are present in Court I hid from them what Tupuivao said to me "You should be skinned with a machete". The officer heard it and held me back, but I have no quarrel with these people we used to do things together, and today is the first time my children have heard me say what Tupuivao said to me because I love my children and likewise Tupuivao and Taimalelagi nothing is wrong in terms of our relationship with them. The reason don't stand together is because of our village law.

Dc so what was that tulafono o le matou nuu (village law), what was that?

Def Taimalelagi and Tupuivao is banned from our village, they do not participate in our village affairs, this is why if we talked to Taimalelagi and Tupuivao we would be punished by the village, no matai should go to the house of someone banned from the village but our relationship with Tupuivao and Taimalelagi is not in a bad state. But this is the reason why I do not go to them because of the village tapu.

Dc u heard what Taimalelagi said during his evidence, he said that church services u would say that whoever won the court case would die along those lines, what have u got to say about that?

Def no such meeting was held by the church or the village, I did not hear of such a meeting or those words said, no such words were said.

HH what Taimalelagi said was there was a time u said these words, the day our village affairs will be corrected is when someone will die.

Def your hon. God knows I never said these words about these people, Taimalelagi and Tupuivao and I have a close relationship, Taimalelagi also took me to NZ and he and his children looked after me when I was there, we have no quarrel the only dispute is in relation to Taimalelagi being banned from the village."

44. It was that evidence which led to the impugned cross examination:

"Pros nice words you said Mapu where you say Tupuivao said to you "you should be skinned with a machete", is that the truth?

Def yes.

Pros why didn't you tell police during the investigation?

Def I had no time to talk to a police officer regarding that I kept it with me what Tupuivao said I also did not wish to take it to the law.

Pros you were taken by police and u did not wish to make a statement.

Def I was taken but did not want to.

Pros but you now decided to make a statement in evidence here?

Def yes.

Pros why did you not tell police that earlier?

Def I did not wish to lay a complaint on that day this was said to me, but I thought that this is the only opportunity to say this out of a clean heart coz I don't want to take to the law these harsh words said to me, I will take it in."

45. The questions were directed at the appellant's claim that Tupuivao, the complainant, had threatened him, a matter not put to the complainant or police officers in cross examination. That was a new and affirmative defence proposition which the prosecutor was entitled to challenge. He did so by asking why the appellant had not made that allegation to police. There was no impropriety in that course.

46. In Petty v R (1991) 173 CLR 95, the High Court of Australia considered whether the right to silence extended to an adherence to a false claim that another had committed a crime, a matter raised for the first time at trial, thereby depriving the prosecution of the opportunity to investigate the matter properly. In his reasons for judgment, Dawson J stated at 119:

"Of course, the doctrine of recent possession allows an explanation to be given at trial, but, as in any other case, it may be disbelieved because it is given then for the first time, notwithstanding that the failure to give it earlier was in the exercise of the right to silence.

It is important to recognize that, when an accused who has refused to answer questions subsequently gives exculpatory evidence, it is not the right to silence which is in issue but the truth or falsity of the evidence. It is the evaluation of that evidence that the refusal to answer questions previously may be a relevant circumstance."

47. Dawson J cited the English case of R v Ryan (1964) 50 Cr App R 144, one of similar import and the decision of the New Zealand Court of Appeal in Reg. v Foster [1955] NZPoliceLawRp 21; [1955] NZLR 1194 which permitted comment on the fact that a defence is raised for the first time by evidence given at trial. His Honour returned to the question of permitted inference and reasoning process stating at 120:

"But it is wrong to say that no inference adverse to the accused can be drawn on account of his exercise of the right to silence, if to conclude that what an accused says at trial is less likely to be true because he did not say it previously amounts to drawing such an adverse inference. That is a reasoning process which is permissible consistently with the existence of the right to silence. It has never been suggested, so far I am aware, that a jury cannot reject the evidence of an accused because it is given for the first time at trial. That can only be done by taking into account previous silence on the part of the accused."

48. The majority, Mason CJ, Deane Toohey and McHugh reached the conclusions at 102 that:

"Since the suggestion was first made in the cross examination of Crawley, it was open to the Crown to elicit in the course of re-examination that such a suggestion had never been put to him in cross-examination at the committal proceedings."

and at 103, that the comments of this trial Judge which were accompanied by a warning of inferential guilt were to be understood;

"...as referring not to more silence but to what was in effect, a persistence in the withdrawn allegation."

49. The learned author of Cross on Evidence (6 Aus D) states at 33770 that:

"...if the accused is not silent, and instead makes false allegations against another, that can be taken into account by the jury in determining whether the defence eventually advanced is spurious."

50. So there was nothing untoward in the foregoing line of questioning.

51. But following that exchange prosecuting counsel embarked on further confusing and improper questioning in the following terms:

"Pros why didn't you tell police that all these allegations against you are wrong?

Def what regarding what?

Pros why didn't you tell the police?

Def regarding what?

Pros was it you that committed the crime?

Def you want me to lie to the police that I did it?

Pros do you lie to the police?

Def I don't lie to the police I speak the truth to the police officers.

Pros but u just said you do not lie to police that you did it.

Def my understanding of your qs is that I am going to lie to the police?

Pros so what you said is true?

Def no, I speak the truth.

HH counsel asked you why you did not tell police that you did not do it?

Def I thought it was my right, I would make a statement before your honour, but if I am wrong then my knowledge is limited, what I thought was it was my right, I would only make a statement to my lawyer and before your honour.

Pros Mapu, thank u for yr evidence

Your honour I have no further questions."

52. Counsel was entitled to ask;

"was it you that committed the crime?"

a matter distinct from the previous answer.

53. Read in context he was also entitled to ask question "why didn't you tell this to the police?" The question related to his claim given at trial that it was an orange tarpaulin not a yellow raincoat which Reupena had seen and he retrieved. The question was justifiable as challenging a new affirmative proposition advanced at trial.

54. But the prosecutor's questions next questions "do you lie to the police?", "you just said you do not lie to police that you did it" would, as the Chief Justice's clarificatory question made plain, have suggested to the assessors "counsel asked you why you did not tell police that you did not do it?" While put in a confusing manner, the suggestion infringed the appellant's right to silence.

55. Prosecuting counsel compounded the error in his closing speech to the assessors. He told the assessors:

"Now you also had just heard the accused give evid. The accused said he was at home, around 9 – 10pm he then met with Reupena at some point in that same night. And they went around and eventually got an orange tarpaulin. Now why did he not tell this to police? He says all of Reupena's evid is a lie. But he also says that he was with his daughter at home. Why did he not bring or other family members who can vouch for him? The answer is simple he had no such evidence before now. Whereas Reupena had made a statement to the police right after the incident."

Counsel was not entitled to comment on the failure of the appellant to volunteer his version of events to police. In doing so, he offended the common law requirement stated in cases such as Coombs and Ngatai (supra) and Randall v R [2002] UKPC 19; [2002] 1 WLR 2237. In the absence of further argument we do not find it necessary to determine whether the statement was in breach of the Constitution Article 9 since the common law covers the point. The errors by prosecuting counsel were not corrected by the trial Judge either at the time that they occurred or later in the summing up.

The Proviso

56. The Criminal Procedure Act 1972, section 164N(3) provides:

"The Court of Appeal may, even though it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

57. The prosecution case was compelling. Analysis of the evidence undertaken in relation to Ground 1 of the Notice of Appeal shows that there was direct evidence it was the appellant who fired the shots. Given that the weapon was discharged at a window from a short distance soon after the light had just come back on making the victim visible, the assessors were entitled to conclude that the actions of the offender were intended to kill another. The appellant denied any presence at the scene at the time of the shooting, a claim at odds with the evidence of a person well known to him who claimed to recognize the appellant as he came from the scene.

58. The test for the application of the proviso is whether notwithstanding the error, the jury would inevitably have come to the conclusion that the accused person was guilty (Anderson v R [1972] AC 100; R v Pink [1970] 3 All ER 897; R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 (SC)). An appellate court may dismiss an appeal in a case of murder, notwithstanding that a matter decided in an appellant's favour even though the summing up may be subject to criticism (R v McKewen (No.2) 1974 1 NZLR 626) but must do so with caution (R v Edwards [1975] 1 NZLR 402).

59. Two errors require consideration. One is the absence of an identification warning. The other concerns the right of silence.

Absence of Identification Warning

60. Both witnesses lived in the same village and the person identified was well known to each. Viliamu had known the appellant for over thirteen years and Reupena had accompanied him for a reasonable period of time. Viliamu said that he had been able to readily identify the man because he had paid special attention to the figure at close range and had the benefit of a street light and headlights of a motor vehicle in making his identification.

61. Had there been any real possibility of the presence of another person there would be a miscarriage of justice requiring retrial. But we are satisfied that that possibility was excluded. There was a single person in a position to fire the shots and the appellant was clearly identified as that person. Given that the two witnesses knew the appellant well, that one had conversed with him and the other had a good opportunity to recognize the appellant, the omission did not amount to a miscarriage of justice.

Infringement of the Right of Silence

62. In this case the appellant answered an inappropriate question correctly, stating that he was exercising his right to silence, a matter repeated by the learned trial Judge. Counsel for the appellant made his closing address and was well able to respond to the impugned remarks of the prosecutor. The assessors were told that it was not the defendant's obligation prove anything. Counsel did not seek to have the trial Judge provide judicial re-enforcement to the right of silence and sought no redirection.

63. That would not have helped the prosecution had there been any reasonable alternative to the appellant's being the shooter. But there was not.

Conclusion as to Proviso

64. In other circumstances either error would have given rise to miscarriage and have required a retrial. Their combination has given us cause for careful reflection. But in the absence of any realistic alternative to the appellant's being the offender we are satisfied that had the errors been corrected there must inevitably have been a conviction.

65. We add the suggestion that it become a practice for Judges to ask or remind counsel that they have a right and duty to raise in the absence of assessors any error or omission in the summing up.

66. The appeal is dismissed in accordance with the Act, section 164N.

Honourable Justice Baragwanath

Honourable Justice Slicer

Honourable Justice Fisher