Faamoe v Attorney General [2011] WSCA 5 (26 August 2011)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 02/11, 03/11 and 09/11

BETWEEN:

DERECK FAAMOE
First Appellant

BETWEEN:

ELI POLISI LAVATAI
Second Appellant

BETWEEN:

JOE TAVAE
Third Appellant

AND:

ATTORNEY GENERAL
Respondent

Court: Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Hammond
Hearing: 25 August 2011

Counsel: RV Papalii for First Appellant
D Clarke for Second Appellant
R Schuster for Third Appellant
K Raftery and P Chang for Respondent

Judgment: 26 August 2011

JUDGMENT OF THE COURT

Introduction

[1] On 30 March 2011 the three appellants and a fourth accused were found guilty of murder. On 31 March 2011 they were convicted and sentenced to life imprisonment. The three appellants now appeal against conviction.

Factual Background

[2] On 3 September 2010, two groups of young men were at Johnny's bar in the village of Vaitele. The Vaigaga group included the appellants and their co-accused Michael Ofisa. The Vaimoso group included Aukuso, Atonio, Misty, Telea and the deceased, Bismark.

[3] In the bar an argument developed between the two groups. The bar's security officers, Faitala and Andrew, required the two groups to leave. The officers deliberately separated the departures by 15 minutes to keep the two groups apart. The first to be ejected was the Vaigaga group.

[4] The plan to keep the groups apart was foiled by the Vaigaga group. They waited at a nearby intersection until the Vaimoso group emerged. The intersection was on the route the Vaimoso group would need to take in order to reach the main road. The Vaigaga group waited in a red jeep.

[5] When the Vaimoso group reached the intersection where the Vaigaga group were waiting, someone from the jeep called out, challenging them. The argument between the two groups in the bar was reopened. One member of the Vaigaga group was holding rocks.

[6] Hearing this, the two security officers from Johnny's bar emerged and again separated the two groups. They required the Vaigaga group to leave in their car. One of the security officers later identified the first appellant, Dereck Faamoe, as the person holding the rocks and the second appellant, Eli Lavatai, as the driver of the jeep. The third appellant, Joe Tavae, was ordered back into the jeep by one of the security officers.

[7] Still not satisfied, the Vaigaga group drove to a second intersection which would again lie in the Vaimoso group's path. In preparation for their arrival two people alighted from the jeep and bent down. There was evidence from which the assessors could infer that their purpose in doing so was to pick up rocks.

[8] When the Vaimoso group found that the Vaigaga group were waiting for them again they ran to a shop across the road and took refuge there. The shopkeeper required them to leave again, but called the police. The Vaimoso group then set off in an easterly direction along the main road towards Apia. They were walking away from the Vaigaga group.

[9] One of the Vaigaga group, a shirtless male, followed the Vaimoso group. He called out challenges and was seen to be carrying rocks. He was followed by at least one other member of the Vaigaga group.

[10] Seeing this, the Vaimoso group separated. Aukuso, Atonio and the deceased crossed to one side of the road while Misty and Telea remained on the other.

[11] The leading member of the Vaigaga group started throwing rocks at Aukuso, Atonio and the deceased. Along the way someone threw rocks from a kia (tomb) on the roadside. One rock hit Atonio who fell to the ground. Aukuso stopped to help him. The deceased continued to run away. He was running in an easterly direction away from the second intersection and towards a road-side reserve on the right hand side of the road.

[12] Aukuso and Atonio took sanctuary inside the fence of the Vailima brewery building. The leading member of the Vaimoso group approached the fence holding rocks. He called for them to come out so that they could be killed. Aukuso and Atonio did not oblige. They were eventually picked up by the Police from their hiding place there.

[13] By this stage the deceased had reached the road-side reserve. He was caught there by the Vaigaga group. He was beaten by one or more members of the Vaigaga group. He sustained major injuries from which he ultimately died.

[14] There is distinct evidence regarding the movements of the second appellant, Eli. This shows that after dropping off two members of his group at the second intersection, Eli drove off; that at some point a third member of his group alighted from the jeep; that Eli parked his car somewhere; that he was then seen running past the house of his near neighbour, Malu, to the east of the reserve; and that when seen he was running in a westerly direction towards the area of confrontation between the two groups. It might also be thought to be a reasonable inference that the place where Eli had parked his car was at his own home given that his house was immediately to the East of Malu's.

[15] When Malu saw Eli run past his house, Malu was outside with another man, Toe. Malu telephoned Eli's mobile phone to ask whether something had happened. Eli told Malu to come. Malu and Toe followed Eli.

[16] Eli continued running in a westerly direction towards the reserve followed by Malu and Toe. When the three reached the reserve they encountered the first and third appellants already there with the deceased. The deceased was lying on the ground, injured but still alive.

[17] The third appellant, Joe, then left the reserve. He ran towards the ANZ bank nearby. There he met and punched Misty. Misty responded by throwing a rock at the third appellant. Both were picked up by the Police from there.

[18] Another person, Taulauniu walked into the reserve and found the body of the deceased lying there face downwards. Some boys were there, including Eli. Taulauniu and Eli both checked the deceased and said that he was dead.

[19] The deceased was later found by the Police still lying dead on the ground in the reserve. He had suffered bleeding from the mouth and nose, a deep three centimetre cut on the back of the head and bruises around his neck. The injuries caused the death.

The trial and appeal

[20] The three appellants and Michael Ofisa were charged with murder. At the trial they did not give evidence. That one or more members of the group had caused the deceased's death was not in issue. The question was whether there was sufficient evidence to implicate any given accused considered individually.

[21] The assessors found each of the four accused guilty. They were each convicted and sentenced to life imprisonment. Three of the four have appealed.

[22] The central ground of appeal is that the verdicts were unreasonable. In this court it has not been disputed that the appellants were part of the Vaigaga group on the night; that the deceased died as a result of violence from one or more members of that group; or that whoever killed the deceased had the necessary murderous intent. The appeals centre upon the adequacy of the evidence to implicate any given appellant as an identified principal or party.

[23] On that issue it is not for us to approach the matter afresh or attempt to assess credibility. The question is whether there was evidence upon which reasonable assessors, properly directed, could convict. Differently put, the question is whether, taking into account all the evidence, reasonable assessors could not have been satisfied beyond reasonable doubt that any given accused was guilty: R v Munro [2007] NZCA 510.

Evidence implicating first appellant

[24] Ms Papalii submitted that apart from her client's caution statement to the Police there was no evidence which placed the first appellant, Dereck, in the reserve with the co-accused prior to the deceased's death.

[25] We accept the response that there was evidence which the assessors could have adopted in relation to Dereck. This evidence could have been regarded as sufficient to specifically identify him as:

• (a) The person holding rocks during the first confrontation outside the bar (see security staff evidence);
  
• (b) The shirtless male with cloth around his head leading the chase of the Vaimoso group after the second confrontation, shouting challenges and throwing rocks as Dereck (see combination of evidence from several witnesses);
  
• (c) The shirtless male approaching Vailima fence holding rocks and calling out for them to come out so that they could be killed (ditto);
  
• (d) One of those standing over the body of the deceased when Malu arrived (Malu);
  

[26] More importantly, Dereck made critical admissions to bystanders and the Police. Shortly after the incident he admitted to two women, Elisher and Theresa, that he had struck the deceased's head in the reserve with a branch or rock while others were kicking and hitting him. He also admitted to the Police that he had punched the deceased. While there were inconsistencies in the precise nature of the violence he admitted to, the fundamental point is that he admitted taking part in a joint physical attack on the deceased in the reserve.

[27] There was ample evidence implicating the first appellant as both a principal and a party. His appeal must fail.

Evidence implicating second appellant

[28] There is more substance in the arguments advanced by Mr Clarke for the second appellant, Eli. Unlike the other two appellants, he did not admit to personal violence against the deceased. The prosecution does not dispute that he drove off after dropping off two members of the group at the second intersection and that he was next seen outside Malu's house, some distance to the east of the reserve where the deceased was killed.

[29] It was open to the assessors to take the following view of the evidence in relation to Eli:

• (a) He was the driver of the vehicle which was driven to, and parked at, the first intersection which lay in the path of the Vaimoso group. Occupants of the vehicle alighted. They waited until the Vaimoso group arrived and then challenged them aggressively. Significantly, one of Eli's group had rocks. It was open to the assessors to infer that Eli's group did not press home an attack at that stage only because security staff intervened.
  
• (b) Eli then drove to a second position from which his group could lie in wait for the Vaimoso group. By that stage he must have known that aggression with rocks was contemplated. On arrival two members of Eli's group again picked up rocks.
  
• (c) Eli drove off but appears to have dropped off another member of his group shortly after since three of his passengers were involved in rock-throwing.
  
• (d) Eli led Malu and Toe to the deceased in the reserve. Mr Clarke submitted that the reserve lay on the route back to the second intersection. On the limited evidence before us one might have thought that it would be quicker to run along the side of the road than to use the winding track through the reserve. But at the very least, the manner in which Eli went directly to the deceased must count as an unfortunate coincidence from his point of view.
  
• (e) The deceased was still alive, and in Eli's presence, when Malu left.
  

[30] It was open to the assessors to conclude from that evidence that at least by the time he drove to the second ambush, Eli knew that his group was intent upon attacking the Vaimoso group. He must also have known that rocks would be used as a weapon and that death or serious injury might well result. The question is whether he disengaged from his group's enterprise in time to sever his implication as a party.

[31] It must be remembered that so long as there was evidence open to them, it was for the assessors to decide what evidence to accept and what evidence to reject. It was also open to them to decide what inferences, or conclusions, to draw from the evidence so long as these were logical ones and not mere speculation or guesswork.

[32] In Eli's favour, there is clear evidence that he drove away from the confrontation while it was still in progress and that he did not return until after the deceased had been injured and was lying on the ground. There is no direct evidence that in the meantime he had driven home but we think that the assessors had to give him the benefit of the doubt on that aspect.

[33] Had the evidence stopped at that point, Eli might well have been entitled to an acquittal. However there two critical points must be added. The first is that it was open to the assessors to conclude that after the violence started Eli deliberately dropped off another member of his group to assist in the attack. The second is that immediately after leaving the jeep at his home he returned on foot to assist his friends. Neither is consistent with the contention that once he realised that potentially fatal violence was afoot, he disengaged from the group's activities.

[34] In those circumstances we consider that there was evidence upon which the assessors could properly find that Eli was a party to his co-offenders' acts of violence against the deceased. We further consider that knowledge that rocks would be used as a weapon was sufficient to implicate him as a party to the murderous intent that accompanied the violence.

Evidence implicating third appellant

[35] Mr Schuster submitted that there was no evidence proving beyond reasonable doubt that the third appellant, Joe, in the presence of the other co-accused assaulted the deceased or was a party to a common plan to assault him knowing that one or more of the defendants would murder him or inflict grievous bodily harm.

[36] We accept the response that there was evidence which the assessors could have adopted in relation to Joe. The evidence could have been regarded as sufficient to specifically identify him as:

• (a) The person put in the car by security officers outside the bar;
  
• (b) One of the group standing over body of deceased when Malu arrived; and
  
• (c) The person who ran towards ANZ and punched Misty.
  

[37] More importantly, Joe admitted to the Police that in the early hours of the morning he had thrown rocks and further that after Dereck had beaten up the deceased and he had fallen down "I came and punched him twice on the mouth".

[38] There was ample evidence implicating the third appellant as both a principal and a party. His appeal must fail.

Result

[39] All three appeals against conviction are dismissed.

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Hammond