Posi v Attorney General [2012] WSCA 16 (23 November 2012)

COURT OF APPEAL OF SAMOA

Posi v Attorney General [2012] WSCA 16

Case name: Posi v Attorney General

Citation: [2012] WSCA 16

Decision date: 23 November 2012

Parties:
PAULO POSI male of Vaitele-uta but currently serving a term of imprisonment at Tafaigata Prison Appellant and THE ATTORNEY GENERAL Respondent

Hearing date(s): 19 November 2012

File number(s): CA 10/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Salmon

On appeal from:

Order:

Representation:
P Chang and R Titi for appellant
T Leavai for respondent

Catchwords:

Words and phrases:

Legislation cited:

Criminal Procedure Act 1972

Cases cited:

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO. CA 10/12

BETWEEN

PAULO POSI male of Vaitele-uta but currently serving a term of imprisonment at Tafaigata Prison

Appellant

AND

THE ATTORNEY GENERAL

Respondent

Coram:
Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Salmon

Counsel:
P Chang and R Titi for appellant
T Leavai for respondent

Hearing:19 November 2012

Judgment:23 November 2012

JUDGMENT OF THE COURT

[1] On 24 May 2012 the appellant, after trial before a judge and assessors, was convicted of murder and sentenced to life imprisonment. He appeals against his conviction.

Factual Background

[2] The accused was charged with murder jointly with two brothers, David and Felise. The evening prior to the murder the brother of David and Felise and his friends had an altercation with another group which included a young man called Mareko. David and Felise were told by their brother about this altercation.

[3] During the day on which the murder took place Tui, who was to become the victim of the murder, visited Mareko. Tui had not been involved in the altercation on the previous day. On the evening of the murder the brother of David and Felise was told that Mareko was looking for him. He asked his brothers and the appellant, who by this time had joined them, to walk him home. They did so. Tui and Mareko were seen by the brothers and the appellant on two or three occasions as they walked through the village of Vaitele-fou. As Tui and Mareko walked past, the three boys called out to them in a threatening way. The brothers knew where Mareko lived.

[4] The two brothers and the appellant made their way towards the street where Mareko lived. By this time the appellant was carrying a stick. The two groups met up and it is clear that the fight which ensued was started by one of the brothers who punched Tui who fell to the ground. The appellant and the other brother attacked Mareko. The brother punched Mareko and the appellant hit him with the stick he was carrying. He then hit Tui with the stick. The appellant claims that he hit Tui only once and that was across the chest. He says that the end of the stick hit the road and broke at that time. Mareko said that the appellant hit Tui twice on the head with a stick. A woman who lived close by came outside on hearing the noise and said that she saw the appellant holding the stick and hitting the front of the chest of the boy on the road and that the appellant also kicked him. Both of the brothers claim that the appellant hit the deceased with the stick. One brother described a single hit on the chest. The other brother said that the appellant hit the deceased twice on the head and twice on the chest. Both brothers kicked and punched the deceased and Mareko.

[5] All three were tried together. Only the appellant was convicted of murder. The two brothers were convicted of manslaughter.

The submissions on behalf of the appellant

[6] The grounds of appeal as set out in the notice of appeal are as follows:-

1. That the Appellant has a right of appeal pursuant to section 164K of the Criminal Procedure Act 1972;
2. That the verdict of the assessors is unreasonable and/or cannot be supported having regard to the evidence (Section 164N(1)(a), Criminal Procedure Act 1972;

3. That the trial Judge erred in law and/or in fact in his summing up to the assessor in that:

(a) His summing up was one sided and favoured the prosecution

(b) His summing up of the appellant/defendant’s was not detailed, disorganised, vague, confusing and he failed to elaborate the material defense arguments raised for the defendant to the Assessors; and

(c) He made suggestive remarks to the assessors that the appellant was responsible for the death of the deceased and specifically named the defendant to be guilty of murder with the other two defendants of manslaughter when citing possible verdicts to the assessors.

4. That the conviction is against the weight of the evidence and the panel of assessors had erred in convicting the appellant on the charge of murder.
5. That a proper consideration of the evidence adduced at the trial would have resulted in a reasonable doubt which should have been in the appellant’s favour.

[7] In his submissions to us counsel for the appellant first claimed that the appellant was not part of any common intention to attack the two men. We are of the view that there is evidence to the contrary. In particular the appellant acknowledged that he was aware of the altercation on the previous evening and there is evidence that he was part of the group that made threats to Mareko on the day of the fight.

[8] Counsel also addressed the question of whether the appellant was a principal or alternatively a party to the murder. Counsel argued that there were two separate attacks and submitted that the mental element required for murder was not present so far as the appellant was concerned because at the time he hit Tui on the chest he must already have been dead. As already indicated there was evidence which the assessors could accept to the effect that the appellant struck Tui with the stick on the head as well as on the chest. This is important because the medical evidence was that the cause of death was a blow on the head. Counsel submitted that the medical evidence supported the proposition that the blow on the head was more likely to have been performed by an object other than the stick. However the pathologist’s evidence was that either a punch or kick or a blow with the stick (which he was shown) could have caused the injury which resulted in death. In any case we accept the submission for the respondent that there were not two separate attacks. There was one attack on Mareko and Tui and it was open to the assessors to conclude on the evidence that either the appellant struck the fatal blow or he aided or abetted the person who did.

[9] Counsel submitted that the stick used by the appellant was a light wooden thin piece of dried wood and could not have caused the trauma which caused the death. As mentioned above the pathologist had been shown the stick and said he could not discount the possibility that the fatal injury was caused by it.

[10] Counsel for the appellant submitted that the judges summing up favoured the prosecution and did not properly put the defence arguments to the assessors. Counsel submitted that the judge summarised the evidence against the appellant but did not relate that evidence to the elements of the offence and did not mention the arguments raised on behalf of the appellant. We have carefully read counsel’s final submissions on behalf of the appellant at trial and have also considered the arguments raised in those submissions against the judge’s summing up. The judge summarised the appellant’s evidence at some length. Included in that summary were clear references to the propositions put forward by counsel for the appellant. The judge also carefully set out the elements of the offence and provided the assessors with a written outline of those elements together with careful directions as to evidence and the options open to the assessors as to the verdicts they could reach in relation to each of the three accused. We think it would be helpful when dealing with co-accused to begin the reference to each by reminding the jury of the specific defences raised by counsel in relation to each of them and then to address those defences. Although the summing up was not structured in exactly that manner we consider that the assessors were adequately directed.

[11] Counsel for the appellant also criticized the summing up for specifically naming the appellant in the concluding stages of the summing up, giving him greater prominence than the other two accused. In our opinion this criticism of the summing up is not justified and in any case the written material gave equal prominence to the three accused when addressing the verdicts open to the assessors.

Conclusion

[12] We are satisfied that there was evidence which entitled the assessors to find the appellant guilty of murder. We are also satisfied that the judges summing up in relation to the appellant adequately addressed the appellant’s case and properly directed the assessors.

[13] The appeal is dismissed.

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Salmon