Nauer v Attorney General [2012] WSCA 8 (1 June 2012)

Court of Appeal of Samoa

Nauer v Attorney General [2012] WSCA 8

Case name: Nauer v Attorney General

Citation: [2012] WSCA 8

Decision date: June 2012

Parties:

LAKI @ LUCKYNAUER of Lotopa, Lalonea and Satapuala, Samoa v Attorney General

Hearing date(s): 30 May 2012

File number(s): CA 03/12

Jurisdiction: Criminal

Place of delivery: Mulinuu
Judge(s):
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith

Hearing: 30 May 2012

On appeal from:

Order:
Representation:
A Roma for Appellant
P Chang and L Taimalelagi for Respondent

Catchwords:

Words and phrases:
Legislation cited:
Criminal Procedure Act 1972.

Cases cited:
Muaiava Ufiufi v Attorney General [2009] WSCA 13 (CA).

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

CA 03/12

BETWEEN

LAKI @ LUCKY CONRAD NAUER of Lotopa, Lalonea & Satapuala, Samoa

Appellant

AND

ATTORNEY GENERAL

Respondent

Court:

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

Hearing: 30 May 2012

Counsel:

A Roma for Appellant

P Chang and L Taimalelagi for Respondent

Judgment June 2012

JUDGMENT OF THE COURT

Introduction

1. The appellant appeals against conviction for murder on 20 January 2012 following a trial before a judge and assessors. The ground of appeal advanced was that the verdict was unreasonable in that the assessors could not have reasonably excluded self defence or defence of another. We have not upheld that ground. However we have quashed the conviction and ordered a new trial because of deficiencies in the summing up.

Factual Background

2. The significant facts are not in dispute. Early in the evening of 28 January 2006 the deceased and three friends were in a taxi together. The taxi was driving in westerly direction on the main coastal road heading away from Apia. The taxi was owned and driven by one of the deceased’s friends. All or most of the occupants of the taxi had been consuming alcohol.
3. Following the taxi was a Trooper SUV driven by the appellant. In the Trooper with him were at least one woman and one or more children.
4. The appellant sought to overtake the taxi. Initially he had difficulty in doing so due to untimely acceleration by the taxi in front. When the appellant eventually managed to overtake the taxi he sideswiped it while doing so. Both vehicles continued but scratches were left on the side of the taxi.
5. 5. The appellant did not stop. The taxi gave chase. During the chase the appellant drew a 6 shot revolver and shot at the following taxi twice. One shot hit the taxi’s windscreen while the other missed. When the vehicles reached the gas station at the village of Faleula there was a collision between the rear of the Trooper and the front of the taxi.
6. The chase continued. Near the village of Malie the taxi managed to overtake the Trooper and raced ahead. In Malie the taxi stopped diagonally across the main road to form a road block. The four occupants alighted and waited for the Trooper. Rocks were picked up by one or more of their number.
7. On seeing the road block ahead the appellant did a U-turn and headed back in a easterly direction towards Apia. The four men re-entered the taxi, turned and resumed the chase. Again during the chase there were collisions between the front of the taxi and the rear of the Trooper. The appellant fired two or three further shots at, but missed, the taxi.
8. On reaching the village of Vaitele the appellant swung off the main road and headed inland with the taxi in hot pursuit. Along the road was an enclosure known as the Poloa compound. As the vehicles drew opposite the compound the taxi again collided with the Trooper. This time the Trooper was thrown onto its side with the occupants inside. The taxi stopped in the vicinity.
9. The appellant tried to climb through a broken window of the Trooper. While he was doing so the four occupants of the taxi alighted and looked for rocks on the ground. The first of the four was the deceased. He picked up a rock and ran towards the Trooper. He threw at least one rock at the appellant who was still half out of the Trooper. The rock or rocks missed.
10. The appellant managed to escape from the Trooper. As the deceased was bending down to pick up another rock, the appellant shot him fatally in the head. The appellant was standing beside his vehicle when he fired. The deceased was about 5 metres away.
11. As the other three occupants ran up, the appellant swung his gun in their direction. He ran off, scaled a fence giving access to the Poloa compound, and disappeared.

Supreme Court proceedings

12. The appellant was apprehended and charged with murder. At his trial the most significant witnesses were two of the occupants of the taxi and two bystanders.
13. One of the taxi occupants was Mataio. He supported the foregoing account of the facts. He accepted that the deceased was shot when reaching down for a second rock to throw at the appellant. The effect of his evidence was that of the collisions between the front of the taxi and the rear of the Trooper, the appellant was responsible for one that occurred on the way to Malie but the taxi driver was responsible for those on the way back from Malie.
14. The other taxi occupant, Jeffery, confirmed the above account until part way through the second chase from Malie to Vaitele. Jeffery says that at that stage he lost consciousness due to a collision between the vehicles. He did not regain consciousness properly until after the shooting. He accepted that when the taxi hit the back of the Trooper during the Mailie to Vaitele chase, it was due to the taxi continuing to speed when the Trooper slowed for a speed bump.
15. A cyclist, Siaosi Key, said that during the final stages of the chase he had followed the speeding vehicles to the scene of the shooting. He confirmed the above sequence at the scene. He recalled the deceased throwing one stone before being shot while bending to pick up another.
16. The other bystander, Aukuso, was in a car. He had followed the speeding vehicles to the scene. He too supported the above sequence at the scene, although said that it was two stones that the deceased had thrown rather than one before being shot while bending down again.
17. The appellant did not give or call evidence. His counsel did not dispute that his client had intentionally shot the deceased. Nor did he dispute that it was his client who had provoked an assault from the deceased. He submitted that the prosecution had not excluded the available defences of self defence against a provoked assault or defence of another.
18. The assessors were unpersuaded. They found the appellant guilty of murder. He was convicted and sentenced to life imprisonment.

The Appeal

19. In this Court Mr Roma submitted that the assessors’ verdict should be set aside on the ground that it was unreasonable within the meaning of that word in s 164N of the Criminal Procedure Act 1972. It was not disputed that a verdict will be unreasonable if, having regard to all the evidence, the assessors could not reasonably have been satisfied to the required standard that the accused was guilty: Mualava Ufiufi v Attorney General [2009] WSCA 13 (CA).
20. In this case the unreasonableness was said to lie in the fact that the prosecution had not excluded the available defences of self defence to a provoked assault or defence of another. The legal ingredients of those defences are found in ss 16, 19 and 20 of the Crimes Ordinance 1961. Context is given by s 15. Together those four sections provide:
    15. Self defence against unprovoked assault - (1) Everyone unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force, if the force he or she uses:

(a) Is not meant to cause death or grievous bodily harm; and

(b) Is no more than is necessary for the purpose of self defence.

(2) Everyone unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force by force although in so doing he or she causes death or grievous bodily harm, if:

(a) He or she causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purpose; and

(b) He or she believes, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm.

16. Self defence against provoked assault - Everyone who has assaulted another without justification, or has provoked an assault from that other by any blows, words or gestures, may nevertheless justify force used after the assault if:

(a) He or she used the force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked and in the belief, on reasonable grounds that it was necessary for his or her own preservation from death or grievous bodily harm; and

(b) He or she did not begin the assault with intent to kill or do grievous bodily harm and did not endeavour, at any time before the necessity for preserving himself or herself arose, to kill or do grievous bodily harm; and

(c) Before the force was used, he or she declined further conflict and quitted or retreated from it as far as was practicable.

19. Defence of person under protection - Everyone is justified in using force, in defence of the person or any one under that person’s protection, against an assault, if he or she uses no more force than is necessary to prevent the assault or the repetition of it:

PROVIDED THAT this section shall not justify the willful infliction of any hurt or mischief disproportionate to the assault that it was intended to prevent.

21. Mr Roma reviewed the evidence and submitted that reasonable assessors could not have been satisfied beyond reasonable doubt that the appellant’s actions were not committed in the lawful defence of himself and/or his family. He focused upon s 16.
22. Before turning to the detail of Mr Roma’s submissions, and those of Ms Chang in response, it will be convenient to summarise the elements involved in self defence to a provoked assault under s 16.
23. Although the full wording of s 16 must consulted, the elements critical to a case like the present one might be conveniently summarised (chronologically and seen from the accused’s perspective) as follows:
    1. Absence of intent to kill or do grievous bodily harm at the time of the accused’s own assault (s 16(b)).
    2. Declining of further conflict and quitting or retreating from it as far as is practicable (s 16©).
    3. Absence of any endeavour to kill or do grievous bodily harm at any time before the necessity for self defence arose (s 16(b)).
    4. Reasonable belief that self defence necessary for own preservation from death or grievous bodily harm (s 16(a)).
    5. No more force used than necessary (implication from s 20 and the context of s 15(b)).
24. Of those five elements, counsel’s written submissions were focused on the second to fifth. In relation to those elements it is easy to understand the force of Mr Roma’s submissions.
25. However it is the first element that requires close attention. If the appellant’s provoking assaults are taken to include the shootings, the prosecution would be able to negate the defence under s 16 if it could satisfy the assessors that at the time of those shootings the appellant intended to cause death or grievous bodily harm and was not acting in self defence, or defence of another, at the time of the shootings. Conversely, if there is a reasonable possibility that at the time of the shootings the appellant was not intending to cause death or grievous bodily harm, or alternatively was acting in self defence, or defence of another, and the other elements of s 16 were a reasonable possibility also, the appellant would be entitled to an acquittal.
26. Those aspects of the first element were factual questions for the assessors. We say nothing as to what we would have decided in relation to them. It is sufficient to say that the evidence was not so unequivocal that it would have been unreasonable for the assessors to have decided against the appellant on the first element. Consequently in this Court the appeal cannot succeed in reliance upon self defence against a provoked assault under s 16.
27. We heard no submissions in relation to the elements of defence of another under s 19. It is sufficient to say that the evidence was not so unequivocal that it would have been unreasonable for the assessors to have rejected this defence. Again we make no comment on the view we would have come to on the facts had that been our role.
28. Although that exhausts the grounds originally advanced to this Court, we had occasion to consider the summing up in the course of the hearing. The summing up raises two issues.

Summing up in relation to defence of another

29. In his closing address Mr Roma had made repeated references to self defence based on protection of the appellant’s family a well as himself.
30. In his summing up the trial judge referred to the defence case that the appellant was defending himself and his family but thereafter referred to the defence throughout as “self defence”. He did not explain that there was a distinct defence of “defence of another” with distinct legal elements. In particular he did not explain that none of the various limitations peculiar to self defence against a provoked assault under s 16 apply to defence of another under s 19.
31. Without entering into any discussion of the details, we consider that there was sufficient evidence to go to the assessors on the distinct topic of defence of another. It followed that the assessors needed to be told the legal elements of that defence.

Summing up in relation to onus of proof

32. When speaking of the elements of a justification defence it is difficult to avoid falling into the trap of reversing the onus of proof. It is easy to leave the impression that the assessors must be “satisfied” that those elements of the defence are present before the defence could succeed. Unfortunately that is a trap that the Judge fell into in this case.
33. This first arose when the Judge listed the elements which the prosecution had to prove in order to succeed in the case as a whole. The context was that the prima facie elements for murder were not contested. The sole issue was whether the prosecution had excluded self defence or defence of another. In a case turning on one or the other of those defences, it was misleading not to include them when setting out the elements which the prosecution had to prove if it were to succeed.
34. The problem became more acute when the Judge later explained the elements of self defence. He told the assessors that “you must be satisfied” of the elements. He also asked rhetorically “are you satisfied that the accused before anything occurred at Vaitele-uta declined further conflict with the men in the taxi and that the accused retreated as far as practicable”? This was the trap we referred to earlier. The assessors did not have to be satisfied on those elements before upholding one of the justification defences. The onus was on the prosecution. Unless the prosecution satisfied the assessors that one or more of the elements was lacking, the assessors had to acquit. Furthermore, absence of one or more of the elements had to be proved beyond reasonable doubt.
35. It is true that at one point towards the end of the summing up the Judge said “if you are in reasonable doubt as to whether or not he acted in self defence then likewise you must acquit”. However we do not think that that sentence alone was sufficient to repair the damage caused when the onus was inadvertently reversed on a number of occasions earlier in the summing up.
36. Taken collectively the deficiencies in the summing up were significant. We are not satisfied that they could not have resulted in any substantial miscarriage of justice for the purpose of s 164N (3) of the Criminal Procedure Act 1972.

Conclusions

37. Our conclusions are that:

(a) The evidence in support of self defence or defence of another was not so unequivocal that an acquittal in this Court is justified.

(b) The summing up did not adequately explain the elements of defence of another or the onus of proof in relation to self defence and defence of another.

38. For those reasons the appeal against conviction is allowed, the conviction quashed and a new trial ordered under s 164N(4) of the Criminal Procedure Act.
    

-------------------------------------------

Honourable Justice Baragwanath

--------------------------------------------

Honourable Justice Fisher

--------------------------------------------

Honourable Justice Galbraith