Apaau v Attorney General [2014] WSCA 13 (7 November 2014)

COURT OF APPEAL OF SAMOA
Apaau and Leiataua v Attorney General [2014] WSCA 13

Case name:	Apaau and Leiataua v Attorney General
Citation:	[2014] WSCA 13
Decision date:	7 November 2014
Parties:	LOI APAAU and TALITONU LEIATAUA (Appellants) THE ATTORNEY GENERAL (Respondent)
Hearing date(s):	3 November 2014
File number(s):	CA 16/14
Jurisdiction:	Criminal
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu His Honour Justice Slicer His Honour Justice Blanchard
On appeal from:
Order:	- Appeals allowed against conviction and quashed the conviction. - Did not order a re-trial.
Representation:	F K Ainu’u for the first named appellant R V Papalii for the second named appellant P Chang and L Su’a-Mailo for the respondent
Catchwords:	appealed against convictions - acquitted of murder but found guilty of manslaughter – acquitted of manslaughter - shared unlawful purpose of assaulting- insufficient evidence – conviction quashed
Words and phrases:	“conviction” -“quashed”
Legislation cited:	Criminal Procedure Act 1972, s.164N(1)(a) Crimes Act 2013, ss.33(1) and (2)
Cases cited:	Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 (NZSC) R v Munro [2007] NZHC 684; [2008] 1 NZLR 87
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO: CA 16/14

BETWEEN

LOI APAAU and TALITONU LEIATAUA
Appellants

A N D

ATTORNEY GENERAL
Respondent

Coram: Honourable Chief Justice Sapolu

Honourable Justice Fisher

Honourable Justice Blanchard

Counsel: F K Ainu’u for the first named appellant

R V Papalii for the second named appellant

P Chang and L Su’a-Mailo for the respondent

Hearing: 3 November 2014

Judgment: 7 November 2014

JUDGMENT OF THE COURT

Introduction

1. At the end of the hearing, we announced that the appeals succeeded. We now give our reasons.
2. The two appellants, Loi Apaau and Talatonu Leiataua, together with a third man, Elisita Peniata, were charged with the murder of Afioga Tuimaunei Sio. We will use their Christian names as was done at the trial. Elisita was found by the assessors to be guilty of neither murder nor manslaughter. Loi and Talatonu were acquitted of murder but found guilty of manslaughter. We will refer to them together as the appellants.
3. The Attorney-General appealed against the sentences imposed on them. Loi and Talatonu then appealed against their convictions. In view of the result of their appeals it has not been necessary to consider the sentence appeals.
4. The primary ground of appeal, as refined in oral argument, was that the verdict of the assessors was unreasonable: s.164N(1)(a) Criminal Procedure Act 1972. The now settled test of that is whether a verdict is unreasonable because the jury (in Samoa, the assessors) could not, having regard to all the evidence, have been satisfied beyond reasonable doubt that the appellant was guilty: Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 (NZSC) at [17]. That requires the appeal court to carefully scrutinise all the evidence, approaching that task in accordance with the following principles stated by the New Zealand Court of Appeal in R v Munro [2007] NZHC 684; [2008] 1 NZLR 87 and affirmed in Owen at [13].

(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c) The weight to be given to individual pieces of evidence is essentially a jury function.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f) An appellant who invokes s 385(1)(a) [in Samoa s.164N(1)(a)] must recognize that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

5. The issue which emerged in this Court in applying these principles was how the guilty verdicts could be reconciled with the evidence of the forensic pathologist called by the prosecution, Dr. Garavan, who had examined the body of the deceased. We make the preliminary comment that it would have been better if his evidence had been called after that of the eye witnesses to the fatal incident so that he could have been asked to respond to matters emerging during the prosecution case. But we understand that it is often not possible to do this for practical reasons.

The evidence

6. We now summarise the evidence. The incident occurred at a party in the early hours of 13 October 2013. Those involved in the violence had been drinking heavily. The party was in one of two closely adjacent houses owned or occupied by Peniata Peniata and his wife, Mareta, who are relatives of Elisita. Both of them gave evidence. Elisita, Loi and Talatonu did not, but their caution statements were placed in evidence.
7. There are some differences in the accounts of Peniata and his wife. Mareta, who had not been drinking, had gone to bed in the other of the two houses. She woke up at 4:30 a.m. and observed what was happening from a room in the house where she had slept, which was very close to the party house. She said that Loi and the victim, Afioga, were fighting, and Elisita intervened to stop the fight. Obviously, at this stage of events, it cannot be said that Loi and Elisita had any common purpose toward Afioga, nor is it suggested that Afioga sustained at that time any injury. Afioga then inflamed matters by throwing a glass at Elisita, hitting him in the face and causing a small cut on his ear. Elisita and Afioga then exchanged punches and, as a result of a punch from Elisita, Afioga fell down. It is common ground that he never got up again. Mareta testified that Afioga was not moving and was snoring – something that all three accused also said in their caution statements. Mareta also said that Afioga had knocked his head on some bricks when he fell down but under cross-examination said she was not sure about this.
8. In his evidence, Peniata said that Afioga had been punched by Elisita and had fallen down under the chair that Peniata was sitting on. It seems that he did not see the punch but immediately afterwards was told by Elisita of what he had done. Peniata described how Loi and Talatonu had punched and kicked Afioga, on the ground, in the face (“towards the neck”). He denied that Afioga’s head had struck the bricks. He had pushed Elisita into a chair before Loi punched and kicked Afioga. It was put to him that his wife had said that Elisita had punched Afioga twice. He said that was wrong. He too said that Afioga was snoring while he lay on the ground.
9. In his caution statement Loi said Afioga had challenged him to a fight and Elisita had stood up to make Afioga sit down. Afioga then “punched” Elisita with a glass. Loi claimed that it was he who had punched Afioga to the ground but this does not square with the accounts given by the other witnesses and it must be remembered that Loi was very drunk. He said he had punched Afioga, on the ground, three times but had not kicked him.
10. Talatonu said in his caution statement that he did not know if he had done anything to Afioga.
11. Elisita said in his caution statement that Afioga had “punched” him and “I blacked out and the next thing I knew when I arrived is he was on the ground.” After that he went to the tap.
12. The pathologist, Dr Garavan, gave evidence that the cause of death was subarachnoid haemorraging from blunt force and neck trauma that had torn an artery in the deceased’s neck. The injuries were consistent with multiple blows (likely to have been more than four) from punching or kicking. He said that the injury to the right side of Afioga’s neck was “unlikely” to have been caused by a single blow.
13. Dr Garavan said that a scenario where the deceased had fallen “with an extended neck” onto a brick was “possible but it does not change the cause of death; it gives haemorrage due to blunt force trauma of the head and neck.”
14. Then followed this exchange:
    • “Papalii just picking up from what my colleague question you on, if a person was seeing in the beginning administering a very heavy blow on that part of the neck causing the person fall down hitting his head on the brick would that have caused the injury that you saw on the part of the neck, just one heavy blow?

Wit to the right side?
Papalii yes.
Wit yes, this is quite common, in forensic pathology recorded Saturday night bro...injury, classic example is two people get into an argument, males and then it’s a single punch landed, the victim’s neck is this position on expecting the punch to fall down.
Papalii death would have been very rapid if that was the ideal scenario?
Wit definitely dead before hit the ground.
Papalii and if the deceased in this case was seen as soon as that blow was administered he fell down onto the concrete brick and he snooze off thereafter would that be symptom of the effects of the blow and death?
Wit yes counsel the typical history is single blow fall down and not moving.
Papalii what about fluid coming from the mouth at that very stage or that time?
Wit that’s what we call agonal event.”

15. Dr Garavan never had directly put to him the fact that witnesses had heard Afioga snoring when he was on the ground but in view of his clear finding that the cause of death was bleeding from a torn artery as a consequence of blunt force injury to the neck it has to be assumed that the snoring was consistent with such an injury. It indicates that Afioga’s death was not immediate. He was found to be dead on arrival at the hospital.

Discussion

16. Looking at the evidence as a whole, it seems to us that it was established that Afioga was rendered unconscious on the ground by a punch from Elisita before either of the appellants became involved in inflicting significant violence upon him. It is true that Loi told the police that he knocked Afioga down but he was very drunk at the time of the incident and his statement to that effect is contradicted by Mareta who says she saw the punch and by Peniata who in the immediate aftermath was told by Elisita what he had done. Elisita’s caution statement is unhelpful as he claimed to have been unconscious when Afioga was knocked to the ground. He had good reason not to want to admit to punching Afioga.
17. The evidence of the pathologist, especially the passage which we have quoted, expresses the opinion that a single punch to the neck of a victim could cause death (“the typical history is a single blow fall down and not moving”). While Dr Garavan seems to have thought it more likely that the injury to the right side of Afioga’s neck was caused by multiple blows he was clearly accepting that it was possible for one punch to do so.
18. Therefore, notwithstanding the skill with which Ms Chang sought to uphold the verdicts, we are of the view that the assessors could not reasonably have excluded the possibility that the death of Afioga was caused by a punch struck by Elisita, whether death resulted from a blow he struck to Afioga’s neck or from the impact of his neck striking the bricks when he fell, though the latter seems, on the whole of the evidence, to be less likely.
19. Elisita was, of course, acquitted by the assessors. He was thus held not to have committed the crime of manslaughter and it follows that the appellants cannot be convicted of having aided or abetted him to commit that crime under s.33(1) of the Crimes Act 2013.
20. Likewise, if it cannot reasonably be excluded that the death was cause directly or indirectly by Elisita’s punch, neither appellant could properly be found guilty under s.33(2) of the offence of manslaughter committed in the carrying into effect of a shared unlawful purpose of assaulting Afioga. This is, firstly, again because Elisita, who struck what was possibly the fatal blow, was acquitted of manslaughter, so it must be taken that no such crime could have been committed in the course of any common purpose involving him and, secondly, because, in any event, there was simply insufficient evidence that the appellants shared any common purpose with Elisita until after Afioga was on the ground.
21. For these reasons we allowed the appeals against conviction and quashed the convictions. We did not order a re-trial.
    

Honourable Chief Justice Sapolu

Honourable Justice Fisher

Honourable Justice Blanchard