Attorney General v Tavui [2014] WSCA 3 (2 May 2014)

COURT OF APPEAL OF SAMOA

Attorney General v Tavui [2014] WSCA 3

Case name: Attorney General v Tofele Lata Tavui

Citation: [2014] WSCA 3

Decision date: 2 May 2014

Parties:
ATTORNEY GENERAL (Appellant) and TOFELE LATA TAVUI (Respondent)

Hearing date(s): 29 April 2014

File number(s): CA17/13

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: Police v Tofele Lata Tavui (Supreme Court matter)

Order:

Representation:
M T Lui for appellant
M V Peteru for respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Crimes Ordinance 1961
R v Murphy
R v Wybrow
R v Grimwood
Attorney General v Kolio

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A17/13

BETWEEN

THE ATTORNEY GENERAL

Appellant

A N D:

TOFELE LATA TAVUI

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: M T Lui for appellant

M V Peteru for respondent

Judgment: 2 May 2014

JUDGMENT OF THE COURT

Introduction

1. The respondent was charged with attempted murder, being armed with a dangerous weapon, and causing grievous bodily harm. At the conclusion of the prosecution evidence the charge of attempted murder was dismissed on the ground that there was no case to answer. The Attorney General appeals against that dismissal.

Factual background

2. The sequence of events was not in dispute. The respondent, the respondent’s wife and the complainant lived in the same house. The complainant had his own bedroom.
3. The respondent had a financial grievance against the complainant. He obtained a firearm and took it to the complainant’s room. After announcing that he was going to shoot the complainant, he fired a bullet into the complainant’s chest. The bullet entered the body near a nipple but did not strike any major organs.
4. The firearm was a single shot weapon. While the respondent was attempting to reload it his wife intervened and wrestled with him. The complainant managed to make his escape.
   

The no case ruling

5. At the trial the respondent faced charges of attempted murder, being armed with a dangerous weapon, and causing grievous bodily harm.
6. On the attempted murder charge the sole issue was whether the respondent had a murderous intent when shooting the complainant. At the conclusion of the prosecution evidence the respondent applied for a discharge on that charge.
7. In his ruling on that application Slicer J referred in some detail to the various categories of murder under the Crimes Ordinance, the test to be applied on a no case submission, and then turned to the evidence. On that subject he said:

There are two pieces of evidence here which are basically undisputed and one is that the defendant on the prosecution case fired with hostility at the upper body of the complainant and secondly, was unable to reload or was prevented from doing so either because his hands were shaking or the victim has intervened by rushing out onto the veranda. I look at those two pieces of evidence and then return to the question of what is murder and it would seem to me that unless there is clear evidence of an intent to bring about the death of the other then murder could not be made out, and although murder could be proved by (b) and (c) here a conviction solely under (a) would render the conviction itself unsafe unless prosecution had relied as they would under subsections (b) and (c).

8. From that analysis he concluded that the respondent should be discharged on the attempted murder count and directed accordingly.

Attempted murder

9. The incident in question occurred on 25 March 2013. At that time crimes in Samoa were governed by the Crimes Ordinance 1961. Although the Ordinance was repealed from 1 May 2013 by s 224 of the Crimes Act 2013, it was preserved for the purpose of commencing or completing proceedings pursuant to s 20A of the Acts Interpretation Act 1974 as amended.
10. Section 27 of the Crimes Ordinance 1961 provided as follows:

27. Attempts-(1) Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing the object, is guilty of an attempt to commit the offence intended, whether under the circumstances it was possible to commit the offence or not.

(2) The question of whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit an offence.

11. It is not disputed that in the present case the respondent had done an act for the purpose of accomplishing an object, namely the object of shooting the complainant in the chest. The act was pointing the firearm at the complainant’s chest and pulling the trigger. Nor was it disputed that that act was immediately and proximately connected with the object of shooting the complainant. The only issue was whether the object of the shooting was to commit murder.
12. Section 63 of the Crimes Ordinance includes a number of forms of murderous intent. For the purpose of a crime of attempt to murder only an actual intent to kill in terms of 63(a) will suffice. The accused must mean to cause the death of the person killed. It is not sufficient to show that the accused caused bodily harm which he knew was likely to cause death and was reckless whether death ensued or not: R v Murphy [1969] NZLR 959; R v Wybrow (1952) 35 Cr App R 141; and R v Grimwood [1962] 3 All ER 285. An attempt contemplates actual rather than constructive or notional intent.
13. It follows that on the attempted murder charge the sole issue was whether, at the time that he shot the complainant in the chest, the respondent intended to kill him. That was the factual issue when the no case application was made.

No case applications

14. The principles to be applied when an accused applies for a discharge on the grounds that there is no case to answer were addressed by this Court in Attorney General v Kolio [2008] WSCA 7 at [23] and [24]. We said this:

[23] The judge at first instance is required to ask not whether, if compelled to do so, he or she would have convicted or acquitted but whether the evidence was such that a reasonable tribunal might have convicted: Practice Note [1962] 1 All ER 445; R v Newcastle-upon-Tyne Justices ex parte Hindle [1984] 1 All ER 770, 778; Auckland City Council v Wotherspoon supra, 92. For this purpose it will not be appropriate to make credibility choices between conflicting witnesses unless the evidence of a witness is so patently absurd that it is beyond belief. At this stage of the case it is to be assumed that it will be open to the trier of fact to accept the evidence of those witnesses most favourable to the prosecution case and to reject the evidence of witnesses to the contrary.

[24] As applied to trial by jury or panel of assessors, the question is therefore whether the prosecution evidence, taken at its highest, could have properly led to a conviction by a properly directed panel of assessors: R v Galbraith (1981) 73 Cr Appeal R 124.

15. So in this case it was not appropriate for the Judge to ask himself whether there was an intent to kill. What he had to ask was whether there was evidence which, taken at its highest, could have properly led to a conviction by a properly directed panel of assessors.

Standard of review in this Court

16. In Kolio this Court also addressed the approach to be taken when a no case ruling is appealed to this Court. On that point we said this:
    11. [19] From that decision the Attorney-General has appealed under s 164L(4) of the Criminal Procedure Act 1972 which provides:

(4) Where on the trial of a person on any charge before a Judge sitting with Assessors that person is acquitted of that charge, the Attorney-General, on the ground that an error of law has occurred, may appeal to the Court of Appeal against that acquittal.’

[20] It will be noted that in a case of this kind the Attorney has no general right of appeal. He can appeal only on the ground that the judge in the court below made an error of law.

[21] Where the prosecution is given the right of appeal for error of law, “error of law” is normally confined to only three situations – (i) an error made in answering a conventional legal question arising from unchallenged facts, (ii) a positive factual finding unsupported by any evidence, or (iii) a failure to draw the only reasonably available inference from unchallenged primary facts: Nankivell v O’Donovan (1895) 13 NZLR 60, 61-62; Edwards (Inspector of Taxes) v Bairstow [1956] AC 36; Auckland City Council v Wotherspoon [1989] NZHC 705; [1990] 1 NZLR 76.

[22] There is an exception, however, where the appeal lies from the dismissal of a prosecution following a successful submission that there was no case to answer. In that situation alone the appellate court must take all the prosecution evidence at its face value unless it has been expressly rejected by the court at first instance. Within those limits, the role of the appellate court is to put itself in the place of the judge at first instance.

...

[25] It follows that on appeal we are required to put ourselves in the position of Nelson J and to ask whether, taken at its highest, the prosecution evidence could have properly led to a conviction by a properly directed panel of assessors. It will be convenient to refer to this threshold as a “prima facie case”. In answering that question we bear in mind that the respondents were said to be implicated as parties under s 23(2) of the Criminal Ordinance 1961.

17. It is therefore for us to now decide whether there was evidence which, taken at its highest, could have properly led to a conviction by a properly directed panel of assessors in this case.

Evidence as to state of mind

18. The issue we have identified was confined to the respondent’s state of mind. It is trite to say that it is rare to find direct evidence as to a person’s state of mind. In the nature of things intention is normally and necessarily a matter of inference. If an inference is to be properly drawn, it must come from the person’s conduct considered in the context of all the surrounding circumstances: Kolio at [35].
19. Whether such an inference was to be drawn was a matter for the assessors so long as there was some evidence from which they might properly draw one. As we said in Kolio at [48]:

[48] It is not for us to express a view as to whether that evidence justifies an inference that there was murderous intent. We expressly refrain from commenting on that issue. But it was pre-eminently an issue for the assessors to decide, not the trial Judge or this Court. Accordingly we accept that there was prima facie evidence to support this element.

Was there evidence capable of supporting the necessary inference in this case?

20. As the Judge himself said, in this case the evidence relevant to intent to kill included the following:

(a) The respondent fired with hostility into the chest of the complainant at point blank range; and

(b) He was attempting to reload when the complainant escaped.

21. To those factors identified by the Judge himself we would add the further evidence that:

c. The respondent was angry with the complainant over a money matter; and

d. The respondent had spent about an hour obtaining a gun with the stated purpose of shooting the complainant.

22. Whether that evidence justified an inference that the respondent meant to cause death was a matter for the assessors. It is sufficient to say that there was unquestionably evidence from which they could have drawn that inference if they were so minded.
    

Result

23. The appeal is allowed. The discharge on the charge of attempted murder is quashed and a retrial is ordered on that charge.
24. We understand that the respondent is already in custody following conviction on the other charges. However, subject to any contrary directions following an appropriate application from the parties, we make a formal order that the respondent be remanded in custody pending retrial.
    

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard