Lealaiauloto v Attorney General [2014] WSCA 7 (2 May 2014)

COURT OF APPEAL OF SAMOA

Lealaiauloto v Attorney General [2014] WSCA 7

Case name: Lealaiauloto v Attorney General

Citation: [2014] WSCA 7

Decision date: 2 May 2014

Parties: SENETENARI LEALAIAULOTO (Appellant) and ATTORNEY GENERAL (Respondent)

Hearing date(s): 29 April 2014

File number(s): CA03/14

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: Police v Senetenari Lealaiauloto and others (Supreme Court matter)

Order:
On the third ground the appeal succeeds. We quash the appellant’s conviction for murder and order that he be re-tried. He is remanded in custody until trial. Any application for bail should be made in the Supreme Court.

Representation:
I Sapolu for appellant
P Chang and R Titi for respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Crimes Ordinance 1961
Attorney-General v Kolio
R v Bouavong
NZ Court of Appeal

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A03/14

BETWEEN

SENETENARI LEALAIAULOTO

Appellant

A N D:

THE ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: I Sapolu for appellant

P Chang and R Titi for respondent

Judgment: 2 May 2014

JUDGMENT OF THE COURT

The facts

[1] The appellant and three other young men have been convicted of murder after a trial before Vaai J and assessors. He alone appeals against his conviction.

[2] The group of young men, which included a fifth man who was found at trial to have no case to answer, were walking at night accompanying a female relative to visit her husband’s family. At the village of Leulumoega they encountered the victim, Junior Tanuvasa, who was walking in the opposite direction to his home at Fasitoo-tai.

[3] The victim was drunk. He made insulting remarks directed towards the female relative which angered the young men. He also snatched the appellant’s cellphone from the appellant’s hand.

[4] The group turned around and retraced their steps to Fasitoo-tai. The victim was walking behind them. At the border of Fasitoo-tai and Leulumoega the young men stopped and waited for the victim. They were in front of the road which led to the victim’s house.

[5] When the victim arrived at the place where the young men were waiting one of them threw a punch which knocked the victim to the ground. All four of those who were convicted assaulted the victim while he was on the ground with punches. Some kicks also appear to have been delivered by one or more of the men.

[6] One of the men hit the victim several times on the head and about the face with a frangipani stick. The identity of that attacker was in dispute at the trial but it was not suggested that it was the appellant.

[7] The victim died as a result of the injuries he sustained in this brutal assault. He suffered blunt force trauma to his head. The medical evidence indicated that the most serious of the injuries were likely to have been caused by the use of the stick. They were not consistent with punching.

[8] The attack stopped only when people from the village came out and chased the attackers away.

[9] The appellant made a caution statement to the police on the morning after the incident. He was told by the police officer that he had the right to contact a lawyer to attend the interview. He was asked whether he wanted to do so but replied “No, because I don’t have money to pay for a lawyer.” He made a similar response when told of his right to have a lawyer represent him in court. The interview proceeded without a lawyer present. In the course of it the appellant admitted punching the victim twice on the face. The use of the frangipani stick by one of the other men was not mentioned.

[10] At the trial the statement was put in evidence. The appellant elected not to give evidence.

Section 23

[11] The prosecution case at trial relied throughout on both limbs of s.23 of the Crimes Ordinance 1961:

Parties to offences – (1) Everyone is a party to and guilty of an offence who:

(a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or

(c)Abets any person in the commission of the offence; or

(d) Incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was or ought to have been known to be a probable consequence of the prosecution of the common purpose.

[12] Subs (2) was mentioned in both the prosecutor’s opening and closing addresses and the judge directed the assessors on both limbs. The elements which the prosecution must establish to prove murder under subs (2) in a situation of a group attack are stated in Attorney-General v Kolio [2008] WSCA7 at paras [30] and [31] with reference to a group attack.

(a) That the accused was party to a common intention with other persons (“the group”) to assault the deceased and to assist each other in doing so;

(b) That with that intention, one or more members of the group did assault the deceased causing his death; and

(c) That the accused in question had known, or ought to have known, that an assault of more than a trivial nature could well happen.

(d) That at the time of the assault or assaults that caused the death, the assaulting member or members of the group meant to cause death or meant to cause bodily injury that he or they knew to be likely to cause death and was or were reckless whether death ensued or not (“murderous state of mind”); and

(e) That the accused in question knew or ought to have known that in assaulting the deceased the member or members of the group responsible could well have that murderous state of mind.

[13] As the New Zealand Court of Appeal has recently explained in R v Bouavong [2013] NZCA 484 at [100], there are two key points of distinction between s23 (1) and (2). The first is that subs (1) requires proof that the defendant’s conduct constitutes intentional assistance or encouragement of the offence. In contrast, liability may arise under s 23(2) even though the party may not intend the offence to occur. The second distinction is that the defendant may be found guilty of the offence under subs (2) even though he or she did not provide any assistance or encouragement in its commission. Logically, the prosecution is not required under subs (2) to prove that a secondary party to the joint criminal enterprise assisted or encouraged the crime to occur, since he or she need not desire or intend it to happen.

Grounds of appeal

[14] The grounds upon which this appeal was advanced by Ms Sapolu (who did not appear at the trial) were refined somewhat by the end of the hearing and can be summarised as follows:

(a) there was a breach of the appellant’s constitutional right to consult a legal practitioner of his choice at the time of being interviewed by the police and the appellant’s counsel therefore erred in failing to object to the production in evidence of his caution statement;

(b) Trial counsel made another error in not objecting to the editing out from a witness statement of the name of the accused (not the appellant) whom the witness said had used the frangipani stick;

(c) Trial counsel failed in her closing address to put before the assessors any defence for the appellant under subs (2) of s.23; and

(d) Trial counsel erred in failing to object to the use at the trial of photographs of the injuries to the head and face of the victim, which were said to be not sufficiently probative to outweigh their prejudicial effect on the assessors.

Defense under s.23 (2)

[15] We move immediately to the third ground – the failure to put the appellant’s defence in terms of s.23 (2) – because it is the matter which gives concern. The general tenor of the appellant’s defence was that he had been involved in the attack on the victim only to the extent of punching him. (It does seem, however, that the punch or punches which he admitted delivering were inflicted when the victim was already on the ground.) We were told that the appellant’s objective in joining in the assault on the victim was only to recover his telephone although we have not found mention of that in evidence.

[16] In her brief closing address trial counsel set out to persuade the jury that the appellant himself had no murderous intent in terms of s.63 (a) and (b) of the Crimes Ordinance. But she made no argument directed at showing that there was a reasonable doubt as to whether the appellant knew or ought to have known that the commission of murder by another of the accused was a probable consequence of their undoubted common purpose of assaulting the victim. No argument was made, for example, that the appellant was not a party to the use of the frangipani stick, ie that the attack with the stick was, so far as he was concerned, unexpectedly carried out by one of the other men, without his participation; that all he had anticipated was non-lethal blows (punches).

[17] We are obliged to say, having heard trial counsel cross-examined on this matter, that we have the impression that she either overlooked the second limb of s.23 in her conduct of the defence or did not appreciate its significance in the circumstances of the case.

[18] The trial judge did give the assessors a direction on s.23 (2) which was correct in law but, understandably because of the way in which counsel had approached the matter, did not tailor it to the particular position of the appellant.

[19] We have concluded that this failure adequately to put the defence amounts to a miscarriage of justice. It is a case where, in this respect, the appellant did not have effective representation at a critical stage of his trial. His chances of an acquittal were prejudiced because his counsel did not put any defence in terms of s.23(2). We cannot know whether the assessors found him guilty under subs (1) or subs (2). The trial judge at the hearing under s.100 of the Criminal Procedure Act 1961 thought it was probably the latter. If they did rely on subs (2), the assessors may have taken the view that, as nothing was said for the appellant about his reasonable foresight of what others might do, they could proceed on the basis that, if murderous intent was established against any of the men (in particular the one who delivered the fatal blow or blows with the stick), the appellant was to be taken to have shared a group purpose which extended to that fatal conduct.

[20] That being so, the appellant was denied the opportunity of having his case considered on a basis which might possibly have led to an acquittal and the conviction of murder cannot stand.

The other grounds

[21] We should briefly say something about the other grounds of appeal. In relation to the first ground (the admission in evidence of the appellant’s statement) we note the argument that if an arrested person is left without legal advice because he is unable to pay for it, it can be said that he has been denied his right under Art 6 (3) of the Constitution of the Independent State of Samoa to “be allowed to consult a legal practitioner of his own choice without delay”. (We assume that the appellant had been arrested before his police interview began). We are aware that the position in New Zealand is now that, under a similar guaranteed right, a person who is to be questioned is entitled to be told that he can receive immediate legal advice without having to pay for it. The lawyer who attends at the police station is paid under a state-funded legal aid scheme. But we understand that no such scheme exists in Samoa and we know nothing of the fiscal or other factors which would be involved in instituting one. For instance, we do not know whether in all parts of Samoa a lawyer would be available to attend at a police station.

[22] It is not necessary for us to say anything more on this subject, however, as the appellant chose not to challenge the admission of the statement and that decision has not been shown to be an error by trial counsel. There is a difference between the appellant and his counsel about whether he told her that what he had said in the statement was true. He now says that he told the police that he had punched the victim once only, not twice as his statement records. It is said on his behalf that trial counsel therefore should have objected to the use of the inaccurate statement by the prosecution, relying on the alleged breach of his constitutional right. However, as he was obliged to do if he were to advance this argument, the appellant has waived privilege and his trial counsel has told us that she was actually informed by the appellant that the statement was an accurate record of what he had told the police. That was why no objection was taken. We accept that the appellant did tell trial counsel that the statement was an accurate record of the interview. It is inherently unlikely that she would not have raised an objection to its use if she had been told that it incorrectly recorded what he said to the police. Plainly the further decision was then made that the appellant would not himself give evidence and that his defence would rest in part on what he had said in the statement. It was specifically mentioned by counsel in her closing submission to the assessors.

[23] That brings us to the second ground – the editing out from the witness statement of an identification of the accused who wielded the frangipani stick. If that did amount to an error of judgment on the part of trial counsel, who is said to have agreed that this be done, it can have had little impact on the result of the trial so far as the appellant is concerned because there was other evidence on that matter and it does not seem to have been suggested during the trial that it was the appellant who struck the fatal blows with the stick. The real issue was whether he knew or ought to have known that could well occur.

[24] The fourth ground has no merit. We have viewed the photographs. They are not especially gruesome and helpfully show the injuries suffered by the victim. They would have been of assistance to the pathologist in giving her evidence about the likely cause of the blunt force trauma. Their probative value clearly exceeded any prejudice to the accused.

Result

[25] On the third ground the appeal succeeds. We quash the appellant’s conviction for murder and order that he be re-tried. He is remanded in custody until trial. Any application for bail should be made in the Supreme Court.

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard