Samuelu v Attorney General [2020] WSCA 1 (5 August 2020)

IN THE COURT OF APPEAL OF SAMOA
Samuelu v Attorney General [2020] WSCA 1

Case name:	Samuelu v Attorney General
Citation:	[2020] WSCA 1
Decision date:	5 August 2020
Parties:	UIMAITUA PAPALII SAMUELU (Appellant) and ATTORNEY GENERAL (Respondent)
Hearing date(s):	3 August 2020
File number(s):	CA27/19
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Nelson
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal against conviction is dismissed.
Representation:	T Leavai for appellant L Su’a-Mailo and L Sio for respondent
Catchwords:	appeals conviction – assessor trial.
Words and phrases:	appellant convicted of murder.
Legislation cited:	Crimes Act 2013, s 99(a) and (b); Criminal Procedure Act 2016, ss. 136(4); 180(1)(a), (b), (c) and (d);
Cases cited:	Elia v Attorney General [2014] WSCA 14; Faamoe v Attorney General [2011] WSCA 5; Muaiava Ufiufi v Attorney General [2009] WSCA 13; Owen v R [2007] NZSC 102; Tei Lupe v Police [2013] WSCA 9 Ufiufi v Attorney General [2009] WSCA 13.
Summary of decision:

CA 27/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

UIMAITUA PAPALII SAMUELU

Appellant

AND

ATTORNEY GENERAL

Respondent

Court: Honourable Justice Fisher

Honourable Justice Blanchard

Honourable Justice Nelson

Hearing: 3 August 2020

Counsel: T Leavai for appellant

L Su’a-Mailo and L Sio for respondent

Judgment: 5 August 2020

JUDGMENT OF THE COURT

Introduction

1. The appellant was convicted of murder and sentenced to life imprisonment following a Supreme Court trial before a Judge and five assessors. In this Court he appeals against conviction.

Brief Facts

2. The essential sequence is not in dispute. The appellant, Tavita Mauafu (“the deceased”) and others were celebrating New Year’s Eve in the village of Sapapalii. A series of violent incidents followed. In the first, the appellant and the deceased had a fight over a beer bottle. In the second, the deceased and his friend, Moala, caused lacerations, bruises and swelling to the appellant’s face. In the third, the appellant attacked Moala with a stick and knocked him unconscious. The appellant accepts that the purpose of his attack on Moala was revenge for the injuries he had sustained at the hands of Moala and the deceased.
3. Following the attack on Moala, the appellant ran off. He was chased by some of the young men who had accompanied Moala. The appellant ran to a cousin’s house nearby. There his facial injuries were attended to. The appellant says that although he had dealt with Moala by that stage, he still needed revenge against the deceased. He picked up a kitchen knife from his cousin’s sink. He set out for the house where he knew he would find the deceased.
4. Arriving at the deceased’s house, the appellant opened the door and entered. The deceased saw him coming. A physical encounter followed between the two. The upshot was that the appellant’s knife ended up in the deceased’s neck. The appellant ran off. The wound to the neck caused the deceased’s death.
5. In his statement to the Police the appellant did not dispute those facts. He admitted that he had gone to the deceased’s house to stab the deceased because “I was angry and I wanted to go stab Tavita”. He also said that following his arrival at the deceased’s house:
   • A. I opened the door and Tavita jumped towards me and then I put the knife towards him and then left.
   • Q. Did you see where you stabbed him?
   • A. I don’t know the exact spot but all I knew was Tavita was injured from the knife attack because he fell down and I saw blood coming from his neck.
   • Q. What did you intend to do when you got there and saw Tavita?
   • A. I wanted to stab and injure him with the knife because I was also injured but I didn’t intend to kill him but I guess the action I carried went a bit too far.
6. Shown a knife recovered at the scene, he said:
   • “This is the knife I used to stab Tavita.”
7. In his evidence at trial, the appellant accepted that when he went to the deceased’s house he was extremely angry. He intended to strike the deceased as revenge for the appellant’s injuries but did not intend to kill him. The deceased lunged at the appellant with his fist. The appellant had the knife in his hand. The appellant threw up his hands in a reflex action to ward off the blow. The deceased effectively ran onto the knife.
8. The assessors evidently rejected the version the appellant gave at trial. They found the appellant guilty of murder. The Judge did not exercise her veto power. She convicted the appellant and sentenced him to life imprisonment.

The Appeal

9. In this Court Ms Leavai advanced the following grounds of appeal:
   • (i) The verdict of the Assessors is unreasonable or cannot be supported having regard to the evidence provided before Court;
   • (ii) There was a miscarriage of justice when the Appellant was convicted of murder given the evidence provided before Court;
   • (iii) The conviction was against the weight of the evidence and Her Honour erred in law by concurring with the Assessors despite that there was an element of reasonable doubt with the evidence; and
   • (iv) 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
10. There are legal difficulties in advancing the grounds of appeal in this way. The effect of the Criminal Procedure Act 2016 is that the only legally possible grounds for an appeal against the verdict of assessors are those contained in s 180(1):
    • (a) that the verdict of the assessors should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
    • (b) that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or
    • (c) that on any ground there was a miscarriage of justice; or
    • (d) that the trial was a nullity.
11. Of those statutory possibilities, it is not suggested that this case involved a wrong decision on a question of law (s 180(1)(b)) or that the trial was a nullity (s 180(1)(d)). That leaves only s 180(1)(a) and s 180(1)(c).
12. As to s 180(1)(a), a verdict is unreasonable only if, having regard to all the evidence, reasonable assessors could not have been satisfied beyond reasonable doubt that the appellant was guilty.^[1] And a verdict cannot be challenged on the ground that it was insupportable on the evidence if there was creditable evidence capable of supporting a finding of guilty. This Court will therefore intervene under s 180(1)(a) if, but only if, reasonable assessors ought to have entertained a reasonable doubt as to the guilt of the appellant. It would not be enough for this Court to simply disagree with their verdict.^[2]
13. We have set out the legal test under s 180(1)(a) only because the second, third and fourth grounds of appeal in this case represent common but doomed attempts to add to or modify the unreasonable/unsupported test under s 180(1)(a). For example the popular argument that the conviction was “against the weight of the evidence” has never been recognised as a legal ground of appeal. An appeal against an assessors’ verdict is not a fresh hearing on the merits. If counsel recognised this it would save them a great deal of time and trouble traversing evidence afresh in this Court. We are not free to substitute our own view for that of the assessors unless - and in practice this is relatively uncommon - the requirements of s.180(1)(a) are met.
14. The formal grounds of appeal advanced in this case were all confined to the adequacy of the trial evidence. However in the course of argument it became clear that Ms Leavai also challenged an aspect of the Judge’s summing up. An error or omission in a summing up properly falls within s 180(1)(c) if it might have caused a miscarriage of justice. We treat this as a distinct ground of appeal in the present case.
15. The only two questions remaining in this appeal are therefore (i) whether the verdict is unreasonable or cannot be supported having regard to the evidence and (ii) whether there may have been a miscarriage of justice due to an error or omission in the summing up.

Was the verdict unreasonable or unsupported by the evidence?

16. We have already outlined the undisputed facts. Ms Leavai submitted that the assessors ought to have found a reasonable doubt on two essential elements of the prosecution case:
    • (i) that the appellant had done something that caused the deceased’s death; and
    • (ii) that when he did so he intended to kill or had murderous intent.
17. As we understood it, submission (i) was that there was a reasonable doubt whether the appellant had done something that caused the deceased’s death. We cannot reconcile that with the agreed sequence of events. It is not disputed that the death was due to the appellant’s knife entering the deceased’s neck. Nor was it was disputed that the knife was in the appellant’s hand when it entered the deceased’s neck. Ms Leavai disclaimed the suggestion from the bench that the appellant might have been immobile when the deceased ran onto the knife. The effect of her submission was that the deceased lunged at the appellant; that the appellant threw up his hands as a reflex response to the deceased’s attack; and that it was bad luck that the appellant happened to be holding a knife when he reacted in that way.
18. However involuntary and unintended the appellant’s action may have been, Ms Leavai’s submission seems to us to entail an action on the appellant’s part causing the knife to enter the deceased’s neck. The overall submission on this point appears to confuse the action taken by the appellant (the actus reus) with his mental state at the time (the mens rea). It is beyond argument that it was the appellant’s action that caused the death.
19. As to point (ii), and the appellant’s mental state, Ms Leavai submitted that in throwing up his hands the appellant did not intend to either kill or to injure knowing that it was likely to cause death and being reckless whether death ensued or not (“murderous intent”).^[3] The question is whether there was evidence on which the assessors could have reasonably found it to be established beyond reasonable doubt that the appellant either intended to kill or had the necessary murderous intent.
20. On that subject the following evidence was available to the assessors:
    • (a) The appellant admitted that he had taken a knife to the deceased’s house intending to stab him in revenge for the appellant’s injuries.
    • (b) In his statement to the police (the admissibility of which he did not challenge) the appellant made no reference to a reflex action to ward off the deceased. Instead he said “I wanted to stab and injure him with the knife because I was also injured but I didn’t intent to kill him but I guess the action I carried went a bit too far” and “This is the knife I used to stab Tavita”.
    • (c) The tip of the knife was curved and blunt. The evidence of the pathologist was that it would require great force to penetrate the neck in the way that occurred. He considered that the injury being caused by the deceased running into the knife was “not impossible but highly unlikely”.
    • (d) Earlier on the same night the appellant had used a large stick to knock Moala unconscious by way of revenge for the injuries Moala and the deceased had caused. It would be consistent with that frame of mind for the appellant to then seek violent revenge against the deceased.
21. It was open to the assessors to accept that evidence, and to reject the version given by the appellant at trial, if they chose to do so. It was also open to the assessors to infer from that evidence that the appellant intended to kill or to injure knowing that it was likely to cause death and being reckless whether death ensued or not.
22. In those circumstances it could not be said that the verdict of the assessors was unreasonable or unsupported by available evidence. The same applies to the decision of the Judge not to interfere with the assessors’ verdict in the exercise of her power to do so under s 136(4) of the Criminal Procedure Act 2016.
23. This ground of appeal fails.

Error in the summing up

24. Although not advanced as a formal ground of appeal, Ms Leavai included the following in her submissions:
25. “The trial judge didn’t address one legal point regarding the mental intent of the Appellant at the material time the alleged assault on the deceased’s neck was incurred ... The Appellant’s intent at the time he went looking for Tavita was to cause him harm. However, when he entered the house and Tavita jumped at him with fists, any intent to cause Tavita harm disappeared, in its place was an intent to defend himself from being harmed by Tavita.”
26. This submission appears to conflate two distinct concepts. One is the level of intention required before there could be a conviction for murder. The other is self-defence.
27. As to the intention element for murder, the Judge said this in her summing up:
    • Now then the third element, when we talk about intention, it is seldom possible to have direct evidence of what is going on in the accused mind. Of what you are able to do, you are able to infer from their action and surrounding circumstances. And then you look at those actions of those circumstances and you say did he have the intention to kill Tavita. Or did he have the intention to cause an injury to Tavita that he knew would result in death and he was reckless whether that was the result.^[4]
28. Although dealt with economically, it cannot be said that the Judge failed to correctly direct the assessors on the intent that would be required before they could find the appellant guilty of murder.
29. Self defence is a different concept altogether. Self defence does not arise unless and until the trier of fact has already decided against the accused on the intention necessary for murder (or assault in the case of manslaughter). If that intention is found to be present, the trier of fact can in some cases move on to the further question whether, notwithstanding that intention, the prosecution has excluded the possibility that the accused was acting in self defence.
30. However self defence was never relevant to the deliberations of the assessors in this case. For understandable reasons, the trial judge did not allow that defence to go to the jury. She said in her summing up:
    • “Now in this case the accused in his evidence suggested that he acted in defence of himself. As a matter of law I must direct you that self defence is not available for you to consider. It cannot be said as a matter of law that he acted in self defence.”
31. The appellant has not challenged the Judge’s ruling on that point.
32. This ground of appeal is also dismissed.

Result

33. The appeal against conviction is dismissed.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE NELSON

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^[1] Muaiava Ufiufi v Attorney General [2009] WSCA 13 and Tei Lupe v Police [2013] WSCA 9 following Owen v R [2007] NZSC 102.

^[2] Ufiufi v Attorney General [2009] WSCA 13; Faamoe v Attorney General [2011] WSCA 5; Elia v Attorney General [2014] WSCA 14.
^[3] Crimes Act 2013, s 99(a) and (b).
^[4] The transcript provided to us records the end of this sentence in the nonsensical terms “... he knew would result ended. And he was reckless whether the result”. In this Court counsel accepted that what was transcribed as “ended” was actually “in death”. It also seems reasonable to assume that it was all one sentence and that it included the words “that was”.