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Lam v Attorney General [2022] WSCA 5 (14 November 2022)

IN THE COURT OF APPEAL OF SAMOA
Lam v Attorney General [2022] WSCA 5 (14 November 2022)


Case name:
Lam v Attorney General


Citation:


Decision date:
14 November 2022


Parties:
KOLANI JUNIOR LAM (Appellant) v ATTORNEY GENERAL (Respondent)


Hearing date(s):
09th & 10th November 2022


File number(s):
CA 03/20


Jurisdiction:
CRIMINAL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Honourable Justice Harrison
Honourable Justice Asher
Honourable Justice Young
Honourable Justice Tuala-Warren


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal against the murder conviction is dismissed.
The appeals against the convictions for assault and attempting to defeat the course of justice are allowed, the convictions are quashed and verdicts of not guilty are entered.


Representation:
M. Goodwin & C. Chester-Cronin for the Appellant
I. Atoa for the Respondent


Catchwords:
Appeal against convictions – murder – assault – attempting to defeat the course of justice.


Words and phrases:


Legislation cited:


Cases cited:


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA


HELD AT MULINUU


KOLANI JUNIOR LAM


Appellant


v


ATTORNEY GENERAL


Respondent


Coram: Honourable Justice Harrison
Honourable Justice Asher
Honourable Justice Young
Honourable Justice Tuala-Warren


Hearing: 09th & 10th November 2022


Counsel: M. Goodwin & C. Chester-Cronin for the Appellant
I. Atoa for the Respondent


Judgment: 14th November 2022


REASONS OF THE COURT

The appeal

  1. Following a trial conducted without assessors, Justice Tuatagaloa found the appellant, Kolani Junior Lam, guilty of the murder of his wife, Justina Sa’u, assaulting Ms Sa’u’s daughter Talei and attempting to defeat the course of justice. We heard the appellant’s appeal against conviction on 9 and 10 November 2022 and delivered an oral results judgment on 14 November, upholding his conviction for murder but setting aside the convictions for assault and attempting to defeat the course of justice.
  2. We now provide our reasons.

The death of Ms Sa’u

  1. Ms Sa’u died at Sinamoga in the early hours of 21 October 2018. This was at the property where she and the appellant lived.
  2. On the prosecution case, the appellant had strangled Ms Sa’u and, in an effort to present her death as a suicide by hanging, suspended her body from a tree in the garden, cut it down and only then summoned assistance.
  3. The defence case is that Ms Sa’u did commit suicide.

The factual context

Background

  1. The appellant, Kolani Junior Lam and the late Justina Sa’u met on 2 May 2015 at a wedding. Ms Sa’u was then 39 and a widow, her first husband having died some years earlier. She and her first husband had two children, a boy and a daughter, Talei, who was born in 2005. The appellant had twin sons and two daughters by a partner with whom he had either broken up (on his evidence) or was later to break up (on the evidence his partner gave).
  2. The appellant and Ms Sa’u began living together in early 2016. This was at the appellant’s house in Sinamoga. Living there initially were also Talei and three of the appellant’s children. Ms Sa’u’s son by her first marriage was at school in New Zealand. The appellant and Ms Sa’u had two children, Julani who was born on 27 September 2016 in New Zealand and Sofia who was born on 10 October 2017. The appellant and Ms Sa’u married on 23 December 2016.
  3. There are three aspects of the family dynamics that we mention at this stage:

Circumstances surrounding the death of Ms Sa’u

  1. Talei was to spend the weekend of 20/21 October 2018 with Ms Sa’u’s family in Apolima. She left Sinamoga on Friday19 October. Those remaining in the house were the appellant, Ms Sa’u, the appellant’s twin boys by his first marriage and Julani and Sofia.
  2. In the late afternoon or early evening on Saturday 20 October, Sio Aukusitino, who lived nearby and helped out with garden maintenance and shopping, came to the property. Sio’s evidence was that this was at 4.00 pm. On the appellant’s evidence, it was later, at around 6.00 pm although he said that he and Ms Sa’u had started drinking earlier. The appellant, Ms Sa’u and Sio drank together. Later Junior Maiava (a cousin of the appellant) arrived. He brought sea urchins which Ms Sa’u cracked and put in the fridge. The appellant, Ms Sa’u, Sio and Junior continued drinking. This was mainly behind the house although Ms Sa’u also spent some time in the kitchen. Ms Sa’u sent three text messages between 7.02 pm and 7.50 pm to a close friend. They included references to catching up the following week and gave no indication of distress. Around 1.00 am, on their evidence, Sio and Junior left. The appellant in his evidence suggested it was earlier, around midnight. Both Sio and Junior said that up until the time they left there had been no unpleasantness between the appellant and Ms Sa’u. Indeed Ms Sa’u and the appellant had danced together.
  3. Ms Sa’u appears to have died sometime between 1.00 am and 2.00 am on 21 October. The 1.00 am time is derived from the evidence of Sio and Maiava as to when they left. It cannot be regarded as exact. The 2.00 am time is also approximate. We have derived it from the evidence given by those who came to the house after hearing that something had happened.
  4. The first of those to arrive at the house around or after 2.00am was Ronald Lam (the appellant’s cousin). Ronald and his wife Precious had been woken up by one of the appellant’s sons and told that something had happened to Ms Sa’u. They had the impression that she had fallen from a tree. Ronald was the first to go to the appellant’s house. When he arrived, the appellant was kneeling beside a starfruit tree behind the house. Ms Sa’u was on the ground beside him. Ronald asked the appellant what had happened and was told that Ms Sa’u was dead. Ronald was unable to rouse Ms Sa’u and could not feel a heart beat. He attempted resuscitation, something that he had been trained to perform. While he was doing so, his wife Precious arrived. She saw parts of a rope on the ground beside Ms Sa’u and hanging from the tree. She noticed that Ms Sa’u’s shoes were still on her feet.
  5. The appellant told Ronald that he wanted Ms Sa’u’s body inside. Precious removed her shoes and Ronald and the appellant’s twins carried her body inside wrapped in a sheet. They placed her in the living room. Around this time, the appellant made remarks to Precious that suggested that Ms Sa’u had committed suicide.
  6. Ronald then went to the house of his mother (Mareta Lam) and woke her up. He noticed that it was then 2.30am. He (accompanied by his mother) returned to the appellant’s house. After a further attempt by Ronald at resuscitation, Precious telephoned the hospital and then Ronald, his wife and his mother took Ms Sa’u’s body to the hospital. The appellant did not accompany his wife’s body to the hospital. He was still under the influence of alcohol and said that there was no point going as Ms Sa’u was dead and that he wished to stay behind to look after the children. Using Ms Sa’u’s mobile telephone, he rang two of Ms Sa’u’s closest friends and a cousin to whom she was very close but not her mother or Talei
  7. Upon learning of what had happened, a number of members of Ms Sa’u’s family went to the hospital where they viewed Ms Sa’u’ body. Amongst them was Anne Trevor, Ms Sa’u’s cousin. While she was there, she found an earring belonging to Ms Sa’u on the front of her dress. It was one of a pair that Ms Sa’u had been wearing on 20 October.

The rope and the tree

  1. The rope that the appellant claims Ms Sa’u used to commit suicide came from just outside the back door and near where the drinking on the night of 20 October took place
  2. The rope had been attached to a purlin which supported the eve of the house. It originally had hung down from the purlin. Meaalii Tualagi, a live-in baby-sitter, said that because Julani had been swinging on the rope she tied the loose end to the purlin. To do so placed a bucket on a table that was under the rope and stood on the bucket to reach the purlin. Ms Sa’u was approximately the same height as Meaalii. On the evidence of both Meaalii and the appellant, the rope was tied tightly to the purlin. On 20 October, Meaalii used the rope that we infer now looped down from the purlin to hold up a mop that she had just used.
  3. We do not have a measurement of the height of the purlin but the Judge saw it on a site visit during the trial. She was of the view that Ms Sa’u would have had to “stand on something high” to free the rope from the purlin and she cited Meaalii’s evidence about what was required without comment and thus with apparent approval.
  4. The tree on which part of the rope was found is reasonably close to the rear door of the house. The branch to which the rope was attached was 1.9 metres from the ground at the point of junction with the trunk of the tree and 2.3 metres at the point where we infer the rope was attached.
  5. The rope, as it was when help arrived in the early hours of the morning, was in pieces. As just indicated, one part of it was still attached to the tree. The rest of the rope was on the ground. The rope exhibit is now in three pieces. There has been no attempt to reconstruct the likely configuration of the rope prior to it being cut.
  6. The charge of attempting to defeat the course of justice relates to a discussion between the appellant and Meaalii about the rope.
  7. On a day that was identified only as being in the week after Ms Sa’u’s death, Meaalii was taken by the Police to the appellant’s house. The purpose of the visit was for her to show police officers where the rope was kept. She said that when she arrived at the house, she found the appellant there too. At the request of a police officer, she spoke to the appellant. According to her, he said that if the Police asked her about the rope, she should say that she never saw anything and that she was not in the right frame of mind (possibly a reference to a statement she had earlier made to the Police in which she had discussed the location of the rope).
  8. On the appellant’s evidence, he did, on this occasion, mention the rope but it was in the context of him saying that he did not know where it was. Because this aspect of his evidence had not been put to Meaalii by defence counsel, the Judge intervened and the appellant’s evidence of the discussion terminated.
  9. We will later revert to this incident and how it was addressed at trial.

2 November 2018 post-mortem examination

  1. Dr Paul Botterill, a forensic pathologist, carried out a post-mortem examination on 2 November 2018. We will refer later to the issues that arise in relation to his evidence but, for present purposes, it is sufficient to note that:

The earrings

  1. On 20 October 2018 Ms Sa’u was wearing a pair of earrings. As we have explained, one of these was located by her cousin Anne Trevor on at the hospital in the early hours of the morning of 21 October on the front of Ms Sa’u’s dress. The other was found by Meaalii on 21 October in the bedroom that the appellant and Ms Sa’u had shared. Meaalii said that when she went into the bedroom, she saw a white towel on the floor and another on the headboard of the bed. When she picked up the towel on the floor, the second earring flicked out of it. She put it on the dressing table.

Propensity evidence

  1. The propensity evidence called by the prosecution was to the effect that:
  2. There was associated evidence from Ms Sa’u’s executive assistant of having seen bruises on Ms Sa’u’s arms and her eyes being red and puffy as if she had been crying.
  3. Two other incidents were also relied on.
  4. The first related to a table that rocked. The evidence as recorded in translation in the transcript is that Ms Sa’u was required to hold the table “while she was sitting down” with the appellant eating at it. When the table moved, the appellant became angry and shouted. The Judge’s finding as to what happened was expressed in this way:

This conclusion was challenged by Mr Goodwin as based on a misunderstanding of the evidence. We will revert to this issue later.

  1. There was also evidence as to an incident in which the appellant had either placed his hands around the neck of Talei (on the prosecution evidence) or had held her chin in an effort to make her look at him (on the appellant’s evidence). In relation to this, the Judge’s findings as to the force applied do not beyond the appellant having held Talei’s chin. We will come back to this finding later in the context of the assault charge. For present purposes what is important is that she did not rely on this incident in respect of propensity.
  2. We note that there was a pre-trial ruling as to propensity evidence given by this Court on 19 September 2019. It addressed evidence to be given as to the assault on Talei and reasonably limited evidence in relation to Ms Sa’u, including the teapot incident (and its aftermath) and general rather than specific allegations of violence towards her. The ruling upheld the admissibility of that evidence.

The appellant’s accounts of how Ms Sa’u came to die

  1. At trial the appellant gave evidence. He had, as well, both in the immediate aftermath of her death and subsequently, explained to other people how Ms Sa’u came to die.
  2. His evidence at trial was broadly as follows. On the afternoon of Saturday 20 October, he and Ms Sa’u were both at home. They had consumed some alcohol by the time that Sio arrived and the three of them continued to socialise, drink alcohol and chat. Later in the evening Junior arrived with some sea-urchins which Ms Sa’u prepared while the three men continued to drink outside. This was near the backdoor where they sat on chairs which were on top of pieces of plywood. He said everyone was getting on well and that he and Ms Sa’u danced. Sometime after midnight Sio and Junior left and he and Ms Sa’u remained outside drinking beer and talking and, in the case of Ms Sa’u, eating sea urchins that Junior had brought.
  3. In the course of the conversation that took place between them, he asked Ms Sa’u if he was still looking good. This was reference to the extent to which he had been working out at home using weights and a punching bag. She responded with favourable comments about the build of her late husband. He said that she also mentioned something about her late husband having been a drug dealer. He told Ms Sa’u that he did not want to talk about her former husband and went inside to check the younger children. While inside he also locked the front door and went to the toilet.
  4. When after 10-15 minutes he returned outside, he saw that Ms Sa’u was not where they had been drinking but was instead hanging from the starfruit tree, with her feet touching the ground and her knees bent. He tried on a number of occasions to lift her up but every time he did so, she would drop back down (so as to be suspended again by the rope). He realised that she was dead. He tried to free the noose from her neck with his fingers but could not do so. During this time her body was moving and twisting on the rope. A scratch he had on his back was caused during this process. He called for help but was unable to rouse anyone in the house. He tried to place Ms Sa’u on a shelf beside the tree but there was insufficient length in the rope for him to able to do so safely. So, he left her hanging from the tree and ran inside to get a knife which he used to cut her down. He placed her on the ground beside the star fruit tree, went back inside to get his twins up and asked them to get assistance. He then went back to Ms Sa’u. He then realised that the noose was still around her neck. He obtained another knife and used it to cut the noose and then performed mouth to mouth resuscitation. He had not been trained in this but relied on what he had seen on television. He could not feel a pulse.
  5. Soon after this, his cousin, Ronald arrived.
  6. With some exceptions, the evidence that the appellant gave at trial was consistent with the evidence other people gave as to the explanations that he had offered to them as to how Ms Sa’u came to die.
  7. The starkest exception relates to Sio’s evidence. This was to the effect that he had a discussion with the appellant on the afternoon of 21 October in which, in response to a question as to how it had all happened, the appellant said that after he (that is Sio) and Junior Maiava had left he and Ms Sa’u went inside, ate, then went to bed where they talked for a while, she went to the bathroom several times, he (the appellant) fell asleep, later waking up to find her not there and that when he went looking for her he found her hanging from the tree.
  8. Another exception relates to whether he and Ms Sa’u had had something of a dispute about her reference to the build of her late husband before he went inside to the check the children. The evidence of the initial accounts he gave to others do not include mention of this. For instance, Meaalii said that when she spoke to the appellant sometime after 4.00am on 21 October she asked the appellant if he had had a fight with Ms Sa’u and he said he had not. There is no indication on Meaalii’s evidence of him mentioning any unpleasantness. Another witness, Talei Ah Liki said that the appellant’s account (given to her also in the early hours of 21 October) of what happened when Sio and Junior left included some discussion of Ms Sau’s former husband being a drug dealer. As well, one witness, Sola Malele said that in a discussion with the appellant on 21 October the appellant had told him of having had just such an argument (that is about Ms Sa’u mentioning the build of her late husband) but that this was on another occasion (ie not in the early hours of 21 October).
  9. As well, there were certain aspects of his eventual narrative that did not emerge until very late in the piece.
  10. The first of these relates to the rope. On the evidence of Meaalii the rope was still tied to the purlin on the morning of 20 October as she hung the mop on it to dry. The appellant had been at home all day. The appellant accepted in evidence at trial that on his narrative Ms Sa’u must have removed the rope from the purlin before using it to hang herself and this would not have been very easy. That she must have been able to do so in what was on his estimate the available 10 – 15 minutes time frame was an odd feature of his narrative. But, and with the debateable exception of what he may have said to Meaalii in relation to the incident we have already discussed (see [21] and [22] above), there was no evidence of him having mentioned where the rope had come from until he gave evidence. Indeed, Talei Ah Liki said that when she spoke to the appellant on a second occasion, around 9.30 am on 21 October, he said that he had no idea where Ms Sa’u had obtained the rope from.
  11. The second relates to the earring. In re-examination at trial, the appellant said that after he had cut Ms Sa’u down from the tree, he picked up an earring which he later put in the bedroom. He was not able to explain how it came to be on or under the white towel there. Until this point, the appellant does not appear to have offered an explanation as to the second earring. This is not significant in relation to the explanations that he gave in the aftermath of her death as there would have been no occasion to mention the earring unless asked about it. It is, however, perhaps a little surprising that he had not mentioned finding the earring either in examination in chief or when being cross-examined about the second earring.

The prosecution case

  1. The prosecution case at to the murder charge was largely circumstantial. The main components of this case were as follows:

The defence case

  1. The defence case was that Ms Sa’u committed suicide. This had not been excluded as a possibility by Dr Botterill. The appellant gave evidence in accordance with the narrative that we have already outlined. He did not, however, go into the details of how his attempts at resuscitation might have caused the injuries on Ms Sa’u’s neck.
  2. The evidence of the appellant, and more directly of his sister, based on conversations that she claimed to have had with Ms Sa’u was that she was under financial pressure and was also stressed by her job. The appellant also suggested in evidence, albeit in a reasonably vague way, that she had mentioned the possibility of death.
  3. With two exceptions – the teapot throwing incident and a slap early in their relationship – the appellant denied having used violence towards Ms Sa’u.
  4. His former partner gave evidence to say that their relationship had not been characterised by violence.

The judgment of the trial Judge

  1. The Judge was of the view that on the totality of the evidence from Dr Botterill and relating to the rope, the tree and the surroundings, and the evidence that Ms Sa’u had not expressed or manifested any suicidal thoughts or intentions and had no apparent cause to take her own life, she could rule out suicide as the ultimate cause of death. Further, she made credibility findings that:
  2. On the basis substantially of those findings, she concluded that the appellant had murdered Ms Sa’u, assaulted her daughter Talei and had attempted to pervert the course of justice.

The basis of the appeal

  1. No less than 15 grounds of appeal were advanced of which two were not pursued. Those pursued cover a range of complaints:
  2. Organising these reasons around those complaints would make for disjointed reading. We do, however, address, one way or another, each of the issues raised in what follows.

Preliminary issues associated with the appeal

  1. A number of preliminary issues were raised. As it happened most of these were able to be resolved essentially by agreement (including the grant of leave to appeal out of time). Not resolved in this way were applications to call further evidence from two doctors, Dr Ian Goodwin, an Auckland psychiatrist, and Dr Richard Collins, an Australian forensic pathologist.
  2. Dr Goodwin’s evidence was initially broad ranging but Mr Goodwin helpfully limited its scope to two subjects. The first was the possible effect of intoxication on Ms Sa’u’s decision making, with the possibility that it could have caused behavioral disinhibition and impulsivity leading to an attempt at suicide. The second was that Ms. Sa’u may have been subject to extreme or chronic stress associated with her high-pressured employment and financial commitments. This factor coupled with Ms Sa’u’s state of intoxication may have created impulsive suicidal ideation sufficient to displace the impression which she conveyed to friends and family members of enjoyment of life and family, and frequently expressed plans for a bright and exciting future.
  3. Mr Goodwin submitted that if the psychiatrist’s evidence had been admitted at trial Justice Tuatagaloa would have exercised a far greater degree of caution in interpreting the evidence of Ms. Sa’u’s family and friends and perhaps accorded greater weight to the evidence of the sister of the appellant which was to the contrary.
  4. We do not accept that submission. In rejecting the evidence of the appellant’s sister, whom Ms. Sa’u had only met twice in the three years before her death, the Judge adopted the orthodox process of comparing her account with the contrary evidence from several witnesses in whom Ms. Sa’u was more likely to confide and who knew her very well. Mr Goodwin characterized the Judge’s finding as hinging on an assumption that an individual would externalize her suicidal ideation to those closest to them. As we will explain, later, we do not think that this is what the Judge concluded. Rather she took the absence of such externalized indications as material to whether Ms. Sa’u was thinking about suicide, which we think it was.
  5. Dr Goodwin’s evidence proceeds on the premise that a person under a degree of social, employment or financial pressure may, as he states, “...rapidly develop a plan to kill themselves with an easily available plan”. This thesis is highly speculative and its application to the facts of the case relies in part on acceptance of contested evidence given by the appellant’s sister and rejected by the Judge. Further, as we have just indicated the Judge’s reasons on this aspect of the case do not rest on the assumption that it was psychologically impossible for Ms. Sa’u to have made and acted on an impulsive decision to hang herself. Against this background, we do not see the evidence of Dr Goodwin as being sufficiently material to warrant admissibility. To put this more formally, we are not satisfied that Dr Goodwin’s evidence, while credible and arguably fresh, would, if admitted have had any effect on the safety of the appellant’s conviction for murdering Ms. Sa’u[1]; or that its exclusion might give rise to any risk of a miscarriage of justice.
  6. We took a different view of Dr Collins’ evidence.
  7. In preparation for this appeal, a good deal of effort was spent explaining and exploring the reasons why the appellant did not engage an independent pathologist. We were not satisfied that any criticism can be directed at trial counsel for that situation. That said, the fact that counsel was not able, despite substantial efforts, to secure the services of a pathologist means that we must treat Dr Collins’ evidence as fresh. As well, because at least on one reading of Dr Collins’ report which was the basis of his evidence, he saw suicide by hanging as being as probable an explanation for Ms Sa’u’s death as strangulation, we saw his evidence as having the potential to be material to the outcome of the appeal; this given the significance placed by the Judge on the evidence of Dr Botterill.
  8. For those reasons, we granted the appellant’s application for leave to call Dr Collins to give further evidence and allowed cross-examination of both pathologists on their reports (including Dr Botterill’s response to Dr Collins’ report). At short notice both experts made themselves available to the Court, for which we are most grateful. This process was instructive. As a result, we have been able to form the full picture necessary to determine the substance of this part of the appellant’s case.

Steps in the reasoning of the trial Judge with which we disagree or at least doubt

  1. In excluding suicide as a reasonable possibility, the Judge expressed the view that Ms Sa’u could not have hanged herself from the branch to which part of the rope was attached.
  2. As we have noted, the evidence about the precise location on the branch of the rope is not particularly clear. But at the lowest point from which Ms Sa’u could have suspended herself the branch was 1.9 metres off the ground and at the point from which the rope appears to have been attached was 2.3 metres above the ground. The diameter of the branch was never measured and there was no scientific assessment of its load bearing capacity. As well, there was only limited evidence about the mechanics of suicidal hanging and, in particular not a great deal of discussion/explanation in the evidence as to how hanging resulting only in partial suspension is an effective means of committing suicide. As well, and importantly, the only inference that can sensibly be drawn from some of the injuries to Ms Sa’u’s neck is that she had indeed been at least partially suspended with a rope from something. There is no reason to think that it was from anything other than the branch.
  3. In the absence of evidence far more specific than what was led at trial, it was not open to the Judge to conclude that it would have been impossible for Ms Sa’u to have committed suicide by partially suspending herself from the branch, although, for reasons that we shall explain, we are of the view that, in all the circumstances, it would have been highly unlikely.
  4. In addressing the appellant’s evidence that on discovering Ms Sa’u suspended from the tree he had tried several time to make her stand up but that when he released her, she would drop back down again, the Judge observed:
  5. We are not entirely sure what the Judge meant. On the account given by the appellant, the fact (as the appellant asserted) that Ms Sa’u’s feet were touching the ground would not have been inconsistent with enough of her weight being supported by the rope to create or maintain fatal compression of her neck. If the Judge thought to the contrary, then we would respectfully disagree. However, it may be that the Judge was simply saying that a normal human reaction would have been to cut the rope.
  6. We recognise that in this part of her reasons, the Judge was addressing subsets of a story that she did not accept and. for this reason, the comments we are discussing may have been in the nature of rhetorical responses to that narrative. As well, we recognise that the branch from which the appellant maintains that Ms Sa’u hanged herself was not an obviously suitable anchor point for a rope from the point of view of a person contemplating suicide.
  7. Because of our concerns about these issues, we have scrutinised the evidence and the balance of the Judge’s reasons with considerable care. Having done so, we are satisfied that the appeal against the murder conviction should be dismissed. This is for reasons that we now explain.

Reasons for dismissing the appeal in relation to the murder conviction

Circumstantial evidence

  1. In her judgment, the trial Judge observed:
As such, I am entitled to draw inferences. An inference is a conclusion that is drawn from established facts (or from evidence that is accepted as reliable). An inference is not a guess, but rather a logical deduction from such facts. Inferences drawn from circumstantial evidence is best put by Wilson J in Police v Punaoupu Pio as follows:[2]
  1. Mr Goodwin challenged this approach. It was, however, perfectly orthodox. The is illustrated by the judgment of the New Zealand Court of Appeal in R v Guo which illustrates how the strands of a rope analogy can work in practice.[3] Thus judgment warrants brief discussion.
  2. The charges against the appellant in Guo related to allegations that he had smuggled goods into New Zealand in August and 2006 concealed in granite kitchen bench tops. His defence was that he had not been aware that illicit goods had been concealed in the bench tops and that another person, Ah Ming, had been responsible. The circumstantial evidence in issue related to an earlier shipment in May 2006 with which the appellant had also been involved but in which Ah Ming (if he existed) could have had no involvement. The argument of the appellant was that evidence of the May shipment could not be relied on unless the jury were satisfied that it involved smuggling. This argument was dealt with by the Court of Appeal in this way:
  3. In oral argument, Mr Goodwin’s submissions were very much addressed to the Judge’s assessment of the likelihood of Ms Sa’u wishing to commit suicide, an issue that we will address separately. In discussion with members of the Court, Mr Goodwin largely moved away from his challenge to what we see as the orthodox approach to circumstantial evidence and advanced what in this context – the assessment of the likelihood of Ms Sa’u wishing to commit suicide – was a related complaint that the trial Judge gave insufficient reasons for the approach that she took and in particular did not address the factors which favoured the suicide theory. We will revert to this complaint shortly.
  4. Coming back to the strands of the rope approach, in this case, there are a number of factors that when looked at in isolation are not controlling as to guilt, but when assessed in their totality may be sufficient to exclude suicide as a reasonable possibility. On the prosecution case, the most relevant of these are:
  5. Mr Goodwin’s argument that the trial Judge had erred in not considering reasonable possibilities other than murder was largely premised on an issue-by-issue approach. For instance he spent some time in his written submissions pointing out that that there were possible ways that Ms Sa’u could have committed suicide in the time available that he says were not addressed by the trial Judge. These involved:

The difficulty with this line of argument is that proof of the appellant’s guilt did not depend on a conclusion that suicide was not reasonably possible based solely on the evidence in relation to the location of the rope, the position of the tree and Ms Sa’u’s height. In play was a combination of implausibilities of (a) hanging as an explanation for her neck injuries (b) her wishing to commit suicide and deciding to do so in the early hours of 21 October 2018, and (c) her having sufficient time to do so successfully. Such factors, in their totality (particularly if supported by other factors) may be enough to exclude suicide as a reasonable possibility.

  1. An aspect of the trial Judge’s reasons that was challenged by Mr Goodwin was her view that it was unlikely that Ms Sa’u’s shoes would have remained on her feet if the appellant’s account of the steps he took to get her onto the ground was correct. In saying this she referred to her feet being dirty. We accept there are innocent and very plausible innocent explanations for why her feet may have become dirty. That, however, we agree that on the narrative given by the appellant, it is at least likely that Ms Sa’u’s slip-on shoes would have fallen off when he was trying to release the pressure on her neck and her from the tree. In any event, we see this as an inconsequential issue in the context of the case as a whole.

The probabilities as to whether as to which of strangulation or hanging was the more likely explanation of the neck compression that caused Ms Sa’u’s death.

  1. Drs Botterill and Collins agreed that the cause of Ms Sa’u’s death was neck compression. They differed only as to relative likelihood of this compression resulting from strangulation or hanging.
  2. Dr Botterill identified multiple locations of significant bruises on Ms Sa’u’s neck. Seven different bruises ran in an arc from one side to the other, in what he described as a constellation or recognizable pattern or grouping of similar injuries. He described in detail the bruising on the major anterior muscles running down both sides of Ms. Sa’u’s neck, one of which was deep; bruising to both sides of the hyoid bone; bruising and fracturing of the thyroid cartilage which protects the voice box; and bruising within the tongue muscle. In his opinion the multiplicity of the bruising on both sides of the neck, and at multiple layers, and the damage to the underlying structures of the voice box coupled with other features (such as the extent of petechial hemorrhages) pointed directly to strangulation. Their combination, extent and related features were beyond what would be expected in a hanging. In 30 years of practice, he had never encountered a death by hanging with neck injuries of this nature and degree. He could not entirely exclude that mechanism but described it as highly unlikely.
  3. At trial Dr Botterill agreed that attempts by the appellant to relieve the pressure on Ms. Sa’u’s neck by lifting her up followed by releasing her may have resulted in release and relaxation of the pressure on his neck and he accepted the possibility that a combination of this and inexpert attempts at mouth to mouth resuscitation (applied incompetently such as by trying to compress the neck) could conceivably have caused some of the injuries which had led him to favour the strangulation hypothesis. But he remained of the view that strangulation was the more likely ultimate cause of Ms. Sa’u’s death.
  4. Dr Collins was of the view that the effects of hanging, attempts by the appellant to release the pressure on Ms Sa’u’s neck and resuscitation attempts carried out by an inexperienced individual after Ms. Sa’u’s body had been cut down from the starfish tree could have contributed to the constellation of bruises in the neck muscles and damage to the larynx. And, indeed, as we have indicated, his report, at least on one reading, suggested that strangulation and hanging were equally likely to have been the ultimate cause of death.
  5. Dr Collins demonstrated the technique normally applied for mouth-to-mouth resuscitation. It involved tilting the victim’s head back for the purpose of clearing the airways, which necessarily requires the resuscitator to cup his or her hands under the victim’s chin. Both pathologists agreed that this action could possibly explain two of the bruises located by Dr Botterill - one below Ms. Sa’u’s mouth and the other in the region on the right side of her mouth. However, Dr Collins was unable to explain the presence of the seven discrete bruises located in the constellation or pattern around Ms. Sa’u’s neck other than to hypothesize that they may have been caused by hanging coupled with incompetent or inexperienced resuscitation and frequent lifting of the body prior to the cutting of the rope. His hypothesis suffered further from its reliance on the appellant’s account of events which was rejected by the Judge, from the absence of any suggestion by him that his hands touched his late wife’s neck during this alleged attempted resuscitation, and the implausibility of a resuscitator applying any let alone sufficient force to cause multiple bruising to the very region of the victim’s body which required a clear airway.
  6. Both pathologists are extremely experienced. Both said that they had never encountered a case of suicide by hanging where the deceased had injuries which, in their totality were comparable to those detected by Dr Botterill. In assessing the significance of this, it is, to our way of thinking, relevant that where people have committed suicide by hanging, attempts to release the deceased from the pressure of the noose and at resuscitation are common.
  7. At the end of the evidence, we were of the view that had Dr Collins given evidence at trial it would not have affected the outcome; this because on the combined evidence of both pathologists, the Judge would have been left with same conclusion as she reached in her judgment, namely that manual strangulation was a far more likely mechanism for the neck compression that resulted in Ms. Sa’u’s death than hanging.
  8. Against that background, the starting point for our assessment of the case is that the injuries discussed by the pathologists point to murder by strangulation as being a distinctly more likely cause of death than suicide by hanging.

Probability of Ms Sa’u wishing to commit suicide

  1. A number of witnesses expressed views as to whether Ms Sa’u was likely to commit suicide and, in doing so, rejected the possibility of her doing so in what were often very general and conclusory terms. Mr Goodwin challenged the admissibility of these conclusions.
  2. We have sympathy with this challenge. The conclusions of lay people as to whether Ms Sa’u would have committed suicide were not admissible. However, the reality is that on an issue such as this, it is difficult for lay people to maintain a distinction between their inadmissible conclusion (that suicide was not possible) and the reasons (likely to be admissible) for forming that conclusion, such as absence of any known reason for committing suicide, no previous attempts at suicide, no history of self-harming, the person’s apparent state of mind at the time and general circumstances in life.
  3. In her review of the evidence bearing on this issue, the Judge started with her conclusion:

She also explicitly rejected the evidence of the appellant’s sister of discussions she claimed to have had with Ms Sa’u in which she was said to have referred to financial problems and being overworked.

  1. In our view, the Judge properly sifted the admissible evidence that was led (bearing on what the witnesses had observed in relation to Ms Sa’u) from the inadmissible (their conclusions on whether she had committed suicide). And in the passage, we have just cited, she accurately recorded the admissible evidence.
  2. Some suicides come completely out of the blue, at least from the point of view of the family and friends of the person who has died. So, the absence of evidence as to Ms Sa’u being suicidal or having previously attempted to commit suicide and all the other evidence bearing on Ms Sa’u’s state of mind, that she had much for which to live, that she loved her children and the absence of any immediate crisis or other incident that might be likely to have prompted suicide do not exclude the possibility that she committed suicide. The absence of such evidence is, however, material to the likelihood that she did so.
  3. That this is so can be tested in this way. Assume that Ms Sa’u had had a history of self-harming behaviour, had attempted suicide previously, had spoken to family and friends about suicide, was in a state of personal crisis at the time of her death and plainly depressed. Such evidence would have supported the suicide hypothesis. The other side of the coin to this is that the absence of such evidence is also material.
  4. As noted earlier, during the hearing before us, Mr Goodwin’s argument shifted to the contention that the Judge’s approach to this issue did not adequately engage with the defence arguments. These were set out in the closing address of the defence counsel. Many of the factors relied on related directly or indirectly to the family dynamics to which we have referred or the generally busy and no doubt at times stressful life that Ms Sa’u led, with her job and business interests and responsibilities along with her heavy drinking (referred to as “demonstrated alcoholism”) and associated “sleep deprivation”. Others were flimsy, dating back more than 10 years to the death of her late husband which was followed shortly by her learning that her late husband had been unfaithful to her and the death of her father. Also relied on was her disappointment that her involvement with a business known as Word Ventures (a multi-level marketing organisation) had not produced the rewards she had hoped for. The submission noted that she was a private person who was not prone to sharing all feelings and concerns even with her closest family and friends.
  5. As well, specific mention was made of two other aspects of the evidence. The first involved something that may have been in the nature of a hallucination involving Ms Sa’u. late at night and while outside, appearing to converse with someone (perhaps her late father). The other an occasion, or occasions, on which Ms Sa’u was said to have invited the appellant to kill her.
  6. The Judge did not directly defence counsel’s arguments on this issue other than to say that the evidence about Ms Sa’u not sharing her concerns related largely to her concerns that related to the appellant’s behaviour and her relationship with him. However:
  7. As for the two other aspects of the evidence particularly relied by defence counsel, the apparent hallucination, the evidence as to this (from Meaalii and the appellant) was not particularly specific. What happened may have been associated with her drinking. The invitation to the appellant to kill her that was referred to by Meaalii in her evidence was made in the context of, and just following, an incident described by Meaalii as an assault on Ms Sa’u by the appellant involving strangulation. This evidence does not seem to us to strengthen the appellant’s case. An odd feature of the appellant’s evidence was that he claimed that Ms Sa’u had said to him, “beat me to death” on two occasions. We say “odd” because:

Practicalities of Ms Sa’u committing suicide in the time available

  1. There is an issue as to how much time was available. Doing what the appellant claimed he did when he went inside could only have taken a matter of minutes. His estimate of 10-15 minutes might be thought to be on the generous side.
  2. On the basis of the evidence as to how the rope had been tied to the purlin, it would not have been easy for Ms Sa’u to untie it. She would, as well, have had to place under the purlin something of sufficient height (perhaps a combination of a chair or bucket and the wooden shelf/table that were nearby) to put her in a position to free the rope. On the evidence she had been drinking for some nine hours (from 4.00 pm to 1.00am) and was thus unlikely to have been at her best in terms of mental acuity (relevant to working out how to free the rope), balance (relevant to creating and standing on a platform to get at the knots) and manual dexterity (relevant to releasing the rope).
  3. Having released the rope from the purlin, Ms Sa’u, on the appellant’s case had then to attach it to the tree. She would then have had to create a noose and suspend herself, at least partially. This may have required her to stand on something. As to this, there were buckets in the general vicinity of the tree on which she could have stood.
  4. The possibility of Ms Sa’u being able to remove the rope from the purlin (first having placed something under it that enabled her to reach the knot or knots), attach the rope to the tree, create a noose and then wholly or partially suspend herself for sufficiently long to die in the 10-15 minute timeframe given by the appellant cannot be excluded. It is, however, not very probable. As well, it would have been difficult to take all these steps without the appellant noticing. On our interpretation of the plan of the house, he would, on his account, have never been more than say 10 metres away from the purlin. It might be thought at least likely that an intoxicated Ms Su’a creating a platform for herself to stand on beside the backdoor, climbing on it and then freeing the rope from the purlin would have come to his attention.

Other injuries suffered by Ms Sa’u

  1. As explained, Ms Sa’u had other bruise injuries. Dr Botterill was not able to date these other than as having occurred at about the same time as death or a day or so earlier. But the appellant in his evidence said that, as far as he was concerned, those bruises were not apparent on the night of 20/21 October. If it is the case that the appellant assaulted her that night, it is likely enough that she would have received some injuries. Given the availability of innocent explanations – as possibly caused by accidents of the kind that can occur in ordinary life – the bruises do not prove murder. They are, however, consistent with it.

Significance of the earring

  1. The second earring in located in bedroom sits awkwardly with the appellant’s narrative on which, prior to Ms Sa’u hanging herself nothing occurred that would have been likely to have resulted in an earring coming off Ms Sa’u’s ear.
  2. Building on the earring found in the bedroom, the state of Ms Sa’u’s feet and some, rather limited dirt marks on her dress, the prosecution hypothesised that the appellant murdered Ms Sa’u in the bedroom and dragged her body the tree. As it happens neither pathologist saw that hypothesis as plausible, each noting the absence of the sort of abrasions and other marks on Ms Sa’u’s body that they would have expected to see if this had happened. Likewise, it is not really supported by either the state of her feet or the very limited marks on her dress. And, in any event, given the limited evidence, the hypothesis was an over-reconstruction.
  3. There was some further hypothesising before us. It was suggested that the appellant may have murdered Ms Sa’u in the bedroom and then carried her body out to the tree. There are also other possibilities. One is an assault in the bedroom and further violence elsewhere. Another is an assault somewhere other than the bedroom with Ms Sa’u going there to attend to herself, using a towel to do so, the earring coming off and lodging in towel and then the violence resuming elsewhere. As well, it is also possible that the earring may have come off entirely by accident and without the appellant having had any involvement with it.
  4. A further possibility was raised by the appellant in his evidence – that he found the second earring under the tree. Counting against this possibility is how late in the piece this explanation emerged. As well, it did not account for the earring being located in close proximity to a face towel that was on the floor of the bedroom.
  5. What is material is that the presence of earring in the bedroom is consistent with force having been applied to the upper neck in a manner not consistent with the appellant’s account of what happened. In itself, it does not establish that such force was applied; this because the possibility of an innocent explanation remains. Rather, it is just another factor that bears on the probability (or improbability) of the appellant’s narrative being true.

Propensity evidence

  1. Mr Goodwin’s complaints about this aspect of the case were largely as follows:
  2. The propensity evidence in this case served two overlapping functions. First it had explanatory value as to how the appellant and Ms Sa’u got on indicating a relationship that was at best volatile. Secondly it pointed to tendencies on the part of the appellant to argue with Ms Sa’u, at times to assault her in the course of such arguments, involving on one occasion strangulation, and for such incidents to occur in the sort of circumstances that obtained on the night of 20/21 October, that is after a drinking session. We are satisfied that the propensity evidence relied on by the prosecution was admissible on those two overlapping grounds. That some of it was not covered by the pre-trial ruling is not material. Nor, given our view that it was admissible, is it relevant that the admissibility of each aspect of the propensity evidence was not argued before the trial Judge.
  3. It is true that there was a great deal of hearsay evidence to which little objection was taken. The Judge recognised this and warned herself in relation to it, albeit primarily in terms of weight. What we think is primarily important about this is that the key factual findings that the Judge made were based on direct eye-witness evidence.
  4. As already mentioned, one of the Judge’s findings as to propensity related to Ms Sa’u being be “under” a rocking table, “being a fourth leg”, and required to keep it steady. Mr Goodwin contended that the language the Judge had used (in particular the phrase “being the fourth leg”) implied that the Judge had concluded that Ms Sa’u had been made to kneel under the table, supporting it on her back. Having checked the translation, we agree that the witness did not say that Ms Sa’u had been required to kneel under the table. Rather, what she said was that that Ms Sa’u was sitting and holding the table steady. She was not explicit as to whether this was on the floor on a chair. While it may be possible to take issue with the expression “a fourth leg” and the word “under”, we consider that the Judge’s finding was generally consistent with the description the witness gave and, in event, the incident indicated controlling behaviour.
  5. The position in relation to Meaalii – an important propensity witness – requires particular discussion. In the first of her police statements (made on 23 October 2018), she said:

A little later in the statement she referred to the teapot throwing incident.

  1. In the second statement (made on 3 November 2018) she referred to the first statement and said:

In this statement she referred to arguments between the appellant and Ms Sa’u in terms indicating that they were frequent and intense. She then went on to say:

I also saw many times when [the appellant] assaulted Sa’u, he slapped, punched her faces and collared her while Sa’u only uttered words to the effect “beat me to death, I can’t stand the slavery, I need to rest.” Sometimes he pushed her against the wall. Even if Sa’u is injured she never go to the hospital and in one of their fights [the appellant] threw Sa’u with an electric teapot and she got injured and in all those assaults Sa’u said to me not to tell anyone and I did not tell anyone, only when Talei, Sa’u’s daughter from her first husband goes to Apolima to Sa’u’s mother Sofia and tell her that’s when I told Sofia.

Other than perhaps the expression “collared her”, there was no reference in this statement to the strangulation incident about which she gave evidence. It was in this second statement that Meaalii’s account of the discussion she had with the appellant about the rope was first recorded in writing, a point to which we will return later.

  1. When taxed in cross-examination with the inconsistency between the two statements, Meaalii said that the passage we have emphasised in the quotation at [107] was a reference only to what had happened in the week prior to Ms Sa’u’s death and, more generally, any apparent inconsistencies were the result of her having been asked different questions. As to not mentioning the strangulation incident in the second statement Meaalii said that she thought that she may have mentioned it although it was not recorded
  2. In her judgment, the Judge observed:
  3. The explanation that Meaalii gave for the passage we have italicised is credible; this because: (a) that passage is in a section of her statement dealing with the events of the week preceding Ms Sa’u’s death; and (b) her discussion of the teapot throwing incident later in the statement suggests that she was not trying to say that there had never been a “dangerous commotion” between the appellant and Ms Sa’u. As to the undoubted difference in tone between the two statements, Meaalii said that at the second interview there was a Police focus on arguments between the appellant and Ms Sa’u and she was asked to talk about occasions on which the appellant had assaulted Ms Sa’u. Given that Dr Botterill’s post-mortem examination had taken place the previous day, such a change of focus (or perhaps in intensity of focus) would not be surprising.
  4. The Judge was well-placed to assess the credibility of Meaalii and we are not persuaded that we should disregard that assessment.

The credibility of the appellant’s narrative

  1. The Judge rejected the credibility of the appellant’s evidence. The particular reasons she mentioned (which were obviously not intended to be exhaustive) referred to inconsistencies between his evidence and what he had told others, particularly Sola and Sio (whose evidence the Judge accepted) of the circumstances of his last encounter with Ms Su’a, his obvious difficulty in explaining why it took as long as he claimed to check on the children, and his behaviour after Ms Sa’u’s death in relation to his explanation for not ringing Ms Sa’u’s mother and its consistency with what he had claimed to be the nature of their relationship.
  2. In closing submissions, the prosecution relied on the evidence about the appellant not ringing Ms Sa’u’s mother or Talei on the morning of 21 October, not going to the hospital and not attending the funeral as consciousness of guilt. As will be apparent, this was not the approach the Judge took. Rather, she saw it as bearing on his credibility. She was entitled to do. This is most particularly because the appellant’s explanation at trial for not ringing his mother-in-law was that he did not have her number, an explanation that cannot have been correct because the number was on Ms Sa’u’s cell-phone which he used to ring other people. And in the broader context of the case, any challenge to whether his behaviour after Ms Sa’u’s death was indicative of his relationship with her, as opposed to his unhappy relationship with her family and his emotional state at the time, is of no practical moment given that his evidence as to that relationship was convincingly contradicted by the propensity evidence that the Judge accepted.
  3. As well, there were a number of aspects to the appellant’s evidence that may have influenced the credibility finding; some peripheral, such as whether he had been in a relationship with his former partner at the time he met Ms Sa’u; some more directly relevant to the charge of murder, in particular his general denials of abuse when measured against the wealth of evidence the other way, his claimed lack of awareness as to where the rope had come from in the aftermath of Ms Sa’u’s death and the very late emergence of his claim to have found the second earring under the tree.
  4. As will be apparent, we have difficulty with two comments the Judge made earlier in her judgment about the appellant’s narrative, one as to whether Ms Sa’u could have hanged herself from the branch and the other as to why the appellant tried, as he claimed, to release the pressure on her neck. Neither, however, was mentioned when she came to explain her credibility and we do not see them as impugning her credibility finding.

Other issues raised by Mr Goodwin

  1. We have dealt, one way or another the arguments advanced to us by Mr Goodwin (and reviewed at [51], above), other than some of the complaints about the way in which the appellant was represented at trial and concerns he raised about police recording practices.
  2. We are of the view that defence counsel generally conducted the appellant’s case in competent way and such deviations as there may have been from best practice were not of a kind that would warrant allowing the appeal. In particular:
  3. We have sympathy with the complaint about police-record keeping. We will deal with an aspect of it shortly in relation to the charge of attempting to defeat the course of justice. Further, it would appear that the appellant had an injury (a scratch mark) to his shoulder but no other injuries when seen by the Police on 21 October. As it happened, photographs of him at that time were not able to be produced at trial. Further, there were plainly many interactions between the appellant and police officers in the days following Ms Sa’u’s death but records of these do not appear to have been kept.
  4. Leaving aside issues associated with the charge of attempting to defeat the course of justice that we address separately, we are not able to identify tangible prejudice to the appellant relating to the limited records maintained by the Police.

Drawing the threads together

  1. For the reasons advanced, we are satisfied that there was a strong circumstantial case against the appellant based primarily on the compelling evidence of strangulation and implausibility of hanging as the ultimate mechanism of death, the lack of evidence of Ms Sa’u wishing to commit suicide and the implausibility of her having been able to do so in the circumstances that obtained and the time available. This case was reinforced by other, non-neck, injuries she had suffered that are consistent with murder albeit capable of innocent explanation and the propensity evidence to which we have referred. It is also reinforced by the incongruity between the appellant’s narrative and the second earring being located on or under a towel in the bedroom. The he appellant’s explanation for this was incomplete (as it did not explain why the earring was on or under a towel) and came late in the piece (only in re-examination at trial). As will be apparent, we do not see the limited aspects of the Judge’s reasoning about which we have expressed doubts as warranting us departing from her general credibility assessment in respect of the evidence of the appellant.
  2. Against that background, we are not persuaded that there was a miscarriage of justice in relation to the conviction for murder.

The charge of assault

  1. The finding made by the Judge as to what happened between the appellant and Talei in relation to the alleged assault involved him holding Talei’s chin in an attempt to require Talei to look at him when he was talking to her. The level of force involved may have been minor. On the other hand, the context was not particularly satisfactory. At the time the appellant was very angry and under the influence of alcohol. He was also yelling at Talei. The Judge accepted that Talei was “so scared” that she could not breathe and therefore “felt choked”. She was also “teary eyed” to the point that “her vision got blurred”. This incident had significant consequences with Talei leaving Sinamoga and indeed going to New Zealand where she lived for some time.
  2. As Mr Goodwin pointed out, s 14 of the Infants Ordinance 1961 provides that a parent (or person in a like position) may administer reasonable physical punishment to a child. At the time of this incident, Ms Sa’u was in New Zealand and the appellant was looking after Talei. On the findings made by the Judge as to the actual level of force applied and its purpose, it is open to argument that the force applied was reasonable (even if other aspects of the appellant’s conduct were not). If so, the appellant being in loco parentis to Talei at the time, he was entitled to rely on s 14 of the Infants Ordinance.
  3. The defence of reasonable force was not addressed by the Judge; understandably because it had not been urged on her, at least explicitly. It is fair to say, however, that the closing address of defence counsel appears to have proceeded on the basis that on the defence version of this incident no crime had been committed, a view that was presumably implicitly premised on s 14. The Judge’s finding of fact seems to have come down somewhere in the middle of the two versions of what happened that had been proffered and it is certainly arguable that a s 14 defence could properly have been rejected. The fact remains, however, that there is no factual finding that squarely addresses its applicability. A reconsideration by either this Court or the Supreme Court of the merits of this charge would be disproportionate to the occasion. For this reason, we allow the appeal, quash the conviction and enter a verdict of not guilty.

The charge of attempting to defeat the course of justice

  1. A feature of the trial were the many objections taken by the prosecutor (and sometime by the Judge) to questions asked by defence counsel on the basis that the proposition embedded in the questions had not been put to other witnesses. These objections were founded on s 76 of the Evidence Act 2015.
  2. When a party wishes to lead or give evidence where the s 76 duty has not been complied with, there are a number of options available to the Judge, one of which is to allow the recall of the earlier witness.
  3. In dealing with the discussion that was at the heart of the charge of attempting to defeat the course of justice, defence counsel had not put to Meaalii the appellant’s version of that conversation. We are not sure why this was so; in particular we do not know whether it was the fault of defence counsel. If so, it may have been contributed to by the absence at that stage of the trial of a complete brief of the appellant’s evidence. But irrespective of how this situation came about, it was not appropriate to stop the appellant giving his version of the discussion when he came to give evidence. To do so was to prevent him putting forward his defence to the charge. It is not clear from the transcript that the Judge gave a formal ruling stopping the appellant elaborating on his explanation but it is apparent that his evidence relating to this aspect of the case stopped abruptly after her intervention.
  4. A second concern we have in relation to his charge relates to the informality that surrounds the recording of Meaalii’s account of the conversation. Given the significance of her understanding of what the appellant told her, this should have been recorded straight away. Instead, as it is, we do not know even the date of the discussion and, as far as we know, the first recording of her recollection was in the statement she made to the Police on 3 November 2018.
  5. We see these two aspects of the case in relation to this charge as raising issues that cast a shadow over the fairness of the process that is sufficiently substantial as to warrant allowing the appeal against this conviction, the quashing of the conviction and the entry of a verdict of not guilty in relation to this charge.

Disposition

  1. The appeal against the murder conviction is dismissed.
  2. The appeals against the convictions for assault and attempting to defeat the course of justice are allowed, the convictions are quashed and verdicts of not guilty are entered.

HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE ASHER
HONOURABLE JUSTICE YOUNG
HONOURABLE JUSTICE TUALA-WARREN

[1] Lundy v R [2013] UKPC 28 at [120]
[2] Police v Pio [1999] WSSC 50 (12 April 1999).
[3] R v Guo [2009] NZCA 612
[4] See below, at [108].

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