Police v Ah Sui - Ruling 2 [1999] WSSC 37 (16 September 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TIAPUA IOAKIMO AH SUI, VALA TULI @
MIKAELE TULI, FEILOAIMAUSO UTUELI GALI,
KONELIO SUIA @ KONELIO ASOMAU SELI,
all from Vailele
Defendants

Counsel: Ms M. Tuatagaloa & Ms S. Hazelman for the Prosecution
Ms K. Sapolu for Defendant - Tiapua Ioakimo Ah Sui
Mr V.C. Nelson for defendant - Konelio Suia @ Konelio Asomau

Hearing Date: 8,9,10,11,14,15 & 16 September 1999
Date: 16 September 1999

RULING OF NO CASE TO ANSWER BY WILSON J

THE FACTS

It was the Prosecution Case (in this manslaughter trial of two accused) that four men kicked, punched and beat the alleged victim with sticks. Several witnesses saw the beating or the aftermath thereof, but none of them purported to identify either accused as one of the four and none of them claimed to have seen, any specific blow struck by the accused.

A post mortem report was not admitted in evidence because there was no "chain evidence", as it is often called, to identify the body examined by the pathologist, who undertook the post mortem examination and who purported to express an opinion as the cause of death, as being the body of the injured person said to have been assaulted and taken to the hospital.

THE COMMISSION OF A CRIME AND THE LAW OF COMPLICITY (SECONDARY PARTICIPATION)

Any crime may be committed by one person alone (who actually commit the offence) or by two or more people acting together (who together actually commit the offence) (see s. 23(1)(a) of the Crimes Ordinance 1961 - this is, implication, the allegation here).

A crime may also be committed by a person who aids, abets, incites, counsels or procures another to commit a crime (see s 23(1)(b)(c) and (d), but that is not the allegation in the information here). A crime may also be committed by two or more persons when they "form a common intention to prosecute an unlawful purpose and to assist each other therein" and when one of them commits the offence "in the prosecution of the common purpose" and when "the commission of that offence was or ought to have been known to be a probable consequence of the common purpose" (see s.23(2), but that too is not the allegation in the information here). Those two or more people or both or all (as the case may be) are guilty of the crime regardless of what part each played in its commission.

THE CRIME CHARGED HERE - MANSLAUGHTER

The crime charged here is that each accused committed the crime of manslaughter, the allegation being, in effect, that ether one or the other of the two accused unlawfully assaulted the deceased by means of a punch or kick or blow with a stick thereby causing the death of the deceased and thereby actually committed the offence OR that they together did all that is needed to constitute the crime of manslaughter, viz. that they together and at the same time kicked or punched or struck the deceased with a stick so as, by that one and same blow, they together caused the death of the deceased and thereby actually committed the offence (see s. 23(1)(a) and the wording of the information, which implies that either one or other of the two accused alone or they both together committed the offence of manslaughter). So it is that the crime of manslaughter as charged may be committed the offence of manslaughter as charged may be committed by one person alone or by two or more people acting together, but they must be acting together in the sense as is understood in the law of complicity.

HOW THE PROSECUTION PUTS ITS CASE HERE

So it is that the way in which the Prosecution puts its case against each accused in this trial is that one or other of the two accused committed the crime of manslaughter they together did all that was needed to constitute the crime of manslaughter.

PROOF OF AIDING, INCITING etc. NOT PART OF COURT'S RESPONSIBILITY

It is not part of this Court's responsibility to decide whether it has been proved that either or both accused aided, abetted, incited, counselled or procured any person or persons to commit the crime of manslaughter. It is, likewise, not part of this Court's responsibility to decide whether it has been proved that two more persons formed a common intention to prosecute an unlawful purpose and to assist each other therein or whether it has been proved that the offence of manslaughter was committed in the prosecution of that common purpose or whether the commission of that offence was or ought to have been known to be probable consequence of the common purpose.

ESSENTIAL ELEMENTS OF MANSLAUGHTER

In the circumstances of this trial the essential elements of the crime charged in the information are:-

(1) that one or other of the accused actual did, or that together they did, the act of assault upon the victim,

(2) that the act of assault was unlawful, and

(3) that the act of assault was a substantial cause of the death of the victim.

MEANING OF CAUSE

"Cause", for this purpose, means something immediately and directly connected with the death, something operating to result directly in the death, something substantially resulting in the death [see R v Hallett (1969) SASR 141].

ALTERNATIVES OPEN TO THE DEFENCE TO TERMINATE PREMATURELY A CRIMINAL TRIAL

At the end of the prosecution case in a criminal trial an accused person has the opportunity to have the trial brought to an immediate or early termination by -

(1) submitting that there is no case to answer, which submissions, if successful, will lead to a directed verdict of acquittal (commonly called "the No Case to Answer submission" [see May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654 and R v Galbraith (1981) 2 All ER 1060];

or

(2) submitting that evidence should be withdrawn from the assessors or jury, as the case may be, with a directed verdict of acquittal to follow (now called "the Doney submission" [see Doney v R [1990] HCA 51; (1990) 171 CLR 207,and see also R v Galbraith (1981) 2 All E.R. 1060 and discussions of the largely disapproved "unsafe and unsatisfactory submission"], or

(3) applying for a Prasad invitation [see R v Prasad (1979) 23 SASR 161; R v Pahuja (1987) 49 SASR 191; and Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657].

TESTS TO BE APPLIED FOR NO CASE SUBMISSION, DONEY SUBMISSION AND PRASAD INVITATION

The test in (1) is whether the defendant on the evidence as it stands could lawfully be convicted or whether the evidence is capable of leading to a lawful conviction.

The test in (2) is whether there is a defect in the evidence (for instance, following the withdrawal of identification evidence ruled to be inadmissible such that, taken at its highest, it will not sustain a verdict of guilty).

The test in (3) [to be applied sparingly] is whether the evidence is insufficiently cogent to justify a verdict of guilty or where the prosecution witnesses have been patently unsatisfactory.

DEFENCE SUBMISSIONS

At the end of the prosecution case in this trial, Ms Sapolu, counsel for the accused Ioakimo, and Mr V.C. Nelson, counsel for the accused Konelio, submitted inter alia that neither of their clients had a case to answer in that there was no evidence of the cause of death of the deceased and, by implication, that there was no evidence to the effect that any act of assault, let alone any act of assault of one or other or both of their clients, was a substantial cause of the death of the deceased.

PROSECUTION RESPONSE

Ms Tuatagaloa, for the prosecution, in answer to these submissions was not able to point to any evidence proving (or tending to prove) the causation element. Indeed, even if the post mortem report had been ruled to be admissible and had been received in evidence, the statement of opinion contained therein to the effect that the cause of death of the person body was the subject of a post mortem examination was "subarachnoid haemorrhage of the brain as a result of the head injuries [multiple bruises with swelling of the forehead, left and right eyes, right jaw - scattered areas of contusions (on the head)]" would not have provided prosecution with proof that any specific act of assault of one or other or both of the two accused was a substantial cause the death of the person whose body was the subject of the post mortem examination. There was simply no evidence of what each of the four persons, who was said to have participated in the beating of the man who was said to be the deceased, did.

What counsel may have said in an opening address to the assessors is not (and cannot be) evidence. Mr Tuatagaloa's valiant submission, relying upon what Ms Sapolu and Mr Nelson said in their respective opening addresses, is without force and effect and does not fill what was clearly a gap in the prosecution evidence.

THE RULING

I rule NO CASE TO ANSWER in the case of each accused. There will be directed verdicts of acquittal.

HIS HONOUR SAID THE ASSESSORS:

Ladies and gentlemen assessors, yesterday the two defence counsel each made a submission to me, as the trial judge, upon a matter of law.

I now indicate, in a formal way and, in your presence and in the presence of the public, that I have upheld the submissions of each of Ms Sapolu and Mr Nelson for each accused respectively. I now need to say something to you, ladies and gentlemen, which is of some importance, and I ask you to give me your careful attention.

The prosecution has closed its case. That means that no further evidence will be placed before you by the prosecution. Each accused has submitted that means that each accused, through his counsel, has urged me to find that, on the evidence as it stands, he could not lawfully be convicted as charged, that is to say, that there is insufficient evidence or that there is a gap in the evidence. I have upheld each of these submissions.

On the evidence as it stands (and no more is to be placed before you by the prosecution) I have reached the conclusion that the evidence is not capable of leading to the inference of guilt, and that the accused could not be lawfully convicted. I have upheld the submissions of the defence lawyers. The reasons for my decision are, I anticipate, understood by the lawyers involved in this case, and, perhaps even by the accused themselves.

So that you might understand a little of the reasoning behind such a decision, I remind you that the two accused were charged with manslaughter. The crime of manslaughter is committed by a man when he does the act of assault upon the victim, when the act of assault is unlawful and when the act of assault s a substantial cause of the death of victim.

There are three essential elements (or ingredients) of a charge of manslaughter are:-

(1) that one or other of the accused actually did, or that together they did, the act of assault upon the victim,

(2) that the act of assault was unlawful, and

(3) that the act of assault was a substantial cause of the death of the victim.

The crucial aspects of the evidence in this trial at this stage are whether there is any or sufficient evidence that any act of assault either accused or one or other of them or both together was a substantial cause of the victim's death.

I tell you that there is no evidence before you of the causation element of the crime of manslaughter (the third element), there is no evidence as to what caused the death of the victim, and no evidence that the accused or both accused together had been a substantial cause of the death of the victim.

Out of respect for you, ladies and gentlemen, and the role that each of you has to play in a criminal trial, I have given you this explanation. I direct you, as a matter of law, that there must be a verdict of not guilty entered in respect of each accused faces.

Because of this lack of proof, and because I have upheld the no case submission, I direct you as a matter of law that there must be a verdict of not guilty entered in respect of each accused.

I repeat that you are bound to follow my direction. I will ask you to indicate to me individually by saying "Yes" that you will follow my direction and find each accused not guilty.

UNANIMOUS VERDICT OF NOT GUILTY IN RELATION TO EACH ACCUSED

Both accused discharged.

JUSTICE WILSON