IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

AUSAGE MELI
of Vaitele-uta and Iva
Defendant

Counsel: F Tufuga and S Hazelman for prosecution
P Petaia for accused

Hearing: 18 January 2000
Ruling: 19 January 2000

RULING OF SAPOLU CJ

At the conclusion of the evidence for the prosecution counsel for the accused made a submission of no case to answer in respect of all the remaining charges of indecent assault against the accused. The basis of this submission is that the identification evidence adduced by the prosecution is of such an unsatisfactory quality that taken at its highest, it would not prove beyond reasonable that the accused is the person who committed the alleged offences.

Before I deal with the evidence it would be convenient to refer first to the relevant legal principles. And I start with the principles that apply generally to a submission of no case to answer or no prima facie case as it is sometimes phrased in criminal proceedings.

This Court has repeatedly adopted the principles applicable to a submission of no case to answer under English law as stated in R v Galbraith (1981) 73 Cr App R 124 which is a case on visual identification evidence. At p.127 Lord Lane CJ said:

"How then should a judge approach a submission of no case? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case. (b) Where however the Crowns evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge"

These principles, as this Court has often adopted, are applicable in Samoa with a few minor and obviously necessary modifications to an application of no case to answer in a criminal trial with a panel of assessors. For instance, 'prosecution' should be substituted for the 'Crown' and 'panel of assessors' for 'jury'. Even though the point was not referred to or argued by counsel, I take the view that the principles set out in Galbraith's case are also applicable, with the necessary modifications, to a Judge alone trial where the Judge is both the decider of law and fact.

While Galbraith's case seems to set out the principles of general application to a submission of no case to answer in a criminal trial, on the specific issue upon which the no case to answer submission is founded in this case, it is clear that if the quality of the identification evidence is poor and there is no other evidence which goes to support the correctness or accuracy of the identification, the Judge should withdraw the case from the assessors and acquit the accused. In R v Turnbull (1976) 63 Cr App R 132 which is another case of visual identification evidence, Lord Widgery CJ said at p. 138:

"When in the judgment of the trial Judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation in difficult conditions, the situation is very different. The Judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

This view expressed by Lord Widgery CJ was confirmed by the Privy Council in a judgment delivered by Lord Mustill in Daley v R [1993] 4 All ER 86 at pp 92 and 94.

In New Zealand, the Court of Appeal in a joint judgment delivered by Hardie Boys and Holland JJ in R v Waipouri [1993] 2 NZLR 410, which was a case of voice identification, said at p. 417:

"The Judge must consider carefully the quality of the evidence, for if he considers that it, together with such other evidence of identity as there is, is insufficient to satisfy reasonable jury, it is his duty to withdraw the case from the jury."

In a case of this kind where the correctness or accuracy of identification evidence is being challenged, it is also very important to bear in mind some of the observations made by Lord Widgery CJ in R v Turnbull (1976) 63 Cr App R 132 at p. 137. The first series of observations made by His Lordship are that whenever a case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused of which the defence alleges to be mistaken, the Judge should warn the jury of (or bear in mind if it is a Judge alone trial) the special need for caution before convicting the accused in reliance on the correctness of the identification. The reason for this is that it is possible for an honest or convincing witness to make a mistaken identification, and a number of honest or apparently convincing witnesses can all be mistaken. The second series of observations made by His Lordship relate to the circumstances where the identification by each witness is made. He said:

"How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance?"

These are matters which the prosecution must also bear in mind and on which evidence should be led where identification of the accused is raised and disputed.

Now counsel for the accused in this case also referred to the absence of an identification parade before the trial as a further weakness in the identification evidence that was adduced by the prosecution given the circumstances of this case. In a case where visual identification of the accused is likely to be in issue, it is highly desirable for the police to arrange an identification parade (sic) if that can be done. The usual way of ensuring that a witness has made an accurate identification is to hold an identification parade and for the witness to pick out, if possible, the person he says he had seen on the relevant occasion. The identification parade, of course, must not be arranged in such a way as to suggest or hint to the witness who the accused is. Likewise the witness should not be told who the accused is or what he looks like before he is asked to pick out the person he says he saw on the relevant occasion. Those who are interested in the subject should read Cross on Evidence (1997) 6th NZ ed para 2.32. The case of Turnbull also contains some discussion which relates to evidence of an identification parade.

I turn now to the evidence in this case. The accused, Ausage Meli, was originally charged with seven informations which allege that he committed acts of indecency on various girls between the age of 12 years and 16 years on diverse dates from November 1998 to May 1999 and one information which alleges indecency on a girl over the age of 16 years. Four of those informations were withdrawn. The remaining four informations each relates to a separate allegation of indecency on a different victim at a different time. According to the evidence of the police officer who interviewed the accused, the accused strongly denied all the accusations made against him. I will deal now with the identification evidence in relation to the remaining informations in the chronological order in which the alleged indecencies are said to have taken place.

The first incident is said to have taken place on 11 November 1998; the victim being 14 years old at the time and attending school. Her evidence in chief is that she caught a bus at Vaitele-uta at 6:00 am in the morning to come to school. There was some daylight at the time. As the bus came towards Apia someone on the seat behind her touched her breasts from behind and when she looked back this person looked away. She said that this person was the accused and she saw him again in front of the Post Office and that was the only time she saw him again after the incident on the bus.

In cross-examination, she said that she did not lodge a complaint with the police but on 29 June 1999 she was brought by the police to the Apia police station. The accused was at the police station at that time by himself. From other evidence the accused was the only person in civilian clothes in the relevant section of the Police Department at that time: the rest were police officers in uniform. A police officer then asked the victim if that was the man who touched her breasts and she replied yes.

She then said that the next time she saw the accused was in front of the Post Office in November 1999. Her evidence suggests that the next time she saw the accused after November 1999 was in Court during the present trial.

She also said in cross-examination that she knew of the accused before the alleged incident on the bus took place because the accused lives at Vaitele. However she also said in cross-examination that before the alleged incident she did not know where the accused lives.

There are several weaknesses in this identification evidence. Even though there was some daylight when this incident happened, it was at about 6:00 am in the morning. The person who touched the victim's breasts in the bus was sitting on the seat behind her and when she looked back that person looked away. The victim was also not asked as to how long she looked at this person behind her. I accept that the victim was at close quarters to this person as he was sitting on the seat behind her. But the duration of her observation is not clear given that this person looked away. Even though the victim also said that she knew of the accused before this incident as he lives at Vaitele. She also said she did not know where he lives. Her evidence as to the times she said she had seen the accused do not show that she has ever seen the accused at Vaitele. The bus on which this incident happened was travelling from Vaitele to Apia and there is no evidence to show where the bus was at the time the victim was touched from behind by a man sitting on the seat behind her. When the victim saw the accused in June 1999 in the police station and again in November 1999 in front of the Post Office, that was not at Vaitele. So there is no evidence to support what she said that she knew the accused before this incident took place because he lives at Vaitele. Add to that her evidence that she did not know before the alleged incident where the accused lives and one can not say that her identification evidence in this regard is of good quality. There is also no evidence as to how often the victim had seen the accused before this incident and over what periods of time, that is, assuming that the Court had accepted she knew him before this incident.

I do not place any weight on the identification of the accused in front of the Post Office in November 1999. The accused had already been pointed out at the police station to the victim in June. There is a real risk that her identification of the accused in November 1999 might have been influenced by the fact that the accused was pointed out to her in June in the police station. But as it will appear shortly, I find the identification in June not to be satisfactory.

The evidence of the identification in the police station is far from satisfactory. There is no evidence that the victim was asked at the police station whether she knew the accused before that time or to give a description of the man who touched her to see if it fits the accused before the accused was pointed out to her. All that she was asked by a police officer was whether this was the man who touched her breasts while the accused was by himself in the relevant office of the Police Department and the only person wearing civilian clothes. The victim replied yes. There is a real danger in such an identification because the victim could have subconsciously felt that the man pointed out to her in the police station must be the man who touched her on the bus about seven months before and therefore readily identified the accused as indeed that man. No identification parade was held and no reason was given for that omission.

In my view the identification given by the victim is not of good quality. The next step to take is to see whether there is any other evidence which goes to support the accuracy of the victim's identification. There is no such evidence. As this is also a sexual case, I should, perhaps, also point out that there was no corroborating evidence on the issue of identification. But as corroboration was not mentioned, I say no more about it.

All in all then, I have decided that there is no case to answer in respect of the information relating to the incident alleged to have taken place on 11 November 1998. That information is therefore dismissed.

In relation to the incident of indecency alleged to have taken place in March 1999, the victim was 14 years old at the material time and attending school. Her evidence was that she took a bus at Vaitele at 7:00 am in the morning to come to school. When she went into the bus she said the accused asked her to sit on the window side of the seat on which the accused was sitting. She did so. When the bus became full of passengers the accused asked her to sit on his laps while another passenger sat on the aisle side of the seat where the accused had been sitting. She said that while sitting on this person's laps she was looking outside of the bus. Then she felt this person put his hands around her middle to lower abdomen and held her tight. He also rubbed his hand gently on her right side. When the bus stopped at the Lotto Samoa at Vaitele she moved to another seat.

In cross-examination, she said that she did not know the accused prior to this incident. She then said that she used to see this person with his children at Vaitele but it is not clear whether that was before or after she saw the accused in the police station. After that she said again that the first time she saw the accused was on the date of the incident on the bus. Then later on after the Court's morning recess she said that she knew the house of the accused before she was brought by the police to the police station on 29 June 1999 as she goes to the same church as the accused and she used to see the accused and his wife go to this house after church service. She then agreed with cross-examining counsel that she was giving conflicting evidence. She also testified that when she was brought to the police station on 29 June 1999, a police officer asked her after she had made a written statement if she knew the man in the room. She did not say what was her reply, if any, to that question. Later in cross-examination she said that the accused was the only person in civilian clothes in the police station and she agreed that the police did not have several people present and to ask her to pick out who touched her on the bus.

In my view the quality of this identification evidence is not good. The evidence as to whether this victim had knowledge of the accused prior to the alleged incident is so conflicting that it would be unsafe to rely on it. The evidence in relation to what happened on the bus shows that the victim got into the bus at Vaitele and sat on the same seat with a man she now says to be the accused; she then sat on his laps. At the Lotto Samoa at Vaitele she moved to another seat. So she could not have been sitting with this man for long as she changed seats while the bus was still at Vaitele. She was also looking outside of the bus while she was sitting on this man's laps. It is also not clear if she was still looking outside of the bus when this man held his hands around her lower abdomen and rubbed his hand on her right side. There is also no evidence as to how long or how close she observed this man while sitting with him in the bus and whether she was observing him when she moved to a different seat. The bus was also full of passengers which often means in our community that a bus is overloaded with passengers. No evidence was led as to the degree of overloading in this bus but if some passengers were sitting on others as the evidence suggests, then this bus was clearly overloaded with passengers.

There is also no evidence that the victim was asked to give a description of this man whether it fits the accused before she was asked by a police officer if she knew the man in the room. The victim was also not asked to pick from a group of people, if possible, the person she said was the person who touched her on the bus.

The quality of the identification of the accused by the victim is not good. As there is no other evidence which goes to support the correctness of that identification, I find there is no case no answer in respect of the present information. It is therefore dismissed.

I turn now to the information which relates to the indecency alleged to have taken place in April 1999. The victim in this incident is 18 years of age and she is also attending school. Her evidence was that she was travelling on a bus from Vaitele to Apia. The accused who was travelling in the same bus then called to her to come and sit on his laps and she did. The man then pulled up her skirt and rubbed her legs with his left hand. She pushed off his hand. But he did the same thing again. She pushed off his hand again. Then she went and sat with another man.

In cross-examination, she said that she came to the police station in June 1999 when the police came to her. She said that at the police station, the police showed him the accused and said that is Ausage. She also said under cross-examination that she knows the accused's face well as she saw him on the bus. She also said that she saw the accused on the road one day, but she did not say whether that was before or after the accused was pointed out to her at the police station in June.

She also said under cross-examination that on the morning of the incident on the bus, she did not know this person Ausage but she saw him again yesterday, meaning the day before this trial started. I find it unsafe to rely on this identification. Even though the victim said she saw the accused on the bus in April 1999, she also said that she did not know the accused on the morning of the incident in April. The accused was also pointed out to her in June 1999 at the police station without her first being asked to give a description of the man who touched her to see if it fits the accused. There was also no identification parade.

There is also no evidence as to the nature and duration of her observation of the person who touched her inside the bus. Her evidence that she was sitting at some time on the laps of this person, when taken together with other evidence in this case, also suggests that the bus was overloaded with passengers. My clear impression from the whole of the evidence is that these early morning buses from Vaitele to Apia are usually overloaded with passengers because of children coming to school and adults coming to work in Apia.

I find that the evidence of the identification of the accused by the victim can not be said to be of good quality. As there is no other evidence which goes to support the identification of the accused by the victim, I rule that there is no case to answer in respect of the present information. It is therefore also dismissed.

I turn now to the incident of indecency which is alleged to have occurred in May 1999. The victim was born on 19 September 1986 and is attending school. In her evidence in chief she said that the alleged indecency was done to her in 1998. When she was pressed with more questions as to when this incident happened to her, she said she was not sure. When she was asked as to what class she was in at school when this incident happened, she replied she did not know. When asked what class she was in at school last year, she said Year 8. But when she was again asked if she recalled what class she was in when this incident happened, she could not recall. In re-examination when she was further questioned by counsel for the prosecution whether what happened to her took place after the incident which involved another victim in this case, she said after. This is the victim of the April 1999 incident. When further questioned whether her mother complained to the police the day after she informed her mother about this incident, she said yes.

This evidence does not inspire confidence as to when the alleged indecency actually took place, particularly as the accused strongly denied to the police the allegations made against him. This evidence suggests that this incident might have occurred in 1998 or on 28 June 1999 the day before the victim's mother lodged her complaint with the police whereas the information states that it occurred in May 1999. Between 1998 and 28 June 1999 is a period of several months. One is left with uncertainty as to when this incident actually happened.

As to what happened, the victim in her evidence said that she and her siblings caught a bus at Vaitele-uta at 6:00 am in the morning to come to school. At that time it was not too dark. When she got into the bus there were passengers sitting on the laps of other passengers, which suggests that the bus was overloaded with passengers. The accused who was inside the bus then asked her to sit on him and she did. As the bus was coming to Apia, she said she felt the accused's hand touching her lower abdomen. He then moved his hand down and touched her private part. She tried to remove his hand but could not do so. She then stood up and moved to another seat. The victim also said that she saw the accused's face clearly and could identify him if she were to see him again. She also said that she saw the accused again on the bus when she went to school, but there is no evidence as to when that happened or the circumstances in which it happened. Then on 29 June 1999 she came with her mother to the police station; that was when her mother lodged her complaint. The evidence of one of the other victims in this case was that the other victims were at the police station when this present victim was also present. There is no evidence whether the accused was also at the police station when the present victim was there.

In cross-examination, the victim said she always catches the bus to go to school before daylight. She also testified that it was only last year that she told her mother about what happened to her and her mother complained to the police. At that time she did not know the accused which suggests that at the time this incident happened to her she did not know the accused.

Looking at the evidence, it is uncertain when this incident actually happened. It was not too dark when it happened, but not clear whether it was daylight. The victim did not know the accused at the time of the incident. The bus was overloaded with passengers. She said she saw the accused's face clearly, but the duration of her observation was not clear. She saw him again on the bus, but it is not clear when and in what circumstances that happened.

There is no evidence that the victim was asked at any time before the trial to identify the person who touched her on the bus, or to give a description of that person in order to see if it fits the accused, particularly as the victim did not know the accused at the time of this incident.

After careful consideration, I have decided that the evidence of identification by the victim of the accused is not sufficiently of good quality. As there is no other evidence which goes to support that identification, I find that there is no case to answer in respect of the present information. It is therefore also dismissed.

In concluding this judgment, I wish to give a word of warning to the prosecution. Dock identification, or pointing to the accused in Court, is not a satisfactory form of identification where the witnesses purporting to identify the accused have not known him before the alleged offence.

Patu F M Sapolu
CHIEF JUSTICE