Police v Nauer [2002] WSSC 10 (27 May 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

ADOLF NAUER of Vaiusu-uta and Tapatapao,
LISA SIANINI of Vaiusu-uta and Tapatapao,
LAKI NAUER of Vaiusu-uta and Tapatapao,
ROPATI NAUER of Tapatapao,
PINO NAUER of Tapatapao and Togafuafua and
FELILA NAUER of Tapatapao.
Defendants

Counsel: D Potoi and F Vaai Hoglund for prosecution
TK Enari for first accused Adolf Nauer
R Drake for second and sixth accused Lisa Sianini and Ferila Nauer
A Roma for third and fifth accused Laki Nauer and Pino Nauer
Fourth accused Ropati Nauer absconded from jurisdiction

Hearing: 14, 15 May 2002
Judgment: 27 May 2002

JUDGMENT OF SAPOLU CJ

The prosecution had preferred a number of informations against the accused. Some of those informations were withdrawn leaving only four informations. All the accused are jointly charged in three of those four remaining informations. The sixth accused, Ferila Nauer, is separately charged in the fourth information. The fourth accused, Ropati Nauer, has absconded from the jurisdiction, so he is not standing trial in these proceedings. A warrant is out for his arrest.

Informations

In the first information, the accused are jointly charged under s.38 of the Crimes Ordinance 1961 with conspiracy to defeat the course of justice. It is alleged in that information that at Tapatapao between the 10^th and 18^th day of September 2000, the accused conspired to defeat the course of justice by hiding Tiana Lemau, a female of Tiavea and Fugalei, in order to prevent her from giving evidence as a witness for the prosecution in the trial of the charge of manslaughter against the accused Ropati Nauer which was to be held on the 11^th and 12^th day of September 2000.

In the second information, the accused are jointly charged under s.26(1) of the Crimes Ordinance 1961 as accessories after the fact. It is alleged in that information that at Tapatapao between the 10^th and the 18^th day of September 2000, the accused actively suppressed evidence against the accused Ropati Nauer on a charge of manslaughter by hiding the prosecution witness Tiana Lemau, a female of Tiavea and Fugalei.

In the third information, the accused are jointly charged under ss23(2) and 26(1) of the Crimes Ordinance 1961 with having a common intention to prosecute an unlawful purpose and to assist each other therein. It is stated in that information that at Tapatapao between the 10^th and the 18^th day of September 2000, the accused formed a common intention to prosecute an unlawful purpose, namely, actively suppressing evidence against the accused Ropati Nauer and to assist each other therein, by hiding the prosecution witness Tiana Lemau, a female of Tiavea and Fugalei, to prevent her from giving evidence in the trial of the charge of manslaughter against the accused Ropati Nauer, thereby committing the crime of accessory after the fact, and the commission of that offence was known or ought to have been know to the accused to be a probable consequence of the prosecution of their common purpose.

In the fourth information, the sixth accused Ferila Nauer is separately charged under s.10(2) of the Police Offences Ordinance 1961 with having willfully given false information to a police officer to mislead him in the execution of his duty. It is alleged in that information that at Tapatapao on the 12^th day of September 2000, the accused willfully gave false information, namely, “I do not know Tiana and she did not come here”. (Ou te leiloa se Tiana, e lei sau foi iinei Tiana), to senior sergeant Douglas Fereti with the intent to mislead him in the execution of his duty.

Before proceeding further, I want to note here that Tiana Lemau is now 19 years of age. So she must have been 17 years of age at the time of the events in 2000 from which the present charges have risen.

Evidence

The trial of the accused Ropati Nauer on the charge of manslaughter was set to commence before Vaai J on Monday, the 11^th day of September 2000, taking two days. In the morning of the trial, Tiana Lemau (Tiana) did not turn up. As she was the main witness for the prosecution and her evidence was crucial to the case for the prosecution, the prosecution could not proceed without her. Consequently, the prosecution withdrew the charge against Ropati Nauer. The police then went out to look for Tiana. Under s.35 of the Criminal Procedure Act 1972, the withdrawal of an information will not operate as a bar to further proceedings against the accused in respect of the same offence with which he has been charged.

It is from the non-appearance of Tiana at the manslaughter trial of Ropati Nauer which was scheduled for hearing on the 11^th and 12^th of September 2000 that the present charges have arisen. In determining whether the accused are liable to the charges, the circumstances of what occurred need to be set out in detail. Those circumstances were given mainly in the evidence of Tiana herself.

On Thursday, the 7^th of September 2000, Tiana came with her sister Elena to Court where they met with the accused Lisa Sianini (Lisa) and Ropati Nauer. Lisa is a sister in law of Ropati Nauer. The evidence suggests that Tiana did not know Lisa but her sister Elena might have known Lisa. The accused Lisa then told Tiana that Ropati Nauer did not want her to come to Court but to go to Aleisa. Ropati Nauer then said to Lisa for her, Tiana and her sister Elena to go and wait at Tapatapao and he would come later. Ropati Nauer also told Tiana and her sister that he would given them some produce to take for their family on Friday, which was the next day.
The accused Lisa, then left with Tiana and her sister Elena for Tapatapao which is where all the accused live. At Tapatapao, Lisa told Tiana and her sister to wait for Ropati Nauer to come and give them some money the amont being $300. Soo all three slept at Tapatapao on Thursday night. Ropati Nauer did not give Tiana and her sister any money that night. On the following morning, Friday, the 8^th of September, Ropati Nauer gave some produce to Tiana and her sister which they brought with them to the family of their relative Palepa Taiao (Palepa) with whom they were staying at Fugalei. At that time Lisa told them, she would come on Sunday and seek permission to take them out.

On Sunday, the 10^th Sepember, Lisa went to Fugalei and asked Palepa if Tiana and Elena could spend the Sunday with her. Palepa refused and told Lisa that Tiana was required as a witness in a Court case on Monday. After further discussion between Palepa and Lisa, and Lisa having assured Palepa that Tiana will be returned the same evening. Palepa agreed to let Tiana and Elena go with Lisa.

From Fugalei, Lisa took Tiana and her sister Elena to Vaiusu at a house where she and her husband, the accused Laki Nauer, a brother of the accused Ropati Nauer, stay at times. When they arrived at Vaiusu, Laki Nauer was there. Whilst at Vaiusu, Lisa told Tiana and her sister Elena to go with her to Tapatapao and then return in the evening. They then left for Tapatapao in a vehicle which was driven by the accused Adolf Nauer (Adolf) who is also a brother of Ropati Nauer and brother in law of Lisa. The vehicle stopped in front of the house of Adolf Nauer and his wife Ferila Nauer (Ferila) at Tapatapao. Lisa, Tiana and Elena came out of the vehicle and went to the cooking house just behind the main house whilst Adolf went to the main house where his wife, the accused Ferila, had already got dressed to go to church. Adolf also got dressed and then left for church with his wife. When they returned from church Lisa, Tiana and Elena were no longer at the cooking house. From the evidence, particularly the evidence of Adolf, it is clear that Ferila did see Tiana when she arrived that Sunday at Tapatapao.

Not long after Adolf and his wife Ferila left for church, the accused Ropati Nauer whose trial for manslaughter was to commence the next day, Monday, the 11^th of September, came to where Lisa, Tiana and Elena were and told them to wait at Tapatapao until after the case was finished on Monday. Elena protested saying they had to come to Court for the case as the police had come and seen them (herself and Tiana) about the case. Ropati Nauer insisted that they waited at Tapatapao until after the case and then he will drop them off at their home. All that which was said by Ropati Nauer was said while Lisa was present. It was getting dark at the time. Elena then walked to the road and left Tapatapao while her sister Tiana was still at Tapatapao.

Ropati Nauer then also left and after a short while he came back in a vehicle. Shortly afterwards, the accused Pino Nauer (Pino) who lives at Ropati Nauer’s house and a cousin of Ropati Nauer, came to where Lisa and Tiana were. Lisa, Pino and Ropati Nauer then conversed in front of Laki’s house and after a short while Lisa called out to Tiana to come, Ropati Nauer and Pino will drop her off. They got into a vehicle which was a pick-up vehicle. Instead of Tiana being dropped off at her place at Fugalei, the vehicle was driven inland by Ropati Nauer to an uninhabited house at his cabbage garden. Ropati Nauer then said to Lisa and Tiana that they were to sleep there and after Lisa and Tiana entered the house, he locked the door. Not long afterwards, someone sent by Ropati Nauer came with food for Lisa and Tiana. That night, Tiana said to Lisa that she wanted to come to Court for the trial the following morning. Lisa replied that they will go to the house of one Dave Parker who has a vehicle to bring his children to school and Tiana will come in that vehicle.

On the following morning Monday, the 11^th September 2000, when the trial of Ropati Nauer on the charge of manslaughter was to commence, instead of Tiana being taken to the house of Dave Parker to catch a lift to Apia, Lisa and Pino took her to the house of the witness Tupu Mano Pereira (Tupu). This witness is a neighbour of the Nauers at Tapatapao. He exhibited some reluctance in the witness stand to testify, repeatedly saying he had made a statement to the police about this matter. I accept that part of his evidence where he said that Lisa and Tiana did come to his house on Monday 11^th of September, but disbelieve that part of his evidence where he said Lisa and Tiana came to his house at about 2pm in the afternoon but they did not stay for long. I accept the evidence given by Tiana that Lisa and Pino took her to the house of Tupu on Monday in the morning and she and Lisa stayed there the whole day with Lisa giving her assurances to wait there, a car will come and take her back to her home.

In the evening of the same day, Pino picked up Lisa and Tiana from Tupu’s house and took them to the house of a relative of the Nauer’s who lives at Tapatapao but is not involved in this case. At that house, Pino told Lisa and Tiana to wait there while he went to ask Ropati Nauer as to what had happened to his Court case. When Pino returned, he told Lisa and Tiana that Ropati Nauer was not at his house, but the police had come to look for Tiana whilst she was at the house of Tupu. He then said to Lisa and Tiana to go early the following morning to the house of the witness Isaia Vaafusuaga and to stay there in case the police came to look for Tiana again. Senior sergeant Douglas Fereti and constable Lawrence Talamaivao who were called by the prosecution to testify in this case, confirmed that after the charge of manslaughter was withdrawn against the accused Ropati Nauer, the police went with Elena, the sister of Tiana, to the house of Ropati Nauer at Tapatapao to look for Tiana. They did not find Tiana that day but only the wife of Ropati Nauer who told them Tiana was not there.

Early the following morning, Tuesday, the 12^th of September, before 6am, Lisa told Tiana to go with her to the house of the witness Isaia Vaafusuaga (Isaia). When they arrived there, Maria, the wife of Isaia, asked Lisa why they were there at her house. According to the evidence of Tiana, Lisa replied they were coming to stay there as the police were looking for Tiana for a Court case. According to the evidence of Maria who was also called by the prosecution in this case, Lisa replied to her that they were there to hide Tiana as the police were looking for Tiana for a Court case. Maria also testified that she told Lisa that she did not want Tiana to be hidden in her house as she did not want to become involved. I accept both the evidence of Tiana and the witness Maria on this part of the case.

Later the same day, Pino came and picked up Lisa and Tiana from Isaia’s house and told them to go and hide at Dave Parker’s land as the police were coming back to look for Tiana. Lisa and Tiana then went to the land of Dave Parker. In the evening, Lisa told Tiana to go back as the police must have left.

Senior sergeant Douglas Fereti and constable Lawrence Talamaivao also testified in their evidence that the police did return to Tapatapao on Tuesday, the 12^th of September, to look for Tiana. The police went to the same house where they had found the wife of Ropati Nauer the previous day. They found the accused Ferila there and asked her whether she had any idea of the whereabouts of Tiana. Ferila replied, she did not know Tiana and Tiana had not come there.

As Lisa and Tiana were returning from Dave Parker’s land that evening, they met up with Pino who said the police had left. Pino then told Lisa and Tiana to go and wait at the house of the witness Tupu. When later in the same evening Pino joined Lisa and Tiana at Tupu’s house, Pino told them that Ropati Nauer had said to him that his case had been withdrawn. Pino, Lisa and Tiana then left for the house of Ropati Nauer and when they got there only Laki was there but there was no sign of Ropati Nauer. Laki then said to Lisa and Tiana that Ropati Nauer had told him (Laki) that his case had been cancelled. Lisa, Tiana, Pino and Ropati all slept that night at the house of Ropati Nauer.

On Wednesday and Thursday, the 13^th and 14^th of September, Tiana stayed with Lisa, her husband Laki, and their children at the house of Ropati Nauer. On Thursday night, Ropati Nauer brought them some food and then disappeared again.

On Friday, the 15^th of September, Lisa and Laki instructed Tiana to stay behind at Tapatapao and look after the children while they came to sell cabbages at the market. In reply to a question from one of the defence counsel, Tiana said she could not escape at that time when Lisa and Laki came to the market as she had no money for her fare.

On Saturday, the 16^th of September, Lisa and Laki again came to sell cabbages at the market while Tiana was told to stay behind at Tapatapao to look after the children. In the evening, Lisa came with Ferila and another sister in law, Mele. Lisa then said to Tiana that she (Lisa) did not want her to continue staying with them at the house of Ropati Nauer as the police had been looking for her (Tiana) at the market that day and the police might find her (Tiana) in the same house of Ropati Nauer. Lisa further told Tiana that she was to go and stay with her brother in law and his wife Ferila and on Monday she (Tiana) would go back to her family. Ferila then accompanied Tiana to her house and Tiana slept there that night. It is clear Tiana had served her purpose for her “captors” and she was in the process of being released to go.

Counsel for the accused Adolf during his cross-examination of Tiana obtained from her an answer that the wife of Ropati Nauer was angry at Tiana on Saturday night. When counsel further asked Tiana whether that was the reason for her going to sleep on Saturday night at Ferila’s house, she replied that Lisa had told her to go and sleep there. This was also the same time that Lisa told Tiana she would go back to her family on Monday. In his submissions, counsel for the accused Adolf also stressed that the reason Tiana was taken to the house of Ferila and her husband Adolf on Saturday night was because the wife of Ropati Nauer was angry with her.

I do not accept that was the real reason Tiana was taken to the house of Ferila and Adolf on Saturday night. Why should the wife of Ropati Nauer be angry with Tiana? She had all the reasons in the world to be thankful to Tiana for not appearing at her husband’s trial which resulted in the charge of manslaughter against him being withdrawn. There is also no shred of evidence to show that Tiana had done anything to make the wife of Ropati Nauer angry with her. The anger shown by Ropati Nauer’s wife was clearly part of a ploy to get rid of Tiana from Tapatapao as she had served her purpose for Mrs Ropati Nauer’s husband. Lisa had already told Tiana the same evening that she was to go and sleep at the house of Ferila and Adolf and on Monday she would go home. The reason given by Lisa that the police were looking for Tiana at the market that day is a lie and is also part of the same ploy to get rid of Tiana from Tapatapao as she had served the purpose for which she was hidden at Tapatapao. It is just unbelievable that after hiding Tiana at Tapatapao from the police for six days, the Nauers would be willing to let go of her if it is true that the police were still looking for Tiana on Saturday the 16^th of September. The police officers who testified in this case that they looked for Tiana on Monday and Tuesday, the 11^th and 12^th of September, also did not say anything that the police were looking for Tiana at the market on Saturday.

Now on Sunday, the 17^th of September, Tiana stayed with Ferila and her husband Adolf the whole day. In the evening, they went in a vehicle driven by Adolf to drop off Ferila and Adolf’s children with Ferila’s mother at Tulaele. There is a conflict here whether Adolf told Tiana on that Sunday she could go and stay with some relatives of the Nauers at Alamagoto. Tiana said Adolf did say that to her but Adolf strongly denied it. I am not prepared to find one way or the other on this factual point. On the same Sunday evening, Ferila gave Tiana $40- for her fare to her family and to buy something.

Then on Monday, the 18^th of September, Adolf dropped Tiana off at Matautu-uta at 6.45am in the morning and gave her $20 for her bus fare to Tiavea. This coincided with what Lisa had told Tiana at the house of Ropati Nauer on the previous Saturday evening, that she would go and stay at the house of Ferila and her husband and on Monday, she would go to her family.

Only the accused Adolf was called to testify in this case. He said that on Sunday evening, which would be the 10^th of September, his brother Laki, the husband of Lisa, came in a jeep vehicle which belonged to their brother Ropati Nauer and asked him to drop him (Laki) off at Vaiusu. As he was about to leave after dropping off Laki at Vaiusu, Lisa and the girls arrived, and Lisa said to him they were going to Tapatapao to bring the school uniforms for her children. So they went with him in Ropati Nauer’s vehicle to Tapatapao. They went straight to the house of Adolf and Ferila. At that time Ferila was dressed up to go to church. Adolf then walked to the main house where Ferila was while Lisa and the girls walked to the cooking house at the back, which is hardly a place one would expect to obtain any school uniform from. Shortly afterwards, Adolf and Ferila left for church and when they returned home later that night, Lisa and the girls were no longer at their house. The next time this accused saw Tiana again was on the following Saturday evening, the 17^th of September, when she was brought to his house.

It is also clear from the evidence of this accused that his wife Ferila saw Tiana when they arrived at their place on Sunday evening. The vehicle stopped in front of the house which is an open house without curtain windows. Lisa, Tiana and her sister Elena then came out of the vehicle and walked to the cooking house. So it could not have been difficult for Ferila to see Tiana. Even without Adolf’s evidence that his wife Ferila saw Tiana upon her arrival, I was prepared to draw the inference that Ferila saw Tiana when she arrived at Tapatapao on Sunday. Counsel for Ferila also did not contend otherwise.

I will turn now to consider the evidence in the light of the law that is applicable to each of the charges.

Conspiracy to defeat the course of justice

Section 38 of the Crimes Ordinance 1961 provides:

“Everyone is liable to imprisonment for a term not exceeding 3 years who conspires or attempts to obstruct, prevent, pervert, or defeat the course of justice in any cause or matter, civil or criminal.”

Counsel for both the prosecution and the defence relied on the decision of the New Zealand Court of Appeal in R v Gemmell [1985] 2 NZLR 740 in their submissions on the charge of conspiracy to defeat the course of justice. I wish to issue a caution about the application of that case and the authorities cited in it to a charge of conspiracy to defeat the course of justice. Gemmell was not concerned with a charge of conspiracy to defeat the course of justice. It was concerned with a charge of conspiracy under s.310 of the New Zealand Crimes Act 1961 which makes it an offence to conspire to commit an offence. The offence the accused were charged with having conspired to commit in that case was aggravated robbery under s235(1)(c). The provision of the New Zealand Crimes Act 1961 for the offence of conspiracy to defeat the course of justice is s116 and that provision was not in issue in Gemmell. Consequently, the pronouncements made by the Court in Gemmell were made with ss310 and 235(1)(c) in mind; s116 was not mentioned. We also do not have a provision in our Crimes Ordinance 1961 like s.310 of the New Zealand legislation.

At p.743 of its decision in Gemmell, the New Zealand Court of Appeal pointed out:

“The only conspiracy which is a crime in this country is a conspiracy to commit a statutory offence ‘or to do, or omit.... anything of which the doing or omission in New Zealand would be an offence....’ as s310 of the Crimes Act 1961 puts it.”

Thus the kind of conspiracy the Court was dealing with in Gemmell was a conspiracy to commit a statutory offence, which in that case was aggravated robbery. As with conspiracy to defeat the course of justice, there is no offence known to our law as “to defeat the course of justice” and we do not have a provision like s310 of the New Zealand Act which makes it an offence to conspire to commit an offence. The offence as a whole is “conspiracy to defeat the course of justice”. So what is said in Gemmell about the definition of a conspiracy being an agreement between two or more persons to commit an unlawful act which is an offence, while it was accurately appropriate to that case, would not, in my opinion, apply to this case. To think otherwise, would be tantamount to saying that there is an offence of “conspiracy to conspire to defeat the course of justice.” But we do not have such an offence in our Crimes Ordinance 1961. Provided such awareness is kept in mind, a cautious application of what is said in Gemmell will still provide useful guidance to understanding what constitutes a conspiratorial agreement for the purpose of a charge of conspiracy to defeat the course of justice.

In my opinion the offence of conspiracy to defeat the course of justice consists of two elements which have to be proved by the prosecution. The first element is that there must have been between the conspirators an agreement whose object is defeat the course of justice. Such object of a conspiratorial agreement is referred to in some of the case law as the conspirators’ common design. Mere intention in the minds of the conspirators without more will not be sufficient. Their intentions to defeat the course of justice have to be translated into an agreement. The agreement is the actus reus of the offence and is the essence of the offence. The second element is that the conspirators must have had the intention to carry out their agreement. But the agreement need not be actually carried out. It is sufficient if the conspirators intended to carry it out.

In the decision of the High Court of Australia in R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, Brennan and Toohey JJ state at p 282 of their joint judgment:

“To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such effect.”

Substitute the word “defeat” for the word “pervert” and that passage will apply to this case.

In R v Gemmell [1985] 2 NZLR 740, McMullin J in delivering the judgment of the Court state at p 743:

“A criminal conspiracy.... consists in an intention which is common to the minds of the conspirators and the manifestation of that intention by mutual consultation and agreement among them. It is of the essence of a conspiratorial agreement that there must be not only an intention to agree but also a common design to commit some offence, that is, to put the design into effect.”

At p 744, McMullin J goes on to say:

“To return to the traditional nomenclature of the criminal law, the mens rea is the intention of the conspirator to achieve the common design and his mind must go with the apparent manifestation of his intent. The actus reus of the offence of conspiracy is the agreement which has a common design. The actus reus does not exist in mere formulation of an intention in the minds of two or more persons to commit a crime; there must be an agreement to which that intention is translated.”

As to proof, because a criminal conspiracy is nearly always formulated in secret and the conspiratorial agreement is rarely reduced to writing, direct evidence of such agreement is rarely available. Proof of the agreement in nearly every case therefore depends on evidence of what the conspirators say or do and the inferences to be drawn from them. But the statements and acts by the conspirators do not constitute the offence. It is the agreement proved from those acts and statements which constitutes the offence. As stated by Brennan and Toohey JJ in Rogerson at p 281:

“Although acts done in pursuance of an apparent agreement often furnish the evidentiary foundation for inferring that a criminal conspiracy was formed, those acts are not themselves elements of the offence”.

In Gemmell, McMullin J says at pp 744-745:

“It is necessary only to add that because direct evidence of the making of the agreement and its nature and terms is rarely available, proof will almost always depend upon evidence of acts or declarations by person alleged to be parties to the conspiracy or the inferences to be drawn from them. But we emphasise that it is not the acts which constitute the conspiracy; they are only the evidence from which the agreement may be inferred.”

As for the words “course of justice” used in the offence of conspiracy to defeat the course of justice, there is no doubt that a trial which is pending after an accused is charged with a criminal offence is within the scope of the words “course of justice”. An act by any person of detaining a witness to prevent him from giving evidence at the trial so that the accused cannot be convicted, will be an act done to defeat the course of justice. In Rogerson Mason CJ states at p 276:

“The course of justice begins with the filing or issue of process invoking the jurisdiction of a Court or judicial tribunal or the taking of a step that marks the commencement of a criminal trial”

And at pp 303-304, McHugh J states:

“It follows for the purpose of the offence of perverting the course of justice, the course of justice does not commence in criminal proceedings until the laying of an information against or the arrest of an accused person.”

Even though Rogerson was concerned with the offence of conspiracy to pervert the course of justice, in my judgment, the passage, cited would also apply to the meaning of “course of justice” in the offence of conspiracy to defeat the course of justice.

Applying these statements of legal principles to the evidence, I am satisfied that there was a conspiracy to defeat the course of justice in this case. That conspiracy took the form of an agreement to lure Tiana to Tapatapao where the accused live and to detain her at Tapatapao so that she could not give evidence against the accused Ropati Nauer at his trial on a criminal charge, thus making it impossible for the prosecution to secure a conviction against him. The existence of such an agreement can be readily inferred from the evidence given of the acts done and the words used by Lisa and Ropati Nauer to lure Tiana to Tapatapao and then their joint actions with Pino in detaining Tiana at Tapatapao to prevent her from giving evidence against Ropati Nauer at his trial and then hiding her from the police. Lisa, Ropati Nauer and Pino were clearly parties to that agreement whose object was to defeat the course of justice.

I am also satisfied on the evidence that the accused Laki was a party to the same agreement. It would be just unbelievable that he was not aware of all the actions taken by his wife Lisa to assist his brother Ropati Nauer with his trial. It is also clear from the evidence that when Lisa and Tiana returned from Dave Parker’s land on Tuesday evening, the 12^th of September, they found Laki at the house of his brother Ropati Nauer and Laki said to Lisa and Tiana that Ropati Nauer had told him that his case had been cancelled. Laki and Lisa then stayed with Tiana at the house of Ropati Nauer from Tuesday evening to Saturday evening, and when Laki and Lisa came to sell cabbages at the market on Friday and Saturday, they made Tiana stay behind at Tapatapao to look after their children instead of bringing Tiana with them to her family at Fugalei where the market is. I have no hesitation in drawing the inference from the evidence that Laki was also a party to the same criminal conspiracy as his wife, his brother Ropati Nauer and his cousin Pino.

As to the accused Ferila, I am satisfied she was also party to the same criminal conspiracy. What she told the police on Tuesday, the 12^th of September, that she did not know Tiana and that Tiana had not come there, when the police came to Tapatapao to look for Tiana, was clearly a lie. Ferila knew that Tiana came with Lisa and Elena to Tapatapao on Sunday evening, the 10^th of September. Her statement to the police was not only a lie, it clearly shows that she did not want the police to find Tiana who was being hidden by other members of her family at Tapatapao.

It is also clear from the evidence that when Tiana was to be removed from the house of Ropati Nauer where she had been staying with Lisa and Laki for four nights, Ferila was there. It was also Ferila who accompanied Tiana to her own house where Tiana spent two nights before she was released to go home. The inference I draw from all this evidence is that Ferila was also a party to the same criminal conspiracy as Lisa, Ropati Nauer, Pino and Laki.

I have, however, not been able to reach the same conclusion in respect of the accused Adolf. According to the evidence of this accused, on Sunday, the 10^th of September, his brother Laki came to his house at Tapatapao in a vehicle and asked him to drop him (Laki) off at Vaiusu. Adolf then drove Laki to Vaiusu. As Adolf was about to leave Vaiusu to drive back to Tapatapao, the accused Lisa who was with Tiana and Elena, said to Adolf she wanted to go to Tapatapao to bring the school uniforms for her children. So Adolf, Lisa, Tiana and Elena went to Tapatapao. Upon arrival at Tapatapao, Adolf and his wife Ferila then left to attend a church service. It was not until the following Saturday evening that Adolf saw Tiana again. On that evidence, I am not satisfied to the required standard of proof that Adolf was a party to the same criminal conspiracy as the other accused. Adolf also denied the evidence by Tiana that when she came with Adolf and Ferila to Tulaele on Sunday, the 17^th of September, Adolf told her that she could stay with the relatives of the Nauers at Alamagoto.

Under cross-examination, Tiana said she also gave that information to the police and the police put it down in her statement. However, when cross-examining counsel showed Tiana her police statement that information is not in it. Counsel then submitted that Tiana could be mistaken when she said she gave that information to the police and the police put it in her statement. It follows Tiana could also be mistaken that Adolf said to her she could go and stay with the relatives of the Nauers at Alamagoto. Again this part of the evidence does not inspire sufficient confidence that Adolf was a party to the same conspiracy as the other accused. I am left in doubt on the matter.

I therefore find the charge of conspiracy to defeat the course of justice to have been proved against the accused Lisa, Laki, Pino and Ferila but not against the accused Adolf. As the accused Ropati Nauer did not stand trial in this case, I make no express finding against him.

Accessories after the fact

Section 26(1) of the Crimes Ordinance 1961 under which the accused have been charged as accessories after the fact provides:

“An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.”

Section 115 then provides the general penalty for accessory after the fact and this provision should also be cited as the penalty provision where a person is charged with a s26(1) offence.

What the accused have been charged with is actively suppressing evidence against the accused Ropati Nauer on the charge of manslaughter by hiding the prosecution witness, Tiana Lemau. An important element of the offence which is not mentioned in the information is the purpose for which the accused had suppressed evidence against Ropati Nauer, that is, whether it was to enable him to escape after arrest, or to avoid arrest, or to avoid conviction. Nothing was raised about this point at the trial so I say no more about it. However, following on from reading the wording of the information for the offence of accessory after the fact in the Australian case of R v Carter and Savage, ex parte Attorney-General (1990) 2 Qd R 371 at 377, it might have been of assistance to the prosecution if the wording of the present information had been along these lines.

“That on or about [date] at [place] Ropati Nauer of [address] by an unlawful act, namely, [brief description of the unlawful act] caused the death of [name of deceased] thereby committing the crime of manslaughter AND that the accused between the 10^th and 11^th day of September 2000 knowing that the said Ropati Nauer had committed the said crime actively suppressed evidence against him by hiding prosecution witness Tiana Lemau of Vaiusu in order to enable him [to avoid conviction]”.

In that way, the wording of the information will disclose an offence and provide sufficient particulars of the offence in terms of ss15 and 16 of the Criminal Procedure Act 1972.

The offence of accessory after the fact consists of four elements which the prosecution has to prove. These were conveniently set out in the judgment of Williamson J in R v Thomson (1992) 9 CRNZ 108 at p 109 and may be modified as follows to reflect the circumstances of the present case:

(a) the crime, which in this case would be manslaughter;

(b) an act by the accused which assisted a party to the crime or an act which actively suppressed any evidence against a party to the crime;

(c) knowledge at the time of commission of the act that the person assisted had committed the crime of manslaughter; and

(d) the purpose of the act as one of enabling the person assisted to avoid conviction

On the evidence presented by the prosecution I am in doubt whether the first element of the offence, namely, a crime, has been proved: see for instance R v Thomson (1992) 9 CRNZ 108 and R v Carter and Savage, ex parte Attorney-General (1990) 2 Qd R 371 as to the mode of proving the first element of the offence of accessory after the fact. I also have real difficulty in concluding that the accused, apart from the accused Ropati Nauer himself, knew that Ropati Nauer had committed the crime of manslaughter which is the third element of the offence. They must have known that he was standing trial on some criminal charge. But there is no evidence that the accused knew what crime Ropati Nauer had committed or that he had committed the crime of manslaughter which was the crime with which Ropati Nauer was charged.

Furthermore, the offence of accessory after the fact relates to a person who suppresses evidence against a party to the commission of a crime after the crime has been committed. It does not relate to a party to the commission of the crime. It relates to a person who does an act to suppress evidence against a party after the commission of the crime in order to enable that party to escape after arrest or to avoid arrest or conviction. Thus Ropati Nauer who is alleged to have committed the crime of manslaughter is a party to the commission of that crime and cannot be charged as an accessory after the fact to that crime. Only a person who assists him in order to make possible his escape after arrest, or to avoid arrest, or to avoid conviction after the commission of the crime may be charged as an accessory after the fact.

For these reasons, the information charging accessory after the fact is dismissed in respect of all the accused including Ropati Nauer who did not stand trial in this case. Perhaps I should note here that the prosecution appeared to have preferred this charge as a back-up to the charge of conspiracy to defeat the course of justice, which is the charge the prosecution was really pressing at the trial.

Common purpose

The third information which is preferred against the accused under ss23(2) and 26(1) of the Crimes Ordinance 1961 essentially charges that the accused formed a common intention to prosecute an unlawful purpose, namely, actively suppressing evidence against Ropati Nauer thereby committing the offence of accessory after the fact as a probable consequence of the prosecution of their common purpose. As it should appear from what follows, this information is misconceived.

Section 23 provides:

“(1) Everyone is a party to and guilty of an offence who:

(a) Actually commits the offence; or

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

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

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

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

Section 23(1)(a) applies to a principal party, that is, a person who actually commits an offence. If more than one person actually commits an offence, for instance a joint or concerted assault by two or more persons on another, all those persons will be principal parties to the offence of assault for they actually commit the offence. Section 23(1)(b) to (d) on the other hand applies to a secondary party, that is, a person who aids, abets, incites, counsels or procures another, the principal party, to commit an offence. And s23(2) applies to the situation where two or more persons form a common intention to prosecute an unlawful purpose and to assist each other in doing it, and one of them commits an offence which is not the one they jointly intended to commit; if the other person knew or ought to have known that that offence was a probable consequence of the prosecution of their common purpose, then he will also be liable for that offence. The person who actually commits the offence will be liable as the principal party; the other person who formed the common intention with him to carry out an unlawful purpose will be liable as a secondary party if it was known to him that the offence which was committed was a probable consequence of the prosecution of their common purpose.

Thus if A and B plan to rob a bank and both of them enter the bank and threaten a teller with guns and take the money, both of them will be criminally liable as principal parties under s23(1)(a) to the crime of robbery for both of them actually commit the offence. But, if pursuant to their plan to rob the bank, only A goes into the bank and threatens the teller with a gun and takes the money whilst B is standing outside keeping a lookout for any person who may come and find what A is doing inside, A will be liable as principal party under s23(1)(a) to the crime of robbery for he is the one who actually commits the robbery, whilst B who is standing outside keeping a lookout will be liable for the same crime as a secondary party under the relevant part of s23(1)(b) to (d). If on the other hand, pursuant to their plan to rob the bank, A and B go to rob the bank and A goes in with a gun and threatens the teller to give him the money whilst B is standing outside keeping a lookout for someone who may come and find what A is doing inside, if A shoots and kills the teller, he will be liable as the principal party to the killing of the teller. Whether B who is standing outside keeping a lookout will also be liable for the killing of the teller, which is not part of their common purpose of robbing the bank, will depend on whether in terms of s23(2) the killing of the teller is known or ought to have been known to B to be a probable consequence of the prosecution of their common purpose to rob the bank. If B knows or ought to have known that the killing of the teller is a probable consequence of carrying out their common purpose, he will be liable for that killing as a secondary party under s23(2). Both A and B may be jointly charged with murder under s23(2) and the relevant provisions on murder. A will be the principal party and B the secondary party.

In R v Curtis [1988] 1 NZLR 724, a case concerned with s66 of the New Zealand Crimes Act 1961 which is identical in wording to s23 of our Ordinance, McMullin J states at pp 739-740:

“Section 66(1) is concerned with intentional acts of aiding or abetting or encouraging given by one party to another in the commission of the very crime which the principal offender commits. On the other hand s66(2) contemplates a different situation. It is concerned, not with an act which is the very unlawful act to which an offender lends his and or his encouragement, but with any act done by the principal party, while not the result aimed at, was a probable consequence of the prosecution of the unlawful common purpose. As was said in the judgment of this Court in R v Hamilton [1985] 2 NZLR 245 at p 250 by Cooke J:

“Section 66(2) is the New Zealand statutory provision dealing with the class of case in which a conspirator is guilty as a secondary party because he foresees that the principal party in carrying out their unlawful plan may commit a crime of the type in question. Liability turns on the contemplated, albeit unwarranted, consequences of the criminal enterprise: see R v Gush [1980] 2 NZLR 92 and Chan Wing–siu v R [1984] 3 A11 E R 877”

“Regrettably, too often a case which can only be treated as a true case of aiding, abetting or encouraging under s66(1) has been made more difficult and confusing to a jury by the Crown’s attempted invocation of s66(2)”

In the commentary on s66 in Adams on Criminal Law vol 1, the learned authors state at para CA 66(2) 01:

“Whereas s66(1)(b) – (d) deals with intentional participation in the very offence committed by the principal party, the common intention rule in s66(2) establishes secondary liability in a different situation: R v Curtis [1987] NZCA 230; [1988] 1 NZLR 734 (CA), compare G Orchard ‘Parties to an Offence: The Function of s66(2) of the Crimes Act’ [1988] NZLJ 151. Where A and B form a common intention to prosecute an unlawful purpose, under s66(2) A is liable for every offence committed by B in carrying out that purpose if A knew the commission of the offence was a probable consequence of carrying out the common purpose. It is immaterial that A did not intend the offence to be committed, did not intend to help or encourage the commission and did not in fact help or encourage B to do the acts that resulted in the offence: R v Curtis; R v Hamilton [1985] 2 NZLR 245 (CA). Section 66(2) has particular application to the case where one of the parties to a plan to commit an “offence commits a different ‘collateral’ offence Y in carrying out the plan.... However, s66(2) should not ordinarily be invoked where the parties did what they set out to do. If the evidence discloses a straightforward case of aiding, abetting, etc under s66(1)(b) – (d), the determination of liability should not be unnecessarily complicated by reliance on s66(2) as a ‘makeweight or fall back position’: R v Dell 28/10/86: see also R v Curtis.”

To use again one of the illustrations I have already given on the application of s23, if A and B plan to rob a bank, and A goes into the bank and threatens a teller with a gun whilst B remains outside to keep a lookout for someone who may come and find what A is doing inside, if A shoots the teller dead and takes the money, the killing not being part of the common purpose, A will be criminally liable as a principal party under s23(1)(a) to the crimes of robbery and murder. B will be liable as a secondary party under the relevant part of s23(1)(b) to (d) to the crime of robbery. But whether B will also be liable as a secondary party to the crime of murder committed by A will depend on whether the killing of the teller by A is known or ought to have been known to B to be a probable consequence of the carrying out of their common purpose to rob the bank. If B so knows or ought to have known, then he will also be liable for the crime of murder.

If say after the killing by A, C a third person comes up in his car and takes A and B to his house and instructs A and B to change their clothes and give them to him together with the gun used by A in the killing, and C then conceals those items of evidence to make it impossible to arrest or convict A and B of the crimes they have committed, C will be an accessory before the fact and may be liable, not as a secondary party under s23(1)(b) to (d) or s23(2), but as an accessory after the fact under s26. Sections 23(1)(b) to (d) and 23(2) relate to acts done by a secondary party before or during the commission of a crime. Section 26 on the other hand relates to an act done after the commission of a crime by a person called an accessory after the fact to enable a party to a crime to escape after arrest, or to avoid arrest, or to avoid conviction.

Thus to charge the accused in the present case under both ss23(2) and 26(1) is confusing because the kind of situation contemplated by s23(2) is quite different from the kind of situation contemplated by s26(1). The two provisions apply to different kinds of situations. The information preferred under ss23(2) and 26(1) is, therefore, not legally valid and discloses no offence. It should be quashed.

As pointed out in Adams on Criminal Law vol 1, CA 66.04

“[The] expression ‘principal party’ is commonly used to describe the person who actually commits the offence under s66(1)(a), while any other offender under s66(1)(b)-(d) is called a ‘secondary party’. The term ‘accessory’ is also sometimes used as a convenient shorthand description for any secondary party. When used in this sense it must be understood as excluding accessories after the fact who are not parties within s66 but separate substantive offenders under ss71 and 312”

Section 71 of the New Zealand Crimes Act 1961 is identical in terms to s26 of our Crimes Ordinance 1961 which deals with accessory after the fact. Section 312, which is the penalty provision for accessory after the fact under the New Zealand Act, is similar in terms to s115 of our Ordinance.

Counsel for the accused also submitted that the allegation in the information against the accused of “active suppression of evidence” is not in an offence. This submission is obscure. However, it does touch on an important point concerning s23(2) which I will now deal with briefly.

It is alleged in the information preferred under ss23(2) and 26(1) that the accused formed a common intention to prosecute an unlawful purpose, namely, actively suppressing evidence against Ropati Nauer thereby committing the offence of accessory after the fact. The crucial words here are the words “unlawful purpose” which are also used in s23(2). These words mean an offence. As stated in Adams on Criminal Law, vol1 CA66(2)(02):

“Paquette vR(1977)70DLR (3^rd)129. In terms of s66(2), the effect of that decision is that a common intention to prosecute an unlawful purpose means a common purpose to commit an offence: see Golvin, Principles of Criminal Law (1986) “p322-323.......the general expression ‘unlawful purpose’ describes the offence which is the object of the common intention........”

Thus to say in the information that the accused formed a common intention to prosecute an “unlawful purpose”, namely, actively suppressing evidence against Ropati Nauer thereby committing the offence of accessory after the fact, does not constitute an “unlawful purpose” or offence for the purpose of s23(2). I say this for two reasons. The first is that there is no offence under our law which is known as active suppression of evidence which is what counsel for the accused submitted. The second reason is that the offence of accessory after the fact requires more than just suppression of evidence against someone else, as it is clear from the words of s26.

An application could have been made by the prosecution to amend the wording of the information in order to meet the submission by counsel for the accused. Whether in the circumstances such application would have been granted is another matter. But in relation to what I have said about the information not being legally valid as it could not have been properly preferred under ss23(2) and 26(1), no amendment, in my judgment, could have saved the information.

Misleading the police

The fourth and last information in this case which charges only the accused Ferila with misleading a police officer in the execution of his duty has been preferred under s10(2) of the Police Offices Ordinance 1961. It must be strange for this information to be tried in this Court. But the informations in this case were all preferred together with the charge of manslaughter against Ropati Nauer. The Court directed that the information on manslaughter should be tried separately from the other informations in order to avoid the assessors being confused. The Court then dealt with the information which charges manslaughter. But because of the significance of the legal issues involved in the three informations already dealt with in this judgment, it was decided that the remaining informations should be left in this Court even though the offences charged in those informations are ordinarily tried in the District Court.

Now section 10(2) of the Police Offences Ordinance 1961 provides:

“Every person who wilfully gives a false name or information to a constable with intent to mislead him in the execution of his duty shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding 3 months.”

As I have already found when dealing with the evidence in this case, Ferila did see Tiana on Sunday evening, the 10^th of September 2000, when Tiana arrived in a vehicle with Lisa, Elena and Adolf at Ferila’s house at Tapatapao. So when Ferila told the police when they came to Tapatapao on Tuesday, the 12^th of September, that she did not know Tiana and Tiana did not come there that was a lie. In the circumstances, that lie was clearly intended to mislead the police from finding Tiana who at the time was being concealed at Tapatapao to prevent her from giving evidence against Ropati Nauer at his trial on the charge of manslaughter.

In all the circumstances I find this charge to have been proved.

Conclusions:

(a) I find the charge of conspiracy to defeat the course of justice to have been proved against the accused Lisa Siainini, Laki Nauer, Pino Nauer and Ferila Nauer but not against the accused Adolf Nauer. I make no finding of guilty or otherwise against the accused Ropati Nauer who did not stand trial. The information insofar as it relates to him still remains before this Court.

(b) The information charging the offence of accessory after the fact against all accused is dismissed.

(c) The information preferred under ss23(2) and 26(1) is quashed.

(d) I find the information charging the accused Ferila with giving false information to mislead the police in the execution of their duty to have been proved.

(e) The accused Adolf Nauer is discharged. All the other accused before the Court are remanded in custody to Wednesday, the 12^th of June, at 12 noon for probation reports and sentencing.

The Court is adjourned.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
Kruse, Enari & Barlow for first accused Adolf Nauer
Drake & Co., for second and sixth accused Lisa Siainini and Ferila Nauer