Enosa v Police [2002] WSSC 46 (17 May 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ROMA ENOSA
of Manunu Minister of Religion.
Appellant

AND

POLICE
Respondent

Counsel: PA Fepuleai for appellant
R Schuster and S Eteuati for respondent

Hearing: 10 May 2002
Judgment: 17 May 2002

JUDGMENT OF SAPOLU CJ

This is an appeal against sentence from the District Court. The sole ground of the appeal is that the sentence is manifestly excessive having regard to all the circumstances. Given that the appellant is asking this Court to discharge the appellant without conviction under s.104 of the Criminal Procedure Act 1972, perhaps the appeal should also have been against the conviction that was entered in the District Court. As no one made an issue of this point I say no more about it. The appellant, who was the accused in criminal proceedings before the District Court, was charged and prosecuted with three charges of assault upon the victim on three separate incidents alleged to have occurred in the year 2000. The learned trial Judge was not satisfied that the prosecution had proved two of the charges beyond reasonable doubt and therefore dismissed those charges. Of the remaining charge, His Honour convicted the appellant and fined him $350 to be payable forthwith, in default one month imprisonment. The appellant has now appealed against that sentence as manifestly excessive. The respondent, on the other hand, has contended that the sentence is manifestly inadequate having regard to all the circumstances.

The significance of these opposing contentions is that if the contention for the appellant is correct, then the sentence imposed in the lower court will be set aside and a less severe sentence would be imposed. If, on the other hand, the contention for the respondent is correct, then the sentence imposed in the lower Court will be set aside and a more severe sentence would be substituted. This appears to be the position in terms of s.144(3) of the Criminal Procedure Act 1972 which provides that in the case of an appeal against sentence, the Court may pass such other sentence warranted in law, whether it is more or less severe.

The difference in the respective positions of the appellant and the respondent arises from the difference in the understanding of their respective counsel as to the circumstances of the assault upon which the trial Judge convicted the appellant. Counsel for the appellant, who appeared for the appellant at the trial, told this court that the trial Judge accepted the version of events relating to the assault given for the defence and not the version of events given by the victim who was called by the prosecution. He further submitted that a careful study of the notes of the evidence taken by the trial Judge and the notes of His Honour’s decision will show that what he was telling this Court is correct. Counsel for the respondent, on the other hand, referred to parts of the notes of evidence, the notes of the decision by the trial Judge, and the sentencing notes which in their view suggest that the trial Judge accepted the evidence of the victim regarding the assault and not the evidence for the defence. The significance in these opposing contentions is that, if counsel for the appellant is correct, then the assault in this case consisted of a mere nudge of the victim by the appellant with his foot because that was the evidence given for the defence at the trial. That would, of course, be an assault of a trifling nature. But if the contention by counsel for the respondent is correct, then the assault in this case consisted of a strong kick delivered by the appellant which caused the victim to fall over four steps onto rocks; the appellant then slapped the victim on the face. That was the evidence given by the victim. That would, of course, be a severe assault.

Having regard to all the circumstances, if the contention by counsel for the appellant is correct, then I would agree that the sentence that was imposed was manifestly excessive, but if the contention for the respondent is correct, then I would agree that the sentence is manifestly inadequate in view of the judgments of the Court of Appeal that was cited by counsel for the respondents in their well researched submissions. With respect to counsel on both sides, I am of the opinion that the basis of both their contentions is incorrect. A careful study of the notes of evidence and the decision of the trial Judge will show that the trial Judge did not accept the evidence given for the defence or by the victim at the trial as the truth of how the alleged assault happened. His Honour made no finding of fact on the matter. He simply held that the evidence given for the prosecution and the defence at the trial satisfied him beyond reasonable doubt that the accused, who is now the appellant, assaulted the victim. But he was not able to determine from the evidence before him how the assault happened. He simply concluded that the evidence given by the two independent witnesses called for the defence cast a severe doubt on the truthfulness of the victim’s evidence regarding the assault. He did not go further to accept the evidence of the defence witnesses as representing the truth of what had happened. In other words, the conflict in the evidence given by the victim and the two independent witnesses called for the defence left the trial Judge in severe doubt as to what actually happened during the assault. His Honour was only able to conclude that the appellant did assault the victim because on either version of the events given by the victim and the defence, an assault would technically have been committed. But there was a marked difference in the severity of the assault related by the victim and the assault related by the defence. On that point the trial Judge was in severe doubt. And it appears that doubt was carried through to the sentencing stage by the trial Judge.

To explain the basis for what I have said, I will refer now to the notes of the evidence, the decision of the trial Judge, and then briefly to his sentencing remarks. The appellant was charged that at Manunu on 17 October 2000 he assaulted the victim. At the time he was 48 years and minister of religion for the Congregational Christian Church of Samoa at Manunu. The victim was then 14 years old and a member of the appellant’s parish. At the time of the alleged offence, she had been living for four years under the care of the appellant and his wife as one of their own children. In October 2000, the appellant and his wife had to go to a funeral at the village of Saanapu. Before they left, the appellant instructed the victim to go to the head teacher of the school at Manunu to prepare for the forthcoming schools national examinations. When the appellant and his wife returned from Saanapu, the victim had not gone to the school head teacher as she had been instructed to do by the appellant. At that time the victim was sitting on the steps behind the appellant’s house eating a piece of bread.

The evidence given at the trial as to what followed was the subject of conflicting testimonies between the victim on one hand, and the appellant and the two witnesses called for the defence on the other. Essentially, the testimony given by the victim was that when the appellant returned from Saanapu, she was sitting on the back steps of the appellant’s house eating a piece of bread. Her back was facing where the appellant was approaching from. When the appellant asked her where she had been, she replied she had been to her family , which in the circumstances meant she had not gone to see the school head teacher as she had been instructed earlier in the day by the appellant. She said the appellant then kicked her from behind causing her to fall forward over four steps and landed on some rocks. When she stood up, the appellant slapped her on the face and sent her back to her family. She cried.

The victim’s mother who was called by the prosecution at the trial, testified that when the victim returned to their home, she later took her to the hospital. However, at the trial no medical report was produced to show the results of any examination conducted on the victim at the hospital. This point was later referred to by the trial Judge in his sentencing remarks as leaving him in doubt as to where the truth lies concerning the assault and the severity of the victim’s injuries given the conflicting accounts as to what happened. Police sergeant Finau Elisaia, who was called for the prosecution at the trial, testified that the appellant admitted to him that the victim showed a defiant attitude (faali’i) to him, so he kicked her.

In his testimony given at the trial, the appellant essentially testified that when he questioned the victim, on his return from Saanapu, as to why she had not gone to see the school head teacher to prepare for the schools national examinations, she just continued eating her bread with her back facing him. He then nudged the victim on her side with his foot to make her look at him. But she stood up and walked down the steps. So he sent a message to the victim’s family for someone to come. The victim’s sister came and took the victim away. The appellant also denied that he slapped the victim.

The witness Tolai Solia, a planter of Manunu, was called for the appellant. Essentially, what this witness said was that the appellant scolded the victim while she was sitting on the steps. The appellant then nudged the victim on her side with his foot. She stood up and the appellant asked her if she wanted to return to her family and she replied she did. The appellant then sent for someone from the family of the victim; when her sister came she left with her sister. At the time she was crying because of her defiant attitude (faali’i) towards the appellant. This witness also denied that the appellant kicked or slapped the victim.

The next witness Filipo Esera, also a planter of Manunu, called for the appellant, testified at the trial that while the appellant was asking the victim as to whether she had gone to see the school head teacher, she continued to turn her back towards him. The appellant then nudged her with his foot and asked her if she wanted to return to her family to which she replied yes. She then stood up, and when her sister came, she left with her. At that time, the victim was crying because of her defiant attitude (faali’i). This witness also denied that the appellant kicked or slapped the victim.

In his decision, the learned trial Judge in his opening remarks stated that it is quite clear from the evidence that an assault occurred. Section 78 of the Crimes Ordinance 1961 is very wide, even an attempted assault is an assault. It does not require much to constitute an assault, any small application of force will be an assault. From these opening remarks by His Honour, it is clear that the trial Judge had in mind the evidence given for the defence. Even though according to that evidence the appellant merely nudged the victim with his foot, that was still technically an assault.

The trial Judge then went on to say that he was satisfied beyond reasonable doubt on the evidence of the victim, the admission by the accused to police Sergeant Finau Elisaia, and the evidence of the accused, himself, and his witnesses, that the accussed assaulted the victim. This part of the decision, on its own, cannot, in my opinion, be construed as an acceptance by the trial judge of the evidence of either side as the truth of the circumstances of the assault or its severity. The reason being that the evidence given by the two sides were conflicting, and the Judge was clearly not saying that he accepted the version of events given by any one of the two sides. He was, if anything, in doubt because of the conflict in the evidence as to how the assault happened. It will clearly be reading too much into what the trial Judge was saying here, to infer that he was accepting the account given by any one side as to what actually happened.

The true position becomes clear further on when the trial Judge stated that in assessing the victim’s evidence, he was mindful that her credibility had been placed in question by the evidence of the two independent witnesses called for the defence. He then stated that the victim said she was kicked by the accused and she fell down the steps. She was then slapped on the cheeks. On the other hand, the accused had denied the victim’s account and called two independent witnesses to back up his version of what happened. That evidence for the defence, according to the trial Judge, throws severe doubt on the truthfulness of the victim’s evidence as to the events of 17 October.

This last sentence of the decision by the trial Judge, in my opinion, represents the gist of the state of mind he was in. He was in severe doubt as to the truthfulness of the victim’s version of the circumstances of the assault. But it does not follow that he was thereby accepting the version given for the defence as the truth of what had happened. In fact he does not say any such thing at all in the notes of his decision. This does not mean that I doubt the integrity of counsel for the plaintiff when he told this Court that he was present at the trial as counsel for the appellant and that the trial Judge did accept the evidence given for the defence and not the evidence of the victim. I have full confidence in the integrity of counsel for the appellant, who is also a senior member of the member. Perhaps what has happened here shows up the need for proper recording equipment in the District Court in cases where such assistance may be needed.

Be that as it may, I am of the opinion that if there is a doubt as to which of the conflicting versions of the circumstances of an assault is the truth, the trial Judge should act on the evidence given for the accused for the purpose of passing sentence. It is for the prosecution that has brought the charge against an accused person to prove every material fact. If there is doubt as to any material circumstance of the offence which is relevant for the purpose of passing sentence, because of the conflicting versions of the evidence given for the prosecution and the defence, the Court should act on the evidence for the defence, even if the Court has not accepted that evidence as the truth of how the assault happened. Not to do so will result in a failure of justice as the Court is also in doubt about the version of the evidence given by the prosecution. I will, therefore, consider the sentence that was imposed on the basis of the evidence that was given for the defence. But before doing so, it should be noted that the respondent did not contend in this appeal that the trial Judge should have accepted the evidence given by the victim. It simply contended that on the correct understanding of the notes of evidence and the decision of the lower Court, the evidence of the victim as to how the assault happened was accepted by the trial Court; and on the basis of that evidence and recent decisions of the Court of Appeal, the sentence was manifestly inadequate. From what has been said, I do not agree that the lower Court accepted the evidence of the victim as to how the assault was committed.

In his sentencing remarks, the trial Judge again reiterated the doubt he had already expressed as to what had actually happened. He said that the evidence of the victim as to the severity of her injuries and the assault and the evidence of the accused were quite different. In the absence of any medical report on the victim, it was very difficult to determine where the truth lies on this aspect of the case. So this doubt as to how the assault happened is being carried through to the sentencing stage from the decision stage.

Now counsel for the appellant reiterated before this Court his submissions put to the trial Judge that this is a proper case for the application of s.104 of the Criminal Procedure Act 1972. Under that provision, even if a charge is proved, the Court may still discharge an offender without conviction if it is satisfied (a) the offence was in the circumstances of so trifling a nature that it is inexpedient to inflict any punishment; or (b) having regard to some special circumstance of the offender, the entering of a conviction would, of itself, be a hardship out of proportion to the particular circumstances of the offence committed. I am of the opinion that the submission by counsel for the appellant should be accepted given the version of events given for the appellant in the lower Court. On that version of events, the assault was only of a trifling nature, a mere nudge with a foot. It was done as a result of the applicant’s concern for the victim to do well in the schools national examinations. In such circumstances, it would be inexpedient to impose any punishment. The appellant is also a minister of religion at the village of Manunu. I accept the submission by counsel for the appellant that given the appellant’s position, it will be a serious embarrassment for the appellant, as a pastor, to continue preaching from the pulpit with a criminal conviction to his name, particularly given the respect and high regard in which a minister of religion is usually held within a village community. Thus the entering of a conviction would, of itself, be a hardship to the appellant which is out of proportion to the trifling nature of the circumstances of the offence committed. Counsel also referred to the fact at the age of 48 years, the appellant is a first offender.

Given all the circumstances, s.104 should be applied. Accordingly the appeal is allowed. The sentence imposed in the lower Court is set aside. The appellant is discharged without conviction. I will make no order for the appellant to pay costs for the prosecution under s.104(6) as he has already incurred extra costs to successfully bring this appeal to obtain the present result.

CHIEF JUSTICE

Solicitors:
Fepuleai & Schuster Law Firm for appellant
Attorney General’s Office for respondent