Police v Tuise [2004] WSSC 16 (23 March 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

FUAMAI TUISE,
female of Tanugamanono
Defendant

Counsel: Mr R. Schuster and Mr D Kerslake for the prosecution
Mr T.S Toailoa for the defence

Ruling: Tuesday, 23 March 2004

RULING OF VAAI J

The accused a 32 year old female is charged with the murder of her cousin Elegi Mika a 51 year old female of Tanugamanono. It is alleged that on the morning of 6th December 2003 at between 10-11 the father of the accused went to the house of the victim to confront the victim about the incident of the previous evening in which the accused was injured. Both families live on the same land, live close to each other, and there has been a history of hostility between the two households.

An argument developed between the victim and the father of the accused outside on the grass; and the accused and her sisters ran over with lit bottles of kerosene which were thrown at the house resulting in the victim’s house being completely burnt to the ground. Before the lit bottles were thrown at the house it is alleged that the accused struck or threw a lit bottle at very close range (about 1 meter) at the victim resulting in the victim catching flames. The victim’s son managed to put out the flames with a wet sheet. Next door neighbours also assisted by turning the hose onto her burnt body before the police arrived and took her to hospital where she was treated and admitted to the High Dependency Unit.

At about 2.30 that same afternoon the police in the course of their investigation interviewed the victim and took notes of the interview. The notes of the interview states:

“They came:

1. Repeka
2. Fuamai
3. Moasina
4. Moauli
5. La
   

The old man came and sat down. He asked where the father of children is, I said he is at work. The old man then said, “you will all see”. I apologised to him he is the matai. Pula then waived to his children to come over and he lifted up his lavalava to me. The children came and did it. They threw bottles at me and I was burnt.

• I respect him as if he is my father, however I have forgiven him.
• They first threw stones then the bottles of benzene which burnt the house and myself.”
  

Two days later on the 8th December 2003 the victim died. The prosecution submits that the statement given by the deceased to the police at the hospital should be admitted as evidence. The defence objected.

Under the common law it is the general rule that evidence cannot be adduced in court of statements made, whether orally or in writing out of court with a view of proving the truth of those statements. The rationale of this exclusionary rule as recognised by Byles J in R V Jenkins (1869) LR 1 CCR 187 was that such statements were not made on oath or in the presence of the accused and were not made by witnesses who could be cross examined on the truth and reliability of the statements or who could be prosecuted for perjury.

The prosecution however relies on one of the common law exceptions recognised to apply in criminal proceeding, and known as a dying declaration, for the admission of the statement. Several conditions must be fulfilled. In order for the statement to be admissible as a dying declaration it must be shown that the victim did die; that there followed a trial for her murder; that the statement related to the cause of her death; and that when making the statement she was shown to have had a settled hopeless expectation of death. It is the fourth condition upon which the prosecution focussed its submissions so that the only issue for me to rule on is whether the fourth condition has been fulfilled by the prosecution.

This fourth condition has provoked legal arguments. If when making the statement the deceased had abandoned all hope of survival the statement may be admitted: R v Woodcock [1789] EngR 2091; (1789) 1 Leach 500; R v Jenkins (1869) LR 1 CCR 187, R v Perry (1909) 2 KB 697; Nembhard v R (1981) 74 CR App R 144. If the condition is held to be satisfied the statement is in principle admissible unless the trial judge in the exercise of his discretion excludes the statement on the grounds that the statement is unreliable or ambiguous and should therefore not be put to the assessors for their consideration.

During the voir dire the prosecution called no evidence; submissions were advanced on the law and relying on the earlier evidence of the doctor who received the patient on admission and the pathologist. Neither the doctor nor the pathologist was present when the police interviewed the deceased. The police officer who took the statement was not called to give evidence during the voir dire. Both medical evidence confirmed that 80% of the body skin was burnt. In his post mortem report the pathologist stated the degree of burns varied from place to place; the face, neck, arms and arms suffering third and fourth degree burns while the boundaries suffered first degree burns involving surface epidermis skin only.

The admission doctor told the court that the victim was brought in at about 11 in the morning with extensive burns to the head, face, neck, hands, chest, back, left leg and right thigh. She was distressed and suffered severe pain. After the victim’s conditions were stabilised she was transferred to the High Dependency Unit ward. It was at that ward in the afternoon at about 2.30 the same day that the police interviewed the victim and took down her statement. It was not until the next day that her condition started to deteriorate and finally died the following day.

In determining whether the statement taken by the police is admissible in evidence as a dying declaration I ought to consider all of the evidence and determine whether death was imminent at the time the declaration was made and to determine from the language used by the victim whether the statement was made at a time when the victim had a settled hopeless expectation of death, or abandoned all hope of living.

Admittedly it is very difficult to form a view of what was passing through the mind of this unfortunate victim but in my judgment the evidence goes no further than saying that the victim probably thought she may be dying, or probably thought she would never recover. It does not establish that she gave up hope entirely. And since I cannot conclude that she abandoned all hope of surviving the statement cannot be admitted.

JUSTICE VAAI