Police v Tuise [2004] WSSC 17 (14 April 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

Hearing: 16 March to 26 March 2004
Ruling: 14 April 2004

RULING OF VAAI J

1. The Appellant was on the 26th March 2004 convicted by the panel of assessors of the murder of her cousin Eleni Mika. She was then convicted and sentenced to life imprisonment. She now seeks the leave of this court to appeal against her conviction for a stay of execution of her sentence and for her release on bail pending the determination of her appeal.

2. Principally the prosecution evidence against the appellant is that on the morning of the 6th December 2003 at between 10 and 11 the father of the accused walked over to the house of the deceased to confront the deceased about the incident of the previous night in which the accused was injured. It is not disputed that there has been an unfortunate history of hostility between the two families. The two families live close to each other on the same land. The father of the accused and the mother of the deceased are brother and sister.

3. An argument developed between the father of the accused and the deceased which prompted the accused together with her brother and sisters to run over to the house of the deceased. They were armed with lit bottles of kerosene which they threw at the house resulting in the house of the deceased being completely gutted by fire. Prior to that or at about the same time the accused struck or threw at very close range a lit bottle at the deceased who was standing besides her son Andrew who had tried unsuccessfully to stop the accused. As a result of being struck by the lit bottle of kerosene the deceased caught fire. It was some moments later after the son of the deceased got a wet sheet that he managed to put out the flames. Next door neighbours also assisted by turning the hose on the deceased’s body in an effort to ease the pain until the police arrived and took her to hospital. Two days later the deceased died.

4. Immediately after the police took the deceased to hospital on the 6th December 2003 they commenced their investigations and interviewed a number of people including the accused, members of her family and members of the deceased’s family. As a result of the investigations the accused was charged with the murder of the deceased. Her trial took place before me and a panel of five assessors on the 16th March 2004 and concluded on the 26th March.

5. Essentially the main and vital issue for the assessors to determine was whether it was the accused who threw the lit bottle which set fire to the deceased. The defence argued it was Moauli the sister of the accused who struck the deceased with the lit bottle. The defence attempted to discredit the evidence of Andrew the son of the deceased who stood by the deceased when the accused threw the lit bottle at the deceased by calling two witnesses who testified that they saw Andrew (and his wife) walking towards his mother’s home on the morning.
   

6. Counsel for the appellant advanced three main grounds for leave to be granted. The first ground is that two of the assessors expressed views about the trial to members of the public while the trial was in progress which indicated bias against the accused. The second ground is that one of the assessors Litia Solofa is connected by marriage to one Makerita Ziegler a prosecution witness who was not called. The said witness is very close to the deceased and her children. The same witness rents a house which belongs to the Foreman’s cousin and attends the same church with the foreman of assessors. There is reason to believe that the said witness had influenced the foreman of assessor and the assessor Litia Solofa in their verdict.

Third Ground

The 3rd ground for leave to appeal is that the conviction is against the weight of the evidence.

• Counsel for the appellant did not canvass the evidence at the trial but simply referred to the supporting affidavit by Repeka Schultz the sister of the appellant.
  
• Repeka Schultz gave evidence at the trial to the effect that it was not the appellant who threw the lit bottle at the deceased. In fact it was her other sister Moauli.
  
• The assessors obviously did not believe the evidence of Repeka Schultz and the assessors obviously had very good reasons for refusing to believing Repeka Schultz. Because on the same day of the incident at 4 in the afternoon Repeka Schultz gave the police a written statement in which she stated she did not know the time the deceased got burnt. Yet several days later after the said Moauli skipped the jurisdiction Repeka Schultz and other members of her family tried to convince the police it was Moauli who threw the lit bottle at the deceased. The police did not believe them.
  
• Now the same Repeka Schultz has filed an affidavit annexing what is supposedly a confession by Moauli through her so called lawyer called Smith. Mr Smith’s so called letterhead does not contain any details of contact or country where he practices. All that is stated on the letterhead is Smith Lawyer’s office and nothing more.
  
• The assessors did not believe Repeka Schultz and I certainly in agreeing with counsel for the prosecution do not believe anything she has deposed to.
  

7. I now deal with the first two grounds of appeal.

In support of the first two grounds several affidavits were filed and alleging:

(a) that on Wednesday the 24th March (2 days before the trial completed) during the morning break the foreman of assessors was seen and heard talking to the brother in law of the deceased outside Supreme Courtroom No.1. The foreman was asked by the brother in law as to what he thought about the matter and he was heard to say: “Don’t worry we are now beginning to see the picture. The result is also known. Just leave it up to God.” The two men then continued talking for about 10 minutes.

(b) On Monday the 22nd March after 12 noon, a taxi driver picked up a passenger outside the Traffic Section of the Police Department. This passenger who is well known to the driver Litia Solofa was one of the assessors and she told the driver she was an assessor in the trial of the appellant. During the course of their conversation she said words to the effect:

“When I see her sitting in the deck she looks so tiny, yet she has done amazing things. She shows no sign of remorse. I have been told that these two families have been quarrelling and fighting for a long time. The old man and his children have often shown animosity against Eleni’s family.”

The taxi driver who had already made known to the assessor that the appellant was his cousin then responded by saying:

“I am not sure who is correct because I have also heard rumours that Eleni and her children have been scheming to find a cause to beat up the girl’s mother.”

In response the assessor remarked referring to the appellant:

“She should have had a forgiving heart about what had happened before. But she could not control her anger resulting in her killing Eleni. Now that the devil disappeared but she will now carry the full burden of her actions.”

(c) The same taxi driver is also aware that the husband of the assessor and the former husband of one of the prosecution witnesses are brothers.

8. The prosecution did not file any affidavit in response. I will therefore proceed on the assumption that the allegations in the affidavits are not challenged. In my view the total effects of the supporting affidavits amounts to this:

(a) The foreman of assessors and another assessor deliberately ignored the warning I gave at the very first day of the trial that they are not to discuss with anyone else other than amongst themselves the evidence; to keep an open mind through out the trial and to ignore anything they may have heard about the case prior to taking their seats as assessors.

(b) The appellant was not in my view given a fair trial. It has often been said that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly to be seen to be done.

It seems to me quite obvious that the two assessors referred to in the affidavits had before the conclusion of the evidence determined the fate of the accused.

In conclusion the contents of the affidavits filed in support of the application for have to appeal either shows that there was actual bias or at least a real likelihood of bias.

Leave to appeal is accordingly granted. On the request of bail I am persuaded by the fact that the appellant was on bail prior to her trial and she complied with the conditions of bail.

I grant bail on the following conditions:

(i) all her travel documents are to remain in the custody of the Registrar of the court.

(ii) she is to stay away from the land at Tanugamanono where her father is presumably residing.

(iii) to report to the Apia police every Monday and Thursday before 4pm.

JUSTICE VAAI