Police v Nepa [2009] WSSC 112 (3 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SOLA ATI NEPA, TU’U GAFA TAUTI,
TUUGALILO ONOSAI FILIPO and IOANE MAMEA,
all males of Leauvaa.

Counsels: Ms P Chang & Mr SL Petaia for the prosecution
Mr LT Malifa for the defendants

Hearing: 2nd and 3rd September 2009
Ruling: 3rd September 2009

RULING OF NELSON J.
(on a voir dire application – dying declarations)

A question has arisen in these proceedings as to the admissibility of certain statements made by the deceased Tuala Akuino Wright in this matter after he was assaulted and before he passed away. These statements are said to name his alleged attackers and are therefore crucial to the case for the prosecution. Two sets of statements are said to be involved. The first is alleged to have been made at the scene of the attack at Leauvaa on the evening of 31 July 2008 shortly after the alleged attack at a time when the deceased was lying injured on the ground awaiting transport to take him to the hospital. The second comprises a statement made the following day to his auntie at the National Hospital at Motootua, a statement made in the presence of other family members at about 7.00 o’clock that morning.

I deal firstly with the statement alleged to have been made at Leauvaa after the alleged assault. The evidence of that essentially comes from two witnesses. The main eye witness to this whole incident Sita Tevaga a next door neighbour of the accused Sola Ati and that of her husband Maletino Moananu. Although Sita gave her evidence as part of the general trial as opposed to at the voir dire, her evidence is significant and must be considered as part of the voir dire enquiry into whether the dying declarations alleged to have been made by the deceased should be admitted.

Her evidence is not completely satisfactory. In a statement given to the police on 3 August 2008 a few days after the incident she makes no mention of anything said by the deceased concerning his attackers. Over one year later on 25 August 2009 she made a second statement to the police wherein she mentions for the first time that after the assault when she returned from going to the deceaseds family to inform them of the incident, she returned to find the deceased had regained consciousness and was singing a popular drinking song "ta fia miti e". He was also uttering cries of ususū. She said that at that time he then named Gafa, Onosai and Sola, three of the accuseds as his attackers. In her testimony in chief to the court she confirmed this saying that she returned to find the deceased singing and confirmed that he mentioned these three accuseds. But in cross examination she changed this and said that the deceased did not name the three accused as his attackers but what he did was to mention their names and then say "I am injured, I am going" or "ua ou lavea, o le a ou alu". This is contained in pages 41 to the top of page 43 of the transcript of 1 September 2009

The evidence of her husband follows a similar pattern. In his statement to the police made last year just after the incident occurred, no mention is made of the deceased stating anything about who attacked him. This only came to light in a second statement made to the police last week and his explanation for this situation was that he had told the police about it originally but it was their fault that they missed it out of his statement. He also said that he did not read his statement before he signed it something that he said not only about his original statement but his latest statement as well. He acknowledged in cross examination that the part about the deceased singing was also missing from his original statement as were other portions of evidence. His oral evidence before the court essentially confirmed the contents of his latest statement.

The prosecution are seeking to have this introduced as evidence of a dying declaration made by the deceased in contemplation of oncoming death. Alternatively it should be accepted as part of the res gestae of the incident.

The law of dying declarations is well settled. Unlike other jurisdictions Samoa has no statutory provision governing that situation and we follow and apply the common law. At common law there are five pre-conditions for admissibility of such evidence as an exception to the rule against hearsay. Firstly the maker of the statement must have died; secondly the evidence must be sought to be adduced at a trial for his/her murder or manslaughter; thirdly the statement must be relevant to his/her cause of death; fourthly it must be established that the maker of the statement would if alive have been able to testify as a competent witness. Thus in R v Pike [1829] EngR 417; (1829) 3 C & P 598 the statement of a four (4) year old child was rejected by the court and as noted by Cross on Evidence 7th edition at paragraph 18.9 this probably also excludes statements by insane persons or a severely mentally challenged. Fifthly and finally the maker of the statement must at the time of making the statement have been under a "settled hopeless expectation of death" – R v Peel [1860] EngR 165; (1860) 2 F&F 21 as approved in R v Perry [1909] UKLawRpKQB 130; [1909] 2 KB 697 and subsequent authorities.

The rationale for admitting such evidence is covered by previous authorities such as R v Woodcock [1789] EngR 2091; (1789) 1 Leach 500 where Eyre CB said in an oft-quoted passage:
"The principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice."

As stated by Ross on ‘Crime’ 2nd edition at paragraph 4.2710:

"The policy considerations permitting this departure from the general rule against hearsay have been said to be, first, that any sanction of the oath in the case of a living witness would be balanced by the final conscience of a dying person who would not wish to die with a lie upon their lips and, secondly, that it is important in the interests of justice, that a person implicated in a killing should be obliged to meet in court the dying accusation of the victim."

But before these five conditions operate there is a fundamental prerequisite that must be met. As noted in Ross on Crime the evidence of the declaration must be reliable. Ross cites inter alia Fubert v R [2000] 1 WLR 1716 (PC) where the dying victim told his mother who had shot him, naming one of the accused. It was accepted that the victim could not have had a proper view of the assailant. The Board agreed with the Court of Appeal that the evidence should not have been admitted, but said there had been no miscarriage of justice.

In the present case before the court the evidence of the so called dying declaration of the deceased Akuino comes from the witnesses Sita and her husband Maletino. Their evidence in my assessment is not reliable or cogent. I have seen and heard these two witnesses testify. They do not strike me as ignorant people who would not understand the significance of a statement from their just assaulted and injured relative lying bleeding on the ground immediately after the assault naming his attackers. Yet any mention of this is missing from their original police statements as I have noted. It only comes to light for the first time in statements made over a year later, statements made last week. I also do not overlook the fact that the two people concerned are a husband and wife and that they are relatives of the deceased in this matter and I sense and have sensed in these proceedings a degree of tension in the court as between the various parties involved in this case.

Furthermore the evidence of the two people concerned are in conflict. The husband said the deceaseds statement concerned those who attacked him and named those who attacked him. His wife on the other hand said no, the deceaseds statement only mentioned the names of the three accused and then concluded with "I am injured, I am going". She stated more than once in her evidence in cross examination that no mention was made by the deceased of who assaulted him.

(Power failure then occurred – Counsels I think what we are going to do is in case we have another power outage, I propose to give you the end conclusion of my ruling on the matter & the full transcript will be typed out by the associate including the part that is yet to be delivered and will be made available to counsels in due course. Conclusions given. The ruling continues.)

It is not clear whether the standard to which prosecution must prove such preliminary facts is proof beyond reasonable doubt or proof on a balance of probabilities. The two authorities mentioned in the texts which I have not had the opportunity to fully consider suggest differing standards: Police v Andersen [1972] NZLR 233 and R v Donohoe [1962] NSWR 114. See also R v Rogers [1950] SAStRp 15; [1950] SASR 102 where the standard was said to be beyond reasonable doubt citing an old English decision R v Jenkins (1869) LR I CCR 187. Donohoe has a very useful discussion on the matter at pages 1150 on and touches on the analogous issue of the proof beyond reasonable doubt standard for voluntariness of confessions that I discussed in the course of argument with counsel for prosecution.

I propose to leave the matter open as time does not permit a full consideration of such an important issue and I have not had the benefit of counsels views or submissions. Also because it will not make any difference to my decision for even on balance of probabilities standard, I am not satisfied as to the quality of the evidence of the husband and wife team. I cannot conclude on a balance of probabilities that the fact of the deceased saying this has been established. In so finding I note the defendants all gave evidence denying such a statement being made but express no view on credibility of that evidence since I would expect them to say nothing else. Prosecution have not established to a believable level that these statements were made at Leauvaa by the deceased. The application to admit such statement as a dying declaration is dismissed as there is insufficient proof such a statement was ever made. For the same reason it cannot be treated as part of the res gestae.

I add that even if the statement was proven to the required standard, it would still not be a dying declaration because the fifth element of admissibility is not satisfied by the statement viz that at Leauvaa after the incident it can be said that the deceased was under a settled hopeless expectation of death. It is true the evidence shows he was severely injured. But it also shows he regained consciousness, was singing a well known drinking song and uttering ususū cries. These are not actions of a man on deaths door sitting around waiting to die in full knowledge that he would die soon. Application fails on that ground as well.

There is the further problem that even if I accepted such a statement was made, I have doubts as to its reliability. The evidence was this was a simultaneous attack at night in a dark area involving more than one person and a very intoxicated deceased. Quite simply, the deceased could have wrongly identified his attackers. And even if the primary eye witness Sita is to be believed, her evidence was the deceased did not allege three of the defendants attacked him, he only mentioned their names and the parting words "I am injured, I am going." This is not necessarily direct evidence that they assaulted him, it is only direct evidence of their presence at the scene. He could have mentioned them in the context of "see what your family has done to me, I am injured, I am going." Not an uncommon statement in such situations in our society. This is not the risk of concoction referred to by Lord Wilberforce in the leading case of Ratten v R [1971] UKPC 23; [1972] AC 378 but rather the risk of misinterpretation of the meaning of the deceaseds statement. On this basis also the statement should not be admitted.

The second declaration sought to be admitted is the one made by the deceased about 7am the next morning at the National Hospital to his auntie and members of his family. The evidence is and I accept the truthfulness of these witnesses, and this evidence is from Ana Kuresa and Matalena Fonoti, that at the hospital the next day some eight hours after the attack, as the deceased was sitting on a toilet seat performing toilet functions, he said in response to questioning by his auntie that it was Sola, Onosai, Gafa and others who assaulted him. He said this once only after his auntie asked him twice about it and he never repeated the accusation.

But the evidence also is that while the deceaseds injuries were untreatable (see evidence of pathologist Dr. Rahman) because it involved bleeding in the dura of the brain, this was not known to the treating team whose access to deceaseds x-rays is not clear and who did not have a CT scan machine available to scan the defendants brain for damage. Neither is there any evidence that before the 7am Saturday 1 August 2008 declaration, the deceased was told his injuries were fatal and/or untreatable and/or that he would definitely die from them. The evidence is that at that time the deceased was able to perform toilet functions unaided, albeit he required assistance with his IV tubes and to get on and off the toilet seat. That he indicated he did not need a hand, he was "malosi", that he was conscious and coherent and able to recognize his auntie and that notwithstanding his injuries, his condition was "tigaiga" - that is in pain and in discomfort as opposed to obviously life-threatening. Furthermore, according to the post mortem report he was in Acute 7 and not ICU where critical patients are kept, he was only transferred to ICU the afternoon of Saturday 2 August 2008 the day he died. Indicating that in the doctors minds at least, he was not under immediate threat of death till his condition deteriorated on the Saturday. His aunties evidence is his condition seemed stable until Friday night when it began doing downhill. This is all well after the so called declaration in contemplation of dying was made at 7am Friday morning.

This is not a situation of a declaration being made by a declarant under a "settled and hopeless expectation of death" as required by the law. The evidence does not even establish or go close to establishing that in the deceased’s own mind, there was a settled and hopeless expectation of death or even an expectation of death. What is required is illustrated by cases such as R v Morgan (1875) 14 Cox CC 337 where even though the deceased’s throat was cut so extensively that the windpipe was severed and the bones of the neck exposed, that is the mans head was all but cut off and held on only by the vertebrae of the neck, nevertheless his written declaration as to his killer was not admitted and the case proceeded without it. Happily to a guilty verdict, the defence of suicide being rejected by the jury.

As stated in R v Donohoe at 1152 - the issue can be proved "directly by express language or be inferred from the declarants evident danger or the opinions of medical men stated to him or from his conduct or other circumstances of the case, all of which may be resorted to in order to ascertain the state of the declarants mind."

A sense of impending death cannot be derived from any express language used by the deceased, indeed there is no evidence any express language to that effect was used at any stage to convey that message to the deceased. Neither can evident danger be inferred – there is nothing from which to infer it as at 7am that Saturday morning. And there is no evidence that any such opinion of the treating physician/physicians was conveyed to the deceased so that he would have been under an apprehension of impending death. Certainly no evidence this was done before he made declaration to the auntie.

Considering all circumstances I have come to the conclusion the last of the five requirements is not established to any degree by the evidence. The statement made to the auntie cannot be admitted as a dying declaration from the deceased. As to whether it forms part of the res gestae again I refer to the problem of reliability identified earlier. I am not satisfied "that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening (so that) it ought to be received" – the Privy Council in Ratten.

Accordingly such evidence is not to be led by the prosecution when this trial resumes next Wednesday. The defendants are remanded on bail on same conditions till then.

JUSTICE NELSON