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Police v Tanielu [2010] WSSC 134 (7 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U


BETWEEN:


POLICE
Prosecution


AND:


FAIGA VICTOR TANIELU male of Vaimoso, Falelauniu and Vaitele.
Accused


Counsel: L Su'a-Mailo and L Taimalelagi for prosecution
T Leavai for accused


Hearing: 20, 21 September, 27 October 2010


Counsel's written submissions 22 November 2010


Judgment: 7 December 2010


JUDGMENT BY SAPOLU CJ


The charges

  1. The accused Faiga Victor Tanielu (Faiga) is jointly charged with robbery under s.92 of the Crimes Ordinance 1961 with three co-accused, namely, Shane Chan Tong, Nazario Chong Nee, and Robert Chong Nee. Shane Chan Tong has passed away while Nazario Chong Nee and Robert Chong Nee have both pleaded guilty to the charge of robbery and have been sentenced. The accused Faiga has maintained his not guilty plea to the charge.
  2. Faiga is also individually charged with the offence of being armed with a dangerous weapon without a lawful purpose under s.25 of the Police Offences Ordinance 1961 to which he also pleaded not guilty. The Crimes Ordinance 1961 has been mistakenly cited as the charging Ordinance in this charge instead of the Police Offences Ordinance 1961. This charge is amended by substituting the words "Police Offences" for the word "Crimes".
  3. In both the above charges, the whole of s.23 of the Crimes Ordinance 1961, which is the parties provision, is cited as one of the charging provisions. This is undesirable practice as it could create confusion to the defence or to the assessors in an assessor trial. Section 23 provides various modes of participation in the commission of an offence by which a person can become criminally liable. Section 23 (1) (a) makes a person who actually commits the offence a party. Such person is called the "principal party". Section 23 (1) (b) to (d) makes a person who aids, abets, incites, counsels, or procures any person to commit the offence a party. Such person is called a "secondary party". So s.23 (1) applies to two categories of parties, namely, a "principal party" or person who actually commits the offence (s.23 (1) (a)) and a "secondary party" or person who aids, abets, incites, counsels, or procures any person to commit the offence (s.23 (1) (b) to (d)). It is a mistake to think that the person who actually commits the offence is not a party but only the person who aids, abets, incites, counsels, or procures another to commit the offence is a party. Both are parties in terms of s.23.
  4. The type of situation contemplated under s.23 (1) (b) to (d) is also different from the type of situation contemplated under s.23 (2). As explained in Adams on Criminal Law (1992) vol 1 para CA 66.02 in relation to s.66 of the Crimes Act 1961 (NZ) which is the New Zealand counterpart of s.23 of our Crimes Ordinance 1961:

"Section 66 (1) (b) to (d) deals with offences that are actually intended. Liability arises where one person intentionally helps, encourages, or procures another to commit the very offence that is actually committed. On the other hand, s.66 (2) is primarily directed at offences not actually intended by some or one of the persons concerned. It covers any offence which, while not the result aimed at, was known by the parties to be a probable consequence of prosecuting a common unlawful purpose"


  1. So for the prosecution to simply cite the whole of s.23 in the charging provisions of an information does not clarify the particular mode by which the accused is alleged to have participated as a party in the commission of the alleged offence. This may lead to confusion and create difficulties for the accused in the conduct of his defence. It may also create difficulties for assessors in an assessor trial when the presiding Judge would have to explain the distinctions between the various possible modes of participation in the commission of an offence provided in s.23 and how each of such possible modes of participation may fit or not fit the facts of the case. Thus citation of the whole of s.23 in an information, instead of specifying which particular provision or provisions of s.23 is relevant, is something not to be encouraged.
  2. On the facts of this case, as they are now known to the Court, the only provision of s.23 that is relevant is s.23 (1) (a). This is because the evidence adduced by the prosecution shows that the accused Faiga participated in the actual commission of the alleged offence of robbery which was the offence intended by Faiga and his three co-accused. Faiga was therefore a principal party. In relation to the offence of being armed with a dangerous weapon without a lawful purpose, it would be uncommon to cite s.23 at all as the evidence clearly suggests that Faiga was armed with a machete at the material times. He did not aid, abet, incite, counsel, or procure another person to commit the alleged offence of being armed with a dangerous weapon without a lawful purpose. It was Faiga himself who was armed with a dangerous weapon without a lawful purpose and that is the reason for his being charged with that offence.
  3. Section 66 (2) does not apply to the offence of robbery because the robbery that was committed was the very offence that was intended by the accused and his co-accused. The robbery was not a probable consequence of the prosecution of a common unlawful purpose to commit a different offence. It was the very offence that the parties intended to commit and did set out to commit and did commit. Likewise, s.66 (2) does not apply to the offence of being armed with a dangerous weapon without a lawful purpose because that was the offence intended when Faiga armed himself with a machete for the purpose of accomplishing the robbery. The offence of being armed with a dangerous weapon without a lawful purpose was also not a probable consequence of the prosecution of a common unlawful purpose to commit a different offence. Faiga being armed with a machete was an integral part of the robbery that was intended by the parties and which the parties committed.

The evidence

  1. I have carefully considered all of the evidence. However, I do not propose to deal with all of the evidence or all of the inconsistencies it contains. What I propose to do is essentially to set out the relevant evidence I have decided to accept. In so doing, it is inevitable that I will have to deal with some of the evidential inconsistencies and some of the evidence I have decided to reject. I have also decided to set out the evidence in chronological order under three sub-headings, namely, before the alleged robbery, during the alleged robbery, and after the alleged robbery.
  2. Furthermore, in considering the evidence of each of the witnesses Nazario and Robert who are both accomplices, I bear in mind the warning that although I may convict on their individual or combined evidence, if I am satisfied of their truthfulness, it is dangerous to do so without corroboration. I also bear in mind that because both Nazario and Robert are accomplices as principal parties to the robbery with which the accused is charged, their respective evidence cannot be mutually corroborative.

(a) Before the alleged robbery

  1. The evidence in relation to what happened before the alleged robbery of the Vaitele branch of the Westpac bank was given by the two co-accused Nazario Chong Nee (Nazario) and his brother Robert Chong Nee (Robert) who were called as witnesses by the prosecution and by the accused Faiga who elected to give evidence. Both the co-accused Nazario and Robert pleaded guilty to the robbery charge and had been sentenced before they gave evidence.
  2. The evidence given by the accused in relation to the events leading up to the alleged robbery is inconsistent in parts with the evidence given by the co-accused Nazario and Robert. It is unfortunate that those inconsistencies were not put to Nazario and Robert in cross-examination.
  3. According to the evidence that I have decided to accept, on Thursday morning 8 April this year, at about 8:30am, the accused, his friend Nazario, and Robert, the brother of Nazario, were at the house of the accused at Vaitele-uta even though Nazario and Robert live at Aleisa. Soon after 8:30am, the co-accused Shane Chang Tong (Shane), who has since died, arrived in a white taxi driven by him. The accused, Nazario, and Robert then got into a taxi and off in the direction of Nu'u which is next to Vaitele-uta.
  4. There was no mention by Nazario and Robert in their evidence that at any time on their way to Nuu did the accused ask Shane where they were going and Shane replied to be quiet and just sit in case something would happen to him and that at the same time Shane pointed a small gun, which was a real gun, at the accused who was sitting at the back seat of the car. There was also no mention by Robert in his evidence that on their way to Nuu he showed a gun at the accused who was sitting at the back seat of the car.
  5. Nazario and Robert testified that when they arrived at an isolated place at Nuu, the two of them and the accused removed the number plates and wheelcaps of the taxi allegedly on instructions by Shane who cannot appear to reply to all the blame the accused, Nazario, and Robert are now putting on him. Nazario and Robert further testified that Shane then gave them and the accused long-sleeve shirts and long pants to wear which they did. Shane also gave them and the accused t-shirts as disguises to cover their faces but showing only their eyes and they also put those on. Nazario and Robert also said that Shane then gave a gun to Robert and a machete to the accused. This gun, according to Robert, was not a real gun but a wooden gun. There was no mention by Nazario or Robert of a second gun.
  6. When the accused was later called to give evidence, he gave a much more detailed account of what he claims to have happened in the taxi as they drove from Vaitele-uta to Nuu and when they arrived at Nuu. This differs from the evidence given by Nazario and Robert in material respects.
  7. According to the accused, on the morning in question, he was with Nazario and Robert at his house at Vaitele-uta. He had just started to walk to the road to catch a bus to come to Apia when the white taxi driven by Shane arrived. Nazario and Robert then got into the taxi. The accused said that he thought from what Shane said to him that the taxi was coming to Apia. So he also got into the taxi. However, the taxi then drove to Nuu instead of coming to Apia.
  8. The accused said that on their way to Nuu, Robert who was sitting at the front with Shane pointed a gun towards the back seat where he was sitting with Nazario. The accused later said that when he asked Shane as to where they were going, Shane replied to be quiet and just sit in case something would happen to him. At the same time Shane pointed a small gun which was a real gun at him. The accused said he became scared. The accused further said that when arrived at Nuu, Nazario and Robert got out and removed the number plates and wheelcaps of the taxi. None of this evidence by the accused was put to Nazario or Robert in cross-examination, particularly where the accused said Robert pointed a gun at the back-seat of the taxi where he was sitting and Shane also pointed a real small gun at him and said to be quiet in case something would happen to him. I have carefully considered these parts of the accused's evidence and decided not to believe him.
  9. After the accused, Nazario, and Robert had put on their long-sleeve shirts, long pants, and facial disguises which the accused and Robert claim to have been given to them by Shane, they drove to the branch of the Westpac bank at Vaitele-tai. It is obvious that their aim was to rob the bank. When they arrived at the bank, it was already opened as it usually opens at 9:30am in the morning. There were a few people in the vicinity. The taxi was parked close to the bank and the accused, Nazario, and Robert got out while Shane remained in the taxi in the driver's seat. The evidence by Nazario and Robert clearly show that at that time, the accused was armed with the machete and Robert with the false gun. Nazario said he was carrying a bag. On the other hand, when the accused gave evidence he said that it was Nazario who was carrying the machete when they entered the bank. This part of the accused's evidence was not put to Nazario in cross-examination.

(b) During the alleged robbery

  1. When the accused, Nazario, and Robert entered the bank through the main door, Robert who was holding the false gun was at the front. There are discrepancies in the evidence as to who was next whether it was the accused or Nazario. But this is insignificant. Inside the bank at that time were four bank employees. They were Tausulu Taua (Tausulu) the team leader, Elisapeta Sofeni (Elisapeta) a senior teller, Christopher Pesaleli (Christopher) a teller, and Ulavale Pasia (Ulavale) another teller. There was only one customer who was being served at one of the bank counters. He is Justin Kapisi. All four bank employees and the said customer were called as witnesses by the prosecution.
  2. At the time the accused, Nazario and Robert entered the bank, the witnesses Tausulu and Christopher were just about to load four money cassettes into the ATM machine to the front of the customers counters. The witness Ulavale was behind his counter attending to the customer Justin Kapisi (Justin) who was there to do the banking for the Lotto Samoa. The witness Elisapeta was behind her counter doing something else. They were all shocked and scared when the men in long-sleeve shirts, long pants, and facial disguises resembling a ninja style entered the bank. The first of these men pointed a gun at Tausulu and Christopher and demanded they dropped the money cassettes they were about to load into the ATM machine. When Tausulu and Christopher dropped the money cassettes to the floor out of shock and extreme fear for their lives, the man with the gun pointed the gun at Elisapeta and Ulavale to scare them too. The man with the gun was the co-accused Robert. When the money cassettes were dropped to the floor, another co-accused who appears to have been Nazario collected all the four cassettes and put them in the bag he was carrying.
  3. At the same time, the man who was carrying the machete jumped at Tausulu with the machete pointing the machete at her and also waving the machete in a threatening manner at the other bank employees. Tausulu also said that as she was moving back the man with the machete continued to point the machete at her. Tausulu further testified that the man with the machete then pulled out the drawers of the witnesses Elisapeta and Ulavale and took money from the drawers. This man with the machete turned out to be the accused. Christopher testified that the man with the machete went behind the counters, pulled out the drawers, and took money from inside the drawers. He also took the banking by the witness Justin for the Lotto Samoa. Elisapeta testified that the man with the machete came behind the counters, pulled her drawer, and took money from her drawer. Ulavale said that when he saw the first man entered with the gun he became frightened and scared and hid himself under the counter. Perhaps this is why he made no mention of having seen the man who followed with the machete. There are some inconsistencies in the evidence of the four bank employees as to the number of men with facial disguises and the order in which they entered the bank. But this is understable given that the robbery happened so suddenly and unexpectedly and given the state of extreme shock and fear for their lives in which the said bank employees found themselves. All of them said that the robbery happened very fast and took about five minutes.
  4. The witness Justin testified that the man with the gun when he entered the bank pointed the gun around. Another man who was holding a machete then entered and took all of his banking which was on the counter. Justin was also in a state of extreme fear and that must have affected his observations of the number of men involved in this bank robbery.
  5. The evidence given by the co-accused Nazario clearly suggests that the accused was holding the machete, Robert was carrying the gun, and he was carrying a bag when the three of them entered the bank. The co-accused Robert in his evidence said that at the time they entered the bank he was holding the gun and the accused was carrying the machete.
  6. The tune of the accused's evidence is that he did participate in the commission of the robbery but he did so under compulsion. The accused said that while Robert was pointing the gun at the bank employees who were about to load the money cassettes into the ATM machine and those money cassettes were dropped to the floor, Robert told Nazario to pick up the money. Nazario then gave him the machete that he, Nazario, had carried into the bank. At that time he was just standing. The accused said that Robert then pointed the gun at him, swore at him in a stern and demanding tone (avaavau) to "get the funken hell i totonu e aumai tupe", and told him not to just stand but to get behind the counters and pull out the drawers and grab the money. The accused also said he was afraid and so he did as Robert told him. None of this evidence given by the accused was put to Nazario, Robert, or any of the bank employees in cross-examination. As a consequence, leave was granted to the prosecution to recall the witness Robert on the particular part of the evidence where the accused said that Robert pointed the gun at him, swore at him, and told him to get behind the counters, pull out the drawers, and grab the money.
  7. When Robert was recalled by the prosecution, he repeatedly denied that he pointed the gun at the accused, swore at him and threatened him to grab the money as the accused had testified. Robert also said that all of them, including the accused, knew that the gun he had was not a real gun. I must also say here that none of the bank employees or the witness Justin said that he or she heard any swearing from any of the intruders at the time the robbery was being carried out.
  8. After careful consideration of the evidence including the accused's evidence, I have decided to disbelieve the accused's evidence that Robert pointed the gun at him, swore at him, and told him to grab the money and that he obeyed because he was afraid. I also disbelieve the accused's evidence that when he entered the bank with Nazario and Robert, it was Nazario who was holding the knife. This evidence was not put to Nazario in cross-examination. The accused also never denied the evidence of Nazario and Robert that after they arrived at Nu'u, Shane gave a gun to Robert and a machete to the accused. There is no evidence that the machete ever changed hands from that time until they arrived at the bank. It was not until the accused said in his evidence in chief that Nazario was holding the machete when they entered the bank and that Nazario gave him the machete inside the bank that there could be any suggestion that the machete might have been given by the accused to Nazario before they arrived at the bank. This, of course, would be inconsistent with the evidence given by Nazario that when they entered the bank it was the accused who was holding the machete. It is also inconsistent with the evidence of Robert which clearly suggests that it was the accused who was carrying the machete when they entered the bank. I find the accused to be an untruthful witness who was trying to shift the blame on to the others to save himself. I reject the accused's evidence as incredible.
  9. The co-accused Nazario and Robert then left the bank with the money they had, and jumped into the taxi where Shane was waiting. The taxi was already starting but it had to wait for the accused who was still inside the bank. The witness Tagaloa Siaosi Mataia, who witnessed the two men who came out of the bank with the money and jumped into the car, ran over with an axe handle and smashed the rear windscreen of the car. The taxi immediately took off leaving the accused behind inside the bank.

(c) After the alleged robbery

  1. When the accused came out of the bank and saw that his co-accused had left in the taxi without him, he ran around towards the back of Frankie's complex at Vaitele-tai where the bank is located. The witness Tupu Mataia who lives nearby testified that she saw the accused came out of the bank holding a machete and wearing a yellow facial disguise. The accused then ran towards the back of Frankies complex and when he came to a fence he put down his machete and also removed his disguise and put it down before he climbed the fence and ran away. The evidence by the witness Justin who followed after the accused left the bank and saw where the accused was running is similar to the evidence of the witness Tupu Mataia.
  2. The next day, which was Friday 9 April 2010, the police apprehended the accused in the early hours of the running and brought him to the Apia Police Station. When it was daylight, the police and the accused went to the scene of the alleged offence to where the accused had fled after he left the bank. From the scene of the offence, the police and the accused went tot eh house of the accused at Vaitele-uta where the accused pointed out where he had hidden the money he stole from the bank. The police found about $3,325 cash in a used can of herrings buried in the accused's premises.
  3. When the accused was later interviewed by the police regarding the incident, he did not want to make any statement.
  4. The total amount which the bank claims to have been stolen in the robbery is $227,605.

The relevant law


(a) The rule in Browne v Dunn

  1. Because there are several parts of the evidence given by the accused which are inconsistent with the evidence of the prosecution witnesses Nazario and Robert and which were not put to those witnesses in cross-examination, I have decided to refer to what has come to be known as the rule in Browne v Dunn (1894) 6 R67 which was a decision of the House of Lords in a civil case. However, the principles laid down in the speeches of the House of Lords in Browne v Dunn (1894) 6 R 67 have come to be applied not only in civil cases but also in criminal cases.
  2. Perhaps the passage that is most often cited in relation to the rule in Browne v Dunn (1894) 6 R 67 is contained in the speech of Lord Herschell LC where it is stated at pp70-71:

"[It] seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him, and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted".


  1. The rule in Browne v Dunn (1894) 6 R 67 also applies to both prosecuting counsel and defence counsel during cross-examination as it is made clear from R v Ferlon (1980) 71 Cr App R307 where Lord Lane CJ said at p313:

"The basis of the rule, as Lord Herschell pointed out, is to give a witness of whom it is going to be said or suggested that he was not telling the truth an opportunity of explaining and if necessary of advancing further facts in confirmation of the evidence which he has given. There seems to be no reason why there should be any different rule relating to defendants between themselves from that applying to the prosecution vis-a-vis the defendant or the defence vis-a-vis the prosecution. It is the duty of counsel who intends to suggest that a witness is not telling the truth to make it clear to the witness in cross-examination that he challenges his veracity and to give the witness an opportunity of replying. It need not be done in minute detail, but it is the duty of counsel to make it plain to the witness, albeit he may be a co-defendant, that his evidence is not accepted and in what respects it is not accepted".


  1. In Australia, the case that is most often referred to in this area of the law of evidence is perhaps Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 44 ALR 607 where Hunt J formulated the rule in Browne v Dunn (1894) 6 R67 in the following terms at p.623:

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matter, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R67".


  1. Further on at p. 634, Hunt J said:

"I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings"


  1. In New Zealand, the rule in Browne v Dunn (1894) 6 R 67 has been discussed in a number of recent cases, for example, Gutiervez R [1997] 1 NZLR 192, Voss v R [2004] NZCA 296; Heslop v Cousins [2007] NZHC 12, R v Soutar [2009] NZCA 227. The rule in Browne v Dunn is now codified in s.92 of the Evidence Act 2006 (NZ) which provides:

"(1) In any proceedings, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.


"(2) If a party fails to comply with this section, the Judge may –


"(a) grant permission for the witness to be recalled and questioned about the evidence; or


"(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence, or


"(c) exclude the contradictory evidence; or


"(d) make any other order that the Judge considers just"


  1. The New Zealand Court of Appeal pointed out in R v Soutar [2009] NZCA 227 at para 23 that s.29 of the Evidence Act 2006 (NZ) has its origin in common law principles established by the House of Lords in Browne v Dunn (1894) 6 R67.
  2. Apart from the consequences of non-compliance with the cross-examination duties set out in s.92 of the Evidence Act 2006 (NZ), Penlington J in Pain Management Services Ltd v McCallum [2002] PRNZ 227 at [203] set out what in his opinion are the consequences of non-compliance with the rule in Browne v Dunn by saying:

The authorities establish that one of three courses can be taken to remedy the breach:


"First, the non cross-examining party should not be allowed to suggest that the witness who was not cross-examined should be disbelieved.


"Secondly, the non cross-examining party should be allowed to have the witness or witnesses recalled.


"Thirdly, the failure to cross-examine may affect the weight to be given to the evidence and its cogency"


  1. The rule in Browne v Dunn is a rule of fairness. Its purpose is to ensure fairness or fair play at the trial, that is to say, fairness to the witnesses and fairness between the parties. Fairness is thus central to the rule in Browne v Dunn. This was also recognised in Police v Tauauve'a [2010] WSSC 6 per Nelson J.
  2. As the purpose of the rule in Browne v Dunn is to ensure fairness at the trial, the exercise by the Court of its discretion in choosing the appropriate remedy when there is non-compliance with the rule is guided by what is fair in the given circumstances. Usually, the appropriate remedy, as the authorities show, is to recall the witness who has not been cross-examined or has been inadequately cross-examined. But the choice of remedies is always based on what is fair and will ensure fairness at the trial.
  3. Apart from the purpose of imposing fairness on the trial procedures, the rule in Browne v Dunn also serves the purpose of making the trial workable from the Court's point of view. As it was pointed out by Wells J in the Australian case of Reid v Kerr (1974) 9 SASR 367 at pp.373-374:

"[A] Judge (or a jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night".


  1. For completeness, I should also refer to s.56 (2) of our Criminal Procedure Act 1972 which partially reflects the rule in Browne v Dunn (1894) 6 R 67. Section 56 (2) provides:

"(2) The Court may hear evidence adduced by the prosecution in rebuttal of evidence adduced by the defence if, in the opinion of the Judge...or Faamasino Fesoasoani, the defence evidence which is sought to rebut contained fresh matter which the prosecution could not reasonably have foreseen, provided that the evidence in rebuttal or any part of it shall not be merely confirmatory of the prosecution case"


(b) Corroboration and accomplices

  1. The classic definition of the kind of evidence which may constitute corroboration was given in R v Baskerville [1916] 2 KB 658 where Lord Reading CJ in delivering the judgment of the English Court of Criminal Appeal stated at p.667:

"[Evidence] in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. [It] must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it".


  1. The above passage had for many years formed the basis of the corroboration warning given to assessors in respect of a complainant's testimony in sexual cases tried before assessors until such warning was no longer required: R v AB [2003] WSSC 24.
  2. With specific reference to the nature of corroborative evidence required for the evidence of an accomplice, Lord Reading CJ in R v Baskerville [1916] 2 K B 658 went on to say at p.667:

"[Corroborative] evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused".


  1. The rule relating to the necessity of a corroboration warning in respect of the evidence of an accomplice called as a witness for the prosecution on the trial of an accused before a jury was stated in Davies v Director of Public Prosecutions [1954] 1 A11ER 507 where Lord Simonds LC in a judgment concurred in by all the other Law Lords stated at p.513:

"First proposition: In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution it is the duty of the Judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. Second proposition: This rule, although a rule of practice, now has the force of a rule of law. Third proposition: Where the Judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the Appellate Court can apply the proviso to s.4 of the Criminal Appeal Act 1907".


  1. I do not have access to the Criminal Appeal Act 1907 (UK) but the proviso to s.4 of the Act is part of the rule which requires a corroboration warning in respect of the evidence of an accomplice called as a witness for the prosecution on the trial of an accused. It is therefore necessary to know what was said in the proviso to s.4. This may be gathered from the judgment of Lord Simonds LC in Davies v Director of Public Prosecutions [1954] 1 A11 ER 507 where His Lordship said at p.517:

"There is no reference in Baskerville's case itself to the proviso to s.4 (1). The view which it propounded was adopted in R v Lewis [1937] 4 A11 ER 360 subject to the possible operation of the proviso to s.4 (1) of the Criminal Appeal Act. In this case the Court of Criminal Appeal decided that if the warning be omitted, the conviction can only stand if there exists corroborative evidence of such a convincing, cogent and irresistible character that 'the jury', if they had received the proper warning, must have come to the same conclusion".


  1. As it appears from p.512 of Davies v Director of Public Prosecutions, Lord Simonds LC did not disagree with the substance of what was said in the above passage by the Court of Criminal Appeal in R v Lewis [1937] 4 A11 ER 360. This suggests that notwithstanding the absence of a corroboration warning in respect of the evidence of an accomplice, a conviction can still stand "if there exists corroborative evidence of such a convincing, cogent, and irresistible character that 'the jury' must have come to the same conclusion". To my mind, this is a sensible view as there would have been no miscarriage of justice notwithstanding the absence of a corroboration warning.
  2. At this point of my judgment, it will be appropriate to refer to the categories of witnesses called by the prosecution on the trial of an accused who have been treated as accomplices for the purpose of the rule relating to the necessity of a corroboration warning. The term "accomplice" was defined by Lord Simonds LC in Davies v Director of Public Prosecutions [1954] 1 A11 ER 507 at pp 513 – 514 where His Lordship referred to the three categories of prosecution witnesses who had been treated as accomplices on the trial of an accused for the purpose of the rule requiring a corroboration warning. These three categories of prosecution witnesses are set out as follows in Cross on Evidence (1996) 5th Aust ed, p.351 at para [15085]:

"(a) participes criminis of the actual crime charged, whether as principals or accessories before or after the fact in the case of felonies, or as persons committing, procuring, aiding or abetting a misdemeanor;


"(b) receivers giving evidence at the trial of those alleged to have stolen the goods received by them; the relationship between thieves and receiver being that of 'one sided dependence' – there could not be a receiver unless the goods had first been stolen;


"(c) the parties to other crimes alleged to have been committed by the accused, when evidence of such crimes is received on the ground that it tends to prove something more than mere criminal propensity"


  1. It is, however, noted in Cross on Evidence (1996) 5th Aust ed, p.351, para [15085] at footnote 1 that an accessory after the fact is not an accomplice for the purpose of the rule requiring a corroboration warning in several Australian States.
  2. Several reasons have been given in the cases in support of the rule relating to the necessity of a corroboration warning in respect of the evidence of an accomplice. In Director of Public Prosecutions v Kilbourne (1972) 57 Cr. App. R 381, Lord Hailsham LC said at p.404:

"The reason why accomplice evidence requires corroboration is the danger of a concocted story designed to throw the blame on the accused. The danger is not the less, but may be greater, in the case of fellow accomplices".


  1. In the Australian case of Carr v R [2002] TASSC 60, the Supreme Court of Tasmania in a criminal appeal said at para 35 (b) and (c):

"(b) An accomplice's evidence may be unreliable and must be approached with caution.


"(c) There are many reasons why an accomplice's evidence may be unreliable. Those reasons include shifting the blame to others, justification of his own conduct, or playing up the part of others, particularly in a case where the accomplice has not been prosecuted".


  1. Other reasons given in the cases is that the accomplice may try to curry favour with the prosecution by exaggerating the role of the accused or an accomplice may try to minimise his role in the crime and exaggerate that of the accused in the hope of getting a lenient sentence. This second reason would not carry any force where an accomplice had pleaded guilty to or had been convicted of the offence and had been sentenced.
  2. The next matter which is relevant to this case is the question of whether the evidence of one accomplice can corroborate the evidence of another accomplice. This is because the co-accused Nazario and Robert called as witnesses for the prosecution would both be accomplices being principal parties to the robbery that was committed and on which the accused has stood trial. This is sometimes discussed in the textbooks on the law of evidence under the heading of "mutual corroboration of accomplices".
  3. It is clear from Director of Public Prosecutions v Hester [1972] 3 A11 ER 1056 and Director of Public Prosecutions v Kilbourne (1972) 57 Cr. App. R 381 that there is no general rule against mutual corroboration of the evidence of accomplices. The rule against mutual corroboration, insofar as accomplices are concerned, applies to the accomplices who fall within the first and second categories of accomplices stated by Lord Simonds LC in Davies v Director of Public Prosecutions [1954] 1 A11 ER 507 at p.513 but not necessarily to all the accomplices who fall within the third of His Lordship's categories.
  4. In Director of Public Prosecutions v Hester [1972] 3 A11 ER 1056, Lord Diplock said at p.1074:

"There is no case in the books to support the practice of treating the evidence of one suspect witness as incapable in law of corroborating the evidence of another, except where both suspect witnesses are accomplices in the strict sense of being participes criminis with the accused in the crime with which he is charged...


I conclude, therefore, that there is not now, and a fortiori was not in 1885, any common law rule of general application that evidence of a witness which is itself suspect for a reason which calls for a warning of the danger of convicting on it unless it is corroborated, is incapable in law of amounting to corroboration of the evidence of another witness whose evidence is also suspect for the same or any other reason which calls for a similar warning".


  1. In Director of Public Prosecutions v Kilbourne (1972) 57 Cr. App. R 381, Lord Hailsham LC said at pp.405-406:

"I do not, therefore, believe that there is a general rule that no persons who come within the definition of accomplice may be mutually corroborative. It applies to those in the first and second of Lord Simonds's categories [in Davies v Director of Public Prosecutions [1954] 1 A11 ER 507 at pp. 513 -514] and to many other cases where witnesses are not or may not be accomplices. It does not necessarily apply to all witnesses in the same case who may deserve to be categorised as 'accomplice'. In particular it does not necessarily apply to accomplices of Lord Simond's third class, where they give independent evidence of separate incidents, and where the circumstances are such as to exclude the danger of a jointly fabricated story".


  1. I have referred to the principal authorities which set out what has become the traditional common law position with regard to the evidence of accomplices called as witnesses by the prosecution on the trial of the accused and the necessity of a corroboration warning. However, the law has not always stood still in this area. As already pointed out, in several Australian States it has been held that an accessory after the fact is not an accomplice for the purposes of the rule requiring a corroboration warning in respect of an accomplice's evidence: Cross on Evidence (1996) 5th Aust ed p. 351, para [15085], at footnote 1. In South Africa, the rule against mutual corroboration has been rejected: State v Avon Bottle Store Pty Ltd 1963 (2) SA 389 (AD); Nkambule v R [1950] AC 379 (PC). In New Zealand, corroboration of an accomplice's evidence is no longer required for the accused to be convicted and the Judge is no longer required to give any warning to the jury relating to the absence of corroboration: s. 12 B(1) of the Evidence Act 1908 (NZ) as inserted by the Evidence Amendment Act (No. 2) 1986. In Canada, as pointed out by Nelson J in Police v Silipa [2008] WSSC 81, accomplices' evidence are no longer singled out for special treatment because of judicial dissatisfaction with the corroboration warning: R v Vetrovec (1982) 136 DLR (3d) 89. These are important developments which require proper research and careful consideration. However, time has denied me such an opportunity. The absence of adequate research material in Samoa has also been a handicap. But the delivery of this judgment cannot be further delayed. I am, therefore, applying the well-established common law principles for the purposes of this case.

(c) The defence of compulsion

  1. Compulsion is a statutory defence in Samoa. It is provided in s.14 of the Crimes Ordinance 1961 which codifies part of the common law defence of duress which may apply to where a criminal offending is carried out under threat of death or grievous bodily harm by another person: R v Neho [2009] NZCA 299 per Randerson J at para [9]. Section 14 relevantly provides;

"(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion, except where the offence committed is treason, murder, attempted murder, aiding or abetting rape, abduction, robbery, causing grievous bodily harm and arson."


61. Section 14 of our Crimes Ordinance 1961 is in similar terms to s. 24 of the Crimes Act 1961 (NZ) so that the New Zealand authorities on the interpretation and application of s. 24 would be relevant to the interpretation and application of our s. 14. The leading New Zealand authority on the statutory defence of compulsion is the decision of the New Zealand Court of Appeal in R v Teichelman [1981] 2 NZLR 64 where Richardson J in delivering the judgment of the Court said at p. 66:


"While based on common law principles, s. 24 clearly and precisely limits the availability of a defence of duress to a criminal charge. The legislation provides a narrow release from criminal responsibility where its strict requirements are met. It reflects a policy decision that in those limited circumstances (and where the offence is not in the gravest category excluded from the application of the defence under s. 24(2) ) a person faced with the threat of immediate death or grievous bodily harm may properly be excused if he chooses the lesser evil of committing the offence."


62. Richardson J then went on to set out the elements of the defence of compulsion by saying at pp 66 – 67:


"First, there must be a threat to kill or cause grievous bodily harm. Second, it must be to kill or inflict that serious harm immediately following a refusal to commit the offence. Third, the person making the threat must be present during the commission of the offence. Fourth, the accused must commit the offence in the belief that otherwise the threat will be carried out immediately. It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told. It follows from what we have said that before the matter can go to a jury there must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so in a position to carry out the threat or have it carried out then and there."


63. Richardson J also pointed out that before the defence of compulsion can be left to the jury, there must first be a proper evidential foundation to make the defence a live issue. His Honour said in R v Teichelman [1981] 2 NZLR 64 at p. 66:


"The appellant was not entitled to have the possibility of compulsion considered by the jury unless there was an evidential foundation for the defence. (Salaca v The Queen [1967] NZCA 4; [1967] NZLR 421 and R v Joyce [1968] NZPoliceLawRp 8; [1968] NZLR 1070. It is necessary to consider whether or not there was evidence capable of being acted on by the jury that the appellant committed the particular offence 'under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed'"


64. On the requirement for a proper evidential foundation which makes the defence of compulsion a live issue before it can be left to the jury, North P in delivering the judgment of the New Zealand Court of Appeal in R v Joyce [1968] NZPoliceLawRp 8; [1968] NZLR 1070 said at p. 1077:


"Before the appellant was entitled to have the defence of compulsion considered by the jury, he was required either by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or a combination of the two, to place before the Court such material as made compulsion a live issue fit and proper to be left to the jury: see R v Gill [1963] 2 All ER 688, 691. In short there must be present reasonable evidence that the appellant committed an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed."


65. It is clear from the authorities that if there is no proper evidential foundation for compulsion to be left to the jury the Judge would be entitled to withdraw the defence from the jury: see for example R v Joyce [1968] NZPoliceLawRp 8; [1968] NZLR 1070 at p. 1077; R v Neho [2009] NZCA 299, at paras [14] and [21]. But if there is sufficient evidence to make compulsion a live issue, the onus is on the prosecution to negative the defence beyond reasonable doubt: Salaca v R [1967] NZCA 4; [1967] NZLR 421 at p. 422.


66. In R v Neho [2009] NZCA 299, Randerson J in delivering the judgment of the New Zealand Court of Appeal referred extensively to R v Teichelman [1981] 2 NZLR 64 and then said at paras [13] and [14]:


"[13] It has been recognised as implicit in the defence of compulsion that the offender must have no realistic choice other than to break the law. If there is a reasonably available opportunity for the offender to seek help or protection or to escape, the defence will not ordinarily be available. The issue was discussed by this Court in R v Raroa [1987] 2 NZLR 486 at 490 – 491. The Court adopted with apparent approval the following passage from the judgment of the Court of Criminal Appeal of Ireland in Attorney-General v Whelan [1933] IEHC 1; [1934] IR 518 at 526:


"Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there was reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats."


"[14] In delivering the judgment of the Court in Raroa, Bisson J added that the last words of this passage should not be taken as absolute requirements of the defence of compulsion but as factors to be taken into account by a jury (or a Judge if sitting alone) in determining the belief of the accused."


  1. On this question about whether the accused believed that the threats of immediate death or grievous bodily harm will be carried out, Bisson J in delivering the judgment of the New Zealand Court of Appeal in R v Raroa [1987] NZCA 305; [1987] 2 NZLR 486 said at p. 492:

"[Where] the wording of s.24 specifically refers to the belief of the accused thereby requiring a subjective test nevertheless a question of fact does arise whether such belief is genuinely held which the prosecution must negate beyond reasonable doubt. Whether such a belief was reasonable or well grounded would be relevant to the issue whether it was genuinely held."


68. Thus in terms of the statutory defence of compulsion, the belief of the accused that the threats will be carried out need not be reasonably held. But the reasonableness or otherwise of the accused's belief will be relevant to the question of whether the belief was genuinely held.


69. Counsel for the accused in her supplementary written submissions briefly submitted that s. 14 of the Crimes Ordinance 1961 is unconstitutional by excluding the application of the defence of compulsion to serious crimes including robbery. Because of that, s. 14 is inconsistent with Article 9 (1) of the Constitution which provides the right to a fair trial, Article 9 (3) which provides for the presumption of innocence, and Article 15 which provides for freedom from discriminatory legislation. Counsel did not explain or sufficiently explain the particular parts of Articles 9 (1), 9 (3) and 15 alleged to have been violated and how they have been violated. However, in support of her submissions she referred to the Canadian case of R v Langlois (1993) 80 CCC (3ed) 28. Unfortunately, a copy of that case was not produced to the Court, presumably because the report cited is not available in Samoa. As a result, I have had to rely on a copy of that decision available on Can LII.


70. In R v Langlois – 1993 Can LII 3594, Fish J. A. in the Court of Appeal of Quebec held that s.17 of the Criminal Code of Quebec violates the principles of fundamental justice provided in s. 7 of the Canadian Charter of Rights and Freedoms. Section 7 of the Canadian Charter provides:


"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."


71. The wording of Articles 9 (1), 9 (3), and 15 of our Constitution are quite different from the wording of s. 7 of the Canadian Charter of Rights and Freedoms but it was not explained or sufficiently explained how R v Langlois and the relevant principle it stands for could relate to Articles 9 (1), 9 (3), and 15. To rely on an alleged violation by a statutory provision of the Constitution, counsel should provide adequate submissions supported by sufficient relevant authorities. To declare a statutory provision enacted by Parliament unconstitutional is not a task to be lightly undertaken by the Courts. There must be sufficient material, including relevant authorities and adequate submissions, made available to the Court before it will accede to an application to have a statutory provision declared unconstitutional. In any event, on the facts of this case which I have decided to accept, I find that the accused did not act under compulsion when he committed the offence of robbery with which he has been charged.


Discussion
72. In a criminal trial, knowledge of the criminal law regarding the elements of the offence to be proved and of any possible defence is not enough. Knowledge of the law of evidence is also essential. This is because the prosecution bears the onus of proving the offence with which the accused is charged beyond reasonable doubt. Proof beyond reasonable doubt requires the prosecution to adduce sufficient relevant and admissible evidence to discharge the onus placed on it. If this cannot be done, then no knowledge of the criminal law regarding the elements of the offence charged will save the case for the prosecution from being dismissed for lack of proof beyond reasonable doubt. Knowledge of the law of evidence and its rules on admissibility is therefore essential. I have not mentioned the law on criminal procedure because that has not been in issue in this case. But knowledge of the law on criminal procedure is also essential. So in a criminal prosecution, knowledge of the criminal law, the law of evidence, and the law on criminal procedure is essential. All these three laws apply to every criminal prosecution in this Court.


73. The main difficulty in this case arose from non-compliance by the defence with the rule in Browne v Dunn (1894) 6 R 67 and the absence of any objection from the prosecution whilst that non-compliance was occurring. It was not until late into the evidence of the accused when he said that the witness Robert pointed the gun at him inside the bank and said to "get the funken hell i totonu e aumai tupe" that it occurred to me that the defence may be relying on compulsion but that particular part of the accused's evidence had not been put to the witness Robert in cross-examination. I, therefore, asked counsel for the prosecution whether the prosecution would be recalling the witness Robert on that particular part of the accused's evidence. Leading counsel for the prosecution replied yes. At that time, the accused had already given other evidence inconsistent with parts of the evidence of the witness Nazario and other parts of the evidence of the witness Robert. However, this trial had taken longer than originally scheduled because it had already been adjourned part-heard when the prosecution called Robert to the witness stand before he had been sentenced on his guilty plea to the same charge of robbery on which the accused is standing trial. I, therefore, gave leave to the prosecution to recall Robert only in relation to that part of the accused's evidence where he said Robert pointed the gun at him inside the bank, swore at him, and told him to grab the money.


74. It would be apt at this junction to be reminded of Reid v Kerr [1974] 9 SASR 367 where Wells J said at pp. 373 – 374:


"[There] is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night."


75. One of the sanctions that may follow non-compliance with the rule in Browne v Dunn is to recall the witness who has not been cross-examined or inadequately cross-examined on a new inconsistent matter that has subsequently arisen from evidence of the other party. Another sanction is a reduction in the weight to be given to the new inconsistent evidence. Both sanctions are applicable to the inconsistent evidence given by the accused which was not put to the witnesses Nazario and Robert in cross-examination.


76. I have, however, decided to disbelieve the accused and accept the evidence of Nazario and Robert. In doing so, I bear in mind the warning that although I may convict on the uncorroborated evidence of an accomplice, if I am satisfied of its truthfulness, it is dangerous to do so without corroboration: Davis v Director of Public Prosecutions [1954] 1 All E R 507 per Lord Simonds L C at p. 513. I am also conscious of the fact that because both Nazario and Robert are accomplices being principal parties to the robbery with which the accused is charged, their respective evidence cannot be mutually corroborative: Director of Public Prosecutions v Hester [1972] 3 All E R 1056 per Lord Diplock at p. 1074; Director of Public Prosecutions v Kilbourne [1972] 57 Cr. App. R 381 per Lord Hailshaw L C at pp. 405 – 406.


77. The accused in his evidence admits to having committed the robbery with which he is charged. However, he claims that he did so under compulsion. For the purpose of the defence of compulsion, there are two crucial parts of the evidence. The first is whether the accused was in possession of the machete when he, Nazario, and Robert entered the bank. This is important because if the accused was in possession of the machete at that point in time, then it is clear from the evidence of the bank employees that the man with the machete was actively involved in threatening the witness Tausulu with the machete, waving the machete at other bank employees in a threatening manner, and going behind the counters and pulled out the drawers and grabbed the money. The witness Justin also said that it was the man with the machete who entered the bank and took his banking. The second crucial part of the evidence is whether the witness Robert pointed the gun he had at the accused, swore at him, and told him to grab the money, and out of fear the accused did as he was told.


78. Nazario and Robert had both testified in their respective evidence in chief that after they arrived in the taxi at Nu'u, Shane gave a gun to Robert and a machete to the accused. The accused did not deny or dispute those parts of the evidence of Nazario and Robert. There is also no evidence from the accused, Nazario, or Robert that on their way from Nu'u to the bank at Vaitele-tai the accused handed the machete to Nazario. So the reasonable inference to draw is that the accused was still in possession of the machete during that time. Nazario said when they arrived at the bank and they got out of the taxi with the accused and Robert, the accused was holding the machete, Robert was carrying the gun, whilst he, Nazario was carrying a bag. Robert's evidence also clearly suggests that at the time they entered the bank it was the accused who was carrying the machete. The accused in his evidence said that when they entered the bank it was Nazario who was carrying the machete whilst Robert was carrying the gun. The accused said it was when they were inside the bank and Robert told Nazario to grab the cases on the counter that Nazario gave him the machete. When Robert was recalled by the prosecution, he said that when he told Nazario to grab the cases on the counter the accused was still holding the machete. Robert denied that Nazario handed the machete to the accused inside the bank. I have found the evidence of both Nazario and Robert believable but not the evidence of the accused. My impression of the accused is that he was trying to save himself by giving incredible evidence.


79. In relation to the second crucial part of the evidence, the accused said that Robert was pointing the gun around inside the bank and when the gun came around to him (the accused), Robert said to him (avaavau) in a stern and demanding tone (which made him afraid) not to just stand but to go in and grab the money. When defence counsel reminded the accused that Robert had given his evidence in English because his Samoan is not good, the accused said that Robert said to him "get the funken hell i totonu e aumai tupe" which is still about half English and half Samoan. When Robert was recalled by the prosecution, he denied that he pointed the gun at the accused, swore at him, and told him to grab the money. Robert also said that all of them, including the accused, knew that the gun he had was not a real gun. Robert further said that at no time did he point the gun at the accused. None of the bank employees who were present at the time of the robbery and were called as witnesses by the prosecution ever said that he or she heard anyone swearing in a stern and demanding tone or observed the machete being given by one of the intruders to another. Here again, I have decided to accept the evidence of Robert and disbelieve the evidence of the accused.


80. It follows that on the evidence that I have decided to accept the defence of compulsion cannot possibly succeed. There is simply no proper evidential foundation for the defence. In any event, if I were to accept the evidence of the accused, there was really no threat of immediate death or grievous bodily harm from Robert to the accused. All that Robert did was to point the gun around inside the bank and when the gun came to be pointed in the direction of the accused Robert swore at the accused and told him to grab the money which was the only reason why this gang went to the bank. It is obvious that this gang did not go to the bank for Robert to shoot the accused. They went to the bank to steal money from the bank. To say that in the circumstances stated by the accused there was a threat of immediate death or grievous bodily harm would be overstating the situation. There was also no express evidence from the accused that he believed he would have been shot if he had not obeyed the instruction from Robert. Apparently, the accused and Nazario are friends and Robert is acquainted with the accused through his brother Nazario. I do not believe that in the circumstances Robert would have shot his brother's friend just to rob the bank. I also do not accept that the accused had any genuine belief that Robert would shoot him if he disobeyed. I cannot infer such a genuine belief from the circumstances as suggested by defence counsel in her submissions. In my opinion, the evidence given by the accused, even if accepted, falls well short of sustaining the defence of compulsion. I, therefore, reject that defence.


81. It follows that the commission by the accused of the robbery with which he is charged was not done under compulsion. I therefore find the charge of robbery proved beyond reasonable doubt.


82. I also find the charge against the accused of being armed with a dangerous weapon without a lawful purpose to have been proved beyond reasonable doubt.


CHIEF JUSTICE


Solicitor
Attorney General's Office, Apia for prosecution
Leavai Law Firm for accused

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