Police v Tauauvea [2010] WSSC 6 (10 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LAUVI IOAPO TAUAUVEA,
male of Sataoa Safata.
Accused

Counsels: Mr K.Koria & Ms L.Sua for the prosecution
Mr TRS.Toailoa & T.Toailoa for the accused

Hearing: 8, 9 and 10 March 2010

Ruling: 10 March 2010

RULING OF NELSON J.

The rule in Browne v Dunn requires that the case for any accused person be put to witnesses for the prosecution as part of cross examination of those witnesses. The authorities make it clear the failure to do so may be held to imply acceptance of their evidence in chief - see generally Cross 7^th edition paragraph 9.58. The rationale for the rule was well put by Wells, J. (no pun intended) in Reid v Kerr (1974) 9 SASR 367, 373:

“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.”

At its heart, it is an issue of fairness.

In this case the prosecution evidence is that the accused stabbed the victim twice. Some prosecution witnesses saw one stab, other prosecution witnesses saw the other stab. All consistently asserted that the person in possession of the knife was the accused. In cross examination they were never asked otherwise.

The accused has elected to testify as part of his case and in the witness stand in examination in chief, he has testified that the victim was the one in possession of the knife and that in the course of his struggle with the victim for possession of the knife, they fell down together and the victim became injured. He remembers no other occasion when he came into contact with the victim or the knife. Quite clearly this is a different version to the evidence of the prosecution witnesses and equally clearly, the accuseds version was not put to the prosecution witnesses by defence counsel. Counsels explanation for that is their case is the prosecution eye witnesses are either lying or are mistaken and they did not see what they say they saw, nor were they in any position to see what they say they saw.

That is however only partially correct. It appears from the accuseds evidence the defence case is not only that the prosecution eye witnesses did not see anything, it goes further and asserts as the accused has in his evidence that what actually happened is the victim had the knife and in the course of his struggle with the victim for possession, the victim suffered his stab wounds. That is an assertion that the victim was killed accidentally or by his own hand. This should have been put to the eye witnesses for the prosecution and I do not agree with the argument that putting it to the prosecution witnesses undermines the defence case or amounts to an admission that the prosecution witnesses were therefore there.

The rule has been infringed and the only question in my mind is where to go from here. That is a more vexed question. The courts options are many but as noted in the authorities, the judge should take the course that is just and reasonable. Although the accused is the last witness in this trial and notwithstanding that it would incur costs to recall the prosecution eye witnesses (one of whom lives in Savaii) I believe the fair and appropriate course is to give the prosecution the opportunity to recall their eye witnesses to testify on the issue now raised by the defence. Leave is accordingly given to the prosecution at the end of the evidence for the accused to recall their witnesses to deal with this aspect.

JUSTICE NELSON