Police v Ulberg - Second Ruling [2011] WSSC 95 (6 September 2011)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

NOAH ULBERG
male of Vailoa and Lepea
Defendant

Counsel: Ross Burns and Precious Chang for the prosecution
Semi Leung Wai for the defendant

Conclusions: 25/8/2011
Reasons: 6/9/2011

Ruling of Vaai J

1. The accused is charged with murder following the slashing of his wife with a bush knife. At least fifteen strikes were delivered. She died on the way to hospital.
   
2. The prosecution intended to produce as evidence the written report by the doctor who received the dead body and the written report by Doctor Rutherford a Forensic Pathologist from New Zealand. Defence counsel consented to produce by consent the written report prepared by the admitting doctor. He also consented to Doctor Rutherford producing his report as evidence. But he objected to Doctor Rutherford producing post mortem photographs of the deceased.
   
3. The trial was due to commence on the 29th August 2011. On the 25th August 2011 I met with counsels in chambers to determine and rule on the objection. Defence counsel concedes that the photographs are legally admissible but they have the tendency to produce results prejudicial to the accused. As they were of little probative value they should not be admitted.
   
4. Doctor Rutherford did not perform the autopsy examination. Doctor Rahman a renowned and respected pathologist did the examination but he died before he completed his autopsy report. Doctor Rutherford was requested by the appropriate authorities to prepare a written brief of evidence putting together information from the report of the admitting doctor, the partially completed autopsy report of Doctor Rahman and post mortem photogprahs.
   
5. The purpose of producing the photographs is to assist Doctor Rutherford in explaining the nature and position of the injuries and more particularly to enable the assessors to appreciate the position and degree of the injuries to the head, leg and back of the deceased. The three photographs presented the injuries in a realistic and comprehensive form; they conveyed what counsel and the doctor quite properly tried to explain by words alone.
   
6. Having regard to the limitations of the Samoan language to translate and explain medical terms and language, the objection does not in my respectful view appear to be well founded. As Doctor Rutherford did not perform the post mortem examination, it would have been difficult for him to describe with accuracy the position and nature of the injuries inflicted. The availability of the photographs would make clear to the assessors what counsel and witnesses quite properly endeavored to convey by words alone.
   
7. The photographs presented the different injuries on the different parts of the deceased's body; they did not repeat the same physical facts.
   
8. It could not be said as defence counsel contended that the photographs have little or no evidential value and would not prejudice the minds of the assessors against the accused.
   

Result

9. For the above reasons the photographs were held admissible.
   

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JUSTICE VAAI