IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 10/94

BETWEEN:

LESA FARANI POSALA
of Lalovaea, Architect
Appellant

AND:

POLICE
of Apia
Respondent

C.A. 13/94

BETWEEN:

THE ATTORNEY-GENERAL
Appellant

AND:

LESA FARANI POSALA
Respondent

Coram: The Rt Hon. Sir Robin Cooke, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 9 August 1995

Counsel: T.K. Enari for Posala
K. Latu for Police/Attorney-General

Judgment: 18 August 1995

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

The appellant and Ioane Soosemea were jointly charged under s.79 of the Crimes Ordinance 1961 with having wilfully and without lawful justification caused grievous bodily harm to Faitala Leota on the night of 31 July 1993. The appellant was also charged with assaulting Elsie Esera at the same time. They were tried together in the Supreme Court before Sapolu C.J. as a Judge sitting alone. Ioane Soosemea was acquitted, but the appellant was found guilty of both the charges against him and on 14 July 1994 he was fined $1900 on the more serious charge and $100 on the charge of assault. He sought a retrial under s.108 of the Criminal Procedure Act 1972, one of the grounds being the discovery since trial of new evidence on the grievous bodily harm charge. The Chief Justice dismissed that application on 12 July 1994.

He appeals against his conviction on the charge of causing grievous bodily harm, on the ground that it was against the weight of evidence; and he also appeals against the Chief Justice's refusal to grant a new trial on that charge. The Attorney-General appeals against sentence.

At the outset we raised with or Enari the question of whether it was possible to appeal to this Court against the Chief Justice's order refusing a retrial. Section 108 of the Criminal Procedure Act dealing with retrials contains no appeal provisions. Mr Enari referred us to s.45(1) of the Judicature Ordinance 1961 giving the Court of Appeal jurisdiction to hear and determine appeals from any judgment, decree or order of the Supreme Court, but is expressed to be subject to that Ordinance, and subsection (2) of s.45 suggests that this general power of appeal is to limited to the interpretation and effect of Constitutional provisions. Section 53. of the Ordinance (repealed by s.5 of the Judicature Amendment Act 1992/1993) dealt specifically with appeals in criminal cases, giving to a person convicted on a trial held in the Supreme Court a right of appeal only against conviction and/or sentence.

The 1992/1993 amendment to the Criminal Procedure Act 1972 introduced in Part VIIA provision for appeals to this Court in criminal cases, s. 164K thereof referring to the right to appeal against conviction or sentence. Section 164B extends that right to certain pre-trial rulings or orders. Part VIIA runs to many pages and is clearly intended to operate as an exclusive code dealing with criminal appeals from the Supreme Court. The absence in it of any reference to an appeal against orders under s.108 satisfies us that there is no such right. Accordingly it seems appropriate to deal with Mr Enari's attempt to appeal against the refusal of a retrial by treating it as an appeal under s.164N(c) of the Criminal Procedure Act, on the basis that the Chief Justice's refusal to grant a retrial in respect of the discovery of fresh evidence constitutes a miscarriage of justice.

The prosecution case on the grievous bodily harm charge was that on the evening of 31 July the complainant (a boy of 13) and his brother were walking past the appellant's house when they were threatened by dogs on the property. They retaliated by throwing gravel at them, some hitting the house and a piece came inside, according to the appellant, and narrowly missed his daughter. He chased after them and caught up with the boy and his aunts, who tried to protect him. One (Elsie) was assaulted by the appellant and he then punched the boy on the face; he fell down and a prosecution witness described further punches and kicking while he was on the ground. Soosemea came up and was also seen to punch him once. The boy was taken to hospital suffering from two comminuted fractures of the jaw and other injuries to his mouth which required wiring together. He was in hospital for what now appears to have been six days, and was limited to a soft or fluid diet for six weeks.

The appellant gave evidence and called a number of witnesses whose version of events differed from that of the complainant's family members who were the principal prosecution witnesses. He said he merely chased the boy to ascertain who he was so that he could report him to the police. There was a struggle with a girl holding him during which the boy and he was pushed and tripped over him, falling into a hedge. He then left the scene. Other defence witnesses tended to confirm his account. A doctor gave evidence that because of an earlier injury to his right hand, it would be difficult for him to clench his fist to inflict the blows said to have been administered to the boy.

In a carefully reasoned judgment the Chief Justice accepted the evidence given by the prosecution witnesses, finding in their favour on credibility. He did not believe and rejected the suggestion from defence witnesses that some other person caused the injuries after the boy had fallen and the appellant had left. He also determined that the single punch which Elsie saw Soosemea inflict could not have caused the serious injuries to his jaw, and that he did not aid or abet the appellant's action. Soosemea did not give evidence. The Chief Justice expressed his conclusion in this passage at p. 13:

"I have considered all this evidence and I have decided that Lesa [the Appellant] did in fact assault the victim by punching him several times on the jaw and then kicking the victim on the jaw several times while on the ground. This is clear from the evidence of Elsie, Tofi and Lisi who were all on the scene from start to end. Even though there are some differences in their observations of what happened, I do not find that unusual in a case of this kind with so many people present on the scene and also in view of the particular circumstances of' this case. All three witnesses agree that Lesa delivered several punches to the victim and then again kicked the victim on the ground several times. The evidence of the victim himself is that Lesa punched him and he fainted and fell down unconscious."

There was ample evidence on which His Honour was entitled to rely in support of that conclusion and Mr Enari's submission that he should have been left in reasonable doubt over who caused the injuries must be rejected.

He also submitted that only actual bodily harm had been caused to the boy, not grievous bodily harm as charged, and he referred to D.P.P. v. Smith [1961] A.C. 290 with its well-known description of such harm as "really serious". He pointed out that in his evidence the dentist who treated the boy described the injuries as only "serious", and that terms was picked up and used by the Chief Justice. With respect, we think this submission ignores the reality of those injuries and their consequences. The word "really" in the expression "really serious" serves to emphasise that they must be serious to qualify as grievous bodily harm; it does not introduce a higher degree of seriousness. We have no doubt that on any reasonable view of the matter, what this boy suffered must be regarded as falling within that description. We admitted the hospital records of his condition and treatment at Mr Enari's request during the hearing of the appeal, but they contain nothing leading us to any other view of the injuries. We direct the return of those records to the hospital authorities. Accordingly we are satisfied that the Chief Justice was correct in finding the charge proved.

This brings us to the new evidence point. At the hearing of the application for retrial there were affidavits from Ioane Soosemea to the effect that only he assaulted the boy, and that both before and after the trial statements had been made by the victim's brother and other relatives or family friends that they had agreed to put the blame for the attack onto the appellant. Evidence along these lines was given at the hearing, but the allegations were strongly denied by witnesses called by the respondent.

They were cross-examined and again in a carefully reasoned decision, the Chief Justice said at p. 7:

"I must say that after due consideration of the fresh evidence now given by Ioane Soosemea, there is no doubt in my mind that if the purpose of this evidence is to exonerate the applicant and place the whole assault on Ioane Soosemea, then the evidence is so incredible that it must be false."

and after emphasising matters which supported this, he concluded:

"In all I reject the fresh evidence now proposed by Ioane Soosemea as unbelievable and incredible. I also find that it has not been demonstrated that any miscarriage of justice occurred in the first trial because of the absence of the fresh evidence Ioane Soosemea now proposes to give."

In arriving at this decision the Chief Justice correctly directed himself on the well-known tests for admissibility of fresh evidence, commencing with R. v. Mareo (No. 2) [1946] N.Z.L.R. 297. It must be new or fresh in the sense that it was not available to be given at the trial; it must be relevantly credible, and be such that, if given with the evidence adduced at trial, it might reasonably have led the court to reach a different verdict. Mr Enari submitted that the Chief Justice had gone too far in making the decision himself that the evidence was not credible, citing the comment by Lord Parker C.J. in R. v. Parks [1961] 3 All E.R. 633, 634, to the effect that to satisfy the test of credibility the new evidence must be well capable of belief, and that it is not for the Court hearing the application to decide whether it is to be believed or not. That is for the Court which eventually retries the case if the evidence is admitted.

Again with respect, we think that Mr Enari's submission on this point is over-refined. It is quite clear from the passages we have cited and from the whole tenor of his judgment that when he applied the word "incredible" to the fresh evidence, Chief Justice meant that in his opinion nobody could believe it. Once a judge reaches that conclusion, it is his plain duty to reject the evidence, because (to use Lord Parker's words) he has not found it capable of belief. Accordingly we are satisfied there has been no miscarriage of justice resulting from his decision; indeed, in the light of his careful analysis, the conclusion he reached about the proposed evidence was inevitable.

For these reasons the appeal against conviction dismissed.

Sentence Appeal

Mr Latu's submissions in support of this appeal by the Attorney-General were directed at the fine of $1900 imposed on the grievous bodily harm conviction, the grounds being that it was manifestly inadequate and that the Judge placed undue weight on the issue of the respondent's being a member of Parliament. His seat was automatically forfeited on conviction, and the Chief Justice took this into account as being an added punishment. He also noted that he was a first offender with a record of public service and achievement in his profession of architecture, and he. regarded this conduct as out of character. Although there was some provocation in the throwing of stones at the house, he rightly considered that the respondent's actions were quite disproportionate.

We were supplied with a list of cases in which varying penalties had been imposed, ranging from probation up to 5 years imprisonment for offences of this description. The list only serves to confirm that the circumstances of such cases can differ so widely that a simple comparison of sentences is of Little use. What is beyond question is that an assault of this kind by a mature man against a young boy is a serious matter which would usually call for a significant prison term. The Chief Justice saw fit to take into account the mitigating features mentioned above, and other matters reflected in the testimonials submitted to him by :esponsible members of the community. It is also relevant that in his favourable pre‑sentence report the Chief Probation Officer concluded with the suggestion of a fine as an alternative to imprisonment, should the Court be minded to exercise leniency.

Mr Latu did not ask for a prison sentence and this approach on behalf of the Attorney-General has also assisted us to reach the conclusion that notwithstanding the seriousness of the offence, the interests of justice have been adequately served by the. fine, which counsel informed us has now been paid. Although Mr Latu suggested we might increase it and direct payment of part to the victim, we are influenced by the fact that the Chief Justice did not see fit to make such an award. We have no information about the expenses incurred by the boy's family as a result of the assault, and any question of compensation may be more appropriately dealt with in a civil action, if the family wishes to pursue that course rather than treating the whole matter as now closed. Accordingly, the appeal against sentence is also dismissed.

Cooke P.
Casey and Bisson JJ

Solicitors:
Apa and Enari, Apia, for Posala
Attorney-General's Office, Apia