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Papu v Police [2007] WSCA 2; CA 08, 09 of 2006 (14 September 2007)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

LOI LOGAI PAPU
First Appellant

AND

VAVE SIIFUA TALIMATASI FAISAUVALE
Second Appellant

AND

POLICE
Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Salmon
The Honourable Justice Paterson

Hearing: 04 September 2007

Counsel: P Chang, L Petaia and A Lesa for Prosecution
AT Roma for First Appellant
S Leung Wai for Second Appellant

Judgment: 14 September 2007

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal against the appellants’ conviction for murder after trial before the Chief Justice and a panel of assessors. At the commencement of the hearing of the appeal we considered applications to enlarge and extend the time for filing the record and an application that the record of appeal filed on behalf of Faisauvale be accepted as the record of appeal in respect of the appellant Papu. There being no opposition to these applications by the respondent they were granted.

[2] The appellants were jointly charged that they were parties to the murder of Sauao Tanielu by being part of a group of people who formed the common intention to prosecute an unlawful purpose namely the carrying of armed weapons to the village of Satapuala to burn houses and frighten people and that in the prosecution of the common purpose the commission of the murder of Sauao Tanielu was or ought to have been known to be a probable consequence of the common purpose.

Background

[3] On the 26th of December 2005, the police were called to a disturbance between the villagers of Satapuala and Faleatiu. In the course of that disturbance shots were fired into the air, rocks were thrown and the road to the airport was blocked. Men from the village of Faleatiu were seen carrying weapons. Fortunately the police were called before the disturbance got out of hand and there were no fatalities or injuries. It seems that this event provided the excuse for the raid described below.

[4] On the evening of the 31st December 2005, a group of men from the village of Faleatiu set out on a rampage through the inland part of the village of Satapuala in the course of which three boys were stripped, beaten, sexually abused and forced to accompany the group, houses were torched, Sauao Tanielu was killed as a result of a rifle shot, several other villagers were injured, and damage was caused to the Satapuala Primary School. After numerous threats of death, the boys were released. Five men were charged either as principals or parties to murder. Three were tried and convicted prior to the trial of the present appellants. We now propose to set out in some detail the sequence of events on that evening.

[5] Three boys were at a house owned by the family of one of them, playing cards. A man they later discovered to be Lealofi came into the house carrying two guns which he pointed at the boys. He asked them where the guns were in the house and was told that there were none. The appellant Loi Papu was told to tie up two of the boys. He did so. The boys were stripped and beaten using a firearm, fists and feet. The boys saw the other members of the group, all of whom were carrying firearms. Lealofi gave orders for two of the boys to be burned with the house. Loi tried unsuccessfully to stab one boy in the stomach with a knife. Eventually the boys were taken out of the house and the house was set on fire using an accelerant. The appellant Faisauvale was identified as part of the group and as one of those carrying a gun.

[6] The boys now stripped of their clothes and their shoes and tied together, were required to accompany the group of men to the house of Manaia. Lealofi instructed his men to see whether there was anyone in the house and if not to burn it. It was found to be empty and it too was destroyed by fire. The boys were beaten again. They heard Lealofi tell the others that night, New Years Eve, was the night the people of Satapuala will be killed.

[7] The group continued to Ah Ki’s house. When they arrived there Sauao Tanielu was standing outside fixing a light. Lealofi told him to "stand still don’t move". Tanielu asked who they were and Lealofi replied "this is the master coming to kill the whole of Satapuala". Prior to arriving at the house Lealofi had exchanged guns with Kirifi. Tanielu again asked who they were and was shot by Kirifi. A girl ran out of the house and she too was shot. Tanielu was killed and the girl received a stomach wound. There appears to have been at least one further shot fired while the party was at that house. The remaining inhabitants of the house ran out of the house and hid. As the group was leaving the house further shots were fired.

[8] The group moved on to a fourth house identified as that of Lima Mou. Members of the group fired shots into this house and at least two people were injured. One, a child, was so badly hurt that her leg had to be amputated. At some stage during the shooting at Lima Mou’s house Lealofi instructed the men not to shoot any more but to save their ammunition.

[9] As the group moved on to the Satapuala Primary School the boys were told that this would be the night when they were to be killed. The group fired shots into and vandalised the school and made insulting and disgusting threats against the Satapuala villagers. The boys were again told that they would be killed.

[10] The group moved on to Faamau’s house. It was vandalised. The men then moved further inland. The boys were forced to undergo further indignities in a pigsty. During the course of the evening all three boys were forced to undertake a sexual act on Lealofi. Ultimately the boys were released and made their way home.

Discussion

[11] As earlier mentioned the killer of Sauao Tanielu, Kirifi Lealaitagomoa, and the leader of the group, Lealofi Faisauvale and another man were convicted of murder. At their trial the present two appellants raised alibi defences. These defences were rejected and they were convicted by the assessors as parties to the murder and sentenced to life imprisonment. They appeal on two grounds; that the learned Chief Justice erred first in directing the assessors that there was evidence of Kirifi murdering Mr Tanielu and secondly in not directing the assessors that a verdict of manslaughter was open to them.

[12] Mr Roma conceded that the first ground was wholly lacking in substance. Although there was no evidence of a conviction for murder, there was undisputed evidence that in the circumstances set out above Kirifi shot and killed Mr Tanielu. There was clearly no provocation and it was inevitable that the assessors would find that the killing was murder. It was argued on behalf of the appellants that evidence of a conviction for murder was an essential element of the crime. That is clearly incorrect; all that is needed is evidence of murder.

[13] As to the second point we refer to the decision of the House of Lords in R v Coutts [2006] UKHL 39; [2006] WLR 2154. In that case it was held that in a trial on indictment any obvious and viable alternative should ordinarily be left to the jury if there were evidence to support it, irrespective of the parties wishes. After referring to the above principle Lord Bingham said at para 23:

"I would also confine the rule to alternative verdicts raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial."

[14] The decision of the New Zealand Court of Appeal in R v Ji: [CA 381/03, Judgment 15/12/04] is helpful. In that case the majority of the Court emphasised the need for an evidential base for a verdict of manslaughter and said at para 4:

"If there is no evidential base the Judge could not have been in error in not putting it ... "

In R v Te Moni [1998] 1 NZLR 641, the Court of Appeal observed in relation to a bank robbery case that it could not be seriously contended "that it was not in the contemplation of the conspirators, who had provided Matenga with a loaded gun, that he might not kill with one or other of the murderous intents which in the event were alleged against him." (p651). And the Court noted the observation of the Privy Council in Chan Wing Siu v R [1985] 1AC 168 at 178 that the jury were entitled to remember that disastrous violent action on the impulse of a moment of emergency is very apt to occur when an intruder has a weapon.

[15] In this case Mr Leung Wai accepted the proposition that before there is a duty on the judge to put manslaughter there must be a credible or possible narrative of facts to support such a verdict. Mr Roma suggested that because no one was killed in the incident on the 26th, which he said started the dispute, it was appropriate to draw an inference that the intention of the group on the 31st of December was not to kill but just to frighten. In support of that inference Mr Roma noted that the three boys could have been killed but were not. Despite the assault and destruction of property that preceded the killing there was no evidence up to that point of an intention to kill. He pointed out that the threats to burn the boys in the house were not acted upon. And he suggested that the statements by Lealofi should be taken as mere threats. For the respondent Ms Chang submitted that there was no credible narrative to support a verdict of manslaughter.

[16] We have concluded that manslaughter was not an obvious or viable alternative verdict in this case. We do not consider there was any credible narrative to support such a verdict. It would require the drawing of inferences very favourable to the appellants to construct such a narrative. We do not believe that the law requires that such an exercise should be undertaken. If there is to be a manslaughter direction there must be some factual basis to support it. We accept that the threshold is low (Coutts at para 14) but in this case the evidence is of a group of men all armed with guns, engaging in increasingly serious activity, making threats to kill, burning houses, sexually and physically assaulting the boys culminating in the threat to kill all the villagers of Satapuala followed by the unprovoked murder of Sauao. The shooting was immediately preceded by an exchange of weapons on the part of Lealofi and Kirifi from which the clear inference is that Kirifi was nominated to fire the actual shot.

[17] In our view this group of heavily armed men exhibited behaviour which became increasingly brutal and out of control. There is no plausible argument that their anger at the villagers of Satapuala which fuelled the escalation of violent behaviour showed signs of diminishing prior to the murder. The fact that at the outset the boys were not incinerated in the house does not detract significantly from the evidence of the ever increasing loss of control. It is telling that after the murder there was no effort made by any member of the group to bring an end to the rampage or even to leave the group. The shooting continued with further serious injuries to innocent people. We conclude that given the enterprise on which the appellants and the other members of the group were engaged the probability of a killing occurring must have been obvious given the fact that loaded firearms were carried.

[18] The Chief Justice’s direction to the assessors made it very clear that the assessors needed to be satisfied that the appellants knew that a murder was something that could well happen in the execution of their unlawful common purpose, and that if they were not so satisfied then the appellants were not parties to the murder and would be entitled to be acquitted. We are satisfied that the Chief Justice correctly directed the assessors and that in the circumstances of this case he was not obliged to put manslaughter to them.

The appeals are therefore dismissed.

Honourable Justice Baragwanath

Honourable Justice Salmon

Honourable Justice Paterson