[1950-1959] WSLR 65

IN THE SUPREME COURT OF NEW ZEALAND

VA'AFUSUAGA ERIKA

v

POLICE

SUPREME COURT OF NEW ZEALAND. Wellington. 1956. 26, November.
Full Court: BARROWCLOUGH C.J., McGREGOR J.

Appeal to Supreme Court of New Zealand – appellant convicted in High Court of perjury – charge in High Court alleged against appellant a certain word not in fact spoken by him in other judicial proceedings – mistake in translation and recording of appellant's answer – Assessors in High Court not properly directed – conviction quashed.

This was an appeal to the New Zealand Supreme Court from a conviction and sentence of the appellant for perjury made in the High Court. The information before the High Court charged that the appellant "being a witness in a judicial proceeding before the Land and Titles Court, as part of his evidence upon oath did make the following assertion 'I did not assault Taumaia, if she says I did assault her she is not telling the truth' such assertion being known to him to be false and did thereby commit perjury".

However, what in fact happened in the Land and Titles Court was the appellant had been asked by the President, in English - "did you beat Taumaia" – to which the appellant had replied, in English – "no".

In the High Court proceedings the word "beat" was incorrectly translated and recorded by the interpreter as "fasi"; and on the basis the learned judge had directed the Assessors that one of the matters to be proved against the appellant was that he had given evidence on oath in a judicial proceeding that he "did not fasi Taumaia".

The Supreme Court was satisfied that this was not a proper direction because there could, with reference to the charge, be an important distinction between "beating" and "assaulting"; and, in any event, the appellant did not say that he did not "fasi" but that he did not "beat" Taumaia.

Held: Accordingly that the Assessors had not properly been directed on the matter at issue and the conviction was ordered to be quashed and an acquittal entered.

R. v Blyth [1947] N.Z.L.R. 402 followed.

Shires (of the New Zealand Bar), for the appellant.
Cunningham (of the New Zealand Bar), for the Police.

Cur. adv. vult.

JUDGMENT of the Court was delivered by BARROWCLOUGH C.J.: This is an appeal from a judgment of the High court of Western Samoa whereby the appellant was convicted of perjury and sentenced to imprisonment for a term of nine months. The information which was the basis of the proceedings in the High Court charged that the appellant "being a witness in a judicial proceeding before the Land and Titles Court, as part of his evidence upon oath did make the following assertion 'I did not assault Taumaia, if she says I did assault her she is not telling the truth' such assertion being known to him to be false and did thereby commit perjury."

The Land and Titles Court of Western Samoa held a sitting on the 19th March 1956 at Mulinu'u. The matter in dispute concerned a Church of the Seventh Day Adventist Mission. It is unnecessary to set out in detail the whole practice and procedure of that Court. It is sufficient to say that a petition has been lodged by two Samoans: Toleafoa Aukuso and Taumaia Sieni. It was supported by a "Supplementary Statement" which was signed by both the above named petitioners; but which, in part at all events, was the statement of Taumaia alone. In that part of it which is attributable only to Taumaia there occurs this translated passage:

"Saga was not kind to me; he treated me cruelly and forced me out of the place where we stayed and also he said threatening words to me until I was beaten by his son Erika."

Erika is the present appellant. The reference was to an incident that occurred some 11 years earlier in a house or fale which was then occupied by Taumaia and of which the appellant wished to obtain possession. We are informed that at the commencement of the hearing on the 19th March 1956 these statements were "confirmed" on oath – this being in accordance with the usual procedure in that Court. Oral evidence was then given. The record of it, translated into English, is before us. It was elicited almost entirely by the Samoan Judge and Assessors putting questions to various persons. Questions and Answers are both recorded and run to six sheets of foolscap. Almost at the end of this interrogation the learned Chief Judge put to the appellant the following two questions and received the following answers:

"C.J.	:	Va'asfusu, did you beat Taumaia?	
Va'afusu	:	No.	
C.J.	:	That means the statement she made on oath was a lie.	
Va'afusu	:	She lied."	

Those were the only questions put to the appellant in the whole proceedings before the Land and Titles Court. They referred to that passage in Taumaia's statement already referred to – "until I was beaten by his son Erika" and which had been read in the appellant's hearing at the commencement of the proceedings.

It should be noted here that what the appellant denied was that he had beaten Taumaia: not that he had assaulted her as set out in the information which was before the High Court. As the sequel will show there could be, in this case, an important distinction between beating and assaulting. We have said that what the appellant denied was that he had beaten Taumaia. The question was asked by the Chief Judge in English and it was answered in English. The Chief Judge's own note is in these words "I did not beat Taumaia. Her evidence on this point is lies". A record of these questions put by the Chief Judge and the answers of the appellant was taken in the Samoan language is on the file, and a translation of it, which both parties accept, uses the word beat and not assault. Finally Taumaia's supplementary petition, already referred to, is on the file both in Samoan and English. The word fasi is again translated as beat and presumably it was that translation which prompted the Chief Judge to ask the question he did ask. The learned Chief Judge said that he was almost certain that the word he used was assault; but we think he may well have been mistaken, and in any event his statement of his recollection cannot be accepted as evidence. On the evidence the question asked was whether the appellant had beaten Taumaia.

At the trial in the High Court Taumaia gave evidence that, 11 years before, the appellant had dragged her from her fale, that he had struck her on the back and punched and kicked her. Her evidence was supported in some respects by other eye-witnesses; but, as was perhaps to be expected when witnesses were recalling events that happened 11 years earlier, there were considerable discrepancies in what they said. The appellant admitted that he had dragged Taumaia from her fale; but he denied striking, punching or kicking her. He could be guilty of perjury only if in fact he had struck, punched or kicked Taumaia and was aware, when giving evidence 11 years later, that he had in fact done so. Those were the matters, and the only matters which were in issue and which the prosecution, if it was to succeed, was required to prove beyond reasonable doubt.

How vital those matters were was not fully appreciated at the trial. Attention was diverted to the meaning of the Samoan word fasi – whether it was apt to describe striking, punching and kicking, or whether it connoted also such as assault as would be constituted by a forcible dragging of Taumaia from her fale. This may be explained by the circumstance that the information charged the appellant with having falsely denied that he had assaulted Taumaia. But whatever was charged in the information, the proof showed unmistakeably that what the appellant denied was that he had beaten her. The question he was asked was in English: Did you beat Taumaia? And his answer was in English: No.

In this summing-up to the Assessors who sat with him in the High Court the learned Chief Judge appears to have overlooked the fact that his question to the appellant in the Land and Titles Court was asked in English and answered in English. He said:

"It must be emphasized that the proceedings before the Land and Titles Court are conducted in Samoan; that the questions were put to the accused in Samoan and answered in Samoan, and that it is the Samoan evidence which must be looked to in determining whether or not the crime of perjury has been committed."

The record before us shows that the learned Chief Judge was mistaken. The questions were in English and it was what the appellant understood by the English word beat which ought to have been looked to in determining whether the crime of perjury had been committed. Again at the conclusion of his summing-up the learned Chief Judge said that three things must be proved beyond reasonable doubt. The first of them was –

"That the accused gave evidence on oath in a judicial proceeding that he did not fasi Taumaia."

The accused did not say that he did not fasi but that he did not beat. It was not the accused, but the interpreter, who translated the Chief Judge's word beat as fasi. In the result the Assessors were not invited to pass judgment in the falsity of what the appellant said; but were directed to enquire whether what the interpreter recorded was false. The Assessors were invited to determine the possible connotation of a Samoan word instead of the meaning that the appellant may have placed on an English word addressed to him by the Chief Judge. In the result the real point in issue was not placed before them and clearly the conviction cannot stand.

It is significant that when this Court called for a translation of the word fasi as used by the interpreter in the High Court in recording (not asking) the Chief Judge's question, an interpreter in New Zealand who was accepted by both parties and whose attention was especially drawn to the need for a precise translation, rendered that word as beat. It is to be borne in mind that the appellant was being asked a question as to what he had done 11 years earlier. He had then forcibly removed a woman who resisting strongly the treatment accorded to her. It is highly probable that both she and he would be in state of considerable excitement, and that 11 years later both might honestly be mistaken as to the nature and degree of force used. Unquestionably there was an assault. That was not denied either in the Land and Titles Court or in the High Court. But, having regard to the matters just mentioned, we do not think that Assessors whose attention was drawn to the real matter in issue would properly find beyond reasonable doubt that the appellant knew that he was making a false statement when he said that he did not beat Taumaia and that her assertion that he did was lies. Sir William Cunningham, for the respondent, did not feel able to argue that there was not room for reasonable doubt, and with that view of the matter we are in entire agreement. In our opinion a conviction in a second trial would be very improbable having regard to the weakness of the case for the prosecution. In that circumstance our duty is not only to quash the conviction but to direct that a judgment of acquittal be entered: R v Blyth [1947] N.Z.L.R. 402.

As another ground of appeal it was argued that the conviction should be quashed for the reason that the learned Chief Judge was disqualified by bias. Mr Shires did not allege bias in fact; but only that there was a real likelihood of an appearance of bias. If the appeal were allowed on that ground it would mean that a new trial should be ordered before another Judge. As we are of the opinion that the conviction should quashed and that a judgment of acquittal should be entered, we do not find it necessary to consider whether there was in fact any real likelihood of even an appearance of bias.

The appeal is allowed, the conviction and sentence are quashed, and it is directed that a judgment of acquittal be entered.

Solicitors:	The Crown Solicitor, Wellington, for Crown.	
	Messrs Biss, Cooper and Shires, Wellington for appellant.