IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SAUTE SAPOLU
Appellant

AND:

THE ATTORNEY GENERAL
Respondent

Counsels: J. Fuimaono-Sapolu for the appellant
P. Chang for the respondent

Judgment: 24 November 2009

JUDGMENT OF THE COURT

1. The appellant appeals against his conviction on the 5th December in the District Court on a charge of common assault. The appeal is brought under section 138 Criminal Procedure Act 1972.

2. The grounds of appeal are:

(i) the judge failed to address the three legal possibilities in a situation where the defendant gives evidence or call witnesses.

(ii) the judge erred in considering the evidence against the high criminal standard of "beyond reasonable doubt" for each and every element.

(iii) the judge failed to consider the defences of self defence and defence of property raised by the defence.

(iv) the judge made references to cultural and village standards without reference to legal, lawful standards and principles of law.

(v) the oral decision was delivered in the Samoan language. The written decision on file is in the English version.

3. The events which led to the charge of assault occurred in the early morning of the 9th April 2008. Young men of the village of Vaiala under the leadership of the village mayor ("pulenuu") went on their usual clean up working bee of the village. They carried tools which included brooms, spades and machetes. Rubbish was burnt by the road side and walking tracks through the village. As they cleared and burnt the rubbish by the roadside adjoining the appellant’s family land the appellant came and put out one of the fires by kicking it. He was not happy with the working bee’s presence on their land as well as the burning of rubbish besides a sign post on their land. He also called to the pulenuu and the working bee to get off the land.

4. Complainant Ausage a member of the working bee told the court that he responded by calling to the appellant not to speak to the matais of the village in the manner he did. Appellant then walked to Ausage. He choked Ausage with both hands. He also punched Ausage on the left side of his face. Other members of the working bee restrained the appellant. Complainant’s testimony was supported by the evidence of the village mayor and another member of the working bee.

5. The appellant admitted kicking the fire as he was not happy. He also told the village Mayor to get off the land. He testified that as he was talking towards the village mayor, the complainant came towards him with a machete, challenged him to a fight and proceeded to punch him. Other members of the working bee joined in the assault. He managed to run away when his brother Mio yelled to him to run. He denied punching Ausage.

6. The judge summarized the evidence in his written decision dated 5th December 2008. The following extract deals with the evidence of the appellant and of the complainant: (page 8).

"Saute’s action of putting out the fire and arguing with village matais inflamed Ausage and the other tauleleas of the working party. Ausage called out to Saute not to talk to the matais of Vaiala in the manner he was.

Saute disliked what Ausage was saying and the fires that had been started and he walked to Ausage and choked Ausage. Ausage in response to Saute’s action punched Saute and the two of them exchanged blows and at this stage one or more of the work party joined in assaulting Saute and at this stage the village matais stepped in and stopped the assault which allowed Saute to run back to their house. The Vaiala villagers stayed on the roadside; they did not pursue Saute into the Sapolu home or land.

"The events that transpired happened because Saute was annoyed with the fires and then came out of their property and put out the fire started by the work party. Saute initiated the first assault when he choked Ausage who retaliated by punching Saute back. Saute was assaulted by Ausage and others and then ran back to their home when the matais stopped the assault."

7. With his findings of facts stated above the judge held that the defences of self-defence and defence of property raised by appellant did not apply.

8. It is the contention of the appellant that the trial judge failed to address the three possible effects of the evidence given and called by the accused and as a result he failed to properly consider the defence evidence. The three possible conclusions to be drawn are contained in the conventional tripartite direction which the trial judge gives to a jury in a trial where the accused gives evidence or call witnesses to testify. Briefly the three possibilities are:

(i) the jury may accept the evidence as credible and reliable and a convincing answer to the prosecution’s evidence. If that is their view then of course the verdict will be not guilty.

(ii) The jury may think it is not entirely convincing but it leaves them unsure of what the real position was. In other words it raises a reasonable doubt. If that is so then it follows that the verdict will be not guilty.

(iii) The jury may think the evidence is entirely unconvincing and reject is as unworthy of belief. If that is the case, the jury should be careful not to jump from that conclusion to an automatic conclusion of guilt. If the evidence is unconvincing, the jury should set it to one side entirely, go back to the rest of the evidence and consider on the basis of that evidence whether they are satisfied about the guilt of the accused.

9. Counsel for the appellant claims that the trial judge in his ruling should have stated that he did consider the three possibilities. The submission is in my view misconceived. The tripartite direction is to assist lay persons serving as jurors, to deal with the evidence, and in particular to warn them against jumping to a conclusion of guilt if they reject the evidence of the accused. A trial judge, sitting alone, need not, as suggested by the appellant’s counsel, lay out in his written or oral ruling that he did consider the three possibilities. Neither was he required, as suggested by counsel to state that he has directed or reminded himself of the standard of proof required and the burden never shifts from the prosecution to the defence.

10. It is also claimed that the trial judge was mistaken about the reliability and sufficiency of the evidence, despite the inconsistencies, upon which the conviction was based. It is true there are inconsistencies and conflicts in the testimonies of the complainant and other prosecution witnesses. The same can also be leveled at the defence evidence. It must be remembered that a witness may be entirely honest but may also be mistaken. Parts of the evidence of both the appellant and the complainant were obviously rejected by the trial judge when he ruled that the appellant choked the complainant and the complainant in retaliation punched the appellant. Inconsistencies do not necessarily create a reasonable doubt in every case.

11. The trial judge who saw and heard the witnesses has an advantage in assessing their credibility and the worth of their testimony which this court lacks. The long standing rule repeated by the New Zealand Court of Appeal in Hutton v Palmet [1990] 2 NZLR 260 is that an appellate court will not interfere unless it can be shown that the trial judge has failed to use or has palpably misused this advantage. And in R v Ramage [1985] 1 NZLR 392 the New Zealand Court of Appeal in a judgment dealing with an application for leave to appeal against a conviction for arson said at page 395:

"A decision as to whether a verdict was unreasonable or cannot be supported having regard to the evidence is not one which lends itself to any extensive elaboration of reasons. We are satisfied it was open to the jury to find beyond reasonable doubt that the fire was deliberately lit and that it was the applicants who were responsible."

12. Whether the land is customary land, public land or freehold land owned by the appellant’s family is irrelevant to the charge of assault. By conceding that he approached the working bee and kicking the fire is an admission of anger. He could have called out to the pulenuu and his men to leave, thus keeping a distance between himself and the working bee. The most logical conclusion from his admission was that he approached the complainant to assault. No self defence or defence or property can arise from his admission.

13. To suggest that the evidence of the pulenuu was accepted as both he and the judge are both paid from the state purse is not worthy of discussion.

14. Counsel for the appellant also complains that the oral judgment was in the Samoan language, whereas the written one on file is in the English language. Absence of the transcript of the proceedings is also complained of. The evidence for the complainant and for the defence is summarised in the written judgment. There was no complaint by counsel that the evidence as stated is inaccurate. Neither was there any complaint that the written decision is not a true and accurate translation of the judgment delivered in the Samoan language.

Conclusion

15. There was ample evidence to convict the appellant. Criticisms of the judge’s findings of facts and of his reasons are rejected as no error or unfairness is shown. It follows that the appeal is dismissed. Appellant will pay costs of $400.

JUSTICE VAAI