SUPREME COURT OF SAMOA
Police v Roache and Crichton [2013] WSSC 23

Case name: Police v Roache and Crichton
Citation: [2013] WSSC 23  
Decision date:  27 May 2013  
Judgment on Reasons:  31 May 2013
Parties: 
POLICE as prosecution v LEON ROACHE male of Pesega and  RODNEY CRICHTON male of Pesega and Lotopa
Hearing date(s): 27 May 2013
File number(s): S2043/12
Jurisdiction: CRIMINAL 
Place of delivery: MULINUU
Judge   CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU
On appeal from:
Order:
Representation: 
Edelma Niumata for prosecution
Papaplii Taeu Masipa’u for accused Leon Roach
Rosella Papalii for accused Rodney Crichton
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961
The Modern Law of Evidence 5th ed 
Mawaz Khan v R [1967] 1 AC 454, 463.
Cases cited:
Police v Luamanu [2011] WSSC 97
Police v Tavu’i [2013] WSSC 6
R v Hayter [2005] UKHL 6
R v Rudd (1948) 32 Cr App R 138 
R v Meredith (1943) 29 Cr App R 40 
Rigby v Woodward [1957] 1 All ER 391
R v Tomars [1978] 2 NZLR 505
Police v Mataituli [2011] WSSC 154.
R v K (M58/95) (1996) 13 CRNZ 98
R v Pearce (1979) 9 Cr App R 365, 
R v Accused (CA 54/96) (1996) 13 CRNZ 561
Text Books:
Cross on Evidence (1997) 
Phipson on Evidence (14th ed), 1990
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2043/12

BETWEEN

P O L I C E
Prosecution

A  N  D
LEON ROACHE male of Pesega and RODNEY CRICHTON 
male of Lotopa and Pesega.
Accused

Counsel:
E Niumata for prosecution
P T Masipa’u for Leon Roach
R Papalii for Rodney Crichton

Hearing: 27 May 2013
Conclusion: 27 May 2013
Judgment: 31 May 2013

JUDGMENT OF SAPOLU CJ

Introduction 
1.	The accused Leon Roache a 21 year old male of Pesega and Rodney Crichton a 32 year old male of Pesega and Lotopa were jointly charged with one count of robbery pursuant to ss.92(1) and 23(1) (a) and (2) of the Crimes Ordinance 1961 and one count of assault with intent to rob pursuant to ss.92(3) and 23(1)(a) and (2) of the same Ordinance. They were jointly tried.
2.	In terms of the count of robbery, the accused were jointly charged that at Pesega on the 27th day of October 2012 they robbed the complainant of one cell phone, one sunglass, one packet of cookie, one bottle of pepsi soft drink, and $4.
3.	In terms of the count of assault with intent to rob, the accused were jointly charged that at Pesega on the 27th day of October 2012 they assaulted the complainant with the intent to rob to rob him.
4.	At the end of the trial on 27 May 2013, I found both counts against the accused Roache to have been proved by the prosecution beyond reasonable doubt but dismissed both counts in relation to the accused Crichton as I found those counts not to have been proved beyond reasonable against that accused.  I then indicated to counsel that I will prepare a written judgment which will be delivered to counsel. This is that judgment.
The elements of robbery
5.	Section 92(1) of the Crimes Ordinance 1961 provides:
“Robbery is theft accompanied by violence or threats of violence to any person or property, used to extort the property stolen or overcome resistance to its being stolen”.
6.	In Police v Luamanu [2011] WSSC 97 para 2, this Court, when dealing with the elements of robbery, held as follows:
“In abbreviated form, robbery is often referred to as theft accompanied by violence or threats of violence to a person or to property.  Thus to prove a charge of robbery, the prosecution must first prove that there was a theft committed by the accused by adducing evidence to establish the three elements of the crime of theft [under s.85(1) of the Crimes Ordinance 1961].  These three elements are:  (a) that there must have been a taking of property, that is, a deliberate moving of an item of property, [or causing an item of property to be moved, or arranging for someone to move an item of property], (b) that the taking must have been fraudulent or dishonest, and (c) that the accused must have had an intention to deprive the owner of the property permanently.  The prosecution must then proceed further to prove that the accused must have used violence or threats of violence to a person or to property with either one of the following two intents:  (a) the intent to extort the property being stolen by coercing somebody by means of a threat into giving you something that person would not otherwise have given you, or (b) the intent to prevent or overcome resistance to the property being stolen”. 
7.	As to the terms ‘fraudulently’ or ‘dishonestly’ used in the definition of the crime of theft in s.85(1) of the Crimes Ordinance 1961, this Court in Police v Tavu’i [2013] WSSC 6 discussed the two terms and concluded that they mean the same thing.
The evidence
8.	According to the complainant, he lives at Lotopa and works at a supermarket at Lalovaea.  When he finished work on Saturday 27 October 2012 at 7:30pm, he left his employer’s premises with some of his fellow workers on a truck which belongs to his employer.  He was dropped off at the traffic lights intersection at Pesega.  He then walked to his home at Lotopa.  It was getting dark at the time.  In his possession were his cell phone and sunglass, a packet of cookie, a bottle of pepsi soft drink, and $4 in coins.
9.	As the complainant was walking along the road, he saw three young men drinking on the opposite of the road.  Shortly after he passed those men he heard one of them calling to him to stop.  One of the men, whom the complainant later identified as the accused Roache, then came over and took the complainant’s sunglass and demanded the bottle of pepsi from the complainant.  Roache then punched the complainant on the right eye causing the complainant to stagger to one side of the road. What then happened to the bottle of pepsi is not clear. But one thing that is clear is that after the assault the plaintiff no longer had his bottle of pepsi. The other assailant John then punched the complainant on the left eye causing the complainant to fall down.   The complainant said at that time the other assailant which he later identified to the police as the accused Crichton came over and kicked him and as a result the coins in his pocket were scattered on the road.   After that, Crichton tried to stand him up but Roache jumped in and punched him again causing him to fall down again.  The complainant also said that Roache and John then searched his pockets while he was being held by Crichton.  John found the cell phone which was in one of the complainant’s pockets and took it. Roache asked the complainant if he has any money and the complainant told him that all his money had been scattered on the road.  The assailants then left.
10.	When the complainant reached his home, his family called the police who came and took the complainant to the hospital for treatment of his injuries.  The complainant at the time was bleeding from his nose and mouth.  There were also a swelling and bruises on his face.
11.	At the time of the assault, the complainant did not know any of the assailants.  He had not seen any of them before.  However, at a dance a few days later he was able to recognise the accused Roache and he contacted the police.  Another few days later, the complainant was called by the police to come to the CID.  When the complainant arrived, he was asked by the police whether the man sitting inside the CID was the suspect Crichton and the complainant said yes.  This is not a satisfactory mode of identification given the circumstances of this case.  There should have been a proper mode of identification such as an identification parade.  But as this did not arise as an issue, I say no more about it.
12.	In the cautioned statement given by the accused Roache to the police and which was produced in evidence by the prosecution, Roache admits that he stopped the complainant and asked the complainant to give him the sunglass and the complainant gave the sunglass to him.  He then asked the complainant to give him the bottle of pepsi but the complainant refused.  So he punched the complainant on the mouth.  He punched the complainant again causing the complainant to stagger to one side of the road.  He then threw the complainant down on the side of the road.  While the complainant was down he punched him again.  As that time, the accused Crichton intervened and stopped him and chased (tuli) him away.  Roache also says in his cautioned statement that it was John who took the complainant’s cell phone but he does not know who took the complainant’s money and packet of biscuits.  The sunglass that he took dropped from his hand so he does not know where it is.
13.	In his oral testimony, Roache repeated substantially the same story that he gave the police in his cautioned statement.  He also said that the accused Crichton did not participate in the assault on the complainant.  What Crichton was doing was trying to stop the assault on the complainant.  The suspect John has not been charged by the police as he cannot be found.
14.	The accused Crichton also gave a cautioned statement to the police.  It is a wholly exculpatory statement. It is a self-serving statement.  However, both counsel for the prosecution and the accused Crichton wanted the statement to be admitted and mutually consented that that be done.  The statement was therefore admitted by consent.  Crichton in his cautioned statement denies that he assaulted or participated in the assault on the complaint.  He told the police in his statement that he tried to save the complainant from the two boys who were assaulting him. He also told the police he was not drunk but the other two boys were.  An out of Court statement by an accused which incriminates a co-accused is inadmissible and should be disregarded.  This rule of evidence does not apply to evidence given by the accused in Court.
15.	When Crichton elected to give oral testimony, he repeated essentially what is in his cautioned statement.  He said the boys who assaulted the complainant were Roache and John both of whom were drunk.  He tried to stop them from assaulting the complainant and Roache stopped. Roache then left when he told him to go away (tuli i tai).  He then followed Roache while John was still standing at the scene of the assault.  There was no more assault on the complainant by John. 
Discussion 
(a)The accused Crichton 
16.	Dealing with the accused Crichton first, his evidence was that he did not take part in the assault on the complainant.  What he did was trying to stop Roache and John who were both drunk form assaulting the complainant.  When he told Roache to stop and go away Roache left.  John who was still at the scene of this incident did not assault the complainant again.
17.	The accused Roache in his cautioned statement given to the police and in his oral testimony before the Court said that Crichton did not participate in the assault carried out by him and John on the complainant.  What Crichton did was trying to stop the assault.  When he punched the complainant as the complainant was down on the road, Crichton intervened and chased him away.
18.	The complainant, on the other hand, said that Crichton kicked him after he fell on the road.  This was after two powerful punches hit the complainant.  The first was by Roache on his right eye causing him to stagger to one side of the road and the second punch which immediately followed was by John his left eye which caused him to fall down.  In these circumstances, I am doubtful of the complainant’s capacity to observe accurately what followed.  It was also 8pm in the evening and it was getting dark.  The complainant had also not seen any of these men before.
19.	After giving careful consideration to the evidence in relation to the accused Crichton.  I am not satisfied to the required standard of proof that the accused Crichton participated in the assault on the complainant.  The evidence given by the accused Crichton and supported by the evidence from the accused Roache have made it unsafe to find the charges against Crichton proved beyond reasonable doubt.
(b) The accused Roache
20.	AS already mentioned, there was a joint assault on the complainant.  Both the accused Roache and John who has not been found by the police would be, on the evidence given in this trial, be joint principal parties in terms of s.23(1)(a) of the Crimes Ordinance 1961.  Each of them would be criminally liable for the acts of the other.
21.	Roache did not deny being involved in the assault on the complainant.  He admitted to punching the complainant three times.  He also admitted to receiving the sunglass from the complainant but in the course of the assault he dropped the sunglass and he does not know where it is.  I accept what the complainant said that Roache demanded the sunglass from him and he gave it to him but when Roache also demanded his bottle of pepsi he refused and Roache then punched him.  What then happened to the bottle of pepsi is not clear.  I am in no doubt that Roache did rob the complainant of his sunglass.  As to the bottle of pepsi, it is not clear whether any of the assailants took the pepsi and if so which one.  If this creates a reasonable doubt whether Roache robbed the complainant of his bottle of pepsi because of the theft requirement of the offence of robbery, it is quite plain from the evidence in this trial that Roache and John assaulted the complainant with intent to rob him of whatever valuable item of property they could find on him.  One such item of property was the bottle of pepsi as Roache manifested a desire for it when he demanded it from the complainant but the complainant refused and so he punched the complainant. 
22.	In relation to the $4 coins, it is again not clear whether it was Roache or John who took the money or whether the money was simply lost when they were scattered on the road.  If, again, this creates a reasonable doubt whether Roache robbed the complainant of his $4 because of the theft requirement of the offence, it is quite plain from the evidence in this trial that Roache and John assaulted the complainant with intent to rob him of whatever valuable item of property they could find in him.
23.	In relation to the complainant’s cell phone, it is clear from the evidence of both the complainant and Roache that it was John who took the cell phone.  In the circumstances, Roache and John were joint principal parties in terms of s.23(1)(a) in the robbery committed on the complainant.  Each of them would therefore be criminally liable for the actions of the other.  It follows that Roache is also guilty of the robbery of the complainant’s cell phone.
24.	As I am of the clear view that the accused Roache was a joint principal party in terms of s.23(1)(a) to the offences of robbery and assault with intent to rob charged by the prosecution, it would not necessary to deal with s.23(2).  
25.	I would turn now to some of the relevant issues that I could not deal with fully as the trial was proceeding.  
Other relevant issues
(a)Out of Court statement by an accused that incriminates a co-accused and evidence in Court by an accused that incriminates a co-accused
26.	In a criminal trial of two or more accused who are jointly charged with an offence, an out of Court statement made by an accused to the police which incriminates a co-accused is inadmissible.  In a Judge-alone trial, the Judge would simply exclude such a statement.  In an assessor trial, the Judge would tell the assessors that a statement made by an accused to the police which incriminates a co-accused is inadmissible and they must disregard it.  However, this rate is subject to these exceptions set out in Keane, The Modern Law of Evidence 5th ed, (2000) in a passage which was cited with approval by Lord Steyn in R v Hayter [2005] UKHL 6, para 6.  At pp.386 of the said text, the learned author states:
“In two exceptional situations, a confession may be admitted not only as evidence against its maker but also as evidence against a co-accused implicated thereby.  The first is where the co-accused by his words or conduct accepts the truth of the statement so as to make all or part of it a confession statement of his own.  The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy:  statements (or acts) of one conspirator which the jury is satisfied were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it
There is also a third exception, in fact an extension of the second: when although a conspiracy is not charged, two or more people are engaged in a common enterprise, the acts and declarations of one in pursuance of the common purpose are admissible against another.  This principle applies to the commission of a substantive offence or series of offences by two or more people acting in concert, but is limited to evidence which show the involvement of each accused in the commission of the offence or offences.  It cannot be extended to cases where individual defendants are charged with a number of separate substantive offences and the terms of a common enterprise are not proved or are ill-defined”
27.	There is, however, a distinction between statements made by an accused out of Court to the police and the evidence given by an accused before the Court. The rule which applies to an out of Court statement made by an accused against a co-accused would not apply when the accused gives evidence in Court.  Any evidence which is given by an accused in Court against a co-accused during examination in chief, cross-examination by the prosecution or the co-accused, or re-examination would be admissible.
28.	In R v Rudd (1948) 32 Cr App R 138, 140, Humphreys J in delivering the judgment of the Court said:
“Ever since this Court was established it has been the invariable rule to state the law in the same way – that, while a statement made in the absence of the accused person by one of his co-defendants cannot be evidence against him, if a co-defendant goes into the witness box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendant”.
29	The above passage from R v Rudd (1948) 32 Cr App R 138, 140, was referred to with approval by the Privy Council in Mawaz Khan v R [1967] 1 AC 454, 463.
30.	In Cross on Evidence (1997) 6th New Zealand ed. by D L Mathieson (which is the latest edition of that work available to me), it is stated at para 7.13, p.188 as follows:
“At common law the authorities tend to favour the view that what a co-accused says ‘becomes evidence for all the purposes of the case, including the purpose of being evidence against his co-defendant’ R v Rudd (1948) 32 Cr App R 138, 140 and this includes what he or she says in cross-examination by either the prosecution or the other accused:  R v Meredith (1943) 29 Cr App R 40; Rigby v Woodward [1957] 1 All ER 391.  The matter is placed beyond doubt in New Zealand by s.5(9).
“It is important to distinguish evidence given in the trial from statements made to the police before the trial.  A statement by X incriminating Y is not, as such, admissible evidence against Y.  Further, ‘a statement made to the police by one accused does not become admissible against his joint accused merely because he admits on oath he made the statement.  There must be the additional step of an acceptance on oath of the truth of the statement’: R v Tomars [1978] 2 NZLR 505, 512”.
31.	In this case, I had allowed parts of the cautioned statement made by the accused Roache to the police and the one part of the cautioned statement made by the accused Crichton to the police which criminate the co-assailant John to admitted in evidence by the prosecution because John has not been jointly charged or jointly tried with Roache and Crichton.  The rule that an out of Court statement made by an accused which incriminates a co-accused in their joint trial does not apply in respect of John who has not been charged because he cannot be found.
32.	In any event, both Roache and Crichton elected to give evidence.  So they were free to give evidence which incriminated John.
33.	I had also allowed counsel for the prosecution to cross-examine both Roache and Crichton freely because the rule of inadmissibility which applies to an out of Court statement by an accused which incriminates a co-accused does not apply when an accused chooses to give an evidence.
(b) Wholly exculpatory out of Court statement by an accused
34.	A statement made by an accused to the police is hearsay and is therefore prima facie inadmissible. But if such a statement is a confession, then it is admissible as an exception to the hearsay rule. A wholly exculpatory statement made by an accused to the police is not a confession. It therefore does not qualify under the confessional exception to the hearsay rule. As a wholly exculpatory statement is also a prior self-serving statement, it is inadmissible under the rule against the admissibility of prior self-serving statements.  I agree with the statements to the same effect made by Nelson J in Police v Mataituli [2011] WSSC 154.
35.	It is, however, debatable whether a wholly exculpatory statement made by an accused is admissible for the limited purpose of showing the reaction of the accused upon arrest by the police or during police interviews or to show the attitude of the accused at the time he made the statement.  In Phipson on Evidence (14th ed), 1990 cited by Hammond J in [R v K (M58/95) (1996) 13 CRNZ 98, 104] the learned authors states:
“While it is clear that statements by defendants which do not contain admissions are commonly admitted in evidence, it is equally clear that the defendant is not entitled to require the prosecution to produce, or to produce himself, a ‘carefully prepared written statement’ produced to the police with a view to it being made part of the prosecution evidence…
“A statement that is purely exculpatory or self-serving, including, for example, a simple denial of the offence, is not evidence of the truth of its contents.  However, it is the almost invariable practice of the prosecution to introduce evidence of the defendant’s reaction on arrest and in police3 interviews.  Such evidence is admissible to show the reaction of the defendant and it should not be excluded.  It is difficult to understand the logic of the basis for this admissibility, particularly since the evidence appears to be treated in the same way whether the defendant gives evidence at the trial or not.  If the jury is entitled to consider the statement as showing the reaction of the defendant, are they not entitled to consider whether the reaction may be true? Even if they are not being invited to do so, they inevitably will do so”
36.	In R v Pearce (1979) 9 Cr App R 365, 369, also cited in [R v K (M58/95) (1996) 13 CRNZ 98, 104] the Court said:
“A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it”.
37.	In R v K (M58/95) (1996) 13 CRNZ 98, 104-105, Hammond J also referred to a movement in the United States to allow an exculpatory statement by an accused admissible but subject to qualifications.  In R v Accused (CA 54/96) (1996) 13 CRNZ 561, 563, the New Zealand Court of Appeal noted that it was common ground between counsel that if the statement given by the accused during the police interview was wholly exculpatory then the direction given by the trial Judge to the jury could not be said to be incorrect.  The relevant part of the direction given by the trial Judge to the jury is as follows:
“You will recall he saw the video of that police interview yesterday afternoon.  In it the accused has made no statement that could amount to an admission or confession of guilt.  Where, as here, such a statement has not been confirmed by the accused in the witness box, it is not evidence of the truth of what is in the statement, but it is properly admitted before you because it shows the reaction of the accused when he was questioned about what was claimed to have occurred.  His reaction is part of the general picture which you can properly consider”.
38.	In both the Australian and New Zealand editions of Cross on Evidence, the learned editors are critical of the admissibility of wholly exculpatory statements.  It seems the concern is that if wholly exculpatory statements are admissible this would crate unjustified exceptions to the hearsay rule, the rule against previous consistent statements, and the rule against prior self-serving statements.  In Cross on Evidence (1996) 5th Aust ed, para 17335, p.449, the learned editor expressed the opinion that the doctrine that a wholly exculpatory statement is admissible to show the reaction of the accused when first taxed with the incriminating facts is unlikely to survive detailed appellate review in Australia.
39.	I have referred to the opposing views regarding the admissibility or otherwise of an out of Court wholly exculpatory statement made by an accused because the cautioned statement given to the police by the accused Crichton is such a statement.  However, it is not necessary to express an opinion on the opposing views in this use as counsel for the prosecution and for Crichton mutually agreed to have Crichton’s statement produced by consent as part of the case for the prosecution.  So we will have to wait for an appropriate case to deal with the issue that I have identified in this judgment.
Conclusion 
40.	I am satisfied that the prosecution has proved beyond reasonable doubt the charges of robbery and intent to rob against the accused Roache.
41.	I am not satisfied that the prosecution has proved beyond reasonable doubt the charges of robbery and intent to rob against the accused Crichton.  Those charges are therefore dismissed. 

…………………………….
CHIEF JUSTICE
Solicitors
Attorney General’s Office, Apia, for prosecution
Papalii Law Firm for accused Rodney Crichton
Tamati & Hoglund Vaai Law Firm for accused Leon Roache