IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 12/93

IN THE MATTER of an appeal to the Court of Appeal of Western Samoa pursuant to Section 164L(4) of the Criminal Procedure Act 1972

BETWEEN:

THE ATTORNEY-GENERAL
of Apia in Western Samoa
Appellant

AND:

VAASILI PIULA
of Magiagi
Respondent

Coram:	The Rt. Hon. Sir Robin Cooke, President
The Rt. Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 25 March 1994

Counsel: M.B. Edwards for Appellant
T. Malifa for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

This is an appeal brought by the Attorney-General pursuant to s. 164L(4) of the Criminal Procedure Act 1972.

It is not an overstatement to say that the facts of this particular case are quite unusual and the judgment should illustrate that.

The short version of the criminal conduct is that five(5) persons were involved in a fracas at Magiagi on 18 July 1992 from which a person died. Vaasili Piula (hereafter referred to as the respondent) made a statement to a Police Officer on 19 July 1992 in which admissions were made. On 20 July 1992 by way of Information he was charged, with four(4) others, with murder.

On 16 December 1992 four(4) of the five(5) originally charged faced trial before Chief Justice Sapolu and five(5) Assessors. All accused had pleaded not guilty and respondent was represented by Mr Malifa. Mr Malifa gave notice of challenge to the statement made by the accused but it seems only on that day did he actually disclose that the ground was breach of Article 6(3) of the Constitution of the Independent State of Western Samoa. Mr Edwards, who has appeared throughout for the prosecution, said this was unexpected and the first time ever the Constitutional point had been taken. Objection to admissibility of statements are not unfamiliar in the Courts, but before this case not on Constitutional grounds. Subject to that last sentence there was nothing particularly unusual about the trial to this point of objection by defence counsel, but that state was not to remain so for long.

A voir dire took place in which Constable Savili Aiga, attached to the CIB Apia Police Station, gave evidence of the statement he had taken from respondent. The examination in chief was not directed to features of Article 6(3) of the Constitution bearing in mind this ground was to an extent novel. However the cross examination was reasonably extensive and raised issues of Article 6(3). With an insignificant exception, which will be mentioned later, Constable Aiga never again gave evidence on the taking of the statement right up to a directed verdict of acquittal on 8 September 1993.

The decision on the voir dire was reserved until next day, 17 December 1992 when the learned Chief Justice ruled the statement inadmissible on the grounds that there was a breach of respondent's constitutional rights and with such breach the tainted statement was automatically and necessarily excluded from the evidence. The prosecution requested a case be stated for the Court of Appeal, and the trial was stood over to a future date.

The Police duly appealed on a case stated to the Court of Appeal which sat in Apia on 1 and 2 February 1993. The decision was given on 4 February wherein the ratio of the decision was to hold the statement admissible. The Court of Appeal had before it a record of the voir dire and held on the evidence available the Constitutional safeguards of Article 6(3) had been met. In their opinion on the facts stated in the case there was no breach of Article 6(3). There were other observations by the Court but they were obiter and need not be referred to again.

The hearing of the charges for four (4) accused was set down for 27 April 1993 before the Chief Justice. Three (3) of the four (4) changed their pleas and admitted manslaughter charges but appellant chose to proceed with his not guilty plea. Respondent's counsel again took issue with the statement's admissibility notwithstanding the Court of Appeal ruling. A voir dire was requested and granted against the objection of prosecution counsel. Based on recall of counsel, Constable Aiga's evidence given at the voir dire at the December trial was put before the Chief Justice in its entirety (examination in chief and cross examination, and as will be revealed that the cross examination was included is important) without the Constable going into the witness box. Respondent, who had not given evidence in the December voir dire, went into the witness box and we were informed made factual challenges to the Constable's evidence. The Chief Justice believed the Constable's evidence and ruled the statement admissible. The trial for a reason unconnected with this point had to abandoned on another ground.

The trial began again on 6 September before the Chief Justice and again Mr Malifa objected to the admissibility of the statement and again Mr Edwards, for the prosecution, opposed a further voir dire. The voir dire was granted.

The case now took perhaps its most unusual turn but as both counsel agree the following is what happened the Court accepts this account. Mr Edwards again was prepared to rest on the evidence originally given by Constable Aiga and simply put him in the witness box without expanding his original evidence. We believe he could have profitably expanded that evidence, but that is an observation with the benefit of hindsight and is to be treated accordingly. In a surprise move as far as Mr Edwards was concerned Mr Malifa declined to cross examine and the Constable departed the box having made no material addition to his evidence of December 1992. It was in the original cross examination of December 1992 that the Constitutional issues of Article 6(3), and the right to counsel were raised. Respondent did not give evidence.

Both counsel concur that the Chief Justice was told he had for this ruling on admissibility access only to the evidence in chief of Constable Aiga given in December 1992 and not the cross examination. This rather novel turn is to be contrasted with the procedure at the previous trial of 27 April 1993 when the Chief Justice had access to the Constable's evidence in its entirety. We can fully appreciate how the misunderstanding which we now address was made by the Chief Justice.

He reserved his decision on the voir dire and declined to exclude the statement next day, 7 September and in the course of that ruling it was plain he had used cross examination material. This apparently followed the Court of Appeal decision. The misunderstanding was drawn to his attention immediately, we understand. Mr Edwards asked that the voir dire be re-opened but the Chief Justice reserved the point until 8 September. On that day without further reference to Mr Edward's request, he reversed his decision of the previous day and ruled the statement inadmissible. It seems he followed this course as the examination in chief of Constable Aiga did not specifically deal with right to counsel but to voluntariness. The statement was essential to the prosecution case and the trial ended with a directed verdict of not guilty by the Assessors.

The manner in which the verdict was obtained was not accepted by the Attorney-General and he has appealed to this Court against the acquittal of the respondent of 8 September 1993. The central grounds of appeal are that:

1.	The Chief Justice erred in law in allowing a further voir dire to be held in relation to admissibility of the statement after the Court of Appeal had ruled there had, on the facts, been no breach of Article 6(3) of the Constitution.

2.	That the Chief Justice erred in law in holding that, in the voir dire of 7 September 1993, the evidence raised the issue of the respondent being denied his constitutional right to consult a legal practitioner such that the prosecution had to negative.

Ground 1 above is a convenient abridging of 2 grounds in the Notice of Appeal which overlap. Ground 2 concerns a burden of proof argument which we do not believe is necessary to the disposal of this appeal.

We are of the view that justice will not appear to have been done if the acquittal is allowed to stand in the light of the way it was achieved.

There was an unusual and somewhat confusing manner in which the case was conducted, with some twists and turns unrelated to the point before us. However it seems to us inescapable that the exclusion of the statement finally on 8 September 1993 was on the basis of an unfortunate misunderstanding which resulted in the Chief Justice reversing his earlier ruling thereby excluding the statement. There was a procedural error of significance, and that must be corrected.

There will be an order that the acquittal be set aside and a new trial is to take place.

To avoid any further complication, all evidence which either side wishes to tender to a voir dire hearing should be fully heard in the ordinary way and open to cross-examination. If in the result the evidence accepted by the trial Judge is substantially the same as that on which the Court of Appeal ruled previously, the Judge's proper course will be to follow the Court of Appeal ruling by admitting the evidence. That ruling will only cease to apply if, on the basis of additional evidence, the Judge finds that the facts are materially different from the view of the facts on which the Court of Appeal proceeded. An appellate ruling after a voir dire hearing in the trial Court does not amount to res judicata but should be followed by the trial Judge unless the evidence before him is significantly different.

Solicitors:
Attorney-General's Office, Apia for Appellant
First Pacific Consultancy & Law, Apia for Respondent