IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 19/93

BETWEEN:

TALOAFULU IOASA FAAMATUAINU
of Tafaigata Prison, prisoner
Appellant

AND:

THE ATTORNEY GENERAL
Respondent

Coram:	The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 31 March 1994

Counsel: T.K. Enari for Appellant
M.B. Edwards for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

This is an appeal against a conviction of murder in a trial before the Chief Justice and five assessors in the Supreme Court of Western Samoa at Apia on 9, 10 and 11 November 1993.

The ground as expressed in the Notice of Appeal is that "the conviction was against the weight of evidence". The second ground that the Chief Justice erred in rejecting self-defence as a defence is abandoned.

Briefly the facts relate to two incidents one between the appellant and the deceased at the appellant's house and what happened later between them in front of a shop on the other side of Lufilufi. As one might expect there were varying accounts but it was for the Assessors to decide what they accepted and what they rejected. The question is whether there was sufficient evidence, if accepted, to prove the essential ingredients of the crime of murder.

In the first incident the respondent obtained his gun but no shots were fired. In the second incident two shots were fired. This is how the Chief Justice referred to the evidence in his summing up.

"The witness Avasa Leaso, who is a school teacher and who appears to be a mature woman and had a clear view of what happened, she was with the deceased on the road infront of Faamatuainu Tala Mailers shop when the accused appeared out of the bushes near the shop holding a gun in one hand. She moved forward towards where the accused was coming from and at that time the deceased moved and stood behind her. The gun then went off and the bullet went past a short distance from her head going upwards. The accused was apparently very close to Avasa at that time. Shortly afterwards the deceased then came from behind Avasa and jumped towards the gun and tried to hold onto the gun. At that time the gun went off again and the deceased and the accused continued to struggle for the gun. Avasa turned away at that time and screamed. Several witnesses have testified that when they came to the scene, they found the deceased and the accused struggling with the gun. It appears that the deceased then ended up on the ground with a gunshot wound to the left side of his stomach. The deceased was taken to the Lufilufi Hospital the same evening where the nurse Aitupe Soonalafo found an injury to the same side of his stomach and he passed away the same night at the Lufilufi Hospital".

"Now the accused, according to the evidence of Senior Sergeant Saolele, admitted to the Police that he shot the deceased. The accused says that when he was on the steps of his house next to Faamatuainu Tala Mailei's shop the deceased called out to him from the road. He replied you'll see what will happen and went towards the deceased. He discharged the gun upwards thinking that the deceased will run away but he did not. The deceased who was standing behind Avasa then pushed Avasa towards the accused until he reached the gun and then he and the accused struggled with the gun. The accused says that the deceased then pushed him down and as he was falling down the gun went off. They then continued to struggle with the gun while he was kneeling on the ground and when the gun was removed from them he then punched the deceased and the deceased fell down".

There was no dispute that the deceased died from excessive blood loss from the abdominal wound from the gunshot.

There has been no challenge to the fairness of the account by the Chief Justice of the evidence which we have cited and it accords with our reading of the evidence. There is however evidence which the Assessors may have thought relevant to the state of mind of the appellant at the outset of the second incident. Avasa Leaso said that when the appellant arrived on the scene he looked angry and came through the bushes in a fast manner.

There has been no challenge to the way in which the Chief Justice directed the Assessors as to the law to be applied in this murder trial. In fact we respectfully consider the summing up as a model of clarity, precision and brevity. The first issue before the Assessors was whether the fatal shot was fired voluntarily or involuntarily. The jury was properly directed that if the firing of that shot was involuntary or they had a reasonable doubt whether it was voluntary or not they must acquit.

The second issue for the Assessors was not in dispute, namely, that the gunshot was the cause of death.

The third issue for the Assessors was crucial to a verdict of murder or manslaughter. We cite the following passage from the summing up:

"As to the third element of the charge, the evidence is that when the accused discharged the first gunshot, he did not aim the gun at the deceased but discharged the gun upwards. When the second gunshot went off, the evidence of Avasa and the accused show that the accused and the deceased were struggling with the gun. Even though the accused admitted to Senior Sergeant Saolele that he shot the deceased, it appears that the accused did not take careful aim of the gun at the deceased when the fatal gunshot went off. There is also no mention in the evidence that the accused at any time infront of Faamatuainu Tala Mailei's shop aimed the gun directly at the deceased and pulled the trigger. If you are satisfied on the evidence that at the time the second gun shot went off, the accused had the intent to kill or the intent to cause bodily injury to the deceased but was reckless whether death ensued or not, then the prosecution has also proved the third element of the charge. If you are not satisfied that the prosecution has proved the third element of the charge beyond reasonable doubt, but you are satisfied that the prosecution has proved only the first and second elements, then your proper verdict should be one of manslaughter".

Finally the Assessors were directed on the defence of provocation and there has been no criticism of that direction.

The ground of this appeal is that the verdict of guilty of murder was against the weight of evidence. Put another way, it is contended that the verdict was unreasonable or could not be supported by the evidence. The Assessors had before them the options of acquittal, murder or manslaughter. Can it be said that a verdict of murder was such that no reasonable tribunal could have arrived at it? Can it be said in this Court that the verdict could not be supported by the evidence? We do not think so. It is peculiarly a matter for the Assessors to decide what weight to place on the evidence. This is not a case in which this Court can say, for example, that the verdict was perverse as contrary to "an overwhelming preponderance of obviously credible evidence" or "based on evidence that is plainly defective or is so weak or obviously unreliable that reasonable doubt as to guilty must necessarily exist" (see Hayes [1973] 5 S.A.S.R. 278, 281).

We must remind ourselves that the Assessors had the benefit of hearing and seeing the witnesses and in this case the accused gave evidence. This gave the Assessors the unique opportunity to judge the credibility of the appellant. In a situation in which there was a struggle for the gun when the shot was fired, the Assessors after considering the evidence viewed as a whole and in particular that of the accused himself, were not left with a reasonable doubt as to the state of mind of the appellant, otherwise their verdict would have been manslaughter. There was the evidence that the appellant went looking for the deceased with a loaded gun, was angry and in a hurry, and even after the deceased was shot the appellant said in his evidence that he punched the deceased and when about to attack the deceased again he said he was held back by Sitivi Utuai. The Assessors were entitled to take this conduct into account in drawing an inference as to his state of mind when the fatal shot was fired. The Assessors also had the benefit of seeing the gun and a demonstration in Court by Avasa Leaso of how it was held by the appellant. We cannot say that no reasonable Assessors could properly find upon the evidence a verdict of murder.

We are satisfied that the appellant's ground of appeal has not been made out. The appeal is dismissed.

Solicitors:
Apa & Enari, Apia for Appellant
Attorney-General's Office, Apia for Respondent