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Talo v The Police [1994] WSCA 21; 11 1993 (28 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 11/93

IN THE MATTER of the Constitution

AND

IN THE MATTER of the Judicature Ordinance 1962 and the Criminal Procedure Amendment Act 1962

BETWEEN:

SAPE TALO of Alafua and Manono, Plumber
Appellant

AND:

THE POLICE of Western Samoa
Respondent

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

Hearing: 24 and 25 March 1994

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

Judgment: 28 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

The appellant Sape Talo was charged that on 1 January 1993 he committed rape. He stood trial in July 1993 before the Chief Justice and four assessors. He was found guilty and sentenced to six years' imprisonment. He has appealed against conviction and sentence.

Mr Malifa has raised a number of points which he submits denied the appellant a fair trial. These points centre on the first sentence of Article 9(1) of the Constitution of the Independent State of Western Samoa which reads:

"In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law".

The first point taken by the appellant was that his application under s.90 of the Criminal Procedure Act 1972 for an order that depositions be taken before a Magistrate, was refused. Section 90 is as follows:

"90. Power of Supreme Court to order taking of depositions

Where any defendant is charged with an offence triable before the Supreme Court with assessors, the Supreme Court of its own motion or on the application of the prosecutor or the defendant may, if it considers it desirable in the interests of justice, order that depositions be taken before a Magistrate."

That section gives the Court a discretion to make such an order "if it considers it desirable in the interests of justice". This provision is not for a preliminary hearing of an indictable offence as contained in Part V of the Summary Proceedings Act 1957 in New Zealand. Such a hearing does involve the taking of depositions and may result in the defendant being discharged if the evidence is insufficient to put the defendant on trial or the defendant may be committed for trial if he pleads not guilty or committed for sentence if he pleads guilty.

Section 90 serves no such purpose. It does provide a means of having a witness's evidence recorded on oath which may be then used in evidence in certain circumstances at the trial. It would also give the defence an opportunity to test the evidence in cross-examination. It might assist the defence to make an application to the trial Judge in the Supreme Court that the case should not be allowed to go to a full trial and that the accused should accordingly be discharged. Compare the Crimes Act 1961, s.347, in New Zealand.

However, the taking of depositions is only to be ordered if the Court considers it desirable in the interests of justice. The appellant contends that the refusal of the Chief Justice to order depositions be taken was without reasonable justification and constituted a procedural violation of the right to a fair trial which renders the trial unsafe and unfair. The appellant has no right of appeal from this preliminary ruling under s. 164B of the Criminal Procedure Amendment Act 1992/993 and no attempt was made to appeal under any other provision. Mr Malifa submitted that the taking of depositions was desirable in this case having regard to the age of the complainant (2 years and 8 months at the time of the alleged rape) and the uncertainty of the medical evidence. Bearing in mind that the complainant was not being called as a witness and that medical evidence can be fully explored at the trial, we see no injustice to the appellant in the Chief Justice exercising his discretion not to order the taking of depositions in this case. It must be noted of course that under s. 89 the prosecution had made available to the accused or his lawyer copies of all statements made by witnesses proposed to be called and by the accused whether orally or in writing. We were told from the bar that the taking of depositions is rarely sought or ordered. We see nothing exceptional in this case. However, each application for the taking of depositions must be considered on its own facts and decided judicially according to the interests of justice.

The appellant in his next point claimed that the guarantee made by the Constitution Article 9(1) of a fair trial gave him the right to choose trial by Judge alone and to waive trial by Judge and assessors. He applied prior to the Chief Justice for trial by Judge alone but this was refused because of the provisions of s.87 of the Criminal Procedure Act 1972. This section is as follows:

"87. Supreme Court with assessors

The Supreme Court shall sit with assessors on the trial of any person for an offence punishable by death or by imprisonment for more than 5 years if he pleads "not guilty" thereto:

Provided however that any person charged with an offence (other than perjury arising in proceedings before the Land and Titles Court), for which the punishment is other than by death or imprisonment for life, shall be entitled, before the charge is gone into but not afterwards, to be tried by a Judge of the Supreme Court sitting alone."

As everyone who commits rape is liable to imprisonment for life (s. 47(2) Crimes Ordinance 1961), the proviso to s.87 entitling an accused to be tried by Judge alone does not apply. The Constitution provides for a hearing by "an independent and impartial tribunal established under the law" and the tribunal established under the law is, by s.87 in the case of a trial for an offence punishable by imprisonment for life, the Supreme Court sitting with assessors. Neither the Constitution nor the Criminal Procedure Act 1972 allowed a choice to the appellant to choose trial by Judge alone. The Chief Justice was clearly right in refusing the appellant's application and Mr Malifa decided not to press the point.

He then turned to attack the compilation of the list of assessors as discriminatory and unfair in its eligibility process and so violating judicial independence and the separation of powers doctrine. His main thrust was that the list of assessors was comprised mainly of matais and moreover did not reflect the introduction of universal franchise in 1992. However, when pressed on the matter he could not say that the Judicial Service Commission did not have recourse to the general roll of voters since the introduction of universal franchise. Indeed the Chief Justice in his judgment on the appellant's objection to trial before any panel of assessors said,

"The reason advanced in support of this submission is that the list of assessors is unconstitutional because it violates Article 15 of the Constitution since only matais are in the list of assessors and therefore the list is discriminatory. I cannot accept this submission because there have been for a long time many non-matais on the list of assessors as well. Recently, the number of women on the list of assessors has increased considerably,"

Article 15(1) and (2) of the Constitution provides:

"15. Freedom from discriminatory legislation

(1) All persons are equal before the law and entitled to equal protection under the law.

(2) Except as expressly authorized under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject to any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them."

We see no breach of that Article in the statutory requirement of s.92 (2) that:

"(2) The list of assessors shall contain the names and addresses of such persons (whether men or women), not less than 250 in number, as are qualified to be assessors, in the opinion of the Judicial Service Commission, by reason of their character, education, ability and reputation."

The list of assessors is to be compiled and kept by the Registrar of the Supreme Court. Those assessors must, in the opinion of the Judicial Service Commission, meet the qualifications set out in s.92 (2) already cited. Then in January every year the Registrar must review the list and make recommendations to the Judicial Service Commission for deletions and additions to maintain the integrity of the list. Persons considered to have become unfit to sit may be deleted and others thought qualified and needed may be added.

We see nothing discriminatory in that process. The list is compiled by the Registrar and it is the Judicial Service Commission established under Article 72 of the Constitution which must approve the assessors on the list as duly qualified in terms of s.92(2). This Commission comprises the Chief Justice as President, the Attorney-General or Chairman of the Public Service Commission and a person nominated by the Minister of Justice. It is to be noted that by Article 72(3) the power is vested in the Head of State to appoint or dismiss, with certain exceptions, any judicial officer, acting on the advice of the Judicial Service Commission. It is quite consistent with the standing of this Commission under the Constitution that the Legislature provided for it to determine the suitability of assessors on the criteria of character, education, ability and reputation. This administrative function does not violate the judicial independence of the members of the Commission.

There was no evidentiary basis to support the appellant's challenge to the manner in which the list of assessors had been compiled. Accordingly he cannot, without any such evidence, challenge the list as a whole as depriving him of a fair trial before an independent and impartial tribunal.

The assessors for each trial are chosen from the list of assessors by the trial Judge (s. 93(2)). The protection available to an accused person is by way of challenge for cause, under s. 96(1), before an assessor is sworn. The Judge may also of his own motion remove an assessor. A challenge is not to be allowed nor an assessor removed by the Judge on his own motion unless he is satisfied that there is some reasonable and sufficient objection to the assessor. In this case, the appellant wished to challenge for cause the three matai assessors of the four assessors chosen by the Chief Justice. The ground for that challenge relied on the objection to the compilation of the whole list of 250 assessors already considered and held, in the absence of evidence to support it, to be without substance.

The Chief Justice heard this challenge in the absence of the assessors for the reason that if the challenge were unsuccessful there would be the possibility that the assessors concerned may be prejudiced against the defendant. In view of the oath or affirmation of an assessor to act well and truly as an assessor and to decide in accordance with the evidence and the law such a prejudice should be unlikely but we see no objection to the Chief Justice having first heard from counsel in the absence of the assessors the nature of his challenge. As it did not relate to any assessor being unqualified in terms of s. 92(2), nor to any other reason to render the assessor unsuitable to sit on this particular trial, there was no reasonable or sufficient objection with which to confront any assessor. To have charged an assessor as being unsuitable simply because he was a matai would be unreasonable.

In our view, these arguments of the appellant that he did not have a fair trial in accordance with the Constitution all fail for the reasons given and we turn now to the remaining two grounds of appeal, but first it is necessary to refer to the facts of the case.

The appellant is a single man 30 years of age. He had been drinking on New Year's Eve and again on, the morning of New Year's Day. That afternoon he was seen carrying the complainant then aged 2 years 8 months. He told the child's mother that he was taking her to her father at his request. The appellant is a nephew of the child's grandmother and lives nearby. He took the child into a place concealed by bushes in the neighbouring USP compound. A child's screaming attracted attention and two women ran to the scene. The appellant and the child were found lying very close together both naked, the child's clothes on the ground beside her. The child was picked up and carried away. One witness described the child's private part as reddish. Another saw bleeding from her private part, scratches on her back, a red cheek and sign of a bite. The child was taken to hospital. The doctor who examined her produced his report that he found the vulva swollen and bruised, superficial laceration 1" at the right majora and about 1/2" on the left majora. The hymen was intact. The vaginal swabs did not reveal the presence of semen. In his oral evidence, he said the vagina includes the majora and minora, the lacerations had been inflicted at the same time and could have been caused by anything including a penis.

Those were the facts of the case except for the evidence of a Sergeant of Police who interviewed the appellant and produced a caution statement made by the appellant. Counsel for the appellant objected to the production in evidence of this statement. After a voir dire it was held to be admissible and the Sergeant gave his evidence and produced the statement. There is no record available of the evidence on the voir dire nor of the ruling of the Chief Justice on the admissibility of the statement. Apparently, the shorthand notes are missing.

Mr Malifa has renewed in this Court his objection to the admissibility of the caution statement. According to the evidence of the Police Sergeant he took the appellant to his office and told him he was charged with indecent assault but considered him too drunk to be interviewed so put him in cells overnight to sober up. His evidence-in-chief of what took place the next morning is as follows:

"I informed him of the (charge) and I started questioning him. I questioned him of the (incident) at Alafua. I then put him a question whether he had raped ... and by that time he admitted that he did rape .... (At) that time I cautioned him of his rights and I also asked him if he wanted to consult a solicitor of his own choice. Sape Talo at that time was so remorseful and he cried, then he told me that he does not want any solicitor to stand for him because the girl he did something wrong to is the daughter of his cousin.

Go on.

Then I took a statement from Sape Talo."

There can be no question but that the appellant was under arrest and in custody on a charge of indecent assault when put in cells overnight. The third of the Judges' Rules provides that "Persons in custody should not be questioned without the usual caution being first administered". This was clearly a case in which the Sergeant on approaching the appellant next morning should have immediately cautioned him that he was not obliged to say anything. Mr Edwards frankly conceded that there had been a breach of the Judges' Rules. Furthermore, coupled with this right to silence was the appellant's constitutional right under Article 6(3) which reads:

"6. Right to personal liberty -

(3) Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay."

It has been recognised by this Court in The Police v. Va'asili Piula C.A. 2/93, (Judgment of Morling, Reynolds and Roper JJ. dated 4 February 1993) that, although there is not an express requirement to inform an arrested person of his right to counsel as in some other jurisdictions, there may well be imported into the Article an unexpressed requirement to inform the person arrested that he has the right to counsel. In this case, the appellant was not told of his right to consult a solicitor of his choice without delay but simply asked if he wanted to consult a solicitor of his choice.

But we are very concerned with a more serious situation. Here was a man held in cells overnight because he was too drunk to be questioned or to understand his rights if he had been informed of them then, about to be questioned next morning on the much more serious charge of rape, without a caution under the Judges' Rules and without first being informed of his right to consult a solicitor. Article 6(3), which being a constitutional provision is more important than the Judges' Rules, requires promptness and while the degree of promptness may vary to some extent according to the circumstances, in this case, where the appellant had been arrested and held overnight, the time had come, before the Sergeant started questioning him, to inform him of his right to consult a solicitor of his choice without delay. We are also concerned that the appellant was asked if he had raped the child before he was given the caution when the Sergeant should have asked the appellant for his account of what he had done to the child. Furthermore, with this foundational question whether he had raped and his admission, we could not be confident that it did not influence his admission after that caution. His account without that preliminary admission may not have amounted to rape but attempted rape and his so-called admission of rape may be coloured by his then saying that he had "done something wrong" to the child. We do not regard these breaches as inconsequential. Nor can we say the appellant was in a fit state to understand his rights and waive them. The prosecution has not satisfied us that the Sergeant's evidence and the caution statement should nevertheless be admitted. For these reasons, we must hold that the oral admission of rape and the caution statement which followed it, should have been ruled inadmissible in evidence.

The remaining ground of appeal is that the summing up unfairly stressed the very young age of the complainant and failed to deal adequately with the issue whether it had been proved beyond reasonable doubt that the injuries to the child's vagina had been caused by the penetration of the appellant's penis or in some other way, such as digital penetration. Once the Sergeant's evidence and the caution statement are excluded, consideration of the summing up is no longer relevant because there is then not proof beyond reasonable doubt of rape, that is, there was penetration such as to amount in law to sexual intercourse under ss. 46 and 47 of the Crimes Ordinance 1961. Pursuant to s. 164N of the Criminal Procedure Amendment Act 1992/1993, the verdict of rape is set aside as it cannot be supported having regard to the admissible evidence. However, we have not the slightest doubt that the admissible evidence proves beyond reasonable doubt that the appellant committed the crime under s.48 of the Crimes Ordinance 1961 of attempted rape and that assessors properly directed would undoubtedly have returned such a verdict. Accordingly, this Court quashes the conviction of rape and, as justice requires, in its place, this Court enters a conviction of attempted rape.

The sentence of 6 years imprisonment for rape is also quashed. The maximum sentence is 10 years for attempted rape. Having regard to the seriousness of this case in which the facts are not significantly less serious than for rape, in that a drunken man of 30 years of age carried away to a hidden place and there assaulted and injure a very young child causing her great distress in his attempt to rape her, we substitute a sentence 4 years imprisonment from the date of commitment, 25 August 1993. It is not overlooked that the appellant had been in custody prior to trial from January 1993.

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

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