IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA
C.A. 5/94
IN THE MATTER of the Constitution
AND:
IN THE MATTER of the Judicature Ordinance 1961, the Judicature Amendment Act 1992/1993, Criminal Procedure Act 1961 and the Criminal Procedure Amendment Act 1992/1993
BETWEEN:
AFA TAALILI of Salelesi
Appellant
AND:
THE POLICE of Western Samoa
Respondent
Coram: The Rt Hon. Sir Robin Cooke, (President); The Rt Hon. Sir Maurice Casey; The Rt Hon Sir Gordon Bisson
Hearing: 9 August 1995
Judgment: 18 August 1995
Counsel: T. Malifa for Appellant; Marion Bailey for Respondent
JUDGMENT OF THE COURT
DELIVERED BY SIR ROBIN COOKE
This is an appeal from a conviction for manslaughter following a trial on 5 and 6 July 1994 before the Chief Justice and five assessors. The accused was charged that at Fusi Saoluafata on 25 December 1993 by an unlawful act, namely stabbing, he caused the death of Lima Asovale Saka, a male of Saoluafata, thereby committing the crime of murder. The prosecution case was that on Christmas Eve the accused and other young men from the village of Salelesi came to Fusi Saoluafata and stoned a certain house; that the deceased went to the help of the family whose house was being stoned; that there was a fight in the course of which the deceased punched the accused; and that the accused then produced a knife, stabbing the deceased twice in the back and once in the chest, inflicting wounds which caused death.
The summing up correctly defined the relevant ingredients of the crime of murder and also correctly directed the jury on the issue of provocation. It is clear that provocation, sufficient to reduce murder to manslaughter, was a major issue at the trial; but it was open to the assessors on the summing up to acquit the accused of both murder and manslaughter. For instance, although this possibility verges on the theoretical, they could have been in doubt as to whether the accused inflicted the fatal injury or injuries.
We take the following account from affidavit evidence, information given to us by counsel from the bar, and the ruling of the Chief Justice. The assessors returned to give their verdict at about 3.30 p.m. They announced in answer to a question from the Chief Justice that they found the accused not guilty of murder. No question about manslaughter was then asked of them. The accused was told that he was free to go, the assessors were discharged and the court adjourned until its next sitting.
Within a short time two of the assessors, who were still in the assessors' room, complained to a court official that the assessors had not been given an opportunity to state their verdict of guilty of manslaughter. The Chief Justice caused the sitting to be reconvened. The other assessors were outside the courtroom, waiting for transport. The accused was at the police station, to collect his belongings. Within fifteen minutes of the first verdict the assessors were all in the assessors' room and the accused had been brought back to the courtroom. Counsel for the accused, however, had departed and was not located for some time. Ultimately he was found, and he returned to the courtroom about 5.05 p.m. The Chief Justice then questioned each assessor publicly in the courtroom and in turn as follows:
Court: Vaea what is your verdict in this case?
Assessor: I found him guilty of manslaughter
Court: Is that the unanimous verdict of the assessors?
Assessor: Yes
Court: Mrs Toelupe what is your verdict in this case?
Assessor: The verdict that we had reached was that not guilty of murder but guilty of manslaughter
Court: Is that the unanimous verdict you have reached?
Assessor: Yes
Court: Gaono what is your verdict in this case?
Assessor: Found him guilty of manslaughter
Court: To your understanding is that the unanimous verdict of the assessors?
Assessor: Yes
Court: Mrs Maessen what is your verdict in this case?
Assessor: My verdict was guilty of manslaughter
Court: To your understanding was that the unanimous verdict of the assessors?
Assessor: Yes
Court: Not guilty of murder but found him guilty of manslaughter?
Assessor: Faleafaga [foreman] what is your verdict in this case
Court: To remove any doubt is there any reason Faleafaga why the verdict which was announced by yourself this afternoon is different from the verdict on which the assessors agreed?
Assessor: We have unanimously decided to find him guilty of manslaughter.
The Chief Justice said that the first verdict may have been the result of some misunderstanding and that it was clear that the unanimous verdict of the assessors was not guilty of murder but guilty of manslaughter. He expressed his concurrence with that verdict. The accused was remanded in custody and subsequently sentenced to imprisonment for five years.
In support of the appeal against the manslaughter conviction, Mr Malifa contended that following the verdict of not guilty of murder and the discharge of the accused and the assessors the case was at an end: the accused had become a free man: his discharge was final and conclusive even if mistaken: the assessors were functi officio.
Those propositions are not without judicial support, most notably from the majority of the Supreme Court of Canada in R. v Head (1986) 55 C.R. (3d) 1, who held that the criminal process requires that the power or duty of the trial judge to intervene when a jury verdict is returned and to inquire as to the true nature of the verdict be exercised prior to the jury's discharge. In a minority opinion Lamer J. accepted that on the facts of that case the ends of justice would be better served by leaving the acquittal, as registered, undisturbed. But he took a wider view of the power of the court, holding that, as accurately summarised in the headnote:
A jury, even after discharge, can be reconvened to correct an improper or incomplete transmission or registration of a verdict, but it cannot reconsider a verdict or complete its deliberations with a view to handing down additional verdicts on counts or on included offences that it had not finally determined prior to that discharge; nor can anyone go behind the verdict and make inquiries as regards the nature of the deliberations. The effect of adopting the rule, until now applicable to civil matters, is to ensure that those found guilty by the jury do not go free and more importantly, that those found innocent by the jury are not convicted.
In New Zealand, after a survey of case law in a number of jurisdictions, the Court of Appeal has recently preferred Lamer J.'s approach, in R. v Loumoli and Brooks (C.A. 345/94, 346/94; judgment 12 May 1995). The judgment points out that the provisions in New Zealand of s.385 of the Crimes Act 1961, including the proviso, make it easier to adopt that solution. Those provisions have their counterpart in Western Samoa, as we will explain later.
In Loumoli the facts were stated by the court as follows:
After an affirmative reply to the usual question whether the jury had unanimously agreed on a verdict, the court taker asked the jury how they found the defendant Brooks on Count 1, the murder charge. The foreman replied "Not guilty". The same question was then put in respect of the second accused, Loumoli, to which the foreman again replied "Not guilty". In response to the court taker's further questions, the jury indicated that they found both accused guilty in respect of the second ground of grievous bodily harm. Confirmation was given in the usual way that those were the verdicts of the entire jury. At that point the Judge thanked the jury and indicated that they could leave. It is unclear whether the Judge actually used the term "discharged", but we are satisfied the effect of what he said and did was to discharge the jury. When the jury had left the courtroom, the Judge convicted the accused on the second count, and stood them down until the next morning so that a sentencing date could be fixed.
After leaving the courtroom, the jury returned to the jury room to collect their belongings. A court attendant was with them, to arrange transport for those jurors who required it. From jurors' remarks it became obvious to her the jury were not happy with the verdict as it had been returned, in that they had not had the opportunity to be heard on manslaughter. At that stage, all but two or three of the jurors were still in the jury room. The court taker, who had remained in the courtroom, was alerted, and the court attendant found those jurors who had left the jury room, who were just leaving the foyer outside the courtroom. When all the jurors were back in the jury room, they expressed a firm desire to be heard on the question of manslaughter. The court was re-assembled, and the verdicts were taken again. On this occasion, on count 1 the jury returned verdicts of not guilty of murder but guilty of manslaughter. The Crown Book recorded that six minutes elapsed between the first occasion the jury was discharged, and the second. There is no suggestion or suspicion that any member of the jury spoke to anyone before the court reconvened, except the court taker and the court attendant, and then only to voice concerns that the verdict did not correctly represent their decision.
The Court's reasons for accepting the verdicts of manslaughter were summarised in the judgment in these words:
On the present facts we are satisfied that no substantial miscarriage of justice occurred. The foreman clearly made a mistake in returning the verdict, a mistake that was realised and corrected within minutes. There is no suggestion of reconsideration or change of mind. The jurors were unanimous that they intended to return a verdict of manslaughter, and conveyed that to court officials. We note Wigmore places importance on the feature of unanimity of the jurors, where questions of correcting an error in the delivery of the verdict arise. The members of the jury had not had the opportunity to speak to anyone else in the intervening minutes, and there is no evidence that any outside source influenced their decision or had the opportunity to do so. It cannot be said that there has been any prejudice to the appellants.
On that basis, we have reached the conclusion that there is scope, even after the discharge of the jury, for a trial Judge to recall the jury to correct an error or omission in the delivery or recording of a verdict.' We are not here concerned with a situation where further deliberation is required. Accordingly, we hold that the Judge was entitled to recall the jury, and that the manslaughter verdicts should not be set aside on the ground under consideration.
The reference to Wigmore is to a passage in Wigmore on Evidence, McNauqhton, rev. 1961):
"It has occasionally been said that this correction must be claimed before the jury are discharged, but this seems unsound because such errors are seldom ascertained until after the jury have separated and conversed out of court, and if the error is satisfactorily established, there can hardly be any fixed time to limit its correction.
Subject to this qualification, it is universally conceded that a unanimous error of the jury in delivering the verdict as already unanimously agreed on in the jury room may be shown for the purpose of correcting it to correspond, or, when this is not safely to be done, of ordering a new trial."
While there is both emotive force and some logical appeal in the argument that an accused has become free (at least of the charges covered by the particular indictment) once discharge of the accused and the jury also has been announced, both the weight of authority and the practical experience of the courts point to the view that neither the discharge of the accused nor the discharge of the jury automatically prevents the correction of a mistake. Authorities to that effect are collected in Lomouli and Brooks, and it will be enough here to cite as fairly recent examples R. v Andrews (1985) 82 Cr.App.R. 148 and R. v Cefia (1979) 91 SASR 171.
In terms of the formulation adopted by the English Court of Appeal in Andrews (supra) the trial judge has a discretion to accept a corrected verdict, to be exercised in all the circumstances of the case. That the accused has been discharged from custody was recognised to be only one factor for consideration. The judgment in Andrews refrained from deciding whether a discharge or dispersal of the jury might be fatal, but the reasoning of Wigwore, already quoted, appears to us convincing on that point.
Approaching the present case in that way, we note that, although the accused had been discharged, he had got no further than the police station and that, although the assessors had been discharged, they were all still either in or immediately outside the courthouse. It is accepted that there had been no opportunity for anyone to influence them: counsel for the appellant was not able to suggest otherwise. The disclosure of a mistake was spontaneous on the part of two of the assessors. Only some 15 minutes had elapsed before the accused and the assessors were brought back. The Chief Justice's questions at the reconvened sitting and the answers produced are clear evidence that the manslaughter verdict had been unanimously decided upon before the verdict of not guilty of murder was delivered: there is no suggestion of any change of mind by any of the assessors. In all these circumstances the interests of justice, which include the public interest as well as that of the accused, will be best served by allowing the verdict of guilty of manslaughter to stand.
The same result may be reached by an alternative route which we adopt as a further ground of our decision. Section 164K of the Criminal Procedure Act 1972, one of the new sections introduced by the Criminal Procedure Amendment Act 1992/1993, provides for a right of appeal against, inter alia, conviction in the Supreme Court except on appeal from a decision of the District Court. Section 164N provides as far as relevant:
"164N Determination of appeals in ordinary cases - 
(1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of the opinion
(a) That the verdict of the Assessors should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law: or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity.
(2) In any other case the Court of Appeal shall dismiss the appeal.
(3) The Court of Appeal may, even though it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(4) Subject to the special provisions of this Part of the Act, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction, and direct a verdict of acquittal to be entered, or direct a new trial or make some other order as justice requires..."
With the substitution of a reference to the Assessors instead of the jury, s.164N is materially identical with s.385 of the Crimes Act 1961 of New Zealand and was no doubt copied from it.
For reasons already given, we are satisfied that no miscarriage of justice occurred in this case, so ground (c) of appeal in s.164N(1) cannot be established. The same applies to ground (b), if, as we hold; the Judge properly exercised a discretion to allow the mistake to be corrected. On the other hand, the rather strict view taken by the Canadian majority in Head, with which we have indicated our respectful disagreement, would lead to the conclusion that, once the assessors and the accused were discharged, it was too late to reconvene and the accused could not be required to return to court. According to that view, the proceedings at the-time of the manslaughter verdict would no doubt be described as a nullity, making ground (d) applicable.
Even if we shared the majority view in Head, however, the 'proviso' in s.164N(3) would be available. As was noted in Loumoli and Brooks the equivalent Canadian proviso appears to have a somewhat narrower scope and was not discussed in Head. The width of the proviso as the section has stood since 1961 in New Zealand, and now in Western Samoa also, was stressed in R. v Kestle (No. 2) [1980] 2 N.Z.L.R. 353, 357-361, where it was applied to save a conviction for murder notwithstanding that a course erroneous at that time had been followed in replacing a juror. As pointed out in Kestle, in some cases the proviso may properly be applied even where the trial is held to be a nullity. It was said at 359:
"We think that the enactment of (d) in such a away as to make it subject to the proviso represents a perceptive piece of realism by Parliament. If necessary it is a legislative encouragement to approach technical defects in a practical way. This was the essence of the argument presented to us by the Solicitor-General. The change in the legislation was subsequent to the decision in Bell [R. v Bell 1958 N.Z.L.R. 449] and enables us, having held that the trial Judge here must be taken to have made a mistake on a point of procedural law as to the composition of the jury, to regard the important question as being whether this Court considers that no substantial miscarriage of justice has actually occurred."
The essential point in the present case is that no miscarriage of justice has occurred. We align ourselves with the Court in Loumoli and Brooks in concluding that the present case is within any limits beyond which validation by use of the proviso cannot be pressed. Consequently, whichever of the two above routes to the decision be taken, our decision is to dismiss the appeal.
Last, we take the opportunity of underlining that in a murder trial, if the alternative of not guilty of murder but guilty of manslaughter is available on the evidence, it is desirable to follow the procedure recommended in R. v Dwiqht [1990] 1 N.Z.L.R. 160, 166. For convenience the passage is now repeated:
"Before leaving the subject of jury procedures we note that both the Solicitor-General and Mr Bungay expressed concern about difficulties that some juries have apparently experienced recently in dealing with murder counts. When the evidence is such that a verdict of guilty of manslaughter is open in the event that the accused is found not guilty of murder, we think that it will be advisable for the Registrar to ask first whether on the murder count they find the accused guilty or- not guilty of murder: and then, if that verdict is not guilty, to go on to ask expressly whether they find the accused guilty or not guilty of manslaughter."
Citing R. v Saunders [1988] A.C. 148, the Solicitor-General suggested a different formula, which could result in accepting a disagreement as to murder but a verdict of guilty of manslaughter. This case does not require us to consider such a point and it is better not to do so without fuller argument. In New Zealand s.374(6) of the Crimes Act 1961, as enacted in 1980, has to be taken into account. The course already mentioned should be adequate for the generality of cases.
We add that if the Judge is contemplating asking the second question in the event of a verdict of not guilty of murder, it may help the assessors for the Judge to say so at the end of the summing up. Unless the Judge has reason for encouraging a manslaughter verdict, it will be as well to explain also that he is mentioning the possibility of a second question only so that they will understand the procedure, and is not suggesting what their verdict should be.
For those reasons the appeal is dismissed, and the conviction for manslaughter and the sentence stand.