IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 05/11

IN THE MATTER: of an appeal against conviction and sentencing

BETWEEN:

SIMI ENESA LAKISA
Appellant

AND:

THE ATTORNEY GENERAL
Respondent

Coram: Honourable Justice Baragwanath
 Honourable Justice Fisher
 Honourable Justice Hammond

Counsel: T S Toailoa for the appellant
 K Raftery and P Chang for the respondent

Hearing: 23 August 2011 

Judgment: 26 August 2011

JUDGMENT OF THE COURT

Introduction

1.	On 18 June 2010 the appellant, who we will refer to as Enesi, was convicted of manslaughter by assessors at a trial presided over by Slicer J. On 1 July 2010 he was sentenced to 4 years imprisonment.

2.	On 12 May 2011 Enesi appealed well out of time against both his conviction and sentence. In the particular circumstances we indicated at the hearing that leave would be granted if the merits of the appeal appeared to warrant it.

3.	We heard counsel on the merits. The panel conferred after hearing counsel. We then indicated in open Court that the appeal against conviction would be allowed and a new trial ordered. We said we would give reasons for our decision in writing. These are those reasons.

The broad circumstances of the alleged offending

4.	On the evening of 21 April 2008, the deceased, Elvis, and a friend were at Crabber's night club in Apia. Enesi was working in the bar. He attempted to remove empty bottles at closing time. There was a dispute over this and Enesi received an invitation "to go outside". Elvis, Enesi and certain other persons then went outside. There then followed a violent melee. This led ultimately to Enesi, and two other co-defendants, Leone and Viliamu being charged with murder.

5.	Leone undoubtedly hit Elvis a heavy blow on the chest which caused Elvis to fall by the seawall. Blows were then rained upon Elvis, who was down and calling "fia ola" (I want to live).

6.	As is routinely the case with this kind of affray there was a dispute at trial as to who struck what blows to Elvis and to what effect. There is no question that the beating administered to Elvis was so severe that it eventually brought about his death from the head injuries he suffered. Leone and Viliamu certainly laid heavy blows and were convicted of manslaughter. They have not appealed those convictions.

7.	In its essentials, the defence which appears to have been run for Enesi was that he went outside to this melee. He was, in a personal sense, associated with those raining blows on Elvis but he was not directly involved in it. Indeed, he said he went a little distance away, seeking a man in a rasta hat he thought had started the whole affair. He failed in that objective, and returned to the spot where Elvis had fallen by the seawall. When he got back he went over to Elvis, lying as we now know mortally wounded on the ground, and gave him a single kick in the ribs. Enesi said this was because he was frustrated at not having being able to find "the rasta guy" he had been after. He did not cause any of the injuries leading to Elvis' death and was not in on the beating of Elvis in any of its material respects. And whilst he had gone outside with colleagues he was not in on a common venture to "get Elvis".

The way the case was put to the Assessors in his summing up

8.	The Judge had correctly noted at various points in his summing up that the three accused were entitled to separate trials, although under the convenient umbrella of this one trial of the prosecution case. He said, by way of summary to the assessors: 

The prosecution say that the three men at various times joined in a long and hard attack on a smaller man. Although sometimes they were apart they acted together. Even when the man who was being assisted to the taxi was almost unconscious he was struck again. That is unlawful and the death is their responsibility. That is murder or at least manslaughter.

9.	 As to the "defence" the Judge told the assessors:

The defence say Elvis started some trouble. Other people got involved in the trouble, many things happened, as they do but although, in each case, the defendant may have struck the deceased – may have struck Elvis, so did others and they should not be held responsible for a wide fight involving many people and the prosecution cannot show that it was they who brought about the death. It could have happened by accident or it could have happened by someone else, it could have happened by the man falling.

10.	It will be observed that the position of each of the three accused was not dealt with individually; effectively they were "rolled up" into a common enterprise of the kind to which we have already referred in the Judge's summing up, and it was being said, they were all in on it. This was contrary to Enesi's account, if accepted.

Appeal grounds

11.	The formal grounds advanced by counsel were put under three heads: 

(a) that the verdict was unreasonable or could not be supported having regard to the evidence;

(b) that the summing up was an unbalanced one and that the Judge had incorrectly told the jury that this must be murder or manslaughter; and

(c) Mr Enesi was not given the chance to testify at his trial.

12.	As the hearing advanced the panel quickly became concerned that there was a much more fundamental ground for concern about the verdict with respect to Enesi, namely that his defence had not been put at all, let alone properly drawn to the attention of the jury. We will deal with that aspect shortly, but as to the three grounds that were advanced there was nothing in the point that Enesi was not given the opportunity to testify. He was, and there is no claim of counsel incompetence, with respect to his then trial counsel. The unreasonableness of the verdict was said to rest upon certain inconsistencies in the evidence of some State witnesses and would not itself have attracted a new trial. The claim of an unbalanced summing up was based upon a false premise: that the Judge had said much more about the prosecution case than the few words he said about the defence case for Enesi. That is an unfortunate visceral effect, if conveyed by a summing up, but it is not necessarily fatal. The more fundamental point is whether Enesi's individual case was put adequately.

The law on putting the defence case
13.	Bad violent group assaults are only too common in all societies today and occasion particular difficulties for trial Judges. Defendants routinely try to distance themselves from the events, claim minimal involvement, misidentification, or even to have been Good Samaritans accidentally caught up in the melee. Just as routinely the prosecution charges all those thought to have been somehow involved and something of a blanket of common purpose is thrown over them.

14.	In such a context it is vital that it be borne in mind that each person charged is entitled to a separate trial, although this can be afforded under the umbrella of a single trial indictment. Sometimes severance applications are made, but the law on severance is not particularly kind to defendants and that is another reason for particular care in summing up in multiple defendant violent offending trials.

15.	The New Zealand Court of Appeal has had occasion to revisit this area in a judgment which has been widely referred to in that jurisdiction: R v Shipton [2007] 2 NZLR 218. There four accused were said to have raped and sexually violated a young woman. All four (who included senior police officers in their number) were convicted. The fourth man, Hales, ran a defence that he had come to the scene of the rape after the three had finished their offending, and the circumstances had changed. So his defence was that his situation was quite different from that of the others. The High Court Judge summed up on very much a rolled up basis that all four had been involved to the necessary extent. At [33 – 39] of the judgment the Court of Appeal traversed the senior appellate authorities in the Commonwealth on the requirement to put, and put adequately, the defence case in any case, but particularly in cases of multiple defendants. The authorities are set out in Shipton and will not be re-traversed here.

16.	For the Court, Hammond J. said that the underlying principle is that it is the absolute duty of a trial Judge to identify and adequately remind the jury of the defence case in relation to each defendant. Failure to refer in the summing up to a central line of defence that has been placed before the jury will generally result in the conviction being set aside and a new trial ordered. These obligations on a trial Judge are not contingent. They are a fundamental obligation on the Court in relation to a fair trial. No matter how laughable, weak or improbable the defence, there is an obligation to put the individuated defence to the jury.

17.	Further, the Judge is absolutely required to see that the nature of the events is squarely put through his office by summarising the nature of the defence and the evidence. This does not mean that the Judge is required to repeat defence counsel's arguments nor to endeavour to top up a weak defence case by setting out inconsistencies, or things of that kind. But the Judge must put the defence and has to be careful not to just rely on counsels' closing speeches. This is because what is said by a Judge in a criminal jury trial in summing up is from a position of great and independent authority, and it is viewed as such by juries. It is for this reason that balance is so important on the part of the trial Judge. Where the heart of the defence is omitted, or some distinctive part of it, there is a very real risk that the jury would infer that the Judge is unimpressed with that defence. Counsels' closing speeches are no substitute for a judicial and impartial review of the facts from the trial Judge who is responsible for ensuring that the defendant has a fair trial, on a defendant by defendant basis.

18.	Finally it is appropriate to note that in Shipton the Court of Appeal, in common with the English appellate authorities mentioned in that judgment, was firmly of the view that "in a case not put" situation, reference cannot properly be had to the proviso.

This case

19.	Against these principles, this summing up was deficient with respect to Mr Enesi's case. First it was not dealt with individually. Secondly, he had, at least as a possibility, a distinct defence of his own, the elements of which were that he was endeavouring to engage (unsuccessfully as it turned out) in a fight with quite another man who he said started the whole wretched business that evening. He then came back and gave Elvis a passing rib kick (only), at the conclusion of the prior events in which he had taken no part and led to Elvis' death. Depending on how the assessors saw the evidence Enesi might have been seen not to have been involved in the homicide at all and, at most, to have been guilty of a minor assault. This defence and the essential evidence for and against it, should have been isolated by the trial Judge and drawn to the attention of the jury.

The responsibility of trial counsel

20.	In fairness to the Judge, he did not get the assistance he should have had from trial counsel. If a defence has not been put, or put adequately, trial counsel should have drawn this to the attention of the Judge for his assistance. This was a murder trial, deserving close and accurate attention by counsel. Nor for that matter did we get from the appellant's counsel the sort of articulation there should have been in this Court. This issue should have been raised, on appeal.

Conclusion

1.	Leave to appeal is granted.

2.	Mr Enesi's conviction for manslaughter is set aside.

3.	We order a new trial for Mr Enesi.

4.	We record for convenience here that bail for Mr Enesi was dealt with at the conclusion of the hearing before us.

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Hammond