IN THE COURT OF APPEAL OF SAMOA
Police v Visesio [2018] WSCA 13
Case name: 	Police v Visesio	
		
Citation: 	[2018] WSCA 13	
		
Decision date: 	25 October 2018	
		
Parties: 	POLICE (Appellant) and McKAY VISESIO (Respondent).	
		
Hearing date(s): 	18 October 2018	
		
File number(s): 	CA12/18	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuatagaloa	
		
On appeal from:	Supreme Court of Samoa	
		
Order:	The Attorney General’s appeal against Mr. Visesio’s acquittal is allowed.
We direct that a new trial be held in the Supreme Court	
		
Representation: 	Leone Su’a-Mailo & Fuifui Ioane for the Appellant
Iuni Sapolu & Josephine Fuimaono-Sapolu for the Respondent	
		
Catchwords: 	Acquitted of charges – assessor trial – appeal against acquittal – Judge erred in law – verdicts unreasonable –  new trial to be held. 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013, ss.104; 118(1);
Criminal Procedure Act 2016, ss.46; 48; 136(4)(b);177;
The Constitution of the Independent State of Samoa, Article 9.	
		
Cases cited:	Elia v Attorney General [2014] WSCA 14;
Huynh v R [2013] HCA 6;
Lakisa v Attorney General [2011] WSCA 7;
R v Munro [2007] NZCA 510;
R v Owen [2007] NZSC 102;
R v Ramage [1985] 1 NZLR 392;
R v Shipton [2007] 2 NZLR 218;
Toailoa Law Office v Duffy [2006] 2LRC 138.	
		
Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA12/18

BETWEEN:

P O L I C E
Appellant

A  N  D:

McKAY VISESIO
Respondent

Coram:	Honourable Justice Fisher
		Honourable Justice Harrison
		Honourable Justice Tuatagaloa

Hearing:	Thursday 18 October 2018

Counsel: 	Leone Su’a-Mailo & Fuifui Ioane for the Appellant
		Iuni Sapolu & Josephine Fuimaono-Sapolu for the Respondent

Judgment:	Thursday 25 October 2018

JUDGMENT OF THE COURT
Introduction
1.	McKay Visesio pleaded not guilty to charges that he attempted to murder Chen Hong or alternatively caused him serious bodily harm with intent. He pleaded guilty to a lesser charge of possessing a dangerous weapon, namely a machete.   He was acquitted on the two major charges following a trial in the Supreme Court before Vaai J and a panel of assessors.  
2.	The Attorney General appeals against the assessors verdicts on the grounds that: (a) the Judge erred in law in ruling video footage evidence inadmissible at the trial; (b) the Judge erred in law in his directions to the assessors; and (c) the verdicts were unreasonable or cannot be supported having regard to the evidence. 
Facts
3.	In summary the Crown’s case was as follows. Mr. Hong is a produce merchant in Vaitele-tai     On 30 September 2017 Mr. Visesio visited his shop in an apparently intoxicated state to inquire if Mr. Hong would sell his pumpkins.  Mr. Hong’s staff declined Mr. Visesio’s request.  He responded with visible unhappiness and punched Mr. Hong.  A fight then ensued between Mr. Visesio and Mr. Hong’s relatives during which Mr. Visesio is said to have sustained some facial injuries. As Mr. Visesio left Mr. Hong’s shop he was heard to say, “I’m going now but I’m coming back with a gun to shoot you and your staff.”
4.	Mr. Visesio returned by car to Mr. Hong’s shop about 20 minutes later.  The vehicle was driven by a third party and Mr. Visesio was accompanied by his wife and one other person. Mr. Visesio re-entered Mr. Hong’s shop carrying a machete which he brought with him.  Mr. Hong had his back to him and was unaware of Mr. Visesio’s presence.
5.	Mr. Visesio struck Mr. Hong from behind with the machete on the left side of the back of his head.  When Mr. Hong turned to confront his attacker, Mr. Visesio stabbed him on the side of his body.  He attempted to strike Mr. Hong again but was diverted by one of his employees.  Another machete blow hit some nearby shelves.
6.	Dr. Puipui Su’a examined Mr. Hong shortly afterwards.  He observed that Mr. Hong had sustained a moderately deep cut to the left side of his scalp behind the ear, extending towards the back of the head as well as the earlobe.  The lacerations were about six centimeters long and one centimeter deep.  Another laceration was evident on the back part of Mr. Hong’s left earlobe about three centimeters long.  The wounds were consistent with the use of a sharp object like a knife or a machete in a single strike.  
7.	Dr. Su’a regarded Mr. Hong’s wounds as potentially life threatening.  The cut was close to the neck, near vital arteries supplying the brain.  In cross-examination it was suggested to the doctor that the wounds may have been caused by Mr. Hong’s head coming into contact with the metal shelves in the shop.  The doctor was clear that the wounds were consistent with the infliction of a machete or knife blows.  
8.	Mr. Hong gave evidence at trial, as did Dr. Sua, an eye witness, Vaoesea Uputaua, and Faleniu Ah Lam.  The thrust of defence counsel’s cross-examination was directed towards establishing that Mr. Visesio was seriously assaulted by Mr. Hong’s relatives when he first visited the shop.  Significantly, there was no real challenge to the evidence that Mr. Visesio struck Mr. Hong twice with the machete.  
9.	Mr. Visesio did not give evidence.  He called two witnesses in his defence.  One was his wife, Tauletu.  The other was a friend, Ray Silva.  Their evidence was focused very much on the first altercation. Neither of them saw the second attack.
10.	The judge directed the assessors following counsels’ closing addresses.  The assessors retired before returning not guilty verdicts.
Appeal
11.	The Crown is entitled to appeal against Mr. Visesio’s acquittal on these grounds provided by s177 of the Criminal Procedure Act 2016.
	“177. Right of Attorney-General to appeal against sentence or acquittal – 
	(1) The Attorney-General may appeal to the Court of Appeal against the sentence 	passed on any person, unless the sentence is one fixed by law….
	(4) If, on the trial of a person on a charge before a Judge sitting with assessors, the person is acquitted of that charge, the Attorney-General may, on the grounds that an error of law has occurred, appeal to the Court of Appeal against that acquittal.
	(5) Error of law includes, but is not limited to, the following:
	(a) the question of admissibility of evidence;
	(b) a ruling on a no case to answer application;
	(c) directions of the trial judge to the assessors as to the law;
	(d) the correct construction of a statute;
	(e) the question as to the legal consequences of uncontroverted fact;
	(f) whether a particular defence is available to the assessors to consider;
	(g) whether a positive actual finding was unsupported by any evidence;
	(h) the verdict of the assessors is unreasonable or cannot be supported having regard to the evidence.
	(6) Upon the hearing of an appeal under subsection (3) or subsection (4) the Court of Appeal may:
	(a) dismiss the appeal; or
	(b) uphold the appeal and direct a new trial.”
Error of law: exclusion of video footage evidence.
12.	The Crown’s first ground of appeal is that the Judge erred in ruling that video footage taken by a security camera of Mr. Visesio’s attack on Mr. Hong was inadmissible at trial.  
13.	By way of brief background, the Police did not provide the video footage to prosecution counsel until 20 April 2018, three days before the trial was due to start.  The Police, however, had been in possession of the footage since October 2017.  The prosecution is obliged to disclose to the Court and to the defendant within a reasonable time before trial copies of all statements made by witnesses proposed to be called. 
14.	A prosecutor is not required to disclose information which he or she would otherwise be required to disclose if prosecutor is not in possession of it. We do not accept Ms. Su’a-Mailo’s submission that for statutory purposes the prosecutor does not include the police. A police constable laid the charges and the police plainly prosecuted them throughout. The duty of disclosure arose when the police were first given the video in October 2017.
15.	The prosecutor served the video on defence counsel on 23 April 2018, the first day of the trial, together with a formal application for a ruling that the evidence was admissible.  The next day, 24 April, the Judge ruled orally that the footage was inadmissible without hearing from counsel.  On 25 April, after allowing counsel to be heard, the Judge ruled that he had decided to exclude the evidence because its admission would violate Mr. Visesio’s constitutional right to a fair trial. He gave weight to the fact that the police had been in possession of the video evidence since October 2017.  In his judgment the prosecution delays breached Mr. Visesio’s right to be properly informed of the nature of the allegations against him.
16.	We are satisfied that the Judge erred.  He was required first to determine whether the evidence was legally admissible.  Counsel informed us that the video showed Mr. Visesio holding a machete above his head when he returned to Mr. Hong’s shop.  Evidence of this nature would be directly relevant to proof of Mr. Visesio’s guilt and thus admissible. 
17.	However, the Judge failed to rule on this threshold issue.  Instead he excluded the footage on the ground that its admission would be prejudicial to Mr. Visesio’s Article 9 right to a fair trial because of the prosecutor’s delay.  
18.	Article 9 materially provides as follows: 
	9. Right to a fair trial:
	In the determination of his or her civil rights and obligations or of any charge against him or her 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….
	(4). Every person charged with an offence has the following minimum rights:
	(a) to be informed promptly, in a language which the person understands and in detail, of the nature and cause of the accusation against the person;
	(b) to have adequate time and facilities for the preparation of his or her defence….
19.	The Judge’s reliance on this ground was misplaced.  Mr. Visesio had been informed well before the trial of the nature and cause of the accusation against him.  He had adequate time and facilities to prepare his defence.  By the start of the trial the prosecution had served him with the witnesses’ affidavits together with photographs of Mr. Hong’s injuries.  The late service of the video footage did not affect Mr. Visesio’s knowledge of the essence of the charges.  It simply added to the probative weight of the Crown evidence against him.  Defence counsel would be limited to challenging the reliability of the footage.  
20.	Ms. Sapolu sought to support the Judge’s finding of prejudice on the different basis that admission of the footage would have been prejudicial to Mr. Visesio’s defence.  In rejecting that submission we note that evidence of a highly probative nature is inherently prejudicial to the defence and is necessarily admissible unless its prejudicial effect is unlawful, which is not suggested here. 
21.	The proper course for the Judge was to have adjourned the trial with an award of costs if Mr. Visesio was genuinely prejudiced in preparing his defence by the late delivery of the video footage.  The Judge was bound to weigh the competing interests in a fair trial on a judicial scale.  In this case the interests of fairness to Mr. Visesio could have been adequately satisfied by granting an adjournment.
22.	We are satisfied that the Judge made a material error of law in terms of s177(5) (a) in ruling that the video footage was inadmissible. 
Error of law: failure to properly direct the jury
23.	The Crown’s second ground of appeal is that the Judge erred in failing (a) to sum up correctly the evidence submitted for both the prosecution and defence; and (b) to discharge his duty to marshal and arrange the evidence of the witnesses issue by issue. 
Legal principles
24.	Ms. Su’a-Mailo submitted that deficiencies in the Judge’s directions to the assessors amounted to misdirections “as to the law” within the meaning of s177 (5) (c).  Ms. Su’a-Mailo cited the decision of the High Court of Australia in Huynh v R in support.  However, that judgment is authority for the narrower principle that a failure to direct “on all of the elements of liability…” is not an error of law where those elements are not in contention. Ms. Su’a-Mailo does not submit that the Judge erred in his directions on the constituent elements of the alternative charges of attempted murder or causing serious bodily injury. In our view s177(5)(c) is unavailable as a discrete ground of appeal for the Crown.
25.	However, the statutory definition is not exclusive. The operative part of s177(4) provides for a right of appeal against an acquittal “…on the ground that an error of law has occurred”; and relevantly states in s177(5) that “…error of law includes but is not limited to…” the specified categories. The essential obligations imposed by the common law on a Judge when summing up in a criminal trial are settled. The Judge is bound to direct the fact finders on the legal elements of the charge, identify the real issues for their determination, refer them to the evidence relevant to each issue, and adequately summarize the competing cases.
26.	The overriding interests of justice in a fair trial impose these duties in favour of the prosecution and defence alike.  In our judgment it is an error of law within the scope of a statutory provision allowing the Crown extensive rights to appeal if the Judge when directing a jury or assessors fails to identify the essential facts relevant to the legal elements of a charge or the nature of the prosecution case and the available defence. 
27.	In this case the Judge’s directions on the elements of the alternative charges against Mr. Visesio were characterized by their brevity. While the relevant facts fell within a short temporal compass, they required careful evaluation within the framework of the legal elements of the alternative charges. 
Attempted murder
28.	The Judge’s directions on the charge of attempted murder occupied just one page of the trial transcript. He made no attempt to summarize the essence of the Crown and defence cases. He devoted a single sentence to the evidence of each of Mr. Hong, Ms. Uputaua and Dr. Su’a. He said nothing about the legal effect of the largely uncontested evidence that Mr. Visesio struck Mr. Hong with a machete.  He said nothing of the corroboration available from Mr. Visesio’s plea of guilty to the charge of possessing a dangerous weapon, which was incontrovertible evidence that he was holding the machete when he returned to the shop. In his statement to the Police Mr. Visesio admitted swinging the machete at Mr. Hong but said he missed and hit some nearby shelves. 
29.	Ms. Sapolu had suggested in closing at trial that Mr. Hong’s injuries may have been caused by his head striking nearby shelves, based on Mr. Visesio’s statement to the Police and her questions of Dr. Sua.  That was the only avenue of defence possibly available, however remote or improbable it may have seemed on the proved facts. However, Ms. Sapolu did not challenge Mr. Hong with that proposition in cross-examination. Nor did she challenge his evidence that he saw Mr. Visesio holding the machete when he turned to confront him after the first blow; and that they struggled while Mr. Hong attempted to disarm him. Nor did she challenge Ms. Uputaua’s eye witness account. In the result the evidence that Mr. Visesio struck Mr. Hong on the head with the machete was not in dispute.
30.	The Judge did not refer to any of this undisputed evidence or its legal effect or the weight to be given to Mr. Visesio’s unsworn denial to the Police when directing the assessors. Instead the Judge described the real issue as a credibility or veracity assessment of the evidence given by Mr. Hong and the eye witness, the nature of the wounds, and the surrounding circumstances. But, as we have explained, the credibility or veracity of that evidence was not in material dispute.
31.	The Judge has earlier correctly directed the assessors that to find the charge of attempted murder proved beyond reasonable doubt they would have to be satisfied that Mr. Visesio must have (a) intended to kill Mr. Hong; and (b) done some act for the purpose of achieving that objective. He had also directed the assessors correctly, if very briefly, that evidence of an accused person’s intention or state of mind could properly be inferred from his actions, his words, and the surrounding circumstances. That was the approach which the assessors were required to adopt here. 
32.	We shall address each element separately.  The first element required proof of Mr. Visesio’s intention to kill.  However, the Judge simply failed to draw the assessors’ attention to Mr. Visesio’s words or actions or the surrounding circumstances and the availability of these facts, if proved, as a platform for drawing inferences.  In particular he failed to direct within this first element on the essential facts of (a) Mr. Visesio’s alleged threat to return and kill Mr. Hong when he left his shop on the first occasion; (b) his return with a machete, a dangerous weapon, some 20 minutes later; (c) his use of the machete to strike Mr. Hong over the head from behind; and (d) his second blow to Mr. Hong’s body and subsequent unsuccessful attempts to strike him again. In combination this evidence was directly relevant to Mr. Visesio’s state of mind and the issue of whether he intended to kill Mr. Hong.
33.	The second element required proof of acts done by Mr. Visesio for the apparent purpose of carrying out his intention to kill Mr. Hong. The Judge was bound in this context to refer to the same facts material to the first element, except for the threat made on the first visit to Mr. Hong’s shop.  He failed to direct on these facts at all.  And, significantly, he failed to direct on what defence might reasonably be available to Mr. Visesio on the proved facts.
Causing serious bodily harm
34.	The Judge’s directions on the alternative charge of causing serious bodily harm with intent occupied seven lines of the trial transcript. He simply recited the two elements of the charge which required proof, namely that Mr. Visesio (a) intended to cause Mr. Hong serious bodily harm; and (b) did cause that harm. He said nothing about the facts, in particular the weight of evidence establishing the second element of serious harm. 
35.	The Judge failed also to direct on the evidential value of the photographs of Mr. Hong’s injuries corroborated by Dr. Sua’s examination; on the inference available from that evidence about Mr. Visesio’s intention or state of mind when he caused the serious harm; and on what defence might reasonably be available to Mr. Visesio on the proved facts. The Judge’s directions on this charge were so deficient as not to amount to real or meaningful directions in law.
36.	We are satisfied that the Judge’s omissions to direct the assessors properly or at all constituted a material error of law within s 177(5). 
Unreasonable or unsupportable verdicts 
37.	The Crown’s third ground of appeal is that the assessors’ verdicts are unreasonable or cannot be supported by the evidence in terms of s 177(5)(h).
38.	We can address this ground shortly. A verdict is unreasonable in the context of a prosecution appeal under s 177(5)(h) if, to excuse the tautologies, an appellate court having regard to all the relevant evidence is satisfied that no jury acting reasonably could have entertained a reasonable doubt about the defendant’s guilt to the criminal standard. While there is the alternative statutory ground of appeal against a verdict that is unsupported by the evidence, in practice both grounds are two sides of the same coin.
39.	The assessors’ verdicts could not possibly be upheld as reasonable or supportable having regard to all the evidence. For the reasons we have described when addressing the Judge’s directions, Mr. Visesio had no possible defence to the charges once he did not challenge the evidence of Mr. Hong, Ms. Uputaua and Dr. Sua, or the photographic evidence. The weight of evidence on the alternative charge particularly of causing serious bodily harm with intent left the assessors with no alternative other than to return a guilty verdict. We can only attribute their acquittal of Mr. Visesio to the absence of proper directions from the Judge.  
40.	In this respect we note that it would have been open to the Judge to exercise his statutory jurisdiction to order a new trial following the assessors’ verdict, on the grounds that they were unreasonable or grounds that they could not be supported having regard to the evidence.
41.	We are satisfied that the jury’s verdicts were unreasonable or unsupported by the evidence.
Result
42.	The Attorney General’s appeal against Mr. Visesio’s acquittal is allowed.
43.	We direct that a new trial be held in the Supreme Court.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE TUATAGALOA