IN THE COURT OF APPEAL OF SAMOA
Lam v Attorney General [2019] WSCA 13 (19 September 2019)

Case name: 	Lam v Attorney General 	
		
Citation: 	[2019] WSCA 13	
		
Decision date: 	19 September 2019	
		
Parties: 	KOLANI JUNIOR LAM (Appellant) v ATTORNEY GENERAL (Respondent)	
		
Hearing date(s): 	16 September 2019	
		
File number(s): 	CA17/19	
		
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, Mulinuu	
		
Order:	Mr. Lam’s appeal against the order directing trial by a Judge sitting with assessors is allowed.  We direct that his trial is to be before a Judge alone. 

Mr. Lam’s appeal against the ruling that propensity evidence from the witnesses Talei Kelsall, Carena Evile and Lele Fuapauna is admissible at trial is dismissed.	
		
Representation: 	Komisi Koria for the Appellant
Leone Su’a-Mailo & Quentin Sauaga for the Respondent	
		
Catchwords: 	Murder charge – common assault – conspiring to defeat the course of justice – trial before Judge sitting alone – propensity evidence 	
		
Words and phrases:		
		
Legislation cited:	Constitution of the Independent State of Samoa 1960, Art. 9;
Criminal Procedure Act 2016, ss. 6, 6(1), 6(2), 6(3), 125, 125(2), 125(4), 126, 126(3)(b), 136,
Criminal Procedure Act 1971, s. 87
Evidence Act 2015, s. 30, 31; 33, 
New Zealand Crimes Act 1961 ss. 361B.	
		
Cases cited:	Police v Lam (Unreported judgment) 27 March 2019 of Tuala-Warren J.	
		
Summary of decision:		

CA17/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

KOLANI JUNIOR LAM

Appellant

A N D:

ATTORNEY GENERAL

Respondent

Court:		Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuatagaloa

Hearing:	16 September 2019

Counsel:	Komisi Koria for the Appellant
		Leone Su’a-Mailo & Quentin Sauaga for the Respondent

Judgment:	19 September 2019

JUDGMENT OF THE COURT
Introduction
1. 	Kolani Junior Lam is charged with the murder of his late wife, Sa’u Justina Fa’asamoa, also known as Kessel. He is charged in the alternative with her manslaughter. He is also charged with  common assault and conspiring to defeat the course of justice. 
2. 	Mr. Lam’s trial was scheduled to start before a Judge and assessors in the Supreme Court in February 2019.  On the eve of its commencement  Mr. Lam appliedfor an order that he be tried before a Judge sitting alone without assessors. At the same time the prosecution  applied for leave to admit propensity evidence at the trial.
3. 	Justice Tuala-Warren dismissed Mr. Lam’s application. She granted the prosecution  application. Mr. Lam appeals against both decisions. A separate ruling by the Judge severing Mr. Lam’s trial on charges of possession and use of narcotics is not appealed.
Background
4. 	Mr. Lam and Ms. Sau married in 2015. Both had children from previous marriages. They had two children from their own marriage. At the time of her death Ms. Sau was aged 33 years, and Mr. Lam was aged 38 years. Both held senior positions in the civil service.
5. 	The couple lived in a property in Apia which belonged to Mr. Lam’s family. It is at the end of a long driveway. The surrounding houses are also owned by Mr. Lam’s family.
6. 	Ms. Sau died in the early hours of 21 October 2018.  Mr. Lam has given an account to the police of events immediately before her death. He says that during the preceding evening he had been drinking alcohol and consuming cannabis at the family home with a friend and a relative. After the others left about 1.00 am he drank further with his wife in the backyard. He then went inside for the stated purpose of checking on their sleeping children. He returned 10 minutes later to find his wife hanging by a rope from a tree. He cut down the rope but was unable to revive his wife. He raised the alarm with his son from his first marriage. He sent him to seek assistance from family friends. Ms. Sau’s body was later taken to the hospital.
7. 	The inferences available from Mr. Lam’s account are that Ms. Sau’s death was self-inflicted by hanging or she was killed by a third party. Apart from the physical difficulties inherent in Ms. Sau being able to hang herself by a rope in the short period of time available, the prosecution case is that there was no reason for her to commit suicide. To the contrary, she was in a positive frame of mind with plans for herself and her family. 
8. 	Dr Paul Botterill, a pathologist, has investigated the cause of Ms. Sau’s death. He has reported to the police that in the opinion Ms. Sau’s death was caused by neck compression. While many of the individual injuries found may occur in hanging, it was his opinion that, “multiple foci of bruising in the subcuticular tissues of the neck is extremely uncommon for hanging…” [and] “…the sum of the features favour strangulation either by use of fingers, use of a rope, or both.”
9. 	Based on Dr Botterill’s opinion, the prosecution case is that Ms. Sau was strangled. It relies on circumstantial evidence to invite the inference that it was Mr. Lam who strangled his wife. On his own account Mr. Lam was the last person to see her alive, shortly before he says that found her hanging from a tree. There is no scope for inferring that any other party may have strangled Ms. Sau in Mr. Lam’s absence within the short time available before locating a rope and hanging her from it. 
10. 	The prosecution also relies on evidence of Mr. Lam’s propensity for serious violence towards Ms. Sau and his prior attempt to strangle her daughter. These events occurred within  the setting of a dysfunctional domestic relationship characterized by heavy drinking and arguments. It is the admissibility of this evidence which is in dispute.
11. 	We will now address the two grounds of Mr. Lam’s appeal. 
Judge Alone
(a) Statutory provisions
12. 	Mr. Lam’s application for trial before a Judge alone relies on s 125 of the Criminal Procedure Act 2016 (the CPA 2016) which provides:
	“125. Defendant’s notice to be tried with Judge alone - (1) For the purposes of section 6(2), the defendant may, within 28 days before the date on which the defendant is to be tried, give written notice to the Registrar of the Supreme Court of the defendant’s wish to be tried before a Judge sitting alone. 
	(2) When the Registrar receives the notice under subsection (1), the Registrar must forthwith give a copy of the notice to the prosecutor. 
	(3) If the defendant, within the period under subsection (1), gives notice under that subsection of the defendant’s desire to be tried before a Judge sitting alone, the Registrar must refer the matter to a Judge of the Supreme Court (who may or may not be the Judge before whom the trial is to be held). 
	(4) The Judge to whom any matter is referred under subsection (3) must order that the defendant be tried before a Judge sitting alone unless, having regard to the interests of justice, the Judge considers that the defendant should be tried before a Judge with assessors, in which case the Judge must make the order accordingly. 
	(5) If 2 or more defendants are to be tried together, they are to be tried before a Judge with assessors unless all of them apply to be tried by a Judge alone.
	(6) A notice purporting to be given under this section on behalf of the defendant by the defendant’s lawyer is, unless the contrary is proved, to be treated to be given with the authority of the defendant. 
	(7) As an exception to subsection (1), a defendant may give notice under that subsection before or immediately after the person is committed for trial.”
13. 	Section s126, on which the Judge placed weight, provides:  
	“126. Prosecutor’s application for trial by Judge alone 
	– (1) If a defendant has given a notice under section 125, the Judge may, on application by the prosecutor and served on the defendant before the defendant is given in charge to the assessors, order that the defendant be tried before a Judge alone. 
	(2) The Judge may make an order under subsection (1) if the Judge is satisfied: 
	(a) that any reasonable procedural orders, and any other reasonable arrangements, to facilitate the shortening of the trial, have been made, but the duration of the trial still seems likely to exceed 5 working days; and 
	(b) that, in the circumstances of the case, the defendant’s right to trial by assessors is outweighed by the likelihood that potential assessors will not be able to perform their duties effectively. 
	(3) For the purposes of subsection (2)(b), the Judge must take into account the following matters when considering the circumstances of the case: 
	(a) the number and nature of the offences with which the defendant is charged; 
	(b) the nature of the issues likely to be involved; 
	(c) the volume of evidence likely to be presented; 
	(d) the imposition on potential assessors of sitting for the likely duration of the trial; 
	(e) any other matters the Judge considers relevant. 
	(4) If the defendant is one of 2 or more persons to be tried together, and each of them are to be tried with assessors, all of them must be tried before a Judge with assessors unless an order is made under subsection (1) for all of them to be tried by a Judge alone.”
14. 	Section 6 of the Criminal Procedure Act states:
	6. Trial with or without assessors - (1) All trials in the Supreme Court are to be tried by a Judge alone. 
	(2) As an exception to subsection (1), a defendant charged with an offence punishable by life imprisonment is to be tried by a Judge sitting with 5 assessors. 
	(3) However, a defendant under subsection (2) may apply pursuant to section 125 to be tried before a Judge alone.
	(4) Subsection (2) does not apply if the defendant is charged under the Narcotics Act 1967.
15. 	Section 125 marked a significant change from its statutory predecessor.  By s87 of the Criminal Procedure Act 1972 a defendant charged with murder was required to be tried before a Judge sitting with assessors. On all other charges (except one of perjury before the Land and Titles Court) a defendant was entitled to elect trial before a Judge alone.  Section 6 (1) preserves the general requirement that all trials in the Supreme Court are to be before a Judge alone. But s 6(2) introduces an exception for a defendant charged with an offence punishable by life imprisonment (such as murder) to be tried before a Judge sitting with five assessors. However, s 6 (3) provides an express recognition of the right introduced by s 125 to a person charged with an offence punishable by life imprisonment to be tried by a Judge alone. 
(b) Supreme Court
16. 	Tuala-Warren J treated s 126 as “a good starting point “ for her inquiry. The Judge accepted that the factors enumerated by s 126 (3) (b) applied only when both sides had applied for trial before a Judge alone  which had not occurred here.  However, she concluded that the s126 factors were nevertheless relevant to her discretionary assessment under s 125 (4). She rejected the risk that Mr. Lam may be materially prejudiced in a trial before assessors by adverse print and social media coverage and the high public profile of the trial
17. 	The Judge placed weight on two other factors. One was the statutory safeguard provided to the trial Judge against a decision which was apparently based on prejudice . Section 136 (4) of the CPA. 2015 provides:
	136. (4) If the presiding Judge is of the opinion that the assessors’ verdict is unreasonable or cannot be supported having regard to the evidence, the presiding Judge may: 
	(a) acquit the defendant if the verdict is guilty; or 
	(b) order a new trial if the verdict is not guilty.
18. 	The other factor was the general public interest in having trial by juries or by analogy trial by assessors.  The Judge relied upon an extensive report submitted by the New Zealand Law Commission in 2001 and jurisprudence from the United States of America, Canada and Australia.  She concluded:	
	“The subject matter of the trial here is alleged murder of a spouse.  The accused was the spouse of a government CEO.  It is correct that this is a high profile case for Samoa, given the identity of the deceased.  I do not find that this means that a fair trial by assessors is not reasonably possible.  On the contrary, I am of the view advocated by the NZLC which I find is robust support for this trial to be heard by a Judge with assessors.  It is the democratic nature of the assessor process, whereby members of the public are appointed onto the List of Assessors (at least 250), which ensures public validation of verdicts and confidence in the justice system.  I acknowledge that there are trials where the subject matter of the trial, and the evidence are complex, and a trial by Judge alone would be more appropriate.  This is not such a trial.”
(c) Decision
19. 	We agree with Mr. Koria that the Judge erred when exercising her discretion under s 125. The starting point is not with s126 but with the wording of s125 itself. Section 125 creates an unequivocal presumption in favour of trial before a Judge alone where an eligible defendant gives notice in accordance with the procedural requirements. The Judge who considers the application must order trial by Judge alone “…unless, having regard to the interests of justice, the Judge considers the defendant should be tried before a Judge with assessors…” In exercising this discretion, the Judge must be satisfied that the defendant’s right to be tried by a Judge alone on a murder charge is outweighed by the interests of justice.  The prosecution carries the burden of displacing that presumption.
20. 	The s 126 factors do not materially assist in that inquiry. As Mr. Koria points out, that provision represents a different process and mandates a different inquiry from that required by s 125. As written, it is triggered when the defendant gives notice under s 125 and the prosecution also applies for a Judge alone trial. The test for the Judge is the different one prescribed by s126 (2) (b) of whether, “… in the circumstances of the case, the defendant’s right to trial by assessors is outweighed by the likelihood that potential assessors will not be able to perform their duties effectively.” In conducting that discrete inquiry, the Judge may take into account a number of specific factors.  They are primarily concerned with the complexity of the trial itself including the issues and evidence and the administrative demands that may be placed on the time of the assessors by the estimated duration of trial. 
21. 	The risks of assessors being prejudiced by pre-trial publicity or the high public profile of the trial are not relevant to the s125 inquiry. Their existence, and the existence of measures available to counter them, cannot operate as an affirmative factor within the interests of justice favouring trial before a panel of assessors. 
22. 	Nor does s136 come into play. That provision acts as a public interest safeguard against a verdict which is either unreasonable or unsupported by the evidence.  It assumes that a defendant has been denied his fair trial rightand that the interests of justice require that the verdict be quashed. Section 125 is directed to the different question of whether the interests of justice outweigh or displace the defendant’s right to be tried by a Judge alone.
23. 	New Zealand’s history of trial by jury and the international jurisprudence on that subject fall within a very different statutory context. The right to trial by jury is a deeply entrenched foundation of the system of criminal law in those countries. Indeed, it was until recently the only mode of trial prescribed in New Zealand for what were termed indictable offences, those which Parliament regarded as serious in that they were punishable by lengthy terms. of imprisonment. 
24. 	It was only with the passage of the since repealed s361B of the New Zealand Crimes Act 1961 that a right to trial by Judge alone was allowed, and only in very limited classes of cases. As Tuala- Warren J herself noted, while the wording of s 361B was materially identical to s 125 (4) of the CPA 2015, the provisions differ significantly in that s 361B did not extend the right to trial by Judge alone for offences carrying a maximum penalty of  imprisonment for life or a term of 14 years or more. In those cases, the New Zealand Law Commission’s report recommended the reverse test from that stipulated by s 125 of the CPA 2015 of a presumption of trial by jury with the defendant’s right to apply for trial before a Judge alone if a fair trial was not reasonably possible by reason of the subject matter of the trial or the defendant’s identity.  We are satisfied that the jury material on which the Judge relied does not assist.
25. 	We note also that a s 125 direction that a trial be before assessors, notwithstanding the statutory presumption, must be based on a factor or factors peculiar to the trial in question.  It could not be supported by arguments favouring assessor trials in general.  A judicial decision based on general policy grounds of that kind would be contrary to the statutory presumption created by Parliament in s 125(2).
26. 	Ms. Sua-Mailo accepted that the factors on which the Judge relied are broadly applicable to all trials. They have generic but no specific relevance to the interests of justice in this case. They do not of themselves rebut the statutory presumption in favour of a Judge alone trial where notice is given. 
27. 	It follows that we are satisfied that the Judge erred in dismissing Mr. Lam’s application for trial by a Judge alone. We allow Mr. Lam’s appeal, set aside the order for trial before a Judge and assessors and direct that Mr. Lam be tried before a Judge alone.
Propensity 
(a) Statutory provisions
28. 	The prosecution’s right to lead propensity evidence at trial is codified by the Evidence Act 2015. Section 30 defines the propensity rule in these terms:
	30. Propensity rule-(1) In this Division, “propensity evidence”: 
	(a) means - 
	(i) evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; or 
	(ii) evidence of a person’s acts, omissions or state of mind in circumstances from which it may reasonably be inferred that the person acted, omitted or had a state of mind as alleged as part of the proof of any offence with which that person is charged; but 
	(b) does not include evidence of an act or omission that is - 
	(i) one of the elements of the offence for which the person is being tried; or 
	(ii) the cause of action in the proceeding in question.
	(2) A party may offer propensity evidence in a civil or criminal proceeding about any person. 
	(3) However, propensity evidence about: 
	(a) a defendant in a criminal proceeding may be offered only pursuant to section 31, 32 or 33, whichever section is applicable; and 
	(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only pursuant to section 34. 
	(4) Evidence that is solely or mainly relevant to veracity is governed by section 26 and, accordingly, this section does not apply to evidence of that kind.
29. 	Section 33 prescribes the criteria for determining admissibility
	33. Propensity evidence offered by prosecution-(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. 
	(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute. 
	(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following: 
	(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred; 
	(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried; 
	(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried; 
	(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried; 
	(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility; 
	(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual. 
	(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters: 
	(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and 
	(b) whether the fact-finder will tend to give undue weight in reaching a verdict to evidence of other acts or omissions.
	(5) Propensity evidence may be adduced from the record of an earlier trial in which the defendant was charged with an offence even if the defendant was acquitted or otherwise discharged in relation to the evidence adduced.
(b) Proposed propensity evidence
30. 	The prosecution wishes to lead propensity evidence from three witnesses. The first is Talei Kelsall. She is Ms. Sau’s 13 year old daughter. She recalls her mother travelling to New Zealand in 2016 to give birth to her first child of the marriage to Mr. Lam. Talei was left in the care of Mr. Lam and a babysitter named Lele.  Lam’s four children from his previous marriage were part of the new blended family.
31. 	One evening Talei and one of Mr. Lam’s daughters argued about using the television. Mr. Lam was also present, drinking outside with his friends. He intervened on his daughter’s side and, on Talei’s account, started to strangle her. He lifted her from the floor by one hand. He applied such force to her neck that she was unable to breathe and her eyesight felt blurry. The pain affected both sides of her neck and the inside of her throat. Another child summoned Lele to help. Talei said her grandmother wanted her to lay a complaint with the police but was dissuaded by her mother.
32. 	Talei also says that she witnessed the relationship between her mother and Mr. Lam from 2015 onwards. On one occasion Mr. Lam struck Ms. Sau from behind on the back of her head with a large metal teapot. Ms. Sau was seated with her back to him. The force was such that it caused Ms. Sau to fall to the floor. On another occasion Talei heard her mother and stepfather fighting.  She saw Mr. Lam holding a knife in one hand and a hammer in the other. On many other occasions she witnessed her mother and stepfather fighting after they were drinking. He frequently slapped and punched his wife.
33. 	Carena Evile is Ms. Sau’s 11 year old niece. She witnessed Mr. Lam’s assault on Talei in 2016. She remembered that Talei was choking and trying to kick back. And Lele Fuapauna the baby sitter corroborates Talei’s account. 
(c) Propensity analysis
34. 	Our analysis of the admissibility of the prosecution propensity evidence proceeds according to the legislative framework. The statutory provisions are a self-contained codification other than of the rule and applicable principles. They render judicial reference to case law authority unnecessary except in unusual circumstances. 
35. 	There are three threshold questions to be answered in this case. First, does this evidence if accepted tend to show Mr. Lam’s propensity to act in a certain way and have a certain state of mind?   It certainly tends to show that he had a propensity to inflict and threaten serious violence on his wife when they were drinking and argued.   It also tends to show that on one occasion at least he strangled his young stepdaughter, the very method by which the prosecution alleges that he killed his wife two years later. We are satisfied that this evidence of inflicting serious violence on his wife and strangling her daughter meets the statutory threshold of propensity evidence.                                             
36. 	Second, what is the probative value of the propensity evidence? Tuala-Warren J found that the value of Talei’s evidence about the strangulation incident was high She emphasised the extent of the similarity between or specificity of the earlier strangulation and the act which constituted the offence for which Mr. Lam was charged. There was a high degree of linkage between the two events in the domestic environment and the common factor of alcohol consumption. The Judge was satisfied that this evidence went directly to the issue in dispute about the manner of infliction of the injury which caused Ms. Sau’s death.
37. 	Mr. Koria referred to the relative infrequency of the acts in question, their separation in time from Ms. Sau’s death and the possibility of collusion between the three witnesses. But he accepted the Judge’s finding that the evidence had probative value. His challenge was to the Judge’s assessment of the degree of that value in order to lay the foundation for an argument about disproportionate prejudice.
38. 	Before addressing the prejudice argument, we record our endorsement of the Judge’s assessment of the probative value of the propensity evidence as high. That conclusion applies to Talei’s evidence about both the strangulation incident and Mr. Lam’s violent treatment of her mother. We disagree with the Judge’s characterization of Talei’s evidence in the latter respect as relevant background about the nature of the domestic relationship It is, as we have said, evidence of his propensity to commit serious violence on his wife in the years immediately before she died.  It is to be taken into account along with the strangulation incident when deciding whether it was Mr. Lam who killed Ms. Sau.
39. 	Third, what is the issue to which the propensity evidence relates? The primary issue for trial here is whether it was Mr. Lam who killed his wife. Did he strangle her by inflicting the injuries found by Dr Botterill?   Evidence that in the preceding three years Mr. Lam had on one occasion injured Ms. Kelsall’s daughter by strangling and on others struck Ms. Sau with a heavy object and often assaulted her relates directly to that issue. The propensity evidence, if accepted, is highly probative in that respect. 
(d) Prejudice 
40. 	Based on his assessment of its low value Mr. Koria’s primary submission is that the prejudicial effect of the propensity evidence outweighs its probative value. He submits that the Judge should have exercised her statutory discretion to exclude it on this ground.
41. 	The answer to Mr. Koria’s submission is that all probative evidence has a prejudicial effect on the defence. That is the prosecution’s purpose in leading it. Its prejudicial effect is directly proportionate to its probative value: the greater its probative value, the greater its prejudicial effect. The only question is whether the evidence is “likely to unfairly predispose the fact finder” against the defendant or whether the fact finder will “give it undue weight”. These concepts fall within the umbrella of illegitimate prejudice.
42. 	Mr. Koria was unable to identify the nature of any illegitimate prejudice which might arise from admission of the propensity evidence at the trial. Mr. Lam’s appeal against the Judge’s ruling fails as a result.
43. 	By way of postscript, we observe that Courts might find it helpful to require the prosecution to file a memorandum when applying for a propensity evidence ruling, specifying the particular issue or issues in the trial to which it relates and identifying the manner in which it is to be used by the fact finder. For example, if the trial is to be before a Judge and assessors, the memorandum may include directions that the prosecution will propose on the use of the propensity evidence. Adoption of this practice may assist the parties and the Court when evaluating whether the evidence should be admitted at trial.
Result
44. 	Mr. Lam’s appeal against the order directing trial by a Judge sitting with assessors is allowed.  We direct that his trial is to be before a Judge alone. 
45. 	Mr. Lam’s appeal against the ruling that propensity evidence from the witnesses Talei Kelsall, Carena Evile and Lele Fuapauna is admissible at trial is dismissed. 

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE TUATAGALOA