IN THE COURT OF APPEAL OF SAMOA
Attorney General v Victory Lesa [2019] WSCA 9

Case name: 	Attorney General v Victory Lesa	
		
Citation: 	[2019] WSCA 9	
		
Decision date: 	19 September 2019	
		
Parties: 	ATTORNEY GENERAL (Appellant) and VICTORY LESA (Respondent)	
		
Hearing date(s): 	12 September 2019	
		
File number(s): 	CA 24/19	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuala-Warren	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The Attorney General’s appeal must be dismissed.
In our judgment the interests of justice require that the Attorney General pay costs to Mr. Lesa of WST$4000, and we order accordingly.
The Attorney- General has properly referred us to the MJCA’s statutory obligation to reinstate an employee who is acquitted of a criminal charge and reimburse him or her for all lost salary.  We trust that the MJCA will also give favourable to reimbursement of Mr. Lesa’s  legal expenses in defending these proceedings.	
		
Representation: 	Fuifui Ioane & Ann Matalasi for the Appellant
Ming Leung-Wai & Arthur Lesa for the Respondent	
		
Catchwords: 		
		
Words and phrases:	theft as a servant charge – acquittal – appeal against acquittal	
		
Legislation cited:	Crimes Act 2013 ss. 161; 165(1);
Criminal Procedure Act 2017 s. 177;
Evidence Act 1908 s. 23A;
Evidence Act 2015 ss. 73(1), 78.	
		
Cases cited:	Police v Mulitalo [2018] WSCA 12;
R v Wood [2006] NZLR 743 (CA).	
		
Summary of decision:		

CA24/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

ATTORNEY GENERAL
Appellant

A N D

VICTORY LESA
Respondent

Court:		Honourable Justice Fisher
		Honourable Justice Harrison
		Honourable Justice Tuala-Warren

Hearing:	12 September 2019

Counsel:	Fuifui Ioane & Ann Matalasi for the Appellant
		Ming Leung-Wai & Arthur Lesa for the Respondent

Judgment:	19 September 2019

JUDGMENT OF THE COURT
Introduction
1. 	Victory Lesa pleaded not guilty to  one count of theft as a servant. He allegedly stole a rifle which was in the custody of his employer, the Ministry of Justice and Courts Administration (the MJCA). He was acquitted following trial before Tuatagaloa J sitting as a Judge alone in the Supreme Court. The Judge gave detailed reasons for her verdict in a reserved judgment.
2. 	The Attorney-General appeals against Mr. Lesa’s acquittal. His notice of appeal raised a number of grounds. However, Ms. Fuifui Ioane advised us that the appeal was limited to the one ground that the verdict was unreasonable because it was founded upon evidence which was given unlawfully by a prosecution witness. Mr. Leung-Wai advised that Mr. Lesa withdrew an argument that the appeal should be dismissed because it was out of time.
Supreme Court
3. 	The Police charged Mr. Lesa under ss. 161 and 165 (1) of the Crimes Act 2013. Tuatagaloa J noted that the crime required proof of these four elements: (1) Mr. Lesa was employed by the MJCA; (2) he took the firearm, a SAR-8 Springfield rifle, between April 2013 and February 2015 without the MJCA’s consent; (3) he did so dishonestly; and (4) he intended to deprive the MJCA of the rifle permanently. The first element was not in dispute. Proof of the charge turned on the second element. If Mr. Lesa did in fact take the rifle it would have been without his employer’s consent, and proof of the third and fourth elements would necessarily follow as a matter of course.
4. 	The prosecution case relied principally on two witnesses. The first was Logino Brown. We gratefully adopt Tuatagaloa J’s succinct summary of his evidence in chief, as we shall with other passages, from her judgment, as follows:
	“18. The prosecution witness, Logino Aumua is well known by the police as he had been charged several times with possession of unlawful firearms. Logino himself does not deny that he has several convictions of possession of unlawful firearms amongst others. Logino’s evidence is summarised as follows: 
•	Defendant called him while he, his wife and son were going for a ride one afternoon about 5-6pm that he had a gun he wanted to sell;
•	They went up to Vailima to the road going towards RLS tomb and the defendant was already there sitting in his white van; 
•	He got out and walked to the defendant’s van; defendant got out opened the boot of his van and gave him what looked like a rifle wrapped in a black cloth;
•	Defendant sold him the said rifle for $1500 but he only gave the defendant money a week or so after; the defendant needed the money for his pregnant girlfriend to go to New Zealand either for a check-up or to have the baby;
•	He and the defendant are very close like brothers; they hang out a lot at his (Logino’s) house and they go out together with his wife and the defendant’s girlfriend; defendant was his best man at his wedding in 2013; 
•	He was in custody for 3 or 4 days from 22 June 2018; he was pressured to make a statement by Deputy Registrar Faatasi; he went before Faatasi 3 or 4 times and everytime he went before Faatasi, Faatasi said to him to help him out by giving a statement and so he did; he also at the same time was desperate to be released from custody as his wife and children were going to New Zealand. 
•	He was asked by Senior Sergeant Iosefa when the rifle was found in his vehicle at Faleula in 2018 whether it was the defendant who gave him the vehicle.”
5. 	The Judge emphasized Mr. Brown’s two assertions that, first, Mr. Lesa was driving a white van and, second, the two men were close friends. We also adopt the Judge’s summary of the evidence of the other principal prosecution witness, Mr. Brown’s wife, Tuvaetasi Aumua, as follows:
	“20. Tuvaetasi Aumua basically said the same thing as her husband. The defendant called her husband, she heard the mention of a gun, they went up to Vailima, the defendant was already there in his white van, her husband Logino got out and walked over to the defendant’s van; not long after Logino returned with the gun wrapped in a black cloth. Tuvaetasi also said that Logino and the defendant are very close friends and that the defendant comes to their house often and that he and Logino hang out together.”
6. 	The prosecution also called four police officers mainly to identify the rifle and its storage as an exhibit with the MJCA. The evidence was of a largely repetitive nature on an undisputed element of the case and does not require further consideration.
7. 	Mr. Lesa gave evidence in his defence, essentially denying Mr. Brown’s account in all major respects, and called one witness, Sammy Sanft.  The Judge summarized the evidence of both men as follows:
	“22. The defendant, Victory Lesa gave evidence as follows:
	There is no specific exhibit room in MJCA; police exhibits for cases in the custody of MJCA are kept in a filing room which filing room is not locked but can be accessed by anyone of the Ministry, the public who have access to the corridor where the room is located; the cleaners whom some are convicts posted at the Ministry.
	He never gave his mobile number nor did he have or know the witness Logino’s mobile number;
	He never met Logino and gave him the rifle as in the evidence of Logino;
	At the time Logino said he gave him the rifle sometime on or after 2013 he had already sold his white van to a mechanic named Sammy Sanft in 2011;
	His girlfriend never went to New Zealand and she gave birth to their son at Motootua Hospital in Samoa;
	He was not a close friend of Logino.  As Deputy Registrar for the Courts he came to know Logino as a defendant who appeared on occassions on various charges he was charged with.
	23. The witness Sammy Sanft confirmed that Victory sold him his white hiace 15 seater van sometimes in 2011 for $3500. The van he said was very old and to fix it will cost more.”
8. 	There was one aspect of the prosecution evidence to which we shall return and which was outlined by the Judge in these words:
	“33. Logino was locked up for three or four days. He said that he was taken before Deputy Registrar Faatasi three or four times and everytime he was taken before him, Faatasi always asked him to assist the police by making a statement as to who gave him the rifle as he (Faatasi) had been blamed for it and everytime he refused to make a statement, he would be further remanded in custody. He said that he was desperate to be released as his wife and children were travelling to New Zealand so bout the fourth time he was taken before Faatasi he then agreed to make a statement when Faatasi said to him to think of his wife, his children and mother. His wife also on the same day, 25th June 2018, gave a statement after Logino had made his.” 
	“42. On the face of Logino’s evidence it seems that some ulterior motive was at play to get the witness Logino to make the statement he did which led to the defendant being charged. Logino from his evidence was never taken before a police officer or the investigating officer but always before the Deputy Registrar Faatasi 3 or 4 times while in custody. Why was he taken before the Deputy Registrar Faatasi 3 or 4 times instead of before a police officer or the investigating officer? There was no evidence by the Prosecution to explain this and to allay any suspicions arising. There is also the evidence by Logino that he was asked or questioned by one of the police officers at Faleula when the rifle was found on him if it was Victory (defendant) who gave him the rifle.”
9. 	Tuatagaloa J was not satisfied that the prosecution had discharged its burden of proving the charge. She found many critical inconsistencies in the evidence of the two main prosecution witnesses which were sufficient, separately and cumulatively, to raise serious doubts about Mr. Lesa’s guilt. In summary she found that (1) there was no close personal relationship between Messrs. Brown and Lesa as the former alleged (for example, Mr. Brown did not know the names of Mr. Lesa’s son or girlfriend or his cell phone number and Mr. Lesa only attended Mr. Brown’s wedding as best man in his capacity as a marriage officer); Ms. Aumua’s account was unstable and the result of collusion with Mr. Brown; (3) Mr. Brown was driven by a third party’s  ulterior motive to incriminate Mr. Lesa; (4) the room in which the rifle was stored was not locked and many people had free access to it including members of the general public; (5) Mr. Sanft ‘s account of his purchase of Mr. Lesa’s white van in 2011, some years before the alleged meeting when Mr. Lesa sold the rifle, answered an important element of Mr. Brown’s account; and (6) Mr. Brown had a history of criminal offending which related to unlawful possession of a firearm  and reflected on his credit, especially when compared to Mr. Lesa’s unblemished record of 13 years’ service with the MJCA as  a court registrar.
10. 	It was this last finding which formed the basis of the Attorney- General’s appeal.
Decision
11. 	Ms. Ioane accepts that this Court cannot interfere with an acquittal of a defendant following trial before a Judge alone unless we are satisfied that the Judge has erred in law . An unreasonable verdict can amount to an error of law but subject to strict limitations It requires more than showing that on the same facts the appellate court would have reached a different conclusion.
12. 	Ms. Ioane’s submitted that the Judge erred in law in allowing adverse evidence to be adduced at trial of Mr. Brown’s character and in using it as a material ground for her decision to acquit. Ms. Ioane’s argument centered on Mr. Leung-Wai’s cross-examination of Mr. Brown and two police witnesses about his previous criminal convictions, principally for offences relating to his unlawful possession of firearms, and the Judge’s reliance on his answers when reaching her verdict. In Ms. Ioane’s submission the Judge should have disallowed the questions. She relies on ss. 73 (1) and 78 of the Evidence Act 2015 which materially provide: 
	73. Unacceptable questions-(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
	78. Cross-examination as to credit - In any proceeding, the Court: 
	(a) may limit in any manner and to any extent which it thinks fit the cross-examination of any witness as to credit; and 
	(b) must refuse to permit the cross-examination which is needlessly offensive or injurious to the witness, having regard to the nature or gravity of the imputations made against him or her, to the importance of his or her evidence, and to the effect of any of the imputations on the credibility of the witness.
13. 	As noted, Mr. Brown admitted to a history of convictions for firearms offences. Ms. Ioane concedes that the prosecution did not object to Mr. Leung-Wai’s questions at any stage of the trial or raise this issue in closing argument before the Judge. While the failure to take this step is not necessarily fatal to its appeal, it reflects the prosecutor’s assessment that the questions were not improper or irrelevant. It is regrettable that the Attorney-General has chosen to raise this argument for the first time on appeal and not before the trial Judge. It has all the appearances of an afterthought.  We accept that the trial Judge is responsible for the fair conduct of the trial but it is difficult to justify any criticism of her if the prosecutor fails to object to questions when they are asked or to argue that the answers should not be taken into account when reaching a verdict.
14. 	A defendant’s right to put the character of a prosecution witness in issue is well settled. Contrary to Ms. Ioane’s submission, leave is not required for this purpose. The authority on which she relied, R v Wood, does not support her proposition. The Court of Appeal’s decision in Wood was given on appeal in a sexual case against the trial judge’s refusal to grant leave to the defence to cross-examine a complainant on his character. The statutory context was very different;  s23A of the Evidence Act 1908 then in force specifically required leave, creating an express exception to the common law principle  We refer also to the Court’s observation that convictions reflecting adversely on character other than for dishonesty may be relevant to an assessment of credibility and motivation. Their effect will depend, for example, on their number, nature and proximity in time to the trial.  And we add the self-evident point that a defendant who elects to put character in issue through cross-examination of prosecution witnesses exposes his or character to challenge in the same way.
15. 	Ms. Ioane was unable to establish that Mr. Leung-Wai’s questions of Mr. Brown engaged the terms of either ss.73(1) or 78 of the Evidence Act which might have justified the Judge’s intervention.  She did not submit that the questions fell into any of the specific categories prescribed by s.73 (1). They were simply questions designed to elicit incontrovertible answers of fact. Nor was there any basis for the Judge to interfere because the questions were unnecessarily injurious or offensive contrary to s 78. In this respect we note that Mr. Brown had pleaded guilty in 2018 to a charge of unlawfully possessing the same firearm which he claimed Mr. Lesa had sold him. So to that extent evidence of his adverse character was already before the Court. His other convictions were for related offences of unlawful possession of firearm and ammunition in 2009 and causing adverse bodily harm in 2011. They simply added to the picture of his proclivity for firearms and violence offending.
16. 	Our conclusion that Tuatagaloa J did not err in not disallowing cross-examination on Brown’s character leaves the question of whether the Judge erred in relying on this evidence as a ground for acquitting Mr. Lesa. As is apparent from our summary above, it was listed as the final of the six grounds identified by the Judge. Ms. Ioane submitted that its materiality is reflected by the Judge’s characterization of it having a “huge impact” on Mr. Brown’s credibility. She submitted that this finding amounted to an error of law and permeated the rest of the Judge’s findings.
17. 	We agree with Ms. Ioane to this extent. The Judge erred in elevating the effect of Mr. Brown’s criminal history to having a huge impact on his credit. They reflected adversely on his character but did not of themselves have any wider relevance. However, this was a mistake of fact, not of law. Moreover, she was entitled to take into Mr. Lesa’s favour when assessing the credibility of his denial the evidence of his good character.
18. 	Ultimately, however, this ground must fail because the Judge’s other grounds for acquitting Mr. Lesa cannot be challenged. They stand alone independently of her error in justifying her verdict. Collectively the many and manifest flaws in the prosecution evidence raised serious doubts about Mr. Lesa’s guilt. His acquittal was inevitable.
19. 	We return to the Judge’s finding that the evidence of the two primary prosecution witnesses was tainted by the existence of an ulterior motive. We have real concerns about the circumstances in which Mr. Brown’s incrimination of Mr. Lesa was obtained. The Judge was satisfied that his account was unreliable and an unsatisfactory foundation for prosecution. It had all the hallmarks of fabrication. It was given to a court official, not a police officer, only after Mr. Brown was detained in custody for some days and advised by the official that exercise his power to release him on bail until he identified the person who supplied him with the weapon. The official referred to Mr. Brown’s necessarily prolonged separation from his family unless he spoke.  Mr. Brown admitted the operative effect of this inducement. 
20. 	Two other factors are material. One is that Mr. Brown was brought before the official on three or four occasions before he finally relented. The other is that the official explained that he would himself remain under suspicion of involvement in the crime unless somebody else was identified.
21. 	This procedure was highly improper. It is no function of a court official to participate actively in gathering evidence for the prosecution of a person for a criminal offence. Nor is it his or her function to hold out an inducement to a witness to give that evidence, particularly one of the very questionable and repetitive type given her.  In response Mr. Brown fabricated his incrimination of Mr. Lesa.  It tainted the prosecution from the outset. Mr. Lesa should never have been charged on the basis of Mr. Brown’s evidence.
22. 	The Attorney General’s appeal must be dismissed.
Costs
23. 	Mr. Leung-Wai applies for an order for costs in Mr. Lesa’s favour.  He submits that the appeal was plainly without merit. He seeks an order in the sum of WST$4000.
24. 	The Attorney- General accepts our jurisdiction to award costs in criminal appeals.  We are empowered to make any order “necessary or expedient in the interests of justice …” on an appeal against conviction.  This power is extended  “in any proceedings…” to include any other power  that we may exercise “….on appeals in civil matters ….”.  An order for costs is one of those powers. This Court has construed the power to award costs on appeal in  criminal proceedings as applying to an appeal against acquittal as well as against conviction. However, it is only to be used sparingly and where the interests of justice plainly require it. 
25. 	Ms. Ioane submits that we should not exercise our limited jurisdiction because this was a test case. She advised that the Attorney General is seeking guidance on an important procedural issue relating to the limits of permissible cross-examination on character in criminal trials.  
26. 	We agree with Mr. Leung-Wai that the appeal had no merit. It will be obvious from the terms of this judgment that we are satisfied that the legal principles are well settled. The consequences of a prosecutor’s failure to object to proper questions designed to elicit admissible evidence in circumstances where an appeal against an acquittal has no real merit cannot possibly justify putting the defendant to the expense of upholding his position. We have explained the reasons for our view that Mr. Lesa should never have been charged on the evidence available to the Police. The prosecution case was hopeless, and it could never have improved on appeal.
27. 	In our judgment the interests of justice require that the Attorney General pay costs to Mr. Lesa of WST$4000, and we order accordingly.
28. 	Mr. Leung-Wai advises that Mr. Lesa has been suspended by his employer without pay since he was charged. The suspension has continued through the period while the Attorney General’s appeal was pending. The Attorney- General has properly referred us to the MJCA’s statutory obligation to reinstate an employee who is acquitted of a criminal charge and reimburse him or her for all lost salary. We trust that the MJCA will also give favourable to reimbursement of Mr Lesa’s  legal expenses in defending these proceedings. 

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE TUALA-WARREN