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Police v Sione [2001] WSSC 8 (14 March 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER

POLICE

AND

IN THE MATTER

LUCAN TIMOTHY SIONE
of Alafua and Faleula and
IONA I’AMALEAVA
of Vaimoso.

Counsel: R Schuster and F Vaai for prosecution
TK Enari for accused

Hearing:
Ruling: 14 March 2001

RULING OF SAPOLU CJ

The accused is charged with robbery, assault with intent to commit robbery, causing actual bodily harm, armed with a dangerous weapon and unlawful entry. At the close of the case for the prosecution, counsel for the accused made a submission of no case to answer in respect of all the charges on the ground that the evidence of identification is so unsatisfactory, that the accused should not be required to give or call evidence, and the charges should therefore be dismissed. This requires the Court to refer to the evidence adduced by the prosecution, more particularly, the evidence of identification.

The victim in this ca a 34 a 34 year old woman who works for one Epi Arp of Alafua doing domestic chores and baby sitting. Her real village is Fagamalo in Savaii. On Friday night, 24 November 2000, she was by herself and a three year old child at Epi Arp’s home at Alafua. She was eating at the kitchen when she heard someone knocking on the door. This appears to have been the front door of the house. This was between 8.30 pm and 9.00 pm. She turned on the light and opened the door. The person at the door then punched her and demanded to give him money. She replied she had no money. But this person kept demanding to give him money. This person was wearing what appeared to be a black jacket with a hood covering his face except his eyes. He was also wearing black jeans. When the victim did not give him any money he threatened her with what appeared to be a 12 gauge shotgun. He then assaulted her by punching her and striking her twice with the gun. They struggled and she managed to pull off the hood covering his face. She was thus able to see his face. She called out for help to her neighbours. Her assailant then took off.

According to the victim, she suffered injuries to her hands and head. She was taken to the hospital the same night. The injury to her head, which was a bleeding wound, and caused when her assailant struck her with the gun, required four stitches. The injuries to her hands were caused from punches and a strike with the gun. The victim also gave a physical description of her assailant as fair and having Chinese looks. She also said he is short as she is slightly taller than him. All of this physical description fits the accused. She also said she did not know this person as that was the first time she had seen him.

The next morning at about 7.00 am, police constable Lene Tanielu called the victim to come to the police station “if this was the person who came at night”. The police picked her up from the Arps home at Alafua and brought her to the station. It appears that at some stage she learnt of the accused’s name from the police. On arrival at the police station, the victim told constable Lene Tanielu, “I am certain of the person”. The police officer then walked the accused and another male person, who was subsequently jointly charged with the accused but has now been discharged, past the victim. She was then asked which one of them was she certain about. She pointed at the accused.

The prosecution also called to give evidence two sisters, namely, Ainslie Anesone who is 24 years of age and works as a secretary at the National University of Samoa and Fia Anesone who is 22 years of age and is a third year student at the same university. According to Ainslie Anesone, she and her sister Fia Anesone were returning home on the night of 24 November 2000 from playing bingo. Whilst they walking along a road at Alafua, they met with the accused and another boy named Pogi in front of the house of Pule Lameko. At that time, the light on each side of that gate was on. The two boys were walking quickly and Pogi asked them but she did not say what Pogi asked them about. Where they met was about two minutes walk from the house of the victim. She also said the two boys live at Alafua and the accused’s house is not far from her family’s house. She also described what the accused was wearing as a black T-shirt, a black long sleeve jacket with a “pulou” (hood) and black jeans.

The witness Fia Anesone gave the same evidence as her sister about how they met with the accused and this other boy Pogi on the road in front of the gate to the house of Pule Lameko. She also gave substantially the same evidence as her sister as to what the accused was wearing at the time. She also said this boy Pogi mentioned a dance at St Joseph’s to her and her sister. She further said that even though she is not acquainted with the accused, she knows him as he lives at Alafua and he walks past her family’s house for most days. She added that she has known the accused for three years.

The prosecution also sought to produce a cautioned statement obtained by the police from the accused. However, counsel for the accused objected to the admissibility of the cautioned statement on the ground the cautioned statement was not voluntary. A voir dire was then held to determine whether the cautioned statement was voluntarily obtained or not. I ruled at the end of the voir dire that the cautioned statement was not voluntary and therefore in admissible. The prosecution then closed its case and counsel for the accused made a submission of no case to answer.

As I understand counsel for the accused, he did not submit that the identification of the accused by the victim is mistaken. What he submitted is that there is no case to answer on the ground that the identification evidence is so unsatisfactory that the accused should not be called upon to make an election whether to give or call evidence or not. On the question of identification, counsel relied on the decision of the English Court of Appeal, Criminal Division, in R v Turnbull [1976] 3 A11 ER 549. On the procedure to be adopted by the Court to the submission of no case to answer, counsel relied on the decision of the New Zealand High Court in R v H (No 2) [1994] 2 NZLR 460. I will deal with the procedural point first.

The procedural point which has been raised is not an easy one. It is, what should be the procedure to be adopted by the Court to a submission of no case to answer at the conclusion of the prosecution’s evidence in a Judge alone trial. I did not receive the benefit of full arguments on the issue. Be that as it may, the case of R v H (No. 2) [1994] 2 NZLR 460 was not a case on a submission of no case to answer. It was a case on an application for discharge under section 347 of the Crimes Act 1961 (NZ). Section 347 (3) of the New Zealand legislation is similar to section 104(3) of our Criminal Procedure Act 1972 which provides:

“The Court may, in its discretion, at any stage of any trial, direct that the defendant be discharged.”

The submission of no case to answer in this case was not an application for discharge under section 104(3). Thus R v H (No.2) [1994] 2 NZLR 460 is not a direct authority on the procedure to be adopted to a submission of no case to answer in a Judge alone trial. More in point is the case of Auckland City Council v Jenkins [1981] 2 NZLR 363 which dealt with a submission of no case to answer in a traffic prosecution. In that case, Speight J stated at p. 365:

“A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is “’prima facie’” – a well understood phrase. A ruling that there is a prima facie case does not mean that of necessity if there is no evidence by way of rebuttal that a conviction must follow. It is merely that a conviction can properly follow and not be upset as being one which could not be made by a fact finding tribunal acting reasonably. In application, of course, the situation will vary between a trial where the Court has the advantage of a jury and one in a Judge Alone situation. It is easy to understand that with a jury the Judge does not know which way the twelve members will find on facts. He is merely saying that a reasonable jury, properly instructed, could draw a guilty conclusion from the material before them at the stage that the case has then reached. A little more sophistication is needed in analysing the position of the Judge Alone trial. At the stage where this matter comes for consideration the Judge is not required to ask himself. ‘If no defence evidence is given am I going to convict?’ He is not required to analyse the evidence and make a preliminary conclusion on such a hypothesis. He is entitled to defer his consideration, perhaps to re-examine the evidence, perhaps to hear further final submissions from counsel. All he is saying at that stage in ruling that there is a case to answer is that on the present state of affairs it would be open to him, after properly directing himself on law, to convict if on mature examination of the evidence he thinks proper to do so, but he is not binding himself to any conclusions as to what evidence he will in fact accept. Having made such a ruling different courses may follow. The defence may or may not call evidence. If evidence is called then that becomes part of the total material fit for consideration. If, as here, no evidence is called, then the tribunal is required to listen to such submissions as counsel may wish to make, give consideration to the evidence which has been produced, and come to a final conclusion. And even in the face of a previous ruling of an answerable case, it still may be the dismissal of the information.

“In the present case I feel that the Justices misconstrued the situation which had arisen once Mr Witten-Hannah, having been given an unfavourable ruling on his ‘no case’ submission, then advised the Justices that his client was not giving evidence nor calling any. Indeed at that stage the evidence put before the Court required to be considered, and it is obvious that the Justices quite properly retired and presumably discussed the evidence. After having done so they came to the conclusion that the evidence was not strong enough to prove the prosecution case beyond reasonable doubt and the appropriate verdict to be entered was that of a dismissal of the information. In effect, of course, the information was dismissed. The point is perhaps of comparatively little significance, but it was technically an erroneous phraseology to use to say that ‘they vacated the previous decision and now ruled that there was no case to answer’. The appropriate ruling would have been that the evidence did not prove the case to the required standard and the information was dismissed.”

I had somehow adverted to the question of the procedure to be adopted to a submission of no case to answer in a Judge alone trial in my previous judgments in the cases of Police v Matagi Sione (1995) (S.161/94; unreported judgment delivered on 7 March 1995) and Police v Ausage Meli (2000) (unreported judgment delivered on 19 January 2000). In those cases the Court, as in this case, did not have the benefit of full argument. The judgment of Speight J in Auckland City Council v Jenkins [1981] 2 NZLR 363 was also not considered in those cases. Even though the last word may not have been said on the issue, I have decided for the purpose of resolving this case to apply the approach in Jenkin to the no case submission in this case.

I turn now to the ground of the submission of no case which is that the evidence of identification is so unsatisfactory, the accused should not be required to give or call evidence. The case of R v Turnbull [1976] 3 A11 ER 549 cited by counsel for the accused was considered and applied by this Court in Police v Ausage Meli (2000) (unreported judgment delivered on 19 January 2000). The particular passage in Turnbull, which was a case concerned with a jury trial, that counsel sought to rely on is at p. 553 where Lord Widgery CJ said:

“When in the judgment of the trial Judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The Judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.”

Along similar lines is what was said by Hardie Boys and Holland JJ in their joint judgment in the case of R v Waipouri [1993] 2 NZLR 410, which was a case concerned with voice identification in a jury trial. Their Honours said at p. 417:

“The Judge must consider carefully the quality of the evidence, for if he considers that it, together with such other evidence of identity as there is, is insufficient to satisfy a reasonably jury, it is his duty to withdraw the case from the jury”.

Bearing in mind what was said by Speight J in Auckland City Council v Jenkins [1981] 2 NZLR 363 at pp 365 – 366 in relation to a submission of no case in a Judge Alone trial, in particular, what His Honour said that at this stage the Judge is not required to analyse the evidence and make a preliminary conclusion on the hypothesis whether the accused is going to be convicted if he gives or calls no evidence, I refer to the evidence on identification again.

The first evidence of identification given by the victim was the clothes her assailant was wearing when she confronted him and he attacked her. She said her assailant was wearing a black jacket with a hood covering his face. He was also wearing black jeans. She also said he was short as she is slightly taller than him. She also said while they were struggling she pulled off the hood covering her assailant’s face and she was able to see his face. She said he was fair and had Chinese looks. All this happened after she turned on the light when she heard someone knocking on the door. Obviously, the identification by the victim of her assailant was at very close range. She was also apparently eager to see who her assailant was by pulling off the hood covering his face. On the other hand, this identification was made in difficult and stressful conditions. It also did not last for long, as the assailant took off when the victim called out to her neighbours for help.

The second evidence of identification is the identification by the victim of her assailant at the police station the very next morning. The victim said she was called by constable Lene Tanielu to come to the station if this was the man who came to her at night. On arrival at the police station her assailant and another boy, with whom he was subsequently jointly charged but now discharged, were then walked past her and she pointed at the accused as her assailant. It was submitted for the accused that this identification at the police station was unsatisfactory. The police should have held a proper identification parade and the victim asked if she could pick out her assailant.

Apart from the evidence of identification, there is the evidence of the two sisters Ainslie Anesone and Fia Anesone. They said they met with the accused and another boy Pogi on the night of this incident in front of the gate to the house of Pule Lameko when the light at each side of the gate was on. This is about two minutes walk from the house of the victim. They know the accused and did recognise him. Fia Anesone said she had known the accused for three years as he walks past her family’s house on most days. Both these witnesses gave a description of what the accused was wearing which matched the description given by the victim. Those are the “other evidence” as referred to in Turnbull and Waipouri.

Again bearing in mind the approach stated in Jenkins, and giving the necessary consideration to the evidence on identification as well as other evidence thus far presented, I have come to the view that there is a case to answer.

I would ask counsel to give careful consideration to what is said in Jenkin in deciding the next step the accused should take.

This case is adjourned to the week commencing 26 March 2001 for the defence to decide on the next step to take.

CHIEF JUSTICE

Solicitors:
Attorney-Generals Office for prosecution
Kruse, Enari and Barlow for accused.