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Police v Tuise [2007] WSSC 11 (28 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of an appeal pursuant to section 139 of the Criminal Procedure Act 1972

BETWEEN

POLICE
Appellant

AND

FUAMAI TUISE, REBECCA SCHULTZ, MOASINA RIPINE
and OSOA’EPEALELA APELU
all of Tanugamanono.
Respondents

Counsel: K Koria and P Chang for appellant
R Papalii for respondent Fuamai Tuise
P A Fepulea’i for respondent Rebecca Shultz
S K Ainuu for respondent Osoa’epealela Apelu
Respondent Moasina Ripine has left jurisdiction

Hearing: 2 February 2007
Judgement: 28 February 2007

JUDGMENT OF SAPOLU CJ

Introduction

All respondents were charged with arson in the District Court pursuant to s.112 of the Crimes Ordinance 1961. The respondent Rebecca Schultz was charged alone. The other respondents were jointly charged. They all pleaded not guilty. After a four day trial, Judge Vaai on 10 May 2005 found all respondents not guilty.

On 24 May 2006, the Attorney-General on behalf of the police as appellant applied for leave for time to be extended to file a notice of appeal on the ground that the written decision of the Judge was by that time not available. On 21 July 2005, a copy of the Judge’s written decision was made available to the appellant. On 22 August 2005, the appellant lodged a notice of appeal. There is also a notice of grounds of appeal of the same date. The matter was then the subject of further adjournments. Those further adjournments and the reasons for them appear from the memorandum by counsel for the appellant dated 21 December 2006 and the joint memorandum of counsel for the respondents filed around the same time. Counsel for the appellant submit that the adjournments and consequential delay in hearing the appellant’s application for leave to extend time to file its appeal were due to factors beyond the control of the appellant.

When this matter was before the Court again on 23 January 2007, I asked all counsel to file written submissions on the merits of the grounds of appeal. I heard those submissions on 2 February.

Facts

I have found it most difficult to ascertain or establish from the notes of evidence and the decision of the trial Judge what the facts of this case are. This is because of inconsistencies in the evidence given by each prosecution witness, conflicts between the evidence of prosecution witnesses, vagueness in some parts of their evidence, and the conflicts between the evidence of key prosecution witnesses and the evidence of defence witnesses including the accused/respondents Fuamai Tuise and Rebecca Schultz. All of this is mentioned in the decision of the trial Judge.

What can be said with confidence is that the family of the respondents and the family of one lady named Eleni Mika are next door neighbours at the village of Tanugamanono. On Friday night, 5 December 2003, the respondent Fuamai Tuise was allegedly assaulted by one of Eleni Mika’s children over differences which are not relevant here. On the following morning, Saturday, 6 December 2003, at around 10am going to 11am, Pula Ripine the father and grandfather of the respondents approached Eleni Mika in an attempt to resolve the matter between the two households. No resolution was reached. Shortly after, the house of Eleni Mika was set on fire with molotov cocktails or beer bottles filled with kerosene/petrol (hereinafter referred to as molifagu). Subsequently, the respondents were charged by the police with arson for allegedly setting fire to the house of Eleni Mika.

Grounds of appeal

The appellant originally filed nine grounds of appeal. Ground no.8 has been abandoned. The grounds of appeal which appear in the appellant’s notice of grounds of appeal and as further clarified in its submissions claim that the trial Judge erred in law in the following respects:

(1) In holding that the prosecution has to prove beyond reasonable doubt as part of the first element of the charge of arson that the accused/respondents acted in concert pursuant to a pre-conceived plan to set fire to the house of Eleni Mika.
(2) In dismissing the evidence relating to the evidence of the prosecution witness Timusu Mika about threats by the accused Fuamai Tuise of burning the house of Eleni Mika shortly before the house was set on fire and the evidence of a fight between Fuamai Tuise and the children of Eleni Mika the night before 6 December 2003 as "irrelevant to these proceedings" and "insignificant" when such evidence is relevant to the wilfulness of the accused and their motives to burn the house.
(3) In finding that he had no option to find whether the accused Osoa’epealela Apelu was guilty of being a party to the offence of arson despite the admission by that accused in his cautioned statement that he threw a molifagu into the house of Eleni Mika notwithstanding that the house was already burning and despite the existence of ss.36 and 39 of the Criminal Procedure Act 1972 which empowers the Court to amend a charge and convict an accused of a lesser charge that is proven.
(4) In finding that the accused Osoa’epealela Apelu cannot be found guilty of being a party to arson in absence of principal offender.
(5) In finding that the accused Osoa’epealela Apelu cannot be convicted of wilfully setting fire to the house of Eleni Mika given that by the time he threw a molifagu into the house of Eleni Mika, it was already on fire and his admission of his family’s preconceived plan.
(6) In finding that there was no evidence which shows that any of the accused acted in concert or in accordance with a pre-conceived plan to set fire to the house of Eleni Mika despite the admission by the accused Osoa’epelela Apelu in his cautioned statement that his family had planned to burn the house of Eleni Mika.
(7) By not taking judicial notice of the fact that the accused Fuamai Tuise was found guilty of the murder of Eleni Mika on 6 December 2005 in the Supreme court and confirmed by the Court of Appeal by assault with a molifagu as contradictory evidence against the oral testimonies of Fuamai Tuise and Rebecca Shultz that it was on Moauli who assaulted Eleni Mika and was responsible for her death.
(8) As already indicated, this ground of appeal has been abandoned.
(9) The last ground of appeal is that the acquittal of all accused is against the weight of the evidence.

Principles relevant to an application for leave to extend time to appeal

In the absence of any relevant Samoan authority, I have found the principles which are relevant to the exercise of the Court’s discretion on an application for leave to extend time to appeal against conviction or sentence under s.388 of the New Zealand Crimes Act 1961 to be also relevant to an application for extension of time under s.146 of the Criminal Procedure Act 1972 to appeal against an acquittal under s.139 of the Act. The relevant New Zealand authorities, cited by counsel for the accused Osoa’epealela, show that even though the Court has a discretion to extend time in which to appeal, that discretion has its limits.

In R v Knight [1998] 1 NZLR 583, 587; ( 1997) 15 CRNZ 332, Richardson P, in delivering the judgment of the New Zealand Court of Appeal, said:

"Section 388 does not specify the principles or criteria to be applied in "determining applications for extension of time for appeal. The time "‘may be extended’ and ‘at any time’ by the Court. But the discretion is "not unfettered. The touchstone is the interests of justice in the "particular case...The feature which provides the reason for the time "limit for appealing ... is the interest of society in the final "determination of litigation. That necessarily carries through as a "powerful consideration in determining whether leave should be granted "... to appeal out of time. The overall interest of justice in a particular "case may call for balancing the wider interest of society in the finality "of decisions against the interest of the individual applicant in having the "conviction reversed. Also relevant is the ‘respect which is traditionally "shown for the liberty of the subject’ (R v Hawkins [1997] 1 Cr App R "234 a p.239)"

In the case of R v Leger (2001) (unreported judgment of the New Zealand Court Appeal delivered on 17 May 2001), Blanchard J, in delivering the judgment of the Court on an application by the Grown to appeal out of time against sentence, said:

"[4] The legislature has not provided any guidance in s.388 by way of "specifying criteria. In R v Knight (1997) 15 CRNZ 332, an application "by a convicted person, this Court said at (336) that the touchstone in "deciding whether to extend time is the interests of justice in the "particular case. The reason for a time limit is the societal interest in the "finality of decisions. Those matters considered to be relevant included "the strength of the proposed appeal, the length of the delay, the reasons "for it, and the impact on the administration of justice. We would add to "this, in circumstances such as the present, the position of the victim of "the offending."

With the necessary adaptations, I will adopt the approach in R v Knight and R v Leger in the determining the present application for extension of time to appeal against an acquittal.

Submissions for the appellant

The trial Judge in his decision lists three elements of a charge of arson which the prosecution must prove beyond reasonable doubt in order to establish such a charge. The first element is that the accused did set fire to the house of Eleni Mika (or in the case of the joint accused) that they acted in concert with each other when setting fire to the said house.

As I understand the submissions by the appellant in support of its first ground of appeal, their central theme is that "acting in concert" is not an element of the crime of arson and therefore the prosecution did not have to adduce evidence to prove beyond reasonable doubt that the accused were acting in concert as an element of the charge. Counsel for the appellant also refer to s.23 of the Crimes Ordinance 1961 and submit that it is a definition provision which sets out how a person can become a party to an offence and therefore guilty of the offence to which he is a party either as a principal offender or secondary party. However, the real thrust of the first ground of appeal is that "acting in concert" is not an element of the crime of arson which the prosecution has to prove beyond reasonable doubt.

In support of the second ground of appeal, counsel for the appellant submit that the trial Judge should not have treated the evidence of the prosecution witness Timusu Mika as "irrelevant" and "insignificant" (pp.3 and 4 of the decision) as it was relevant to two facts in issue. These are: (a) the involvement of the accused Fuamai Tuise in the alleged arson, and (b) the existence of a common intention amongst the accused to set fire to the house of Eleni Mika. It is pointed out that according to the evidence of Timusu Mika, shortly before the house of his family was set on fire, he met the accused Fuamai Tuise, Rebecca Shultz and Osoa’epealela Apelu in front of his family’s house and Fuamai Tuise told him during that encounter that they will burn his house, referring to the house of Eleni Mika. It is also submitted for the appellant that the evidence of Timusu Mika is supported by what is stated in the cautioned statement of the accused Osoa’epealela Apelu which is to the effect that on the night before the alleged arson, the accused Fuamai Tuise had expressed a wish to burn down the house of Eleni Mika. It is then further submitted that had the evidence of Timusu Mika been considered together with the relevant part of the cautioned statement of the accused Osoa’epealela, it would have given the evidence of Timusu Mika greater probative value than afforded to it by the Judge and that would have gone towards proving not only the involvement of the accused Fuamai Tuise in the alleged arson but also the wilfulness of her actions.

In support of the third ground of appeal, counsel for the appellant submit that His Honour the trial Judge was entitled to apply s.23 of the Crimes Ordinance 1961, which is the parties to offences provision, to the facts of the case and find the accused Osoa’epealela guilty as a party. It is then further submitted, relying on the judgment of the New Zealand Court of Appeal in R v Witika [1993] 2 NZLR 424, that if an accused was not found guilty as the principal offender, this as the principal party, he could still be found guilty as a secondary party to the offence if there was sufficient evidence to support the conviction on that ground. It follows that even where the accused Osoa’epealela was not charged as a secondary party, it was still open to convict him as a secondary party if there was sufficient evidence to do so.

The fourth ground of appeal is directed to what the trial Judge says at p.16 of his decision that it was not proper to find the accused Osoa’epealela guilty on the evidence as a party when there was no principal offender. Counsel for the appellant submit that there is evidence, albeit circumstantial evidence, to show that all the accused were acting in concert. On that basis, it was open to the trial Court to convict the accused Osoa’epealela of arson even though there is no clear identification of the principal offender or the person who actually started setting the house on fire. Counsel then distinguished the case of Police v Faisaovale et al [1970-1979] WSLR 118 where Scully CJ in this Court said at p119:

"If two people are jointly indicted for the commission of a crime and the "evidence does not point to one rather than the other, and there is no "evidence that they were acting in concert, the jury ought to return a "verdict of not guilty against both because the prosecution have not "proved the case."

Counsel submit that in this case there was evidence to show that the accused acted in concert in setting fire to the house of Eleni Mika.

In relation to the fifth ground of appeal, counsel for the appellant have made no submissions but appears to rely on their submissions in support of their other grounds of appeal. In relation to the sixth ground of appeal, counsel for the appellant repeat their submissions in relation to the fourth ground of appeal. In relation to the seventh ground of appeal, counsel for the appellant repeat their submissions in relation to the first ground of appeal. The eighth ground of appeal, as previously indicated, has been abandoned. The ninth ground of appeal which is a general ground appears to rely on the submissions made in support of the other grounds of appeal.

Submissions for the respondent Fuamai Tuise

In relation to the first ground of appeal, counsel for the respondent Fuamai Tuise submits that the trial Judge did not err in setting out the first element of the charge of arson as that, the accused did set fire to the house of Eleni Mika (or in the case of the joint charge) they acted in concert with each other when setting fire to the said house. Counsel then sets out what she considers to be what the trial Judge meant by his approach.

In relation to the second ground of appeal, counsel for the respondent Fuamai Tuise submits that the trial Judge never says in his decision that the evidence of the prosecution witness Timusu Mika was "irrelevant" and "insignificant". Counsel points out that in the closing submissions of the prosecution at the trial, the police prosecutor touched briefly on the evidence of Timusu Mika and did not dwell on its importance or significance. Counsel also points out that Fuamai Tuise in her evidence denied that she said to Timusu Mika that they (he and the other accused) would burn down the house of Eleni Mika. Counsel then further submits that His Honour had correctly ruled that part of the cautioned statement of the respondent Osoa’epealela which implicates the other accused was inadmissible and could not have been used in support of the evidence of Timusu Mika.

In relation to the sixth ground of appeal, counsel for Fuamai Tuise submits that His Honour correctly ruled on established legal principles against the admissibility of parts of the cautioned statement of the accused Osoa’epealela which tended to implicate the other co-accused. Reference is then made to Blackstone’s Criminal Practice (1993) where it is stated in para 17.33 at p.2062:

"A confession made by an accused person which is admitted in evidence "is evidence against him... It is not however evidence against any other "person implicated in it (Rhodes (1959) 44 Cr App R 23), unless it is "made in the presence of that person and he acknowledges the "incriminating parts so to make them in effect his own evidence."

Reference is also made to Cross on Evidence 7th NZ edition, para 7.13 at p.207 where it is stated:

"It is important to distinguish evidence given in the trial from statements "made to the police before trial. A statement by X incriminating Y is "not as such admissible evidence against Y. Further, a statement made "to the police by one accused does not become admissible against his "joint accused merely because he admits on oath he made the statement. "There must be the additional step of an acceptance on oath of the truth "of the statement."

On the seventh ground of appeal, counsel for Fuamai Tuise submits that the trial Judge was not obliged to take judicial notice of the fact that Fuamai Tuise had been found guilty of the murder of Eleni Mika on 6 December 2003 as contradictory evidence against the testimonies of Fuamai Tuise and Rebecca Schultz at the trial on the arson charge that it was one Moasina who was responsible for the death of Eleni Mika. It is also submitted that the issue of who committed the murder of Eleni Mika and who set fire to her house are different matters.

Submissions for the respondent Rebecca Shultz

Counsel for the respondent Rebecca Shultz submits that the trial Judge had to make a decision based on the credibility of the witnesses and there were grave inconsistencies and discrepancies in the evidence given by the prosecution witnesses.

Respondent Moasina Ripine

This respondent has left Samoa so she was not represented in these proceedings but was represented by counsel at the trial. It is not clear whether the appellant was able to effect service of its appeal on this respondent.

Submissions for the respondent Osoa’epealela Apelu

I will refer first to the submissions by counsel for the respondent Osoa’epealela in relation to the merits of the grounds of appeal and then to his submissions in relation to the reasons for the delay in the appellant filing a notice of appeal.

Counsel for Osoa’epealela submits in relation to the first ground of appeal, that as three of the accused were jointly charged with arson, the trial Judge was correct in ruling that the prosecution had to prove that the accused were acting in concert. Counsel relies on a passage from the decision by Scully CJ in Police v Faisaovale et al [1970-1979] WSLR 118 which has already been cited in this judgment.

In relation to the second ground of appeal, counsel submits that the evidence of the prosecution witness Timusu Mika that the accused Fuamai Tuise threatened him that their house would be burned was strongly denied by Fuamai Tuise. The testimony of Fuamai Tuise was that she did not see Timusu Mika on the Saturday morning, 6 December 2003, because she went to the hospital that morning for her medical check up as she was two months pregnant and was not feeling well.

In relation to the third and fourth grounds of appeal, counsel for Osoa’epealela submits that before this respondent could be convicted as a secondary party, there must be a principal party. In the present case, not only a principal offender could not be identified, but the evidence does not point to anyone of the accused as the person who set fire to the house of Eleni Mika.

Counsel for Osoa’epealela submits that the admission by Osoa’epealela in her cautioned statement of throwing a molifagu to the house when the house had already been burning for quite sometime is not arson. The prosecution had to show that Osoa’epealela actually set fire to the house. By throwing a molifagu to a house that was already consumed with fire, even if the molifagu was already lit, is not arson.

In relation to the fifth and sixth grounds of appeal, counsel submits that the reference in the cautioned statement of Osoa’epealela to what may be described as a pre-conceived plan to set fire to the house of Eleni Mika was correctly ruled inadmissible by the trial Judge. This is because of the well-established rule of evidence which precludes the admission of any incriminating statement made by one accused against a co-accused jointly charged with the same offence.

On the seventh ground of appeal, counsel submits that even if it were open to the trial Judge to take judicial notice of the guilty verdict for murder against the accused Fuamai Tuise, it would not have assisted the case for the prosecution because it has no relevance to the charge of arson.

On the eighth ground of appeal, counsel submits that there was no good reason for the police to charge the accused Rebecca Shultz separately from the three accused who were jointly charged for the same offence arising from the same factual circumstances. The police, therefore, should not be allowed to use this method of separating charges where there are no good reasons for doing so, to circumvent the established rule that an out of Court statement by one accused which incriminates a co-accused jointly charged with him, is inadmissible against that co-accused.

On the issue of delay in filing the appeal within the prescribed 14 days period and the reason given by the appellant for the delay, counsel submits that the delay is inexcusable. Counsel submits that the reserved decision of the trial Judge was delivered on 10 May 2005 acquitting all accused. Even though the written text of the Judge’s decision was not available at the expiration of 14 days, the prosecutor had the benefit of hearing His Honour’s decision read out in open Court on 10 May 2005 to formulate an appeal or to at least file a pro forma appeal with supporting grounds to alert the accused that an appeal was likely. That seems to be the normal procedure in New Zealand as it appears from the case of Solicitor General of New Zealand v Steinmetz (2004) (unreported judgment of the New Zealand Court of Appeal delivered by Hansen J on 15 March 2004) which was cited by counsel for Osoa’epealela. This is a good procedure which should also be followed in Samoa.

Discussion
First ground of appeal

I accept the argument by counsel for the appellant that "acting in concert" is not an element of the crime of arson under s.112 of the Crimes Ordinance 1961. The three elements which constitute the crime of arson and which the prosecution has to prove beyond reasonable doubt are:

(a) That the accused "set fire to" a building. The words "set fire to" mean to cause a fire to start. The word "building" would include a house. Some damage to the building is necessary.
(b) The setting of the fire must be wilfully done by the accused. The word wilfully in this context means deliberately or intentionally.
(c) The accused did not have any lawful justification or excuse for what he or she did, and did not have colour of right for doing it.

As will be seen from the three elements which constitute the crime of arson, they do not include acting in concert. I have therefore decided to accept the first ground of appeal. But this is not decisive on the question of whether leave should be granted to the appellant to appeal out of time.

While on the first ground of appeal, I need to say something about "acting in concert" as it is an expression that often comes up in criminal trials and it has come up in these proceedings where two or more accused are jointly charged with the commission of an offence. The concept of acting in concert or joint criminal enterprise as it is sometimes referred to, is not referred to in any provision of the Crimes Ordinance 1961. It is a common law principle of criminal liability. It is based on a particular mode of participation in the commission of an offence with which two or more accused are jointly charged. It may apply where two or more accused are jointly charged with the commission of an offence, to establish joint criminal liability amongst the accused as principal offenders or principal parties. The applicability of the principle would depend on the circumstances of the offence. Thus acting in concert or joint criminal enterprise is a common law principle on which the prosecution may rely to establish joint criminal liability as principle offenders amongst two or more accused who are jointly charged with the commission of an offence. The defining element of the principle is that liability under it is direct or primary, and not derivative, that is to say persons to whom the principle applies would be liable as principal offenders and not as secondary parties to the commission of an offence.

The principle of acting in concert was explained by McHugh J in Osland v R [1998] HCA 75; (1998) 197 CLR 316 where His Honour said at p. 342:

"However, there is a third category where a person was not only present "at the scene with the person who committed the acts alleged to "constitute the crime but was there by reason of a pre-concert or "agreement with that person to commit the crime. In that category, the "liability of each person present as the result of the concert is not "derivative but primary. He or she is a principal in the first degree. In "that category each of the persons acting in concert is equally "responsible for the acts of the other or others. The general principle "was clearly stated in R v Lowery and King [No2] [1972] VicRp 63; [1972] VR 560 by "Smith J who directed the jury in the following terms:

"The law says that if two or more persons reach an "understanding or arrangement that together they will "commit a crime and then, while that understanding or "arrangement is still on foot, and has not been called off, "they are both present at the scene of the crime and one or "other of them does, or they do between them, in "accordance with their understanding or arrangement, all "the things that are necessary to constitute the crime, they "are all equally guilty of that crime regardless of what part "each played in its commission. In such cases, they are "said to have been acting in concert in committing the "crime."

McHugh J then went on in Osland v R [1998] HCA 75; (1998) 197 CLR 316 at 343 to say:

"The principle is accurately stated by Brett, Waller and Williams in the "8th edition of their work on Criminal Law (1997), p. 465

"Even if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said be acting in concert."

McHugh J then quoted with approval a passage from R v Tangye [1997] 92 A Crim R 545 where the New South Wales Court of Criminal Appeal said at pp 556-557:

"(1) The law is that, where two or more persons carry out a joint "criminal enterprise, each is responsible for the acts of the other or "others in carrying out that enterprise. The Crown must establish both "the existence of that joint criminal enterprise and the participation in it "by the accused.

"(2) A joint criminal enterprise exists where two or more persons reach "an understanding or arrangement amounting to an agreement between "them that they will commit a crime. The understanding or arrangement "need not be express, and its existence may be inferred from all the "circumstances. It need not have been reached at any time before the "crime is committed. The circumstances in which two or more persons "are participating together in the commission of a particular crime may "themselves establish an unspoken understanding or arrangement "amounting to an agreement formed between them then and there to "commit that crime.

"(3) A person participates in that joint criminal enterprise either by "committing the agreed crime itself o simply by being present at the "time when the crime is committed."

McHugh J then went on to say at p.343 of Osland v R in relation to the passage he had quoted from R v Tangye:

"In accordance with the New South Wales practice, the Court referred to "‘carrying out a criminal enterprise rather than acting in concert. The "principles, however, are the same."

There are a number of Australian criminal cases which discuss and apply the principle of acting in concert or joint criminal enterprise. It is recommended that any lawyer who is interested in this aspect of criminal liability should read some of those cases to get the full flavour of the principle.

It appears from the decision of the trial Court that when the Judge referred to acting in concert in the first element of the charge, what His Honour had in mind was that on the evidence before him, if the prosecution were to succeed in attaching criminal liability to all the accused who were jointly charged with arson, then the prosecution had to prove that they were acting in concert in setting fire to the house of Eleni Mika. In my respectful view, this is correct as a matter of principle provided there was evidence to attract the application of the principle of acting in concert. Where the error has arisen was to treat acting in concert as part of the first element of the charge of arson, which is, that the accused set fire to the house of Eleni Mika. Acting in concert, as already explained, is a principle of criminal liability whose application depends upon a particular mode of participation in the commission of an offence where two or more accused are alleged to have been involved in. It is not an element of the crime of arson. For the purpose of clarity, the word "accused" as used here is a collective noun and can be used both in the singular or the plural.

Second ground of appeal

The crux of the contention for the appellant in relation to the second ground of appeal is that the trial Judge should have given more weight or probative value than he did to the evidence by the prosecution witness Timusu Mika that shortly before the house of this family was set on fire, the accused Fuamai Tuise had verbally threatened him that the house of his family will be burned. This evidence, according to counsel for the appellant, was relevant to two facts in issue, namely, (a) the involvement of the accused Fuamai in the alleged arson, and (b) the existence of a common intention amongst the accused to set fire to the house of Eleni Mika.

Before I come to the reason given in support of the appellant’s contention, there are two matters I wish to mention first. The first is that the evidence of the witness Timusu Mika was denied by Fuamai. The second matter, as it appears from page 4 of the Judge’s decision, is that at the trial the prosecution, in support of its case, relied heavily on the evidence of other witnesses and to a lesser and insignificant extent on the evidence of the witness Timusu.

The main reason given in support of the contention for the appellant is that the evidence of the witness Timusu Mika about being threatened by the accused Fuamai to burn down his family’s house is supported by what is stated in the cautioned statement of the accused Osoa’epealela Apelu which is to the effect that on the night before the alleged arson, the accused Fuamai had expressed a wish to burn down the house of the family of Timusu. The trial Judge ruled that this part of the cautioned statement of the accused Osoa’epealela was not admissible as evidence against the accused Fuamai.

It is a well established principle of the law of evidence that an out of Court statement made to the police by one accused which incriminates another accused is not admissible evidence against that other accused unless accepted by him on oath. see, for example, Blackstone’s Criminal Practice (1993) para 17.33, p.2062 and Cross on Evidence 7th ed para 7.13, p.207 already cited in this judgment and Police v Faisaovale et al [1970-1979] WSLR 118, 119. Counsel for the appellant submit that there is an exception to that common law principle. In support of that submission, counsel for the appellant rely on the decision of the New Zealand Court of Appeal in R v Buckton [1985] NZCA 33; [1985] 2 NZLR 257, per Somers J at p.263, where it is said that the acts or declarations of one conspirator, though done or made in the absence of a co-conspirator, will be evidence against the co-conspirator where such acts or declarations are in furtherance of their common design. The existence of a common design is critical to the application of the principle. Once there is reasonable evidence of a common design, then acts or declarations made by one conspirator in furtherance of the common design will be admissible against a co-conspirator even if such acts or declarations were done or made in the absence of the co-conspirator. I accept that this principle, which is based on implied agency, applies in trials for conspiracy. In fact R v Buckton was a case concerned with a conspiracy to import drugs. The principle as explained by Somers J in R v Buckton is usually referred to as to the conspiracy rule.

This conspiracy rule or principle was later held in New Zealand to apply to crimes other than conspiracies. That occurred in the case of R v Shelford [1993] 2 NZLR 742 where Smellie J said in the High Court at p. 745:

"That the conspiracy rule applies to crimes, other than conspiracies, that "are committed pursuant to a common purpose or agreement is well "established in Australia; see Gillies, The Law of Criminal Conspiracy "(2nd ed, 1990) at pp 198 to 202 inclusive, under the heading "‘Application of the conspirators rule in relation to the proof of crimes "other than conspiracy, committed pursuant to an agreement’ where the "subject is extensively discussed. The same rule applies in the United "Kingdom; see Phipson on Evidence (14th ed, 1990) para 25.10, under "the heading ‘Acts and declarations in pursuance of a common purpose.’ "The paragraph referred to commences with this statement at p.659:

"Where two persons are engaged in a common enterprise, "the acts and declarations of one in pursuance of that "common purpose are admissible against the other. The "rule applies in both civil and criminal cases and in the "latter whether there is a charge of conspiracy or not, "provided that the crime charged was committed in "pursuance of a conspiracy, ie an agreement of two or more "persons to commit it.

"The leading New Zealand case on conspiracy is R v Buckton. There "does not appear to be a reported New Zealand case dealing with the "point in the context of a crime other than conspiracy. The case of "Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 in the High Court of Australia was such "a case however. Tripodi was extensively discussed in Buckton "primarily in relation to the question of whether the existence of the "requisite common intention had to be established on the balance of "probabilities or some lower standard. But there does not appear to have "been any reservation on the part of any of the five members of the "Court in Buckton about the application in Tripodi of the principle to a "non-conspiracy case. Cross on Evidence (4th NZ ed, 1989) discussed "the issue of conspiracy at para 18.33 commencing on p 543 and having "set the rule out, then states at p.544:

"The rule under consideration is not confined to trials for "conspiracy as it is based on implied agency and would "apply, for example, to charges of aiding and abetting, even "though the secondary party was not charged.

"Guided by the above authorities I am of the view that the rule which "clearly applies in conspiracy cases also applies in cases such as the "present where two persons are engaged in a common enterprise."

The view expressed by Smellie J in R v Shelford [1993] 2 NZLR 742, 745 was later approved by the New Zealand Court of Appeal in the case of R v Tauhore [1996] NZCA 270; (1997) 14 CRNZ 248 which was concerned with the trial of co-offenders on charges of aggravated robbery and other non-conspiracy offences. In delivering the judgment of the Court, McKay J said at p. 250:

"In Tripodi v R (1961) 104 CLR[1961] HCA 22; , [1961] ALR 780, this issue came before "the High Court of Australia. In its judgment, the Court said (at p.7; "p.782":

"It must be remembered that the basal reason for admitting "the evidence of the acts or words of one against the other "is that the combination or pre-concert to commit the crime "is considered as implying an authority to each to act or "speak in furtherance of the common purpose on behalf of "the others.

"We can find no valid reason for distinguishing the case of two or more "accused acting together in furtherance of a common design, and being "charged with the particular offence, from the case where the charge is "one of conspiracy. It is the fact of common design which is critical. "The statements made by one in furtherance of that design are thereby "admissible against the other or others. The rule cannot logically be "confined to cases where the offence charged is one of conspiracy. We "note that the same view was reached by Smellie J in R v Shelford " [1993] 2 NZLR 742, 745 where he referred to Buckton and Tripodi and "to text writers in Australia, England and New Zealand."

In my respectful view, the position taken in Australia, England and New Zealand with regard to the application of the conspiracy rule to other crimes where two or more accused are charged as co-offenders in pursuance of a common design, common purpose or pre-concert should also apply in Samoa.

The leading authority in Australia in this area, is the judgment of the High Court of Australia in Tripodi v R (1961) 104 CLR1 where it was said at pp. 6-7:

"It is urged that the rule under which upon charges of conspiracy "evidence is admitted of what is done and said by the parties to the "combination in furtherance of the conspiracy is a rule of a special "nature and is incapable of application to charges of a substantive "offence. In the Supreme Court the contrary view was adopted and "moreover a very wide rule was laid down. It is a mistake to think that "the rule the chief application of which is to charges of conspiracy is a "special rule of evidence confined to that offence. But at the same time "it may well lead to error if the question of the admissibility of such "evidence in any given case is treated exactly in the same manner as it "might be on a charge of conspiracy. For upon a charge of conspiracy "the proof may well consist in evidence of the separate acts of the "individuals charged which, although separate acts, yet point to a "common design and when considered in combination justify the "conclusion that there must have been a combination such as that alleged "in the indictment. When that is so evidence may readily be let in of "what each party to the conspiracy alleged may do or say in furtherance "of the common purpose. But when a substantive crime, not a "conspiracy, is charged in the indictment it is the ingredients of the "substantive crime that must be proved, not combination for a common "purpose. When the case for the prosecution is that in the commission "of the crime a number of men acted in preconcert, reasonable evidence "of the preconcert must be adduced before evidence of acts or words of "one of the parties in furtherance of the common purpose which "constitutes or forms an element of the crime becomes admissible "against the other or others, that is to say of course, unless some other "ground for admitting the evidence exists in the given case."

Further on at pp.7-8, the Court said:

"It is customary at criminal trials simply to treat the presence or absence "of the prisoner as decisive of the admissibility things ... But often "enough in an ordinary case where there is no confederation or "preconcert, directions instructions and the like although spoken in the "absence of the prisoner may, according to the circumstances of the "case, admissible as res gestae or relevant facts. It is easy to understand "therefore that preconcert confederacy or combination may make such "directions and the like admissible when they are given by one of "several acting in pre-concert with the prisoner and are given in "furtherance of the common design. In the present case the things said "and done when the prisoner was not present or within earshot are for "the most part of this character and are admissible as part of what was "done in furtherance of the common criminal purpose."

In the case of Ahern v R (1998) 185 CLR 87, the High Court of Australia said at p.99:

"In Tripodi the Court was speaking of the admission in evidence of the "acts and declarations of others outside the presence of the accused in "proof of larceny rather conspiracy, but, as we have said, the principle "upon which such evidence is admitted extends beyond cases of "conspiracy. The significant distinction between conspiracy and other "offences for present purposes is that indicated in Tripodi v R (1961) "104 CLR1, at p.6, namely, that on a charge of conspiracy combination "is also an element in the offence and not merely a ground for the "admission of the evidence. The question does not, therefore, arise in "cases other than conspiracy of the use of evidence of the acts and "declarations of others to prove the combination except as evidence of "separate acts from which a combination might be inferred. Once there "is reasonable ground for inferring a combination in cases other than "conspiracy, acts and declarations of the participants in furtherance of "the common purpose may be used to prove, not the fact of participation "in the combination, but the offence charged."

It is recommended that the case of Tripodi v R and Ahern v R be studied in order to get the full flavour of the rule of evidence that is in issue here. Photocopies of these cases may be obtained from the Court upon request.

It appears from Tripodi, that in a non-conspiracy case where the prosecution relies on acting in concert or joint criminal enterprise to attach criminal liability to an accused by seeking to admit in evidence an out of Court statement made by one accused to the police which incriminates a co-accused, the prosecution would have to prove by reasonable evidence, independent of the statement sought to be admitted, that both accused were acting in concert, and that the statement to be admitted was made in furtherance of the pre-concert. This seems to follow from what the Court said in Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 at p7 in a passage earlier cited in this judgement:

"But when a substantive crime, not a conspiracy, is charged in the "indictment, it is the ingredients of the substantive crime that must be "proved, not combination for a common purpose. When the case for the "prosecution is that in the commission of the crime a number of men "acted in preconcert, reasonable evidence of the preconcert must be "adduced before evidence of acts or words of one of the parties in "furtherance of the common purpose which constitutes or forms an "element of the crime becomes admissible against the other or others... "(emphasis mine)".

A similar view to the view I have stated was expressed in Skaramuca v Craft [2005] ACTSC 61 where Higgins CJ said:

"Nevertheless, such evidence may, in some circumstances, be "admissible. That is not because there is some special rule applicable to "alleged co-offenders. Rather, it is because, if there is (a) evidence "(apart from the impugned evidence) that reasonably supports the "contention that the parties were acting in concert, and (b) the impugned "evidence is of statements or actions in the course of furtherance of that "joint criminal enterprise (see Tripodi v R [1913] HCA 32; (1961) 140 CLR 1), then the "evidence is admissible to support both that conclusion and the guilt of "the other offender in respect of that criminal enterprise. That principle "was affirmed in Ahern [1988] HCA 39; (1988) 165 CLR 87."

Applying the principles just discussed to the admissibility or otherwise of what the accused Osoa’epealela says in his cautioned statement that on the night before the alleged arson the accused Fuamai expressed a desire to burn down the house of Eleni Mika, the first question to be determined is whether there is reasonable evidence, apart from the statement in the cautioned statement of the accused Osoa’epealela, of a preconcert which involved Fuamai and the other accused. The pre-concert, as it appears from the submissions for the appellant, is a common design or agreement between all the accused charged to burn down the house of Eleni Mika. What needs to be noted here is that the evidence adduced by the prosecution to establish the preconcert must be evidence independent of or apart from the incriminating statement whose admissibility being impugned. In addition, such evidence must be reasonable evidence.

The only other items of evidence referred to in the submissions for the appellant under its second ground of appeal, is the evidence given by the prosecution witness Timusu Mika that before the alleged arson, there was a fight between the accused Fuamai and the children of Eleni Mika, and the evidence given by the same witness that before the alleged arson he met the accused Fuamai, Osoa’epealela and Rebecca and Fuamai said to him that they would burn down their house referring to the house of Eleni Mika. Counsel for the appellant in their submissions say that all the accused denied the evidence of the witness Timusu. But even if it is assumed that the accused Fuamai made the threat alleged by the witness Timusu in the presence of the accused Osoa’epealela and Rebecca, there is no evidence that Osoa’epealela and Rebecca agreed with what was said by Fuamai. So there is no reasonable evidence to establish the alleged preconcert between Fuamai and the other accused. The second question of whether the statement in the cautioned statement of Osoa’epealela which incriminates Fuamai was made in furtherance of the alleged preconcert or joint criminal enterprise does not arise given the conclusion I have reached on the first question.

It follows that I agree with the conclusion by the trial Judge that that part of the cautioned statement of the accused Osoa’epealela which incriminates the accused Fuamai is inadmissible as evidence against Fuamai. This is whether such evidence is to be used to prove motive or wilfulness or participation in the alleged arson against Fuamai. The well established principle of the law of evidence that a statement made to the police by one accused which incriminates another accused is not admissible against that other accused applies here. Thus, what the accused Osoa’epealela says in his cautioned statement which incriminates Fuamai is not admissible to add weight to the evidence of the prosecution witness Timusu.

Third ground of appeal

In essence what is alleged under the third ground of appeal is that His Honour the trial Judge erred in law in not finding the accused Osoa’epealela guilty as a principal offender or secondary party to the charge of arson when there is evidence, including an admission by that accused in his cautioned statement made to the police that he threw a molifagu into the house of Eleni Mika while it was already burning. Counsel for the appellant further submit that the trial Judge was entitled to apply to the evidence s.23 of the Crimes Ordinance 1961 which is the parties to offences provision.

Before I come to the essence of this ground of appeal, there are two matters I would like to refer to. The first matter is that certain parts of what was said in these proceedings imply that only a person who is a secondary party to the commission of an offence is a party to that offence. A principal offender on the other hand is not a party. This is not so. A principal offender and a secondary party to the commission of an offence are both parties to that offence. The principal offender is the person who actually commits the offence and is therefore a party under s.23 (1) (a). He is sometimes referred to as the principal party. A secondary party is the person who acts, abets or procures the commission of the offence and is therefore a party under s.23 (1) (b)-(d). Likewise, every person, apart from the principal offender, who participates in the commission of an offence pursuant to s.23 (2) is a secondary party. As stated in Adams on Criminal Law (1992) vol 1 at para CA66.02:

"Section 66 (New Zealand equivalent of s.23 of the Crimes Ordinance "1961) is one of the central provisions of the Act. It specifies the "various ways in which persons can become liable for participating in "the commission of offences. The provision treats all participants as "‘parties’... Section 66 (1) is the primary provision and covers two "general categories of parties: (i) those who actually commit offences – "s.66 (1) (a); and (ii) those who, in one way or another, help or "encourage persons in (i)-s.66 (1) (b)-(d). Section 66(2) provides a "supplementary basis for determining party liability for offences "committed in carrying out a common unlawful purpose."

In para CA 66.04 of the same text, Adams on Criminal Law, the learned authors state:

"[The] expression ‘principal party’ is commonly used to describe the "person who ‘actually commits the offence’ under s.66 (1) (a), while any "other offender under s.66 (1) (b)-(d) or s.66 (2) is called a ‘secondary "party’."

The second matter I wish to refer to is that s.23 is a provision of general application. It applies to every offence unless its application is excluded. An omission by the prosecution to cite s.23 in an information does not exclude its application to the offence charged. Such an omission does not make the information invalid, unless the Court is satisfied there has been a miscarriage of justice: s.170 Criminal Procedure Act 1972. It would, however, be helpful to the Court and to the defence if the prosecution can specify, before or at the commencement of the trial of jointly charged accused, the particular provision or provisions of s.23 it will be relying on during the trial. But an omission by the prosecution to do so does not exclude the application of s.23, or make the trial or the information charging the offence invalid, unless there is a miscarriage of justice.

I come now to the essence of the third ground of appeal, namely, that there is evidence, including an admission made by the accused Osoa’epealela in his cautioned statement made to the police that he threw a molifagu into the house of Eleni Mika when it was already burning, upon which this accused could have been convicted of the alleged arson as a principal offender or secondary party. Counsel for the appellant in their submissions under this ground of appeal rely on the judgment of the New Zealand Court of Appeal in R v Witika [1993] 2 NZLR 424. The essential facts of that case were that W, a woman, was living together with S a man. Living with them was a two year old daughter of W from a different man. W and S were jointly charged, inter alia, with wilful ill-treatment of the two year old child. It was alleged that W and S wilfully ill-treated the child by burning her by placing her in hot water. At the trial in which W and S were both convicted of wilful ill-treatment of the child, each of them claimed that it was the other who burned the child. There was evidence to show that S was aware of two previous occasions on which the child was inflicted serious burns but the evidence does not say who inflicted the burns on those previous occasions. On appeal against conviction by both W and S, the Court said at pp 439-440 in respect of the appeal by S:

"As was acknowledged by the Crown it was not possible to establish "beyond reasonable doubt which of the appellants was responsible for "particular injuries to D. The issue however is whether it was open on "the evidence for the jury to conclude that Smith was proved beyond "reasonable doubt to have been responsible either as a principal offender "or as a party. There is no suggestion of any third person involved. If "Smith was the principal offender as Witika claimed was there "evidence upon which a reasonable jury properly directed could have "found that he was a party to the burning of D by Witika? First it is of "significance that he pleaded guilty to the other offending on the basis "that he had a duty to intervene and did not do so to the extent that his "conduct amounted to intentional encouragement. It was submitted on "his behalf however that though he might have been aware of violence "towards D by Witika the burning was not ill-treatment of a kind he "could be said to have encouraged being quite unlike any of the other ill-"treatment. However that overlooks the evidence of two separate "burning incidents. By reference to a diary entry, the accuracy of which "Smith accepted in his evidence, it was established that he knew of the "earlier burns suffered to the child’s hand and foot... So even if it was "Witika who inflicted the more serious burn shortly before D’s death it "is unarguable that Smith was unaware of the risk to the child of burns "while left in the care of Witika. In this respect the trial Judge’s "direction was similar to that given in respect of Witika. He said:

"Alternatively, Smith if you look at him as the party "and Witika as the wrongdoer, then he too would "have known of the first burn and known that "Witika must have been responsible. He too had "the same duty to ensure that the opportunity was "not available to repeat that action. And again "whatever Witika might say about Smith not "allowing her to get medical help, go to the hospital "whatever, if you’re looking at Smith as a party "why did he not insist on getting help. Again, you "might from those circumstances think that he was "acquiescing and encouraging what she had done if "you took the view that he was the principal "offender."

The Court of Appeal accordingly upheld the verdict of guilty by the jury against Smith and dismissed his appeal against conviction.

Counsel for the appellant point out in their submissions that the approach taken in R v Witika has been adopted in several New Zealand Court of Appeal cases. Be that as it may, the passage I have cited, the first part of which was relied upon by counsel for the appellant, shows that only W and S were involved and if it was S who inflicted the burns on D as claimed by W, then S would be guilty of the offence charged as principal offender. If on the other hand, it was accepted by the jury that it was W who inflicted the burns on D, as S claimed, then on the evidence that was available, S would be guilty as a secondary party for acquiescing and encouraging W to inflict burns on D. In other words, on the evidence that was available, S would either be guilty as a principal offender or as a secondary party depending on which version of the evidence was accepted by the jury. An acquittal was not an option on the evidence. Furthermore, to say that S could have been found guilty as a secondary party to the offence charged if W was found to be the principal offender, implies that on that scenario there was a known principal offender, namely, W. And W was also found guilty by the jury of the offence charged. In essence then, what the Court was saying in the passage cited from R v Witika is that if the jury had decided to accept the evidence of W then S could be found guilty of the offence charged as a principal offender. But if the jury had decided to accept the evidence of S, then W could be found guilty as principal offender and S as a secondary party to the offence committed by W. Under that scenario, there is still a known principal offender who would be W. Thus R v Witika does not meet the conclusion reached by the trial Judge in this case that he could not find the accused guilty of being a secondary party to an alleged arson committed by an unknown principal offender. However, that is not the end of the matter. I would still have to consider whether on the evidence, including the admission by the accused Osoa’epealela in his cautioned statement that he threw a molifagu into the house of Eleni Mika that was already burning, that accused could have been found guilty as a principal offender or secondary party to the offence charged.

As to whether Osoa’epealela could have been found guilty of the alleged arson as a principal offender, his admission to the police is that he threw a molifagu at the house of Eleni Mika after that house had been burning for a long time. The first element of a charge of arson under s.112 of the Crimes Ordinance 1961 which the prosecution has to prove is that the accused "set fire to" a building. The words "set fire to" mean to cause a fire to start. As Osoa’epealela told the police in his cautioned statement that he threw a molifagu at the house of Eleni Mika after it had been burning for a long time, he cannot be said to have "set fire to" the house of Eleni Mika. On this basis, he could not have been found guilty as a principal offender to the alleged arson. I therefore accept the submission by counsel for Osoa’epealela that Osoa’epealela did not "set fire to" the house of Eleni Mika as that house was already burning for a long time before Osoa’epealela threw a molifagu at it.

It would appear from what Osoa’epealela told the police in his cautioned statement that he, the other accused, and other named members of his family acted in concert in setting fire to the house of Eleni Mika. In my view, this evidence is not admissible against the other accused either under the principle that a statement made by an accused to the police out of Court which incriminates a co-accused is not admissible in evidence against the co-accused or the principle enunciated in Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, Ahern v R (1988) 185 CLR 87 and which has been adopted in New Zealand in R v Shelford [1993] 2 NZLR 742; R v Tauhore [1996] NZCA 270; (1997) 14 CRNZ 248. The difficulty here is whether if the statements by Osoa’epealela to the police which tend to show that all the accused and other named members of their family were acting in concert in setting fire to the house of Eleni Mika are not admissible in evidence against the other accused, are those statements still admissible as evidence against Osoa’epealela to show that he was a party to a concert and therefore a principal offender. I have not from my own research found any authority which is directly on this point. I have therefore decided not to express any view on this point or on the issue of whether Osoa’epealela could have been found guilty as a principal offender on the principle of acting in concert.

I turn now to consider whether on the evidence the accused Osoa’epealela should have been found guilty as a secondary party to the alleged arson. In this connection I will also consider the fourth ground of appeal in which it is alleged that His Honour the trial Judge erred in law in finding the accused Osoa’epealela not guilty as a party to a non-existent principal offender to the alleged arson.

Counsel for the appellant in their submissions rely on the judgement of the New Zealand Court of Appeal in R v Renata [1992] 2 NZLR 346 where Cooke P in delivering the judgement of the Court said:

"In R v Nathan [1981] 2 NZLR 473, 475, a case somewhat similar to the present (though murder was charged), Prichard J expressed agreement with a view of counsel then representing the Crown that s.66 (1) is not an appropriate provision for a case where the identity of the principal offender is not established. With respect, we can see no sustainable reason for that as a general proposition. Where the principal offender cannot be identified it must be enough for the purposes of s.66 (1) to prove that each individual accused must have been either the principal offender or a party in one of the other ways covered by that subsection."

In Adams on Criminal Law (1998) 2nd Student edn at para. 66.07, the learned authors state:

"Provided that it can be proved that an offence has been committed, a "secondary party may be convicted even though the principal party has "not been charged with or convicted of the offence, because the "principal party is unknown, dead, or not amenable to prosecution. Thus "in R v Reweti 16/2/95, (A234/94, it was accepted that a secondary party "could be convicted on an indictment charging him with robbery with "persons unknown."

Counsel for the appellant also rely on R v Waaka (2001) (unreported judgement of Hammond J in the High Court delivered on 9 July 2001). In that case, Hammond J said:

"Section 66 [of the Crimes Act 1961] does not create offences. The "underlying proposition of the law is that the fact a crime has been "committed ‘must be established before there can be any question of "criminal guilt of participation it it’, (Russell, Crime, 12th ed by JWC "Turner 128; and see Simester and Brookbanks, Principles of Criminal "Law (1998) 173). This proposition that a man or woman cannot be "guilty of having abetted a crime unless the crime has actually been "committed by the principal offender has been accepted in New Zealand. "See, for instance R v Paterson [1976] 2 NZLR 394 (CA): ‘We think it "clear that an accused person cannot be found guilty of an offence under "[para, 66 (1)(b)] unless it be proved that that offence has been "committed by some person other than himself,’ Richmond P, p 395, "line 50."

Further on in his judgment, Hammond J said:

"Although complicity in the offence necessarily depends on that of the "underlying offence having been committed, it is his conduct, not the "conduct of another, for which the accused is responsible. That is, the "accused is convicted because someone else committed it. It follows "that if no crime occurred, the secondary party cannot be said to have "helped the principal offender to commit it (Glanville Williams, "Criminal Law: The General Part, 2nd edition, p.350). It also follows "from this proposition that the conviction of the accused for complicity "is not necessarily dependent upon the prior or simultaneous conviction "of a principal offender-the accused’s complicity may be able to be "established by showing the offence was committed by someone, by "other means."

In view of the passages from R v Renaa, R v Waaka and Adams on Criminal Law which were relied upon by counsel for the appellant in their submissions, I accept that as a matter of principle a secondary party should not necessarily be acquitted of a charge simply because the principal offender has not been charged or convicted of the offence because he is non-existent (dead), unknown or not amenable to prosecution.

The evidence that was adduced at the trial was difficult and complex due to contradictions, inconsistencies and vagueness in several respects as pointed out by the trial Judge in his decision. The only real item of evidence which implicates Osoa’epealela as a secondary party to the commission of the alleged arson is what is contained in his cautioned statement made to the police. In that statement he told the police that at the material time he put six small bottles which contained petrol (molifagu) inside a rubbish bag. Each bottle also contained a piece of cloth. He then picked up a box of matches and ran with the keg and stood under a breadfruit tree about fifteen metres from the house which must mean the house of Eleni Mika. He then lighted the molifagu but he did not know which of his aunties who were present took the molifagu and threw them at the house of Eleni Mika. Osoa’epealela also told the police in his statement that his three named aunties, his two named sisters, and other members of his family were all present at the scene of this incident at that time. Osoa’epealela does not appear to have denied his statement to the police.

What is said in the cautioned statement by Osoa’epealela clearly suggests that the house of Eleni Mika was set on fire with the molifagu he brought to the scene of the alleged arson and then lighted with a box of matches. It is not clear who actually threw the molifagu that set fire to the house of Eleni Mika. However, the reasonable inference to the drawn is that it must have been one or more of the relatives of Osoa’epealela whom he said were present that threw the molifagu at the house of Eleni Mika. Whoever was/were responsible for throwing the molifagu at the house of Eleni Mika that set it on fire would be the principal offender/s. Applying the relevant principles stated in R v Renata, R v Waaka and Adams on Criminal Law (1998) para 66.07, Osoa’epealela would be a secondary party to the commission of the alleged offence. I therefore accept the argument by counsel for the appellant that Osoa’epealela should have been found guilty of the alleged arson as a secondary party even if the principal offender/s is or are unknown because that is not clear from the evidence. What is clear, of course, is that there must have been a principal offender and whoever he or she was, must have been aided or abetted by Osoa’epealela in the commission of the alleged offence. This does not conclude the question of whether an extension should be granted to the appellant to appeal out of time against Osoa’epealela. I will deal later with the submissions by counsel for Osoa’epealela on lapse of time.

Fourth ground of appeal

The fourth ground of appeal that His Honour the trial Judge erred in law in not finding the accused Osoa’epealela guilty as a secondary party in the absence of a principal offender has already been dealt with under the third ground of appeal.

Fifth ground of appeal

Essentially, what is alleged in the fifth ground of appeal is that, given what Osoa’epealela told the police in his cautioned statement that his family had planned the burning of the house of Eleni Mika because of the bad things the family of Eleni Mika had done to his family, he should have been convicted of arson on the basis of his family’s preconceived plan. The appellant’s submissions in support of its fourth ground of appeal are relied upon under this ground of appeal.

As I understand this ground of appeal, it relies on the principle of acting in concert in order to make Osoa’epealela guilty as a party. As explained by McHugh J in Osland v R [1998] HCA 75; (1998) 197 CLR 316 at pp.342-343, the principle of acting in concert may apply where two or more persons are jointly charged with the commission of an offence to make each of them liable as a principal offender. The difficulty here is that the other accused in this case by denying any involvement in the commission of the alleged offence were, in effect, also denying what Osoa’epealela told the police in his statement about a preconceived plan by his family to burn the house of Eleni Mika. And Osoa’epealela as it appears from the notes of evidence of the trial Judge did not give evidence. The only evidence of any preconceived plan is in the cautioned statement of Osoa’epealela and that was not admissible against the other accused. Whether what is contained in the cautioned statement of Osoa’epealela is admissible against himself, though not admissible against the other accused, is a matter on which I have found no direct authority. On the evidence, I am not persuaded that Osoa’epealela should have been found guilty of arson as a principal offender on the basis of the principle of acting in concert or joint criminal enterprise.

Sixth ground of appeal

In relation to the sixth ground of appeal, I reiterate what I have already said that an out of Court statement made by one accused which incriminates another accused is not admissible as evidence against that accused: Blackstone’s Criminal Practice (1993) para 17.33, p.2062; Cross on Evidence 7th ed para 7.13; Police v Faisaovale et al [1970-1979] WSLR 118, 119. Under that principle, anything said by Osoa’epealela in his cautioned statement to the police which incriminates any of the other accused would not be admissible as evidence against any of the other accused. I am also of the view that the statement of Osoa’epealela to the police about a preconceived plan by his family to burn the house of Eleni MIka would not be admissible against the other accused under the principle enunciated in Tripodi v R [1961] HCA 22; (1961) 104 CLR 1, at pp 6-7; Ahern v R [1988] HCA 39; (1988) 165 CLR 87 at p.99 and adopted in the New Zealand cases of R v Shelford [1993] 2 NZLR 742, 745; R v Tauhare [1996] NZCA 270; (1997) 14 CRNZ 248, 250. I have already explained the application of this principle and need not repeat it here. It follows that there is no evidence on which the other accused could have been found guilty of the alleged offence as principal offenders pursuant to the principle of acting in concert or joint criminal enterprise.

Seventh ground of appeal

In relation to the seventh ground of appeal that the trial Judge should have taken judicial notice of the verdict of the assessors on the trial of the accused Fuamai Tuise on charge of murder, I respectfully do not see the relevance of that to the trial for arson. In any event, there is nothing to show that the Judge was aware of such a verdict in order to be able to take judicial notice of it.

Eighth ground of appeal

This ground of appeal has been abandoned.

Ninth ground of appeal

It is submitted for the appellant under this ground of appeal that even if the statement made by Osoa’epealela to the police about a preconceived plan by his family to burn down the house of Eleni Mika was not admissible as evidence against the accused Fuamai Tuise and Moasina Lipine with whom he is jointly charged, such statement by Osoa’epealela should be admissible against the accused Rebecca Shultz who was jointly tried with him though not jointly charged. Counsel for Osoa’epealela in his submissions objects to this way of admitting an incriminating statement by one accused against another accused with whom he is jointly tried, but not jointly charged, for the same offence which arouse from the same factual circumstances.

The point raised by counsel for the appellant does not appear to be covered by any authority. Certainly there is no Samoan authority on it. On principle, I accept that where two or more accused are tried together for the same offence which arose from the same factual circumstances, then even if they are not jointly charged, an out of Court statement made by one accused to the police which incriminates another accused with whom he is jointly tried, should not be admissible as evidence against the other accused. To decide otherwise, would be to allow way the prosecution to circumvent in an artificial way the established rule against the admissibility of a statement made by one accused which incriminates another accused. I therefore rule that, as a matter of principle, the statement by Osoa’epealela about a preconceived plan by his family to burn the house of Eleni Mika is also not admissible against the accused Rebecca Shultz with whom he is jointly tried (though not jointly charged) for the same offence which arose from the same factual circumstances.

From the above discussion, I have come to the conclusion that the grounds of appeal against the accused Fuamai Tuise, Rebecca Schultz and Moasina Ripine have no merits. Leave to extend time to appeal against the acquittal of those accused/respondents is therefore denied. That leaves only the accused Osoa’epealela.

Lapse of time

As stated in R v Knight [1998] 1 NZLR 583, 587 by Richardson P and in R v Leger (2001) (unreported judgement of the New Zealand Court of Appeal delivered by Blanchard J on 17 May 2001), the test for deciding whether to grant leave to appeal out of time is the interests of justice in the particular case. The interest of society in the finality of litigation, which is the reason for a time limit, is a powerful consideration in determining whether to extend time. Relevant matters to be considered include the strength of the proposed appeal, the length of the delay, the reasons for it, and the impact on the administration of justice: R v Leger (2001) per Blanchard J.

I have already concluded in considering the third and the fourth grounds of appeal that the accused/respondent Osoa’epealela should have been found guilty as a secondary party to the alleged arson. But there are still other relevant matters to be considered in the exercise of my discretion whether to grant leave to the appellant to appeal out of time.

The history of this matter is set out in the memorandum by counsel for the appellant and the joint memorandum of counsel for the respondents which have been referred to earlier in this judgement. Essentially, the trial was held on 29-31 March 2005 and 1 April 2005. The trial Judge then delivered his decision on 10 May 2005 by reading it out in the presence of the police prosecutor and counsel for the accused. All the accused were acquitted of the charge of arson.

On 24 May 2005, the prosecution filed an application for extension of time to appeal out of time as the 14 days period allowed for an appeal was to expire on that day. The grounds in support of that application were that the written decision of the trial Judge was still pending and it was in the interest of justice that leave to appeal out of time should be granted. In this connection, counsel for Osoa’epealela submit in reliance on the New Zealand case of The Solicitor-General of New Zealand v Steinmetz (2004) (judgment of the Court of Appeal delivered by Hansen J on 15 March 2004) that the prosecution could have filed a pro forma appeal before the expiry of the 14 days appeal period not only to alert counsel for the accused that an appeal was likely but also of the possible grounds of appeal. After all, as counsel submit, the prosecutor was present when the Judge read out his decision on 10 May 2005 and was therefore aware of that decision. Counsel for the appellant’s response is that its application for extension of time filed on 24 May 2005 should have made known to the respondents than an appeal would be filed.

On 21 July 2005, the written decision of the trial Judge was made available to the prosecution and the application for extension of time to appeal was set down for hearing on 29 September 2005. On that day, the prosecution sought a further adjournment as it was not ready to proceed because they were awaiting the notes of evidence of the trial Judge. On 28 October 2005, the prosecution filed a notice of appeal and the appeal record. There then followed a series of adjournments which are mentioned and explained in the memoranda filed by counsel. Finally, this matter was heard by this Court on 2 February 2007.

As it appears from the memoranda of counsel, neither the accused Osoa’epealela nor his counsel was responsible for any of the adjournments in this matter. Counsel for the appellant make the same claim on behalf of the appellant. However, there is something about the grounds of appeal that I want to refer to.

The grounds of appeal, insofar as they relate to Osoa’epealela, are primarily based on what Osoa’epealela said to the police in his cautioned statement. Osoa’epealela did not give evidence at the trial. So there is nothing in the notes of evidence by the trial Judge about any evidence given by Osoa’epealela at the trial. The cautioned statement by Osoa’epealela was produced by the prosecution during the trial but the prosecution must still have got a copy of it in their file. That file has always been with the prosecution before the trial and since the trial and the time when the Judge delivered his decision on 10 May 2005.

As I have just stated, the grounds of appeal relating to Osoa’epealela are based almost exclusively on the cautioned statement by Osoa’epealela. But that cautioned statement has always been with the prosecution. The only other document referred to in the grounds of appeal as far as the accused Osoa’epealela is concerned is the written decision of the trial Judge where His Honour found this accused not guilty of the alleged arson. But the prosecution must have been aware of that when the Judge read out his decision in Court on 10 Mary 2005. There is also no reference in the grounds of appeal to the notes of evidence to show that the appellant is placing any reliance on those notes as far as the accused Osoa’epealela is concerned. All of this raise the question of whether the written decision of the trial Judge and his notes of evidence were really necessary for the appellant to formulate its appeal against Osoa’epealela which is really based on the cautioned statement of Osoa’epealela. I am of the view that it was not. Here, I do not consider the first ground of appeal to be relevant to the view I have expressed because that ground of appeal is really concerned with an issue of law whether "acting in concert" is an element of the crime of arson which the prosecution had to prove.

It also appears to me that the real basis of the appellant’s grounds of appeal against the other accused is also the cautioned statement by Osoa’epealela. It is true that there are references in the grounds of appeal to the conclusions and a few of the findings made by His Honour in his decision but the prosecution must have been aware of those (or had a good idea of what they were) when the decision was read out in Court on 10 May 2005.

I have therefore come to the conclusion that given the effluxion of time and the other reasons I have given, leave to appeal out of time against the accused/respondent Osoa’epealela should also be denied notwithstanding that he should have been found guilty as a secondary party to the alleged arson. The interest of society in the finality of litigation is a powerful consideration to be taken into account in the exercise of the Court’s discretion. In passing, the accused Osoa’epealela was a 16 year old student at the time of the alleged arson and is apparently the youngest of the respondents.

Conclusion

Leave to extend time to appeal out of time in respect of all respondents is denied.

I wish to note that this must have been a difficult case for the prosecution. As the trial Judge pointed out, the evidence in this case was difficult and complex. His Honour could have also said with justification that the relevant law is also quite difficult and complex.

I wish to thank counsel for the appellant and counsel for Osoa’epealela for their helpful citations of relevant New Zealand cases which are not available in Samoa.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for the appellant
Toa Law for respondent Fuamai Tuise
Fepulea’i & Schuster for respondent Rebecca Schultz
Meredith & Ainuu for respondent Osoa’epealela