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Police v Aiga [1987] SPLawRp 5; [1987] SPLR 416 (12 June 1987)

[1987] S.P.L.R. 416

SUPREME COURT OF WESTERN SAMOA

POLICE

v.

APELU AIGA AND OTHERS

Supreme Court
Bathgate J.
12 June 1987

Criminal law - murder - causation - coincidence of mens rea and actus reus - whether serious bodily injury is probable consequence of prosecution of common purpose - whether case for defendants to answer - Crimes Ordinance 1961, sections 63 and 23.

Criminal law and practice - proceedings commenced by information no information charging murder shall be tried with any other information - five informations laid and withdrawn - whether particulars of place(s) where assaults occurred must be included in the information - Criminal Procedure Act 1972 section 16(3).

The four defendants, being constables, were charged with the murder of Douglas Lees. Lees had been a passenger in a white "pick-up" truck driven by Tausagi. The pick-up truck allegedly failed to stop when signalled to do so by the constables. A chase on the cross-island road followed, with two police vehicles in pursuit. The chase concluded at Tiavi, and both the driver, Tausagi, and Lees were allegedly pulled from their truck and assaulted, by punches and kicks. Tausagi and Lees were then taken back toward Apia on two different vehicles. It was alleged that Lees was beaten further on the back seat of one police vehicle, not only with feet and fists, but also with a fire extinguisher. Lees was taken directly to the National Hospital and subsequently died.

Because of the difficulties of laying a single information capturing multiple assaults by four persons at several places, five informations were laid and withdrawn before the sixth information went to trial before a judge and five assessors. Prosecution evidence concluded after some twenty two days of hearing evidence from sixteen witnesses. Counsel for the four defendants then moved that there was no case for the defendants to answer and that the defendants be discharged.

HELD: The motion was granted. The defendants were discharged without conviction, the discharge being deemed to be an acquittal.

(1) The responsibility for the correctness of an information (or indictment) lies in every case upon counsel for the prosecution not the Court: l. 160. R. v. Smith [1950] 2 All E.R. 679; (1950) 34 Cr.App.R. 168 applied.

(2) No information charging murder will be heard with any other information: l. 130. Section 31(1) Criminal Procedure Act 1972.

(3) Where the whole gist of the prosecution's case against four defendants was the common purpose of at least two of the defendants, the Court could not direct the assessors that one defendant alone could be found guilty: l. 270.

(4) Where multiple assaults are the cause of death, and where multiple assaults occur at several places, and where it is impossible to say which single assault at which place was the cause of death, it is essential that all the alleged assaults, in all the alleged places be covered in the information: l 390.

(5) The power to amend an information (on indictment) is discretionary in the Court. The longer the interval between arraignment and amendment, the more likely that the defendant will be prejudiced in his or her defence: l. 460. R v. Johal [1973] Q.B. 475; [1972] 3 W.L.R. 210; [1972] 2 All E.R. 449; 56 Cr.App.R. 348 and R v. Johnston [1974] 2 N.Z.L.R 660.

(6) Where an information charges that death was caused by an omission (assuming that an omission can equal the intent to cause bodily injury), the information must specify the relevant places where the omissions took place: l.530.

(7) Section 170 of the Criminal Procedure Act 1972, which provides that proceedings shall not be questioned for want of form, cannot save an information which is substantially defective, and which prejudiced the defendants in their defence: l. 550.

Other cases referred to in judgment:

Police v. Moli (1979) [1970-1979] Western Samoa Law Reports 224

Legislation referred to in judgment:

Criminal Procedure Act 1972, sections 16, 104 and 170
Crimes Ordinance 1961 sections 23 and 63

Other sources referred to in judgment:

Garrow and Caldwell, Criminal Law in New Zealand (6th ed.)

EDITOR'S OBSERVATION: The Criminal Procedure Act, Part III, provides that assessors shall sit in the Supreme Court on the trial of any person charged with an offence punishable by death or imprisonment for more than five years. The accused may be tried by judge alone, except where the charge is treason, murder. manslaughter, or rape. The number of assessors shall be four except in cases where the charge is treason or murder.

Section 66 of the Crimes Ordinance 1961 provides that the mandatory penalty imposed upon conviction for murder is death.

Article 5(1) of the Constitution provides as follows: "No person shall be deprived of his life intentionally, except on the execution of a sentence of a court following his conviction of an offence for which this penalty is provided by Act."

In practice, in Western Samoa, death sentences are commuted to life imprisonment by the Head of State under Article 110 of the Constitution acting "in his discretion after consultation with such Minister as the Prime Minister shall designate from time to time."

In the instant case, the four discharged defendants were disciplined and discharged by the police and convicted in a subsequent trial on lesser charges relating to grievous bodily harm.

Section 31(1) of the Criminal Procedure Act provides:

Any number of informations for any offences against a defendant may be tried together:

Provided that no information charging murder shall be tried with any other information.

Section 39(2) of the Criminal Procedure Act provides:

On any information charging murder, if the evidence proves manslaughter but does not prove murder, the Court may find the accused not guilty of murder but guilty of manslaughter, but shall not on that information, except in accordance with section 72 of the Crimes Ordinance 1961 (relating to infanticide), find the defendant guilty of any other offence.

Sections 16(1) and (3) of the Criminal Procedure Act provide:

(1) Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.

(3) The particulars shall include the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which it was committed.

T. Malifa and S. Chan Mow for the Prosecution
CJ Nelson for the first defendant
L.S. Kamu for the second defendant
R. Drake for the third defendant
F.M. Sapolu for the fourth defendant

BATHGATE J.

Judgment:

The trial of the four defendants on the charge of murder commenced in this Court on 27 April 1987, over six weeks ago. The information charges Apelu Aiga, Pelepesite Venu, Ponifasio Ioane and Pene Pati in that at Tiavi on 14 March 1987, with a common intention to prosecute one or more of the unlawful purposes mentioned in (a)(b)(c) therein, caused the death of Douglas Lees at the National Hospital at Motootua on 20 March 1987, and they did thereby commit the crime of murder, first by causing bodily injuries to Douglas Lees knowing the said injury was likely to cause death and were reckless whether death ensued or not; secondly by omitting without lawful excuse to perform legal duties as police officers, namely the prevention of infliction of bodily injury by each other on Douglas Lees, knowing that the injury resulting from such omission was likely to cause death and being reckless whether death ensued or not, and thirdly by a combination of those two.

The first day or more of the hearing was concerned with questions relating to the informations charging the defendants. Having regard to the constraints of the Criminal Procedure Act and the particular circumstances of this case, there have been very difficult questions indeed posed for the prosecution to frame an information to cover the case before the Court. The difficulties arising from the Criminal Procedure Act 1972 include the provisions of section 31(1), that no information charging murder will be heard with any other information, in respect of which I ruled there could be only one information charging murder. The difficulties of the facts and circumstances are that there are four defendants allegedly involved in assaults on Douglas Lees, as a result of which it is alleged, Douglas Lees died. There is no evidence as to which assault, blow, act or omission, if any, of the four defendants, may have caused such death, or whether if such did, it was a combination of them. All that the evidence showed was that as a result of the incident in which the defendants, or some of them were involved, Douglas Lees was admitted to the National Hospital suffering severe injuries, apparently from the injuries he received as a result of the assaults allegedly from the defendants, and it is alleged that as a result of those, he subsequently died, six days after he was first admitted to the hospital, and after surgical operations on him. It is claimed as a result of those injuries, his death resulted. That is not for me to decide, that as a matter for the gentlemen assessors. But I mention these circumstances as they led to numerous difficulties in framing a suitable and acceptable information, and amendments. The circumstances I have mentioned, and because of the legislation, the difficulties experienced by the prosecution resulted in a number of informations being laid and later withdrawn. There was the information of 21 March 1987, laid, charging murder by the defendants, then withdrawn; on 26 March another such information was laid and later withdrawn. On 14 April two other such informations were laid and later withdrawn, another one on 16 April which was laid, but subsequently amended and then finally withdrawn, and there was the present information of 27 April. This information after it was laid, has also been amended. That is the information now before the Court.

Common to all the informations and particularly the sixth and final one, of 27 April 1987, was that they charge the defendants with offences, of acts and/or omissions at Tiavi.

The Court, in the form of the Judge, was consulted by prosecution counsel as to the form of the information. As previously stated, and I reiterate now, the self evident position, and as well I cite from the authority of the English Court of Criminal Appeal in R v. Smith [1950] 2 All E.R. 679, 682; (1950) 34 Cr. App. R. 168, 183:

the responsibility for the correctness of an indictment [in Western Samoa an information] lies in every case upon counsel for the prosecution and not upon the court.

With regard to the information now before the Court I expressed some doubt yesterday as to the alternative charge, of the "omitting", because it had been clearly established that one of the essential elements to a charge brought under section 63(b) Crimes Ordinance for murder is that the offender means to cause the person killed bodily injury, and that is not specifically stated. Counsel did not then take that matter up and I leave it aside for the time being; but there are, I think obvious difficulties in claiming "by omitting" is the same as "means to cause," bodily injury.

In any event on 28 April 1987, the bearing commenced and the trial proceeded in hearing for some twenty two days. There have been delays caused by illness of assessors and counsel and the anniversary week celebrations. Evidence for the prosecution concluded on 10 June 1987, after sixteen witnesses had given their evidence. On 11 June, that was yesterday, I heard submissions from counsel for each of the four defendants and counsel for the prosecution on the defence submission that there was no case for the defendants to answer. In other words, the prosecution evidence in relation to the charge has not established a case against the defendants, in that a reasonable jury, or reasonable assessors, properly directed, could not properly convict the defendants as charged. Such a situation may arise from the lack of evidence as to the offence as charged having been committed by the defendants. In that case, it is clear that the judge must stop the case after all the evidence for the prosecution has been heard. That is a matter of common sense because the defendants have no onus on them. The criminal law in Western Samoa is that the onus of proof is on the prosecution to establish the guilt of the defendants beyond reasonable doubt, and at no time is the onus or the obligation on the defendants to prove their innocence. Also included in the submissions of there being no case to answer, is the situation where an essential element of the offence charged is rot covered by the evidence, or the situation where the evidence is so unreliable and inconsistent that no jury properly directed could reasonably rely upon it. Also a judge may dismiss the case if a verdict on the charge would be entirely against the weight of the evidence. The judge's obligations and duties in this situation are legal ones, and he must put aside or not be influenced in any way by any disgust or revulsion of the facts, or moral indignation as to the circumstances, or refuse to act because the view may be that a person may escape conviction because of so called technicalities of the law are contrary to, or appear contrary to, the merits of the case. The judge's obligations as I say are clear and must be exercised in certain events. As I say, the judge may stop the case if the evidence was so inconsistent and so unreliable that no jury or assessors properly directed could convict.

The submissions I heard from the defence were many and varied. They included matters of the medical evidence, common intention, unreliability of a number of witnesses, a witness changing his evidence from one day to the next, and to the non involvement of a number of the defendants in the offence charged. All of those matters in my respectful view are ones properly left to the gentlemen assessors to deal with and not for the judge as they involve sifting and weighing of the evidence from their having seen and heard the witnesses, judging and assessing them, their reliability, character, truthfulness and their making inferences from the established facts. All of these matters are for the gentlemen assessors as men of good standing and common sense should properly and adequately deal with. Without going into the reasons, which are not appropriate 'for me to give at this stage, as I intimated yesterday and I now so find that on all issues but one there is in my view sufficient evidence to go to the assessors for determination of the charge. Also the evidence in totality was not so unreliable or lacking in consistency or weight that no reasonable assessors could not reach a proper verdict upon it of guilty or not guilty, with proper and I might add, very full and somewhat laborious directions, because of the many complexities associated with the case involving common intention, intention for murder, causation and the like. Although I have reached a decision on all those matters but one, namely, they should be left to the assessors to decide on, that is not to say that the state has, or has had at any stage a strong legal case against the defendants.

Through no fault of the police or the state, the legal difficulties in sheeting home a charge of murder against the four accused are substantial because of the law and the circumstances of events involved. Although I leave or would leave all issues but one with the assessors, I would have been obliged, as matter of law, to direct the assessors that the evidence of a principal witness, Liliolelagi, perhaps through no fault of his, could be most unreliable, and it would be unsafe to act on that evidence alone. I would also be obliged to advise the assessors that the evidence of another principal witness, Kamilo, might also be unsafe to act upon unless it was corroborated in its material aspects by other independent evidence. Whether Lili's evidence would be considered as independent and of sufficient weight for corroboration would be doubtful. Kamilo's evidence may be of doubt. That is because in my view on the facts of the alternative charge, Kamilo must be treated as an accomplice of the defendants, at least, in respect of the commission or the alleged omission for the lesser charge of manslaughter. Further difficulties arose; and there was no objection by counsel, relating to the fact that no charge has been brought against him in respect of his involvement, he had been granted no immunity, and his evidence must therefore, legally, be treated with suspicion and at least in need of corroboration. Also I would have been obliged to direct the assessors that having regard to the totality of events alleged, concerning the assaults on Douglas Lees, it would be most unsafe to consider three of the four defendants, Apelu, Pene and especially Ponifasio as parties pursuant to section 23 (2) to any assault or omission committed by Pelepesite in the white police car on its return to Apia from Tiavi, because that alleged assault was different in character and its nature, to that alleged by the four when they were involved at Tiavi. There, outside the vehicles, they allegedly used hands and feet, there were no weapons, although it was said they threw Tausagi against a vehicle and the two fell on the road when pulled from their vehicle, but I think they might well be of a different kind and nature than the use of a weapon as was that allegedly used by Pelepesite, the exhibit 4, fire extinguisher, in the car. That was said to be used to assault Douglas in the car. I do not find and I have not found that these assaults were altogether different because that would be a matter for the gentlemen assessors to consider and be directed upon, but I would be obliged, as I have said to direct that it would be unsafe for them to consider the three other than Pelepesite had been involved in the assaults that he may have committed on Lees in the car, unless the commission of those alleged assaults in the car were or ought to be known to the other three as a probable consequence of the prosecution of their common purpose, which seemed to exclude weapons of any kind. It is extremely difficult to see how Pelepesite's alleged use of the fire extinguisher as a weapon to beat Douglas in the car would have been a probable consequence of the prosecution of their common intention, the alleged apparent purpose of which was to beat up Douglas as described in the evidence, without the use of weapons, on the road. That was done without any kind of weapon, as such, perhaps, for obvious reasons. So if the case went to the assessors, I would have been obliged to warn them of the dangers of finding on the probable consequences of a common purpose when an alleged consequence may have been different in kind and degree to that common purpose already prosecuted and I could not of course direct that Pelepesite alone could be found guilty, because the whole gist of the prosecution case against the defendants was that of common purpose by at least more than one person because of the number of assaults and not knowing which, if any, and by whom, may have caused death. So if the case went to the assessors, I would be obliged to warn them against conviction of the four because of these legal difficulties. The defence is very apparent with the situation as to areas of alleged assaults being outside the vehicles and alleged assaults inside the vehicle, where one were without weapons, and apparently to the common knowledge of all or some, and the other inside the car, were with a weapon and not in the presence of any other defendant. At the same time, it was necessary for the prosecution to cover all the defendants in the information because it was impossible to say who or which defendant, if any, or what act or omission caused the death.

The fact that there were these complexities and evidential difficulties in the prosecution case is not a reason for taking the information away from the assessors. In this case, in my view because the case may have difficult questions of causation, intention, common intention and other difficult questions of law and fact to be considered is not a reason why a person should be dismissed from a murder charge. The consequences of such would be disastrous, because the more cunning the offender, the more complex and difficult he might make his offence, if it were in the knowledge because of the complexities and difficulties he would get off without even having his case go to the assessors for a verdict. He could then go to court and say it is too complex and difficult for the assessors to decide on -I am a free man! In my view the gentlemen assessors are in all cases involving serious offences, especially a murder charge, no matter how complex and difficult it may seem, the proper persons to consider the question of guilt or not, with proper directions from the judge. They are well able to grapple with the number of issues.

I must also mention other matters, as well as causation and common intention, that is pursuant to section 23(1)(a)(b) and (c) of the Crime Ordinance, I would have been obliged to have directed the assessors on the question of parties - aiders and abettors, and principal parties and as well as the parties, by common intention to section 23(2). There is the other difficulty of course of having to direct the assessors as to the three elements of murder, as contained in section 63(b) of the Crime Ordinance, and that those three elements must be established at the time of any act or omission that may have or did cause the death of the deceased or was a probable consequence of the acts and intention of the common intention, for which see Garrow and Caldwell, Criminal Law in New Zealand 6th ed. pp. 140 and 73 and following.

I now come to the question of the place of the offence; that was one of the issues raised and argued by the defendants in their submissions that there was no case to answer. The evidence covers alleged assaults by two, three or four defendants outside of the two police vehicles at Tiavi and inside a police vehicle from Tiavi to Motootua while driven by Kamilo. I think the argument as to the place or situation as between Tiavi and Afiamalu is an argument in semantics. Every one knew and has always known where on the Cross Island road the vehicles stopped and the place outside of the vehicles the alleged assaults occurred. It is clear from the evidence that those assaults were at Tiavi, sufficient for that description for the purpose of section 16(1) and (3) of the Criminal Procedure Act 1972 in the information.

Now the evidence, as I have already mentioned, alleges also, inside as opposed to outside of vehicle assaults. The alleged sequence of events was generally, at Tiavi Tausagi was pulled out of the white pick-up he had been driving - out onto the road where he was punched and kicked and then thrown into or put into the black police vehicle. The three vehicles were stationary, facing south, on the Cross Island Road at Tiavi, the black police vehicle was first, then the white pick-up driven by Tausagi was second, and behind them the white police vehicle was third in line. While or after Tausagi was assaulted on the road, it was alleged that Douglas was then pulled out of the passenger seat of the white pick-up and he then was assaulted, kicked and punched, he was put in the white police vehicle and put in the back. All that occurred at Tiavi. Then the vehicles were about to leave, white police vehicle allegedly had Kamilo as the driver, he had never been out of the vehicle, Lilioluagi with him, and in the back, Douglas Lees. Outside the vehicles, the kicking and punching, all of the alleged assaults by the defendants, had then ceased. When Tausagi was taken into the black vehicle, and some defendants, it is alleged that the assaulting started again, or continued in the black vehicle, and some defendants, it is alleged that the assaulting started again, or continued in the black vehicle on Tausagi, which allegedly had the driver and Apelu in the front, or perhaps Apelu and Pene in the rear. That alleged assaulting was seen outside or in the vicinity of the old market, on Beach road in Apia, obviously many miles away from Tiavi. Ponifasio drove the pick-up back to Apia. When the white vehicle was leaving Tiavi, it is alleged that Pelepesite swung into or jumped into the rear of that vehicle, where Douglas Lees was lying or was seated upon the floor and Pelepesite then travelled in that vehicle. On entering into the back of the white vehicle Pelepesite was said to have kicked or swung onto Douglas with his feet and pushed Lees back onto the floor of the vehicle. Perhaps that was consistent with the outside assaults and the alleged treatment of Tausagi.

Then Lili in examination in chief at p. 205 and thereafter said that after the white vehicle had turned on the Cross Island Road, to return to Apia, Pelepesite who had got into the back where Lees was and asked him, Lili, for the box spanner underneath the seat. Lili said that there was nothing there. Lili said to Pelepesite that the only thing there was the fire extinguisher and it was fixed. It is alleged that Pelepesite then bent over and took the fire extinguisher and he started hitting Douglas Lees with it. The fire extinguisher was exhibit 4, which allegedly had blood on it when it was taken out of the vehicle, after the incident. While the white police vehicle was travelling from Tiavi to Apia and to the police station, away from Tiavi, allegedly Pelepesite continued to assault Lees with the fire extinguisher during that journey. At one stage, Lili claimed that Pelepesite concentrated on striking Douglas on the knees with the comment that he Douglas, would be in a push chair. That may be confirmed by Douglas feeling pain in his knees in the hospital and Lili allegedly suggested to Betty, Douglas's wife to get an x-ray of Douglas's knee. In any event, according to Lili, that alleged beating by Pelepesite with the fire extinguisher continued down the Cross Island Road onwards until close to the National Hospital. At p. 215 Lili said the assault by Pelepesite on Douglas with the fire extinguisher continued from Tiavi to Motootua. His recanted evidence was to the same effect - 234. Then, one knows from other evidence, Lili got out at the hospital.

Kamilo at p. 251 said that on the way from Tiavi he allegedly heard what Lili had described namely, Pelepesite assaulting Lees. He knew, he said, that Pelepesite took the fire extinguisher and used it. He described in time, these assaults in the vehicle on the way down from Tiavi as about 5 minutes, at 3-4 minute intervals. It is clear beyond any doubt at all that the alleged assaults by Pelepesite in the white vehicle continued for some miles away from Tiavi, down towards Apia, the fire extinguisher was used and as I said allegedly had blood on it when Kamilo saw it soon after the incident.

Now the alleged assaults in the vehicle by Pelepesite while travelling on the road clearly happened and continued well outside and away from Tiavi. They may have started there, and they may have continued from there, but the places of the assaults according to the evidence have a distance of some villages, or a distance of some miles outside of Tiavi, including such places as Vailima and others on the way down on the road from Tiavi to at least near the National Hospital.

It is not possible to identify any one assault meaning a separate or individual intentional application of force on Douglas as causing his death, if any assault or assaults did. If death resulted from a lacerated liver, or spleen, or as a consequence of that or those, or from the head injuries, or both or all, it is not possible to say on the evidence when, where or by whom such assault or injury occurred. It may have been at Tiavi or it may have been miles away, villages away, from Tiavi. It may have been the assaults outside the vehicles or it may have been the assaults inside the vehicle. It is impossible to say where the cause of death occurred, if it was from assaults. All that can be said on the evidence is that Douglas Lees was assaulted or allegedly assaulted at Tiavi and that he was assaulted, or that allegedly assaults continued, between Tiavi and Motootua, I consider quite a distance from Tiavi. It is impossible to say where, if at all, the fatal injury occurred. It is therefore most important that all the assaults are covered in the information in the circumstances. If only some are covered in the information, then in the context of the whole case, it is impossible to say whether those (some) assaults caused death or not. So the place of the alleged offence in my respectful view is of crucial importance in this case. If one place where the assaults occurred or continued were not covered in the information, then it cannot comply with section 16(1) and (3) of the Criminal Procedure Act.

With regard to this situation, the defendants, firstly Mr Nelson, claimed there were two separate incidents. One at Tiavi and one in the white police car coming back from Tiavi. He claimed that I must dismiss the case against the defendants now because of the alleged two separate incidents and that both could not have been part, he submitted, of the common intention or purpose alleged which related he said to one incident, that at Tiavi ,only. He claimed that the defendants could not be liable or responsible for the actions of Pelepesite afterwards. But, as I have already mentioned, I think that is a matter for the gentlemen assessors to determine, as is the nature of the alleged common intention or purpose of the defendants and whether Pelepesite's later actions came within the scope of that or not. That is an exercise of fact, on proper directions, for which in my opinion the gentlemen assessors are best equipped to handle and must decide, not the judge.

The other point of Mr Nelson's submissions was that the alleged assaults at Tiavi only were included in the charge and in the circumstances a reasonable jury properly directed according to the charge could only consider the assaults that occurred at Tiavi, and as those could not be shown to be the cause of death, no such jury, could conclude, they alone caused death; then the charge must be dismissed.

No reasonable jury or assessors properly directed could on the evidence convict on the charge; Mr Kamu said that the prosecution must identify the one or more acts that caused the death of Douglas Lees, or if that was not done, all of the acts of assaults must be accompanied by the necessary intent for murder. In his submissions relating to the claim that there was no case to answer he said that the only relevant assaults so far as the charge was concerned were those at Tiavi, those were the only ones included in the information, so that the other assaults outside Tiavi, and the intention of the defendants then, was outside the charge. It could not succeed, he said. Mrs Drake referred to the requirements of section 6(1) and (3) of the Criminal Procedure Act and she submitted that the defendants' whole case had been prepared and conducted on the basis that the alleged assaults relevant to the charge were those at Tiavi and nowhere else. She said the cross-examination for the defendant was on that basis also.

Mr Sapolu in his submissions mentioned that for every offence there must be an actus rea and a mens rea and these must coexist at the one time. I do not think that is always necessary, but I accept that is the position for murder under section 63(b) of the Crimes Ordinance. He claimed that the charge included only part of the actus reus, the acts at Tiavi, whereas the total relevant acts were those at Tiavi and those outside of Tiavi, and it could not be said which of the total assaults were the relevant ones. He said the charge must be dismissed because part of the actus rea, that is the assaults outside Tiavi, were not included in the charge. He also claimed that he had prepared and cross examined on the basis of the offence charged, the only relevant assaults were those up at Tiavi and not elsewhere. He submitted that no prima facie case based on the charge as presented had been established as no reasonable assessors properly directed could say, having regard to the burden of proof on the prosecution that the fatal acts or assaults occurred at Tiavi. He referred to the case of Police v. Moli (1979) [1970-1979] Western Samoa Law Reports 224, which establishes, he said, that if the prosecution could not prove which of the two persons committed the fatal blow, without a common intent it was impossible to convict either one of murder. In the prosecution case he said the same principle was established - it was impossible for the prosecution to prove which of two places at Tiavi or outside of Tiavi, the fatal blow occurred so for similar reasons the case should be dismissed or the defendants discharged.

I should add here that I myself took up with counsel, somewhat incidentally, the question of the place of the alleged offence. On 19 May 1987 in Chambers I mentioned the place of the alleged offence and made some remarks about the obvious fact that the alleged assaults may also have occurred outside of Tiavi. Mr Malifa for the prosecution submitted that the prosecution had considered that situation and that it had considered applying for an amendment but they were waiting until the evidence of Kamilo had been given. Mr Malifa then sought amendment of the place stated in the information to "Tiavi and elsewhere". I heard submissions from counsel in Chambers on that proposed amendment and for the reasons then given I refused the amendment at that stage. Because the prosecution was presenting and knew best its case, counsel had considered the question of the place of the alleged of fence and were waiting for Kamilo's evidence, and because of the fact that the prosecution have the control and conduct of their own case, and because I considered then after hearing submissions for the defendant they may have been prejudiced by the amendment being sought, I ruled that there would be no amendment allowed at that stage. No application for amendment has since been made for reasons best known to the prosecution but for reasons I do not know. I find that difficult to understand. Section 36 of the Criminal Procedure Act contains wide powers for amendment, without express restrictions such as those contained in the New Zealand and English legislation. The power of amendment however is a discretionary power and like most legal discretions it must be exercised judicially, with attention given to relevant matters and not to irrelevant considerations. The relevant factors to be considered in the exercise of a discretion on whether to amend or not are well established in a number of cases on amendment, I mention only two. The first is the New Zealand Court of Appeal decision in R. v. Johnston [1974] 2 N.Z.L.R. 660 in which the Court found useful, and followed, the English Court of Appeal decision of R. v. Johal [1975] Q.B. 475; [1972] 3 W.L.R. 210; [1972] 2 All E.R. 449; 56 Cr.App.R. 348 and at p. 481 (Q.B.); 214-215 (W.L.R.); 452 (All E.R.); 354 (Cr.App.R.) the statement:

... that amendment to an indictment during the course of trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely is it that injustice will be caused, and in every case in which amendment is sought it is essential to consider with great care whether the accused person will be prejudiced thereby.

This must be even more so in the case of a capital offence as exists in Western Samoa at the present. I reiterate that no application for amendment has been made by the prosecution since my earlier ruling.

The state answered the submissions by the defendants as to there being no case to answer in a number of ways. The first submission of Mr Malifa was that the defendants had not in any way, questioned the alternative count, of the defendants omitting to perform their duty, or for their failure to stop the assaults. For that reason alone, he said, the case must go to the assessors. Now, that is not correct in my respectful view. The alternative charge reads: "omitting without lawful excuse to perform the legal duties as police officers, namely the prevention of infliction of bodily injury by each other on Douglas Lees knowing that the injury resulting from such omission was likely to cause death and being reckless whether death ensued or not." Putting aside for the moment the fact that that specific charge does not refer to the first essential ingredient of section 63(b), it is clear that if there was an omission, that omission or those omissions must cover the whole of the relevant events or incidences when the alleged assaults took place, otherwise, they would not be included in the common purpose and they would not therefore be within the ambit of the case alleged by the prosecution. The charge is still omitting to prevent the infliction of bodily injury at Tiavi with the same problem of leaving out essentials of all relevant pleas.

Also, it is clear from the case cited in Garrow & Caldwell, Criminal Law in New Zealand 6th ed. p. 167 - that the essential ingredients of section 63(b), that is intention to cause bodily injury, knowing it likely to cause death and being reckless whether death ensued or not all must of course exist at the time of the alleged act causing death. And in this case, if omitting to prevent bodily injury could amount to meaning to cause bodily injury, so the three essential elements were present at the relevant time the omission must have continued in time to cover all the assaults that may have been causative of death. It is clear therefore that to cover all relevant acts the alleged omission must have continued at Tiavi and from Tiavi for the whole distance from Tiavi, when the alleged incident by Pelepesite was continuing. Take the case of Apelu, for instance, he also had left Tiavi in the black car, so far as his involvement in the second incident or continuing incident with Pelepesite was concerned, any omission by him was no longer at Tiavi. His vehicle left first from Tiavi, and I refer to Kamilo's evidence p. 251 and the driver of the black car pp. 301 and 302. It was clear Apelu was in the front seat next to the driver. Any relevant omission was or continued away from Tiavi.

So that, all that what counsel for the defendants meant specifically referred to omissions as well as acts in my respectful view. Their submissions covered both acts and omissions which must have continued to cover all the acts or omissions that may have caused death, occurred. All the acts or omissions are relevant to that question, not only at Tiavi but also those that in my view occurred well away from Tiavi to Motootua.

Mr Malifa said that there were not two separate assaults but one continuous event that started and continued at and from Tiavi. That may well be so, so far as the common purpose and intention is concerned. That is a matter for the gentlemen assessors. But it is manifestly and patently not so, so far as the places of the offence are concerned, or the places of the assaults are concerned.

Mrs Drake said that the assaults were at different places. As I have already mentioned the place or location of this offence in this particular case is crucial and because only one of the places has been or is mentioned, the defence have relied upon the information as very important to their defence. Mrs Drake relied upon section 16 of the Criminal Procedure Act; the information specified one place of the offence whereas for a conviction other places than that one in the information had to be considered. As they were not included in the information the defendants could not be convicted as charged. Compliance with section 16(1) was essential, and that included place - section 16(3). The place of the offence was in this case an essential consideration and the defendants had relied on the place stated in the information.

Finally, Mr Malifa said section 170 of the Criminal Procedure Act applied, if necessary. That had not been mentioned by counsel for the defendants. If that section does apply to remedy any substantive defect in the information or proceedings, and not only procedural defects, I could not in my view use that section in the present case to find that a reasonable jury properly directed could convict the defendants according to the charge laid against them. I find that a reasonable jury properly directed could not convict the defendants according to that charge laid against them. The charge or the information excludes an essential element of the evidence necessary for a conviction, namely assaults or omissions outside Tiavi. I cannot in my view possible apply that section on the submission now before me of there being no case to answer because I do not consider it was the intention of the Act or of the section to be applied in those circumstances. On the charge as laid, there could be no conviction because the evidence discloses relevant acts or omissions outside of those within the charge. The charge does not conform to the proof. That is not a matter of my finding or holding that the information is invalid or the proceedings invalid by reason only of any defect, irregularity, omission of want of form. I find there is no case to answer because the charge as laid has not been made out, something different has, which includes act or omissions outside of Tiavi. It may be the section, or something like it, has been applied in such circumstances, if not in this century, then in the last century, but my main reason why in my view section 170 should not be applied is because, in my view, to apply it now would result in a miscarriage of justice.

However, by saying the information that covers only one of the essential places of the offence should somehow be read to cover all the essential places of the offence, would in my view, be manifestly unjust now, particularly when one has regard to the history of this case. The case has now been in progress as I have mentioned for some weeks, after a number of informations were laid and withdrawn, sixteen witnesses have given evidence, have been cross-examined, many days of hearing have passed, statements of evidence as well as the evidence have always shown that the said alleged incidents or assaults in the car occurred. It must be clear that the prosecution has intentionally based its case on and included only assaults or omissions at Tiavi and has deliberately chosen not to include the others. The defendants have relied upon the information as finally laid and proceeded on. A miscarriage of justice in my view would be that six weeks after the trial started, after a number of different informations were laid, withdrawn, and new ones laid and amended, with the knowledge of when the alleged incidents occurred, assaults and omissions, without having pressed for amendment since the first application came about from my observation, and was refused at that stage, and now the prosecution having closed its case, it would be oppressive in my view it would be a miscarriage of justice to now rely on section 170 for any failure of the present case, and to present another and different charge as to the place of the alleged offence on a murder charge against all the defendants. There is now no case for the assessors or no case to answer. The only remedy would have been an amendment but that is not sought and the time for that in my view has now passed, because of my findings on the miscarriage of justice issue. That being the case, pursuant to section 104(3) of the Criminal Procedure Act, and because no reasonable jury or assessors properly directed could convict the defendants as charged, I direct that the defendants are discharged.

Reported by: T.M.