Court of Appeal issues Jonathan Crichton ruling

The Court of Appeal has dismissed an appeal by the Offi ce of the Attorney General against the Court’s decision in the hearing of murder accused, Jonathan Crichton.

The main ground of appeal was that Justice Lesatele Rapi Vaai had erred in law by overturning the guilty verdict of the assessors and substituting a not guilty verdict.

In response, Crichton’s lawyer, Rosella Viane Papali’i, argued that the Offi ce of the A.G. had no general right to appeal the acquittal and that they could only appeal it if they show there was an error of law.

Ms. Papali’i also argued that there was no such error as Justice Lesatele had followed the correct principles of law. Precious Chang represented the A.G. Presiding were Justice Fisher, Justice Hammond and Justice Blanchard. This is the Court of Appeal’s ruling in full:

JUDGMENT OF THE COURT [1] In this appeal the Attorney- General invites the Court to revisit what it said in Attorney-General v Sefo [2009] WSCA 7 concerning the role of a trial judge under s100 of the Criminal Procedure Act 1972.

That section provides:

If the presiding Judge is of the opinion that the defendant should not be convicted, or if less than 3 out of 4 or 4 out of 5, as the case may be, of the assessors concur in the defendant’s conviction, the defendant shall be acquitted.

[2] Mr Crichton was tried before Vaai J and four assessors on a charge of murder. The assessors unanimously found him guilty. But Vaai J reversed that verdict under sl00 and substituted a verdict of not guilty.

[3] The only right given to the Attorney-General to appeal against Vaai J’s decision is that found in s164L (4) which says:

(4) Where on the trial of a person on any charge before a Judge sitting with Assessors that person is acquitted of that charge, the Attorney-General, on the ground that an error of law has occurred, may appeal to the Court of Appeal against that acquittal.

[4] It is not a general right of appeal. The Attorney must show that the judge has made error of law: see Attorney-General v Kolio [2008] WSCA 7. The Attorney rightly does not contend that Vaai J made any factual assessment that was simply not open to him, ie that his conclusion that there was a reasonable doubt about Mr Crichton’s guilt was such that, in the words of Lord Radcliffe in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36, “no person acting judicially and properly instructed as to the relevant law could have come to the determination.” Nor is it said that Vaai J failed to give adequate reasons, or failed to draw an inference that was the only one available on unchallenged primary facts or, except in one respect, made any conventional error of law. What counsel for the Attorney- General submits is that, in following the approach to s100 laid down in Sefo, to which Vaai J referred in his ruling, the judge erred in legal principle because Sefo was incorrectly decided in that respect.

[5] Where a litigant seeks to have this Court depart from one of its previous decisions, that intention ought to be plainly signalled in its notice of appeal. That was not done in the present case. Nor was any argument in the submissions of the Attorney directed to the question of the circumstances in which this Court should not follow one of its earlier decisions. It is fortunate therefore that we were in any event unpersuaded that Sefo was wrong and that the trial judge in following it unwittingly erred in law.

[6] In Sefo counsel for the Attorney argued, as in the present case, that the task of the trial judge under s100 is restricted to determining whether the assessors’ verdict was open to them. On the other hand, the respondent (the acquitted person) submitted, successfully, that the section requires the judge to form his own opinion as to whether the accused is guilty. This Court noted (at 6) that the words of the section (“if the presiding judge is of the opinion that the defendant should not be convicted”) read alone contained no constraint on how the judge should form the opinion beyond the constitutional presumption that it should be based on admissible evidence and conform with the conventional rules as to onus and standard of proof.

[7] The Court referred to ss99 — 101 and then said The combined effect of the above sections, when read together, is to strengthen the interpretation that the trial judge must undertake the very process required by the assessors: to make a personal decision whether the charge has been proved, and, if not, to acquit. In the case of difference as to acquittal the opinion of the trial judge prevails.

[8] It pointed out that the argument for the Attorney would require words to be read into s100 and that there were no policy considerations justifying such a course. With its relatively small population Samoa had understandably elected against the more cumbersome process of other common law states of trial by a jury of 12. But a majority of 3 of 4 assessors was not a large number to provide a definite decision in a serious case. The Court concluded: We have no doubt that the power to veto a conviction, conferred on the judge by s100, was enacted deliberately as a balance to the relatively small number of assessors. Section 100 operates as a safeguard in cases where the dynamic of a small group might disadvantage an accused in a different trial. The safeguard is not a reflection on assessors but acknowledgement of the central tenet of criminal justice requiring proof beyond reasonable doubt.

The test of ‘opinion’ is limited to acquittal and is constrained by judicial not personal responsibility.

It cannot be exercised by whim or caprice and must be grounded on evidence or its absence.

[9] For the Attorney, Ms Chang submitted to us that the Court in Sefo had erred in failing to adhere to what she said it had laid down in Ufiufi v Police [2008] WSCA 12 in which it said: Parliament has also afforded an additional ‘protective’ mechanism in its enactment of s100. That section permits the trial judge to prevent an erroneous verdict. If there is risk of a ‘perverse verdict’ the protection of trial by judge alone is preserved.

[10] Counsel emphasised the reference to a perverse verdict and argued that the jurisdiction of a trial judge under s100 is limited to such a (rare) situation. Confronted with the Ufiufi Court’s use also of the expression “an erroneous verdict,” Ms Chang said that in context that could only have been meant to capture the same idea as a perverse verdict. She also called in aid s347 (3) of the New Zealand Crimes Act 1961 which reads: (3) The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.

[11] A discharge under that subsection is deemed by subsection (4) to be an acquittal. Counsel submitted that it is a similar provision to the Samoan s100 and similarly does not provide any guidance on how it is to be exercised, yet the New Zealand courts have laid down principles to be followed.

It has been said, in particular, in R v Jeffs [1978] 1 NZLR 441 (CA) that it would be possible after a guilty verdict to apply s347 (3) in a case in which there was no evidence at all against the accused but that, where there is evidence, the appropriate remedy is an appeal on the ground of an unreasonable verdict, not a discharge under s347.

[12] Ms Chang expressed concern that the approach taken to s100 in Sefo gives the trial judge a rile in relation to fact-finding which is inconsistent with the standard direction the judge always gives to the assessors that they are the finder of fact and that, if the judge appears to say something about the facts which differs from their view, they should ignore what has been said and should apply their own view on that matter. Since Sefo and the present case, counsel also suggested, the view of the assessors might even be affected by their knowledge that their verdict might immediately and publicly be overturned by the trial judge. The Court in Sefo had not, it was said, considered this wider context and the impact on the constitutional role of the assessors.

[13] As we have already indicated, we are not at all convinced that Sefo was wrong. Although the judgment is succinctly expressed, it is clear that the Court was looking at s100 in the context of other relevant provisions of the legislation. What the section requires of the judge if the assessors return a guilty verdict is quite plain. The judge is under a duty in that circumstance to form an opinion as to whether the defendant should not be convicted and, if so, the judge must acquit the defendant. It is not merely a requirement that the judge should consider whether a reasonable panel of assessors could have reached a guilty verdict, but of whether the judge himself holds the opinion that guilt has not been proven to the requisite standard.

If the judge’s opinion is that it has not been proven the judge must intervene. He is not permitted to stand to one side and leave the overturning of the assessors’ decision to the appeal court. But, as the Sefo Court emphasised, the judge’s opinion must be based on the admissible evidence and the conventional onus and standard of proof.

[14] We do not agree that Sefo marked a departure from what was said in passing in Ufiufi.

We consider that in that obiter remark the Court was using the expression “an erroneous verdict” in its ordinary meaning, namely, a verdict that is wrong in the opinion of the trial judge. Such a verdict can be regarded as one that should not have been made by the assessors and can pejoratively be described as perverse.

[15] Nor do we think that the application of s100 should be guided by New Zealand jurisprudence under s347 (3). The latter provision imposes no duty on a judge. He or she is given a discretion which is normally exercised in favour of an acquittal only prior to the delivery of a verdict. In New Zealand a verdict is given by a jury of 12 or a large majority of such a jury. There is in that setting not the need for the protective function of s100 that has been seen as desirable in Samoa, where there is a much smaller group of fact-finders. It is understandable that where the decision is made by a larger number and the judge has a discretion, the New Zealand jurisprudence encourages the judge not to intervene after a verdict and to leave matters to take their course on any appeal. But in Samoa the position is different and s100 requires the judge to form his own opinion. There is no discretion given.

[16] We do not see this as in conflict with the standard direction to which Ms Chang referred, nor as putting pressure on the assessors. They will be aware that any decision by them to acquit cannot be overruled by the judge, and they also have the comfort of knowing that an experienced professional decision-maker will review any guilty decision and thereby reduce the risk that someone who ought to be found not guilty will be convicted as a result of their deliberations. Furthermore, any concern they may have about seeing their decision of guilty publicly overturned will be lessened by knowledge that Samoan judges in fact very infrequently overrule a verdict s100. Ms Chang submitted, without supplying any figures, that the practice has since Sefo become more common. But from what we were told it would seem that it is fair to say that it remains an infrequent event. If it does raise concerns in the community it is always possible for Parliament to give further consideration to s100.

[17] For these reasons the appeal is dismissed.

Honourable Justice Fisher Honourable Justice Hammond Honourable Justice Blanchard