Amoe v Director of Public Prosecutions

After the appellant's wife returned home, they discussed what had happened and decided that they should both go and find the deceased. Mrs Amoe persuaded her cousin, Stanwick Tsiode, who owned a car and lived nearby, to drive her and the appellant to the Ijuw district where they apparently expected to find the deceased. When the appellant came out of the house to get into Tsiode's car he was carrying a speargun. At about 10 am the appellant saw a yellow van at a service station. He had seen the deceased in the van earlier that day. The appellant got Tsiode to stop the car. He went to the van and spoke to the driver who told him that the deceased was in the back of the van. The appellant went to Tsiode's car, got the speargun and then went to the back of the van which he opened. When he did so, the deceased jumped out at him. The appellant backed away. After a short chase, the deceased caught the appellant. A struggle ensued. During the struggle, the deceased momentarily got possession of the speargun. But when they broke apart, the appellant had the gun. The deceased asked him "not to play around with the gun". The learned trial judge accepted the evidence of a witness who swore that the appellant said to the deceased at this stage: "you wounded my eye. You want me to shoot you with the speargun?" After further words were exchanged, the appellant fired the gun. The spear penetrated the stomach of the deceased. After he fell to the ground, the appellant hit him on the head with the gun at least three times. The appellant then returned to the car and was driven away. The deceased died in hospital later that day.

After the appellant had been charged with murder, he told an Inspector of Police that he did not mean to kill the deceased and that he was too drunk to know what he was doing. At the trial, he claimed that the shooting was accidental.

It is convenient to begin with the appellant's contention that the verdict of murder was unsafe or unsatisfactory. Various findings of fact made by the trial judge were challenged on the ground that either there was no express evidence to support them or they were contrary to the evidence in the appellant's case. But there is no substance in this challenge. Although many of the relevant findings were the result of inferences drawn from the evidence, the evidence clearly supported those findings. The principal basis of the contention that the verdict was unsafe or unsatisfactory, however, was the claim that the learned judge had misunderstood the evidence concerning the mechanism by which the speargun was fired and, as a result, had wrongly rejected the appellant's contention that the speargun had been fired accidentally. But the contention that the verdict was unsafe or unsatisfactory raises the question whether that contention takes too narrow a view of this Court's powers in an appeal against a conviction by a judge sitting without a jury brought pursuant to the Nauru (High Court Appeals) Act.

Section 5 of that Act provides that appeals lie to this Court from the Supreme Court of Nauru "in cases where the Agreement provides that such appeals are to lie". The Agreement is defined by s 3 to mean the agreement between the Government of Australia and the Government of the Republic of Nauru relating to appeals to the High Court of Australia from the Supreme Court of Nauru that was signed on 6 September 1976. Article 1 of the Agreement gives an appeal as of right to a convicted person against conviction or sentence imposed in the exercise of the original jurisdiction of the Supreme Court. Section 8 of the Act provides:

The High Court in the exercise of its appellate jurisdiction under section 5 may affirm, reverse or modify the judgment, decree, order or sentence appealed from and may give such judgment, make such order or decree or impose such sentence as ought to have been given, made or imposed in the first instance or remit the case for re-determination by the court of first instance, by way of a new trial or rehearing, in accordance with the directions of the High Court.

In an appeal under s 5 against a conviction by a judge, sitting without a jury, the considerations which limit the right of an appellate court to interfere with the findings of a jury have no application: in such an appeal this Court is empowered to "give such judgment, make such order or decree or impose such sentence as ought to have been given, made or imposed in the first instance". Consequently, "it is for [this] Court to form its own judgment of the facts so far as it is able to do so": see Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J (at 107). In hearing such an appeal, the Court is not limited to those grounds for setting aside a conviction which are contained in the common form criminal appeal legislation found in each of the Australian States. The power to set aside a verdict on the ground that it is unsafe or unsatisfactory derives from the power conferred by that legislation to set aside a verdict on the ground that there has been a miscarriage of justice. But under that legislation, whatever views the members of the court of criminal appeal may have as to the correctness of a jury's verdict, they cannot set aside the verdict on the ground that it is unsafe or unsatisfactory if, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: Chamberlain (No 2) (1984) 153 CLR 521. In exercising its powers under s 8, however, this Court is not so constrained. The Court must, of course, act on the principle that, unless the trial judge has failed to use or has palpably misused his or her advantage in seeing and hearing the witnesses, it "ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case": SS Hontestroom v SS Sagaporack [1927] AC 37 at 47. But where any question arises as to the proper inference to be drawn from the facts, it is the duty of this Court to form an independent judgment on that question, since the Court "is in as good a position to decide [the question] as the trial judge": Powell and Wife v Streatham Manor Nursing Home [1935] AC 243 at 267.

After examining the evidence and the exhibits, we think that counsel for the appellant was correct in submitting that the learned trial judge misunderstood the evidence and the courtroom demonstration concerning the firing mechanism of the speargun. In his judgment, the learned judge said:

I was [sic] turn to the defence that the shooting of the deceased was accidental. Having considered the evidence, I am satisfied that this defence cannot stand. The accused claimed he retreated from the deceased who was advancing on him, there was no struggle, he told the deceased not to advance but to look at his injured eye. He then told the Court - "while I was holding the gun in my hand I looked at the safety lock. I want to see if it was locked. It was not clear to me if it was. I looked again, touched the trigger and the spear shot out". A demonstration of loading the spear and the trigger device was given. The accused suggested the spear could not have been properly loaded. I do not believe the accused. I have no doubt he himself locked the gun before he left his home. In cross-examination, when asked "where did you put the spear in the gun?" He replied "at home". That clearly establishes to me that he had handled his gun in his house and activated it there. I have no doubt that at the time of the loading of the gun, the accused would examine it and if the safety lock was not applied he would have seen it and secured it. That would be the normal and reasonable procedure to be adopted in such circumstances. I am satisfied he knew he was taking the gun in the car in which were his wife, child and cousin. He would ensure the gun was safe. Furthermore his evidence as to the effect of the trigger application when the spear is not properly pushed home does not help him in view of his evidence, given in chief, that the spear "would always slip out if it were not properly fitted". The accused had the gun for a considerable period of time before it was fired. If the spear had not been properly fitted I have no doubt it would have fallen out in the course of his prior handling of it. Examining the defence from another angle, I find that the story of the accused in the course of his confrontation with the deceased diverting his attention and thinking to the gun to consider whether the safety catch was applied just does not stand up to the test of credibility. I also consider it significant that there was no mention by the accused to the police of this accidental discharge of the gun. In the result I am completely satisfied the firing of the gun by the accused was deliberate. It was no accident. In making this finding I am, of course, assuming that the accused was capable of knowing what he was doing.

It seems to us that the learned judge misunderstood the effect of the evidence when he said that, if the spear had not been properly fitted, it would have fallen out. That statement was correct. But it did not bear on the question whether the gun was fired accidentally. The speargun worked by the operation of physical forces on the spear from thick rubber bands which were attached to the gun and to slots in the spear. The spear was held back against this tension by the trigger being inserted into a slot in the firing mechanism which was itself slotted into the spear. When the trigger was pulled, the mechanism moved down and released that part of it which was slotted into the spear. After loading, the trigger could be in one of two positions. It could be in a half-locked position - the first position - which required little movement of the trigger to release the spear or it could be in the fully-locked position where the trigger could be pulled back beyond the trigger guard without releasing the spear. The notes taken by the judge at the trial record that, in his evidence, the appellant said:

I examine trigger of the spear gun. The prong at side is for the spring. The safety catch was near trigger but it is not there now. If spear not pushed in hard trigger would relieve easily that is when spear in first position. Trigger when I touched it only triggered a little. I could not see properly whether safety catch on or off because of my face and I was drunk. I pressed the trigger. I gave a little touch to see if it locked. That is what I normally do. If it is locked you can hold the trigger with your fingers and nothing will happen. When gun in good condition could tell how spear fitted. It would always slip out if it not fitted in properly.

It seems to us that, when the appellant said that, if "it is locked you can hold the trigger with your fingers and nothing will happen", he was referring to the fully-locked position of the trigger. Likewise, it seems to us that, when he said that, if the spear is not pushed in hard, "trigger would relieve easily", he was referring to the half-locked position. Thus, the effect of his evidence would seem to be that, in accordance with his normal practice, he gave the trigger "a little touch" to see whether it was fully locked and did not intend to fire the spear. This interpretation is confirmed by his statement a little later when he said: "I did not intend when pressed trigger gun would fire. I did not mean to let gun shoot - accident." The earlier reference in his evidence to the spear always slipping out "if it not fitted in properly" could only be a reference to what happened if the spear was not locked into either the half-locked or the fully-locked position. If it was in either of those positions, the physical forces applied to the spear from the thick rubber bands prevented the spear from falling out. Consequently, although the statement of the appellant concerning the spear always slipping out was correct, it had no application or relevance to the incident at the service station, and the learned judge erred in thinking that it did. The appellant was not disputing that the spear was loaded. His claim was that he believed that the gun was in the fully-locked position, that he gave it "a little touch" and that it fired because, unbeknown to him, it was in the half-locked position. The learned judge was in error in stating that the "accused suggested the spear could not have been properly loaded". That was not the effect of his evidence. The distinction which the appellant was seeking to make was not between a gun that was loaded and a gun that was not properly loaded. The distinction which he was seeking to make was between the gun loaded in the half-locked or first position and the gun loaded in the fully-locked position.

Nevertheless, we do not think that the learned judge erred in rejecting the "defence" of accidental discharge of the gun. As he pointed out, the appellant's story "just does not stand up to the test of credibility". There cannot be the slightest doubt, as the learned judge found, that the appellant went willingly on the search for the deceased and that the "purpose of the pursuit was retribution". Moreover, it is significant that, contrary to the appellant's case that it was his wife who wished to confront the deceased, it was the appellant who went to the van, went back to Tsiode's car and got the speargun, and then went and opened the back of the van. Of course, this course of conduct is not inconsistent with the accidental discharge of the gun. But it points more to the deliberate firing of the gun than to its accidental discharge. When it is coupled with the appellant's motive to revenge himself and the vicious beating to the head which the appellant gave the deceased after the latter fell to the ground with the spear in his stomach, it is difficult to have any doubt that the gun was fired deliberately. But any lingering doubt that might have existed about the matter is laid to rest by the learned judge's finding that the appellant said to the deceased: "you wounded my eye. You want me to shoot you with the speargun?"

On the whole of the evidence, the prosecution satisfactorily proved beyond reasonable doubt that the appellant intentionally fired the spear at the deceased.

Questions concerning the character and convictions of the appellant

Counsel for the appellant contended that, contrary to the provisions of s 106(e) of the Criminal Procedure Act 1972 Nauru, the prosecutor had asked questions of the appellant tending to show that he was of bad character or had been convicted or charged with offences other than the offence for which he was on trial. Section 106(e) provides that:

an accused shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

(ii) he has personally or by his barrister and solicitor or pleader asked questions of any witness with a view to establishing his own good character or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution.

The appellant gave evidence at his trial. In cross-examination, he denied that he had been before a court for under-age drinking. It was then put to him that in September 1984 he had been charged with consuming intoxicating liquor on the deceased's premises and fined. The appellant said that he could not remember. He was also asked: "Remember being arrested in December 1983?" But the notes of evidence do not reveal any answer to that question.

Counsel for the appellant contended that the cross-examination had proceeded on the basis that the appellant had put character in issue as the result of evidence in chief given by his wife on his behalf. The judge's notes of evidence record her as saying:

I asked him why he wanted spear gun. He said he needed it for protection. I understand that to mean only one against many. I do not believe he had to use it. It's not like him to do that. He does not get into fights. He has never had fight with Linus [the deceased] before. I do not believe he intended to harm Linus. I do not believe he capable of harming Linus. This evidence did not expressly assert that the appellant was of good character, but it did assert that he was a man who did not get into fights and, by inference, that it was out of character for him to have intended to harm the deceased. For the purpose of s 106(e), good character can be raised by "evidence given or elicited on behalf of the accused from himself or others that his character or antecedents are such that it is unlikely that he would do such an act as is charged against him": Woolcott Forbes (1944) 44 SR (NSW) 333 at 340. On its face, the evidence of Mrs Amoe seems to have put the good character of the appellant in issue and, thereby, to have entitled the prosecution to ask questions of him concerning charges and convictions other than the charge on which he was being tried. But such questions could only be asked if the evidence of Mrs Amoe was the product of questions asked of her by the appellant or his counsel "with a view to establishing his own good character". It is well established that evidence of good character volunteered by a witness is not sufficient to entitle the prosecution to lead evidence concerning an accused person's bad character: see Redd [1923] 1 KB 104 at 107. Counsel for the appellant also contended that, even if the questions put to the appellant were admissible, the learned judge had failed to exercise his discretion to exclude them.

Unfortunately, the only record of the evidence given at the trial is that recorded in the judge's notes of evidence, and much of what is recorded in those notes as the evidence of a witness does not purport to be a verbatim account of questions asked and answers given. To the contrary, most of the evidence in chief is recorded in narrative form and is clearly the product of the learned judge's summary of the questions and answers. In this context, counsel claimed that this Court could not be satisfied that the evidence of Mrs Amoe was given "in response to a deliberate raising of character by the appellant's counsel" as opposed to having been volunteered by her.

However, it is difficult to accept that the evidence of Mrs Amoe was volunteered or was unresponsive to questions asked by counsel for the appellant. The relevant evidence, as recorded in the judge's notes, appears to be a summary of questions and answers rather than evidence volunteered by the witness independently of questions asked by counsel. Moreover, it is unlikely that the learned judge would have recorded (at least without some explanation) answers that were unresponsive to counsel's questions. In the circumstances, we think that the proper conclusion to draw is that the evidence of Mrs Amoe was given in response to questions which were asked "with a view to establishing [the] good character" of the appellant. Consequently, despite the opening words of s 106(e), those questions which tended to show that the appellant had been charged or convicted of offences other than the charge on which he was being tried were admissible.

Furthermore, as counsel for the Republic of Nauru pointed out, the admissibility of the questions can also be justified on the ground that the "nature or conduct of the defence [was] such as to involve imputations on the character of witnesses for the prosecution". In his evidence in chief, the appellant in referring to the evidence of a prosecution witness said that he "was telling a lie under oath". Earlier, when that witness was giving evidence, counsel for the appellant asked him: "When did you first think up that story?" This caused the learned judge to intervene and say to counsel: "You are saying to the witness that he is making up that story." A little later in the cross-examination, counsel for the appellant said to the witness: "I put it to you that just about everything you have told us is made up and that you didn't remember anything at all." No doubt the evidence of the appellant that the witness "was telling a lie under oath" was no more than "an emphatic mode of denial" (Rouse [1904] 1 KB 184 at 187) and did not involve any imputation on the prosecution witness. But the questions or statements of the appellant's counsel are in another category. They went beyond a mere denial of the prosecution case. They constituted an assertion that the evidence which the witness had given had been fabricated. In Curwood (1944) 69 CLR 561 at 569, Latham CJ said:

If an accused person relies for his defence upon a contention or suggestion that the witnesses for the prosecution are not mistaken but are deliberately (and therefore almost necessarily maliciously) lying, then, according to the ordinary use of language, he by his defence imputes bad character to those witnesses. It has been held on several occasions that such conduct of a defence involves imputations on the character of witnesses so as to let in against the accused evidence of bad character or to expose him to cross-examination as to his own character. In the same case, Dixon J pointed out (at 587-588): the distinction is clearly maintained between denying facts forming part of the Crown case, notwithstanding that injurious implications, inferences, or deductions, must follow, and making a defence the nature or conduct of which involves imputations on character.

In the present case, the conduct of the defence involved an allegation that a principal prosecution witness had invented his evidence. That necessarily involved an imputation on his character and entitled the prosecution to cross-examine the appellant as to his having been charged or convicted of offences other than that with which he was charged.

However, the question remains as to whether the learned trial judge erred in failing to exercise his discretion against permitting the questions to be asked. No objection was taken at the trial to the asking of the questions. Consequently, the learned judge gave no ruling on the issue. If the trial of the appellant had been before a jury, a sound exercise of judicial discretion would probably have required the rejection of the questions. The "sole criterion" governing the exercise of the discretion is "what fairness requires in the circumstances of the particular case": Phillips (1985) 159 CLR 45 at 58. The questions put to the appellant threw little, if any, light on his credibility or credit. On the other hand, in a case where the killing of the deceased arose out of a drinking binge, the questions might have been seen as unfairly prejudicing the appellant by tending to paint him as a person of dissolute and irresponsible character. Thus, the prejudice to the appellant in a trial before a jury might have been seen as outweighing the probative effect of the evidence.

But the trial of the appellant was before a judge without a jury and different considerations apply. Section 106(e) gives effect to "the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused": Dawson (1961) 106 CLR 1, per Dixon CJ (at 16). So jealously does the paragraph guard the thesis that it precludes the asking of questions of the relevant kind rather than making the answers to questions inadmissible in evidence. Yet before a judge can exercise his or her discretion to exclude such questions, he or she must hear them. If a judge, trying a case without a jury, comes to the conclusion that the prejudicial effect of an answer would outweigh its probative value, must he or she disqualify him or herself? The answer must surely be that it is only in the most exceptional case that a judge is required to disqualify him or herself because a prejudicial question has been asked or answered. In a trial before a judge without a jury, prejudicial questions and answers are perceived as having a different effect from that which, by the common law tradition, they are supposed to have in a trial by jury. In Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 102, Mason J pointed out:

Obviously judges are more capable than jurors of putting aside prejudicial matter, including public prejudice. Objectivity and independence are the qualities which judges are expected to bring to judicial determination. Consequently, a judge trying a criminal case without a jury is not required to disqualify him or herself after concluding that the prejudicial effect of a question or its answer outweighs its probative value and rejecting the question. If, in a trial without a jury, a question is asked in breach of s 106(e) or, if admissible under the exception to that paragraph, is excluded as the result of the exercise of the judge's discretion, ordinarily no miscarriage of justice will be perceived as having occurred because the judge has subsequently convicted the accused.

This does not mean, of course, that a conviction by a judge sitting without a jury can never be set aside on the ground that prejudicial questions or answers were put before the judge. From time to time, cases occur where the nature of the prejudicial material and its relationship with the issues which have to be decided is such that the appearance of impartiality is necessarily destroyed by a judge deciding the case after hearing or reading such material. In such a case, the prudent judge will disqualify him or herself from further hearing the matter, irrespective of the degree of confidence that the judge has in his or her ability to determine the case uninfluenced by the prejudicial material. If the judge fails to do so, it will fall to the appellate court to set aside any resulting conviction.

But the present case is far removed from such cases. The appellant made no admission concerning the truth of the allegations contained in the relevant questions. Nor in his judgment did the learned judge make any comment on either the questions or the appellant's answers to them. While it is the asking of the question, and not its answer, which s 106(e) forbids, the contents of the questions were not such as to lead to any doubt about the judge's ability to exclude them from consideration of the issues which he was trying. The questions contained, of course, a degree of circumstantial detail, and it may be that, if he had thought about the matter, the learned judge might have speculated that the contents of the questions were more likely to be true than untrue. But since the truth of the questions was not conceded by the appellant, there is no ground whatever for concluding that the mere fact of their being asked affected or could have affected the learned judge's decision to convict the appellant. Consequently, even if the judge should, if asked, have decided to exclude the questions in the exercise of his discretion, it is apparent that the fact that they were asked did not give rise to any miscarriage of justice.

Counsel for the appellant contended that the trial judge erred in failing to consider whether the appellant was guilty of the lesser offence of manslaughter by criminal negligence. However, the learned judge found:

I am satisfied that he intended to inflict grievous bodily harm; he knew the harm he would and did inflict on the deceased by spearing him in the stomach and the subsequent assault on him would cause bodily injury to him of such a nature as to endanger the deceased's life.

We have already pointed out that, on the whole of the evidence, the appellant's intention to fire the gun was satisfactorily proved beyond reasonable doubt. Upon the findings of the learned judge, murder was the only verdict which he could return.

Counsel for the appellant contended that the trial judge erred in failing to consider whether the appellant was guilty of manslaughter by way of provocation pursuant to s 304 of the Criminal Code Qld. The defence was not raised at the trial. That is hardly surprising. The forensic difficulties in raising a defence of provocation were formidable having regard to the appellant's evidence concerning his reaction to the injuries which he received from the deceased during their fight at the park and his claim that the speargun was fired accidentally. According to the appellant, when his wife informed him that she wanted to see the deceased and ask him why he had injured her husband, the appellant replied: "You musn't worry about it now, will go and see him tomorrow." The appellant claimed that he went to look for the deceased only because his wife "insisted". As we have already pointed out, the appellant claimed that he accidentally discharged the spear.

Notwithstanding the nature of the appellant's defence, however, it was the duty of the learned judge to consider the defence of provocation if there was evidence to raise that defence: Van Den Hoek (1986) 161 CLR 158; 23 A Crim R 98. Moreover, a number of findings of the judge arguably provided a foundation for the defence. Thus, the judge found that "the accused was hurt by the deceased both physically and in the matter of pride in the fight at the Oval. He was greatly incensed; later when he returned to his home he and his wife discussed the incident and it was decided to find the deceased". The learned judge said that he was "also satisfied [that] the purpose of the pursuit was retribution - there was to be confrontation not conciliation". Upon these findings, it may have been open to the learned judge to find that, when the appellant set out to find the deceased, he had lost his self-control as the result of what the deceased had done to him earlier that morning. But it is difficult to believe that, over an hour after that incident had occurred, the appellant had not regained his self-control. He left the park between 8 am and 9 am. He arrived at the service station at about 10 am. His statements and conduct at the service station were only consistent with a man who, although desirous of revenge, was fully in control of himself. His actions in going back to the car for the speargun after speaking to the driver and before confronting the deceased indicate a calculated course of conduct. So does his statement to the deceased, "you wounded my eye. You want me to shoot you with the speargun?" Upon this evidence, the conclusion appears to us to be inevitable that the appellant was not acting under the influence of any loss of self-control caused by the earlier incident when he fired the speargun. Moreover, even if the prosecution had failed to prove that the appellant had not lost his self-control, a defence of provocation would have faced other difficulties. Would an ordinary Nauruan of the appellant's age and temperament have reacted in the way in which he did after such an interval of time had elapsed? Were the appellant's injuries the result of a wrongful act on the part of the deceased as opposed to injuries inflicted in self-defence?

Accordingly, if the learned judge had considered the defence of provocation, he would have rejected it.