Pisu v Police [1994] WSCA 7; 17 1993 (24 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 1793
IN THE MATTER of an appeal to the Court of Appeal of Western Samoa pursuant to Section 164K of the Criminal Procedure Amendment Act 1992/1993
BETWEEN

AUTALAVOU AIALAOA PISU

of Sataoa
AND

POLICE

of Apia in Western Samoa
Respondent

Coram: The Rt. Hon. Sir Robin Cooke, President
The Rt. Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 23 March 1994

Counsel: Katalaina M. Sapolu for Appellant
M.B. Edwards for Respondent

Judgment: 24 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

This is an appeal against conviction for rape on a charge that was laid pursuant to s. 47(1)(d) of the Crimes Ordinance 1961, which states as follows:

47. Rape

(1) Rape is the act of a male person having sexual intercourse with a woman or girl -...

(d) With consent obtained by personating her husband;

That was the charge which appellant faced when he was tried before Judge and Assessors on 7 and 8 October 1993 in the Supreme Court at Apia. The Assessors returned a verdict of guilty and it is against that decision the appeal is brought. He was sentenced to two and a half years' imprisonment, but the appeal against sentence has been abandoned.

The important underlying theme of the argument advanced by Miss Sapolu on behalf of appellant was that there had been transference of focus from the intention of the accused, which is the central object of a criminal trial, to the apprehensions and reactions of the complainant victim. Miss Sapolu's basis in the case for this submission was to be found, she argued, in the summing-up of the learned Judge which, because of directions he gave, would have resulted in the Assessors being confused and misled as to the issues in the criminal trial upon which they were obliged to concentrate. There was a real danger, as lay persons charged with making a decision on the facts and having to return a verdict of the Court, their attention was diverted by directional deficiencies. Those deficiencies will be referred to hereafter.

In view of that approach it is perhaps helpful to make some general comments first. There can be no question but that the prosecution must accept the burden on the highest standard of proof that the accused performed the act forbidden by law accompanied by the necessary criminal intent. There must be the conjoint operation of act or conduct forbidden by law and the necessary intent before a person may be convicted of a crime.

The crime of rape can be performed in a variety of circumstances and these are detailed in s. 47(1)(a) to (e) of the Ordinance. Perhaps the most familiar circumstances of rape is where a male has sexual intercourse with a woman plainly without her consent, usually achieved through violence. That is the straightforward definition of rape and is encompassed by s. 47(1)(a). Under the definition of rape alleged by the prosecution, the personation of the husband by which consent is obtained is the essential ingredient to be proved by the prosecution. It is to be understood the consent obtained was not a true consent, freely and voluntarily given, but one obtained by personation. That is not true consent but a form o f compliance.

The definition of rape chosen by the prosecution after an appraisal of the evidence following investigation, was to get as close to the actual fact pattern as possible. Personation is a form of fraudulent conduct where the true facts are deliberately misrepresented so that a goal can be achieved, which in this case the prosecution said was sexual misconduct. Fraud anywhere in the criminal law is recognised as a more sophisticated form of criminal conduct, often achieved by cunning and subtlety. To personate means the conduct must be plausible and committed in propitious circumstances. If that is the fact pattern, then it is only natural when the whole facts are being examined that the victim's reaction to the fraud that is alleged to have been perpetrated on her will require proportionate attention. If a woman is sexually taken in violent circumstances, then that is a different issue requiring little close attention to her behaviour and reaction, for they are usually very plain. She simply does not consent.

Against that background, we turn to the facts of this case. In May 1993 complainant was residing at her home in Sataoa Safato with her husband and their two children. At the material time of the offence on 26 May her husband was not at home. The residence is described as a Samoan house and photographs produced confirm it is of open construction. There were other family members present in the dwelling. The complainant gave evidence that at about 8 p.m. she retired to sleep with her two children under a separate mosquito net. Some time later, which was not fixed certainly, she was awakened from sleep because a person came into her mosquito net. She says she thought it was her husband returning but did not give more positive identification. Apparently this male immediately started kissing her and she said her eyes were not open at that stage. After the kissing, she said he jumped on her and she explained later that this was when sexual intercourse took place. There was no question but that intercourse, as defined in s.46 of the Ordinance, was completed. Her evidence was that prior to jumping on her, he said nothing, although she said she began to question him later. After intercourse had taken place, she heard his answers and began to suspect it was not her husband, as she had at first thought. Her doubts as to the true identity of this person seem to have been confirmed when she observed another male outside the mosquito net and said she realised the man inside was in fact a stranger. Perhaps it should be mentioned that in her evidence-in-chief, she said during intercourse she took steps to push him away before he completed. When she fully realised that the person with whom she had had intercourse was not her husband, she screamed and appellant made off, leaving a lavalava by which his identity was able to be established. The whole incident took about five to six minutes.

As will become clearer when we deal with the objections to the summing-up, there were definite elements in the appellant's conduct which, at the very least, created ambiguity as to the true identity of the person who had intercourse with complainant. Whilst it is conceded, as advanced by Miss Sapolu, appellant did not actively, so to speak, personate her husband he did so passively by his deliberative silence before intercourse, but very positively after intercourse in answers to her questions. Other facts in the evidence which seem to contribute to the success of the criminal venture were that it was committed in propitious circumstances, in that he came upon her in bed sleeping and in the dark, both of which would have been advantageous to him in the personation.

Appellant at trial did not give evidence, but the police produced a statement from him that conceded that he had had intercourse with the complainant and also he said presciently:

I had a feeling that ... thought that this was her husband coming through.

Within the context of the facts of this case, that is a very telling admission on the part of the accused and would have been noticed by the Assessors.

The grounds of appeal are two-fold.

1. That the learned trial Judge in his summing-up to the Assessors gave directions which were possibly confusing and could have misled them in the way already referred to in this judgment, by concentrating their attention on the victim rather than the accused.

2. Unreasonable or cannot he supported having regard to the evidence.

We go to the first ground, and here call down several of the observations made earlier in this judgment. We think the Assessors with their common sense and experience of the circumstances in which the rape took place would not have had their attention directed away from the issue of guilt of the accused for the crime with which he was charged. As we said, for entirely understandable reasons the exact reactions of the complainant had to be carefully examined and that was the tactic in the cross-examination, and properly so. Having chosen that tactic, one cannot then make that the ground of appeal.

Counsel for the respondent conceded in his argument that the summing-up was not in effect a seamless garment and that some of the expressions and examples to illustrate legal propositions were inappropriate. We tend to agree, and particularly that any mention whatever of insanity could have been profitably omitted, but he quickly made it plain that it had no application to this case. There are many cases in which Courts, in several jurisdictions, have indicated the proper approach of appeal courts to challenged trial court directions and we confine ourselves to one cited by the respondent. It is from the judgment of Street C.J. in R. v. McDonald (1984) 1 N.S.W.L.R. 428, 437, where it was stated:

It is trite that every summing up is to be read as a whole equally as challenged portions are to be read within the context of other directions and discussion upon the topic in question.

We support the view expressed by Street C.J. which, put another way, the Court does not look at the summing up with a spider's eye but draws back to examine it in its entirety against the whole of the evidence.

The central point is whether the Assessors were likely to be misled or confused. It was a case of very simple facts and concerned behaviour within the community, which the Assessors must have known well. The Assessors were required to look at the whole factual situation and decide whether there was personation to obtain consent to the intercourse that did take place. The complainant concedes she complied, but on the basis it was her husband and the full facts reveal he was a stranger. It appears to us that the Assessors believed the evidence of the complainant, accepting her as a. credible witness. That was the heart of the case and we think is very unlikely that some unfortunately expressed comments and perhaps over homely illustrations outside the actual facts would have diverted the Assessors away from the central issue of the accused's criminal conduct. Miss Sapolu, in her able argument, has been able to point to deficiencies in the summing up, but nevertheless we are not persuaded they would have affected the final result, and this ground of appeal fails.

We turn to the second ground. This ground of appeal is in reality little different from the first ground when one looks at the factual situation, and much the same reasons apply here as on the first ground. This ground fails also.

The, appeal, or application for leave to appeal, are therefore dismissed.

Solicitors:
K.M. Sapolu, Apia, for Appellant
Attorney-General's Office, Apia, for Respondent