Attorney General v Otto [2009] WSCA 6 (9 October 2009)

IN THE SAMOA COURT OF APPEAL
HELD AT APIA

C.A 06/09

IN THE MATTER:

of an appeal pursuant to Section 164L of the Criminal Procedure Act 1972.

BETWEEN:

THE ATTORNEY GENERAL
Appellant

AND:

LEALOFI OTTO
male of
Vailuutai
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: P Chang and K Koria for Appellant
P Fepuleai for Respondent

Hearing: 6 October 2009
Judgment: 9 October 2009

JUDGMENT OF THE COURT

1. The respondent was found guilty, upon trial by 4 assessors, of the crime of attempted rape and indecent assault contrary to the Crimes Ordinance Act 1961 "The Ordinance" s48, 51. Following the unanimous verdicts of the assessors and the hearing of submissions by counsel, Nelson J exercising the power afforded by the Criminal Procedure Act 1972 "The Procedure Act" s100 determined that ‘the defendant should not be convicted’ and ordered that he be acquitted of the crime of attempted rape. He did not exercise any power with respect to the information alleging indecent assault.

2. The Ordinance provides:

"Concurrence of presiding judge – 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 his conviction, the defendant shall be acquitted."

3. The Attorney has appealed against the discharge on the attempted rape charge under s 100. We have considered the interpretation and application of section 100 in our reasons for judgment delivered today in Attorney General v Esau Sefo 2009 WSSC. For those reasons, the learned trial judge was empowered to record a verdict different from that returned by the assessors.

4. The learned trial judge provided detailed reasons setting out the material on which he formed his opinion and his reasoning in reaching the conclusion to vary the verdict. He recorded the assessors’ verdict on the information alleging indecent assault but was unable to accept the verdict on attempted rape.
   

5. The ingredients of any attempted crime are more complex than one completed. His Honour first stated the approach to Section 100 in the terms:

"That provides for reversing a verdict if the judge is of the opinion the defendant should not be convicted. A judge would only hold such an opinion if at the end of all the evidence the prosecution have not proven their case beyond reasonable doubt. This can arise where the verdict is not supported by the evidence or where there is some evidence but the quality of the evidence is such that it falls short of the beyond reasonable doubt standard. The test under s100 would therefore seem to be wider than that applicable under section 164N and in my view was deliberately made that way by Parliament in enacting what is as noted earlier a statutory provision unique to this country.

Prosecution counsel has submitted that the real meaning of the provision is the judge can only overturn a verdict that is unreasonable. This seems another way of saying he can only reverse a verdict if a reasonable jury properly directed would not have reached such a verdict in the first place."

6. We agree with the question he posed to himself as to how the trial judge should reach an opinion required by the legislative provision. He regarded it as a ‘safety value reserved to .... a trained qualified practitioner of the law ... with years of experience and knowledge of criminal cases and evidentiary matters’. He accepted that "the exercise ... should not be undertaken lightly but where it is necessary the judge’s duty is to intervene to prevent a miscarriage of justice."

7. We also agree with his reasoning and conclusion on the attempted rape charge itself. The problem for the learned trial judge lay with the necessity for the prosecution to prove specific intent to achieve an outcome namely sexual intercourse with a woman without her consent. There was no inconsistency between his decision to maintain the verdict returned by the assessors on the charge of indecent assault and his intervention on that of attempted rape. He observed that

"As defence counsel points out this shows that the complainant who had full knowledge of what was happening to her equated the defendants actions with an indecent assault rather than an attempt to rape her. Because one would expect that if in fact what was happening was an attempt to rape that is exactly what she would be complaining about to her mother."

8. The problem for the prosecution lay with the question of specific intent. There were significant inconsistencies between the account first given by the complainant to police and that given at trial. Those inconsistencies included:
   
   • Whether she had intended and partly executed an intention to quit her family before the arrival of the defendant or after being awakened by him
   • details of the actions of the defendant and the locking of the door before any attempt.
   • whether she remained partly standing at a time immediately before any use of force and the circumstances preceding the fall or removal of her lavalava.
   • the call for help and the response of another homehold member
   • impression of dissembling or embellishment during the course of her evidence.
     
9. The learned trial judge preferred the original account given by the complainant to police as the more accurate of the two. The evidence was that the respondent had, before the course of criminal conduct given $50 tala to the complainant for a massage session which led to his acts of touching but that evidence made it difficult to determine whether at some time the intent charged from indecency to forcefully penetrate without the consent of the complainant. On one interpretation considered by the learned trial judge the events of the evening could be seen as ‘a clumsy attempt of seduction gone wrong’. He entertained a real doubt about the accuracy of the sequence of actions and the specific intent of the respondent to attempt to bring about an identified event, the rape of another. His Honour was well entitled to entertain a reasonable doubt as to the guilt of the respondent of the charge alleged. Once he held the opinion that ‘the defendant should not be convicted’ he was required by law to give effect to that opinion and record the respondent’s acquittal.
   
10. We have dealt with the facts at some length to show that there were ample grounds to support the Judge’s decision. However, it should not be overlooked that appeals of this nature are confined to errors of law – see s 164L (4) pf the Criminal Procedure Act 1972. Clearly there was no such error in the present case.
    
11. The Appeal will be dismissed.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher