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Court of Appeal of Samoa |
IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU
C.A. 05/10
IN THE MATTER
of an appeal pursuant to the Criminal Procedure Act 1972
BETWEEN
THE ATTORNEY GENERAL
Appellant
AND
MOLIA FATU TAIOALO
male of Magiagi and Papaloloa.
Respondent
Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher
Counsel: P Chang for appellant
R Schuster for respondent
Hearing: 6 May 2010
Judgment: 7 May 2010
JUDGEMENT OF THE COURT
(a) "the Honourable Presiding Judge erred at law in the summing up to the assessors;
(b) there was a failure to draw the only reasonably available inference from unchallenged primary facts;
(c) no reasonable assessors acting properly and in accordance with the relevant law would have reached that determination;
(d) there was an error in law and/or in fact in acquitting the Respondent; and
(e) there was a miscarriage of justice."
(1) the directions given to the assessors by the learned trial Judge were significantly flawed;
(2) the verdict was one which assessors properly directed, could not reasonably have been returned.
"...whether the prosecution evidence, taken at its highest, could have properly led to a conviction by a properly directed panel of assessors: R v Galbraith (1981) 73 Cr. Appeal R 124."
"20. It will be noted that in a case of this kind the Attorney has no general right of appeal. He can appeal only on the ground that the judge in the court below made an error of law.
"21. Where the prosecution is given the right to appeal for error of law, ‘error of law’ is normally confined to only three situations – (i) an error made in answering a conventional legal question arising from unchallenged facts, (ii) a positive factual finding unsupported by any evidence, or (iii) a failure to draw the only reasonably available interference from unchallenged primary facts: Nankivell v O’Donovan (1895) 13 NZLR 60, 61-62; Edwards (Inspector of Taxes) v Bairstow [1956] AC 36; Auckland City Council v Wotherspoon [1989] NZHC 705; [1990] 1 NZLR 76."
"...only one reasonable inference from unchallenged primary facts’ or ‘a positive factual finding for defence unsupported by evidence."
"...this case brings out in strong relief the distinction between a case stated after an acquittal and a case stated after a conviction. Where there has been an acquittal, it is incumbent upon the appellant to shew, upon the facts stated, that there must have been a conviction."
"If the Case contains anything ex facie which is bad law and which bears on the determination, it is, obviously, erroneous in point of law. But...it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law, and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when, in cases such as these, many of the facts are likely to be neutral in themselves and only to take their colour from the combination of circumstances in which they are found to occur."
THE CASE AS PRESENTED
"While walking I heard someone like following me – I just turned my head and saw this person Molia he was following me and I kept on walking.
...
"On my way back from the Samoan fale I felt that someone is following me and I turned back my head and saw him, I saw him clearly.
...
"Then I just walked facing the front ignoring him – I was trying to walk towards the foyer and while walking I felt someone trying to reach me – I’m trying to go away but there is something blocking me – I felt that the person is trying to kiss me and I defended with my hands and try to walk away but I can’t because it looks like he blocking the way.
...
"I remembered clearly it’s like I was pulled and my back touched a wall then I stopped and he tried to kiss then because he hang on me and I tried with my hands to push away and tried to turn away to walk, but I can’t because my body get weak but my action at this time is to push and walk away but I can’t."
"I try to move but I couldn’t. By the time I felt (sic) down my mind was blackout.
...
At this time I felt like someone’s heavy on why I felt down then I black-out. When I recovered I heard a voice of a person like calling in a strong voice and when I open my eyes to get up, and my eyes saw a light and I felt that there is something of my body that feels pain. I felt the weight of this person over me and opened my eyes and saw Molia’s face and he’s calling a person that called I’m not sure who is this person called.
...
"I heard a person called sole and the person on top of me said, turn the light off, this time I tried to open my eyes and I felt pain all over my body and that time my mind was black-out and I was unconscious.
...
"I clearly remember its Molia because I’m looked up and see he’s facing me."
"...we sat down then the other one touched the other one’s hand I was shocked coz M was leaning on my shoulder we were hugging each other we started having sex at that time.
"the right leg was down my job was lifting up the skirt coz she was wearing a dress that does down to her knees.
"we had sex, during the sex after 10 minutes I felt my penis getting hot like it was on fire at the time, when the security arrived I was off the girl because I could feel she was hot I was worried I might catch something because my penis was really hot at the time.
"he told us he tried to chase us away then I told him to please turn off the lights so could put our clothes on. It was not long before the security returned with Samuelu he chased me away but I told Samuelu I can help the girl because I knew the girl was bleeding but Samuelu said no, it was best if I leave the place where the incident occurred. Then I left and tried to find someone the only people that crossed my mind were her friends that she was with that night but when I reached the spot where her friends I only found Teli the distance between Teli and Faafetai was 10 meters I went to Faafetai coz the distance was closer I told him help was needed but the securities had chased me away but I wanted to help."
"Schuster: after you had sex that night and Samuelu chased you away how did you feel?
Wit: I felt that I wanted to help the girl because in my mind we consented to having sex so I should assist with what had happened.
Schuster: how did you know M consented to your sexual intercourse?
Wit: reason why I knew M consented to us having sex was when we were sitting down and the other one was hugging the other she was the one that laid down first which was why we had sex and she told me to remove her panty from the left leg but to leave the right leg on. That is the reason why I knew she consented to the sex that night."
Schuster: was there a time when M was unconscious during your sex?
Wit: when the securities M was conscious at the time.
Schuster: was there a time when you were having sex that M stated stop I do not want it anymore or something like that?
Wit: no"
"Chang: have you forgotten Solomona’s statement?
Wit: no, Solomona turned on the light he saw we were having sex at that time, when Solomona said hey I told him please turn off the light.
Chang: so when Solomona arrived you were on top having sexual intercourse?
Wit: yes
Chang: so is Solomona correct about that?
Wit: yes
Chang: so is Solomona correct when he stated his observation was the girl seemed dead?
Wit: no
Chang: so Solomona is wrong about that?
Wit: yes
Chang: what Solomona said was she lying still like a dead person and you were having sex?
Wit: like I stated before M was conscious when we were having sex and when the security discovered us. When the security arrived and chased me away I told them please I wanted to help M but they chased me away and they questioned M."
"I arrived at the cafeteria and the lights were off then I turned on my torch before reaching the block/key and I saw two people one lay on top of the other and I went there and turn on the lights at the time to lighten that side of the building. And I approached these people and told them this kind of thing is not allowed in the school building. And how I see it they are having sexual intercourse because the man is on top and the girl laid flat at the bottom like someone dead, and the man is moving on the girl and the man turned around and called me to turn off the lights please. I thought at the time is to turn off the lights so that they can get up and get dress because I believe in the Samoan families you can’t get up to dress while some is looking at you."
"when I turned off the lights, I stopped and turn to them to check what are they doing at the time. Ai approached to the area about a meter and I saw him turning sideward and looks like he’s touching her little pussy and said something about her being a woman. I told him that this kind of thing is not allowed in the campus but he still fucked her and he asked me if I want to be fucked or have sex. I stood there unsure of what to do then I thought I should better get a senior security to help me with this situation and to chase them away from the compound. Then I went and get Samuelu because Samuelu was there at the night and that’s why I went to find Samuelu."
"We got there with Samuelu and turned the torch to the exact spot then Samuelu turn the lights in the room, and found out the girl is there alone but the man who was with her is gone. Then we approaches with Samuelu to the girl for help without knowing what happen. Samuelu and I arrived at the girl and saw that she’s in a serious condition, blood is oozing covering her downunder toward the cement."
"said if he knew the ambulance that came, said the ambulance came because of the girl he had sex with behind the place where the party was held.
"he told me if I knew the ambulance that came, that was the girl he had sex with behind where the party was held."
DIRECTIONS
"...in the beginning as you recall ladies & gentlemen assessors I said to you that there are two elements relevant to this charge of rape in which the prosecution must prove beyond reasonable doubt. That there was a act of sexual intercourse by the accused with M and that this sexual intercourse took place without her consent, freely and voluntarily given. As you have heard from the defendant when he gave evidence it appears that the first element of sexual intercourse is not an issue in this case. So the issue is the second element, did M so has sexual intercourse with the accused without her consent freely and voluntarily given? In other words did M give her consent freely and voluntarily to this act of sexual intercourse? And this ladies & gentlemen assessors is where a common sense in life experience would come into help decide this issue based on the evidence that we have already heard in the last two days last week. Consent is not freely and voluntarily given if a person resists the conduct in question. Consent is not freely and voluntarily given if a person would resist it but if physically prevent it from doing so. True consent can only be given by a person in a possession freely able to make a rational decision with full understanding of the situation...submission that is lack of resistance if not to be taken as consent. So in this case M clearly resisted him before she blacked out. She stand by her own admission coming in and out of consciousness and in the time that she regained consciousness she did not fully understand what was happening to her, she was confused. And the accused had continued have sexual intercourse with her while she was unconscious. Even Dr. Falahola Ah Kuoi said that by the time she saw her M although she was conscious she did not seem to understand what was happening hence her uncooperativeness. So based on that, on the evidence that was presented to you ladies and gentlemen assessors there was no way that M was in a position free able to make a rational decision with full understanding of the situation of the accused having sexual intercourse with her. And on that point prosecution submits that we have proven beyond reasonable that sexual intercourse took place without M’s consent freely and voluntarily given."
"In our judgment the Common Serjeant fell into error in the directions and guidance which he gave to the jury on the drink issue. He gave them no assistance as to the state of her mind that had to be proved before it could be said that an apparent consent was not a real consent, and in his direction he encouraged them to think that it was necessary to determine how she came to take drink.
...
"We have no doubt that there is no special rule applicable to drink and rape. If the issue be, as here, did the woman consent? The critical question is not how she came to take the drink, but whether she understood her situation was capable of making up her mind. In HOWARD (1965) Cr. App. R. 56; [1966] 1 W.L.R. 13, the Court of Criminal Appeal had to consider the case of a girl under 16. The prosecution...must prove either that she physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.
In our view these words are general application whenever there is present some factor, be it permanent or transient, suggesting the absence of such undertaking or knowledge. The cases support this view of the law. In CAMPLIN (1845) 1 Den. 45, the judges, by a substantial majority, rejected the submission and I quote the words of Serjeant Ballantine: "that there must be an opposing will on the part of the person ravished" (p.90) and upheld the conviction in a case in which the man had made a girl of 13 "quite drunk and, when she was in a state of insensibility, took advantage of it and violated her."
"It remains to determine the effect of the trial judge’s error in basing the conviction on the lack of [the woman’s] capacity. It is the respondent’s submission that the trial judge was satisfied that the complainant did not in fact consent and thus his reasons respecting capacity are surplusage. The respondent, relying upon R. v Thatcher 1987 CanLII 53 (S.C.C.), (1987) 32 C.C.C. (3d) 481 (S.C.C.), argues that there is no legally relevant distinction between a finding that the victim in fact withheld consent and a finding that the victim was incapable due to intoxication of giving her consent. Accordingly, the finding of lack of consent in fact is sufficient to sustain the verdict."
"Implicit in the latter half of this statement is some doubt that she in fact said "no". Since the complainant was capable of consenting or withholding consent, if she failed to say "no" it was likely because she in fact consented. In this case the question of whether or not the complainant said "no" either had to be resolved or the trial judge had to find some alternative basis (other than lack of capacity) for finding that in fact the complainant did not consent to the sexual activity. Unfortunately, he did neither."
1)penetration of the body of a woman;
2) without her consent;
3) by a person holding a particular state of mind.
"If you find that she did consent, its not rape and you must find the accused not guilty. But if you find that she did not consent freely and voluntarily to the sexual act then it was rape and you must convict him. And remember ladies and gentlemen any consent must have been freely and voluntarily given."
HONOURABLE JUSTICE BARAGWANATH
HONOURABLE JUSTICE SLICER
HONOURABLE JUSTICE FISHER
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