Faafua v Police [2010] WSCA 7 (24 September 2010)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 10/10
C.A. 11/10

BETWEEN:

AUKUSITINO FAAFUA,
male of Faleula uta and
FAASALA LIVAI,
male of Faleula uta
Appellants

AND:

POLICE
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: D Clarke for the first appellant
L Tamati for the second appellant
P Chang and L Sua-Mailo for the respondent

Hearing: 22 September, 2010
Judgment: 24 September, 2010

JUDGMENT OF THE COURT

1. The appellants seek review of their convictions for the crime of rape. The evidence supporting those convictions is identical to both and there is no reason to distinguish between them.
   
2. Their respective Notices of Appeal claim error in that:
   

Both Appellants

(a) The verdict of the Assessors should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence;

(b) the learned trial Judge erred in finding that a prior written statement by the Complainant as to past sexual history was not inconsistent with testimony by the Complainant as to her prior sexual history and thereby refusing to allow counsel to cross-examine the Complainant on her prior statement;

(c) since conviction of the Appellant, there is fresh evidence that the testimony of Filifilia Folau was untruthful such that there was a miscarriage of justice.

Aukusitino Faafua only

(d) the judgment of the Court before which the Appellant was convicted should be set aside on the ground of a wrong decision of a question of law in that the learned trial Judge erred in his directions in summing up as to the test to apply as to a reasonable doubt;

3. Both appellants sought to advance fresh evidence before this Court in support of their appeals. That evidence is set out in the affidavits sworn by the appellant Aukusitino, Aukusitino Mose, Tolutasi Sapani and Hinoma Liuvai. The respondent filed an answering affidavit sworn by Filifilia.
   
4. Central to the convictions was the evidence of identity. The prosecution alleged that each appellant had been involved in the rape of a girl aged thirteen. Each appellant claimed that neither had been present at the time or scene of the rape.
   
5. The complainant gave evidence that she had been raped. There was medical evidence that she been penetrated at some time. Independent witnesses had found her in a distressed condition.
   
6. The complainant gave evidence that she knew her assailants. That evidence was uncontroversial. She knew each through her brother who was involved with them in the sport of boxing. Without corroboration that identification was 'word on word' and depended on credibility, motive, inconsistency and the like.
   

FRESH EVIDENCE

7. The fresh evidence sought to be led was that the witness Filifilia had lied at the trial.
   
8. The appellant Aukusitino sought to tender his affidavit that, on 26 March 2010, he met with Filifilia who had been a witness at the trial and who had told the assessors that on the day of the alleged rape he had seen the appellants in the vicinity of the scene. Aukusitino said that Filifilia admitted that his testimony was false and begged forgiveness. Filifilia is said to have told Aukusitino that he had given false evidence because Simautua, the complainant had told him that she had been with the appellants on the day in question and he had corroborated her story at the behest of two other persons identified as Imeleta and Lio.
   
9. Aukusitino Mose deposed that whilst at his home on 29 March 2010, Filifilia had told a similar account of having lied at trial, adding that he had not seen the appellants on the relevant day, had not made a statement to police and had lied at the behest of his sister Imeleta and her husband Lio. On Mose's account, Filifilia had promised to see the appellant's lawyer but had later run away when asked to speak with the lawyer. Mose is the father of the first appellant.
   
10. Tolutasi Sapani, Mose's nephew, claimed to have overheard the conversation and corroborated his uncle's version. Both men stated that no threats or coercion was used to induce Filifilia to admit to the lies.
    
11. The respondent has obtained an answering affidavit from Filifilia Folau who rejects the accounts given by the above deponents. He lives in the same village as the above deponents and is related to each. He denies he had met the appellant on 26 March or been at Mose's house three days later. He maintained that he had given a true account of his observations on 21 February 2008, and had given a statement to the police on 3 March 2008. He affirmed his evidence, given at trial that he had seen;
    

"Faasala Livai and Aukusitino Faafua which places them at the scene of the offence on the date of the offence."

and maintained that he;

"...saw the pair run off first before I found the victim in this matter."

12. Fresh evidence is rarely admitted in a criminal appeal.
    
13. The New Zealand Court of Appeal in Blomfield v R (119/93, 9 July) stated:
    

"For present purposes the relevant principles are those adopted by this Court in R v Barr (Alistair) [1973] 2 NZLR 95, 98 and R v Baker [1976] 1 NZLR 419. It is unnecessary to set out all the permutations, but the present situation raises three issues. First, whether the Court is satisfied that the fresh evidence is true. If not, secondly whether nevertheless the Court thinks the fresh evidence might be acceptable to, and believed by, a jury. Third, whether the fresh evidence, if believed by the jury, is such that it might reasonably have led the jury to return a verdict of guilty."

14. In relation to the question of whether an appellate court ought to permit or require cross examination of the witnesses providing the fresh evidence, the Court observed:
    

"[w]e have been brought close to the point of rejecting the evidence, but without the benefit of hearing the witnesses (neither side desired cross examination) feel unable to go that far. Nevertheless the inherent weakness of the evidence assists us in our conclusion that it does not have sufficient cogency to warrant a new trial."

and concluded:

"[t]o deploy language from In Re O'Connor & Aitken (No 2) [1953] NZLR 776, 785 the fresh evidence does not raise such a case of doubt that it would be a denial of justice if the question of guilt or innocence were not submitted to another jury. The appellant's case falls short of satisfying us that the refusal of a new trial would cause a miscarriage of justice."

15. The Court distinguished between the recanting of a complainant and a principal witness who has unequivocally gone back on critical testimony but its general observations that:
    

"...to enable the jury to understand the context of the 16 February conversation and to weigh the credibility of the parties to it, there would have to be presented a mishmash of allegation and counter-allegation out of which, we suspect, the only conclusion to emerge with absolute clarity would be the way in which these unfortunate events had divided a preciously united family."

are apposite here.

16. Filifilia does not recant. He will maintain his original evidence. The appellant seeks that this Court accepts the fresh evidence, uphold the appeal and send the case back for retrial so as to enable the defence to cross examine Filifilia on the basis that following the first trial he had made a statement inconsistent with his testimony on both trials and before the Court of Appeal.
    
17. This Court will follow the statement of the High Court of Australia in Craig v R [1933] HCA 41; (1933) 49 CLR 429 at 439 that:
    

"[a] Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that if considered in combination with the evidence already given upon trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance."

18. There was substituted evidence independent of the complainant and Filifilia that the appellants were at the scene on the day in question. There was evidence independent of Filifilia and the complainant that she had been in the presence of two men shortly before she was found in a distressed condition. One of those witnesses later found out the names of the two men she had recognized at the scene to be those of the appellants.
    
19. In R v F [2009] NZCA 117 the Court of Appeal stated that in cases of recantation;
    

"The first step therefore is to consider whether in fact W recanted. If there is credible evidence so as to establish that she did in fact make the statements alleged, this places W's credibility in some doubt, but it may not necessarily follow that her evidence before the jury was false. If the evidence that recantation occurred is plausible and there is nothing to show fabrication, the crucial issue then becomes whether or not that recantation was true and genuine."

20. In that case the Court permitted cross examination of witnesses but determined in dismissing the appeal as a matter of fact that there had been no recantation (see also: R v M [2006] NZCA 135/05).
    
21. Filifilia has not recanted his evidence at trial and could be expected to repeat it at any retrial. At best, the appellants could cross examine him that he had provided an inconsistent account to others in March 2010. That cross examination could only relate credit or credibility. At best, the appellants might be permitted to call the evidence of the existence or making of a prior inconsistent statement.
    
22. Fresh evidence must be such that when viewed in combination with the evidence given at trial it can be said that the assessors acting reasonably would have acquitted the appellants of the information if the new evidence had been before them (Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259). An appellate court must first consider that there is a significant possibility that the assessors acting reasonably would have acquitted an appellant of the charge if the new evidence had been before it (Gallagher v R [1986] HCA 26; (1986) 160 CLR 392). It ought to do so before it is required to consider whether or not the 'fresh evidence' is credible (see: R v Parks [1961] 3 All ER 633). It was for this reason that we declined to receive the evidence and require its testing. The evidence did not satisfy the pre-conditions required in law.
    

WRONGFUL DIRECTION

23. The appellants did not proceed with this ground of appeal.
    

CROSS EXAMINATION OF COMPLAINANT

24. The complainant had made two statements to police. In her statement of 22 February, she had been asked:
    

"Is this the first time this sort of thing has happened to you?"

to which she replied:

"No, it has happened many times, but I do not remember the kids' names."

25. The Samoan word used is kamaiki which can also be pronounced tamaiti. A dictionary translates 'child' as tamaitiiti with the plural being tamaiti. The Registrar advices that common usage contains a generic meaning which can include 'kids', 'men' or 'guys'.
    
26. The trial commenced on 22 February 2010. The second witness called was the complainant's mother. Counsel for the second appellant attempted to cross-examine the mother on whether her daughter had ever told her about 'previous sexual encounters with other men.' The question was objected to on the basis of 'the witness giving evidence of previous sexual...' with the learned trial Judge adding 'unless there is some foundation of where you are going with this questioning'.
    
27. Counsel referred to the above answer provided in the February statement, as providing the basis for the question.
    
28. The question was objectionable because it was asked of the mother before the complainant had given any evidence to the contrary.
    
29. The learned trial Judge excused the assessors and met with counsel in chambers. This Court, from its own experience in Australian and New Zealand jurisdictions, knows that any argument had or determination made in the absence of a recording device is fraught with difficulty and danger. All rulings during a trial should be made in court in the presence of the accused, if necessary in the absence of the assessors and/or the public. They should not be discussed or rules upon in chambers in the absence of the accused.
    
30. In a hearing concerning an application for bail pending appeal conducted on 18 June 2010 the learned trial Judge referred to the ruling given in chambers and disclosed his reasoning, stating:
    

"[13] As to error of law on prohibiting cross examination of the complainant on her past sexual history, counsels are correct that ruling was made in chambers in the absence of the assessors. The reasons for it were firstly, the alleged inconsistent statement was ambiguous. The complainant had made two written statements to police. In the first is the following question and answer which is contained on page 4 of the statement dated 22 February 2008 which referred to by counsels in their submissions:

"F: u faakele, ae ou keO le taimi muamua lea ua fai ai e seisi se mea faapea ia oe? (Is this the first time this sort of thing has happened to you?)

T: Leai, ua kup le magakua kamaiki. (No, it has happened many times, but I do not remember the kids' names)."

But this was one question and answer in a 5 page statement, nowhere else of which is there any reference to past sexual history.

[14] It was also in my view clear from the question asked that it did not specifically address previous sexual intercourses. It merely asked in a general way whether anyone had done "this sort of thing" to the complainant before. If I were to apply a strict interpretation to the question I concede it is arguable that the question really meant "did any one rape you before" as the previous part of the statement contains a complaint of double rape. The answer of the complainant then would be "yes I have been raped many times before" or words to that effect. But there was no evidence to support that this was in fact what she said to the police or that there had been any such incidents. The question could equally also have been by the use of the words "se mea faapea" or "this sort of thing" referring to previous instances of sexual activity involving boys and not necessarily sexual intercourse. There is also no mention of anything of this nature in the second statement that she subsequently gave to the police. Hence I formed the view that there was some ambiguity in the question and answer and it was not necessarily a previous inconsistent statement."

31. Counsel did not pursue with the mother the question of prior sexual history. The ruling given was correct in result. Counsel could not make use of the complainant's statement in cross examination of the mother.
    
32. The matter again arose during the complainant's evidence. The complainant in her evidence in chief used the term 'oso', literally 'jumped' but in common usage it can connote consensual or non-consensual intercourse. Counsel for the first appellant cross-examined the complainant on the basis of her two previous witness statements but did not seek to raise any issue concerning the girl's prior sexual history or her answer above stated.
    
33. Counsel told us he felt precluded from doing so because of the ruling given in chambers the previous day. In cross examination by counsel for the second appellant the complainant was asked why was her body was painful to which she replied 'because a boy has just jumped on me', describing her stomach, chest and back. The correct answer recorded was:
    

"Because this is the first time a boy has jumped on me."

34. Counsel claims that the answer provided a basis for cross-examination of prior sexual history since she was claiming to be a virgin at the time of the sexual assaults. Logic suggests that the witness was saying it was the first time she had been raped, not that it was her first sexual experience. The witness was being extensively questioned about crying, her struggle, bruising and penetration by two men. She is describing her physical symptoms immediately after brutal treatment. The questions of counsel following the answers show that counsel did not interpret the meaning of the answer in the form claimed in the written submissions.
    
35. The prosecution led medical evidence on 2 March that the examining doctor discovered that the girl's hymen had been torn. Dr. Chatterjee told the assessors that a torn hymen shows:
    

"...that the hymen has been penetrated thru with some object, if it is already torn it means the girl has been exposed to some sexual activity."

36. She was unable to determine the age of the tear. The doctor's examination was conducted on the day following the alleged rape. She did not observe the presence of semen although she said that washing would have removed observable fluids and traces would only be detectable through intra-vaginal swabbing and laboratory testing.
    
37. There was some cross examination as to whether the tearing could have been caused by an object such as a tampon, a matter rejected by the witness.
    
38. The appellants contend that evidence of penetration ought to have enabled them to examine the complainant's prior sexual history. If so, neither counsel sought to do so.
    
39. The trial Judge had given his ruling on 22 February. On 2 March the evidence might have been such as to permit the Court to re-visit the matter, a circumstance not infrequent in criminal trials. Had counsel used the medical evidence as a basis for examination of the complainant's sexual history, it might have caused the trial Judge to vary his ruling so as to permit further but constrained examination of the complainant. Neither counsel sought to raise the issue. Neither ought to have felt inhibited in requesting the Judge to re-visit the issue.
    
40. The ground of appeal is dismissed.
    

VERDICT AGAINST THE EVIDENCE

41. This ground is brought in accordance with the Criminal Procedure Act 1972, section 164N(a) as being that:
    

"the verdict...is unreasonable or cannot be supported having regard to the evidence."

42. There was clear evidence of rape. The complainant had been absent from home and had slept at the house of the aunt of a friend on the night previous to these events. She knew by name the appellants through her brother. The assessors could readily accept that she had reason to go to her brother and sister-in-law's house before returning to her mother. She had reason to go to the market to catch a bus to Faleula. It was there that she met up with the appellants. The second appellant agreed in evidence that he caught a bus at about the same time but denied seeing the complainant on the bus.
    
43. The complainant's evidence was that she asked the appellants if they knew where her brother lived and that they, together with another boy, Tulaga had traveled on the same bus and alighted together at Faleula. She was taken by Tulaga inland and locked in a room. Three witnesses, Theresa, Tolotea and Tofiga corroborated her account that she had been accompanied by Tulaga along that road. Those witnesses confirmed that the girl returned with Tulaga about 30 minutes later and met up with the appellants outside Tofiga's house, a sequence and timing consistent with the complainant's version.
    
44. Tolotea saw the second appellant accompanied by the first appellant lead the girl by the hand inland. Tipesa, a fourth witness saw the two appellants near Theresa's house which was adjacent to that of Tofiga's.
    
45. The complainant was not shaken in detailed and prolonged cross examination. A medical examination supported an act of penetration.
    
46. The complainant was seen by two others shortly after the events she described in a distressed condition. That evidence, even if of little weight, was capable of being used by the assessors in support of the prosecution case.
    
47. Aukusitino Faafua gave evidence denying any sexual contact or opportunity. He said he had returned to his home soon after 11:30am and remained there until after 5pm. He called three witnesses, Silao Tulia, Tapuni Faafua Piula and Setefano Sosopo; each of whom provided the appellant with an alibi. Tapuni and Silao also gave evidence in support of Faasala, whom they said visited the home at about 1pm.
    
48. Faasala did not give evidence but was entitled to rely on the above in his own defence.
    
49. It was open to the assessors to accept that evidence and acquit each appellant. But if they accepted the evidence of the four women the central thrust of the defence as to alibi would collapse. The prosecution had called Filifilia, a close relative of Aukusitino. He had gone on the day to inspect his plantation and faleo'o because of stealing and damage to his crops. He recognised the appellants standing near his plantation. Filifilia waited for Tipesa to catch up and together they found the girl in a distressed state. He noticed marked to her neck and swollen eyes. Filifilia went looking for the appellants but was unable to locate them.
    
50. His evidence puts both appellants at the scene at a time and in close proximity to the girl after she had been raped.
    
51. The assessors were entitled to accept the prosecution case.
    
52. The appeals are dismissed.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher