Tei Lupe v Police [2013] WSCA 9 (15 November 2013)

COURT OF APPEAL OF SAMOA

Lupe v Police [2013] WSCA 09

Case name: Lupe v Police

Citation: [2013] WSCA 09

Decision date: 15 November 2013

Parties: TEI LUPE (Appellant) and THE ATTORNEY GENERAL (Respondent)

Hearing date(s): 14 November 2013

File number(s): CA14/13

Jurisdiction: Criminal

Place of delivery: Mulinuu
Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: Police v Tei Lupe (Supreme Court matter)

Order:
Representation:

S Leung Wai for Appellant

P Chang and L Su’a-Mailo for Respondent

Catchwords:

Words and phrases:
Legislation cited:
Crimes Ordinance 1961

Cases cited:
Lundy v Crown
Owen v R [2007] NZSC 102
Muaiava Ufiufi v Attorney General [2009] WSCA 13

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A14/13

BETWEEN

TEI LUPE

Appellant

A N D:

THE ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: S Leung Wai for Appellant

P Chang and L Su’a-Mailo for Respondent

Hearing: 14 November 2013

Judgment: 15 November 2013

JUDGMENT OF THE COURT

Introduction

1. Mr Tei Lupe was charged with attempted rape, indecent assault and assault. He elected trial by judge alone. The Chief Justice presided. Mr Lupe was found guilty on all 3 counts. He was subsequently sentenced to terms of imprisonment of 3 years and 4 months on the attempted rape; 2 years on the indecent assault; and 6 months on the assault; to be served concurrently. The effective term was therefore 3 years and 4 months.
2. Although the Notice of Appeal refers to an appeal against the convictions, the appeal has proceeded as one against the attempted rape conviction only. For the avoidance of doubt the appeals against the other two convictions are dismissed.

The Grounds of Appeal

3. The grounds of the appeal are that the learned Chief Justice erred in law and/ or fact in finding Mr Lupe guilty of attempted rape.
4. The appeal is sought to be supported by the admission of fresh evidence that a prosecution witness, Tuasivi Toa Iafeta, (hereafter “Toa”) has “recanted” his evidence at trial. It is useful to recite the broad background of the case before we deal with that application, to place it in context.

The Facts

5. We have the benefit of the factual findings of the Chief Justice at the conclusion of the trial and his sentencing notes, which enlarge on them somewhat.
6. The complainant, X, then aged 15, was walking home after school. Mr Lupe, then aged 18, called out to her that her cousins had said to him to tell her to wait for him. Mr Lupe was with two other boys. X took no notice of Mr Lupe. She kept walking. What Mr Lupe had said was not true. He was waylaying X.
7. Mr Lupe followed X on a dirt road. The two boys who were with him went and hid in the bush to watch what Mr Lupe was going to do to X.
8. When Mr Lupe caught up with X he showed her his mobile phone, with a picture of a boy and a girl having sexual intercourse on it. X slapped the phone away and refused to look at it again.
9. Mr Lupe then embraced X, and kissed her, without her consent, as she resisted him. He fondled X’s breasts and touched her private part. He pulled her into some bushes and removed her skirt.
10. X continued to resist Mr Lupe, and fell down. She was on the ground, in a thoroughly disheveled and distressed state when, as it transpired, her cousins came along. At that point Mr Lupe desisted, and decamped.
11. At trial Toa said he asked Mr Lupe what he had done to X. He was told by Mr Lupe that he had touched her breasts and vagina but “he didn’t do much indecent act because the girl is young and he will wait for another day.”
12. X said that during the assaults she asked Toa for help. He had been standing nearby. But he did not come to her assistance.

The Elements of Rape in Samoa

13. The elements of attempted rape in Samoa are statutory (s48 Crimes Ordinance 1961). There must be an intention to commit rape. And the particular acts complained of must have gone beyond mere preparation for the offence and not be “too remote to constitute an attempt” (s27, Crimes Ordinance). The later element is expressly “a question of law.”

The determination of the Chief Justice

14. The Chief Justice found the offence had been made out. He accepted X’s evidence. He rejected Mr Lupe’s evidence, and in particular his claim that X “seemed to be watching the picture on [his] phone” and “[he] touched her shoulder and said to her whether you can take her to her home.” The Court emphasized that “the whole [picture]” had to be looked at. The only reason the rape had not eventuated was because of the arrival of the two cousins.
15. The Chief Justice noted that the evidence of Toa “[was] in line with X’s evidence.” He was “watching” at the time, and at trial “appeared to be supporting [X’s] evidence”.

The Fresh Evidence application

16. Doubtless this last point explains the concern of the appellant with Toa’s evidence. Corroboration is not today required in law but Toa was the only witness to the actual attempt.
17. Despite what he said at trial, Toa (aged 17) has since sworn an affidavit in which he gives an account which is now distinctly aligned with the account given by Mr Lupe. He says he said what he said in his statement to the police because he was coerced by them. An officer allegedly threatened to break his teeth with a cup; and lock him up downstairs. He “recants” his trial testimony “as I did not observe nor did any of these matters happen at the time.”
18. The Attorney-General has filed several affidavits from the Police Officers; and other persons, which also exhibit the statements by Mr Lupe and Toa. Toa’s written statement (signed by him and, we now know, after being read over to him) is aligned with his trial account.
19. The police affidavits reject Toa’s account of “coercion”. Significantly, one of the prosecuting counsel several months later interviewed Mr Toa to brief his evidence. She gave Mr Toa a copy of his police statement, and he confirmed it without exhibiting any concerns. He further confirmed it to her just before the trial. She took notes, including one that the appellant said Mr Lupe was “trying to take off / [X’s] clothes; and tried to pull down her jean shorts.”
20. We need not discuss the requirements for fresh evidence in any detail here. The very first requirement is that the fresh evidence must be “credible”. (See the recent decision of the Judicial Committee of the Privy Council in Lundy v Crown [2013] UKPC 26, citing New Zealand authority).
21. Toa was cross-examined on his affidavit before us. We were quite unconvinced by his evidence. The claim he was “coerced” into saying what he did at trial has no foundation. The physical context in which it occurred did not lend itself to any such thing; and we accept the evidence of the police officers. His evidence was inconsistent in a number of respects. There was the later ability afforded to him when being briefed by Crown counsel to change his account. He did not do so. Significantly, when he made his original statement he had no knowledge of what others had said to the police. What he was relaying came from him, only. But if the position was as he now claims, he could not have known some of these things.
22. We dismiss the fresh evidence application.

Verdict against the weight of evidence.

23. A verdict may be held to be unreasonable where having regard to all the evidence, the trier of fact could not reasonably have been satisfied beyond reasonable doubt that the appellant was guilty. (Owen v R [2007] NZSC 102; adopted by this Court in Muaiava Ufiufi v Attorney General [2009] WSCA 13).
24. That test cannot be met here, even with Toa’s affidavit, if admitted. This was a premeditated attack, force was used, in a relatively remote location, without consent, there was the forcible removal of clothing, indecent touchings and despite pleas for help this attack was desisted in only by the fortuitous arrival of other persons. The demeanour of X was well chronicled and her subsequent distressed complaint to her mother was consistent with her account.
25. The Chief Justice was well able to consider that the relevant intention to rape had been established; and that the acts complained of had occurred.

Acts too remote?

26. This leaves only the question whether such acts as were established were merely preparatory and could not in law found an attempt.
27. Mr Leung Wai put the argument this way.

“Toa would have to be naked and his penis in a position to be able to penetrate. ... there is no evidence of the Appellant trying to lie on the complainant and trying to penetrate the genitalia of the complainant.”

28. That goes much too far. The law does not generally punish a criminal intention without any accompanying physical act. The defendant must have actually embarked upon the commission of the crime he intends to commit (here the unconsented sexual intercourse). If the acts complained of are sufficiently connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, a defendant can be found guilty.
    
29. This man was hitting upon X, he forced himself on her, and was trying to take her clothes off with the intention of having unconsented to intercourse with her, when fortunately other persons appeared. The Chief Justice considered that, but for that arrival, the full violation would have occurred.
30. In our view, the Chief Justice was not wrong, in law, in his evaluation. This appeal is accordingly dismissed.

Conclusion

31. All the conviction appeals are dismissed.
    

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard