Elia v Attorney General [2014] WSCA 14 (7 November 2014)

COURT OF APPEAL OF SAMOA
Police v Elia [2014] WSCA 14

Case name:	Police v Elia
Citation:	[2014] WSCA 14
Decision date:	7 November 2014
Parties:	TAUTIAGA ELIA (Appellant) v ATTORNEY GENERAL (Respondent)
Hearing date(s):	3 November 2014
File number(s):	CA 17/14
Jurisdiction:	Criminal
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	His Honour Justice Hammond His Honour Justice Blanchard His Honour Justice Nelson
On appeal from:	Supreme Court
Order:	- Appeal is dismissed
Representation:	T Leavai for appellant P Chang and L Su’a-Mailo for respondent
Catchwords:	appeals against convictions and sentence - rebuttal evidence - indecent assault related to acts committed - terms of imprisonment– having forceful sexual intercourse with the victim- time of the offending - absence of consent –breach of trust - below average intelligence - home invasion – appeal dismissed
Words and phrases:	“woman scorned” -“bitter” – “ideal” – “gaps” - desired
Legislation cited:	Key v Police [2013] WSCA 3 Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 R v A [1994] NZLR 129 (CA) R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 (CA) R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 Ufiufi v Attorney-General [2009] WSCA 13
Cases cited:	Crimes Ordinance 1961, ss. 47, 54 Criminal Procedure Act 1972, s.164N(1)(a)
Summary of decision:

COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO: CA 17/14

BETWEEN

TAUTIAGA ELIA
Appellant

A N D

ATTORNEY GENERAL
Respondent

Coram: Honourable Justice Hammond
Honourable Justice Blanchard
Honourable Justice Nelson

Counsel: T Leavai for appellant

P Chang and L Su’a-Mailo for respondent

Hearing: 3 November 2014
Judgment: 7 November 2014

JUDGMENT OF THE COURT

Introduction

1. The accused, Tautiaga Elia, was found guilty by a panel of assessors on one charge of rape and two separate charges of indecent assault (under, respectively, sections 47 and 54 of the Crimes Ordinance 1961). He was sentenced, cumulatively, to terms of imprisonment of eight years for the rape and one year for each indecent assault, for a total of 10 years imprisonment.
2. Mr Elia now appeals against both the convictions and the sentences.

The facts

3. The appellant was 40 at the time of the offending and the victim was 19 years of age. They were known to each other.
4. The incident on which the rape count was advanced occurred in July 2012. The appt entered andd and hid inside the victim’s house. When the victim entered the house, Mr Eulled her into a room. Sh. She struggled and attempted toam. She was silenced by the appellant who put his hand oved over her mouth and slapped her hard twice. She was indecently assaultedraped. It was her evidencedence at trial that this activity was not consented to, indeed she endeavoured to resist the appellant. One of the three counts of indecent assault related to acts committed during the rape and was treated as an alternative to the rape charge.
5. In two separate incidents in September and October 2the appellant indecently atly assaulted the victim. He held her and kissed her, touched her breasts and, in the later assault, her genitals. In the first assault, the victim was able to resist the appellant’s attempt to rape her. Mr Elia threatene victim and tand told her not to tell her family. The second assault ended when fortuitously a woman of the particular village appeared at the crime scene.

The grounds for appeal

6. The Notice of Appeal sets out the following formal grounds:
   • (a) That the verdicts were unreasonable and/or cannot be supported having regard to the evidence before the Court (Criminal Procedure Act 1972, s 164N(1)(a));
   • (b) That the trial Judge erred in law and/or fact in summing up in that:
     • (i) His summing up was one-sided and favoured the prosecution;
     • (ii) His summing up of the Defendant’s case failed to (i) summarise the Defendant’s evidence and (ii) elaborate the material defence arguments.
   • (c) The trial Judge made suggestive remarks to the assessors that the appellant was guilty and that his evidence was not as plausible;
   • (d) That the conviction is against the weight of evidence and the assessors erred in convicting the appellant on the three charges;
   • (e) That a proper consideration of the evidence would have resulted in an acquittal on the basis of a reasonable doubt, in favour of the appellant, and
   • (f) That the sentence is excessive and unreasonable and did not take into account the factors and authorities raised by the defence.

Appeal against conviction

A. Verdict was unreasonable

7. The law as to whether a verdict is unreasonable is well settled. In Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 the Supreme Court of New Zealand framed the test alofollows at [17] :
   • ...a verdict will be unreble if, having regard to all the evidence, the jury could not reasonably have been satisfieisfied to the required standard that the accused was guilty.
8. The Supreme Court at [13] endorsed the following propositions which were drawn from R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 (CA).

(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury [assessors] function.
(d) Reasonable minds may disagree on matters of fact.
(e) The body charged with finding the facts is the jury [or assessors]. Appellate Courts should not lightly interfere in this area.
(f) An appellant must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

9. The appellant’s arguments as to why the verdict was unreasonable in summary were:
   • (a) The relationship started in December 2011, and the appellant and victim communicated by phone calls and text messages;
   • (b) They had engaged in consensual intercourse for the first time in June 2012;
   • (c) The appellant always contacted the victim before their liaisons took place and the victim sometimes informed him that she was home alone or free to meet;
   • (d) The victim was a “woman scorned” and “bitter” after the relationship ended and she was getting back at the accused;
   • (e) The setting was “ideal” for a relationship to form: the victim and appellant had interacted in various settings within a Church and the village, and the appellant was separated from his wife;
   • (f) The victim denied that the relationship was consensual to avoid reprimand;
   • (g) The victim’s demeanour and “gaps” in the victim’s evidence should have been given greater consideration.
10. Counsel for the Attorney General submitted that the only element for the assessors to consider was the presence or absence of consent on the part of the victim. Given that the victim and the appellant provided two conflicting accounts of what occurred, it was open to the assessors to accept either version of events.
11. The respondent’s submissions relied on three principal factors which permitted a conclusion that the victim did not consent.
    • (a) The victim strongly denied that she and the appellant were in a relationship.
    • (b) She strongly denied that she had planned to meet the appellant at the time of the rape or consented to the acts carried out.
    • (c) The appellant’s Caution Statement to the Police had him admitting to having forceful sexual intercourse with the victim because he had so desired. The inconsistency between the appellant’s claims in oral testimony, and the contents of his Caution Statement (the admissibility of which had not been challenged before or at the trial), meant that his version of events lacked credibility.

Conclusion on reasonableness of verdicts

12. This was a case in which the Assessors saw and heard both the accused and the victim. The appellant’s Caution Statement was clearly a very important piece of rebuttal evidence. The provenance of it was not challenged.
13. In this court the appellant seeks to have this court substitute its view for that of the assessors. There is no possible warrant for it to do so here.

An unbalanced summing up?

14. The key issues here are whether Sapolu CJ outlined the defence case in sufficient detail and whether he placed too much weight on the Caution Statement the appellant gave to investigating officers, over the sworn evidence given in court.
15. The appellant relied on R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 and emphasised a passage by Hammond J that &#8he underlying prng principle is that it is the absolute duty of a trial Judge to identify and adequately remind the jury of the defence case in relation to each defendant”. Shipton does not however assist the appellant here: the trial Judge in that case had failed to put a defence at all for one of several defendants.
16. There was an issue at this trial as to the existence of, and the character of, a prior relationship between the accused and the victim. The accused maintained there was a prior sexual relationship. The victim denied this.
17. The Chief Justice dealt with this in his summing up this way: “[t]he evidence of the accused on the other hand was that he and the complainant had a relationship since December 2011 aat the complainant cont consented to sexual intercourse. However, the prosecution produced in evidence the cautioned statement...”. The contents of the statement were then read.
Asked why he had forced the victim into the room, the appellant then said: “...I could not control my feelings because of my desire to have sexual intercourse with this girl.”
19. The appellant’s complaint is that there was an almost immediate reference to the Caution Statement when the Judge dealt with the evidence in the case in his summing up. This, it is suggested, deflected the jury from a proper examination of all of the evidence.
20. Counsel also suggested that less weight should have been placed on that statement as the appellant’s state of mind was uncertain, he is below average intelligence and was ignorant of his legal rights. However no formal challenge was ever made to the admissibility of that statement.
21. The appellant also notes that the assessors spent very little time considering their verdict. After a verdict was returned on the rape charge only, the assessors were asked to return to the chamber to discuss the indecent assault charges. It took “all but a few minutes” to return guilty verdicts on those additional charges.
22. The respondent submitted that there was no error of law in the summing up and the trial Judge properly identified the appellant’s defence. Several parts of the summing were drawn to our attention to provide examples of the Judge’s reference to the defence arguments.
23. The respondent also noted that it is counsel’s duty to raise any matters of inadequacy or error in the summing up at the conclusion of that summing up, which was not done here (Ufiufi v Attorney-General [2009] WSCA 13).
24. The requirements for a summing up have long been established: the Judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect of those facts, and leave the jury in no doubt that the facts are for them and not for the Judge. The rival contentions with respect to the factual issues will normally be summarised and not dealt with in extensive detail. There is a wide discretion as to the level of detail to which the Judge refers in carrying out that task. Overall, the level of detail which the Judge adopts is discretionary so long as an adequate balance is maintained.
25. In our view these principles were not contravened in the context of this case. We are of the view that the summing up was adequate for the occasion.
26. The assessors would have been well aware of the rival contentions and what it was that they had to determine.
27. It is correct that the mention of the prior relationship was brief. Counsel for the accused had spent a good deal of time in her closing addresses emphasizing her client’s evidence, and had endeavoured to paint the complainant as having been a willing participant on other occasions.
28. Counsel for the respondent had responded by emphasizing the victim’s denial of the accused’s version of their prior history and had pointed to the Caution Statement, which essentially said the accused had been unable to restrain himself on the occasion of the rape.
29. There was no requirement for the Chief Justice to closely traverse all the details of this issue. This was a short and uncomplicated trial. The prior events (if any) were an issue at trial and the Chief Justice needed to, and did, remind the assessors of them.
30. As to the relatively early mention of the Caution Statement, it was a critical piece of rebuttal evidence. Defence counsel was given a large degree of latitude by the Chief Justice as to what she said from the Bar, about the circumstances of the taking of the statement. Quite how to deal with the statement was a matter for the trial Judge. He dealt with it “upfront”, by saying there were two conflicting oral accounts and this piece of evidence.
31. The case was what it was. There is no requirement on the part of a Judge to “soften” the impact of critical evidence on an accused. Everything that should have been before the assessors was put before them, and adverted to by the Judge.
32. In our view the conviction appeals should be, and are, dismissed.

The sentencing appeal

33. The third element of the appeal is whether the sentences imposed were manifestly excessive.
34. On the rape count, which resulted in an 8 year sentence by the Court, the following aggravating factors were identified.
    • (a) The rape was pre-meditated.
    • (b) The rape involved home invasion.
    • (c) This was the first time the victim had sexual intercourse. The Chief Justice was entitled to find that fact for sentencing purposes and he was entitled to prefer the evidence of the victim on that point.
    • (d) There was moderate violence; the accused slapped the victim twice as she tried to scream, and threatened to harm the victim if she told anyone about the offending.
    • (e) There was a significant age difference between the accused. He was 40 at the time of the offending; she was 19.
    • (f) There was an element of breach of trust, because the accused is a close friend of the victim’s brother and he often spent time at the family’s home.
    • (g) The impact of the offending on the victim was pronounced: her village had shunned her, her relationship with her brother has suffered, and she has been excluded from Holy Communion and certain Church activities. Further, the Chief Justice noted that her parents have suffered as the family’s reputation has been tarnished (although this last was not expressly enumerated an aggravating factor).
35. The following mitigating factors were identified by the Chief Justice:
    • (a) The appellant’s previous good character. He had no prior convictions and testimonials showed that he was a person of good character.
    • (b) The accused and his wife had offered an apology, which was accepted, to the victim’s parents;
    • (c) The village imposed a penalty worth $2,500 (two cattle beasts and one large pig).
    • (d) The accused had shown remorse. This factor it seems is accorded some respect in Samoa sentencing practice. We comment that it may now be seen as inconsistent with the appeal against conviction.
36. Because of some concern over sentencing levels in rape cases, in Key v Police [2013] WSCA 3 this Court, in a guideline judgment, set out four bands for sentencing in rape cases. Because this rape involved moderate violence and pre-meditation, the Chief Justice placed it withid twnd two, with a tariff of nine to fifteen years imprisonment. A lower band of one of eight to ten years is to be applied where the offending is at the lower end (no more force than that neto accomplish the physical ical act of penetration) and where there is an absence of aggravating features or their presence is very limited. These bands are deliberately overlapping to deal with the realities of particular cases.
37. Taking a starting point of 10 years, the Chief Justice deducted nine months for the appellant’s previous good character, three months for the reconciliation with his wife and remorse on the part of the appellant, and one year for the village council penalty. This left a sentence of eight years imprisonment for the rape.
38. On the indecent assaults, after a starting point of two years for each count and a deduction of one year, a sentence of one year for each count was imposed.
39. The sentences were made cumulative, resulting in the total of 10 years imprisonment.
40. The appellant’s overall submission was that this sentence was excessive and unreasonable. In her written submissions, the respondent’s counsel canvassed a large number of cases. She attempted to distinguish the authorities provided by the prosecution to give a lower starting point than used in those cases.
41. Her central submissions were that:
    • (a) The level of violence involved in the offending was at the lower end of seriousness. Violence did not occur during the later indecent assaults.
    • (b) The absence of physical harm, for example cuts and bruising, means that the offending should be considered less serious.
    • (c) Greater consideration should be given to the appellant’s sworn evidence that he and the victim engaged in consensual sex in June 2012. Rece was made to R vo R v A [1994] NZLR 129 (CA), which stated that culpability may be diminished where there was consensual sexual activity immediately prior to ffending.
42. It was submitted that a starting point of eight years would have been more appropriate on the rape; and that one assault sentence should have been concurrent rather than cumulative. This was somewhat odd; clearly it needed to be both or none being concurrent.
43. The respondent submitted that a sentence must be manifestly excessive or wrong in principle before this court will set aside the sentencing Judge’s decision.
44. It was said the sentence is not manifestly excessive because the Chief Justice thoroughly canvassed the facts and applied the relevant law. Band two was the appropriate starting point. Relevant adjustments were made.
45. As to the assaults, it was said that the offences here were of a similar kind and against the same victim, but were not otherwise connected in either time or location. Cumulative sentences were therefore open to the sentencing Judge, provided the total reflected the overall totality of the offending.
46. The appellant could consider himself fortunate on the assault sentences. His conduct was predatory and continuing and reflected a viewpoint that he could have sexual access to the victim, almost as of right.

Conclusion on the sentence appeals

47. There was no error of principle on the part of the Chief Justice. On the main appeal point, he was entitled to utilise band 2 of the Key v Police guideline judgment. Appropriate adjustments were made for all the relevant factors. The sentences were well within the options open to the Judge.

Conclusion

48. The appeals against conviction and sentence are dismissed.

Honourable Justice Hammond

Honourable Justice Blanchard

Honourable Justice Nelson