Ioane v Attorney General [2015] WSCA 4 (17 April 2015)

COURT OF APPEAL OF SAMOA
Ioane v Attorney General [2015] WSCA 4

Case name:	Ioane v Attorney General
Citation:	[2015] WSCA 4
Decision date:	17 April 2015
Parties:	Ah Fook Ioane (Appellant)
	Attorney General Respondent)
Hearing date(s):	15 April 2015
File number(s):	CA19/14
Jurisdiction:	Criminal
Place of delivery:	Mulinuu, Courthouse
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Police v Ah Fook Ioane (Supreme Court matter)
Order:	- The appeal is allowed. The convictions are quashed
Representation:	T Leavai for Appellant P Chang and F Lagaaia for Respondent
Catchwords:	ABDUCTION – assault - indecent act, digital penetration – manhandled – identification -
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A 19/14

BETWEEN:

AH FOOK IOANE
Appellant

AND:

ATTORNEY GENERAL
Respondent

Coram: Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing: 15 April 2015

Counsel: T Leavai for Appellant
P Chang and F Lagaaia for Respondent

Judgment: 17 April 2015

JUDGMENT OF THE COURT

Introduction

1. Following a judge-alone trial before Chief Justice Sapolu the appellant was found guilty of abduction, assault and using threatening words with intent to commit sexual violation, and committing an indecent act (digital penetration of the vagina) on a child. Subsequently, he was sentenced to an effective sentence of 7 ½ years imprisonment.
2. The complainant was almost 8 years of age at the time of the offending which occurred in the early hours of Boxing Day, 26 December 2013. The trial occupied two days in mid July and an additional day on 26 August 2014 when defence and rebuttal alibi evidence was adduced. On 26 November 2014 Sapolu CJ found that the four charges were established, but written reasons for that decision were not provided until 9 April 2015.
3. In the meantime the appellant was sentenced on 28 November 2014 and the present appeal against conviction was filed. It raised two grounds of appeal, namely that the complainant’s identification of the appellant as the offender was mistaken and that the trial judge erred in rejecting the alibi evidence given by the appellant and several supporting witnesses. There is no appeal against sentence.
4. Before turning to the two grounds it is convenient to relate the factual findings of the learned judge in some detail since as will become apparent the appeal is intensely factual in nature.

The Complainant’s evidence

5. On the night of 25 December 2013 the complainant went to bed at her parents’ home, a traditional style Samoan house in the village of Leauvaá-uta. She awoke in the early hours to find she had been uplifted with her pillow and carried out of the house by a young man. When she awoke he walked her a short distance along the nearby road and into a cocoa plantation. Under a cocoa tree he kissed the complainant despite her resistance. He then slapped and manhandled her when she refused to kiss him back. She then complied. The assailant told her to take off her clothes. She refused to do so. He removed them, followed by his own clothing and placed his t-shirt on the ground. He laid the victim down on the t-shirt, sat beside her and inserted his fingers into her vagina. She complained that this was painful. He desisted, and put on his clothes. The complainant dressed herself. The offender then took the complainant to a breadfruit tree on the roadside near her home and instructed her to go back into the house. She did so and he left the area.
6. Soon after her return the complainant’s mother, and then her father, awoke to find their daughter sitting up in bed and her hair in disarray. Her mother asked why she was not lying down asleep. The complainant told her parents what had just happened. Her mother checked the time on her cell phone. It was 3.54am.
7. We interpolate that at trial there was no challenge to the truthfulness of the complainant’s account.
8. Subsequently the complainant pointed out the cocoa tree where the violation occurred. A hair band she had been wearing the previous night was recovered under the tree. Her mother examined her daughter’s pillow and found it was damp and soiled, as were the singlet and shorts in which she had been sleeping that night.
9. When asked at 3.54am whether she recognised the person who carried her off, the complainant told her parents she knew his face but not his name. He often walked beside the family’s house to visit some youths who were near neighbours and relatives of the complainant’s father.
10. On the evening of 26 December the appellant walked past the family home. The complainant saw him, called out to her mother and identified the appellant as the person who had abducted, threatened and indecently assaulted her.
11. On 27 December the victim’s mother reported the matter to the police including the appellant’s name, since this was known to the parents although not their daughter.
12. On the afternoon of 28 December the appellant and a male friend went to the complainant’s home. The appellant asked the complainant’s mother whether it was true that she had made a complaint to the police about him. She confirmed this to be the case. The appellant asked where was the complainant. She was watching television at the nearby house of some relatives. Her mother called out to her daughter to come home. She did so, and was called upon to confirm her identification of the appellant. There was a conflict in the evidence concerning who questioned the complainant and how she responded, issues to which we will return in due course.
13. After this exchange the complainant’s mother requested the appellant and his friend to leave the house. A short time later a police car called at the house. An officer asked after the complainant and her mother called her back from the relative’s house to which she had returned to continue watching television. The complainant was taken to the police vehicle, and asked by one of the officers whether the person in the vehicle was the offender. She said he was the person. This was the appellant. We shall return to an evaluation of the worth of this evidence shortly.

The alibi evidence

14. As noted earlier the prosecution case was heard in July 2014, while alibi evidence was given a month or so later. The appellant’s intention to advance an alibi only emerged in the course of the July hearing. At the conclusion of the prosecution case the Chief Justice made directions requiring service of a notice of alibi and supporting briefs of evidence.
15. At the 26 August hearing the appellant gave evidence, as did four young men who were with him on the relevant night and three women who were at the house to which he went to sleep that night.
16. The appellant who was then aged 18 years said that he spent Christmas day at the home of his maternal grandmother. After Christmas lunch he slept until 6pm when he got up and walked to the home of a friend named Faapiano. There he met up with other friends, including Poka aged 18 years, Lafaele 19 years and Akeli 16 years. A party was well underway at the house and the friends shared two large bottles of locally produced vodka. The party finished at about 9pm when Faapiano became involved in a fight in which he was injured. He required medical attention and a vehicle was secured to take him to the Apia National Hospital.
17. The group arrived at the hospital at about 11pm although, unsurprisingly, there was some variation between members of the group as to the time of arrival. All members had been drinking vodka.
18. Faapiano was admitted to hospital, and Lafaele stayed with the patient. The other young men returned to the vehicle and went to sleep. At about 2am Lafaele returned to the vehicle, woke the others and the group set off to return to their village. The Chief Justice found that they arrived there at about 3am, a finding which was not disputed and which we accept.
19. The vehicle in which the group travelled belonged to the Falaimo family. On arrival back at the village the vehicle stopped on the roadside outside the Falaimo’s house, there was a brief discussion and the young men parted company. The vehicle was driven up a driveway to the Falaimo house.
20. Four young men had got out of the vehicle on the roadway. They were the appellant, Aia a boy aged 15 years, Poka and Akeli. The appellant and Aia walked a short distance along the roadway in a westerly, or inland direction, while Poka and Akeli headed to the east or seaward. Aia was staying at a house next to the Falaimo family house, so he left the roadway after walking only a short distance and the appellant continued walking inland towards his grandmother’s house two houses away.
21. From this point the alibi was based on the evidence of the women who were playing bingo at the house of the appellant’s grandmother. Urima and Lolina were both aunties of the appellant and Feagia was a cousin of the appellant’s mother. The bingo card game began at about 8pm Christmas day and continued to 7am on Boxing Day.
22. Urima said in evidence that the appellant came into the house at 3am, a time she was sure of because she was in possession of a cellphone at the time. There were car lights outside before the appellant entered the house and she saw him on the roadway as well, but no-one else from the group. The appellant said he would join the bingo game, but he was drunk and fell asleep after only one round. He snored and remained asleep until bingo finished. In cross-examination Urima said that the appellant was wearing long black pants and a grey t-shirt.
23. Feagia and Lolina gave broadly similar evidence. Both nominated 3am as the time the appellant entered the house and said that they too relied on cellphones in saying this. Unfortunately they only referred to the presence of car lights on the roadway in response to a leading question from defence counsel. Feagia saw the appellant on the roadway while it was illuminated by the car lights, but Lolina saw no one on the road.
24. Rebuttal evidence was called from one witness, Aia, but he could only confirm that the group arrived back at the village “late – around 3am maybe”, and that the appellant continued to walk inland as he left the road to go into his relatives’ house.

Was the complainant’s identification of the appellant mistaken?

25. Various matters were advanced in support of the submission that the identification of the appellant by the complainant was unsafe and that there was at least a reasonable doubt as to its reliability. These included that the relevant events occurred on a dark night, in circumstances which gave the complainant limited opportunity to observe the offender and that when cross-examined the complainant made no reference to a smell of alcohol.
26. The evidence of the complainant’s mother concerning the events on the afternoon of 28 December when the appellant and a friend called at the family house were also stressed. The appellant maintained that he confronted the complainant as to whether he was the offender and that she did not identify him as such: the mother, however, was adamant that she asked her daughter to confirm the earlier identification and that she did so, although by gesture rather than a direct verbal response. We doubt that this conflict of evidence is of significance. After all the complainant was only 7 years of age at the time and confronted by the presence in her home of someone she had already identified as the offender.
27. Counsel rightly criticised the evidence concerning the identification of the appellant in the back of a police car on 28 December. Plainly an identification in such circumstances was of no evidential value. At most, the complainant confirmed that the man in the car was the same person she had identified to her mother two days earlier on the evening of Boxing Day evening. The appellant was not known to the police officers and it was legitimate to have it confirmed that the person they had uplifted was the alleged offender.
28. Other aspects of the identification evidence impress us as much more significant. Ah Fook Ioane was known to the complainant by sight, but not by name. The incident itself must have taken an appreciable period of time. Throughout that time the complainant and the offender were in close proximity to one another. While the lighting was limited, it was evidently sufficient to enable the offender to take the complainant into the cocoa plantation and back to her home without apparent difficulty.
29. The complaint’s identification of the appellant later that day was spontaneous. It is this identification which provides the substance of the prosecution case, not the subsequent events on 28 December when the appellant was inside the complainant’s house and then in the police car. The complainant’s mother said that on Boxing Day evening when her daughter called out “that’s the guy” the appellant endeavoured to cover his head with the red shirt he was wearing. This evidence is uncontradicted.
30. Another telling aspect is that the complainant said that the offender wore long black pants and a black t-shirt. Urima, who had the best recollection of the three ladies playing bingo, said that the appellant was wearing long black pants and a grey t-shirt when he entered the house. We consider the two descriptions consistent, as did the Chief Justice.
31. Viewed in isolation we are not persuaded that the identification evidence in this case was unsafe. But, it remains to consider the alibi evidence.

Was it open to reject the alibi evidence?

32. The appellant gave evidence in which he advanced a timeline at odds with that provided by other witnesses. He said that alcohol was consumed at the Christmas night party until almost 10pm, the drive to the hospital began at almost 2am and that the return journey began at around 4am. The Chief Justice rejected this evidence and in particular found that the group arrived back at Leauvaa-uta at about 3am. We agree with, and adopt, these findings. The appellant’s evidence was rightly rejected and did not, therefore, assist the defence of alibi.
33. Rather the defence essentially rests on the evidence of the three women who were playing bingo. The Chief Justice found:
    • “37. I am also not/prepared to accept the evidence of the accused’s relatives that the accused was sleeping at where they were playing bingo because of their close family connections to the accused. Furthermore, I do not believe the evidence of Urima and Feagai that when the accused arrived home at about 3am he was heavily drunk and after one game of bingo he fell asleep beside them. I also do not accept the evidence of Lolina that the accused was snoring as if to suggest that the accused was heavily drunk.”
34. The learned judge noted that the appellant consumed alcohol at the party for about 3 hours until 9pm, that 7 hours had elapsed by 3am, during which time the appellant had slept for about 2 hours. The Chief Justice did not accept that the appellant could have been heavily intoxicated at 3am when he arrived home. Nor did he accept the evidence that the appellant fell into a heavy sleep and snored while the ladies played bingo through to the morning. The Chief Justice said:
    • “The evidence of the three ladies is trying to suggest that when he arrived home he was too drunk to be able to go anywhere”

On this basis the alibi evidence was rejected.

35. It is not altogether clear from the reasons for judgment whether the Chief Justice concluded that the appellant had committed the offences before his arrival home or that he was not heavily intoxicated and went out again. If the former the three women misrepresented to the Court the time of the appellant’s arrival at the house. If the latter they misled the Court concerning his falling, and remaining, asleep for the rest of the night.
36. The prosecution case was that the complainant was abducted and violated sometime shortly before 3.54am. This matches with the body of evidence confirming that the group arrived back at the village around 3am. But the alibi evidence of the three women places the appellant in the house very soon after the vehicle lights were seen at about that time.
37. The reasons for judgment do not contain reference to this aspect. We regard the connection between the car lights and the timing of the appellant’s arrival at the house as a very significant factor. The connection, unless rejected, is destructive of the prosecution case. The transcript of the evidence contained references to distances, the locations of houses and the parked position of the returning vehicle which were difficult to follow absent a location plan.
38. Counsel were requested to confer and supply a plan. The Court resumed later in the day and, by consent, we received a plan which enabled us to better appreciate the evidence. It showed the close proximity of the Falaimo house to the houses in which Aia and the appellant stayed, and also that these houses were in a line on the northern side of the roadway. The vehicle, while stopped on the roadway for members of the group to disembark, was facing inland in a westerly direction and therefore towards the house where the women were playing bingo.
39. We do not consider it is open to reject the evidence of the three women in relation to this aspect. The evidence of Feagai and Lolina suffers from the defect that only in response to a leading question did they refer to the car lights. Otherwise the three witnesses gave a broadly similar account concerning the vehicle, the lights and the appellant’s arrival in the house a short time later.
40. The witnesses were not seriously challenged in cross-examination concerning this aspect. Indeed it was not until the third witness, Lolina gave evidence that it was even suggested that the appellant was “not there that night” and that false evidence had been given because the “appellant (was) not a stranger”, rather a relative of the witnesses. Lolina denied this and there is no reasonable basis upon which to reject the evidence of the appellant’s prompt arrival in the house. Nor is it plausible that he returned to the house, but departed again in time to abduct and violate the complainant.
41. We are not persuaded that the women’s evidence can be rejected on the basis suggested by the Chief Justice either. The family connection provided a reason, or motive, for the witnesses to seek to shield the appellant. But this alone, absent other supportive findings, does not enable the evidence to be rejected out of hand. The appellant was 18 years of age at the time. It is not implausible that he arrived home around 3am and promptly fell asleep from the effects of tiredness and alcohol consumed several hours earlier. Nor do we regard the evidence of his snoring as contrived, or even strange.

Conclusion

42. For these reasons we are driven to the conclusion that the alibi evidence raised a reasonable doubt. This Court does not lightly differ from a credibility finding reached by an experienced judge who heard and saw the witnesses. But for the above reasons we have no option but to do so in this instance.
43. The appeal is allowed. The convictions are quashed.
    

Honourable Justice Fisher

Honourable Justice Blanchard

Honourable Justice Panckhurst