Police v Timai [1999] WSSC 49 (13 May 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SIAOSI TIMAI
of Lotoso'a, Saleimoa
Defendant

Counsel: Mr M. Leung Wai (and Ms Wong) for the Informant
Mr S. Reid for the Defendant

Hearing Date: 5 May 1999
Reasons Published: 13 May 1999

REASONS FOR DECISION OF WILSON J.

AN ASSESSOR TRIAL

This was a trial (on a charge of indecent assault) before me as a judge sitting alone. I was, therefore, called upon to perform the functions of both judge and assessors (or judge and jury). I announced my verdict of guilty as charged, and I did so at the end of the trial, but I indicated that I would announce my reasons later. This I now do.

THE CHARGE

The accused, a 36 year old Samoan married man, was, as I have indicated, charged with indecent assault (s.54 of the Crimes Ordinance [1961]). The complainant (or alleged victim) was Vaiono Lui. a young married woman. The crime was allegedly committed at Lotosoa Saleimoa on 22 July 1998.

THE COMPLAINANT'S ALLEGATIONS

The complainant said in examination in-chief that, on Wednesday 22 July 1998, she came with a man Taga Vito to chop some firewood. The defendant then approached, and the three of them then talked. She said that the accused then went to his plantation and worked for a time. She and Taga continued with their work, and, later on, Taga went to the house 'to sharpen (his) knife'. Whilst the complainant was working to chop and collect some more firewood, the accused came over, she said, to have a chat with her. The accused said to her that there was 'something (he) wanted to talk to (her) about'. She said to him that he should 'tell (her) now', but he suggested that 'she move away from where (they) were', and he would then 'tell (her) what (he) wanted to say'. The complainant said to the accused to 'tell (her) what (he) wanted to say', but he implied that he would tell her what he wanted to say if she would 'spare a few minutes to move away from where (they) were standing', and then he would 'tell (her) what (he) wanted to say'. The complainant said that they were sitting on a log, and then the accused called her by a name which was not her correct name. The complainant said that the accused then said that he had been 'longing' to tell her this, that he was 'wanting to touch (her) and had been wanting to do so for a very long time, in fact, since ( she) came to the village'. The accused then said, according to the complainant, that, 'the way (he) handles (his) girl friends is that (he) will show (his) love at that very moment to the girl'. After he said that, he then 'jumped over' and embraced the complainant and tried to kiss her. The complainant said that the accused 'made (her) kiss (him)' and that she then 'pushed (him) away'. The complainant then said that, after she had rejected him, he then 'jumped over' and they were 'struggling on the log'. That was when, according to the complainant, she fell towards the back. That was when she 'fell back and was lying on (her) back facing upwards'. The complainant said that the accused then 'jumped over and stood where (her) feet were'. He was standing there, and then locked her feet 'under his under-arm', whilst at the same time he tried to pull off her pants.

The complainant then said that she tried to pull back on her pants at the same time as he was trying to pull them off. She said that she was screaming and calling out the name of 'Taga'. She said that she called out the name of 'Taga' three times, but the accused struck her on the mouth and also tried to cover her mouth. She said that that was when her legs 'came loose' from the position where they had been 'locked', so she 'pulled out (her) leg and kicked him.' The complainant said that that kick landed on his chest and he fell back. She said that she then stood up and ran towards the house, and she was calling out for 'Taga'.

During cross examination, the complainant said that, when the accused touched her inside her pants, two of his fingers 'caught' her private parts and 'went inside'. Concerning the blow to her mouth, the complainant said that it was a blow to the right lower side of her mouth; it 'became swollen, it was scratched and bleeding'. She said that it was a blow with the back of the hand of the accused. He later said, according to the complainant 'Don't you want what I am wanting to do with you', to which she replied, 'no'.

THE MAIN ISSUE - KNOWLEDGE OR RECKLESS INDIFFERENCE THAT COMPLAINANT WAS NOT CONSENTING

The main issue in this trial, in which it was not really in dispute that the complainant did not, in fact, consent to the accused's sexual advances, was the question of whether the prosecution had proved beyond reasonable doubt that either the accused knew that the alleged victim was not consenting to the touching or handling of the complainant or was recklessly indifferent as to whether she was consenting or not (see S[1983] EWCA Crim 5; (1983) 78 Cr App R 149). It was suggested by counsel (wrongly, I think) that this latter aspect is synonymous with the defence of 'honest and reasonable mistake of fact' or 'the absence of belief on reasonable grounds that the complainant was consenting'.

SOME BASIC RULES OF LAW

Before I deal with the main issue, I indicate that I have reminded myself of the presumption of innocence (which is in the accused's favour), the onus of proof (which is on the prosecution), and the standard of proof (which is proof beyond reasonable doubt).

ACCUSED'S SWORN EVIDENCE

I have given careful consideration to the accused's sworn evidence, bearing in mind that he need not have given evidence on oath.

LIMITED USE OF EVIDENCE OF RECENT COMPLAINT

I have reminded myself that evidence of what the victim is alleged to have said to Taga Vito by way of complaint shortly after the incident (what the law calls 'recent complaint') is not evidence of the truth of what was said; it is not evidence tending to prove what actually had occurred; such evidence, which was from the complainant herself (but in the most general of terms) and from the witness Taga Vito (which was, as far as concerned his evidence, to the effect that the victim had said to him that she had been' chased by the accused wielding a bush knife', inconsistent with the complainant's account of the events) was allowed in evidence and might have been used by me (but for the inconsistency) to rebut any suggestion that the victim had made up her story (or part of it) or had told lies, and to show (if it did) some consistency on her part between what occurred on the day in question and the story told by her in the witness box. In so far as such evidence was admissible, it might have been used (but it ought not, in my judgment, to be so used in the circumstances of this case) to bolster the complainant's credit. But that is not to say that I rejected the complainant's evidence entirely. Her credibility and reliability were not enhanced by the evidence, such as it was, of recent complaint, but, in the final analysis, the alleged victim's credibility as to what she testified had occurred and how she had reacted to the accused's conduct remained intact.

ADMISSIONS

An admission is a statement, whether made out of court or made in court, by an accused against his interests, in the sense that the statement, if true and if meant in a certain way, will tend to prove (or go towards proving) the charge against him or impair (or break down) his defence. A confession, on the other hand, is a special kind of admission. It is one which involves a full acknowledgment of guilt, but I hasten to say that there was no evidence of a confession here. An admission relates only to one or more limited aspects of the charge. It is limited to one or more facts involved in the case.

There was here evidence which I construe as a series of admissions, to the following effect and I set out a number of extracts from the exhibits and the transcript:

In the accused's caution statement (Exhibit P2) he said:

"I reached over and kissed the woman, however, she did not open her mouth but only both our lips that touched each others. I at the same time reached her over and fondled with her breasts as well as her dress but my hands did not reach inside. I eventually touched Vaiono's inside her panty, and tried to touch her private part, however, my finger did not touch inside but only outside I touched together with her hairs. The woman tried to resist me coupled with her putting her legs together tightly. We both fell down from the dry tree trunk, then I stood up and went to my land."

In the examination in chief of the accused, the accused said:

"(We were sitting on the log) and chatted. At that time, during the course of our conversation, I said to (the complainant) that the way that I make mends (women) is that, when I have the opportunity, I never hesitate but I utilise it and take advantage of the opportunity. I then kissed her on the lips."

"After I kissed her on the lips, I then fondled her breasts, but at that time she still had her top on."

"After (falling off the log) I laid her down facing up, placed my hands through her skirt and I felt I was touching her panty and then I felt her pubic hair."

"It was during that time that I felt her pubic hair before she kicked me away. After that, she left, while I went away. I took off."

"Q. Did she stop you or try to resist while you were touching her?

A. Vaiono tried to resist what I was trying to do, that was why I took off

"Q. When did u first realise that she wanted you to stop?

A. She first tried to stop me when I kissed her on the lips and when I fondled her breasts."

"Q. Siaosi, you said that Vaiono tried to resist you when you were kissing her, why didn't you stop then?

A. Although she showed signs of resistance when I kissed her - she pushed with her hands - she didn't back off"

"Q. You heard Vaiono say that she screamed, is that true?

A. Yes, she screamed."

"Q. Did you do anything that would make it necessary for Vaiono to kick you?

A. All I did, I was trying to restrain (or hold) her, but she managed to kick me."

"Q What do you mean by 'restrain' her?

A What I mean - I was trying to hold her while at the same time I was trying to reach her, but she managed to kick me."

In cross examination, he gave the following evidence:

"Q. Earlier you stated in your XN you stated that you were trying to restrain the woman while you were trying to reach her, my question is: you were trying to restrain her because she was resisting you, is that true?

A. She tried to resist me - for what I was trying to do to her."

TRADITIONAL APOLOGY NOT TREATED AS INDICATIVE OF CONSCIOUSNESS OF GUILT

I put out of my mind, in this context, the fact that the accused had tendered a traditional apology (which was accepted), because such conduct, though possibly indicative of a consciousness of guilt, was equally consistent with the conduct of a person who had thought the complainant was not objecting to the kissing or the handling or the touching (giving rise to a genuine belief that she was consenting) up to the point when she withdrew the implied consent and he then desisted, and he was apologising for that.

USE MADE OF ADMISSIONS

As I was satisfied beyond reasonable doubt that the words (by way of admissions) used by the accused in evidence constituted the truth, as he saw it, I then drew the inference (also beyond reasonable doubt) that that evidence was directed to the issue of the guilt of the accused. I reminded myself that an admission can only be used to go towards proving a charge against an accused if I am satisfied beyond reasonable doubt not only that he said what was attributed to him but also that what the accused said was a truthful acknowledgment of him having been recklessly indifferent as to whether the complainant had been consenting or not and therefore of him having being involved (to that extent at least) in the indecent assault.

RULE OF PRACTICE RE UNCORROBORATED EVIDENCE - THE WARNING

I am required by a rule of practice here in Samoa to give myself a warning that it is unsafe to convict the accused on the uncorroborated evidence of the complainant (see the decision of Sapolu, CJ in Police v Gese Kuki (1994) Supreme Court of Western Samoa Decision at p.141).

MEANING OF CORROBORATION

I should explain what collaboration is. It is some evidence coming from an independent source, some source other than the complainant herself. It is some separate item of evidence which implicates the accused and confirms (or tends to confirm) in some material particular that he is guilty of the offence charged. It is, in short, evidence which renders the complainant's evidence more probable. Moreover, for the evidence to be corroborative, it must be such as to show not only that the crime under consideration was committed, but also that the accused committed it.

Before evidence can be treated as corroborative, I must first be satisfied beyond reasonable doubt that it is true, and, secondly, I must be satisfied beyond reasonable doubt that the proper inference from it is that it tends to confirm the guilt of the accused.

THE WARNING. AND WHAT IS AND WHAT IS NOT CORROBORATION

I reminded myself of the need for considerable caution before acting on the evidence of the complainant here, the alleged victim of this sex offence, alone. I reminded myself that neither evidence of the accused having the opportunity to commit the alleged crime (See the Australian cases of R v Colless (1964) 84 WN (NSW) 55 and R v Gallagher (1986) 41 SASR 73; compare Ryan CJ in Police v Faatoafe (No. 1) (1980-1993) WSLR 482), nor the evidence of the alleged victim's complaint to Taga Vito shortly after the incident occurred (see Police v Pua Lautaimi - Sapolu CJ 11/12/97), nor the evidence of her distress (see the English case of R v Knight (1966) 50 C.AR. 122 at p.125 and the Australian case of R v Wave (1984) 14 A. Crim. R 391 at p.393, compare Police v Faatoafe supra), nor the evidence of an apology (which would be equivocal in the circumstances of this case) may be used as corroborative evidence. The only evidence which is capable of corroborating the complainant's story is the relatively weak evidence (given by Taga Vito) which, despite its minimal probative value, I accept, as to the injury to the alleged complainant's right lower lip (and the blood seen there) (see the Australian case of R v Berrill (1982) Qd. R 508 at p.527) and that given by the accused in his caution statement (Exhibits PI and P2) and from the witness box (which I accept) which constitutes admissions (see the Canadian case of Goguen and Goguen v Bourgeois and Bourgeois (1957) 6DLR (2d) 19 and the Samoan case of Police v Simalu Alomalu - Sapolu CJ - 9 November 1998). The confirmatory evidence of Taga Vito of the injury to the right lower lip, which was not in turn supported or confirmed by the evidence of Constable Wairarapa Young, was as weak as the evidence of the admissions (made by the accused) was strong. Indeed, I concluded that the Accused himself provided this Court with strong corroborative evidence of the complainant's story as to lack of consent and as to the accused's reckless indifference as to whether she was consenting or not.

INDECENT ASSAULT - THE ELEMENTS

I now turn to a consideration of the elements of the charge here. The charge was, as I have indicated, one of indecent assault. Particulars of the charge were that the accused on 22 July 1998, at Lotosoa Saleimoa, indecently assaulted Vaiono Lui.

Indecent assault, as a matter of law in the context of this trial, is the direct and intentional touching or handling by the accused of (and against) the complainant without lawful excuse [the assault]; there must be circumstances of indecency accompanying the touching or handling and offered towards the complainant, that is to say, it must be a hostile touching in a sexual sense [the indecency]; the indecent assault must occur without the consent of the complainant [the absence of consent]; and the accused either knew that the complainant was not consenting to that touching or handling or was recklessly indifferent as to whether the complainant was consenting or not [the knowledge (or reckless indifference to the fact) that consent was lacking].

Therefore, in order to obtain a conviction (or verdict of guilty) the prosecution must prove four things beyond reasonable doubt.

First, the prosecution must prove that the accused directly and intentionally touched or handled the complainant without lawful excuse.

I will discuss what constitutes 'lawful excuse' in a moment.

Secondly, the prosecution must prove that there were circumstances of indecency which accompanied the touching or handling, that is to say that the touching or handling was hostile in a sexual sense (see the Australian case of R v Johnson (1968) SASR 132).

It is for me, as judge of the facts, using my common-sense to decide whether the circumstances do amount to indecency, but I have little difficulty in finding that, for a man forcibly and unilaterally to kiss a woman, for him (in the same uncaring manner) to fondle her breasts, and r. for him (in the same uncaring manner) to touch her between her legs on or near her panty and then on her pubic hair, amounts to circumstances of indecency, because it would certainly offend against current community standards of propriety in Samoa.

I said I would return to discuss what constitutes 'lawful excuse'. 'Lawful excuse' for the direct and intentional touching or handling by a man of (and against) a woman in circumstances of sexual activity may, I think, be exhibited in few circumstances. I mention the most obvious example.

If an adult woman (anybody over the age of consent) consents to participating in sexual activity with a man, that is not in itself unlawful. The activity that may follow is not unlawful because the participants are consenting to what is going on. The participants are lawfully justified in doing what is consented to. If sexual activity is indulged in without consent, it is unlawful.

The absence of 'lawful excuse' and the absence of consent are connected. Therefore, proof of the first and third elements of a charge of indecent assault may interconnect.

Thirdly, the prosecution must prove that the indecent assault occurred without the consent of the complainant.

And, fourthly, the prosecution must prove that the accused either knew that the complainant was not consenting to that touching or handling or was recklessly indifferent as to whether the complainant was consenting or not (see the English case of S Supra).

MEANING OF CONSENT

The important time, for consent purposes, is the time immediately before the touching or handling. 'Consent' or 'the absence of consent' are words to be given their ordinary meaning in contemporary Samoan society. It is the law that, in the context of sexual activity between a man and a woman, 'consent' covers a wide range of states of mind ranging from actual desire on the one hand to reluctant acquiescence on the other (see the Australian case of R v Holman (1970) WAR 2 and the English case of R v Olugboja [1981] EWCA Crim 2; (1982) 1 QB 320). Submission on the part of the alleged victim induced by force or threat of force or out of fear (or by fraud) is not consent. There is a difference between submission and consent; there is no difference between reluctant acquiescence and consent. The law does not expect a complainant to fight to the bitter end, so to speak.

PROVING STATE OF MIND

I have reminded myself as to how a person's knowledge or reckless indifference (a person's state of mind) is proved. We cannot put a person's mind on the table, so to speak, and look into it. What we can do is 'put two and two together' and draw inferences from proved circumstances. A person's knowledge or state of mind can rarely be directly proved. More often it is indirectly proved. It is from what a person says or does, or from what a person says and does, that we can draw an inference as to what that person's state of mind was at a particular time. On some occasions a person's state of mind simply cannot be proved.

An accused person is recklessly indifferent as to whether [he complainant was consenting or not if, not knowing whether she was consenting or not, he nevertheless goes ahead. In other words, he takes a 'couldn't care less' attitude.

So it is that, if the prosecution proves beyond reasonable doubt that the accused had one or other of those states of mind, then that is sufficient proof of the accused's state of mind for the fourth element. The prosecution does not, in my judgment, have to prove an intention to assault indecently the complainant; but the state of mind that has to be proved arises in part when one is considering the first element (the 'intentional' touching or handling), the second element (the 'hostile' touching or handling in a sexual sense) and the fourth element (the knowledge that the complainant was not consenting to the touching or handling or his reckless indifference).

RECKLESS INDIFFERENCE IN THIS CASE

I am satisfied that the complainant resisted the accused, pushed him, screamed, was back-handed by him, and struggled and kicked him. Whilst it would be open to me to infer that the accused must have known that she was not consenting, I do not find it necessary to go that far. I reach the firm conclusion and am satisfied (beyond reasonable doubt) that the accused, in an arrogant, domineering and chauvinistic fashion, forced himself upon her and, adopting a 'couldn't care less' attitude synonymous with that of the over-bearing Samoan man, was clearly recklessly indifferent as to whether the complainant was consenting or not.

I have already quoted from the transcript several passages to indicate the accused's attitude. As previously indicated, I accept all of those statements as truthful. They constitute a series of confessional statements known as admissions. They operate to corroborate the testimony of the complainant. I also accept the evidence that the accused struck the complainant by striking her with the back of his hand. There was, in my judgment, nothing impossible about the blow the complainant described.

CONCLUSION AS TO LACK OF CONSENT AND ACCUSED'S STATE OF MIND

Regarding the issue of lack of consent, I was left in no doubt from the complainant's evidence (which, notwithstanding the defects in the evidence of recent complaint, I accept with regard to this issue) that she was not consenting to any of the accused's sexual advances.

Having taken heed of the warning, I nevertheless conclude that what the prosecution has proved (on the complainant's account and on the evidence of the accused himself) is that there was here' something more than reluctant acquiescence. It was, at the very least, submission, which is something quite different from consent. There is evidence (which I accept) of admissions implicating the accused and coming from an independent source (the accused), that is to say, from some source other than the complainant. That evidence corroborates the complainant's evidence and provides support for the evidence as to reckless indifference. I find that it has been proved by the prosecution that the accused was recklessly indifferent as to whether the complainant was consenting or not.

I am satisfied that the prosecution has proven beyond reasonable doubt each of the elements of the crime of indecent assault.

For these reasons I found the accused guilty of the charge of indecent assault.

JUSTICE WILSON