Police v Fono [1999] WSSC 51; S 106-97 & S107-97 (14 January 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

S.106/97 & S.107/97

BETWEEN

THE POLICE
Informant

AND

SAMUELU FONO
of Satuimalufilufi
Defendant

Counsel: M Tuatagaloa for prosecution
S Reid for defendant

Hearing: 1 December 1998
Judgment: 3 December 1998
Reasons: 14 January 1999

JUDGMENT OF SAPOLU, CJ

I have already delivered my oral judgment in this case on 3 December 1998. The following are my reasons and written judgment.

The accused is faced with two charges under section 57 of the Crimes Ordinance 1961 of having sexual intercourse with the victim knowing her to be an imbecile. Section 57 provides:

"Every one is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any woman or girl who is an idiot or an imbecile, if he knows or has good reason to believe that she is an idiot or an imbecile".

We are not here concerned with whether the victim was an idiot at the material times for the charges only allege that she was an imbecile at those times.

At the commencement of the trial, counsel for the accused conceded that sexual intercourse did take place between the accused and the victim. This greatly assisted in expediting these proceedings as it was therefore not necessary for the prosecution to adduce evidence to prove sexual intercourse. However counsel for the accused indicated that the defence was not conceding that the victim was an imbecile or that the accused knew or had good reason to believe that the victim was an imbecile. Following on from this, both counsel made submissions at the commencement of the trial as to the meaning of the word 'imbecile'.

I have already given my ruling in the course of the trial on the meaning of the term imbecile and I am of the view that the essence of that ruling should be stated in this judgment. In Rex v F (1910) 74 J.P. 384, under the then relevant English legislation, the words 'idiot' and 'imbecile' were defined to mean:

"An idiot is a person who from birth has had no mind, and an imbecile is a person who once had a mind but whose mind was decayed".

This definition was seen as defective: see R v Leonard [1922] NZGazLawRp 36; [1922] NZLR 721, 730, and the New South Wales Court of Criminal Appeal in the case of R v Colgan (1959) SR (NSW) 96, refused to follow it. Instead, the Court in Colgan's case adopted the definitions of 'idiot' and 'imbecile' contained in the Mental Deficiency Act 1927 (Imp). Those definitions provide:

"Idiots, that is to say persons in whose case there exists mental defectiveness of such a degree that they are unable to guard them-selves against common physical dangers. Imbeciles, that is to say persons in whose case there exists mental defectiveness which though not amounting to idiocy is yet so pronounced that they are incapable of managing themselves or their affairs, or in the case of children of being taught to do so".

The case of Colgan and the definitions of the words 'idiot' and 'imbecile' therein adopted are cited without criticism in Carter's Criminal Law of Queensland 6^th ed which is the only edition of that textbook available to the Court.

The words 'idiot' or 'imbecile' are not defined in our Crimes Ordinance 1961 or Mental Health Ordinance 1961. The Court was also informed by counsel that this is the first case where the meaning of the word 'imbecile' as used in section 57 of the Crimes Ordinance 1961 has been in issue. Given this state of our law, I have decided to adopt in this case the definitions of the words 'idiot' and 'imbecile' which found favour with the New South Wales Court of Criminal Appeal in R v Colgan (1959) SR (NSW) 96. In so doing, I am not unmindful of the fact that statutory provisions of other jurisdictions which are similar to section 57 of our Crimes Ordinance 1961 have been the subject of amendments as counsel for the accused correctly pointed out. However, as counsel readily agreed, the Court has to administrator the provisions of section 57 as they are.

Having decided on the meaning of the words 'idiot' and 'imbecile', I will now state the elements of the offence under section 57 bearing in mind that the charges against the accused only allege that the victim was an imbecile. The elements of the relevant offences under section 57 are:

(a) sexual intercourse between the accused and the victim;

(b) the victim was an imbecile;

(c) the accused knew or had good reason to believe that the victim was an imbecile.

In this case the prosecution does not allege that the accused had good reason to believe that the victim was an imbecile but simply that the accused knew that the victim was an imbecile.

I turn now to consider the evidence in relation to the elements of the charges. In doing so, I bear in mind the warning that it can be dangerous to convict an accused charged with a sexual offence solely on the uncorroborated testimony of the victim. However, there is really nothing to prevent the Court from convicting on the uncorroborated testimony of a victim if it is satisfied of the truth of that testimony. But if the Court does so, then it must do it bearing in mind the warning I have stated. I bear that warning in mind.

As to the first element of both charges, namely, that sexual intercourse must have taken place between the accused and the victim, the defence conceded that sexual intercourse took place between the accused and the victim, firstly, between 1 September 1996 and 9 April 1997 and, secondly, on 10 April 1997 as charged. It was therefore not necessary for the prosecution to adduce evidence to prove the first element of the charges.

As to the second element of the charges, namely, whether the victim was an imbecile, the victim who is 27 years was called to testify but she gave no evidence as to her mental condition, in particular whether she is an imbecile. However, her appearance and demeanour in the witness stand gave me the clear impression that she is not mentally normal but mentally weak, feeble and retarded. She gave a fixed and bewildered look. She kept squeezing her fingers to give a clicking sound. At times she displayed a deficit in memory. She did not answer some of the simple questions put to her. Some of the questions she answered with a nod of the head or with a sound she made with her mouth. She was, however, able to reply to some of the questions such as to where she lives, whether she attended school, and what class she left school. She actually left school at form 5. She also said that what happened to her was bad and that it was her mother and sister who told her so. However she did not know her age or what year is this year.

A clinical nurse who is a consultant in mental health at the National Hospital and has had a total of more than 20 years training and experience in psychiatric nursing examined the victim. She was called to testify in this case by the prosecution. Her evidence consisted partly of the report she prepared on her examination of the victim and partly of her oral testimony. That evidence shows that the victim is mildly retarded, mentally feeble, and her thoughts are of loose association and poorly connected. It also shows that the victim has obvious deficit in memory and brain dysfunction. The witness also testified that in her opinion the victim would not be able to live on her own or make decisions or judgments of her own. She further testified that in her opinion the victim would not be able to marry unless it is to someone who will be patient and understanding of her condition.

The victim's younger sister who is 26 years was also called to testify by the prosecution. She said she knew the accused well as their respective families live next-door to each other as members of the same extended family. She also said that the victim is weak, does not know how to count money, and does not know how to distinguish colours so that if she is told to bring a cup or plate she would bring a fork. The victim also wears torn clothes to church and befriends young girls of about 5 years of age. This witness also said that she did not think that the victim can marry and that her family cannot leave the victim alone. She further said that the victim did attend school and left at form 5.

The accused in his oral evidence said that he had known the victim for two years as they had been next-door neighbours and that they went to school together for one year and were in the same class. He often observed the victim going by herself to the copra shed or to do shopping for her family. He also said the victim often laughs when she walks on the road or when people talk to her. He then said that there is nothing wrong with the victim's mind.

The accused's mother was also called by the defence to testify. Her evidence was that she had known the victim for one year while they were neighbours. She often saw the victim doing family chores and going to church. Her observation of the victim was that there was nothing wrong with her mind.

The accused's sister of 22 years of age and brother of 16 years also testified that they had known the victim for one or one and a half years as they were next-door neighbours and that there was nothing wrong with her mind. They also never heard anyone calling the victim crazy or stupid. The accused's sister further testified that the victim was normal and she observed nothing unusual about her.

I have given careful consideration to this conflicting evidence and I have decided that the evidence of the clinical nurse who is a consultant in mental health at the National Hospital should be preferred. She is not only an independent witness but her evidence is also quality evidence. She has also had specialised training in psychiatry and mental health and more than 20 years of practical experience in that field. I am satisfied from her evidence that the victim is a person who is mentally defective to the extent that she is incapable of managing herself or her own affairs. The victim is therefore an imbecile. I am reinforced in this view of the victim's mental condition by the evidence of her sister and from my own clear impression of the victim's condition from her appearance and demeanour in the witness stand when she was called to give evidence. I therefore conclude that the prosecution has proved the second element of the charge even though there was no oral evidence from the victim that she is an imbecile which requires independent corroborating testimony.

I turn now to the third element of the charges, namely, whether the accused knew that the victim was an imbecile. In respect of this element of the charges, the prosecution relies on the cautioned statement which the accused made to the police investigating officer, Sergeant Aneteru Tago. It is clear from the cautioned statement that the police was questioning the accused on 11 April 1997 about committing an indecent assault or having sexual intercourse with the victim who is a woman who is mentally dysfunctional. In other words, the sexual intercourse with which the accused has been charged occurred on 10 April 1997 and on 11 April 1997 the police were questioning the accused about having sexual intercourse with the victim who is mentally dysfunctional.

In his statement the accused says he is well acquainted with the victim as they are neighbours. He also says in his cautioned statement that the victim appears to him to be mentally defective. The statement then goes on to say:

"This is my whole statement for this matter and it has been read to me in the Samoan language and it is correct".

The accused then wrote these words in the last two sentences:

"That is my whole statement for this matter and it has been read to me in the Samoan language and it is correct. I have read it and it is correct".

He then signed his name. The accused also signed his name four times on different parts of the statement.

The cautioned statement was admitted through Sergeant Aneteru Tago without objection to its voluntariness or otherwise. However, when the accused testified he said that he did not read his cautioned statement and the police officer who took his statement forced him to sign his statement. He also testified that he admitted to the police officer that part of the charge about sexual intercourse but he denied the part about the victim being an imbecile. Those matters were not put by the defence to the police officer when he was on the witness stand. As a result the police officer was allowed to be recalled by the prosecution in relation to those matters after all the evidence called for the accused had been given. It would be appropriate at this point to refer now to the evidence given by the police officer when he was recalled.

Sergeant Aneteru Tago, when recalled, testified that the accused did read the cautioned statement and he also read the cautioned statement to the accused. After reading the statement, he asked the accused whether there were any corrections he wished to make to his statement and the accused made some corrections. The police officer referred to these corrections in the cautioned statement with the accused's signatures beside them. He also stated that what is contained in the cautioned statement is what the accused told him.

Apart from his evidence in relation to the cautioned statement, the accused, if I may repeat his evidence for the purpose of clarity in considering the third element of the charges, also stated that he had known the victim for two years as a next door neighbour and he often visited the victim's family. He also attended school at form 5 with the victim for one year. He also stated that he had no opinion that there was anything wrong with the victim's mind and he objected that the victim has something mentally wrong with her. He further testified that the victim often laughs when she walks on the road or when people speak to her.

I have given careful consideration to the evidence given by the accused in relation to the cautioned statement and to the evidence of the police officer who took the statement as well as to their respective demeanours and I have decided to accept the evidence given by the police officer. It is quality evidence. In his cautioned statement the accused admits that the victim appeared to him to be mentally defective. However the voluntariness of his cautioned statement was not challenged when that statement was produced in evidence by the police officer. The only challenge that was launched against the cautioned statement was made when the accused testified in the witness stand, but that was after the police officer had produced the cautioned statement and the case for the prosecution was closed. I am also satisfied that he read his cautioned statement because there are three corrections that he made to that statement and he signed his name alongside those corrections. In my view he could not have made those corrections to his cautioned statement unless he had read the statement and discovered the errors which he corrected.

Furthermore, the oral evidence by the accused that he had no opinion that the victim had anything mentally wrong with her is quite inconsistent with the evidence given by the victim's sister and the witness who is a consultant in mental health with more than 20 years training and experience in psychiatric nursing. I also observed the victim in the witness stand and my clear impression of her is that she is mentally defective. I therefore cannot accept the evidence by the accused that the victim is not mentally defective and that he had no opinion that the victim was mentally defective. As a relative and next-door neighbour of the victim for two years who often visited the victim's family, I conclude that the accused knew that the victim was mentally defective and that what he had told the police officer in his cautioned statement was the truth which he is now trying to deny. I would further conclude that the accused, being well acquainted with the victim as a relative and next-door neighbour, knew that the victim was a person who is incapable of managing herself of her own affairs. For him to know the victim as a relative and close neighbour for two years without knowing her obvious and real condition is something I would not believe.

I have also given careful consideration to the evidence by the mother, the sister and the brother of the accused that they knew the victim as a next-door neighbour and that there is nothing mentally wrong with her. I do not accept that evidence. Apart from the evidence of the victim's sister and the consultant in psychiatric and mental health, it was obvious to me that when the victim was called to the witness stand that she is not a mentally defective person. Her appearance and demeanour, her failure to answer simple questions, her mode of expression and the deficits in her memory clearly show that she is mentally defective. My impression of the victim is consistent with the findings by the consultant in mental and psychiatric health. I therefore cannot accept the evidence given by the mother, sister and brother of the accused.

Accordingly I find the third element of the charges to have been established. The prosecution has also proven both charges beyond reasonable doubt.

CHIEF JUSTICE

Solicitors:
Attorney-General's Office, Apia, for prosecution
Reid, Apia, for defendant