Moeva v Attorney-General [2000] WSSC 12 (13 June 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Criminal Procedure Act 1972 Section 108

BETWEEN:

LAFI LEAFA MOEVA
of Malie
Applicant

AND:

THE ATTORNEY GENERAL
Respondent

Counsel: T K Enari for Applicant
F Tufuga for Respondent

Hearing: 6 June 2000
Judgment: 13 June 2000

JUDGMENT OF SAPOLU CJ

This is an application for a retrial under section 108 of the Criminal Procedure Act 1972. The applicant was tried on two counts, one of causing grievous bodily without lawful justification and one of indecent assault. On the count of causing grievous bodily harm without lawful justification he was found guilty of the lesser count of causing actual bodily without lawful justification and sentenced to 12 months imprisonment. On the count of indecent assault he was found guilty and sentenced to 18 months imprisonment. Both sentences were made to run concurrently. The applicant is now seeking a retrial on the count of indecent assault only.

Essentially the two grounds of the retrial application may be stated as follows:

(a) new evidence has come to hand since the trial which could not have reasonably been available at the trial and which evidence if it had been given at the trial together with other evidence might have led to a verdict of not guilty.

(b) the prosecution did not present at the trial all the evidence that was available on the charge of indecent assault.

As the case was presented for the applicant it was clear that ground (a) was the real ground on which the application was founded. Ground (b) was really a criticism of the prosecution.

The application further seeks an extension of time to bring the application which was filed on 18 February about 10 days after the 14 days time period provided in section 108 (2) of the Criminal procedure Act 1972 for a retrial application to be filed after conviction had expired. I have decided to deal first with the merits of the retrial application and put aside for the time being the application for extension of time.

Both counsel referred to the approach applied by this Court in Lesa Farani Posala v Police (1994) (unreported judgment delivered on 12 July 1994; misc 18107) which was also a case concerned with a retrial application on the basis of new evidence. In Posala’s case it was said that it was not enough for the purpose of granting an application for a retrial that the new evidence should only be new in the sense that it could not have reasonably been given at the trial. The new evidence must also be credible. And as it appears from the New Zealand cases of R v Baker [1976] NZLR 419 and R v Arnold [1985] 1NZLR 193 cited by counsel for the applicant, it is also necessary to show that the new evidence if it had been given with other evidence at the trial might have led to a reasonable doubt as to the guilt of the applicant and therefore a verdict of not guilty.

The new evidence which forms the basis of this retrial application is the report of the doctor who medically examined the complainant on 5 October 1999 after she was beaten up by the applicant who is her step-father. In his brief report produced in these proceedings, the doctor says he found swellings on the complainant’s left and right eyes, stiffness of muscles at the back of her neck and abrasions on her shoulders and chest. The doctor then concludes by saying “other areas of the body - no signs of injuries”.

The doctor was not called by the prosecution to give evidence even though his name appears on the list of prosecution witnesses given to counsel for the applicant. The evidence of the police investigating officer Corporal Latu Latu was that the police were not able to obtain a report from the doctor before the trial started.

After the applicant was sentenced on 31 January his counsel wrote a letter dated 1 February to the doctor for a copy of his report on his examination of the complainant. In the same letter the doctor was asked to verify whether he had supplied a copy of his report to the police. On 10 February the office of counsel for the applicant received a copy of the doctor’s report which is dated 17 January 2000. Counsel for the applicant was overseas at the time he arrived back on 12 February and filed his retrial application on 18 February. Nothing was said by the doctor as to whether he had given a copy of his report to the police before the trial.

The first question to be considered is whether this is new evidence in the sense that the medical report could not have reasonably been available to the applicant at the trial. The answer must yes. The prosecution which was expected to obtain the doctor’s report for the trial was not able to do so itself. Even though it may be argued that counsel for the applicant should have requested the prosecution before the trial for a copy of the doctor’s report or request the doctor directly for a copy of his report, I am very doubtful that he would have been able to obtain a copy of the report given that the prosecution itself was not able to obtain a copy of the same report. In these circumstances I am of the view that the new evidence could not have reasonably been available to the applicant at the trial.

That leads to the next question whether the new evidence is credible. There was no suggestion that the new evidence is not credible. I am of the view that the new evidence is credible.

The next question then, and it is the principal question argued in these proceedings, is whether the new evidence when considered together with other evidence given at the trial might have led to a reasonable doubt as to the guilt of the applicant and therefore a not guilty verdict. This requires consideration of the evidence given at the trial together with the new evidence.

The evidence of the complainant who was 18 years at the time of this incident was that the applicant who is her stepfather came to the home of her boyfriend at Vaivasetai and found her and her boyfriend inside a room. She was wearing a “suluaoao”, that is, a lavalava around her armpits. The applicant was very angry. He fought with the complainant’s boyfriend and then beat him up until the boyfriend disappeared. The applicant then beat up the complainant throwing several powerful punches and delivering kicks to her when she fell down. The complainant also said that the applicant locked the room so that it was only the applicant and herself in the room. At one time her lavalava fell off so that she was standing naked and the applicant touched her private part with his left hand and poked his finger inside her private part while he continued to beat her up with his other hand. After her beating by the applicant she went and lodged a complaint with the police who told her to see a doctor which she did on 5 October 1999 the date of this incident. The doctor medically examined her body including her private part. As a result of the beating she received from the applicant the complainant said her eyes were swollen, her body was aching and one of her teeth was so very painful that eventually it had to be removed two weeks before the trial.

Counsel for the applicant conceded that the complainant was beaten up by the applicant resulting in actual bodily. He therefore concentrated his cross-examination on the complainant’s evidence about indecency. The complainant maintained what she had said in her evidence in chief regarding the indecency committed by the applicant on her. She said the applicant poked his finger inside her private part and said so this is what you wanted.

The dentist who treated the complainant on 17 October 1999 testified in his report that the complainant had swellings on both eyes and lower lip and one of her teeth was broken.

The evidence of a 25 year old woman who was at the house where the complainant was beaten up by the applicant was that when the applicant arrived the complainant and her boyfriend were inside the room. The applicant then beat up the boyfriend and also the complainant. She told the applicant to stop but he did not. She then took the boyfriend to the nearby house of an ex police officer leaving only the complainant and the applicant inside the room. The witness also said that she saw the applicant delivering punches to the complainant who was not wearing anything. The complainant sustained injuries and she was in a serious condition.

The evidence of the ex police officer who came and stopped the applicant from beating up the complainant was that when he arrived on the scene the complainant was lying on the floor with nothing on except a lavalava around her. He observed that the complainant’s eyes were swollen and blood was coming from her mouth.

The police investigating officer was also called to give evidence. He said the complaint by the complainant included one of indecent assault. He produced a cautioned statement which he said he obtained from the applicant. The cautioned statement is signed by the applicant and witnessed by the police investigating officer. The admissibility of this cautioned statement was not challenged on a voir dire. In it there is an admission by the applicant that he assaulted the complainant. The lavalava she had around her fell down so that she was naked. He then touched her private part with one hand while he continued to assault her with his other hand.

The applicant elected to give evidence. His evidence confirms the account given by the complainant as to how she was beaten up except where the complainant said she was indecently assaulted. The applicant testified that he found the complainant with a boy inside a room. He fought with the boy but the complainant tried to protect her friend. So he beat up both of them. At that time the complainant was wearing a lavalava around her armpits. The lavalava fell off while he was beating her and she stood there with nothing on.

The applicant denied that he told the police investigating officer that he touched the complainant’s private part. He said he refused to sign the cautioned statement which was read to him but the police officer insisted that he signed as it was only a matter between the two of them. He then signed the statement. All this was put to the police investigating officer when he was cross-examined by the applicant’s counsel. The police officer denied them.

Now it is clear that the complainants’ evidence as to her being beaten up by the applicant and how she was being beaten up is confirmed by the evidence of the 25 year old woman who was present, the evidence of the ex police officer who later stopped the applicant, and the oral testimony of the applicant himself. The complainants’ evidence as to the nature of the injuries inflicted by the applicant on her is also confirmed by the 25 year old woman who was present at the scene, the ex-police officer who stopped the applicant, the dentist who treated her and also the doctor’s report that is now sought to be adduced as new evidence to justify a new trial. The only point of evidence in dispute is the alleged indecency which, as it appears from the complainant’s evidence, was committed on her by the applicant while only the two of them were inside the room.

In my oral judgment delivered on 24 January at the conclusion of the evidence, I said that in considering the complainants’ testimony it should be borne in mind that it can be dangerous to convict an accused in a sexual case solely on the uncorroborated testimony of a complainant. However there is really nothing to prevent the Court from convicting the accused solely on the uncorroborated testimony of a complainant if satisfied of the truthfulness of her testimony. But if the Court so convicts, it must do so bearing in the warning that it can be dangerous to do so.

I have had serious reservations about the validity of the corroboration warning for a very long time because it implies that victims of sexual cases who are usually females have an inclination to concoct or fabricate sexual allegations. However there is no solid evidence, at least in Samoa, to support such a rationale for the corroboration warning.

Anyhow I decided that the applicant’s cautioned statement, which I accepted, provided corroboration of the complainant’s evidence that she was indecently assaulted by the applicant. But even if the cautioned was not treated as amounting to corroboration, I was still satisfied, of the truthfulness of the complainants evidence as to indecency so that I would still have convicted the applicant on that basis bearing in mind the corroboration warning. I also did not accept the applicant’s evidence that he did not indecently assault the complainant.

Now in support of the retrial application, counsel for the applicant submitted that what the doctor says in his report about “other areas of the body - no signs of injuries” suggests that the applicant did not touch or poke his finger inside the complainant’s private part. He also submitted that if the applicant had poked his finger inside the complainant's private part the doctor should have found at least some marks. He further submitted that the doctor should be called to testify and be cross-examined whether given his findings and the circumstances of this case he is of the opinion that the applicant did put his finger inside the complainant’s private part.

In my view the report by the doctor that he found no injuries on any other part of the complainant’s body is neutral. It does not show whether an indecency did happen or did not. The complainant also did not say or complain that she sustained any injury or felt any pain to her private. Furthermore, to say that the doctor if called to testify could be cross-examined whether in his opinion the complainant was indecently assaulted or not suggests that the doctor’s report, as it stands on its own, is not enough. More is required. But what the doctor’s answers would be when cross-examined is mere speculation at this stage. His answers may not assist the applicant at all. Generally one does not expect to find injuries or marks in a female’s private part when some bodily thing like a finger is inserted into it even if with some force.

In any event the evidence of the complainant in all other aspects is consistent with and supported by other evidence given at the trial including that of the applicant and the doctor’s report. Her evidence is only in conflict with that of the applicant on the issue of indecency. On the other hand the applicant’s evidence relating to the issue of indecency is not only in conflict with that of the complainant but also with the evidence of the police investigating officer who obtained a cautioned statement from him.

For all the foregoing reasons I am not satisfied that if the new evidence had been given at the trial with other evidence it might have led to a reasonable doubt as to the guilt of the applicant and therefore a not guilty verdict.

In view of that conclusion it is not necessary to reach a decision on the application for extension of time which raises some important questions of statutory interpretation.

The retrial application is dismissed.

CHIEF JUSTICE

Solicitors:
Kruse, Enari & Barlow for applicant
Attorney General’s Office for respondent