Police v Tauasa [2000] WSSC 19 (14 July 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SITULIA TAUASA
of Malie-uta.
Defendant

Counsel: M Tuatagaloa for prosecution
S Leung Wai for accussed

Hearing: 5 July 2000
Judgment: 14 July 2000

JUDGMENT OF SAPOLU CJ

The accused is charged with four counts under section 50 of the Crimes Ordinance 1961 for having sexual intercourse with a girl under the age of 21 years who, being his foster daughter, was at the time living with him as a member of his family, and with one count under section 54(1)(a) of the same Ordinance for indecently assaulting a girl over the age of 16 years. Two of the counts charging the accused under section 50 each alleges that the accused at Malie-uta between 29 February 2000 and 1 April 2000 did have sexual intercourse with the victim, who was under the age of 21 years and, being his foster daughter, was living with him as a member of his family. The other two counts charging the accused with the same offence each alleges that the accused at Malie-uta on 8 May 2000 did have sexual intercourse with the victim who was at the time under the age of 21 years and, being his foster daughter, was living with him as a member of his family. The fifth count charging the accused with indecent assault alleges that the accused at the Fugalei Market on 14 May 2000 did indecently assault the victim who was at the time over the age of 16 years.

At the commencement of the trial, counsel for the prosecution made application to amend each of the four charges under section 50 of the Crimes Ordinance 1961 by inserting the words "foster daughter" immediately after the name of the victim and to amend the charge of indecent assault under section 54(1)(a) of the Ordinance by deleting the letter "(b)" from the charging provision. As I did not see any undue prejudice resulting to the accused from those amendments if granted, I decided to allow the amendments.

As this is a sexual case, I have to bear in mind when considering the evidence the usual corroboration warning. That warning says that it can be dangerous to convict an accused in a sexual case solely on the uncorroborated testimony of the victim. However, there is nothing to prevent the Court from convicting an accused solely on the uncorroborated testimony of the victim if the Court is satisfied of the truthfulness of her testimony. But if the Court so convicts, it must do so bearing in mind that it can be dangerous to do so. With that warning in mind, I would now proceed to consider the evidence.

In her evidence, the victim testified that she is now 16 years of age having been born on 25 April 1984. She said she was brought up at Malie-uta by the accused and his wife who is the sister of her natural mother’s mother in their home at Malie. She looked upon the accused as her own father and his wife as her own mother. She had been attending school but since 1998 she stopped going to school.

She said that on three separate occasions in March this year while she was sleeping at their home at Malie-uta, the accused would come to her late in the night and removed her panty and inserted his private part into her private part. At the time, her mother, the accused’s wife, was asleep. The accused would tell her not to tell anyone what he was doing to her otherwise he would beat her up. Because of that the victim was scared to tell her mother or anyone else what the accused was doing to her. In May this year while she was sleeping at their home at Malie-uta, the accused again inserted his private part into her private part late at night after removing her panty. Then while she was with the accused and his wife at the Fugalei Market on 1 May this year to sell their plantation produce, she was sleeping when the accused touched her private part late at night.

The victim also testified that it was when her half-brother asked her if what he had been told by someone else about what the accused was doing to her was true, that he told him that it was true. Her half-brother then came with her to the police in Apia and lodged a complaint against the accused. The police located the accused and brought him to the police station where he was questioned in relation to the complaint.

The prosecution also called the victim’s natural mother, her half-brother and Constable Lene Tanielu who conducted the police investigation into this matter to give evidence. According to the evidence of the victim’s natural mother, she gave birth to the victim on 25 April 1984 so that the victim would now be 16 years of age. She also produced the victim’s birth certificate to confirm that the victim was born on 25 April 1984. She also testified that the accused and his wife took over the upbringing of the victim when she was three weeks old and they have always been responsible for the upbringing of the victim ever since. She left the victim’s upbringing to the accused and his wife. She also gave the name of the victim’s natural father which is not that of the accused. She also stated that the accused’s wife is her aunty being the sister of her mother. When these incidents happened to the victim she had already left Malie-uta which she did in 1998.

The victim’s half-brother in his evidence testified that he did ask the victim about what the accused was doing to her. He also stated that the victim had been brought up at Malie-uta by the accused and his wife since she was young and the accused’s wife is the daughter of his father’s sister. His house at Malie-uta is close to the accused’s house.

Constable Lene Tanielu in his evidence testified that when he questioned the accused at the Apia police station after cautioning him and advising him of his right to counsel, the accused refused to have counsel at that time. He also did not wish to make a written statement. He simply cried and apologised by saying he was sorry for what he did to his daughter, the victim. He then orally admitted to having sexual intercourse with the victim three or four times. The accused elected not to give evidence.

Leaving aside for the moment the question of whether the victim was a foster daughter of the accused and the question of the evidence being at variance with the dates stated in some of the charges, the three elements of the four charges under section 50 of the Ordinance that the prosecution really has to establish beyond reasonable are that the victim was under the age of 21 years at the material times, that sexual intercourse did take place between the accused and the victim and that at all material times the victim was living with the accused as a member of his family.

The victim’s evidence on those three aspects of the four charges under section 50 is that she is now 16 years of age having been born on 25 April 1984 and the accused had sexual intercourse with her four times while she was living with the accused and his wife as her parents at Malie-uta. The victim’s evidence concerning her age is corroborated by the evidence of her natural mother who produced the victim’s birth certificate which shows the victim’s date of birth to be 25 April 1984. The natural mother also orally stated that the victim is now 16 years of age having been born on 25 April 1984. In relation to sexual intercourse, the victim’s testimony that the accused had sexual intercourse with her four times is corroborated by the accused’s oral admissions to Constable Lene Tanielu that he had sexual intercourse with his daughter, the victim, three or four times. The victim’s evidence that she was living with the accused and his wife as her parents at all material times was amply corroborated by the evidence of her natural mother and half-brother. I am satisfied beyond reasonable doubt that the prosecution has proved the age of the accused to have been under the age of 21 years and that the accused had sexual intercourse with the victim four times, as alleged by the victim, while she was living with the accused and his wife as a member of the accused’s family.

On the charge of indecent assault, I have decided to accept the uncontradicted evidence of the victim that the accused indecently assaulted her at the Fugalei Market by touching her private part. She was also over the age of 16 years at the time. I find the victim’s evidence to be credible. In accepting this part of the victim’s uncorroborated and uncontradicted testimony, I do so bearing in mind the corroboration warning I have already referred to in this judgment.

Now consent is not a defence to any of the charges under section 50. It is a defence to the indecent assault under section 54(1)(a) and I accept the submissions by counsel for the accused that consent is a defence under that provision. However, submission to an indecent assault is not consent. And that is what happened here.

It is to be noted from the evidence that the accused had by the time of the alleged indecent assault in May, had already had sexual intercourse with the accused twice in March this year. The accused had threatened the victim not to tell anyone what he was doing to her otherwise he would beat her up. The victim was scared. Then at the Fugalei Market in May this year, the victim was sleeping when the accused touched her. It was late at night. On that evidence, I am of the view that the victim did not consent. Submission out of fear or out of a sense of helplessness is not consent.

Counsel for the accused in trying to do his best for the accused also referred to certain evidential matters to create a doubt regarding the credibility of the victim. He pointed out that the victim never complained to anyone even though she has a number of male relatives in her family at Malie-uta and the accused is from a different village but married into the victim’s family. The victim’s response was that she did not complain because she was scared of the threats the accused made to her. I think one should alas consider the relationship of father and daughter that existed between the accused and the victim. Counsel for the accused also pointed out that the indecent assault alleged to have taken place at the Fugalei Market was unlikely to have happened because the Fugalei Market is a public place and there must have been many people around. The victim’s response was that the assault took place late at night while everyone was asleep. She was also scared of the accused because of the threats he had already made to her. Here again I think one has to bear in mind that the accused was the father and the victim the daughter and the accused had already had sexual intercourse with the victim twice in March.

Counsel for the accused then raised what appeared to be his main defence which is that the prosecution has not established beyond reasonable doubt that the victim was a foster-daughter of the accused at the material times. Counsel for the prosecution in her reply pointed out that the expression "foster daughter" is not defined in any legislation in Samoa; nor has it been defined in any decided case in Samoa. She also stated that she could not find any New Zealand or English case where the expression foster-daughter has been defined. Given that the expression is not given any special definition in the Crimes Ordinance 1961 or any other Samoan legislation, she submitted that foster daughter should be given its ordinary meaning in the English language, and that ordinary meaning can be found in the recognised dictionaries on the English language.

Counsel for the prosecution then referred to some dictionary meanings of foster daughter. The first is The Concise Oxford Dictionary 9th edition which defines the term "foster" to mean, inter alia:

"bring up (a child that is not one’s own by birth),.... having a family connection by fostering and not by birth (foster brother, foster daughter, foster child").

In Webster’s Dictionary 1989 edition "foster child" is defined as to mean:

"a boy or girl in relation to his or her foster parents".

"Foster parents" is then defined to mean:

"a man or woman acting as father or mother to a child who is not his or her offspring nor a stepchild, and not legally adopted".

Counsel then referred to Black’s Law Dictionary 5th edition where the expression "foster child" is defined to mean:

"Child whose care, comfort, education and upbringing has been left to persons other than his natural parents".

And "foster parent" is defined to mean:

"One who has performed the duties of a parent to the child of another by rearing the child as his own".

To shed more light on the subject, I refer to the distinction between a guardian and a foster parent. In Family Law (1974) 1^st edition, vol 2, by Bromley and Webb, it is stated at p. 494.

"A guardian must also be distinguished from a foster parent in the sense of one who has de facto control and custody of a child without being its legal guardian. If a parent is dead or unfit to exercise his parental rights and duties, it is clearly essential that they should be exercisable by somebody else standing in loco parentis to a child, but both in English and New Zealand law they will not rest in a guardian unless he has been appointed in one of a number of recognised ways, for example, by a Court order or by will of a deceased parent. In a large number of cases, of course, this never happens; and if both parents die, a child’s grand-parent or other near relatives will assume de facto control and custody of the child without taking steps to have themselves appointed legal guardians at all".

Having regard to what has been said, I am of the view that a foster daughter would not include an adopted daughter, natural daughter, step daughter or ward. Foster daughter must, therefore, mean a female child whose care and upbringing has been left to the parental care of others who are not her adoptive parents, natural parents, step parents or guardians.

From the evidence of the victim’s natural mother it is clear that the care and upbringing of the victim was left to the accused and his wife as parents since she was three months. While the victim was living with the accused and his wife as a member of their family she attended school. The victim’s half brother also testified that the victim had been brought up since she was young by the accused and his wife. The victim regarded the accused and his wife as her father and mother. Constable Lene Tanielu testified that the accused apologised to him for what he had done to the victim, his daughter, which suggests that the accused looked upon the victim as his daughter. It is also clear from the evidence that the accused and his wife were not the adoptive parents, natural parents, step parents or guardians of the victim. I, therefore, conclude beyond reasonable doubt that the victim was the accused’s foster daughter at all material times.

There were three other matters pointed out by counsel for the accused. The first is that the victim testified that the accused had sexual intercourse with her three times in March this year and then once later in May. However, only two of the charges under section 50 of the Ordinance relate to the period between 29 February 2000 and 1 April 2000. The other two charges under section 50 state that the alleged offences took place on 8 May 2000. The second matter as pointed out by counsel for the accused is that while two of the charges state that two of the alleged offences took place on 8 May 2000, there was no evidence from the victim or any other witness that the alleged offences took place on that date. The victim only stated that the accused had sexual intercourse with her three times in March and once in May. The third matter is that while the victim testified that the accused indecently assaulted her on 1 May 2000 the charge states that that happened on 14 May 2000.

I must emphasise the importance of being accurate with dates or time periods within which an offence is alleged to have taken place. It is risky for the prosecution to have to rely on the Courts discretion under section 36 of the Criminal Procedure Act 1972 to amend a charge at any time during the trial for the Court in the exercise of that discretion may refuse to amend the charge. However, in this case I see no undue prejudice to the accused and therefore no miscarriage of justice by amending three of the charges as follows.

Charge 608/00 is amended by deleting the words "on the 8^th day of May" and substituting the words "in March". Charge 625/00 is amended by deleting the words "on the 8^th day of" by substituting the word "in". Charge 626/00 is amended by deleting "14^th" and substituting "1^st".

All in all then, I find that all the five charges against the accused have been proved beyond reasonable doubt. This matter is adjourned to 31 July for a probation report and sentencing.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
S Leung Wai for accused