Police v Fidow [2000] WSSC 21 (31 July 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

PESETA SIONE FIDOW
of Fugalei and Safotu, Savaii
Defendant

Counsel: Ms H. Wallwork & Mr R. Schuster for the Prosecution
Mr S. Leung Wai for the Defendant

Dates of Hearing: 4 and 7 July 2000
Date of Verdicts: 14 July 2000
Date of Reasons: 31 July 2000

REASONS FOR VERDICTS UPON A TRIAL BY JUSTICE WILSON
(SITTING WITHOUT ASSESSORS) ON CHARGES OF ‘SEXUAL
INTERCOURSE BY A MAN WITH YOUNG GIRL LIVING
IN HIS FAMILY [Section 50(1)]

The accused has been tried on 8 amended charges of breaches of section 50(1) of the Crimes Ordinance 1961 of having had, on eight separate dates (or within separate periods), "sexual intercourse with Makerita Taateo, a girl under the age of 21 years, being his foster daughter and not being his wife, and, at the time of such intercourse living with him as a member of his family." The 8 informations which contain these charges refer to offences committed (respectively and in chronological order) as follows:

(1) Between 1^st and 31^st December 1999 at Fugalei (609/00).

(2) Between 1^st and 31^st December 1999 at Fugalei (611/00).

(3) Between 1^st and 31^st December 1999 at Fugalei (610/00).

(4) Between 1^st and 31^st December 1999 at Fugalei (612/00).

(5) Between 1^st and 28^th February 2000 at Fugalei (615/00).

(6) On 26^th April 2000 at Fugalei (614/00).

(7) Between 1^st and 30^th April 200 at Fugalei (613/00).

(8) On 2^nd May 2000 at Fugalei (602/00).

The main issues in dispute in this trial were the questions of what is the meaning, at law, of the words "foster daughter" and "foster parent" and whether the prosecution has proved beyond reasonable doubt that the alleged victim, Makerita Taateo (a 15 year old girl), was the accused’s foster-daughter. A subsidiary (but, by no means, unimportant) issue was whether, if the accused is to be found not guilty on one or more of the offences as charged, he can (and should) be found guilty (by way of alternative verdict or verdicts) of a breach or breaches of section 53 of the Crimes Ordinance of ‘sexual intercourse with a girl between 12 and 16, not being his wife.’

Regarding the legal definition of "foster daughter" and "foster parent", I had postponed announcing my decision in this case to await a decision of the learned Chief Justice of Samoa in another criminal case heard just recently, in which this (or a related legal question) arose for His Honour’s decision. I also had in mind the desirability of achieving, if possible, a measure of judicial comity in this area of the law of Samoa. I have now had an opportunity to read a copy of His Honour’s Reasons in draft form which I understand he delivered on 14 July. I am persuaded by His Honour’s decision and I, respectfully, follow it as far as it deals with the meaning of the words "foster daughter" and "foster parent". In short, an accused’s ‘foster daughter" is one who is reared or brought up by him acting as her father; one who is provided with care, comfort and education by him; one to whom the duties of a father are performed.

I would just add a reference to a Canadian decision of Re Page (1973) 3 OR 903, referred to in Butterworth’s Words and Phrases (3^rd Edition) Volume 2 at p.276, where Zuber J. held (at p.904) that "foster child" means "one who has been cared for by a foster parent."

With reference to the English case of P. (R.) v P. (P.) (1969) 3 All.E.R. 777, 780, a decision of Lawton J (as he then was), I consider that acceptance of a child into the family may constitute cogent evidence of a fostering relationship, but it is not a pre-requisite. Actual involvement in the up-bringing of the child is the key factor. Except to the extent just indicated, that English case is to be distinguished, on its facts, from the present one.

I turn to the evidence on this topic. The accused, in his caution statement, acknowledged that Makerita was his "foster daughter." Whilst that is some evidence that can be used against him as an admission that there was some sort of relationship between him and Makerita, it is not, in my judgment, the sort of evidence that can (or should) be used against him as to the precise legal relationship that existed. The characterisation of the relationship is a matter of law for me, as the trial judge, to determine. It is a form of opinion evidence that, for several reasons, including the fact that it infringes "the final issue" rule, is not admissible.

In so far as the accused made admissions as to Makerita "now living together" with him and his de facto wife, Talaga, and as to them "treat(ing) her as one of (their) children", that could only, I think, in the circumstances, be an admission in relation to count 7 or 8.

The first witness to give oral evidence was the alleged victim, Makerita herself, aged 15, who described the accused as her "step-father". Her evidence as to the matter of the legal relationship is not, I consider, admissible evidence. But, even if it is admissible, it is of little or no weight, being evidence given by a teenage child whose legal relationship to the accused was to be the subject of proof. Makerita testified to her living, at the time of the trial, with her maternal grand-mother, Lauvale, and her aunt and uncle and their children. She said that she last lived with her mother, Talaga, and the accused when she "was attending school at Vaimea" prior to December 1999. She said that the last incident (act of sexual intercourse) occurred in the month of April 2000 (contrast the date in count 8). She said that the accused paid for her school fees in 1999.

Makerita testified to having been raised by her elderly relatives, Taateo and Sa, at Taufusi, and later by Taateo alone at Vaitele. As far as she was concerned, Taateo was "the parent who raised (her)".

She told the court that it was mostly Taateo and her mother who paid for her school fees.

Significantly, as far as the dates when she might or might not have been "raised by" the accused were concerned, she told the court that she lived with a defacto husband at Vaiusu-uta for about 3 weeks in 2000, prior to 2 May 2000. She said that she lived the majority of the time at Taufusi at Taateo’s house.

The second prosecution witness was Makerita’s 67 year old maternal grandmother, Lauvale Puefua. She left me with the impression that she was hostile to the accused and was prepared to exaggerate and overemphasise the closeness and length (in terms of time) of the relationship between Makerita and the accused. She testified to the fact that Makerita has been treated by the accused "as his daughter" since 1997, but she went on to state that that was the year when she "left". She said that Talaga, Makerita’s mother, and the accused and Makerita all stayed at Fugalei, but "they were at the market .... where their food stall is; it was just me and the children at Fugalei, and after work they all came to Fugalei." She testified to the accused and Talaga providing for "young Sione, aged 9 years" as well as Makerita. Having earlier stated, as I previously indicated, that the relationship of "father" and "daughter" commenced in 1997, she later stated that the accused first started living in her family in 1999, but then stated that the accused and Talaga first lived together in "1968" and "many years they have lived together" and "I think that was 1965 when Pese had lived with us at Fugalei." She did acknowledge that, after Makerita was born, she lived with Taateo and Sa, but, somewhat surprisingly (in the light of the evidence given by other witnesses), she said that Makerita was taken to live with Talaga after Sa died, when Makerita was "5 or 6 years of age".

However, she did acknowledge, when being cross-examined by Mr Leung Wai, that Taateo was "mainly responsible for the upbringing of Makerita." Mr Leung Wai, to his credit as an advocate, exposed Lauvale as a biased witness when he, in cross-examination, got her to admit that she was "not very happy as to what happened to (her) grand daughter" and that she was "very angry" with the accused.

The third prosecution witness was Talaga Peseta, Makerita’s mother and the accused’s de
facto wife. I thought that she showed some indications of a person trying to help the accused. She seemed anxious to tell the Court that the matter had "been resolved within (the) family as a result of (their) family talk."

Talaga, after explaining the relationship between Makerita and the accused:

"I am currently living with the defendant; and Makerita has a different father; Peseta (the accused) is not her father."

went on to state that Makerita was raised by Taateo and Sa (until Sa’s death) until she (Makerita) was "about 12 years of age." She said that, when Sa died, Taateo went to Australia. She said that Makerita lived with a couple at Leauvaa "for one whole year; then returned and lived with Lauvale (Makerita’s grand-mother) whilst attending school".

She said that Makerita used to come home to see her "now and then for money for school." She said that, when Taateo returned from Australia, she went and lived with him.

Whether she was distancing the accused and herself from Makerita or not, Talaga was adamant:

"She did not live with me for a long time, because she was fond of the old man, so, whilst she was staying with me, she often visited the old man."

She did say that she (Talaga) was living with the accused when Makerita "came and lived" with her, but she placed that period during which Makerita was with them as the year after she had left school, i.e. the year 2000, but later she said, "1998" but then she said that Makerita was living with them for "two months (whilst she attended school)." Talaga then asserted that Makerita was actually staying with her grand-mother at Fugalei whilst she (Talaga) and the accused were staying at the cook-house at the market. She even said that Makerita "never slept there", referring to the small cook-house. She said:

"We did not live together, she (Makerita) was living with my mother whilst we lived here (referring to the cook-house)."

Although she asserted that she (Talaga) was "mainly responsible for Makerita, ..... (but) not (for) long", she gave important (and, I thought, credible) evidence when she volunteered:

"She did not permanently stay in one place. She comes to me, she’ll go to the old lady. ........ During the times she was with the old man at Vaitele, she only came to me for bus fares. She was mainly with the old man and so I was not responsible for her."

During cross examination by Mr Leung Wai, she agreed that it was fair to say that "it was Taateo who was mainly responsible for Makerita’s up-bringing." She also agreed that "basically" she and the accused were living at the small cook-house and that Makerita "just visited". She even said that, before the May 2000 incident, Makerita spent "most of her time staying with Taateo at Vaitele."

She agreed that "it would be correct to say that Makerita saw Taateo as her father." The inference to be drawn from that testimony is that Makerita did not see the accused as her father. She also agreed that "it would be correct to say that it was Taateo who raised Makerita" and not herself and/or the accused. Talaga was asked in cross-examination:

"Would it be correct to say that, since Makerita sees Taateo as her father, she is not close to the defendant?"

Her reply was:

"Yes."

Talaga confirmed that Makerita had (and lived with) a husband at Vaiusu. She went on to re-assert that, apart from that period (in 2000), Makerita was mostly at Vaitele with Taateo, who was responsible for her and who paid her school fees. When Makerita came to visit her (Talaga), she came for bus fares to Vaitele and "some money for the old man’s food."

All in all, there was an absence of clear evidence as to actually when the accused was alleged to have provided for Makerita’s up-bringing and when and where she was living at any particular time. What was clear was that Makerita, in the last year or so, was moving around quite a lot, she was not ‘living permanently in one place’ and, if she was treating anyone like a father to her, that person was Taateo. I am persuaded by Mr Leung Wai that the evidence discloses that "the victim led an independent life and stayed in various places, and also, some time this year, had a defacto husband."

The date of the various incidents being clear (as a result of the tender of the agreed statement of facts), it was not clear, at the close of the evidence, whether there was a "foster-father" / "foster-daughter" relationship between the accused and Makerita at the particular time. Far from it having been proved beyond reasonable doubt that that sort of relationship existed during December 1999, the evidence was suggesting that Taateo and Makerita had such a relationship during the period up to the time when she left school - it was never clearly established when that was.

The old man, Taateo, was not called to give evidence, and he might have been expected to be able to give relevant evidence. No explanation was given for his absence. This is one of those rare cases in which it is open to me to infer from his unexplained absence that he could not have assisted the prosecution case [see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and Brandi v Migot (1976) 12 ALR 551].

Relying, as I must, on the evidence that was adduced, I am not satisfied beyond reasonable doubt (that is the standard of proof) that Makerita was a foster daughter and was living with the accused as a member of his family on any one of the specified dates or periods. There was some evidence of suspicion, ‘yes’, but proof beyond reasonable doubt, ‘no’. The prosecution, which carries the burden of proof, has not excluded the reasonable hypothesis or possibility that, at the date of each alleged offence in 2000, Makerita was living with her defacto husband and that, at the date of each alleged offence in 1999, Makerita was living with Taateo.

For all these reasons, the prosecution has not proven essential ingredients of the offence charged in each instance. I am referring to the ingredients conveniently described as "the foster-parent / foster-child" relationship ingredient and "the place of residence" ingredient.

If it was for me, in relation to each charge, to bring in verdicts of ‘guilty’ or simply ‘not guilty’, my verdict, in each case, would be ‘not guilty’.

But an alternative verdict is open here, in the light of section 39(1) of the Criminal Procedure Act.

Section 39(1) provides:

"39. Part of charge proved - (1) Every information shall be divisible; and, if the commission of the offence charged, whether as described in the enactment creating the offence or as charged in the information, necessarily includes the commission of any other offence, the defendant may be convicted of any offence so included which is proved, although the whole offence charged is not proved; or he may be convicted of an attempt to commit any offence so included."

In my judgment, the commission of the offence charged here in each amended information, whether as described in section 50 of the Crimes Ordinance, being the enactment creating the offence or as charged in the amended information, necessarily includes the commission of another offence, viz. the offence known as ‘sexual intercourse with a girl between 12 and 16’, i.e. a breach of section 53.

The accused here may, by virtue of the operation of section 39(1) of the Criminal Procedure Act, be convicted, in one or more instances, of an offence against section 53 if (as is the case here) the whole of the offence charged is not proven (i.e. the relationship of foster father / foster daughter is not proven and the fact that, at the time of the intercourse in question, the alleged victim was living with him as a member of his family).

The evidence in this trial clearly satisfied me that, in each instance, the accused had sexual intercourse with Makerita, not being his wife, who was at the time thereof 15 years old (viz. between the ages of 12 and 16 years).

I find the accused, in relation to each charge, ‘not guilty as charged but guilty of sexual intercourse with a girl between the ages of 12 and 16.’

Before I conclude these Reasons for Verdicts I observe, with the benefit of hind-sight and in the interests of further legal education, that I consider that this case should never have been a contested trial with all the associated worry for the witnesses who were to testify and all the associated costs to both the prosecution and the defence. In view of what prosecuting counsel told me towards the end of this trial, if the accused had, when he was re-arraigned in open Court, pleaded, in relation to each charge, ‘not guilty of a breach of section 50 but guilty of a breach of section 53’ (that is to say, pleaded ‘guilty’ to the alternative charge that was open here), the Prosecution would have accepted such pleas in satisfaction of the charges in the several informations. Because defence counsel did not (because in all common-sense, he could not) submit that that alternative verdict, in each instance, was not open (it representing the minimalist and most favourable scenario for the accused to be in), this trial became a foregone conclusion and was, in essence, a hypothetical or academic exercise. In terms of justice to the victim, she and her near relatives were faced with the trauma of having to give evidence and, in the case of Makerita, she was faced with re-victimisation associated with having to re-live the eight "incidents" whilst testifying in the witness box. In terms of justice to the accused, he, by the way his defence was conducted, has lost an opportunity to obtain, during the sentencing process, a discount (in the order of 25 to 30% off his sentence) for pleas of ‘guilty’, as an indication of his remorse and contrition, and for having saved the State the cost of a defended trial.

I observe further that Mr Leung Wai’s final submission, in which he suggested that there was no formal evidence from Makerita identifying the accused as the man with whom she had sexual intercourse, was totally devoid of merit. The clear and only inference to be drawn from a reading of the Agreed Facts between Counsel for the Prosecution and the Defence is that sexual intercourse took place between the accused and the complainant. But, in any event, Makerita did give evidence about her relationship with "this man Peseta Fidow (referring to the accused in the dock)" and she went on to state what he ("Pese") many times "did to (her) at the house where the food is cooked .... and sometimes it occurs at the place where we are at Fugalei."

I indicate, to assist counsel who may be prosecuting or defending in future criminal trials, that it is only necessary for a witness or witnesses formerly to identify the accused as the alleged perpetrator of the crime(s) in question when identification is a real and live issue, and, in that event, it is necessary to remember that the common law provides strict rules that need to be complied with before so-called identification evidence (and, in particular, evidence of a dock identification) becomes admissible.

I further observe that the submission by defence counsel emphasising the need, in a sexual case such as this, for the trier of the facts to be careful before acting on the uncorroborated evidence of the complainant alone, was hardly necessary to make for the reason that there was strong corroboration of both sexual intercourse having taken place on each occasion (see the Agreed Facts and the Caution Statement) and the complainant’s age. As there is a lack of sufficient evidence proving any of the relationships referred to in section 50 or proving that the complainant was at the relevant times "living with (the accused) as a member of his family," it is not necessary for me to consider whether there was any evidence capable of corroborating the complainant’s evidence on those issues. In so far as Mr Leung Wai was highlighting the need for special care in assessing the evidence of a teenage complainant like Makerita, I agree with him.

In her final address, Miss Wallwork was brief and to the point with regard to the main issues that arose during this trial. She was correct in her replies to Mr Leung Wai’s submissions regarding the so-called lack of formal identification of the accused and the so-called absence of corroboration. She correctly distinguished the case of P. (R.) v P. (P.) supra. Miss Wallwork made the most of the evidence pointing in favour of the prosecution case, but her submissions were only as good or as bad (as the case may be) as the evidence upon which they were based.

It was right that Miss Wallwork should direct my attention to the dictum of McKay J. in the Court of Appeal of New Zealand decision of R v Heremia (1992) 8 CRNZ 462. That dictum purports to define the words "living with him as a member of his family", as referring to "the relationship in which the persons concerned are living in the same domestic situation". With all due respect, that definition adds little to the interpretation of the same words of the statute which we have here, which may be given their ordinary and popular meaning without any legal or technical connotation [see Hardie Boys J. in Heremia’s case].

Miss Wallwork was being strong as an advocate to voice protest at the suggestion made by defence counsel to the effect that a witness had been "coached", especially when that matter had not been put to the witness in cross-examination.

On Friday 14 July I announced my verdicts and I said that I would give my Reasons later. I have done just that. I now proceed to the sentencing stage of these proceedings.

JUSTICE WILSON