Police v Senio [2000] WSSC 7 (24 May 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MAIAVA NAITITI SENIO aka
MAIAVA NAITITI MAU’U SENIO TUSA
of Mulifanua
Defendant

Counsel: Mr R. Schuster for the Prosecution
Ms K. Sapolu for the Defendant

Dates of Hearing: 22, 23, & 24 May 2000
Date of Ruling: 24 May 2000

REASONS FOR A RULING UPHOLDING A NO CASE TO ANSWER
SUBMISSION GIVEN BY WILSON J.

The accused, through his counsel, Ms Katalaina Sapolu, has submitted that there is no case to answer on three (3) charges of incest. The ground upon which the submission is based is that there is no evidence (at the end of the prosecution case) of one of the essential elements of a charge of incest, viz. that the accused knew that the complainant was his daughter.

In determining whether there is any evidence of the accused’s knowledge in this respect, it is necessary to recall how a person’s knowledge may be proved. First, a person’s knowledge may be directly proved by evidence that the accused stated either orally or in writing (usually by way of an admission of paternity or the like) what he knew at a particular time or from which his state of mind may be inferred, or by what appears in, for instance, a birth certificate provided that such certificate is admissible against the accused.

Secondly, a person’s knowledge may be indirectly proved. In other words, a person’s knowledge may be proved by circumstantial evidence or evidence from which a person’s state of mind may be inferred, e.g. statements made by him to the effect that the complainant was “my daughter” or “my child” or the like, or statements made by his daughter in his presence which he acknowledged to be true (even by his silence) such as, e.g. her calling her “Dad” or “my father”.

It must be remembered that on some occasions a person’s knowledge simply cannot be proved.

In the trial of Police v Leafa Vitale and Toi Aukuso Cain on 6^th April 2000 I put it this way to the assessors in my summing-up (at p.2701):

“I tell you now how a person’s knowledge, intention and purpose may be proved.

Well, gentlemen, we are not mind-readers and we cannot put a person’s mind on the table, so to speak, and look into it. But such matters which are within a person’s mind may be proved. Such matters as intention or purpose or knowledge may, on some occasions, be directly proved. They may be proved by means of evidence of an admission, that is to say, evidence from someone else to the effect that the accused said to them: ‘I knew such and such’ or ‘my purpose was such and such’ or ‘I intended to do such and such’. But often the knowledge, intention or purpose of a person is indirectly proved. It is proved by circumstantial evidence. It is from what a person says or does, or from what a person says and does, that we can come to a conclusion as to what they knew or what was their intention or what was their purpose. It is by a process of drawing inferences from circumstances proved beyond reasonable doubt, that is to say, properly putting in two and two together, that we can come to a conclusion as to what was a person‘s state of mind. We can then come to a conclusion as to whether that person’s knowledge, intention or purpose has being proved. On other occasions the knowledge, intention or purpose of the person simply cannot be proved”

It was argued on behalf of the accused that there is no evidence, circumstantial or otherwise, which proves the accused’s knowledge. Ms Sapolu pointed out (correctly, in my view) that Malia, the complainant’s mother and the female with whom the accused, according to her, had sexual intercourse prior to her pregnancy with, and ultimately the birth of, Anamaria in 1973, did not assert that she has told the accused that he was only the man with whom she had had sexual intercourse at that stage or that, specifically, he was the father of her child. Her evidence was that, apart from telling her daughter Anamaria, she did not tell anyone who the natural father of her child was.

It was argued by the prosecution that there is circumstantial evidence from which the inference could be drawn that the accused knew that Anamaria was his daughter.

There are some pieces of evidence from which suspicion arises, but there is no web or combination of primary proved facts from which the inference could be drawn that the accused knew that Anamaria was his daughter. In this context I refer to the fact that Anamaria stayed with the accused a long time ago when she was a very young child, that she was left with the accused and his wife at their home when Malia left home after getting married, that the accused accepted Anamaria back into his household after she left Paulu’s house and looked after her quite well, that the accused encouraged or permitted Anamaria to sleep with him and his wife Masina in one and the same mosquito-net as them, and that Anamaria, as she grew up, looked like the accused.

In accordance with principle, the accused’s denials to the police of having had sexual intercourse with “his daughter”, whether construed as constituting a denial that he had had sexual intercourse with the young woman Anamaria or a denial that she was “his daughter” or a denial of both facts (in conjunction with Tiano’s evidence that he saw the accused and Anamaria having sexual intercourse in about March 2000), cannot be used as evidence of a lie or lies told by the accused arising from a consciousness of guilt and therefore probative of guilty knowledge on his part, that is to say, knowledge of the relationship of father and daughter.

The fact that the accused had, according to Malia, had adulterous sexual intercourse with her when she was a teenager and was the father of Anamaria cannot be used as any proof that he, knowing that she was his daughter, had sexual intercourse with Anamaria on any or all of the occasions alleged in the three (3) informations. To do so would involve indulging in propensity reasoning, which is not permissible.

I am persuaded that, on the evidence as it stands (which lacks evidence of the accused’s knowledge), the accused could not lawfully be convicted of incest. The evidence is not capable of leading to a lawful conviction (see Police v Tiapua Ioakimo Ah Sui & Others - an unreported decision of my own dated 16 December 1999, and see also the authority referred to therein of R v Galbraith (1981) 2 AER 1060, which Mr Schuster cited to me).

I rule no case to answer in relation to each information. There will be a verdict of acquittal on each charge. The accused is discharged.

JUSTICE WILSON