Police v Stanley [2008] WSSC 66 (25 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LAULU DAN STANLEY
@ MUHAMMAD IBN YAHYA,
male of Vaiusu and Vaitele-fou
Defendant

Counsels: Ms P. Chang for the prosecution
Defendant in person

Hearing: 24th & 25th July 2008
Decision: 25th July 2008

DECISION OF NELSON J.

The charges:

The defendant faces two charges. The first is that at Vaitele-fou between 1st October 2005 and 31st December 2005, he did indecently assault the complainant. The second charge is that at Vaitele-fou on the same dates he did have sexual intercourse with the complainant who is over the age of 12 but under the age of 16 years and who is not his wife.

To protect the privacy and identity of the complainant there will issue if it has not already issued an order suppressing publication of her name, village and any other detail that may serve to identify her. That necessarily includes the identity and details of her mother.

Before the case began various preliminary matters had to be addressed. The first concerned the status of the charge of carnal knowledge in respect of which my brother Justice Vaai granted a retrial. There is some confusion as to whether this course of action infringes the rule as to double jeopardy.

Briefly, the factual background was as follows: Originally, the defendant faced 4 charges:

S 305/06 - charging that at Vaitele-fou on the 19th day of October 2005, he did rape the complainant a female of Savaia Lefaga.

S 306/06 - charging that at Vaitele-fou between the 1st and the 28th day of February 2005, he did rape the complainant a female of Savaia Lefaga.

S 226/06 - charging that at Vaitele-fou between the 1st and the 28th day of February 2005, he did have sexual intercourse with the complainant a female of Savaia Lefaga a girl over the age of 12 years and under the age of 16 years, not being his wife.

S 227/06 - charging that at Vaitele-fou on the 19th October 2005, he did have sexual intercourse with the complainant a female of Savaia Lefaga a girl over the age of 12 and under the age of 16 years, not being his wife.

He pleaded not guilty to all the charges and the matter was heard before Vaai J and a panel of assessors. On 11th October 2007 he was acquitted on the two counts of rape but found guilty on the two counts of carnal knowledge. On 24th October 2007 he applied to the trial judge for a retrial of the carnal knowledge charges pursuant to section 108 of the Criminal Procedure Act 1972 on grounds (a) that the charges had not been brought within the 12 months statutory time limit imposed by section 53(7) of the Crimes Ordinance 1961 and (b) that there was no proof beyond reasonable doubt sexual intercourse with the complainant had taken place.

The trial judge obviously considered (b) a matter that had properly been placed before the assessors and in his ruling, disregarded that issue. However because S 226/06 was only laid on 6th March 2006, some six days after expiry of the prescribed time limit he set aside the assessors verdict as he is entitled to do under section 100 of the Criminal Procedure Act 1972 and quashed S 226/06. In respect of the remaining carnal knowledge charge S 227/06 which was brought within the prescribed time his notes indicate he granted the application and ordered a complete retrial pursuant to section 108(5) of the Criminal Procedure Act. The matter accordingly came before me as the defendant had elected to be tried by a judge alone under section 87 of the Criminal Procedure Act.

By that time the prosecution had filed an additional charge of indecent assault against the defendant. Amendments were sought by the prosecution on trial day as to the place and date of the indecent assault charge and as to the date in respect of S 227/06. These were granted as I did not consider them to be unduly prejudicial to the defendant. The defendant was because of the last minute nature of the amendments given the opportunity to seek an adjournment if the amendments surprised or embarrassed his defence but he agreed the hearing should proceed.

The defendant however sought to enter a special plea to S 227/06 under section 50 of the Criminal Procedure Act 1972 arguing that his previous conviction was a bar to a retrial because of the provisions of s.53(1) of the Act. Section 53 (1) provides:

"53 Second accusation – (1) where an information charges substantially the same offence as that with which the defendant was formerly charged, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to the information."

This argument was not accepted by me for two reasons: firstly, setting aside for the moment the issue of whether there was a "previous conviction", s.53(1) only applies where the subsequent information "adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment". As explained to the defendant in my oral ruling - "If that were the effect of the amendment then s.53(1) says that the previous conviction would a bar to that being done. But what prosecution is seeking here is not to add circumstances of aggravation or a statement of intention tending to increase the punishment but only to change the date of the allegation. It is therefore clear that s.53(1) does not apply."

Secondly, although it is a fundamental principle of the criminal law that a man should not be tried twice for the same crime, there is a constitutional exception to that principle and that constitutional exception is contained in Article 10(3) of the Constitution which relevantly provides:

"no person who has been tried for any offence shall after conviction again be tried for that offence, except in the case of a conviction entered in a trial conducted by a Judge of the Supreme Court where a retrial is ordered by a judge of that court, on an application made within 14 days of that conviction".

I note that an application was made by the defendant for a retrial within the 14 day time limit. The effect of the constitutional provision is to allow a retrial of the original carnal knowledge charge. To the extent if any that s.53(1) is inconsistent with the constitutional exception sanctioned by article 10(3), the Constitution prevails as it is the supreme law of the land: see article 2 thereof.

The defendant also raised the time limit argument again in relation to the charges but as explained to him this argument has no substance as it is clear S 227/06 was brought within time and the amendment by the prosecution only served to extend that time. The new charge of indecent assault is not subject to the time limit restriction and while it is undesirable that such charges be brought well after the event (see generally Police v Ioane Filipo unreported 14th March 2008 at page 3) there is no statutory prohibition against bringing this charge almost three years after the alleged event.

Accordingly the case proceeded to trial on the defendants not guilty pleas to both charges. The charges as amended alleged:

S 227/06 - that at Vaitele-fou between the 1st October and the 31st day of December 2005, the defendant did have sexual intercourse with the complainant a female of Savaia Lefaga a girl over the age of 12 and under the age of 16 years, not being his wife.

S 1268/08 - that at Vaitele-fou between the 1st October and the 31st day of December 2005, the defendant did indecently assault the complainant a female of Safaatoa Lefaga.

The evidence:

The prosecution case consisted of the evidence of the complainant and her mother as well as a statement made by the defendant to the police on Thursday 2nd March 2006. The complainants birth certificate was also produced confirming her age and there seemed little dispute from the defendant that at the time alleged in the informations the complainant was between 12 and 16 years and was not his wife. The defendants dispute revolved around the allegations that he had sexual intercourse with the complainant and that he indecently assaulted her.

The complainants mothers evidence was she was employed at that time as a housekeeper for the defendant and had been so employed for about five years. In fact the relationship was closer than that because she admitted that she and the defendant had a child together. She says that during the week she worked at the defendants house at Vaiusu but on Saturdays went to his house at Vaitele-fou. That house is largely unoccupied as the defendant lives at Vaiusu. The complainant who is her daughter sometimes accompanied her to work.

On a Saturday in October 2005 being the Saturday closest to Lotu-a-tamaiti Sunday, she went to work at the Vaitele-fou property with the complainant. She arrived at 7.00am and the defendant was there. They had tea and then she went outside to carry out her chores while the complainant stayed inside to clean up. After a while she called out to the complainant but received no answer so she went into the house and saw the complainant and the defendant having sex. She walked in when it was finished and said both the complainant and the defendant were naked and lying face up on the bed. She questioned the defendant who told her he wanted to have sex with the complainant and he indicated that he was willing to pay for the service. She says she removed the complainant and as the complainant was bleeding, in a distressed condition and in obvious pain she took her for a shower. After showering and dressing the defendant gave the complainant $100 "to help with school bills" and she and her daughter left the property. She says she told the defendant she would not return to work for him but then went on to testify that she continued working for the defendant and only stopped working at the end of 2005 when she fell pregnant to the defendant. She testified as to the complainants age her date of birth being 6th January 1990 making the complainant approximately 15 and a half years when this incident allegedly occurred. She also said she did not report the matter to the police and that it was subsequently reported by her de facto husband Felise whose last name she did not know despite he being by her testimony her then de facto spouse. The complainant and her other children were from a previous relationship.

The mothers further evidence was that on the Saturday in question no one else was at the Vaitele-fou property except her, her daughter and the defendant. She also said that her daughter fell pregnant around late 2005 January 2006 resulting in birth of a child on 10th September 2006. The mother was subjected to intense cross examination by the defendant and several matters quickly became apparent. Firstly it appeared the evidence of the mother given to the court differed materially from evidence she had given in the previous trial in this matter. That was the trial that occurred before my brother judge Vaai J and a panel of assessors in October 2007. Her evidence differed as to the date of the alleged intercourses, as to when the complainant fell pregnant, as to when the complainant gave resultant birth, as to when a medical check up was performed at a family clinic on her pregnancy and on many other aspects too numerous to mention.

The mothers evidence was also different from a statement she gave to the police in February 2006 when this matter was under police investigation. Her explanation for those inconsistencies was the police statement was wrong notwithstanding that she acknowledged making and signing it. On the inconsistencies with the evidence given at the previous trial she said she was mistaken even though there is no hint in the record of the trial that her evidence may be mistaken. Her answers at that trial were as positive as they were before me but they are diametrically opposed. She further denied the defendants evidence as to his examination of her pregnant daughter for the purposes of a possible abortion and denied going to American Samoa in August 2005 to baby sit for one month for the defendants daughter who had just given birth to a child of her own.

The evidence of the complainant fares little better. She said she went on the Saturday in question to the Vaitele-fou property with her mother but her version of events is a little different. In addition to evidence of forceful intercourse with the defendant, she mentioned a discussion between the defendant and her mother concerning the payment of money for sex. When pressed as to whether this conversation occurred prior or after sex she became vague and unconvincing but either way her evidence is different from that of the mother. The mother in her evidence made no mention of such a discussion other than a reference to the fact that the defendant told her he was prepared to pay for sex with the daughter. The daughter however agreed that she received $100 from the defendant "for school stuff".

The evidence of this young complainant suffers the same fate as the mothers. It is inconsistent with that which she gave at the first trial and it is an obvious attempt to tailor the evidence to the dates of the charges as amended. If that contradiction is not sufficient her evidence is also inconsistent with the contents of her written statement given to the investigating police officers in January 2006.

The areas of inconsistency and conflict are many. The evidence of the complainant and her mother is grossly unreliable and completely lacking in credibility. The demeanor displayed when they gave their evidence points to an attempt to try and nail the defendant in any possible way. I suspect the architect of the fabrication is the older more experienced mother and that the daughter has somehow become an unwitting pawn in the mothers game and agenda. The casualty of such games and hidden agendas is the truth which now may never be unravelled.

The onus of proof in any criminal matter is on the prosecution who bring the charge to prove it beyond reasonable doubt. The defendant is not required to prove anything and he was not required to testify which he elected not to do. He does not need to call evidence in his defence but in this case he did. He called his daughter to establish that the complainants mother lied about the dates she traveled to American Samoa to baby sit for her. And he called as a second witness an intimate acquaintance to testify how she and the defendant spent every Friday and up to 12 noon on Saturday at the Vaitele-fou property in each others company without ever seeing the complainant or her mother even visit the property. Though these two witnesses are connected to the defendant and can hardly be regarded as impartial and independent, they are still far more believable and credible than the complainant and her mother. But even without their evidence I would not have been satisfied beyond reasonable doubt as to the allegations contained in the information which brings me to the final piece of evidence against the defendant namely his cautioned statement to the police.

That statement makes no reference to any instance of sexual intercourse and is therefore irrelevant to the carnal knowledge charge. It does however refer to an examination conducted by the defendant on the complainant and it is thus relevant to the information charging indecent assault. The relevant part of the statement is reads:

"ina ua logoina a’u e T (complainants mother) o loo ma’i lana tama, o lea na ou fai loa ia T e aumai le teine i Vaitele-fou matou te talanoa ai. O au e iai le isi ou fale i Vaitele-fou ma sa ou fai ia T e o mai e fai ai a latou feau ma maua atu ai sina seleni e ola ai. O le o maiga lea na manao ai T e faapau le ma’ito a lana tama teine. Sa ou fai ia T pe talitonu ia au ae o le a ou tago i le teine. Sa tali mai T e leai se mea o iai ona o le naunau lava ina ia faapau le ma’ito o lana tama. Ole taimi lava lea na talai ai lavalava o le teine ma taoto loa i luga ole moega ma ou alu atu loa ma tui ou tamatamailima i totonu ole itutinosa o le teine. I lou malamalama na faia lea tulaga ona o lou fia iloa pe tatau ona lagolagoina lona manaoga. Ao faia au gaoioiga nei o loo iai lava T i lea taimi ma sa ou fai loa ia T e le sa’o lana tala lea na fai mai e faatoa lua (2) masina o le ma’ito o le teine aua ua ou lagonaina i lou lima i totonu ma ou iloa ai ua turn le uterus o lona uiga ua tele atu i lo le lua masina le matua o le ma’ito o le teine. Ole taimi foi lea na alu atu T ma lomi solo le manava o le teine. Sa ou taofia T e aua le toe soona lomiina le manava ole teine ona o lou talitonuga ua advance le maito o le teine. Na uma loa ona matou talanoa lea ma ou fautuaina le teine ma lona tina o T ina ia aua nei toe taua le igoa lea o Tavita poo se isi lava tagata i lona ma’i lea ae ia tau ai au e fai ma tama o le pepe ona o lou manao ile pepe. O le isi itu ona o loo iai lou niece o loo manao i se pepe o lea na ou mafaufau ai ma ou talitonu e faigofie ona latou taliaina le avea o lenei pepe ma atalii ona e tauala atu ia te au"

The question is whether this explanation is sufficient to establish beyond reasonable doubt that what the defendant did was indecently assault the complainant.

The first difficulty as pointed out by the defendant in cross examination of the investigating officer is that both the complainant and her mother deny such an examination in fact took place. But leaving that conflict aside the second difficulty is a legal one namely whether what the defendant did amounts in law to an indecent assault. The prosecution submits the defendant is not a qualified medical practitioner neither does he have a medical background and he has no proper cause to examine the complainant other than for some sort of perverse sexual motivation or satisfaction. They argue his behaviour is contrary to acceptable community standards of decency and amounts to an act of indecency. There being no question that the insertion of fingers into the complainants private part is an act of assault.

In defence the defendant concedes he is not a qualified medical doctor but says he has a medical background and training and some medical experience having home birthed one of his daughters. He referred in this regard to certain facts as establishing his expertise but the problem is he did not give evidence as to those facts or produce a witness to prove them. The court cannot therefore take them into account as they have not been properly adduced before it. His arguing that these things are so do not make them so.

The question then is whether the defendants acts as related in the statement to the police amounted to acts of indecency. Because I agree with the prosecution they are certainly acts of assault. Some guidance is afforded by the recent Court of Appeal decision in Police v P(name suppressed) unreported 14 September 2007 at pages 12 and 13:

"In our opinion the true analysis is that in the recent English authority Kumar v R [2006] EWCA 1946 (CA). There the appellant doctor had conducted a breast examination on a girl. The trial judge had directed the jury as to four possibilities:

(1) sole intention to gain sexual gratification – guilty
(2) sole intention to gain clinical information – not guilty
(3) dual intention – legitimate breast examination as cover with intention from the outset to gain sexual gratification – guilty
(4) bona fide medical examination intended and so intended throughout but unintended sexual gratification obtained – not guilty

The Court of Appeal held that the performance by a doctor of a breast examination actually warranted by the patient’s symptoms will amount to indecent assault if carried out (1) in an inappropriate manner and (2) for his own sexual gratification. In those circumstances there is no consent. The test is just, principled and workable.

The other element of the offence is of criminal intent (mens rea or guilty mind). It is satisfied if the defendant’s intent is to satisfy his sexual lust rather than to carry out a professional service for the benefit of his patient’s health."

If I were to apply the criteria referred to by the appellate court to this case the result would be a verdict of not guilty because the intention of the defendant does not appear to be to gain sexual gratification neither can it be construed to be a case of digital penetration under the cover of an intent to gain such gratification. The account in his statement indicates the purpose of the examination was clinical in nature and was to determine how far advanced the pregnancy was and whether an abortion was feasible. The consent of the under-aged girls mother to the examination and the presence of the mother during the examination is significant and supports the interpretation that the purpose of the examination was clinical. If I apply the right thinking members of our community test to the cautioned statement it does not overtly suggest impropriety given the circumstances and because the mother and the daughter have denied in evidence that such an examination occurred, all we are left with are the defendants statements. What the defendant did may have been ill-advised but I cannot conclude to the required standard that it is indecent given that it was sanctioned by the girls mother and that she was present throughout. It may have been otherwise if carried out without the mothers approval and in her absence.

All in all I cannot conclude that the cautioned statement establishes an act of indecency did occur and accordingly it fails to support an allegation of indecent assault. Given the state of the other evidence that has been adduced in respect of this matter, the charges against the defendant should be dismissed and I do so accordingly order.

JUSTICE NELSON