Police v Miti [2010] WSSC 169 (24 September 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

SIMI FILIGA, WAYNE MITI
male of Vailele-uta and Sinamoga.
Defendant

Counsels: Ms M. Lui and Ms F. Vaai for prosecution
Mr S. Leung Wai for the defendant

Decision: 24 September 2010

DECISION OF NELSON J.

The defendant faces 3 charges. Firstly, that on 20th January 2010 at Vailele-uta, he assaulted the complainant with intent to commit rape contrary to section 48 of the Crimes Ordinance 1961. The second is that on the same day and place he indecently assaulted the complainant a woman over the age of 16, and the third at the same place and on the same date he threatened to kill the complainant by using the following words "a e le faia le mea ou ke maga'o iai o le a fasioki oe". To all these charges the defendant pleaded not guilty and the matter went to trial.

The police evidence apart from the officers who took the photos and drew the plan of the scene of the alleged offending consisted of the complainant, a man named Tafune Silao whom she met shortly after the incident and to whom she allegedly made a complaint and a security guard named Ioane Vaimauga also known as Sene who lived nearby and to whom it is alleged the complainant made a further complaint.

The complainants evidence is that she is a 31 year old married woman with five children. She lives in Leauvaa and on the day in question she went to Vailele-uta to see or "asi" her auntie. She took with her an asiga comprising some pumpkins, pineapple and a bottle of sea. She went to her aunties but no one was home so she went searching for someone to buy her asiga so she could raise a bus fare to return to Leauvaa. In the course of that she met the defendant on the main road who asked her what she was doing there. She told him she was selling the produce and he told her to accompany him to his family that they will probably buy her goods. She agreed and the two of them headed inland onto a bush track off the main road. The defendant offered to carry her bag of produce saying that it was too heavy for her but she refused and carried it along the track which climbed up the side of a hill.

At a part close to the top of the hill they sat down to have a rest as the climb was quite steep. She said she sat on a dead tree trunk. The evidence indicated the area was deserted and there were only the two of them there. This was about mid-day. She said that at the tree trunk the defendant asked to have sex with her but she refused saying she had a husband and children. He told her that if she did not do what he wanted he would kill her. She said he also threatened her with the sapelu that he had been carrying in the course of their walk up the track and that he repeated his request and his threat. So she told him that if he was going to kill her then go ahead and kill her but do not do anything bad to her first. She said she was afraid and cried but the defendant told her that was a waste of time as no one was around to hear her.

As to the incident itself initially she said the defendant placed his knife down beside the tree trunk and put his hand into her pants and touched her genitals and pubic hairs. She said she struggled with him and crouched or ducked down the word she used was "fa'amimigi" and ran off screaming "fiaola" running back down to the main road for help. When pressed further by prosecution counsel she modified this version to say that before she ran off she had said to the defendant "ok they will have sex" and he instructed her to go to another place where they would do that. Accordingly she walked infront of the defendant heading towards the top of the hill, him following behind. She said that when there was a sufficient gap between the two of them she then ran off yelling "fiaola" and returned to the main road via a track different to that which they used to climb up. During all this she left her bag of produce and her shoes behind.

On the main road she met up with a couple this being the man later identified as Tafune Silao and his wife. She told them about the boy and how he had said to her his name was 'Skippy'. She had also told them that Skippy had taken her produce and the man Tafune then left to look for Skippy. He was not successful and on his return she described the boy to him, his build and clothes and the man said that he thinks this persons name was 'Wayne' a well known trouble maker in their area. She also testified that what she told Tafune was not only that Wayne had taken her produce but had tried to rape her.

Her further evidence was she left the couple and continued along the road back to the direction of her aunties house. She at that point met up with the security guard Sene or Ioane Vaimauga, who appears to be a neighbour of her auntie. She also told him about the actions of the boy and he confirmed Wayne had done many bad things in their village and he offered to take her to Waynes house to recover her produce. She said she agreed because she wanted to recover her sea and her other goods and so they went to the defendants house. They found the defendant home with his wife and family. She said she complained to the defendants parents about the defendants conduct in taking her produce and that it was best for him to be locked up. She said that the parents asked her not to involve the police and apologized for the defendants behaviour but she was still angry at what happened so she did contact the police. The two pumpkins were returned but not the sea or the pineapple. She also said that when she confronted the defendant and threatened to take the matter to the police he displayed no concern and told her to he was not worried about that. Significantly there was no mention by the complainant in her evidence of making a complaint of rape to either the defendant, his wife or his parents. Her evidence indicated the entirety of the conversation was regarding her bottle of sea and her bag of produce.

The evidence of the man Tafune Silao was that they met the complainant running up the main road. He asked what was wrong and she said please help her a boy had taken her bag. So he went to investigate and she showed him where the boy had gone but she warned him to return as the boy was in possession of a knife. The witness said he turned back and questioned her further and she told of the bag of pumpkins and where the boy had taken her. She also told him she did not know the boys name but he said it was probably Wayne because their house is the only one in the area. The witness also said the complainant appeared upset but her clothing was intact and her hair was not in a disheveled condition. He confirmed that the only complaint she made to them was regarding her bag of pumpkins.

The other civilian witness was the security guard Ioane or Sene who was at his house when he said he saw the complainant running past crying "fiaola". He asked her what happened and she asked if he had a phone because she wanted to call the police. He said she made a complaint of attempted rape and identified her assailant as 'Skippy' but was subsequently told by Tafune his real name was 'Wayne'. The witness made no mention of torn clothing but did say that the complainants hair was down and had bits of grass sticking out of it. He also said he took her to the defendants house and on the way there she again related to him the whole incident. And at the defendants house he played the role of pacifier and orator to the family and while they were well received by the family the defendant displayed no remorse or fear if the matter were referred to the police. He also confirmed that only the pumpkins were returned to the complainant.

The defendants evidence was that he came upon the complainant on the road and asked her what she was doing there and she told him she was selling her produce. So he said to her his family will buy the pumpkins and they then proceeded inland via the bush track the complainant had identified previously with him in front and her behind and carrying her bag. At the tree trunk he told her to wait because their dogs were vicious and she gave him the bag to take to his family. He left with the bag of produce and at the top of the hill, stood there and looked down and saw the complainant still at the tree trunk. He continued to stand there and it was apparent at this stage he had no intention of returning with the complainants goods or taking it to his family to buy. His intent was to steal the goods. He waited at the top of the hill and finally saw her go back down the main road and meet up with Tafune and his wife. He took the pineapple to his family who lived inland and the pumpkins to their house at the seaward side of Vailele. He said the sea was no good so he threw the bottle away and threw the complainants bag back onto the track because it was a womans bag and he had no use for it. He returned to his seaward house and did a umu and was surprised when the security guard Sene and the complainant turned up. Sene told him off and he returned the pumpkins to the complainant. He also said his wife and aunty talked to the complainant. Sometime subsequent to all this the police arrived arrested him and said the complainant had made allegations of attempted rape against him.

He denied trying to rape the complainant or indecently assaulting her or threatening her and essentially denied the complainants evidence as to the events at the tree trunk. In support he called his aunty and his wife as witnesses. The former said that when the complainant and Sene arrived, the complainant was crying so she went over to her and asked her what happened and she said it was because of the defendant who had taken her pumpkins. She said she hugged her and took her under the ulu tree and consoled her and apologized for the defendants behaviour and that subsequently the complainant left with the pumpkins.

The evidence of the defendants wife was that when the complainant and Sene arrived an argument broke out between the complainant and the defendant wherein the complainant threatened to take the defendant to the law. She said the argument was about the complainants pumpkins and sea which the defendant had taken. And the defendant returned the pumpkins but told her the sea was bad so he threw it away. The defendants aunty then came and took the complainant away to under the ulu tree and talked to her there. But she became suspicious as to whether something else happened to the complainant so she joined them under the ulu tree and asked the complainant if the defendant had done anything to her. She said the complainant said no only her goods that the defendant had taken and that the complainant eventually left with her pumpkins.

I have seen and heard the witnesses testify in this matter in particular the two main protagonists, the complainant and the defendant. I was not impressed by the complainants evidence for the following reasons:

1. She began her evidence badly by telling two different versions in evidence in chief of the events at the tree trunk. Initially she said the defendant asked her for sex, threatened her, indecently assaulted her and after a struggle she was able to get away and ran off screaming fiaola. But on further questioning by counsel for the prosecution she modified this to say after the defendant threatened her she "faapelepele" or pacified the defendant and agreed to have sex with him whereupon the defendant then instructed her to walk up the hill to another spot. This she did with the defendant walking behind her. Why the defendant would want to change spots was not explained or addressed by the evidence. The tree trunk was already in an isolated area and the photos produced to the court show it to be a sufficient enough place for a lovers tryst. Then she said that after a gap opened up between her and the defendant she ran off yelling fiaola and returned to the main road via a different route and track. This evidence does not gel with the police plan of the area. This shows that the alternate route to the main road is not uphill of the tree trunk but downhill of the tree trunk. But the complainants evidence clearly was the defendant told her to walk to the top of the mountain which she did. This is covered at page 21 of the transcript. And if this is correct then the only way she could have come back downhill would have been to go past the defendant, a fact she never mentioned.

2. While I accept evidence of complaint to the couple is admissible there was no complainant of attempted rape made to the couple, only a complaint of stolen goods according to the evidence of Tafune. This was the perfect opportunity to make a complaint of attempted rape to the man and his wife, the first people she came across when she went looking for assistance. There is no conceivable reason why she would not make a full complaint to the couple unless that is not what happened. And in this regard I prefer the evidence of Tafune to the complainants evidence because Tafune is a completely independent person who happened to be on the road when she came down.
   
3. It is well established that a complaint of sexual misconduct is admissible if made at the first reasonable opportunity that presents itself. From the Cross on Evidence 7th New Zealand edition para 9.32:
   

"The first reasonable opportunity requirement - this requirement is fundamental, the rationale being that a prompt spontaneous complaint is likely to be true but the longer the delay the less the justification for such an assumption. The complaint must be made as speedily as can reasonably be expected."

The NZ Court of Appeal in R v Nazif [1987] NZCA 307; [1987] 2 NZLR 122, 125:

"There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken into account will include the age, nature and personality of the prosecutrix, her relations with those to whom she might be expected to complain, the reasons for delay in complaint, and all other circumstances the Judge regards as relevant."

4. In addition to that Tafunes evidence was clear, her clothes were intact, her appearance though distraught did not lead him to think anything more had occurred. There were no obvious indications of any attempted sexual assault and the only complaint made to him was that of the boy taking her produce. It must be remembered as noted by Cross at para 9.30:
   

"Complaint evidence is not to be taken as proving the acts complained of, but only as a matter to be borne in mind by the tribunal of fact in considering the consistency, and therefore the credibility, of the complainants story."

"Sometimes the terms of a complaint are inconsistent with the complainants evidence in Court. When, because of inconsistency, complaint evidence fails to bolster a complainants credibility, it will strengthen the defence position. Once it is admitted, it is available to be used by the defence to cast doubt upon the complainants credibility."

An example of the latter is Police v Hansell (unreported) 06 November 2009, see pg.8 of the judgment.

As to the sexual complaint said to be made to the security guard Sene I reject this evidence for two reasons: Firstly, that was not the first reasonable opportunity to make a complaint. The first reasonable opportunity was to the couple walking along the road. Secondly, I am not totally satisfied as to the credibility of this witness. It seemed to me that his evidence was biased and that he demonstrated a clear disposition to wanting to help the complainant. That may not have been his intent but that is certainly the way he came across probably because he is a neighbour of the complainants aunty. I do not overlook the complainants evidence that this is not the first time she has visited the area. She has been there before and she seemed familiar with the security guard. It may also be that the guards evidence was influenced to some extent by the number of times the complainant related her version of the incident to him.

A further reason why I have difficulties with Senes evidence is that some of his oral evidence was at odds with his statement to the police on these events. A statement that was given shortly after the incident occurred. Instances of these can be found in cross examination of this witness by defence counsel. For all those reasons the evidence of the security guard does not assist the credibility of the complainant.

The complainants evidence is also not helped by the inconsistencies of her oral evidence and her police statement. For example her oral evidence that at the defendants house she told him she will lock him up and his reply that he does not care, that is not in her police statement. Neither is it helped by her changing her testimony in some places for example in cross examination when testifying about conversations with the defendants aunty. Initially she denied any such conversation. Subsequently she admitted talking to the aunt under the ulu tree but denied telling her about what had happened.

Defence counsel also suggested the court should have regard to the suggestion that was brought up in cross examination that the complainants husband was after money from the defendants parents in exchange for withdrawing the complainants complaint. I disregard that because that evidence was evidence of a hearsay nature as neither of the defendants parents were called and because it is in any event collateral to the main issues.

The death knell to the complainants credibility was her evidence in re-examination for the first time that at the tree trunk the defendant had investigated whether she had children by taking one of her breasts out of her t-shirt and squirting it so as to produce milk. She described it as "fa'apā o lo'u susu". This is something she failed to mention either to the police in her police statement or to anyone else until re-examination by prosecution counsel in court on trial day.

I have come to the conclusion that probably what happened in this case defendant was that you conned the complainant at the tree trunk to hand over her goods. And that it was a deliberate action by you in order to steal the goods without paying for them. This naturally angered the complainant who as she said in her evidence was afraid of what her husband would say about the missing goods so she made up this complaint of attempted rape. A complaint she did not make to the first people she came across namely Tafune and his wife but she made to the sympathetic security guard who was helping her to recover her lost goods and in order to provide a credible explanation to her family as to what had happened to the goods of her asiga. You may be a rogue, a liar and a self-confessed con-man but you are not what the complainant alleges you to be, an attempted rapist. The charges as filed against you cannot be sustained.

But what the evidence does establish beyond any doubt Wayne as admitted by you is that you stole the complainants produce. I will therefore do the following: In respect of the first charge of assault with intent to commit rape that is dismissed; in respect of the second charge of indecent assault that likewise is also dismissed; in respect of the third charge of threating to kill you are acquitted of that but I substitute in its place a conviction of a charge of theft of one fala, 2 pumpkins and a bottle of sea. And as there is no dispute on the issue of identity I also make the amendment that your name 'Wayne Miti' be added as an aka to the name 'Simi Filiga' which you were originally charged under.

After hearing counsel in mitigation, sentenced as follows:

Ona o lea fa'atoa molia mai oe i luma o le tulafono Wayne ma ona o nisi mafuaaga talafeagai o lea o le a fa'asala tupe le faaiuga o le mataupu lenei ae e ao lava ona fa'amanatu atu ma fa'ailoa atu e le fa'amasinoga, a toe aumai oe i nisi mataupu faapea o le a ese loa le la'asaga o le a uia e le faamasinoga. Ua manino lea tulaga? (Defendant indicated it was).

Defendant will be convicted and fined $100 in addition to that he will pay police costs of $50 total sum to be paid by 12noon on Monday 27 September 2010 in default one (1) month imprisonment. The court has taken into consideration the fact that there was some partial recovery of the goods of the respondent but in respect of the fagusea and the fala, in addition to the $150 he is ordered to pay $25 restitution to the court office to be disbursed to the complainant in this matter. That sum is also to be paid by 12 noon Monday 27 September 2010.

JUSTICE NELSON