Police v Siafausa [2012] WSSC 112 (19 July 2012)

[THE NAMES OF THE COMPLAINANT, HER FAMILY AND HER VILLAGE ARE SUPPRESSED]

SUPREME COURT OF SAMOA

Police v Siafausa [2012] WSSC 112

Case name: Police v Mulitalo Siafausa

Citation: [2012] WSSC 112

Decision date: 19 July 2012

Parties: POLICE (prosecution) and MULITALO SIAFAUSA male of Vaimoso-uta and Sinamoga

Hearing date(s): 24, 25, 28, 29 May 2012 and 29 June 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
L Taimalelagi and T Toailoa for prosecution
R Schuster for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961 ss.34(a)(b)(i), 45
Crimes Act 1961 (NZ) s.126
Crimes Act 1908 s.156(b)
Criminal Justice Act 1967 s.8
Conspiracy and Protection of Property Act 1875

Cases cited:
R v Osborne [1905] UKLawRpKQB 45; [1905] 1 KB 551
Kilby v R [1973] HCA 30; (1973) 129 CLR 460
R v Annas [2008] NZCA 534
Ford v Falcone [1971] 2 All ER 1138
R v Steane [1947] KB 997, [1947] 1 All ER 813, 816
R v Reddaway [1948] NZLR 1118
R v Price [1919] GLR 410
The King v McGinity [1926] NZLR 129
Lynch v DPP for N. Ireland [1975] UKHL 5; [1975] 1 All ER 913
Hyam v DPP [1974] UKHL 2; [1975] AC 55
R v Smith 1960 44 Cr App R 261
DPP v Morgan [1975] UKHL 3; [1975] 2 All ER 347
Crofter Hand Woven Harris Tweed v Vertich [1941] UKHL 2; [1942] AC 435
Lang v Lang 1954 3 All ER 571
Plomp v R [1963] HCA 44; (1963) 110 CLR 234
Kuljich v Hall 1973 NZLR 279

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
MULITALO SIAFAUSA male of Vaimoso-uta and Sinamoga
Defendant

Counsel: L Taimalelagi and T Toailoa for prosecution

R Schuster for defendant

Hearing: 24, 25, 28, 29 May 2012 and 29 June 2012

Ruling: 19 July 2012

Charges: Indecent Act (x10) and Unlawful Intimidation (x10)

SENTENCE OF SLICER J

1. The defendant was originally charged with one count of attempted rape, ten charges of indecent assault and ten charges of unlawful intimidation.
2. The prosecution has withdrawn the allegation of attempted rape following which, the defendant sought to have the remaining matters transferred back to the District Court on jurisdictional grounds. The application was rejected.

Facts

3. The complainant aged 32 applied for and obtained employment from the defendant as an outside worker responsible for the general maintenance of his outside premises. One of her specific tasks was to feed the chickens, collect and pack the eggs and generally maintain the poultry.
4. She had lived in a rural area and sought work to raise her 3 children and care for her elderly parents. Members of her extended family lived overseas and she was the sole breadwinner for her family. As such, she was vulnerable to the improper suggestions of her employer.
5. On 11 August 2008, the complainant approached a friend asking for assistance in obtaining employment. Later that week she met with the defendant who agreed to employ her as and from Friday 15 August.
6. When she arrived at work she met with the defendant who told her of her duties. On her account, he asked her if she had a husband and child to which she replied yes. The prosecution submissions summarise her version in the following terms:

“The defendant then asked her whether she loved him, and the complainant replied and (sic) yes and further said words to the effect that she loved him like a father. The defendant then told the complainant to listen carefully, and then said to her that she was not to let anyone outside these gates know what happens on this land. She replied in the affirmative; however her evidence was that she was wondering what he was referring to or what he meant.

...

Shortly afterwards as she was tending to the chickens, she walked to the side of the house and the defendant yelled out to her to get his towel. At that time the defendant was inside the shower. The complainant retrieved the defendant’s towel, and went to hand it over and saw that the shower door was open. She said to the defendant ‘this is your towel’ and it was at that moment that the defendant grabbed her by the arm and his other hand grabbed her chin, and forcefully kissed her (as was demonstrated by the complainant in Court).”

7. She said that she pushed him away but felt scared and ‘matamuli’. She nevertheless kept her job as she needed the money.
8. The question of love and the request for the towel were themselves strange acts of an employer.
9. The complainant returned to work the following Monday at about 7 a.m. and claimed that on arrival she found the defendant lying on a bed in the living room; and that he then asked her to sit along side him and asked her to masturbate him. She did so stating that she felt ashamed and scared but felt that she had to give way to him as she needed the job and money. The defendant denied any act of misconduct.
10. On her account, the following day, the same thing happened with the defendant saying ‘sau e fai lou galuega masani.’ She again masturbated him to ejaculation but refused his request to ‘suck his penis.’
11. The same event occurred on Wednesday and Thursday. He exposed his penis and she complied. He indicated what was expected by his conduct. There was no explicit request but the position of his body, the exposure of his penis and his movements left her in no doubt of what was expected of her.
12. Her evidence of the events of Friday 22 August are summarised by the prosecution in the following terms:

“On this morning, the complainant went to work at about 7am in the morning. When she arrived, she went straight to the defendant’s bedside where the defendant was lying on the same bed with his shirt unbuttoned and his private parts exposed. The complainant stated in her evidence that although the defendant didn’t say anything to her, the fact that he was lying in the bed in the same position as the day before with his private parts exposed indicated what was required of her. The complainant proceeded to masturbate the defendant.

At no time did the defendant tell her to stop. He simply lay there facing the ceiling while she was masturbating him.”

13. She was paid her wage of $100 on that day.
14. The same events occurred on each day of the following week between 25 and 29 August. Following each event she said she went about her given chores.
15. The defendant elected, as was his right, not to give evidence. No adverse inference should be drawn by that exercise of right.
16. In cross-examination the complainant agreed that the defendant had never used force or, apart from the exchange earlier recounted, intimidated her. She conceded that he did not call out to her although he did request masturbation and oral sex on the first occurrence. But she maintained that she felt obliged to perform the sexual acts in order to keep her job. She left her employment on Friday 29 August because of the sexual expectations and implicit invitations. In cross-examination, she denied both that she had returned to work on 1 September and that she was dismissed because of incompetence and failure to properly carry out her work. She was not shaken in cross-examination except for one matter concerning a date.
17. The main criticisms addressed to her were that she had delayed reporting the matter to police, signed letters urging the withdrawal of the charges and had made a false complaint at the investigation of the Victim Support Group. Those matters will be later considered.
18. The Court found the complainant to be a compelling and cogent witness.

Recent Complaint

19. On Friday 29 August, the complainant telephoned a friend, Isapela Talisoa (“Isapela”), who was the mother of a prisoner Malaki Talisoa (“Malaki”) who, at the time, was serving his parole at the defendant’s home. She did so because she was scared as a result of the events of the preceding two weeks. She recounted the events as stated above and sought advice. She was crying and said that she could not return to work. Her evidence was confirmed by Isapela who gave evidence at trial and was told ‘he wanted to do with her what she wishes’ and ‘every morning he would call her to masturbate his penis.’ Isapela told the complainant to tell Mulitalo Siafausa’s wife or if she could not then she should go to the law. Isapela confirmed that the complainant was distressed and crying during the phone call. Isapela made a statement to police in June 2009. She was wrong in stating that the phone call was received on 18 August but in all other respects her evidence is accepted.
20. The complainant had reported the matter to police on 27 January and the complainant made full statements of her version of events on 20 March and 19 May 2009.
21. Evidence of recent complaint is not evidence that the events occurred but rebut any suggestion of recent invention. The principles are not limited to cases where consent is in issue (R v Osborne [1905] UKLawRpKQB 45; [1905] 1 KB 551). The evidence is relevant to the credibility of the complainant but does not, strictly speaking, constitute corroboration (Kilby v R [1973] HCA 30; (1973) 129 CLR 460).

Delay in Reporting Matter

22. The complainant was troubled and confused about what course she should take. She had spoken with Malaki, and been given some advice by Isapela which included telling the defendant’s wife. The complainant had little resources and probably felt shame and isolation. In addition, she knew that she would be reporting a powerful man of public importance.
23. On 26 January 2009, she went to the office of the community organisation ‘The Victim Support Group’ and told her story. She received support and advice from Hemara following which she and Hemara went to the police station on either that or the following day and made a complaint about the August events. Police conducted inquiries and commenced proceedings by Information dated 14 May 2009, which were served on 26 May with others being added on 2 July 2009.
24. There was no suggestion in the evidence given at trial that the Victim Support Group manipulated the complainant into the making of a false complaint or that the complainant had misused the organisation as a vehicle to obtain revenge against the defendant for her dismissal. The Victim Support Group did nothing other than carry out its obligation in supporting and assisting women and children who had suffered and/or had complained to the police of sexual misconduct.
25. There was nothing unusual in the delay in laying that Information. The allegations were served and they were required to properly investigate the matter and seek out prospective corroboration witnesses. The dates of witness statements support the conclusion that they carried out a thorough investigation and it was not until that had been undertaken that they conducted a caution interview with the defendant on 12 May 2009.
26. The delay does not weaken the prosecution’s case.

Caution Statement

27. The defendant was interviewed under caution on 12 May 2009. He told police that he did not wish to give an explanation, and refused to sign any portion of the record of interview. It is not clear why he declined to sign any of the portions relating to his Constitutional rights. That question is academic as no inference adverse to the defendant can be made on the exercise of a Constitutional right.

The Letters

28. The defence relied heavily on letters which the defendant claimed amounted to a recantation of the complainant’s account and the falsifying of the charges. A number of letters were written to persons in authority seeking the charges to be withdrawn, signed by members of the complainant’s family and one at least signed by the complainant. There was one letter which the complainant’s father claimed was not to have been signed by him but inserted by another. It is not necessary to determine the difference in the evidence on this point. It is common ground that letters seeking the withdrawal of the charges and alleging the falsity of the charges were sent.
29. The Court understands the desire of the family to avoid the events becoming public knowledge. The Court accepts that there is little direct evidence to connect the defendant with the writing of the letters. But one of his relations, Ioka Salanoa (“Ioka”), was involved in attempts to have the matter withdrawn. There was evidence that the defendant had rung Ioka and asked her to locate the defendant. Sifea Afemai, the complainant’s mother, said that on 13 July 2009 after the additional charges had been laid, she was approached by Ioka and asked to speak with the complainant’s father about the matter. She gave the mother $30 to buy sugar.
30. Ioka returned on the following day and accompanied the complainant to the police station where a request was made to have the charges withdrawn. That course was not accepted. Following the visit, the complainant, her mother and Ioka went to the nearby office of the Victim Support Group where they were told by Lina, the manager, that it was not for them to have the charges withdrawn. Ioka then took the complainant to a lawyer’s office while the mother waited outside.
31. Details of the letters, admitted a trial are:
    • - one dated 10 June 2009 to a Judge of this Court (“Exhibit D1”);
    • - 17 June to the defendant signed by the complainant (“Exhibit D2”);
    • - 22 June addressed to the Chief Justice signed by the complainant (“Exhibit D3”);
    • - 7 July addressed to the Attorney General, the Chief Justice and the Commissioner of Police (“Exhibit D4”);
    • - 13 July addressed to the Chief Justice with a copy to the Attorney General (“Exhibit D5”);
    • - 13 July addressed to the Chief Justice with copies to the Commissioner of Police and Attorney General, signed by members of the family (“Exhibit D6”);
    • - 15 July addressed to counsel for the prosecution with a copy forwarded to the Supreme Court (“Exhibit D7”).
32. The letters are in similar form, protesting the innocence of the defendant and seeking the withdrawal of the charges which were without foundation. The letter to counsel dated 15 July (“Exhibit D7”) complained about a report that two of the letters to the office of the Attorney General had not been received and that the complainant still wished to withdraw the charges.
33. The Court accepts that some of the letters were signed by the complainant but were made under pressure either by the complainant’s family, directly or indirectly, following pressure by others.
34. The Court does not accept that the letters truly represent a recantation by the complainant or an admission of a false accusation.
35. The complainant was a compelling witness at trial. She admitted her part in the letter making, but said that, at least, the letter of 13 July was dictated by Tua Leone. She did not sign the letter sent by her family. She did not read “Exhibit D6” but knew of its contents. Her explanation was that she just wanted to get rid of the matter for her family’s sake and get on with her life.
36. There was some evidence that she had been offered $10,000 and fine mats by another, Seiuli Lene, but such had not affected her attempts to have the charges withdrawn. The Court pays no regard to the suggested evidence and it has no bearing on the decision. She said in re-examination that she had written the letters because of Lome Tuala and Ioka. Her letter (“Exhibit D4”) in which she said that she had made the complaint in anger over her dismissal was made at the request of Tuala.
37. The Court accepts that shame, concern for her family and pressure from others had caused her to take part in the letter writing. Her evidence is corroborated in part by her father Fata. Fata also claimed that he was not a signator to the letter “Exhibit D6”. He wanted the matter dropped for the peace and well being of his family.
38. The complainant’s version of what occurred at the Victim Support Group office is corroborated by Amaru of the village of Alafua. Malaki Talisoa, with whom the complainant had spoken, was summoned as a witness but a warrant was issued for his arrest without success. He did not give evidence.
39. Ioka told the Court that she was related, through marriage, to the defendant. She confirmed that on 12 May 2008, she was approached by Mulitalo Siafausa, who asked her if she could find the complainant. She agreed that she had accompanied the complainant to the police station and the Victim Support service. To that extent she supports the prosecution’s version of events.

Conclusion

40. The Court accepts the evidence of the complainant that the defendant had attempted to kiss her, had initially requested masturbation and oral sex. It accepts her version that on ten occasions he positioned himself, exposed his penis and she masturbated him in order to keep her employment.

Application of Legal Principles of Facts

41. The defendant was charged with ten counts of indecency contrary to the Crimes Ordinance 1961 (“the Ordinance”) section 45 and ten counts of unlawful intimidation contrary to the Ordinance section 34(b).
42. Section 45 provides:

“Indecent act with intent to insult or offend – Everyone is liable to imprisonment for a term not exceeding 2 years who, with intent to insult or offend any person, does any indecent act in any place.”

43. The Ordinance section 34(b) provides:

“With a view to compel any other person to do or to abstain from doing any act which that person has a legal right to do or abstain from doing.

(i) Uses violence to or by words or acts intimidates such other person or damages or threatens to damage his or her property; or
(ii) Follows such other person about from place to place or in or along any public place; or
(iii) Watches or besets any house, shop, or other place or the approach thereto where such other person or any person whosoever resides or works or carries on business or happens to be.”

Indecent Act with Intent

44. The provision does not require the recipient to have been insulted or offended. It is the intent of the actor which is the fundamental basis of the offence.
45. The Samoan Ordinance section 45 has its counterpart in the Crimes Act 1961 (NZ) section 126 which states:

“Everyone is liable to imprisonment for a term of two years who, with intent to insult or offend any person, with intent to insult or offend any person does any indecent act in any place.”

46. The New Zealand provision was considered by its Court of Appeal in R v Annas [2008] NZCA 534 which determined that the provision comprised components, namely an objective question of whether the act had occurred and a distinct subjective question as to the intention of the defendant at the time. The Court stated the question in the following terms:

“...whether what was performed is an indecent act is an objective question to be answered by what the jury assesses to be the standard of right-thinking members of the community...whether the defendant intended to insult or offend is a distinct subjective question.”

47. The offence may take place in a private room (Ford v Falcone [1971] 2 All ER 1138). That case, which comprised factual similarities, an act of indecent exposure accompanied by suggestive comments, had occurred inside a room occupied by a tenant within a building owned by the landlady. The conviction for the exposure of the penis together with the suggestive comments was upheld by three Judges of the Queen’s Bench Division.
48. The Court is satisfied beyond reasonable doubt that the acts of exposure occurred, the statements or intimations made and the acts of masturbation as recounted by the complainant occurred and that such acts amounted to indecency.
49. The second question is that of intent. It is often the case that absent a clear statement made by an accused person at the time of the event or admission made subsequently, it is difficult to ‘see’ into a person’s mind (see cases such as Steane [1947] KB 997, Reddaway [1948] NZLR 1118). The authors of Criminal Law in New Zealand, Garrow and Caldwell (1981) state the test as:

“Where a particular intent is a necessary ingredient of an offence it must be proved by the Crown just as any other necessary fact, and this burden remains throughout upon the prosecution. Both the evidential burden and the legal burden are on the Crown. ‘No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if, on the totality of evidence, there is room for more than one view as to the intention of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intention, the prisoner is entitled to be acquitted’. Steane [1947] KB 997, [1947] 1 All ER 813, 816, per Lord Goddard CJ.

Intent is proved in various ways. The facts proved by the prosecution may give rise to the inference of guilty intent or guilty knowledge. The existence of intent may sometimes be inferred as a necessary conclusion from the nature of the act done by the accused...So too an intent may be inferred from the natural consequences of an act done by the accused.”

50. The case of R v Price [1919] GLR 410 is cited in the Abridgment of New Zealand Case Law, 1964 Ed. Vol. 4 at 1446 as authority for the proposition that:

“Under s. 156 (b) of the Crimes Act 1908 it is sufficient if the prisoner does an act which he must know has a tendency to insult or offend, though he had some other motive for doing it.”

51. The case of The King v McGinity [1926] NZLR 129, does not assist the defendant since it involved a verdict by a jury of ‘guilty of committing the act, but not willfully or with criminal intent.’
52. It is unnecessary to consider the distinction between motive and intent as considered in Lynch v DPP for N. Ireland [1975] UKHL 5; [1975] 1 All ER 913 and Hyam v DPP [1974] UKHL 2; [1975] AC 55. Hyam effectively overturned a previous decision of Smith 1960 44 Cr App R 261. In Hyam, Lord Simon stated:

“The definition of certain crimes requires a mens rea which goes beyond foresight of the actus reus. An example is wounding with intent to do grievous bodily harm. The actus reus is the wounding; the prosecution must prove a corresponding mens rea – namely, that the accused foresaw the wounding as a likely consequence of his act. But this crimes is defined in such a way that its mens rea goes behind foresight of the actus reus; so that the prosecution must in addition prove that the accused foresaw that the victim would as a result of the act, probably be wounded in such a way as to result in serious physical injury to him.”

53. He repeated that approach in DPP v Morgan [1975] UKHL 3; [1975] 2 All ER 347 when he defined intention in law as foresight by an accused that his act would probably result in a particular consequence (the intended consequence) or foresight by the defendant that it might possibly result in that consequence.
54. Here the intent was to offend another by the exposure of the penis accompanied by the request for the performance of an act of oral and/or manual indecency. That he desired sexual gratification can be seen as motive or an intended consequence, its making came within the second part of the test of foresight that it might possibly result in a consequence of insult or offence.
55. The defendant hardly knew the woman. She was to be his servant. His expectation might have been compliance although it might have resulted in rejection. But the making of the initial approach of the attempted kiss, the demand for the towel and the requirement of silence colour the subsequent conduct. He requested manual and oral sex but in doing so he had made that request with foresight that it might cause insult or offence to the complainant.
56. Continuation of that conduct i.e. exposure with a request for repetition and following implied request by conduct was accompanied by a foresight that insult or offence would be given to the hapless woman even though she complied with his wishes.
57. Oxford 3 Ed. does not confine the word insult to ‘abuse’. The word includes ‘injuriously, contemptuous speech or action, to offer indignity to’. The Court finds that the defendant intended to offer indignity to a servant by committing an indecent act as part of an expected duty, on each occasion. The term offend can also mean to displease or excite annoyance, resentment or disgust in anyone including as here the complainant.
58. A second interpretative approach results in the same conclusion. The Ordinance section 45 has not been amended since 1960. It is not to be interpreted by the effect of subsequent amendments as occurred in England following Smith (supra) through the enactment of the Criminal Justice Act 1967 section 8, discussed in Hyam and Morgan (supra). In Crofter Hand Woven Harris Tweed v Vertich [1941] UKHL 2; [1942] AC 435, Lord Simon stated:

“In some branches of the law ‘intention’ may be understood to cover results which may reasonably flow from what is deliberately done on the principle that a man is to be treated as intending the reasonable consequence of his acts.”

59. There is a distinction between intention connoting an element of volition and desire which does not (Lang v Lang 1954 3 All ER 571) a decision of the Privy Council.
60. The Australian Courts disapproved in the original English approach taken in Smith (supra); 1961 AC 290 but maintained the distinction between motive and intention and determined that motive could, with all the other circumstances, be used to show both the commission of the act and the intent of the offender (Plomp v R [1963] HCA 44; (1963) 110 CLR 234).
61. The Court finds the defendant guilty on each case involving the Ordinance section 45.

Unlawful Intimidation

62. The prosecution relies solely on the Ordinance section 34(b)(i) in furtherance of its case. The Court accepts that the complainant felt compelled to provide sexual gratification which could be legal or illegal depending on age or consent.
63. The section probably has its origin in the Conspiracy and Protection of Property Act 1875 which dealt with the relationship between ‘master and servant’ (Archbold 39 Ed. 3730).
64. In New Zealand, it appears to remain a tort (Kuljich v Hall 1973 NZLR 279). In that case, a threat meets ‘an intimation by one to another that unless the latter does or does not do something which the latter will not like’. McCarthy J at 285.
65. On the prosecution’s case, as argued, there was no act or conduct of violence or words or acts that the complainant would be sacked if she did not comply with the implicit or explicit request by the defendant.
66. The prosecution cannot succeed through the path of section 34(b)(i).
67. A matter not argued concerns the interpretation of section 34(a) as to whether the defendant imposed, by virtue of his position as an employer by itself, but the wording itself seems to require communication, direct or otherwise, of a punishment, fine or penalty. There is insufficient evidence to establish this on the test required by the criminal law.
68. The Court is not satisfied beyond reasonable doubt that the prosecution has established breaches of the Ordinance section 34.
69. There is a further basis for declining to convict, namely that there are no further acts or conduct not already dealt with in the convictions involving the Ordinance section 45. The defendant is entitled to regard the charges as duplex or as permitting an alternative finding of guilt but not both. If that be the case, he would be entitled to rely on the doctrine of autrefois convict.
70. In either instance, the Court dismisses the Information alleging intimidation contrary to the Ordinance section 34.

ORDERS:

(1) That Mulitalo Siafausa be convicted of the offences under the Crimes Ordinance 1961 section 45, namely S1637/09, S1638/09, S1729/09, S1731/09, S1733/09, S1735/09, S1737/09, S1740/09, S1742/09 and S1744/09.
(2) That Mulitalo Siafausa be acquitted of the offences under the Crimes Ordinance 1961 section 34(b), namely S1727/09, S1728/09, S1730/09, S1732/09, S1734/09, S1736/09, S1738/09, S1739/09, S1741/09 and S1743/09.
(3) That the names of the complainant, members of her family and her village be suppressed.
(4) That the Order made by this Court on 8 June 2009 for an interim name suppression of Mulitalo Siafausa be discharged.

..............................

(JUSTICE SLICER)