Police v PL [2012] WSSC 22 (20 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

"PL"
Defendant

Counsel: Ms P Valoia for prosecution
Ms R Papalii for second defendant.

Sentence: 20 February 2012

SENTENCE

The defendant in this matter originally faced 8 charges which can be conveniently grouped into three categories. The first are 2008 charges alleging that between 30 December 2007 and 31 July 2008 he raped the complainant and afterwards threatened to kill her if she said anything about what had happened. The second group are the 2010 charges that between 30 December 2009 and 31 July 2010 he again raped the complainant and threatened to kill her if she told anyone. The third are the 2011 charges that between 01 March 2011 and 30 June 2011 he raped once and indecently assaulted twice the complainant. There was also alternative to the 2011 rape charge a charge that if he did not rape the complainant that between 01 March 2011 and 30 June 2011 he committed incest on the complainant who is his biological daughter.

The defendant defended all charges and a panel of assessors returned the following verdicts: in respect of the 2008 charges, guilty by majority vote of rape and threat to kill, in respect of the 2010 charges again they returned a majority verdict of guilty of rape and threat to kill. In respect of the 2011 charges a unanimous verdict of guilty of rape and the two indecent assaults. Because the incest was an alternative to the rape that matter was dismissed.

At the end of the trial I indicated to counsels that pursuant to the discretion vested in the court by section 100 of the Criminal Procedure Act 1972 I was setting aside the majority verdict of the assessors in respect of the 2008 and 2010 charges. However I had no difficulty with their unanimous verdict in respect of the 2011 charges. The power of a trial judge to set aside the verdict of a panel of assessors is not often exercised but does exist under the said section 100 of the Criminal Procedure Act and will always be exercised in appropriate situations.

As a result of all these the defendant today appears for sentence on only the 2011 charges. And as I also indicated to counsel I will today provide my reasons for invoking the section 100 power in respect of the 2008 and 2010 charges.

The evidence:

The complainant is the defendants biological daughter and at all relevant times she was living under his care, protection and control as her father. She was born 05 September 1993 so that in 2008 when these offences were committed she was then 14, in 2010 she was 16 and in 2011 she was 17 years of age. A suppression order has already been issued in respect of the details of both the complainant and her father defendant and these are to continue in force. This case is to be reported as Police v PL. That order extends to suppression of publication of the village of the complainant being the place where she and her family reside.

The evidence established that the family lived together in the same house and that the defendant was a planter / fisherman who enjoyed alcohol. On the dates in 2008 when these offences were alleged to have occurred the complainants mother was not at the family home, she was on an overseas trip. But on the material dates in 2010 and 2011 she was in-country and the evidence of the witnesses was she was sleeping in the same fale as the defendant and complainant when these incidents are said to have occurred. As she did not testify her knowledge of these events are unknown. But according to the complainant she had reported at least one of the sexual assaults to her mother who told her to keep quiet about it as she did not want their neighbours to find out. If that is true, that is abhorrent and inexcusable behaviour by a mother who has a duty to protect and look out for the welfare of her children especially her female children.

The evidence showed that each of the sexual assaults was committed at night on some occasions when the defendant returned from partying and drinking with his friends. And that they were committed more or less in the same way and in the early morning between 2 to 3 am according to the complainant. It began with the defendant touching the complainants breasts then undressing her, touching her private parts, finally jumping on top of her inserting his penis into her vagina and putting a pillow over her mouth to suppress any noise while proceeding to have sexual intercourse with her. And in 2008 and 2010 afterwards threatening to kill her if she told anyone. According to the complainant she was a virgin before the first act of intercourse with her father.

The evidence also established that following the 2008 and 2010 incidents the complainant did not complain or tell anyone about what had happened. According to her because she was scared of her fathers threats. But after the 2011 rape, she complained to her grand-mother and to an aunty who lived in different houses. From there the matter found its way into police hands.

The assessors by their verdicts obviously accepted in full the complainants testimony in relation to all the rapes - 2008, 2010 and 2011. I however had serious doubts in relation to the 2008 and 2010 incidents for the following reasons. Firstly I carefully observed the demeanour of this sexual complainant and her evidence to me seemed rehearsed. Her description of the pre-intercourse events was virtually the same for each of the three rapes beginning with the touching of her breasts, undressing her, touching of her private part, insertion of penis and intercourse, the pillow over her mouth and the pain she suffered every time. Her evidence asked that the court accept the defendant in respect of all three events acted in exactly the same fashion each time. Furthermore her evidence re 2008 and 2010 was delivered in much the same tone at the same speed and was more like a recital or repetitive monologue. It lacked forceful conviction until she came to describe the 2011 rape.

I also note that her original complaint to the police made no reference to the 2008 or 2010 incidents, it only referred to the 2011 matters. Only at a subsequent re-interview by the police were the earlier incidents disclosed. In addition I noted that her original complaint to her grand-mother the next day following the 2011 rape mentioned only what had happened the night before. She made no reference to anything happening in 2008 or 2010. According to the grandmother the girl told her that the defendant had tried this before but did not succeed until last night. I quote from page 72 of the transcript of the grandmothers evidence where the words she said the girl used was "tusa na fai muamua fai mai e le'i taunuu, ae toe alu atu loa lona tama tago pupuni lona gutu i aluga ae faataunuu loa le mea lea ia te ia." The girls complaint to her aunty was in similar vein, there was no mention of previous incidents or attempts by the defendant to sexually assault her in some way in previous years.

The complainants own words also raised alarm bells. Several times in her evidence she referred to the 2011 incident as being when her father "first break" her. These were her words. Words which she repeated more than once when asked to clarify what had happened to her in 2011. There was also a question mark in my mind as to why if the defendant committed all three rapes in similar fashion he did not stick to the pattern and also threaten the young girl after the 2011 rape. The evidence of the complainant was that no such threat was made after the 2011 rape only after those in 2008 and 2010.

Looking at the evidence in its totality I was not satisfied beyond reasonable doubt the earlier 2008 and 2010 rapes had occurred. It seemed possible the defendant had in fact tried something by way of an indecent assault or attempted rape on the girl but there was no indecent assault or attempted rape charges or such evidence in respect of 2008 and 2010. Her evidence was she was raped.

This view of the evidence was also consistent with what the defendant admitted to the police when he was interviewed. His admission was to sexual assault in 2011 only. Nothing supported the complainants oral evidence regarding the rapes in 2008 and 2010 unlike 2011 where there was evidence of a complaint being made by her to her aunty and grand-mother the next day. The issue of her credibility therefore in relation to 2008 and 2010 was very much open to doubt. But she was consistent in her conduct in relation to the 2011 incident.

The Court of Appeal in Attorney General v Sefo [2009] WSCA 7 explained the application of section 100 of the Criminal Procedure Act 1972 or the power of the trial judge to set aside the verdict of a panel of assessors by saying in para 8:

"The trial judge must undertake the very process required by the assessors: to make a personal decision whether the charge has been proved and, if not, to acquit. In the case of difference as to acquittal the opinion of the trial judge prevails."

Later in that judgment:

"We have no doubt that the power to veto a conviction, conferred on the judge by section 100, was enacted deliberately as a balance to the relatively small number of assessors. Section 100 operates as a safeguard in cases where the dynamic of a small group might disadvantage an accused in a difficult trial. The safeguard is not a reflection on assessors but acknowledgment of the central tenet of criminal justice requiring proof beyond reasonable doubt. The test of 'opinion' is limited to acquittal and is constrained by judicial not personal responsibility. It cannot be exercised by whim or caprice and must be grounded on evidence or its absence."

I reiterate the comments made in Police v Lealofi Otto as appears from the Court of Appeal decision in that case: Attorney General v Otto [2009] WSCA 6. Section 100 is a necessary safety valve reserved to a trained qualified practitioner of the law with years of experience and knowledge of criminal cases and evidentiary matters. Its exercise should not be undertaken lightly but where it is necessary the judges duty is to intervene to prevent a miscarriage of justice. Such a power is a valuable tool to ensure that in every case a just result as to the guilt or innocence of a defendant is as far as possible achieved. For the principle that runs like a golden thread through the web of the criminal law revered since the days of Woolmington v DPP [1935] AC 462 (HL) is not to be undermined. Namely that it is the duty of the prosecution in respect of each and every charge to prove their case beyond reasonable doubt. If at the end of the case there is reasonable doubt created by the evidence as to whether the offence was committed by the accused person then the prosecution have not made their case to the required standard and the accused is entitled to be acquitted. I echo the words of the House of Lords in Woolmington:

"No attempt to whittle down this rule can be entertained."

I note with concern the absence of an equivalent to section 100 in the current draft Criminal Procedure Act that is under consideration. As a working trial judge sitting in assessor trials week in and week out I sound a note of caution that in my humble and respectful view exclusion of this power from the criminal law would be a serious mistake. I stress that is a personal view only and does not necessarily represent the position of the Supreme Court which is headed by the Honourable Chief Justice.

Pursuant to the discretion vested in this court by Parliament I therefore for this particular case set aside the majority verdicts of the assessors in respect of the 2008 and 2010 charges, i.e. informations S403/11, S404/11, S402/11 and S405/11 which are accordingly dismissed. It now remains to sentence the defendant on the remaining charges of the one count of rape and two counts of indecent assault in 2011 which the assessors by unanimous verdict found him guilty of.

Cases of fathers raping their biological daughters are sad to say becoming more and more prevalent. The courts have in the past imposed lengthy imprisonment sentences to reflect the deterrence aspect of the sentence and to show societys sound denunciation of such conduct. Rarely if at all has a sentence for such a rape been less than 10 years. In at least one case the maximum of life imprisonment was imposed.

The defendant is a 43 year old first offender and his daughter at the time he raped her was 17, an age difference of some 26 years. I accept the defendant committed this offence while under the influence of alcohol. According to him in his probation office interview after drinking vodka probably of the poorly labeled jet-fuel variety that is so common. Mixed together with beer which he consumed with some friends. But alcohol is no excuse for anything. The defendant has by his actions destroyed the sanctity of the home and alienated probably permanently his daughter, wife and other children. Your daughters victim impact report says the family is much happier without you and she has expressed the wish never to see you again. By his actions this defendant has deprived his daughter of her innocence, of her virginity which was hers to give not his to take and he has removed from her many of those childhood things that young girls are entitled to. The rape was committed in her family home. Something that this girl will have to live with for the rest of her life.

Your counsel has said all that can be said in your favour and the primary factor is that you are a first offender as your convictions that have been raised are not only old but relate to other kinds of offences. I do not accept that you are remorseful because you chose to defend all these charges. Which necessitated the complainant and other people having to come to court and go through a trial.

In respect of the charge of rape information S280/11 you are convicted and sentenced to 15 years in prison less 2 years for your first offender status. Your remand in custody time is to be deducted from that period.

In respect of the indecent assault charges information S282/11 and S279/11 you are convicted and sentenced on each charge to 4 years in prison but those terms are to be served concurrent with your term for the rape.

...............................
JUSTICE NELSON