Police v Fuifatu [2012] WSSC 67 (8 June 2012)

SUPREME COURT OF SAMOA

Police v Fuifatu [2012] WSSC 67

Case name: Police v Fuifatu

Citation: [2012] WSSC 67

Decision date: 08 June 2012

Parties:

POLICE v MALU FUIFATU aka SOOTULI MITI male of Papauta and Faiaai Savaii.

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution

Mr J Brunt for defendant

Catchwords:

Words and phrases:

Legislation cited:

Crimes Ordinance 1961

Cases cited:
Nofoaiga v Police [2007] WSCA 3
Police v Viliamu 2008 WSSC 74
Police v Mafuao Gaia [2000] WSSC 3
Police v Maina Sio [2000] WSSC 5
Police v Reopoamo Ekalesia [2003] WSSC 13

Kereti Tulitoa v Police [2006] WSSC 13

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

MALU FUIFATU aka SOOTULI MITI, male of Papauta and Faiaai Savaii.

Defendant

Counsels: Ms L Taimalelagi for prosecution

Mr J Brunt for defendant

Decision: 08 June 2012

ORAL DECISION OF NELSON J

(Change of plea)

1. This defendant was originally charged with the following offences: 6 counts of rape pursuant to section 47 of the Crimes Ordinance 1961, 6 counts of sex with a related girl living in the family pursuant to section 50 of the Ordinance, 6 counts of indecent assault with the same girl pursuant to section 53(2)(a) and 6 counts of carnal knowledge pursuant to section 53(1).
2. On 16 April 2012 he entered guilty pleas to the following charges: four counts of rape namely informations numbered S401/12, S402/12, S404/12 and S405/12, three counts of indecent assault namely informations numbered S451/12, S454/12 and S455/12 and six counts of carnal knowledge namely informations numbered S426/12, S456/12, S422/12, S423/12, S424/12 and S425/12. He pleaded not guilty to the remainder and the prosecution sought to withdraw those charges. That application was granted and the matter was adjourned for sentence before me.
3. On 07 May 2012 when the matter was called the defendant indicated he disputed the police summary of facts. He maintained that the complainant consented to the sexual acts that he carried out. He indicated he wished to change his plea but he could not afford a lawyer. In view of the seriousness and number of charges facing him the defendant was given legal aid and he has now filed through his counsel an application for change of plea.
4. The grounds for his application are firstly that he entered guilty pleas without the benefit of legal advice. Secondly that he wished to retract his confession of rape that he gave to the police when he was interviewed in respect of these matters. He argues that notwithstanding the tender age of the complainant she consented to everything that was done to her.
5. The law in relation to changes of plea was helpfully summarized by the Chief Justice in Police v Viliamu 2008 WSSC 74:

“The principles which are applicable to the exercise of the Courts discretion whether to allow an accused who has pleaded guilty to a charge to withdraw his plea of guilty before sentence and to substitute it with a not guilty plea are now well established: see Police v Mafuao Gaia [2000] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13; Kereti Tulitoa v Police [2006] WSSC 13; Onosai Nofoaiga v Police [2007] WSCA 3. The guiding principle is whether the interests of justice require that an accused who has pleaded guilty to a charge should be granted leave to withdraw his plea of guilty and substitute it with a plea of not guilty. Situations where such leave may be granted include where an accused has not really pleaded guilty, where the accused was under a mistake or misunderstanding as to what he was pleading guilty to, where there is a clear defence, or where considerable pressure was put on the accused to plead guilty contrary to his wishes. These are only examples of the interests of justice test: Onosai Nofoaiga v Police [2007] WSCA 3.”

6. Considering the charges and in relation to the defendants application as to the first ground the entering of a guilty plea in the absence of legal advice the court finds as follows: the absence of legal advice is not necessarily a ground for setting aside a guilty plea. Legal advice can well confirm a guilty plea because the defendant has no defence or because it is determined to be the best course of action for him to take. Counsel often mistakenly advance this as a reason or determinative factor for setting aside a guilty plea. This is not so. The only basis upon which guilty pleas are set aside are in accordance with the tests laid down by law and by cases such as Police v Viliamu referred to above. That is where a defendant did not intend to plead guilty or where he was mistaken or misunderstood what he pleaded to. Or in cases where he was pressured into a guilty plea or where legal advice reveals that he has a legitimate defence to what he has been charged with. And in respect of the last matter the defence available must be obvious and clear, not speculative or fanciful. It must have some solid evidential foundation and this often means something more concrete then the defendants own version of events without any substantiating evidence or semblance of proof. The first ground advanced in this case is therefore not made out as no basis has been presented for the court to conclude that this defendant did not intend to plead guilty or otherwise in accordance with the aforesaid tests.
7. As to the second ground of the application this too is not a ground for setting aside the defendants guilty pleas. Again it has not been demonstrated that the defendant misunderstood or otherwise what he was doing or was pressured into pleading guilty. There is no basis given for his attack on the cautioned statement he gave to the police and the questioning of the voluntariness of that statement is not equal to a clear defence to the charges. The very young age of the girl in this matter and the defendants relationship to her which is that of step-father to step-daughter also mitigates against the existence of a defence of consent. It does not assist the defendants application that he understood enough at the initial arraignment to plead guilty to some of the charges and not guilty to others. As the prosecution point out in their submissions this shows he was well able to understand and distinguish amongst the various charges and allegations levied against him. The application in so far as the four rape charges are concerned is accordingly refused.
8. A different state of affairs exists however in relation to the three counts of indecent assault and the six counts of carnal knowledge. This arises out of the fact that the prosecution summary of facts dated 20 April 2012 submitted to the court relates in paragraph 2 that the complainant was at all material times 11 years of age. Clearly the defendant cannot offend against section 53(1) or 53(2)(a) if a complainant is under 12 years of age as one of the ingredients of those offences is that the complainant be between the age of 12 and 16. In respect of those charges therefore unknown to either counsel the defendant has a clear defence. The three little words counsels that come to mind are “preparation, preparation and preparation.” As however the charges of indecent assault and carnal knowledge are probably only alternative charges I will entertain any application the prosecution may wish to make in respect of those charges.
9. In respect of the four charges of rape for the reasons already given by the court Malu your application to reverse your plea from guilty to not guilty is refused. You will be remanded in custody to the 18^th of June for sentence on those charges. In respect of the remaining charges of carnal knowledge and indecent assault prosecution are to make formal application for any changes to those charges. This is to be filed and served on defence counsel by the 18^th of June 2012
   

JUSTICE NELSON