Police v Liliko [2014] WSSC 158 (1 August 2014)

IN THE SUPREME COURT OF SAMOA
Police v Liliko [2014] WSSC 158

Case name:	Police v Liliko
Citation:	[2014] WSSC 158
Decision date:	01 August 2014
Parties:	POLICE (Prosecution) VASA SIAOSI LILIKO, male of Samatau and Moamoa Faleasiu (Defendant)
Hearing date(s):	08 April 2014 and 09 May 2014
File number(s):	S2239/13, S2240/13
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The application for change of plea for these reasons must accordingly be dismissed and the defendant will be remanded to a date for sentence.
Representation:	F Lagaaia for prosecution F K Ainuu for defendant
Catchwords:	Dependent family member – clear defence – sexual connection.
Words and phrases:
Legislation cited:	Crimes Act 2013 Interpretation Act 1974
Cases cited:	Police v Viliamu [2008] WSSC 74 Police v Mafuao Gaia [200] 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 R v Heremia [1993] 1 NZLR 129
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

VASA SIAOSI LILIKO, male of Samatau and Moamoa Faleasiu.
Defendant

Counsel: F Lagaaia for prosecution
F K Ainuu for defendant

Hearing: 08 April 2014 and 09 May 2014

Judgment: 01 August 2014

ORAL JUDGMENT OF NELSON J

1. The defendant faces two charges of having sexual connection with the complainant. Information S2240/13 alleges that this occurred at Moamoa Faleasiu during the month of June 2013 and information S2239/13 asserts that this occurred again at Vaitele-uta on 26 September 2013. Both informations allege the complainant was at the time under the age of 21 years and was a dependent family member. There is no dispute for present purposes that the complainant was a female under 21 years of age nor that the defendant had a sexual connection with her.
2. The dispute revolves around whether the complainant was at the relevant time a dependent family member vis á viz the defendant. At the time the defendant was said to have been residing at the family of the complainant. The defendant claims that she was not a family member dependent on him and that this therefore affords him a complete defence to the charges against him; charges which are brought pursuant to section 56 (1) of the Crimes Act 2013 which makes it an offence punishable by up to 14 years in prison for a person to have a sexual connection with a dependent family member under 21 years of age. For the purposes of this offence the phrase “dependent family member” is defined by section 57 of the legislation.
3. The background to this matter is the charges were laid on 27 September 2013. The defendant was remanded in custody to 21 October 2013 and as he had insufficient means to engage counsel he applied for legal aid. By 21 October however he had not been granted legal aid and the unrepresented defendant appeared that day and pleaded guilty to the charges. The defendant was then remanded in custody to 18 November for sentence. On 1 November the Chief Executive Officer of the Ministry of Justice and Courts Administration approved the defendants legal aid application. Counsel was eventually assigned to the defendant and counsel has appeared and filed an application for a change of plea on the following grounds: Firstly that the defendant did not understand the nature of the charges against him; and secondly because he has a clear defence to the charges based on the fact that the complainant was not a dependent family member in terms of sections 56 and 57 of the Crimes Act 2013.
4. As to the law applicable to change of plea applications this is well settled. The relevant passage from Police v Viliamu [2008] WSSC 74 reads:

“The principles which are applicable to the exercise of the Court’s 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 [200] 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 to, 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.”

Counsels agree this represents the applicable law.

5. The essence of the application is whether the defendant has a clear defence as claimed. If he does then I am satisfied this would not have been known to the defendant who is not a lawyer and that if it had been explained to him he would have pleaded not guilty and contested the charges. The real issue is whether he has a clear defence. As noted this depends on the interpretation of the phrase ‘dependent family member’ contained in sections 56 and 57 of the Crimes Act.
6. Evidence was called by both sides. That evidence shows the defendant who is a Samoan masseur living with his wife’s family in Faleasiu was originally engaged by a Faleasiu man Suluape to massage him and his family. Suluape lived inland of the village of Faleasiu. Because it was some distance inland the defendant moved in with Suluape and his family and began his massages of Suluape and members of the family.
7. According to the evidence Suluape is married to the complainants mothers sister Asiasiga. The complainants mother Tautega and the complainant and their family however live seaward in the “aai” (main part) of the village. Because Tautega babysits Suluapes granddaughter she came to know and become acquainted with the defendant.
8. As the defendant’s fame spread, more and more people came to him for massages. This was after all the way he earned his living. Because Suluapes house was so far inland it became inconvenient for the defendants customers to travel inland to be massaged. So the defendant at a later stage asked Tautega if he could move in with her and her family who lived in the “aai” so that he could easier service his clientele. He also agreed to massage Tautega and members of her family in return.
9. The arrangement began about August 2013 and went on for some 3 months. It seemed for that 3 months to be working well enough. The defendant was at the time also massaging the complainant as one of the family members.
10. Tautegas evidence at trial was that during this time the defendant was regarded as part of the family. He helped out in many different ways including massages. She was asked and this is recorded on page 5 of the trial transcript of 9 May 2014:

“E mafai ona e faamanino o a tulaga ia sa fesoasoani ai, o a mea ia e agai ai le feasoasoani a Vasa?”

Her answer was:

“O le tulaga i le fesoasoani a Vasa, amata mai lea i la’u loan. Sa iai le fesoasoani a Vasa i la’u loan peitai ua leai sa’u seleni sa iai, o’u tapa loa i le tama ia Vasa. Na ou alu fai iai i sana tupe ou te fa’aaogaina e uma toe pay atu. O lana tala ia te a’u, aua le toe totogia o ia o le tagata moni i totonu o le matou aiga. Le gata i lea o tupe mai lana fanau, tasi lena seleni e tele ina ou fa’aogaina, ae le gata i lea o matou meaai. O le tele o taimi e alu ia fa’atau mai matou meaai, fesoasoani i le faiga o kuka ae le gata I lea o le faiga o feau a tamaiti.”

11. Later on in page 5 of her evidence she was asked by the prosecutor

“Fesili ese mai i tulaga i seleni lea sa lagolago ma fesoasoani iai Vasa, o a nisi tulaga sa lagolago ai i la outou mafutaga?

Tali o le tele o taimi e alu fesoasoani i le faiga o meaai, aua o isi taimi e o ma lo’u tuagane i uta i le maumaga

Fesili Tautega e iai la Vasa i le tou mafutaga lea ua sau nonofo ma outou na iai lou toalua?

Tali ia o lea lava sa iai lo’u toalua i le taimi lea, sa sau matou mafuta, sa talatalanoa lava iai lo’u toalua i le vaaiga o le matou aiga. Ae le gata i lea o le vaaiga o lau fanau teine. Sa tuufau foi ia te ia, o le tele o taimi oute feosofai i mea fai ae pei o Vasa o lo’u fa’atuatuaga lea i le vaaiga o si a’u fanau.”

12. And on page 6 of her evidence

“O la’u vaai ia Vasa pei se teine, o le sikali a Vasa sa fai atu ia matou e pei se fa’afafine. Tusa sa tuu lava iai si a’u fanau ...oute iloa i ana mea e fai i la’u fanau. O fea le mea e manao e o e faatau e manao Vasa e o ai a ma teineiti. O le ala foi lena ua alai ona ou tuu iai teineiti ona oute iloa o le tagata matua ua iloga foi sona ia vaaiga fa’a-le-fanau iai.”

13. It also appears from the evidence adduced that the defendant helped with payment of the loan of the complainant herself. On page 12 of the evidence prosecution asked the complainant

“Fesili a’o tou mafuta i tai ma Vasa e iai ni fa’atonuga a Vasa e fai atu ia te oe?

Tali ia o feau masani o le fufulu o ipu ma le taeina o le lapisi ma fesoasoani i le faiga o feau.

Fesili o ai e faia tulaga ia?

Tali o matou

Fesili ae a Vasa o a mea e fai e Vasa?

Tali e masani ona alu atu i le faiga o meaai, fufuluga o ipu

Fesili ese mai le vaega lea e te taua o a isi mea e fesoasoani ai Vasa ia te oe?

Tali o le faiga o o’u pasese e faigaluega ma le faiga o tupe o le loan.”

14. And at the end of the complainant’s evidence at page 14

“Fesili a leai lou tina o ai e aumaia le fa’atonuga ia outou. O ai tou te vaai iai i fa’atonuga?

Tali o Vasa ma lo’u uncle ma lona toalua.

Fesili sa e usitai la i ni fa’atonuga e le tama ia Vasa?

Tali ia

Fesili i lau la vaai iai i le tou mafutaga ma le tama ia Vasa o le a sau ta’u iai i lea tagata o Vasa i la outou mafutaga?

Tali oute alofa iai ma o se tagata e tausaafia ma ona uiga.”

15. Given these circumstances the prosecution submits the relationship between the defendant and the complainant falls within either 57 (1)(b) or 57 (1)(c) of the definition of a ‘dependent family member.’ Section 57 provides:

“57. “Dependent family member” defined – (1) For the purposes of section 56, one (1) person is a dependent family member of another person:

(a) If the other person has power or authority over him or her, and is-

(i) his or her parent, step-parent, foster parent, guardian, uncle, or aunt; or

(ii) a parent, step-parent, or foster parent of a person described in subsection (1)(a)(i);
(iii) a child of his or her parent or step-parent; or
(iv) the spouse or de facto partner of a person described in subsection (1)(a)(i),(ii) or (iii); or
(b) if they are members of the same family or other culturally recognized family group, and the other person –

• (i) is not a person referred to in subsection (1)(a); but
• (ii) has a responsibility for, or significant role in, his or her care or upbringing; or

(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in subsection (1) (a), but has –

• (i) power or authority over him or her; and
• (ii) a responsibility for, or significant role in, his or her care or upbringing.

(2) In subsection (1):

“aunt,” in relation to a person, includes a half-sister or one of the person’s parents;

“foster parent” includes a former foster parent;

“guardian”includes –

(i) a court appointed guardian; or

• (ii) a former guardian; or”

16. In relation to section 57 (1)(b) I accept that the evidence shows the parties are not blood or marriage related and it is therefore clear they are not members of the same family. On this all the witnesses agree including the defendant who said he was not related to either Suluape or the complainant or the complainants mother.
17. It is also clear the defendant does not fall within any of the relationships outlined in section 57 (1)(a) subparagraphs (i) to (iv).
18. But what is arguable is that the defendant and the complainant are “members of the same culturally recognised family group” in terms of section 57 (1)(b). It also seems clear the defendant had a degree of responsibility and/or a significant role to play within the family. And in relation to the care of the complainant.
19. The evidence indicates he helped with the complainants “pasese”(fares) to and from work. He helped with the food purchases and other expenses of the family unit. He helped with the cooking and family chores as well as the care of younger family members. He seems to have been generally regarded which is not unusual in our culture as an older and respected albeit “adopted” member of the family who in the absence of the senior members of the family was someone to be obeyed. His status of course does not appear to be of an absolute nature such as for example the complainants mother and father but in the pecking order he probably ranked third after the complainants parents and her mothers brother the uncle with whom they were living. No doubt even when these more senior people of the family were present the younger members inclusive of the complainant would have obeyed instructions given by the defendant unless otherwise modified by the mother or the father.
20. In considering the proper interpretation to be given to the words of the legislation I follow the principle enshrined in section 5 (i) of the Acts Interpretation Act 1974 which requires that statutory provisions be given “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object” of the statute. In relation to section 57 (1)(c) and whether it applies I accept defence counsels submission that subsection has no application because that envisages the situation where a complainant resides in the family of a defendant. That is not the case here.
21. I do not accept the prosecutions submission that the test to be applied is that laid down by the New Zealand Court of Appeal in R v Heremia [1993] 1 NZLR 129 based on an equivalent New Zealand provision said by the prosecution to mirror the terms of 57 (1)(c).
22. With all due respect that is not correct. The New Zealand provision is not a mirror image of section 57 (1)(c) and Heremia was concerned with a quite different factual situation. The test to be applied is not one of a same domestic situation or setting because section 57 (1)(c) plainly applies to where the complainant, the “one person” described in section 57 (1), resides with the other person as a member of the other persons family and where the other person is not a parent etc or within any of the categories in 57 (1)(a) (i) to (iv); and where the “other person” meets the criteria of power and authority etc prescribed in 57 (1)(c)(i) and (ii).
23. The end result is I am of the respectful view section 57 (1)(b) does apply, that the complainant was a dependent family member vis á viz the transient defendant at the material times and that the defendant therefore has no clear defence to the charge on these grounds.
24. Furthermore I am not satisfied any of the other grounds for a change of plea application have been made out and in this regard I accept the prosecution evidence that the defendant understood he was pleading guilty to having sex with a girl he had been living with as part of their family. I accept he may not have understood the nuances of the definition and what amounts to a ‘dependent family member.’ But that is a legal issue: It is a matter of law and the circumstances of his residence in this family as a matter of law make the complainant a ‘dependent family member.’
25. Again the authorities make it clear that any defence for the purposes of this sort of application must be a clear defence, not some nebulous or fanciful defence. In my respectful view that test has not been met. The application for change of plea for these reasons must accordingly be dismissed and the defendant will be remanded to a date for sentence.
    

JUSTICE NELSON