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Police v Iuogafa [2017] WSSC 147 (1 December 2017)

IN THE SUPREME COURT OF SAMOA
Police v Iuogafa [2017] WSSC 147


Case name:
Police v Iuogafa


Citation:


Decision date:
Oral Decision: 27 November 2017
Written Decision: 01 December 2017


Parties:
POLICE (Informant) and DANIEL IUOGAFA, male of Vaimea & Vaovai Falealili (Defendant)


Hearing date(s):
4th, 5th, 26th, 27th October 2017


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Mata Keli Tuatagaloa


On appeal from:


Order:
I find that the complainant consented to the sexual intercourse with the accused. The charge of rape is therefore dismissed.
The alternative charge of indecent assault is also dismissed because I find that the complainant consented to the sexual intercourse and as such the allegation of any indecent assault cannot succeed because the prosecution could not proved beyond reasonable doubt that the complainant did not consent.


Representation:
O Tagaloa for Informant
M Leung Wai for Defendant


Catchwords:
Sexual violation – rape – indecent assault – complainant intoxicated – unconscious – consent – charges dismissed


Words and phrases:
Inconsistencies in Prosecution’s evidence


Legislation cited:
Crimes Act 2013 ss.49(1); 51; 51(b); 51(b)(v); 51(b)(iv); 52(1); 60;
Criminal Procedure Act 2016 s. 125


Cases cited:
R v Isherwood 14/3/05 CA 182/04 refer to in Adams on Criminal at [CA63.08]
R v Kim [2010] NZCA 106 at [20]
R v Sung Tae Kim [2010] NZCA 106 at [23]


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E
Informant


A N D:


DANIEL IUOGAFA, male of Vaimea and Vaovai, Falealili
Defendant


Counsels:
O Tagaloa for Informant
M Leung Wai for Defendant


Hearing: 4th, 5th, 26th, 27th October 2017
Oral Decision: 27th November 2017
Written: 1st December 2017


JUDGMENT OF TUATAGALOA J

  1. The offence of sexual violation by rape is to be tried before a panel of assessors. Counsel for the accused filed an application pursuant to section 6 and section 125 of the Criminal Procedure Act 2016 to have the matter tried by Judge alone. The application was not objected to by Prosecution and the matter proceeded by Judge alone.
  2. This is the written decision with reasons for the conclusion orally delivered on 27 November 2017.

Introduction

  1. The accused faces one count of sexual violation by rape pursuant to section 49(1) and section 52(1) of the Crimes Act 2013; and the alternative charge of indecent assault pursuant to section 60 of the same Act.

The prosecution case

  1. The prosecution’s case is that the complainant was so affected by alcohol to the extent that she cannot choose to consent or not to consent to the sexual intercourse that took place. In other words, the complainant was heavily intoxicated to render true consent freely and voluntarily.

The defence case

  1. The defence says that the sexual intercourse occurred with the complainant’s consent given freely and voluntarily. In other words, the defence is also saying that the complainant was not heavily intoxicated to not be able to give consent freely and voluntarily.

The law

  1. The prosecution must prove the following elements beyond reasonable doubt of the charge of rape:
    1. The accused penetrated the genitalia of the complainant with his penis; and
    2. The complainant did not consent;
  2. The accused does not dispute that sexual intercourse took place. The question in dispute is consent. Therefore the prosecution is to prove beyond reasonable doubt whether the complainant consented to the sexual intercourse.
  3. Section 51 of the Crimes Act 2013 specifies various situations in which consent will be deemed to be absent without limiting the circumstances in which there is no consent or reasonable belief there is, consent. The prosecution is alleging section 51(b)(v) which says:

It is not consent where –

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

“(v) the person is affected by alcohol or other drug to the extent that he or she cannot choose to consent or not to consent to the sexual connection or other sexual activity;...”

  1. The New Zealand Court of Appeal in R v Sung Tae Kim[1]has this to say about the burden of proving whether sexual intercourse was consensual in the above situation:

“The Crown has the burden of negating consent....To negate consent, the Crown had to prove..........that she was so affected by alcohol that she was unable to consent or refuse to consent.”

  1. In R v Isherwood[2] the Court accepted that proof that the consumption of liquor or drugs has had “a disinhibiting effect on the mind of a complainant is not necessarily incompatible with consent. It is all a question of degree.” The Court went on to say that “.the extent to which [the complainant] was intoxicated, and how she became intoxicated, may well be important parts of the surrounding circumstances...but they are not determinative in themselves.”
  2. In R v Kim[3] the Court held that whether a complainant was so affected by alcohol (or drugs) that she could not consent or refuse to consent to the activity:

“Must be decided by the jury in the light of the available evidence. There is no requirement in law that there be some independent verification of the complainant’s level of intoxication, or that there be expert evidence on the effect of such a level of intoxication on the ability to consent.”

  1. There is the alternative charge of indecent assault to consider if the offence of rape is not proven beyond reasonable doubt. Indecent assault consist of the following elements that the prosecution is to prove beyond reasonable doubt:

The issue

  1. Crucial to the issue of ‘consent’ is the degree of intoxication of the complainant, that is:
  2. Before I move on to discuss the evidence, I should first address the issue of being ‘unconscious’ and being ‘heavily intoxicated’. Although the prosecution’s case as to the issue of consent is the situation provided under s.51(b)(v) they also with their evidence suggests that the complainant was ‘unconscious’. The two situations of being ‘unconscious’ and ‘heavily intoxicated’ are separately provided for under section 51(b). Section 51(b)(iv) provides for situations where the complainant is asleep or unconscious and s.51(b)(v) provides for situation where the complainant is so affected by alcohol (heavily intoxicated) or drugs. The prosecution confused the two situations. When asked as to what their case is, said that the complainant was both heavily intoxicated and unconscious. The two situations are different in terms of consent. If ‘unconscious’ the complainant cannot be said to consent. If heavily intoxicated the complainant cannot choose to consent or not to consent. Being heavily intoxicated does not necessarily mean that, that person is also unconscious.

The evidence

  1. The prosecution called eight (8) witnesses as follows:

The accused evidence

  1. The relevant parts of the accused evidence:
  2. Daniel’s evidence is the same with Salesa Seiuli that he did not know that Hugh Slobbe brought a woman (complainant) with him back to SRU; he never saw the complainant prior to the alleged incident;
  3. Daniel said that he went to the Apia Police station the next day which was a Sunday in the afternoon because his supervisor called him to say that the police were looking for him. He was interviewed by Corporal Topelei Ah Ching and Constable Tugaga Stowers. He said he showed them the love bite on his chest. The accused during his evidence was asked to open his shirt to show the court whether the mark that he said was a ‘love bite’ was still there. There was no longer a mark on his left chest as shown in EXH P3.

Discussion:

  1. The prosecution claims that the complainant was heavily intoxicated to be able to consent or render consent freely and voluntary. The complainant says that she was too intoxicated that she cannot recall or remember anything that happened when she left Club X. The accused on the other hand claims that the complainant was not heavily intoxicated as she claims and that she consented to the sexual intercourse that took place. It is a question of fact and degree of intoxication.
  2. The surrounding evidence of that night will assist the court in deciding whether the complainant was heavily intoxicated. The evidence will be looked at in two parts - (a) Prior to SRU (earlier on the night) and (b) At SRU (later on the night) to address the following questions crucial to the issue of ‘consent’:

Prior to SRU (earlier on the night)

  1. The relevant evidence at this point of time is that of the complainant, Chelsea and Hugh.
  2. It is clear that there was quite a lot of alcohol consumed on the night of 11 February 2017 by the complainant and her then boyfriend Hugh Slobbe. They started at Club X then took a taxi to Millenia Hotel where they met with some other friends and pub crawled their way back to Club X walking. At Amanaki they had a quick drink because it was closing; the next stop was at a fast food restaurant to have a feed before stopping at one more bar (On the Rocks) on the way back to Club X. There is no evidence from Hugh that they consumed more drinks when they reached their final destination being Club X. Salesa said he met Hugh at Club X later when the music has stopped and people inside were finishing off their drinks suggesting that the club was no longer selling alcohol.
  3. There is no evidence that the complainant due to intoxication could not walk back to Club X or that she was staggering or that she was aided when walking from one bar to another. She said that she thinks there were taxis. Hugh said they walked all the way back to Club X. Chelsea’s (complainant) evidence is that, she could not remember anything when she and Hugh got back to Club X at the end of their pub crawl which suggests that she was already heavily intoxicated. The Court accepts the evidence of Hugh that they pub crawl by walking back to Club X.
  4. The stop at a fast food place and eating off the others food suggests sitting down at a table allowing the complainant to pick at others meals. There is no evidence as to how long they were at the fast food place. There was no evidence that the complainant drank alcohol at the fast food place or when they walked from one bar to another. The drinking was therefore, not continuous. There were breaks when they stopped to eat and when they walked from one bar to another back to Club X. The eating and walking would therefore have a sobering effect upon the complainant. If Chelsea was already heavily intoxicated as she says, would she have been able to walk all the way back to Club X?
  5. Hugh said that the complainant was incoherent and not making sense in the taxi on their way to SRU. Hugh when asked by counsel for the accused agreed that Chelsea’s state in the taxi is an important piece of information yet he did not tell the police at the time his statement was taken a day after the incident but he has now remembered some eight months later.

At SRU (later on the night)

  1. At this point the complainant does not remember or recall anything. The only evidence as to the sexual intercourse that took place is that of the accused. The surrounding evidence of that night will therefore assist the court in deciding whether the accused evidence is plausible. The relevant evidence to draw from is the evidence of Hugh, Maugaiolo and Salesa.
  2. Maugaiolo who opened the gate to Hugh and the complainant said they looked drunk because they were staggering as they walked to the building where Hugh stays but did not say Hugh help Chelsea walk to the building and/or up the stairs to his room. This suggests that Chelsea was able to walk on her own albeit staggering unaided from the gate, up the stairs to Hugh’s room.
  3. Hugh said that when they got to the room he left the door open and went to bed because the complainant, Chelsea ‘was still hanging around outside’. If the complainant was heavily intoxicated and her boyfriend at the time, Hugh Slobbe knew that she was heavily intoxicated why did he go off to bed and leave her to hang around outside the room?
  4. If Hugh had gone off to bed while the complainant was still hanging around outside, it means that he fell asleep before the complainant had come into the room. If so he could not have locked the door nor have any knowledge of whether the door was locked or not because he went to bed before the complainant had come in the room. He seemed to suggest in his evidence that followed that the door to the room was not locked and the accused was able to come into the room and have sex with the complainant while she was asleep.
  5. The accused said that when he knocked on all the doors looking for Tupu the doors were all locked. It was the complainant who opened the door when he was on his way to go down. From this point until Hugh woke up, the only evidence as to what took place is that of the accused as the complainant cannot remember or recall anything. The evidence of the accused was that he had a conversation with the complainant albeit short which lead to him kissing the complainant and they kissed which suggested that the complainant participated which lead to him suggesting the floor of the room to have sex and the complainant said it was too hard and she led him to the bed where they had sex. He said the complainant did not look intoxicated by the way she was asking him questions and responding to his questions. The tone of the accused evidence is that the complainant was not heavily intoxicated or that she was incoherent and not making sense. His evidence is the complainant was well aware and she fully comprehends what was going on and she consented to the sexual intercourse that took place.
  6. Hugh woke up around 3.30am and saw someone on top of Chelsea whose legs were spread apart and the bed was making a noise. He could see it was a man but could not see his face or who it was because the room was dark and he was still intoxicated. He said that Chelsea was not naked; she still had her top on with her skirt pulled up but no panties. He could see that Chelsea was not responding to anything that was going on. He said she “looked unconscious but not unconscious. She was out.” Hugh’s observation of when he woke up is vague and confusing. The complainant was either unconscious or not. What he said he saw when he woke up is inhibited by his state of intoxication and the room being dark. His evidence therefore of what he observed of the complainant when he woke up is doubted by the court.
  7. Hugh got up and pushed the man (accused) off the complainant. He said the accused before he left the room said to Chelsea the words to the effect ‘Next time make sure you call me’. Why would the accused say those words to the complainant if she is ‘out’ as Hugh puts it?
  8. Hugh’s evidence in part supports or corroborates that of the accused especially where he confirms that the accused said to the complainant to call him next time. When the complainant came outside the building he (Hugh) turned around and said to the accused to take his girlfriend and leave the compound. Why would he say that if he thinks at that time that the accused had just raped the complainant?
  9. There is also the issue of a ‘love bite’ the accused claimed to have been made by the complainant on his left chest. This mark is very visible on the photos taken of the accused by Constable Frank Fuaava (EXH P3) which mark was no longer visible at the time the accused gave evidence. Constable Fuaava does not recall such a mark when he took the photos or that the accused told him it was a ‘love bite’. The accused said that the complainant did the ‘love bite’ on his chest.
  10. Both the accused and Salesa Seiuli were not aware that Hugh Slobbe had brought the complainant back with him to his room at SRU. Salesa said he was very surprised that Hugh had brought her back with him because when he spoke with Hugh at Club X later that night he (Hugh) mentioned something to him that he had a bit of a disagreement (kama’i misa) with his girlfriend and was not happy with her. Salesa also said Hugh had been warned about bringing outsiders to his room because the SRU has a rule against bringing outsiders to the dorms.
  11. Despite Rowena Penfold’s observations of the complainant 6 hours after the alleged incident to still smell heavily of alcohol and looking very intoxicated, as she is not a medical professional she was not able (when asked) to know whether the medications that have been administered to the complainant may or could have contributed to the state she had observed of the complainant that is, she was slurring her words and falling asleep and making her looked very intoxicated. Without the evidence of a medical professional as to any effect of the medications administered to the complainant the Court cannot rule out the possibility of the medications having the effect upon the complainant that this witness observed.
  12. I find too much inconsistency in the prosecution’s evidence. Hugh’s account of what he said he saw when he woke up is questionable given his state of intoxication which he himself admitted that he was still drunk and the fact the room was dark. All the defence need to do is to raise a doubt. In this case, they have. The prosecution’s evidence has created a lot of doubts as to whether the complainant was heavily intoxicated as she claims or which rendered her unconscious which Hugh’s evidence was doubtful as to whether she was unconscious or not.
  13. I find the accused a credible witness and his evidence was consistent throughout. His oral evidence is basically consistent with what is recorded in his cautioned statement (EXH P2) which statement is an exception to the rule against prior consistent statements and is admissible. The circumstantial evidence also makes the evidence of the accused more plausible and that the complainant was not heavily intoxicated as she claims that she cannot consent. I therefore do not accept the evidence of the complainant that she was heavily intoxicated to not remember or recall anything.
  14. I also find that the accused honestly believed from the willingness of the complainant in kissing him when he kissed her, the complainant leading him to the bed, they continuing to kiss on the bed, she taking her bra off, him taking her panties off and then having sex that the complainant consented to the sexual intercourse that took place.
  15. The alternative charge of indecent assault of the accused kissing the complainant and/or sucking her breasts cannot succeed because on the evidence as discussed she was fully aware and was a willing and voluntary participant. In other words she consented to those actions by the accused to her.
  16. To answer the following questions:

Was the complainant, Chelsea Dyer heavily intoxicated?

The complainant was intoxicated but was not heavily intoxicated.

Was she heavily intoxicated that she cannot choose to consent or not to consent?

The fact that the complainant cannot remember (or says that she cannot remember) what happened is not conclusive. People sometimes do things when they are drunk that they would never do when they are sober. A consent given by someone disinhibited by alcohol is still consent. The question is whether such consent was freely given depends on the intoxication level of the complainant.[4] The complainant was not heavily intoxicated that she cannot choose to consent or that she was heavily intoxicated to render her ‘unconscious’ that she cannot consented to the sexual intercourse with the accused.

Conclusion:

  1. I find that the complainant consented to the sexual intercourse with the accused. The charge of rape is therefore dismissed.
  2. The alternative charge of indecent assault is also dismissed because I find that the complainant consented to the sexual intercourse and as such the allegation of any indecent assault cannot succeed because the prosecution could not prove beyond reasonable doubt that the complainant did not consent.

JUSTICE TUATAGALOA

[1] R v Sung Tae Kim [2010] NZCA 106 at [23]
[2] R v Isherwood 14/3/05 CA 182/04 refer to in Adams on Criminal at [CA63.08]
[3] [2010] NZCA 106 at [20]
[4] R v Sung Tae Kim [2010] NZCA 106 at [25]

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