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Police v TB [2022] WSSC 12 (27 June 2022)

IN THE SUPREME COURT OF SAMOA
Police v TB [2022] WSSC 12 (27 June 2022)


Case name:
Police v TB


Citation:


Decision date:
27 June 2022


Parties:
POLICE (Informant) v TB (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Leiataualesa Daryl Clarke


On appeal from:


Order:
Accordingly, I am satisfied that it was open to the assessors on the evidence to accept the prosecution evidence and reject the alternative narrative on behalf of the defendant. Accordingly, I have determined not to veto the verdict of the assessors pursuant to section 136(4)(a) of the CPA 2016.


Representation:
V. Fa’asi’i for Prosecution
S. Ponifasio for Defendant


Catchwords:
Rape – unlawful sexual connection – indecent act – conviction appeal -


Words and phrases:
“victim under 16 years of age” – “guilty verdict by panel of assessors” – “whether assessor’s verdict unreasonable” – “power to acquit a defendant” – “veto power”


Legislation cited:
Criminal Procedure Act 1972 (repealed), s. 100;
Criminal Procedure Act 2016, ss. 136(4); 136(4)(a); 180(1)(a).


Cases cited:
Attorney General v Crichton [2014] WSCA 8 (2 May 2014);
Chea v R [2016] NZCA 207 (19 May 2016);
Fetuao v National Prosecution Office [2016] WSCA 10 (2 September 2016);
Police v Fonoti [2020] WSSC46 (12 August 2020);
R v Owen [2007] NZSC 102; [2008] 2 NZLR 37.
Samuelu v Attorney General [2020] WSCA 1 (5 August 2020).


Summary of decision:

NOTE: THERE IS A SUPPRESSION ORDER PERMANENTLY SUPPRESSING OR PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND ANY DETAILS THAT MAY IDENTIFY HER


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


A N D:


T.B a.k.a T.P


Defendant


Counsel: V. Fa’asi’i for Prosecution
S. Ponifasio for Defendant
Verdict: 06 May 2022
Submissions Concurrence: 13 May 2022
Ruling: 27 June 2022


RULING ON ASSESSOR’S VERDICT OF GUILTY

INTRODUCTION

  1. The defendant is charged with three charges:
  2. The defendant pleaded not guilty to all charges. Following a three (3) day trial, the assessors returned guilty verdicts on the charges of rape and indecent act. The rape verdict was by majority of four (4) and the verdict on the charge of indecent act was unanimous.
  3. Following delivery of the verdict of assessors, I adjourned the matter to hear from counsel as to whether the assessor’s verdict is unreasonable or cannot be supported having regard to the evidence pursuant to section 136(4) of the Criminal Procedure Act 2016 (“CPA 2016”).

THE LAW

  1. Section 136 of the CPA 2016 relevantly provides:
  2. The test imposed on a trial Judge when determining whether to acquit a defendant pursuant to section 136(4) of the CPA 2016 is, though differently worded, similar to that the Court of Appeal applies when determining a conviction appeal under section 180(1)(a) of the CPA 2016. Section 180(1)(a) provides:
  3. The power of a presiding Judge to acquit a defendant pursuant to section 136(4) is a new provision introduced by the CPA 2016. The power to acquit pursuant to section 136(4) of the CPA 2016 is materially different to the power a Judge could previously exercise under section 100 of the Criminal Procedure Act 1972 (repealed) (“CPA 1972”) to acquit a defendant. The now repealed provision stated:
  4. The power of a Judge under section 136(4) of the CPA 2016 to acquit a defendant on a guilty verdict of assessors is a narrower power to that earlier contained in section 100 of the CPA 1972.
  5. In Attorney General v Crichton [2014] WSCA 8 (2 May 2014), the Court of Appeal set out the approach that a Judge was to adopt in determining whether to concur or not with a guilty verdict by assessors under section 100 of the CPA 1972. The Court of Appeal stated that:
  6. In Police v Fonoti [2020] WSSC 46 (12 August 2020), Tuala-Warren J examined the legal authorities for the exercise by a Judge of the power to acquit a defendant under section 100 of the CPA 1972. Tuala-Warren J then relevantly discussed section 136(4) of the CPA 2016 in light of appeal grounds advanced on the basis that a verdict is unreasonable or cannot be supported having regard to the evidence by examining the Court of Appeal’s approach in Samuelu v Attorney General [August 2020] WSCA 1 (5 August 2020). The Court of Appeal in Samuelu v Attorney General stated:
  7. In Samuelu v Attorney General (supra), the Court of Appeal at paragraph 8 referred to the Judge’s power under section 136(4) of the CPA 2016 as a “veto power”.
  8. In terms of an appeal court’s power to over-turn a guilty verdict on the basis that “the verdict of the assessors ... is unreasonable or cannot be supported having regard to the evidence”, the Court of Appeal further stated in Samuelu v Attorney (supra) that “[w]e are not free to substitute our own view for that of the assessors unless - and in practice this is relatively uncommon - the requirements of s.180(1)(a) are met.” In Chea v R [2016] NZCA 207 (19 May 2016), the New Zealand Court of Appeal in this context stated:
  9. The New Zealand Supreme Court in R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 stated:
  10. The New Zealand Supreme Court went on to elaborate:
  11. One final point on the law must be made. In Fetuao v National Prosecution Office [2016] WSCA 10 (2 September 2016), the Court of Appeal addressed the role of the Court of Appeal where the appeal challenges the verdict of assessors on the basis that it is unreasonable. The Court of Appeal stated:
  12. Under Samoa’s judicial system, unless a defendant elects trial by Judge alone, it is the assessors that are charged with findings of facts in cases such as this. This Court’s role pursuant to section 136(4) of the CPA 2016 is also a review function. A key difference however between the review function of the Supreme Court under section 136(4) of the CPA 2016 and the Court of Appeal is that the presiding Judge in the Supreme Court shares the advantage enjoyed by assessors of seeing and hearing the witnesses in person. Despite this however, the presiding Judge must not lightly intervene nor supplant the role of assessors as the body charged with findings of fact, unless the presiding Judge can be satisfied that the verdict reached by the assessors is unreasonable.

BACKGROUND AND EVIDENCE: PROSECUTION CASE

  1. The prosecution case is that on or between the 23rd and 24th March 2019, the defendant raped the complainant at X-village. In the course of that rape, he also committed an indecent act on her by sucking her breasts.
  2. The complainant’s evidence was that the defendant asked her brother X1 if she could sleep with his daughter X2 that Saturday night.[1] This was because X2 was leaving on the Sunday to go to New Zealand.[2] She and X2 are friends.[3] That night, she then slept at X3’s house with X2.[4] She marked with the letter “C” in photo 8 of exhibit P2 where she said she was sleeping with X2 as well as X3’s children.[5] She does not usually sleep with X2.[6] X3’s house is shown in photograph 7 and 8 exhibit P2.[7] X3 is the defendant’s sister.[8] X3 was sleeping in the same room at the back, however, partitioned by a sheet.[9]
  3. The complainant’s evidence and prosecution case was that the defendant came that night and woke her and X2 to go and shower.[10] She said in cross-examination that the defendant came into the room while they were asleep and said “VC, tu i luga e o ma X2 e taele.”[11] She later said that it was X2 who told her for them to go and shower and that it was not the defendant that woke her.[12] She said in examination-in-chief the time was 12am,[13] however, under cross-examination, she then later agreed that she didn’t know the time that the defendant entered the room.[14] Later again, she said that when X2 told her for them to shower, X2 had said it is almost 3.30am.[15]
  4. The complainant and X2 went to the house shown in photographs 1 and 2 of exhibit P2 with the defendant.[16] This house neighbours X3’s house, as can be seen in photo 1. The defendant chased X2 to go and shower, the pipe where the complainant says she showered being outside of the house.[17] The defendant then took the complainant into the room marked ‘E’ in photograph 3.[18] The complainant gave evidence in terms of X2 showering and entering the house to get a towel but this evidence was changing and she then agreed that she was guessing.[19] The complainant in her evidence described what happened to her as follows:[20]
  5. The complainant said that she was lying on the bed[21] she marked ‘b’ in photograph 5 where the defendant did those things.[22] She confirmed in her evidence that the bed marked “b” was where the bed was that night.[23] Later in her evidence however, she marks a different place in the room where she said that the defendant did the things to her which she marked “g” in photo 6 exhibit P2.[24] She explained in her evidence that the defendant had pushed her onto the bed.[25] When the defendant inserted his penis into her, she screamed for her brother and was told that if she screamed again, he will cut her with a knife.[26] She said when the defendant inserted his penis, her vagina hurt.[27] When the defendant got off the top of her, he told her to put her clothes on and he chased her outside to go and sleep at X3’s.[28] The complainant described in detail the clothes she wore and the order they were removed.[29]
  6. In her evidence under cross-examination, the complainant said that when she was in the room with the defendant, she did not hear X2 look for her.[30] However, she then said that X2 said: “faimai mum fea VC su’e loa a’u iina.”[31] The complainant said that X2 and her mother were looking for her before she had screamed for her brother.[32] After being told to go back to X3’s house to sleep, the complainant said she arrived there and X3 was awake breast feeding her baby.[33] X3 told her that X2 was looking for her.[34]
  7. On the Monday following the alleged incident, the complainant’s sister X4 said that the complainant told her about what had occurred. The complainant had said that he took her to the room, switched off the light, pushed her on the bed and aiai (ate) her breast, neck and vagina and that he ‘pugapuga’ on top of the complainant.[35] When X4 asked her why she didn’t scream, she said it was because the defendant had ripped a white cloth and tied her mouth with it.[36] She was then told by the complainant that the defendant said to her that if she told anyone about what is happening, he would cut her with the little knife.[37] X4 confirmed that she was never told by the complainant that she had screamed.[38]

BACKGROUND AND EVIDENCE: THE DEFENCE CASE

  1. The defence case was that the events recounted by the complainant did not occur and that when the defendant went to X3’s house, only X2 was woken to go with the defendant, her father. In his evidence, the defendant said that he went to X3’s house at approximately 12.00am.[39] When he arrived there, the door to the house was open and X3 was awake.[40] He woke only his daughter up to get her ready saying to her “X2, X2 nofo mai luga ta ō e faasauni oe”.[41] His sister X3 asked why he is waking her and they spoke.[42] The defendant explained in his evidence:[43]
  2. The defendant said that there was a time he had an argument with his wife looking for the key of the car but he then went to sleep because he was tired and had been drinking for a long time.[44]
  3. The defendant’s evidence was in large part confirmed by X3 who said that after church that evening, they stayed home and watched TV and didn’t go anywhere else.[45] The children slept in the area marked “C” in photo 8 exhibit P2, who X3 identified as “o la’u fanau o X5, X6, X7, X2, VC ma X8.”[46] Between 12am and 1.00am, she was awake when the defendant came to her house.[47] The door was open and he came and woke his daughter.[48] She explained in her evidence:[49]
  4. He then left with his daughter and the complainant remained asleep.[50] When the defendant and his daughter left, X3 said she was watching TV.[51] This evidence is consistent with the defendant’s evidence that when he arrived at X3’s house, she was watching TV.[52] It was around 3.00am that X9, the defendant’ wife then woke the complainant.[53]
  5. In his evidence, the defendant said that X2’s flight to New Zealand was at 9.00am and they got ready to leave for the airport at around 3.00am that morning.[54]
  6. X3 states that in the corner of photo 5 of exhibit P2 is a mattress on a table.[55] She says you cannot lie on the mattress because the table is weak.[56] The defendant also said that marked “d”, referred to in error by the defendant instead of ‘b’ in photo 5 exhibit P2, is a mattress on a table and not a bed.[57] He also said you cannot lie on that type of table. [58]

DISCUSSION

  1. There is evidence to support each element of the two offences that the panel of assessors have returned a guilty verdict on. The issue therefore is not dealing with, as the New Zealand Supreme Court in R v Owen (supra) observed, the:[59]
  2. The question for this court is whether the verdict is unreasonable in that “having regard to all the evidence, reasonable assessors could not have been satisfied beyond reasonable doubt that the appellant [defendant] was guilty.”[60] In Chea v R (supra) at paragraph 14, the New Zealand Court of Appeal framed the terminology slightly differently, namely, that “no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the evidence.”
  3. In determining whether to veto the verdict of assessors, I remind myself that the verdict of the assessors cannot be challenged if there was creditable evidence capable of supporting a finding of guilty. It is not enough for me to simply disagree with their verdict. I must also bear in mind as the Court of Appeal has reiterated that reasonable minds may differ on matters of fact. With this in mind and the assessors in this proceeding charged with being the finders of fact, in my respectful view, having regard to all the evidence, the verdicts reached by the assessors were open to them and the verdicts therefore reasonable.
  4. The prosecution case relied almost solely on the evidence of the complainant together with that of X4. The prosecution evidence against the defendant contained numerous inconsistencies, acknowledged by prosecution in closing submissions. These included the complainant’s evidence about the time the alleged incident occurred. Originally saying it occurred at 12.00am, this became 3.30am and later, the complainant didn’t know. When the complainant identified the ‘bed’ in which she alleges the defendant raped her, she marked this with the letter ‘b’ on exhibit P2 photograph 5. Where the complainant marked ‘b’, both the defendant and X3 said that you cannot lie there. The room in photograph 5 shows a number of beds and mattresses.
  5. After marking photograph 5 of exhibit P2 with the letter “b” where the complainant alleges the rape occurred, she then later marked with the letter “g” an altogether different place in the same room in photograph 6 exhibit P2. The area marked “g” in photograph 6 is not a bed and could not have been a place where the defendant could carry out the sexual acts described by the complainant in her evidence.
  6. Similarly, although the account the complainant gave to X4 about the sexual acts itself were broadly consistent with her evidence, there were some key inconsistencies between the complainant’s evidence and that of her sister X4. According to X4, the complainant was expressly asked whether she screamed and she said no and that she couldn’t scream because she had an ‘ie’ in her mouth. In her evidence before the court however, the complainant said that she screamed for her brother when the defendant inserted his penis. She made no mention in her evidence in court that she had an ie placed in her mouth, effectively gagging her.
  7. In contrast to the prosecution evidence, the evidence for the defendant given by the defendant and his sister X3 was largely consistent. When the defendant came to X3’s house, X3 was awake. She was watching TV. Only X2 was woken and only X2 accompanied the defendant and the complainant remained asleep. The rape and sexual acts recounted by the complainant could never have happened.
  8. Although the prosecution case contained numerous inconsistencies, the assessors heard and saw the complainant’s evidence. She marked with the letter ‘g’ in photo 6 of exhibit P2 an area where there is no bed and the sexual acts she alleged occurred could not possibly have occurred. When asked to identify X2’s house in photo 1 of exhibit P2, she marked the road as X2’s house with an “h” when asked to mark it with an “E”.[61] When asked whether what she had marked was a house, she responded yes even though it is a road. In her evidence, the complainant’s mother X10 described the complainant stating:[62]
  9. There was evidence before the assessors from which they could draw inferences and make findings of fact, including in relation to findings of fact in terms of the inconsistencies in the complainant’s evidence.
  10. Although the defence evidence was largely consistent, there are a few key pieces of the evidence that can lead assessors to reject the defence version of events that the complainant never accompanied the defendant and X2 to the house marked “V” in photo 1 of exhibit P2. The first, emphasised by prosecution counsel is that both the prosecution and defence evidence is that when X2 went next door after being woken, she went to shower. If, as the defence case was prosecuted, the complainant was asleep, how did defendant know that X2 went to shower? Second, the defendant went and woke X2 up at X3’s house to go and shower at between 12am and 1am. If the flight was not until 9am and they didn’t leave for the airport until sometime between 3am and 5am, why would the defendant wake X2 go to shower at this time? Third, if he woke X2 up because it was their last night together and for her to get ready for New Zealand, why then did he just go to sleep? From the evidence, an inference open to the assessors was that the complainant knew that X2 went and showered because she accompanied the defendant and X2 as she had said. Similarly, the other evidence could lead assessors to reject the credibility of the defence evidence given at trial.
  11. Accordingly, I am satisfied that it was open to the assessors on the evidence to accept the prosecution evidence and reject the alternative narrative on behalf of the defendant. Accordingly, I have determined not to veto the verdict of the assessors pursuant to section 136(4)(a) of the CPA 2016.

JUSTICE CLARKE


[1] Transcript 03 May 2022 at p. 4.
[2] Transcript 03 May 2022 at p. 18.
[3] Transcript 03 May 2022 at p. 18.
[4] Transcript 03 May 2022 at p. 5.
[5] Transcript 03 May 2022 at pp. 12, 22 – 23.
[6] Transcript 03 May 2022 at p. 18.
[7] Transcript 03 May 2022 at p. 12.
[8] Transcript 03 May 2022 at pp. 4 – 5.
[9] Transcript 03 May 2022 at p 25.
[10] Transcript 03 May 2022 at p. 5.
[11] Transcript 03 May 2022 at p. 24.
[12] Transcript 03 May 2022 at pp. 25 - 26.
[13] Transcript 03 May 2022 at p. 6.
[14] Transcript 03 May 2022 at p. 24.
[15] Transcript 03 May 2022 at pp. 26 - 27.
[16] Transcript 03 May at p. 27.
[17] Transcript 03 May at p. 28.
[18] Transcript 03 May at pp. 15 - 16.
[19] Transcript 03 May 2022 at pp 28 – 30.
[20] Transcript 03 May 2022 at pp. 5 – 6.
[21] Transcript 03 May 2022 at p. 6.
[22] Transcript 03 May 2022 at p.11.
[23] Transcript 03 May 2022 at p.12.
[24] Transcript 03 May 2022 at pp. 16 – 17.
[25] Transcript 4 May 2022 at pp. 5 – 6.
[26] Transcript 03 May 2022 at pp. 9 - 10.
[27] Transcript 03 May 2022 at p.7.
[28] Transcript 03 May 2022 at pp.8 - 9.
[29] Transcript 03 May 2022 at pp. 8 – 9.
[30] Transcript 03 May 2022 at p. 31.
[31] Transcript 03 May 2022 at p. 31.
[32] Transcript 03 May 2022 at p. 34.
[33] Transcript 03 May 2022 at p. 36.
[34] Transcript 03 May 2022 at p. 36.
[35]Transcript 04 May 2022 at pp. 6, 16.
[36] Transcript 04 May 2022 at p. 6.
[37] Transcript 04 May 2022 at p. 6.
[38] Transcript 04 May 2022 at p. 6.
[39] Transcript 04 May 2022 at p 38.
[40] Transcript 04 May 2022 at p 38.
[41] Transcript 04 May 2022 at p 38.
[42] Transcript 04 May 2022 at p 38.
[43] Transcript 04 May at p.39.
[44] Transcript 04 May at p.39.
[45] Transcript 04 May 2022 at p. 56.
[46] Transcript 04 May 2022 at p. 57.
[47] Transcript 04 May 2022 at p. 60.
[48] Transcript 04 May 2022 at p. 60.
[49] Transcript 04 May 2022 at p. 60.
[50] Transcript 04 May 2022 at p. 60.
[51] Transcript 04 May 2022 at p. 61.
[52] Transcript 04 May 2022 at p. 52.
[53] Transcript 04 May 2022 at p. 61.
[54] Transcript 04 May 2022 at p. 39.
[55] Transcript 04 May 2022 at p. 64.
[56] Transcript 04 May 2022 at p. 64.
[57] Transcript 04 May 2022 at p. 42.
[58] Transcript 04 May 2022 at p. 42.
[59] [2008] 2 NZLR 37 at para. [5].
[60] Samuelu v Attorney General [August 2020] WSCA 1 (5 August 2020).
[61] Transcript 3 May 2022 at p. 12.
[62] Transcript 04 May 2022 at p. 29.

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