IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 1/2002

IN THE MATTER of the Judicature Ordinance 1961.

AND

IN THE MATTER of an appeal pursuant to Section 164L(3)
of the Criminal Procedure Act 1972.

BETWEEN

THE POLICE
(Appellant)

AND

MAELI MAPU FETU
male of Apolima-uta.
(Respondent)

Coram: The Rt. Hon. Lord Cooke of Thorndon, President
The Rt. Hon. Sir Maurice Casey
The Rt. Hon. Sir Gordon Bisson

Hearing: 28 November 2002

Counsel: Daryl M Clarke for Appellant
K Ainuu for Respondent

Judgment: 2 December 2002

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

[1]	The Attorney-General appeals against the acquittal of the respondent on 22 February 2002 by a Judge of the Supreme Court sitting alone, on a charge of attempted sexual intercourse with of a girl of 15, contrary to the Crimes Ordinance 1961, s53(1)(a). The appeal is brought under s 164L(3) of the Criminal Procedure Act 1972 which provides:

"Where on the trial of a person on any charge before a Judge alone that person is acquitted of that that charge the Attorney-General may appeal to the Court of Appeal against that acquittal."

Subsection (5) states that upon the hearing of such an appeal the Court of Appeal may dismiss it, or uphold the appeal and direct a new trial.

[2]	The Judge summarised the evidence in his reasons for verdict delivered on 28 February 2002. The following extract deals with the complainant’s testimony:

The victim alleges that on the night of the alleged offence she and an aunt by the name of Vailima were asleep in one of the family’s house. It was about 11pm when she and her aunt laid down on the mat to sleep. The accused then came while the victim was still awake and the aunt was asleep; the victim was asked by the accused to go with him but she refused; the accused then pulled up her t-shirt and sucked her breast, and then the accused pulled down her panties, got himself undressed and inserted his penis inside her private part. As they were having sex the brother of the victim came inside the house and the accused got dressed quickly and sat besides the victim. And while all these events were happening the victim’s aunt was fast asleep next to the victim….. Under cross-examination the victim told the court that the accused put his penis insider her vagina but did not completely go inside. She admitted being examined by a doctor after the alleged incident and [said] she told the doctor that she had sex with the accused and the doctor confirmed to her she had sex. But the doctor did prepare a written report which was sent to the police and which the police in turn forwarded to defence counsel in preparation for this trial. Although the prosecution did not call the doctor his report was produced by consent.

That medical report recorded that she denied having sex and that the accused only sucked her breast, and that there were no signs of intercourse. His Honour also referred to an inconsistency between her statement to police that she was asleep when the accused entered the room, and her evidence that she was awake.

[3]	On the important question of the complainant’s demeanour, the Judge had this to say:

Understandably the victim was originally nervous and the court did accommodate for the situation and allowed time for the victim to give her answers. Adjournment was also granted to allow the prosecution to reassure the victim when she appeared reluctant or hesitant to answer questions in examination in chief.

Normally, the court expects a relatively young victim to be somewhat reluctant to give details of any sexual violations allegedly committed against her. However in this case the victim appeared to have no problem in telling the court what the accused allegedly did to her but she hesitated to answer questions under cross-examination and in fact ignored to give answers to some questions which seriously questions her credibility as a witness. For instance when she was cross-examined as to the inconsistency of her testimony and the written statement she gave to the police, she was asked by counsel whether she signed the statement and she gave no answer. And when she was shown the signature on the statement and was asked whether the signature was hers she again refused to answer.

There were several other questions during the examination, which she simply ignored to answer despite persuasion to answer.

[4]	His Honour then considered the evidence of corroboration which came from two boys, the 17-year old brother of the complainant (Sologa) and his 15-year old friend (Ionatana). The latter said that as their group walked past the house he saw someone inside and told the others. They hid and looked inside and by the light of a street lamp he saw the accused on top of the girl. He said they were both naked and he was pumping her. In cross-examination he said the accused was wearing shorts and that they were hugging and kissing. Solaga said he saw the accused lying on top of the girl and doing bad things, and that he was wearing shorts.

[5]	There is a domestic background to the case. The accused’s wife is another aunt of the complainant and she and her children were asleep elsewhere in the same house. The accused gave evidence that when he came in the complainant and her aunt Vailima were awake so he joined them and talked until Solaga and the boys came in. He said Solaga started beating the girl with a stick. He denied having sex with her, or being on top of her. The girl’s grandmother (the mother of accused’s wife) also gave evidence that the complainant denied having any involvement with the accused, or any sexual activity that night. His Honour accepted the contents of the medical report as true and accordingly rejected the complainant’s allegation that she had sexual intercourse with the accused. He also accepted the boys’ evidence that the accused was inside the house with her and that the aunt was there as well.

[6]	On the question of corroboration the Judge found the evidence of the two boys conflicting in a material part, in that Sologa said the accused was wearing shorts while Ionatana said he was naked but, as noted above, in cross-examination the latter confirmed that he was wearing shorts. His Honour said he was left in reasonable doubt about the truthfulness of their testimony, given the time of the night, the form of lighting available, their age, and the fact that the aunt was lying alongside the complainant. Accordingly he held they did not corroborate her account. He concluded overall that the evidence did not support the charge of attempting to have sexual intercourse (to which it had been amended) or that of indecent assault put forward as an alternative.

[7]	The grounds of appeal advanced by the Attorney-General in the Notice of Appeal were simply that the Judge erred in finding the evidence insufficient to support the charges. Section 164L(3) of the Criminal Procedure Act gives no indication of the way this Court should approach its task, and Counsel have been unable to find any reported decisions on it. The section does not impose restrictions on the exercise of the power conferred, and we must accordingly be on our guard against laying down general rules or propositions limiting it unless they can be justified by overriding principles of justice or established authority, bearing always in mind that it is a serious matter to submit an accused person to a second trial after an acquittal. Here the appellant claims that the trial judge was mistaken about the reliability or sufficiency of evidence. These are usually matters in which the judge who sees and hears the witnesses has an advantage in assessing their credibility and the worth of their testimony which this Court lacks. The long-standing rule repeated by the New Zealand Court of Appeal in Hutton v Palmer [1990] 2 NZLR 260, 268, is that an appellate Court will not interfere unless it can be shown that the trial Judge has failed to use or has palpably misused this advantage. Accordingly we would need to be satisfied that the Judge was clearly wrong to reject the evidence relied on by the prosecution in this case.

[8]	Counsel for the appellant submitted that the Judge, in dealing with the two corroborating witnesses, placed undue reliance on the inconsistency in their evidence in chief between their description of the accused’s state of dress, one saying he was naked and the other that he was wearing shorts. We agree that had this been all, the difference could have no real bearing on the weight of all their other evidence that the accused was on top of the girl doing what they described as a "sexual act", according with her own evidence to the same effect, even though the nature of the act seems to be quite uncertain in the light of her different statements. However, from his account of her testimony it is clear that he had formed an adverse view of the complainant’s credibility. His concluding remarks about the boys’ evidence demonstrate that he was concerned about their truthfulness for other reasons as well as the discrepancy about accused’s state of dress. One final matter affecting his assessment of the case seems to have been the fact that through all this the girl’s aunt was lying next to her asleep.

[9]	We think this appeal is very much on the borderline. On the face of the facts given in evidence as recorded by the Judge, there was a strong case that the accused was guilty of sexual conduct amounting at least to an indecent assault. But the reservations His Honour entertained about the truthfulness and reliability of the witnesses (and more especially of the complainant) clearly left him in a state of reasonable doubt whether the charges had been proved. From his account of the way the complainant gave her evidence and of the conflicting statements she made, there is obvious support for the unfavourable impression she made upon him. There is less cogency in the reasons he gave for rejecting the boys’ evidence, but looking at the case as a whole we would not be justified in concluding that he clearly misused the advantage he had of seeing and hearing the witnesses in arriving at his decision.

RESULT

The appeal is dismissed.

Solicitors:
Attorney General’s Office for appellant
Meredith & Ainuu Law Firm for respondent