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Talailemotu v Police (appeal) [2013] WSCA 11 (15 November 2013)

COURT OF APPEAL OF SAMOA

Talailemotu v Police [2013] WSCA 11

Case name: Talailemotu v Police

Citation: [2013] WSCA 11

Decision date: 15 November 2013

Parties: SIONA TALAILEMOTU (Appellant) and ATTORNEY GENERAL (Respondent)

Hearing date(s): 12 November 2013

File number(s): CA20/13

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):

Justice Fisher

Justice Hammond

Justice Blanchard

On appeal from: Police v Talailemotu Talailemotu and Siona Talailemotu (Supreme Court matter)

Order:
Representation:

R V Papalii for Appellant

P Chang and L Taimalelagi for Respondent

Catchwords:

Words and phrases:
Legislation cited:
Criminal Procedure Act 1972

Cases cited:
R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 (SC)
Muaiava Ufiufi v Attorney General [2009] WSCA 13

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A20/13

BETWEEN

SIONA TALAILEMOTU

Appellant

A N D:

THE ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: R V Papalii for appellant

P Chang and L Taimalelagi for respondent

Hearing: 13 November 2013

Judgment: 15 November 2013

JUDGMENT OF THE COURT

1. This is an appeal against a conviction on one count of rape. The appellant asserts that the verdict of the assessors was unreasonable in terms of s.164N(1) of the Criminal Procedure Act 1972. It is also said that it was inconsistent with the acquittal of his father who was jointly charged with him. The unusual feature of the appeal is that the appellant admitted in two police statements raping the complainant within the time period specified in the indictment (30 November 2008 – 31 January 2009) but now says that this admission related to an incident on a different occasion within that time frame.
2. The complainant was born in September 1991. She is partially sighted. The appellant, who is the same age, is almost totally blind. Both attended an institute for the blind. Normally the complainant stayed with the principal of the institute but because he had to travel to New Zealand she was placed with the appellant’s family for most of the relevant time.
3. According to the complainant’s evidence, there was an incident between Christmas and New Year when the complainant’s father woke her up during the night and forced her to have sexual intercourse with him. That gave rise to a charge of which the father was acquitted at the trial.
4. The next night, the complainant said, the father led the appellant to the same room in which she was sleeping. He told her to remove her clothes. The appellant told her to spread her legs and he then had intercourse with her despite her protests and lack of consent. She said the father was present while this occurred. The assessors found the appellant guilty of rape in respect of this incident but returned a verdict of not guilty for the father who had been charged as a party, by aiding and abetting, to the rape committed by the appellant.
5. At the trial the complainant made mention of a third incident of force sexual intercourse by the appellant. It was not the subject of any charge. She said it took place in the sitting room where she was sleeping with the appellant’s mother. The appellant and his father also used to sleep there.
6. It is certain that sexual intercourse did occur at some stage during the relevant period as the complainant gave birth to a child on 21 September 2009. There is no suggestion that any man other than the appellant or his father could have been the father of this child. The complainant has attributed the pregnancy to the father but the parentage has not been established.
7. Counsel for the appellant, Ms Papalii, has been able to point to some discrepancies in the evidence of the complainant as compared with that given by other witnesses. She said that she was sleeping in the same bedroom as two young children of the niece of the appellant’s father. The mother of those children testified, however, that they slept at the time in a house some distance away. The appellant’s mother said the complainant slept with her in the sitting room. The appellant said she complained to several people about the father and the appellant. But those people either said she made no complaint or complained only about the father.
8. There was also evidence that the appellant needed help from one of his parents in moving about the house at night – to go to the toilet outside – yet the assessors must have found that there was insufficient proof that on the occasion which was the basis for the joint charge, the father had taken the appellant to where the appellant was sleeping and remained in the room when the rape was occurring.
9. Importantly, however, there was something else that the assessors may well have considered to have bolstered the credibility of the complainant and which also appears to explain the difference in the verdicts on the joint charge. It is that the appellant made two statements in which he admitted raping the complainant, qualifying this by saying he did so “only once”.
10. He was interviewed first by Constable Puai on 30 June 2009. After being cautioned the appellant indicated that he wished to make a statement. He told Constable Puai that he had raped the complainant, but “just the one time”. That interview was not recorded in writing because of a power failure.
11. But on 16 July 2009 he was interviewed by Detective Sergeant Tuua in the presence of his mother. No challenge is made to the fairness of this interview or to the accuracy of what the police officer recorded. The statement was signed on the appellant’s behalf by his mother at his request. At first the appellant denied to Sergeant Tuua the allegation made by the complainant. However, after reference was made to the interview with Constable Puai, the following appears:

Q35. What did you say to Puai that day?

A35. That it’s true that I did have sexual intercourse with [the complainant] but only once.

Q36. Was your dad Talailemotu there at the time that you had raped [the complainant]?

A36. No

Q37. Which one of these statements that you are giving is the correct one? You have said that you did rape [the complainant], but you are also denying the allegations against you. Which one of these two do you say yes to and you want to take it as your answer?

A37. It’s true I did rape [the complainant].

Q38. Is this your answer that you want to record, where you say that you did rape her, or do you want to change or you don’t want to record anything as your answer?

A38. That is my answer, like I have told you I raped [the complainant].

12. The police officer then gave the appellant’s mother a chance, as she put it, to ask Siona (the appellant) if what he said about raping [the complainant] was true. After conferring with her son, the mother said that Siona had explained to her that he did rape the complainant. The officer then made sure that the appellant understood the meaning of the word “rape”, getting the answer:

A41. It’s having sex (faaulugalii) where a human life/ person is created, but it was done without the other person’s consent.

13. The statement was read to the appellant by his mother and before she signed it on his behalf he confirmed that there were no answers he wanted to change or add and that all the statements read to him were true.
14. Subject, then, to one matter which was the real focus of the appeal, there was an ample basis for the assessors to convict the appellant; they could reasonably have been satisfied beyond reasonable doubt of the appellant’s guilt: R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 (SC) and Muaiava Ufiufi v Attorney General [2009] WSCA 13. That matter was the allegation by the complainant that there had been a later incident of rape by the appellant, viewed in the light of the appellant’s statement in the interview (A36) that his father was not present when he raped her and his suggested inability to move around the house at night without assistance. (The later incident was said to have occurred in the living room where both were said by the complainant to have been sleeping at the time.)
    15. The argument for the appellant was that it is a reasonable possibility that his confession of rape related to the later incident in respect of which he faced no charge. This is an unattractive argument which we do not accept. We think that it is much more likely to have been related to the incident which was the focus of the investigation so far as he was concerned, namely the occasion when his father led him to the complainant, and that in denying that his father was present the appellant was seeking to protect his father and take all the blame on himself.
    16. The credibility of the complainant and the inconsistencies in her evidence to which our attention was directed by appellant’s counsel were for the assessors to evaluate in the context of the evidence as a whole, including the confession of rape by the appellant. The assessors may have concluded that because the complaint to the police was made many months after the incident, the complainant was confused about or had forgotten some inessential matters, such as where the children of the niece were sleeping on a particular night or what she had said in making a complaint shortly after the incident.
    17. There was evidence that with the aid of his walking stick the appellant was capable of moving around inside the home, with which he was obviously familiar. If so, he could have come to where the complainant was sleeping by himself. Where he needed help from a parent at night was in getting to the toilet situated outside.
    18. In deciding to acquit the father, the assessors could have reasoned that in the absence of any admission by him, and with the appellant’s denial of his presence, there was insufficient evidence against the father. There is therefore an explanation for the apparent inconsistency in their verdicts on the joint charge.
    19. We are not persuaded that the guilty verdict was unreasonable.
    20. Both grounds of appeal therefore fail. The appeal is dismissed. The appeal is dismissed.
        

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard