IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MAFUAO GAIA
of Satuiatua and Faleatiu
Defendant

Counsel: H Wallwork for prosecution
P Petaia for accused

Hearing: 9 December 1999 and 27 January 2000
Judgment: 11 February 2000

JUDGMENT OF SAPOLU CJ

In these proceedings the Court has to deal with two applications made on behalf of the accused. The first application seeks leave of the Court under section 54 of the Criminal Procedure Act 1972 to withdraw the plea of guilty the accused had already entered to the charge of indecent assault filed by the prosecution against him under section 54 of the Crimes Ordinance 1961. The second application is to quash the information charging the accused with indecent assault or arrest judgment relating thereto as the information lacks specificity as to which paragraph of section 54 of the Crimes Ordinance 1961 it relates to and that it does not disclose sufficient particulars of the alleged offence.

I will deal first with the accused’s application to withdraw his plea of guilty to the charge of indecent assault. The relevant circumstances are as follows. The accused was initially charged with attempted rape to which he entered a plea of not guilty. At a later date the Attorney-General’s office representing the prosecution and counsel for the accused had discussions. It appears that during those discussions counsel for the accused agreed that the accused would plead guilty to the lesser charge of indecent assault. Thus when the case was called for hearing on 4 October 1999 the prosecution had already filed a charge of indecent assault. The charge of attempted rape was withdrawn and the accused, who was still being represented by his counsel, entered a plea of guilty to the lesser charge of indecent assault. The case was then adjourned to 18 October for a pre-sentencing probation report and sentencing.

On 18 October a copy of the probation report on the accused had been given to the Court. I assume that copies of that probation report were also provided to counsel on each side in accordance with the usual practice as no counsel told the Court that he or she had not received a copy of that report when the case was again called on 18 October for sentencing. Before sentence was passed, counsel for the accused sought a further adjournment of the case in order to obtain an assessment on the accused’s medical condition. Counsel for the prosecution did not object. The case was then further adjourned to 1 November. On that day no assessment on the accused’s medical condition was provided and counsel for the accused did not seek a further adjournment to provide such an assessment.

The Court then proceeded with the sentencing process in accordance with normal practice. The Court informed the accused that the registrar was going to translate into Samoan to him the summary of facts prepared by the prosecution and after the summary of facts had been translated to him the Court would ask him whether he confirms the summary of facts or denies any part of it. At that stage counsel for the prosecution requested that paragraph 7 of the summary of facts be deleted. Counsel for the accused did not object and paragraph 7 was therefore deleted. The registrar then translated the remainder of the summary of facts to the accused. For clarity I will set out the summary of facts including paragraph 7:

Summary of Facts:

1. THE Defendant is a 47 year old male of Satuiatua and Faleatiu. He is married with 6 children and is unemployed.

2. THE Victim is a 16 year old girl who lives at Faleatiu next door to the Defendant.

3. ON Wednesday morning, 21 April 1999, the Defendant was sitting at the back of his house when he saw the Victim next door.

4. THE Defendant called out to the Victim to bring him a glass of water and she did.

5. AFTER the Victim had given the Defendant the glass of water she turned to walk away and the Defendant held her legs and pulled her down.

6. THE Defendant sat on the Victim’s legs and removed her panty and lavalava.

7. THE Defendant took off his shorts and stuffed it into the Victim’s mouth.

8. THE Defendant then started putting his hands into the Victim’s private part and the Victim cried and objected to the Defendant’s actions.

9. THE Defendant has been charged with indecently assaulting a woman or girl of or over the age of 16 years pursuant to section 54 of the Crimes Ordinance 1961.

10. THE maximum penalty for this offence is 5 years imprisonment.

11. THE Defendant is a first Offender.

After the summary of facts had been translated, I asked the accused whether he confirmed it or denied any part of it. The accused only denied that he sat on the victim’s legs. That is covered in paragraph 6 of the summary of facts. The case was then adjourned to 9 November for the prosecution to call evidence in relation to the accused’s denial.

On 9 November counsel for the prosecution advised the Court that the police could not find the victim as she had been taken to Savaii by her family. There was also the possibility that the victim would be taken by her aunty to one of the victim’s natural parents both of whom reside overseas. Counsel for the accused then moved almost immediately, to withdraw the accused’s plea of guilty to the charge and to enter a plea of not guilty. He also said that the prosecution had not advised him about the non-availability of the victim. I told counsel that if he wished to withdraw the accused’s plea of guilty then an appropriate application should be filed setting out the grounds for the application. The case was then adjourned to 15 November for the accused’s counsel to file and serve the appropriate application and for any submissions by both counsel.

The application for change of plea and a supporting affidavit by the accused were duly filed when the case was again called on 15 November. Somewhat surprisingly the application and the accused’s supporting affidavit now deny all the crucial facts set out in the summary of facts even though he did not deny those facts when the summary of facts was translated to him by the registrar on 1 November and the Court asked him whether he confirmed the summary of facts or denied any part of it. The grounds of the application for change of plea may be stated as follows:

(a) the prosecution now appears to lack the evidence to prove the charge of indecent assault.

(b) when the case was called on 4 October 1999 for hearing the prosecution did not disclose to counsel for the accused that the victim would not be available when the accused agreed to plead guilty to the charge of indecent assault,

(c) the prosecution not only does not have any direct evidence from the victim but there is also no corroborative evidence,

(d) the accused does not dispute that he touched the victim’s private part as he told the police but he was not aware that consent of the victim was a defence,

(e) the prosecution’s summary of facts tells a fabrication by the victim; all the crucial parts of the summary of facts are then denied by the accused including paragraph 8 which states that the victim was crying and objecting to the accused’s actions,

(f) it was the victim who seduced the accused and told him to touch her private part,

(g) the charge should be quashed as it lacks specificity as to which paragraph of section 54 of the Crimes Ordinance 1961 it relates to and it also does not disclose sufficient particulars of the alleged offence.

At the same calling of this case on 15 November, counsel for the prosecution filed written submissions. Annexed to those submissions is a letter dated 21 October 1999 from counsel for the accused to counsel for the prosecution. The text of that letter is as follows:

21 October 1999

The Attorney General
Office of the Attorney General
FMFM II Building
APIA

Attention: Hellene Wallwork

Dear Madam,

RE: POLICE V. MAFUAO GAIA

The above matter has been further adjourned for sentencing on 1 November 1999.

As discussed with counsel, Mr Schuster of your Office at the last Mentions, our client firmly disputed the alleged Previous Conviction Record intended to be tendered by the Prosecution. Could this be thoroughly clarified with the Police Records Office please.

If they insist that our Client has an alias in their records, then we request evidence to be called to prove he is one and the same person.

We humbly request also that paragraph 7 of the Summary of Facts be deleted, as our client strongly denies the allegation therein. You would agree that it does not affect the ingredients of the offence after all.

We thank you for your co-operation.

Yours faithfully
RICHARD’S LAW FIRM

(PETER PETAIA)

In his supporting affidavit, the accused says that he totally objects to and denies the allegations in paragraphs 4, 5, and 6 of the summary of facts and that part of paragraph 8 which states that the victim cried and objected to the accused’s actions. He also says that the victim seduced him and told him to touch her private part. He further states that the police tried to force him to admit to the charge of attempted rape but he denied it, and the reason why he pleaded guilty to the charge of indecent assault was because he was of the view that his mere touching of the victim’s private part amounted to an indecent assault. He now believes that the acts he and the victim engaged in were consensual.

The case was then further adjourned to 6 December for hearing. On that day, the case was further adjourned to 27 January 2000 for the prosecution to call evidence regarding the allegation in the accused’s affidavit that the police tried to force him to plead guilty to the charge of attempted rape even though he denied it. On 27 January 2000 the police investigating officer Sergeant Aneteru Tago testified that he did not at any time make any attempt to force the accused to plead guilty to the charge of attempted rape. He said when the accused told him that he did not wish to make a written statement he left it at that. Counsel for the accused was then asked whether he wanted to call the accused to give evidence and he said no.

Now under section 54 of the Criminal Procedure Act 1972, the Court is given a discretion to grant leave to withdraw a plea of guilty at any time before the accused is sentenced. Miss Wallwork for the prosecution in her submissions referred to a number of authorities which set out the principles that apply in granting leave to withdraw a plea of guilty. I need only to refer to some of these authorities. The first authority cited by counsel was a judgment by the New Zealand Court of Appeal in the case of R v Le Comte [1952] NZLR 564 where the accused entered a plea of guilty to the charge of theft but before he was sentenced he moved to have his plea of guilty set aside and in its place a plea of guilty be entered. The motion was denied and on appeal to the Court of Appeal that Court in dismissing the appeal set out the principles upon which a Court should act when determining whether to grant leave to withdraw a plea of guilty. These principles are (a) that the accused has not really pleaded guilty, (b) that there has been some mistake, and (c) that there was a clear defence.

In the next case of R v Turrall [1968] NZLR 312, the Court referred to the principles set out in Le Comte’s case but held that in the circumstances of that case those principles did not apply to the application to set aside the accused’s plea of guilty while sentence was pending. The application was then allowed on the broad footing that the ends of justice required it. The approach in Turrall’s case was approved by the New Zealand Court of Appeal in R v Ripia [1985] 1 NZLR 122 where the headnote, in my view, correctly sums up the gist of what the Court there said about the approach to be adopted to an application to withdraw a plea of guilty at the pre-sentence stage of proceedings. It is there said:

“An accused who has pleaded guilty on arraignment may withdraw his plea of guilty at any time before sentence with permission granted at the discretion of the Judge. The grounds on which a Judge may allow a change of plea before an accused has been sentenced are not so restricted as the grounds on which a change of plea will be allowed after an accused has been sentenced. An application for a change of plea at the pre-sentence stage of proceedings should be decided on the broad principle of whether it is required in the interests of justice, because of a mistake or misunderstanding, or for some other reason. In such a case no appeal against conviction arises.”

The first three grounds of the accused’s application to set aside his plea of guilty may be dealt with together and they amount to this. The prosecution does not have direct evidence from the victim or corroborative evidence to prove the charge of indecent assault against the accused and the prosecution did not disclose when the case was called for hearing on 4 October 1999 that the victim would not be available when the accused agreed to plead guilty to the charge. From the submissions by counsel for the prosecution and the material that she placed before the Court, it is clear that the prosecution had the evidence to proceed with the charge against the accused when this case was called for hearing on 4 October 1999 and the accused agreed to plead guilty to the lesser charge of indecent assault. In her statement given to the police, the victim says that the accused committed an indecent act upon her by pulling off her lavalava, touching her private part, and then trying to insert his private part into her private part and to have forceful sexual intercourse with her. At that time she was crying and telling the accused to let her go to her home but the accused did not let her go. It was when her brother called out the accused’s name that the accused stood up and walked to where the victim’s brother was calling from. Thus the victim’s statement to the police clearly contains material to prove both the alleged indecency upon the victim and absence of consent on her part.

In her oral and written submissions, counsel for the prosecution told the Court that the prosecution team interviewed the victim on Friday, 1 October 1999, and decided to proceed on the basis of her evidence. It was when counsel for the accused indicated on Monday morning, 4 October 1999, to the Court in chambers in the presence of counsel for the prosecution that the accused would be pleading guilty to the lesser charge of indecent assault, that the police was informed the victim was no longer required for this case. So the victim was available to give evidence on 4 October if the accused had pleaded not guilty to the indecent assault charge. The prosecution therefore could not have advised the defence on 4 October that the victim was not available to testify because the victim was available to testify on that day if the accused had not pleaded guilty.

It was also said on the accused’s behalf that there was no evidence to corroborate the victim’s evidence if the accused had pleaded not guilty and the hearing had proceeded on 4 October. Again I do not agree. The accused orally admitted to the police investigating officer that he indecently touched the victim. He maintained that oral admission throughout these proceedings. There is also the statement made to the police by the victim’s 20 year old brother that when he went to the accused’s tap to clean his water bottle he saw the accused behind the tap. When he called out the name of the accused, the accused stood up and walked towards him. At the same time he saw the victim walking towards him and when she arrived at the tap he saw that she was crying. The oral admission by the accused to the police investigating officer and the statement to the police by the victim’s brother are materials which could provide corroboration of the victim’s statement about the accused having committed an indecent act upon her. The statement by the victim’s brother that he saw the victim crying when she came to the tap is material which could provide corroboration of the victim’s statement that she did not consent. Furthermore, the Court can still convict on the uncorroborated testimony of a victim in a sexual case if satisfied of the truthfulness of such testimony provided the usual corroboration warning is borne in mind.

The victim’s brother in his police statement also says that when he saw the victim crying he asked her why she was crying. She replied the accused had forced her and had done a bad thing to her. This material is capable of providing evidence of recent complaint for the purpose of showing consistency between the victim’s testimony and her conduct after the alleged event.

I am satisfied that the victim was available to testify if the accused had pleaded not guilty to the charge of indecent assault and the hearing had proceeded on 4 October. The prosecution therefore could not have advised counsel for the accused that the victim was not available at that time to give evidence because she was available. I am also satisfied that the prosecution had the evidence to proceed with the charge of indecent assault if the hearing had gone ahead. The first three grounds of the application cannot be accepted.

The next three grounds of the accused’s application amount to a denial of all the material parts of the summary of facts which he had already confirmed to the Court on 1 November. In particular, he now says that the victim consented to his action of touching her private part but he was not aware that consent was a defence to the charge. In view of what happened during the proceedings in this case and the material placed before the Court I have no hesitation in rejecting these grounds of the application. In doing so, I have to refer again to some of the facts already mentioned in this judgment.

The accused has been represented throughout by counsel. On 4 October when this case was to proceed to a hearing counsel for the accused informed the Court in chambers in the presence of counsel for the prosecution that the accused would plead guilty to the lesser charge of indecent assault. When the case was later called in open Court the guilty plea was formally entered and there was no hearing as the prosecution had decided not to continue with the more serious charge of attempted rape. Throughout the subsequent adjournments to 18 October for sentencing and to 1 November for the defence to obtain an assessment on the accused’s medical condition the guilty plea was maintained. On 21 October 1999 counsel for the accused wrote to counsel for the prosecution that paragraph 7 of the summary of facts be deleted as the accused objects to it. He added in his letter that the requested deletion would not affect the ingredients of the charge. Paragraph 7 of the summary of facts states that the accused took off his shorts and stuffed it into the victim’s mouth. No other alteration to the summary of facts was requested. On 1 November when the Court proceeded to sentence the accused, counsel for the prosecution applied that paragraph 7 of the summary of facts be deleted which was done.

It is clear from the letter of 21 October 1999 by counsel for the accused that by that date he had already been given a copy of the summary of facts prepared by the prosecution. In fact in her written submissions counsel for the prosecution advised the Court that the summary of facts was made available to counsel for the accused one week after the accused had pleaded guilty. She repeated this advice orally to the Court. So the accused’s counsel must have had the summary of facts since about 11 October as the accused had pleaded guilty on 4 October.

It was not until 9 November when counsel for the prosecution told the Court that the police could not locate the victim to testify to the denial by the accused on 1 November that he sat on the victim’s legs, as stated in paragraph 6 of the summary of facts, that counsel for the accused orally requested that the plea of guilty be withdrawn as the prosecution did not disclose to him that the victim was not available to give evidence. Nothing was said at that time about the victim having consented to the indecency committed by the accused upon her or that the accused was not aware that consent was a defence to the charge. Nor was there any denial of any other part of the summary of facts including paragraph 8 where it says that the victim cried and objected to the indecent acts the accused did to her. The oral request to reverse the guilty plea had the appearance of an instinctive reaction to the information given by counsel for the prosecution that the victim could not be located to testify on 9 November. Counsel did not consult the accused who was sitting in the dock before the oral request was made. The request was clearly a decision made on the spur of the moment.

The Court then asked counsel for the accused to file and serve a formal application to withdraw the plea of guilty setting out the grounds of the application. Proceedings were then further adjourned to 15 November. Somewhat surprisingly the application and supporting affidavit filed for the accused denied all the crucial facts in the summary of facts including what is stated in paragraph 8 that the victim cried and objected to the indecent acts the accused did to her, even though the accused did not deny any of those facts when the summary of facts was translated to him on 1 November and he was asked whether he confirmed the summary of facts or denied any part of it. I must say I find these new denials by the accused unbelievable and reject them without any hesitation.

From the material that was placed before the Court, it is clear that the summary of facts was prepared mainly on the basis of the statement the victim gave to the police. On 1 November the accused denied only part of paragraph 6 where it says he sat on the victim’s legs. After he learnt on 9 November that the police could not find the victim to give evidence to rebut his denial of part of paragraph 6 of the summary of facts as her family had taken her to Savaii, he has now decided to deny all the crucial parts of the summary of facts. I would not allow that.

It is also clear from what the victim told the police in her statement that she did not consent to any indecency committed upon her by the accused. Some corroboration of that part of what she told the police could be found in what her brother says in his police statement about seeing the victim crying when she came to the tap where he was cleaning his water bottle. In any event the Court can still convict an accused in a sexual case solely on the uncorroborated testimony of a victim if satisfied of the truthfulness of such testimony provided the usual corroboration warning is borne in mind. The accused therefore does not have a clear defence of consent: R v Le Comte [1952] NZLR 564.

The assertion by the accused in his affidavit that the police from the outset tried to force him to plead guilty to the more serious charge of attempted rape was strongly denied by the police investigating officer who was called to give evidence to rebut that allegation. Counsel for the accused was asked whether he wanted to call the accused to give evidence after the police investigating officer had given evidence, and he said no.

All in all then, I am of the clear view that the interests of justice do not require that the accused’s application to withdraw his plea of guilty and have a not guilty plea entered should be allowed. This application is dismissed.

I turn now to the second application by counsel for the accused which is to quash the information charging the accused with indecent assault or arrest judgment relating thereto as the information lacks specificity as to which paragraph of section 54 of the Crimes Ordinance 1961 it relates to and that it does not disclose sufficient particulars of the alleged offence. This application was hardly argued during these proceedings. The submissions were really focused on the first application.

The information charges that at Faleatiu on 21 April 1999 the accused of Satuiatua and Faleatiu indecently assaulted the victim. Section 54 (a)(b) of the Crimes Ordinance 1961 is then cited. Under section 170 of the Criminal Procedure Act 1972 it is there provided as far as relevant:

“No information . . . shall be quashed, set aside or held invalid by any Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.”

The information certainly discloses an offence, namely, indecent assault. It was not argued that the citation of section 54 (a)(b) of the Crimes Ordinance 1961 resulted in a miscarriage of justice to the accused. From the material placed before the Court I, myself, do not see such a miscarriage of justice. It would also have been more appropriate to ask the Court to quash the information for any possible defect or irregularity before the accused entered his plea of guilty rather than to do so more than a month after the accused had pleaded guilty to the charge and the Court was in the process of passing sentence.

As to the second part of the present application, it was not shown what further particulars were required to be disclosed in the information or in what way the particulars shown in the information were insufficient to disclose an offence. As already pointed out the information charges that at Faleatiu on 21 April 1999 the accused of Satuiatua and Faleatiu indecently assaulted the victim. In my view the information discloses an offence and the particulars in the information are sufficient. I also do not accept this part of the second application for the accused.

For all the foregoing reasons both applications for the accused are dismissed.

CHIEF JUSTICE

Solicitors
Attorney General’s Office for Informant
Richard’s Law Firm for Defendant