IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

IOANE ETEUATI LEAOSEVE, male of Fagalii
Defendant

Presiding Judge: Justice Slicer

Counsel : T Toailoa for the prosecution
T K Enari for the defendant

Hearing: 31 October and 1 November 2011

Ruling: 9 November 2011
Charge: Incest (x2)

RULING OF SLICER J

1.	The defendant had been charged on eight Informations, alleging the crimes of Incest. The prosecution withdrew three of those Informations, namely, S838, S839 and S840 of 2011, and each is dismissed.

2.	At trial, the prosecution failed to adduce any evidence in support of three of the Informations and the Court upheld no case submissions in respect of each. Informations S549, S837 and S902 of 2011 are dismissed.

3.	The Court is required to deal with the two remaining Informations, S836/11 and S903/11, which allege acts of incest on 4 August 2009 and 23 May 2011, respectively.

Incest

4.	Incest is proscribed by the Crimes Ordinances 1961 section 49. The section relevantly provides:

"(1)	…the term 'child'…includes an illegitimate child…

 (2) 	Incest is sexual intercourse between:

 (a) 	Parent and child…where the person charged knows of the relationship between the parties."

5.	The question here is whether the defendant had sexual intercourse with his biological daughter in Samoa, knowing her to be his daughter.

Circumstantial Case

6.	There was direct evidence of sexual conduct and that the defendant and complainant met and were in contact with each other on a number of occasions. Evidence that the defendant was the biological father is more problematic. There were a number of factual matters established, none of which alone, would clearly establish the relationship of father and daughter. The second necessary ingredient, that of knowledge, also depends on a number of ingredients from which inferences can be drawn and a conclusion made. There were difficulties in the leading of evidence by counsel for the prosecution which have brought this about. The Court will take a cautious approach and deal with these components as forming, in part, a circumstantial case in the sense stated by this Court in Police v. Faisauvale [2010] WSSC 55, and the Court of Appeal in Faisauvale v. Police [2010] WSCA 8.

History and General Circumstances

7.	The complainant, FS, was born in 1973 and was aged 35 and 37, married with children, at the time of these events. She is accepted as a credible witness and much of her evidence is corroborated by others. In 1972, her mother SP had lived, as a wife, with the defendant at the home of his family at Fagalii. The evidence is not clear but it is likely that they lived there until early 1973 as husband and wife for a period of one year and five months. The Court accepts the mother SP as a credible witness, and the Court accepts that she had no sexual intimacy with another. She became pregnant. In late 1972 or early 1973, the defendant Ioane Eteuati Leaoseve ("Ioane"), left Samoa and moved to Australia, traveling either directly or via New Zealand. He had certainly left before FS was born. SP gave evidence that she had not directly told the defendant of her pregnancy but told his aunt. She stated, as her belief, that it was his aunt who notified him. While that is not direct evidence, it suggests a connection between the telling and his departure. However, as hearsay, it cannot be used directly as evidence against the defendant.

8.	The complainant told the Court that her mother SP told her of the identity of her father when she was approximately twelve-years old. Again, it is hearsay and cannot be used as direct evidence except to explain why the complainant chose, later in life, to make contact.

9.	After her pregnancy SP remained at Fagalii for some little time and then returned to her family. FS was initially raised by her mother and then by her grandmother. She was baptised in Samoa in the presence of her grandparents. Her natural mother SP had gone or been sent to American Samoa. No attempts were made to find Ioane.

10.	In 2008 or 2009, the date of the first visit is uncertain, the defendant returned to Samoa. He met Pagosu'e Pou ("Pogasu'e"), the cousin of SP and related to the complainant. At that meeting Ioane told Pagosu'e that he was looking for his daughter and wished to make contact with her. The complainant was on Savaii so no meeting could be held. The defendant told Pagosu'e that he was returning to Australia so he provided a telephone number for his daughter to contact him in Australia. Pagosu'e identified the defendant as the person who had provided the telephone number. He provided the contact number to the complainant, who subsequently contacted him, and the two agreed to meet on his next visit to Samoa.

11.	The defendant returned in August 2009, and stayed with FS for a week at his family home at Fagalii. They met and conversed extensively. He promised her a birthday gift. On the evening of 4 August, the two slept together and had sexual intercourse. The Court accepts the complainant's version of this event.

12.	It is difficult to believe that during that week, during long conversations, that the complainant did not at least inquire as to the paternity, given that she had been given his name many years before and had been told by Pagosu'e of his meeting the defendant when the contact number was provided.

13.	The defendant returned to Australia in August. He returned in 2010, and the two again met. There is no allegation of sexual impropriety during this period. He returned again in May 2011. The Court accepts that during the intervening period he sent money to the complainant 'to help her with her children.' The money was sent regularly although the sum total is uncertain. The complainant referred to an amount of ST$300 but it is uncertain whether she meant 'in total' or as installments. The difference or confusion matters not.

14.	Ioane again returned to Samoa in 2011, and stayed with the complainant and her family at their village. The complainant's husband was present for some of the time but had to return to his workplace at Faleatiu. In his absence, the defendant took the complainant to Apia and the two went to a palagi's house at Vaimea. The two had sexual intercourse at that home on 23 May 2011. The complainant's evidence as to that occurrence is corroborated by her disclosure to her husband and daughter.

15.	The Court accepts the evidence of the complainant, a matter not challenged in cross-examination. Even if the evidence of corroboration is wrongly described as 'recent complaint' in a sexual case (here a sexual crime has been committed), it remained admissible to show lack of recent invention. If the Court is wrong on the basis of 'complaint as an exception to the hearsay rule', it would nevertheless make a finding adverse to the defendant on the grounds that:

(1)	it accepted the evidence of the complainant as a credible witness;
(2)	the Rule in Browne v. Dunn; and
(3)	evidence showing lack of recent invention.

16.	 The Court accepts that sexual intercourse occurred on 4 August 2009 and 23 May 2011.

The Rule in Browne v. Dunn

17.	The Rule in Browne v. Dunn (1893) 6 R 67 (HL), is well known and part of the jurisprudence of all common law jurisdictions, including Samoa.

18.	The defendant did not give evidence, nor was he required to do so. No adverse inference is drawn against him for his exercise of a common law and constitutional right.

19.	At trial, his counsel did not challenge, through cross-examination, that:

(1)	he and SP had sexual relations in 1972;

(2)	SP had had no sexual relations with another during the time they lived together as husband and wife;

(3)	The defendant had stayed at the same fales, homes or houses during 2009 and 2011, and had social contact with the complainant;

(4)	He had sexual intercourse with the complainant on the occasions identified in the Informations; and

(5)	He had spoken by telephone with the complainant whilst in Australia, and sent money (the amount was disputed) to the complainant, from that country, to help with her and her children.

20.	Failure to comply with the Rule in Browne and Dunn can result in sanctions or consequences which include:

(1)	if the witness has not been cross-examined on a particular matter, that may be a very good reason for accepting that witnesses' evidence, particularly if it is uncontradicted by other evidence (Precision Plastics Pty Ltd v. Demir (1975) 132 CLR 362);

(2)	Reliance of inconsistency (as here in relation to the word 'fa'amalosi' as suggesting a change in the witnesses' version) has less import or weight (see generally: Goldsmith v. Sandilands [2002] HCA 31);

(3)	On appeal, the Court will be disinclined to disregard a submission which was not tested by putting it to the party best able to deal with it (Precision Plastics (supra)); and

(4)	The opponent is more able to comment and seek the drawing of adverse inferences against the other party.

21.	Here the Court is more able to draw inferences and reach conclusions on the factual matters identified above.

Birth Certificate

22.	The prosecution tendered a birth certificate which showed that FS was born on 27 July 1973, at Matautu Lefaga. It also shows that the name of the mother was LPS and her father was SM, born at Leulumoega and Matautu Lefaga respectively. The defence relied heavily on this document as rebutting any evidence that the defendant was the biological father of FS. The natural mother told the Court that the names were those of her own parents who were to raise the child. SP was unmarried and doubtless shame often followed unlawful sexual activity. SP told the Court that she had no part in the registration since she was in American Samoa at the relevant time. The Court accepts that explanation.

23.	Counsel relied on the provisions of the Evidence Ordinance 1961 section 25. Section 25, together with the presumptive section 27, relate to proof of its making and evidence of its contents. Neither section prevents challenge to the accuracy of its contents or a presumption which forces estoppel or deems the matter as conclusive in law (Tautalafua v. The Public Trustee and Telesi [2010] WSSC 182). The Birth Certificate evidences the birth not the authenticity of parenthood. The Court accepts the evidence of SP the reason for inaccuracy.

Knowledge

24.	Oxford (3 Ed.) provides a number of meanings for the word 'know', which includes 'to recognise', 'to be aware or appraised of', 'to have understanding' and 'to apprehend or comprehend as truth.' The Canadians Courts have used the test of 'to know' as requiring a bare awareness, the act of receiving information without more (R v. Barmier [1980] 1 SCR 1124) or 'estimation and understanding of the act' (Cooper v. R [1980] 1 SCR 1149). The test of actual knowledge is subjective but remains a question of fact (Swinton v China Mutual Steam Navigation Co. Ltd (1951) 83 CLR 553). It is more than suspicion but the acceptance of the truth of that which is believed (R v. Fallon (1981) 28 SASR 394). Although the High Court in He Kaw Teh [1984 – 5] 157 CLR 523 was primarily concerned with the concept of mistaken belief, it considered the general question of 'the state of mind' of the alleged offender. It applied the test of 'cognisance of facts or truth', which may be proved affirmatively or inferred from facts and circumstances.

25.	SP did not tell the defendant that she was pregnant and there is insufficient direct evidence to show that the aunt passed on the information.

26.	The case is circumstantial. The Court is satisfied that there are sufficient surrounding facts to warrant that the case is made out.

27.	In 2011, the defendant met with SP, his former partner. He visited her in the presence of her daughters, SL and SoP, and apologised for his conduct and asked for forgiveness. SP replied that she did not want to see him again in Samoa and 'it is finished.' She said that Ioane had apologised because he wanted to see her but could not because 'FS' was now in prison.

28.	In 2008, he asked Pogasu'e for the whereabouts of his daughter and asked for the telephone contact to be given to her.

29.	It is unreasonable to accept that in the lengthy process spent together at Fagalii in 2009, and X in 2011, that the two did not discuss their relationship.

30.	ST, the husband with whom the defendant stayed, referred to the defendant as 'his wife's father' as did FS's daughter, who stayed with him and referred to him as her mother's father.

31.	It would be beyond the human experience that the pregnancy of and birth by a young woman in a small village who had lived with a young woman could not have been communicated by a Samoan family to a young man with whom she had openly lived.

32.	In 2008/9, the defendant sought to find his daughter. The request can only show that he was aware of her existence, proof that he had earlier been told as suggested above.

33.	SP also went with the defendant to see FS and her baby daughter, and confirmed Siia'e's account, adding that the defendant had asked FS to go with him to the police station and withdraw what she had said.

34.	The defendant stayed at the family's house at X rather than his own; an act which has little purpose except to reconnect with his biological family.

35.	The defendant provided financial support for FS during the period 2009 – 2010.

36.	The Court is satisfied on the direct and primary evidence:

(1)	the defendant is the biological father of FS; and
(2)	the defendant and the complainant had sexual intercourse on two occasions; on 4 August 2009 and 23 May 2011.

37.	The Court is satisfied on circumstantial evidence that at the relevant times the defendant knew FS to be his biological daughter. The Court does not find any reasonable hypothesis consistent with innocence.

Conclusion

38.	The defendant is guilty of two (2) counts of Incest comprised in Informations S836/11 and S903/11.

39.	A suppression order is made protecting the complainant, her husband, children and members of her immediate family.

____________________
(JUSTICE SLICER)