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Police v Tuala [2013] WSSC 28 (14 February 2013)

SUPREME COURT OF SAMOA

Police v Tuala [2013] WSSC 28

Case name: Police v Tuala

Citation: [2013] WSSC 28

Decision date: 14 February 2013

Parties: POLICE and ROME TUALA male of Afega, Faleasiu and Safaatoa

Hearing date(s): 14 February 2013

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
Ms R Titi for prosecution
Mr J Brunt for defendant

Catchwords:

Words and phrases:
Legislation cited:
Crimes Ordinance 1961
Mental Health Act 2007

Cases cited:
Police v Fono [1999] WSSC 51
R v Galbraith [1981] 1 WLR 1039
Attorney General v Kolio [2008] WSCA 7

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

ROME TUALA male of Afega, Faleasiu and Safaatoa.

Defendant

Counsel: Ms R Titi for prosecution

Mr J Brunt for defendant

Hearing: 14 February 2013

Decision: 14 February 2013

DECISION OF NELSON J

(No case to answer application)

1. At the close of the prosecution case, the defence submitted there was no case to answer in respect of the alternative charge S1082/11 that alleges the defendant had sexual intercourse with an imbecile, knowing or having good reason to know that the girl in question was an imbecile and that he did thereby breach section 57 of the Crimes Ordinance 1961.
2. The defence submitted that insufficient evidence had been provided by the prosecution that the complainant was in fact an imbecile. And that the prosecution expert nurse Matamua Iokapeta a duly qualified mental health specialist expressed the view that the complainant was not an imbecile when questioned directly on the matter. They say the observations noted by Matamua in her examination of the complainant show her to be mentally retarded not an imbecile. They point to the nurses report Exhibit “P-2” for the prosecution which says this. They accordingly argue that this charge should not be left to the assessors to determine.
3. The police argue that the test to be applied at this stage is whether the prosecution have a prima facie case sufficient to go to the ladies and gentlemen assessors. They concede the words used in section 57 are antiquated as noted by Matamua. But say that enough evidence has been adduced showing the complainant was in fact an imbecile so that the alternative charge of sex with an imbecile can be left to the good judgment of the assessors. The prosecution rely heavily on Police v Fono [1999] WSSC 51 wherein the learned Chief Justice considered section 57 and the interpretation of the words “idiot” and “imbecile”. In that case, the court found the complainant was “mentally weak, feeble and retarded”.
4. As noted by the Court of Appeal the test to be applied on a no case submission in an assessor trial is that laid down in the well known authority of R v Galbraith [1981] 1 WLR 1039 namely whether the prosecution evidence taken at its highest could have properly led to a conviction by a panel of assessors properly directed see: paragraph 24 of Attorney General v Kolio [2008] WSCA 7.
5. On the issue of the imbecility or otherwise of the complainant the prosecution evidence essentially relies on their summoned expert nurse Matamua. And her evidence was that while the terms “idiot” and “imbecile” are antiquated, she referred to them as “mea mai le vavau”; the complainant was not in her assessment an idiot or an imbecile. Quoting from page 32 of the transcript of her evidence when she was asked about these terms:

“o ia upu e tasi, o upu faasamoa e faitau aofia ai le mea idiot, imbecile lea e taatele i anapo nei; o le upu valea, lea ua aofia uma ai ma isi gasegase o le mafaufau i lea lava faaupuga e tasi; o le gasegase valea, o le mafaufau valea; o le tulaga i le gasegase lea fetaia’i ma le tamaita’i lenei e le’o se gasegase foi lea e tutusa le latou ogaoga ma le mental disorder. Pei ona taua ai o le idiot ma le imbecile, ae ua o se mea ua le atoatoa le fausiga o le mafaufau ua le mafai ai ona ausia e le tamaitai ona mafaufauga e tatau ona iai.”

6. Her conclusions rested on her observations of the complainant when she examined her where she noted as relayed to the court in her evidence (page 28 of the transcript):

“o le mea muamua sa ou maitauina o uiga ma ona foliga, o ona laei ma lona amio; o le aliali mai o foliga e taua tele i le vaai ma le maitauina o tulaga o le mafaufau; o lea sa iloa ai na mama ma manino le vaai mai le tamaitai lea; sa maitauina foi sa lelei le saofai ma e foliga mai e fa’aaloalo.”

She goes on in the rest of her evidence on page 29 to then analyse the mental capacity of the complainant.

7. I agree with what defence counsel advanced that the observations of the nurse when she examined the complainant was how she came across in court, her appearance and her demeanour.
8. The prosecutions reliance on Police v Fono does not assist their case. Firstly, the law especially in overseas jurisdictions from which the Fono definition is derived as well as the science of mental health has come a long way since 1999. Terms like idiot and imbecile have no place in the modern world. Our mental health legislation makes no reference to such concepts and the Mental Health Act 2007 now governs the position of such patients. That Act rings in substantial changes in terminology, concepts and thinking. I have no doubt that if Police v Fono came before the learned Chief Justice today the definition opted for would have taken this evolution into consideration. Equally, I have no doubt section 57 of the Crimes Ordinance 1961 is high on the list of provisions requiring reform by the Law Reform Commission in order to bring it up to date and in line with modern terminology and developments.
9. Secondly, the complainant in Police v Fono is described in the Chief Justices judgment in the following terms and I quote from page 4 of the judgment:

“Her appearance and demeanour in the witness stand gave me the clear impression that she is not mentally normal but mentally weak, feeble and retarded. She gave a fixed and bewildered look. She kept squeezing her fingers to give a clicking sound. At times she displayed a deficit in memory. She did not answer some of the simple questions put to her. Some of the questions she answered with a nod of the head or with a sound she made with her mouth.”

10. In this case, the complainants appearance and demeanour is quite different. She did not have a fixed or bewildered look. She displayed no unusual idiosyncratic tendencies, gestures or motions of any kind. She was able to answer questions. Although I accept that her memory is not good and her knowledge and recollection of events and dates is rather limited. But unlike Fono the present complainant was able to answer all questions and while her answers were rambling at times and sometimes difficult to follow, they were generally lucid and coherent. And when she was cross examined on the incident itself by defence counsel she was quite emphatic in the way she delivered her denial of the suggestion by defence counsel that nothing had happened and that she was fabricating this whole story.
11. The assessment made by the prosecution expert was that while the complainant had a very low IQ or Intelligence Quotient, and I do note here that not all mental clinicians or experts agree the IQ scale is the best way of measuring intelligence and mental ability, the experts view was the complainant is mentally retarded. She used the words several times “le atoatoa le mafaufau”. In other words, she has a functioning brain but it is incomplete in formation and/or development.
12. Apart from the prosecution expert Matamua no evidence from the testimony of the complainants relatives was adduced to show that the complainant falls within the terms of the Fono definition, namely that she is so mentally defective that she is unable to guard herself against common physical danger or that she is incapable of managing her affairs. The relatives evidence was that while the girl was of weak intellect she would come and go in between the two families of her uncle Moala and aunty Kuinimeri seaward and that of the defendant and her aunty Alofa inland. There was no evidence that she was injury prone or that she often got into strife or trouble or that like the Fono complainant she wore torn clothes to church or was in the habit of befriending 5 year olds, indicating a mental age of 5 years. Likewise there was no evidence that she could not be left alone to her own devices. The evidence was she roamed of her own volition between the inland and seaward houses of the family without apparent incident. It was only when she got pregnant that the family stood up and took notice. They obviously felt there was no need to chaperone or closely monitor her behaviour and actions. Admittedly she had to be instructed in relation to chores. But that is not particularly unusual for a young girl and once instructed she appeared capable of carrying out her designated duties. Thus she was doing the washing of the family clothes or the “tagamea” when she says the defendant summoned her into the faleoo and sexually assaulted her.
13. Interestingly and significantly in my view, no prosecution witness called this girl a “vale” or “valea” which is the closest colloquial term to idiot and imbecile as confirmed by the expert Matamua in her evidence at page 32.
14. These are all indicature that the complainant is a person of weak or below average intellect. That is consonant with her appearance and demeanour in court.
15. I am of the clear view a reasonable panel of assessors properly directed would not find this complainant was either an idiot or an imbecile. And that the prosecution evidence taken at its highest would not result in a conviction by a panel of assessors properly directed.
16. It would be different if the nurses report and her evidence had concluded that the complainant was an imbecile. Then there would be a conflict between her opinion and the rest of the prosecution evidence. That would be a matter properly left to the assessors being within their province as triers of fact to determine. Issues of credibility and what to accept would then be involved. But that is not the case here. The experts opinion was unequivocal. This girl is mentally retarded but she is not an idiot or an imbecile. That accords with the courts observation of her when she gave her evidence.
17. The no case submission succeeds. I find that there is no prima facie evidence the complainant in this case was an idiot or an imbecile. The evidence all points to the fact that she was mentally retarded or of below average intellect.
18. The alternative charge of sex with an imbecile has no basis. It accordingly must be dismissed.
    

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JUSTICE NELSON