SUPREME COURT OF SAMOA
Police v Fui [2014] WSSC 71

Case name: 	Police v Paepaetele Fui	
		
Citation: 	[2014] WSSC 71	
		
Decision date: 	3 December 2014	
		
Parties: 	POLICE Prosecution AND PAEPAETELE FUI male of Falelima and Savaia, Lefaga	
		
Hearing date(s): 	31 October 2014	
		
File number(s): 	S1327/14	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	MULINUU	
		
Judge(s): 	CHIEF JUSTICE PATU FALEFATU SAPOLU	
		
On appeal from:		
		
Order:		
		
Representation: 	L Su’a-Mailo for prosecution
T Atoa for accused	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Crimes Ordinance 1961.
Criminal Procedure Act 1972, s.39	
		
Cases cited:	Saili v R [2012] NZCA 149 
R v Mokaraka [2001] NZCA 378 [13]-]19] 
R v McDonald [2007] NZCA, [11].
R v Li [2007] NZCA 402
R v Fairbanks 
R v Carr [1995] 2 NZLR 339
R v Maxwell 
(R v Bergman and Collins (1996) 2 Cr App R 399 at 407)
R v King (1900) 19 NZLR 409 (CA)
R v Lamb [1959] NZLR 232 (CA).
R v Collier CA81/96	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1327/14

BETWEEN

P  O  L  I  C  E

Prosecution

A  N  D

PAEPAETELE FUI male of Falelima and Savaia, Lefaga.

Accused

Counsel
L Su’a-Mailo for prosecution
T Atoa for accused

Hearing:	31 October 2014

Judgment:	  3 December 2014

JUDGMENT OF SAPOLU CJ
The charges
1.	At the commencement of this trial, counsel for the prosecution withdrew all the fourteen charges of rape laid against the accused under s.47 of the Crimes Ordinance 1961, all the eleven charges of rape laid against the accused under ss.49 and 52 (1) of the Crimes Act 2013, all the fourteen charges of incest laid against the accused under s.49 of the Crimes Ordinance 1961, and all the ten charges of incest laid against the accused under s.55 of the Crimes Act 2013.  All of these charges were then dismissed.
2.	The above charges were then substituted with fourteen charges against the accused of having sexual intercourse with a female under the age of 21 years living with him as a member of his family purported to be pursuant to s.50 (1) of the Crimes Ordinance 1961, and nine charges against the accused of having sexual connection with a dependent family member under the age of 21 years pursuant to s.56 (1) of the Crimes Act 2013.  It was these charges that the prosecution proceeded with during the trial.
3.	The reason why the prosecution has laid the charges against the accused in this way was because the unlawful acts alleged against the accused is said to have been committed over the period from 2012 to 2014.  During that period of time, the Crimes Ordinance 1961 which had been in force up to 2013 was repealed and replaced by the Crimes Act 2013.  However, in terms of s.226 of the Crimes Act 2013 which is a savings provision, the Crimes Ordinance 1961 continues to have effect for the purposes set out in that provision.
4.	What has created problems for the prosecution in relation to the fourteen substituted charges of having sexual intercourse with a female under the age of 21 years living with the accused as a member of his family laid under s.50 (1) of the Crimes Ordinance 1961 is that s.50 (1) refers to a “stepdaughter, foster daughter or ward”.  However, the evidence given by both the complainant and the accused during the trial shows that the complainant is a biological daughter of the accused.  In other words, these charges under s.50 (1) which refers to a “stepdaughter, foster daughter or ward” are not supported by the evidence.  I will return to this issue later in this judgment.
The evidence
5.	After giving careful consideration to the evidence, I have decided to accept the evidence of the complainant as to what happened and reject the evidence of the accused as unsatisfactory and incredible.
6.	The complainant’s birth certificate which was produced by consent shows that she was born on 6 April 1996 and her father is the accused.  In her oral testimony, she says that she is now 18 years of age and was attending school at the times the accused committed on her the unlawful acts with which he is being charged.  She also repeatedly refers to the accused during her evidence as her father.  The accused in his oral testimony also repeatedly refers to the complainant during his evidence as his daughter.  The complainant’s mother who is still living with the family of the accused did not give evidence. 
7.	According to the complainant in her oral testimony, she stayed with her parents and one of her brothers who is seven years old at Vaitele-uta for the whole of 2012. The house her family was living in is close by to a church and the house of the pastor of that church. A very short distance from their house is a bathroom which accommodates a toilet and a shower.  At that time her father was working as a night watchman at the new market at Vaitele-tai while her mother used to go in the mornings to sell her faleaiga in front of the Farmer Joe supermarket at Vaitele-tai.  
8.	On one Saturday morning in March 2012, after her mother had left with her faleaiga to go to the Farmer Joe supermarket, the complainant went to the bathroom to wash her clothes in the shower.  While doing her laundry inside the shower, the complainant’s father arrived home from his work as a night watchman.  He went to the shower and found the complainant doing her laundry.  He asked her whether her mother had gone to sell her faleaiga.  She replied yes.  He then asked the complainant where the pastor and his wife had gone to.  The complainant replied she does not know.  At that time only the complainant’s seven year old brother was sleeping in their house.
9.	The accused then pulled down the lavalava the complainant was wearing and told her not to make any noise.  He then laid the complainant down, jumped on top of her, and sucked her breasts.  When the complainant tried to scream he closed her mouth with his hand.  He then had sexual intercourse with the complainant.  After sexual intercourse, the accused left the bathroom.  The complainant also testified that the accused told her not to tell anyone about what has happened.  As a result, she did not tell anyone what her father has done to her as she was afraid of him.
10.	The complainant further testified that after what her father had done to her in the shower in March 2012, not a month went by from April 2012 to July 2013 without her father having sexual intercourse with her in their house at Vaitele-uta.  It appears from the complainant’s evidence that this would happen either during the day when she was alone at home with the accused or at night when her mother and young brother were asleep.  What would happen when sexual intercourse occurs at night was that while she was asleep in her bed and her mother and young brother were also asleep, the accused would come and wake her up, remove her clothes, and have sexual intercourse with her.
11.	Then in July 2013, the complainant and her parents left Vaitele- uta and moved to Toamua-uta.  The complainant testified that every month from July 2013 to March 2014 whilst they were staying at Toamua-uta, the accused would have sexual intercourse with her.  If that happened at night time, the accused would come to the bed where she was sleeping when her mother and young brother had gone to sleep and wake her up, remove her clothes, and have sexual intercourse with her.  It appears from the complainant’s evidence under cross-examination by defence counsel that almost every time the accused had sexual intercourse with her he would threaten her not to tell anyone; sometimes he would threaten to kill her if she told anyone.
12.	Then on the night of 2 April 2014 whilst she was asleep she had a nightmare.  She felt as if some one was strangling her and her head was about to burst.  She screamed in her sleep.  Her mother who was sleeping close by must have heard the complainant’s scream because she sat up, woke up the complainant, and asked her why she had screamed.  The complainant cried and then related to her mother what the accused has been doing to her.  That same day, the complainant, her mother, and young brother left Toamua-uta and came and lived with the mother’s uncle at Puipaa.
13.	The complainant also testified that on some nights her father would work from 5:00pm in the evening to midnight, on other nights he would work from midnight to 8:00am in the morning.  This year her father would work on some nights from 5:00pm in the evening to 8:00am the following morning.  On some mornings, when the accused returned home from work the complainant had not left for school.  She was still at home.  
14.	The complainant also said under cross-examination that her father would often wait for her after school at the bus depot at Savalalo near the Flea Market where the students of her school are dropped off after school.  She is old enough to catch the bus to go home. Her father would then accompany her home by bus.  Given the age of the complainant, I do not understand why the accused would often wait for her at the Savalalo bus depot after school. She is old enough to catch the bus herself to go home. However, the complainant testified under cross-examination that the accused was always angry and jealous when she talks to boys, even boys from her school, and he would often beat her up when she talks to boys and prohibit her from talking to boys.  I do not accept, as the cross-examination appeared to suggest, that the reason why the accused would beat up the complainant when she talks to boys was out of concern for her studies and well-being as a student. The complainant’s evidence was that it was the accused’s sexual misbehavior towards her that was affecting her.
15.	The cross-examination also touched upon the two statements made by the complainant to the police, especially the first statement made by the complainant on the day the complaint was lodged by her mother with the police.  The complainant explained that when her first statement was made to the police her mind and feelings were not set.  The threats the accused had made to her everytime he had sexual intercourse with her if she told anyone about what he was doing to her were still weighing on her mind.  So she only told the police about the last incident of sexual intercourse and what happened to her in the early hours of 2 April 2014 while she was asleep.  She also said that when she was first taken to the police station, she thought she was only required to tell the police what had happened to her that day.  It was only when the police brought her back on a later date to be re-interviewed that she gave a second statement relating what the accused had been doing to her.  The complainant maintained this part of her evidence under cross-examination and I have no reason to doubt her genuineness and sincerity.
16.	It is unfortunate that the complainant’s mother did not give evidence.  But given that she is still living with the accused’s family, her situation is understandable.  
17.	The evidence given by the accused is generally confirmatory of the evidence given by the complainant.  The fundamental difference is that the accused denies having had sexual intercourse with the complainant.  The accused, however, agreed that sometimes he would wait for the complainant at the Savalalo bus depot when she finished school.  He also agreed that he often smack or beat up the complainant when she talks to boys or when she comes home late from school but denies that it was because of jealousy; he said it was because of his concern for her studies and well-being.  He also said that at one time he used a piece of timber on the complainant. 
18.	The accused further said that sometimes he would start work as a night watchman at the market at 5:00pm in the evening and finished work at midnight; at other times he would start work at 4:00pm in the afternoon and finished work at 8:00am the following morning.  This is also generally consistent with the evidence given by the complainant.  On some days the accused said he would stay home to wait for the complainant to come home from school when it has been reported to him that the complainant had come home late from school the previous day.
19.	The accused also testified that in 2012 while they were living at Vaitele-uta, his wife used to go in the morning and sell a kipoki koko at Farmer Joe’s supermarket at Vaitele-tai.  This is again generally consistent with the evidence of the complainant.
20.	The accused further testified that one day when they were living at Toamua-uta he had smacked the complainant and when he returned home from work his wife, the complainant, and his son had left for his wife’s family at Puipaa.  Perhaps that was the reason why his wife had lodged the complaint with the police; it was because of her fear of him and his cruelty (saua) to their children.
21.	Having considered the evidence of the complainant and that of the accused as well as their respective demeanours in the witness stand, I have decided to accept the evidence of the complainant and reject the denial by the accused that he never had sexual intercourse with the complainant.  The accused’s evidence does not inspire confidence or belief in it.  On this basis I would have found to have been proved beyond reasonable doubt all of the fourteen charges under s.50(1) of the Crimes Ordinance 1961 of having sexual intercourse with a female under the age of 21 years living with the accused as a member of his family and all of the nine charges under s.56 of the Crimes Act 2013 of having sexual connection with a dependent family member under the age of 21 years.  However, I have decided to dismiss the charges under s.50 (1) of the Crimes Ordinance 1961.
The charges under s.50 (1) of the Crimes Ordinance 1961
22.	Section 50 of the Crimes Ordinance 1961 which provided for the offence of sexual intercourse by a man with a young girl living in his family states:
“(1)  Everyone is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any girl, not being his wife, who is under the age of 21 years and who, being his stepdaughter, foster daughter or ward, is at the time of the intercourse or attempted intercourse living with him as a member of his family.
“(2)  It is no defence to a charge under this section that the girl consented”
23.	The Crimes Ordinance 1961, as earlier mentioned, has been repealed by the Crimes Act 2013 and ss.56 and 57 of the Act appears to have taken the place of s.50 of the Ordinance.  While s.50 of the Ordinance refers only to a “stepdaughter, foster daughter or ward”, the definition of the expression “dependent family member” provided in s.57 of the Act for the purposes of the offence provided in s.56 would include a “daughter”, that is to say, a biological daughter.  So the scope of the offence under s.56 of the Crimes Act 2013 is wider than the scope of the offence provided in s.50 of the Crimes Ordinance 1961 which is restricted to “stepdaughter, foster daughter or ward”.  This seems to have been overlooked at the time the substituted charges were prepared.
24.	The difficulty this has created for the prosecution for the purpose of the charges laid under s.50 (1) of the Crimes Ordinance 1961 is that both the evidence given by the complainant and the accused show that the complainant is a biological daughter of the accused.  So s.50 (1) does not apply to the complainant and the charges laid under that provision.  When I raised this point with both counsel for the prosecution and the defence after the close of the evidence and while my judgment was being reserved, counsel for the prosecution immediately picked it up and I granted both counsel time to consider whether s.39 of the Criminal Procedure Act 1972 which provides for an “included offence” applies to the situation that has arisen.  When this matter was re-called, counsel for the prosecution advised that she has considered this matter and in the circumstances the prosecution will not continue with the charges under s.50 (1) of the Crimes Ordinance 1961.  I accepted counsel’s advice.  However, because of the importance of the issue raised in relation to s.39 of the Criminal Procedure Act 1972  for the purpose of Samoan criminal law, I told counsel that I will address that issue in my judgment.  Perhaps, this could be useful for future reference in an appropriate case.
Part of charge proved
25.	Section 39 (1) of the Criminal Procedure Act 1972 provides:
“(1)  Every information shall be divisible; and, if the commission of the offence charged, whether as described in the enactment creating the offence or as charged in the information, necessarily includes the commission of any other offence, the defendant may be convicted of any offence so included which is proved, although the whole offence charged is not proved; or he or she may be convicted of an attempt to commit any offence so included.
26.	Section 39 (1) of our Criminal Procedure Act is in substantially the same terms as s.339 (1) of the Crimes Act 1961(NZ).  The leading case in New Zealand on s.339 (1) is R v Mokaraka [2001] NZCA 378 where Fisher J in delivering the judgment of the New Zealand Court of Appeal said at [13] – [19]:
“[13]   In applying s.339, a number of principles are now well-established.  A lesser crime is ‘included’ for present purposes if the way in which the crime is defined in the statute, or the way in which it is expressed in the indictment, necessarily includes the commission of the lesser crime: R v King (1900) 19 NZLR 409 (CA); R v Lamb [1959] NZLR 232 (CA).
“[14]  The mere fact that an included charge in that sense is possible does not mean that it must be put to the jury.  Whether it is put to the jury is a matter of discretion for the trial Judge: R v Collier CA81/96, 13 August 1996) adopting R v Fairbanks (1986) 83 Cr App R 251, 255.  The Court is obliged to put an included charge to the jury only if necessary in the interests of justice.
‘[15]   In any given trial there is a threshold requirement before the subject of included charges needs to be considered at all:  there must be a live issue as to whether no  more than the elements of the lesser charge will be proved.  The question of lesser verdicts need not be addressed if it simply does not arise on the way in which the case was presented to the Court:  Fairbanks, supra at 225.  As was said in R v Maxwell (1988) 88 Cr App R 173, 178 (this passage  was approved on appeal (1990) 91 Cr App R 61 at pp 67-68) ‘the Judge would always use his powers to ensure, as far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence’.  The question is whether the evidence raises the very real possibility that all the elements or the included charge will be established without the additional elements required for the major charge.  The jury must have been squarely confronted with that possibility.  
“[16]  Even where that threshold is surmounted, there can be circumstances that count against putting the included charge.  One is a situation in which the principal charge is so grave, and the lesser alternative so trifling, that the latter could needlessly distract the jury from the real point of the case:  R v Fairbanks supra at 343.  Another could be a situation in which the question of included charges was raised so late that a party could have been prejudiced by the way in which the trial had been conducted up to that point: R v Carr [1995] 2 NZLR 339 at 343.  Another would be any legitimate Crown concern that the inclusion of the lesser alternative might provide the jury with a pretext for softening the verdict in circumstances where, if they discharged their duty, they could only find the accused guilty on the more serious charge or not at all. 
“17]   Conversely, an included charge is more likely to be favoured in cases where the jury might otherwise convict out of a reluctance to see the accused get clean away with what on any view was disgraceful conduct:  Collier supra at p5 adopting R v Maxwell supra (HL) at p68.  That concern is likely to be heightened if the jury itself asked whether there was a lesser alternative (R v Bergman and Collins (1996) 2 Cr App R 399 at 407), especially if the Judge then failed to give them an appropriate warning.  Following a jury inquiry of that kind the Judge should generally remind the jury that the prosecution having decided to limit the indictment to the greater charge, the result of failure to prove any of the necessary elements of the greater charge must inevitably be an acquittal notwithstanding an admission or clear evidence that a less serious offence had been committed:  R v Maxwell, supra (HL) at p 66.
“[18]   In the end there remains a broad discretion to be exercised by the trial Judge in the light of the particular circumstances of the particular case.  The aim is to ensure that the issues left to the jury reflect those that fairly arise on the evidence without unnecessary distractions.  It is not for an appellate Court to intervene unless satisfied that the jury may have convicted out of a reluctance to see the defendant get away with what, on any view, was disgraceful conduct.
“[19]	It follows from the last point that there may be cases – we think few – in which the trial judge will need to take the initiative.  It may not always be sufficient to wait for an application by counsel, whether for the Crown or the defence, particularly if the jury itself has raised the possibility of a lesser alternative.  In some circumstances a jury inquiry of that kind might be regarded as an indication that the jurors would be reluctant to acquit an accused whom they see as clearly guilty of a lesser offence.  The trial Judge will then need to give serious consideration to an included charge or, depending upon the circumstances, a warning along the lines mentioned”.
27.	The principles set out by Fisher J in R v Mokaraka [2001] NZCA 378, [13] – [19] were summarised in R v McDonald [2007] NZCA 142, [11], where O’Regon J in delivering the judgment of the New Zealand Court of Appeal said:
“[11]   In R v Mokaraka [2002] 1 NZLR 793 (CA), Fisher J set out the principles governing included charges at [12] – [19].  As relevant to this case, they can be summarised as follows:
(a)	The mere fact that an included charge is possible does not mean it must be put to the jury.  It is a matter of discretion of the trial Judge; 
(b)	There must be a live issue as to whether no more than the elements of the lesser charge will proved.  This is a threshold question.  The jury must be squarely confronted with the possibility that all of the elements of the lesser charge are proved on the evidence without any of the elements of the principal charge;
(c)	Once this inquiry is cleared, the following circumstances tell against putting the included charge: the lesser charge is trifling whereas the principal charge is very serious such that the lesser charge could distract the jury; the question of included charges is raised too late in proceedings such that prejudice results to one party in the way the trial is conducted; the inclusion of the lesser charge provides a pretext for the jury softening its verdict where, if it discharged its duty, it could only find the accused guilty on the principal charge or not guilty;
(d)	The Judge’s discretion to put the included charge is broad.  An appellate Court will not intervene unless it is satisfied that the jury may have convicted the accused out of reluctance to see him or her ‘get away’ with disgraceful conduct”.
28.	In R v Li [2007] NZCA 402, Randerson J in delivering the judgment of the New Zealand Court of Appeal in that case said at [25]:
“We do not consider the Judge was obliged to allow the jury to consider an alternative charge under s.256 (2). It is well established that the mere fact that the lesser crime may necessarily be included in the crime charged in terms of s.339 (1) Crimes Act does not mean it must be put to the jury.  The principles which the law applies were set out by this Court in R v Mokaraka [2002] 1 NZLR 793 at [12] to [19] and in R v McDonald [2007] NZCA 142 at [11]. As this Court said in Mokaraka at [18]:
“In the end there remains a broad discretion to be exercised by the trial Judge in the light of the particular circumstances of the particular case.  The aim is to ensure that the issues left to the jury reflect those that fairly arise on the evidence without unnecessary distractions.  It is not for an appellate Court to intervene unless satisfied that the jury may have convicted out of a reluctance to see the defendant get away with what, on any view, was disgraceful conduct”.
29.	See also Saili v R [2012] NZCA 149 where the New Zealand Court of Appeal discussed the above principles stated by Fisher J in R v Mokaraka [2001] NZCA 378 [13]-]19] as summarised by O’Regan J in R v McDonald [2007] NZCA, [11].
Conclusions 
30.	From the foregoing discussion of the evidence in relation to the substituted charges laid by the prosecution and the provisions of s.50(1) of the Crimes Ordinance 1961, I have come to the following conclusions:
(a)	All the fourteen charges of having sexual intercourse with a female under the age of 21 years laid against the accused under s.50 (1) of the Crimes Ordinance 1961 are dismissed.
(b)	All the nine charges of having sexual connection with a dependent family member under the age of 21 years laid against the accused under s.56 (1) of the Crimes Act 2013 have been proved by the prosecution  beyond reasonable doubt.
31.	As the accused is in custody, I will adjourn this matter to Monday, 22 December 2014, at 9:30am for a pre-sentence report.  The probation service to give priority to this case over non-custodial criminal cases which have also been set down for pre-sentence reports on 22 December 2014.

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CHIEF JUSTICE