IN THE SUPREME COURT OF SAMOA
Police v Nauer [2016] WSSC 198

Case name: 	Police v Nauer	
		
Citation: 	[2016] WSSC 198	
		
Decision date: 	 08 September 2016	
		
Parties: 	POLICE (Prosecution) AND FLOYD IULIANO NAUER male of Vaimea and Togafu’afu’a. (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	The tests to be applied when considering whether to set aside the verdict of a panel of assessors have been laid out in Attorney General v Sefo [2009] WSCA 7 and Attorney General v Otto [2009] WSCA 6, revisited without alteration recently in Attorney General v Crichton [2014] WSCA 8.  I remind myself setting aside the verdict is not an exercise to be undertaken lightly and is done only to prevent a miscarriage of justice.  It would be manifestly unjust to convict the defendant based on the quality of the evidence adduced by the complainant.  I must intervene and pursuant to section 100 of the Criminal Procedure Act 1972 hereby set aside the Assessors verdict in relation to the charge of rape. 

Suppression of publication of the name and any other details that may serve to identify the complainant is continued. 

Representation: 	M Lui for prosecution
R V Papalii for defendant	
		
Catchwords: 	rape - set aside verdict - unjust to convict – complainants testimony.	
		
Words and phrases:		
		
Legislation cited:	Criminal Procedure Act 1972	
		
Cases cited:	Police v Nauer [2016] WSSC 188
Attorney General v Sefo [2009] WSCA 7
Attorney General v Otto [2009] WSCA 6	
	Attorney General v Crichton [2014] WSCA 8	
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	FLOYD IULIANO NAUER male of Vaimea and Togafu’afu’a.
Defendant

Counsel:
M Lui for prosecution
R V Papalii for defendant

Judgment:   08 September 2016

REASONS FOR JUDGMENT OF NELSON J
 (Dismissal of rape charge)
1.	On 08 September 2016 I sentenced the defendant to 5 years imprisonment for intentionally causing grievous bodily harm to the complainant: Police v Nauer [2016] WSSC 188.  I also indicated I was setting aside pursuant to section 100 of the Criminal Procedure Act 1972 the verdict of the Assessors of guilty of the rape of the complainant, reasons to be published in due course.  These are those Reasons.
2.	The relevant background facts are summarized in Police v Nauer [2016] WSSC 188:
“The defendant faced two charges. First that in the early morning hours of Saturday, 28 June 2014 at Togafu’afu’a he did rape the complainant. A solo mother whose details have been suppressed in accordance with the usual practice of the court. He is also charged that at the same place and date with intent to cause grievous bodily harm, he did cause grievous bodily harm to the complainant.
The defendant pleaded guilty to the grievous bodily harm but not guilty to the rape charge. After a defended hearing a panel of assessors returned a unanimous verdict of guilty of rape. For reasons to be published in due course I am setting aside the verdict of the assessors pursuant to section 100 of the Criminal Procedural Act 1972. What must be dealt with today is the sentencing of the defendant on the charge he pleaded guilty to the grievous bodily harm.
The trial evidence established the following: on the night of Friday, 27 June 2014 the complainant visited several nightclubs with her friends. Around mid-night they ended up at Tufuiopa partying on the cement in front of the Asaua Medical Clinic. The complainant left the group and proceeded west down Tufuiopa Road to Magi Fidows after hours shop located just around the corner from where her and her friends were partying. She said she went to buy cigarettes. It was at the shop that she encountered the defendant drinking in front of the shop. She knew the defendant as he is a relative of her ex-defacto partner.
The complainants evidence was the defendant bummed a cigarette off her and offered her a small vailima. She accepted and afterwards gave him $10:00 to buy two more small vailimas. The defendant instead returned with two large vailimas and suggested they move to another more private location to enjoy their drinks. They did so and according to the complainant after consuming about half of her vailima bottle, she told the defendant he was drunk and he should go home. She left the area but the defendant followed her around the corner and into Tufuiopa Road. He called out to her to stop and she did. When he caught up they had a further conversation and she again repeated to the defendant he was drunk and should go home. It is here that the versions given by the complainant and the defendant diverge.
The complainant says as she turned to continue walking to her friends, the defendant blindsided her with a bottle to the face. When she regained consciousness she was lying on a side road with the defendant kneeling over her. He threatened her and raped her while she was bleeding everywhere from her wounds. Photographs of the crime scene show the presence of blood in the area of this incident. A substantial amount of blood. Not only on the rocks leading to the alleged crime scene but also at the crime scene itself. She said after intercourse occurred she was able to extract herself from the defendant and ran naked onto the road seeking help. Her friends who were drinking not very far away responded and took her to the hospital.
The defendants version is radically different. He maintains they had consensual sexual intercourse on the side road. But post-sex an argument occurred involving the defendants cell-phone which the complainant put inside her bra. Leading to him pursuing her and bottling her in the face on the main road. After which he then dragged her to the back of the side road to the scene of the intercourse and tried to revive her.
The assessors obviously did not accept this improbable version of events and instead preferred the complainants testimony hence their verdict of guilty of rape. I on the other hand have serious doubts about the veracity of the complainants evidence. And the defendants explanation is possible albeit not one hundred percent (100%) convincing. But as will be apparent from the reasons I have yet to produce the onus in criminal cases rests on the prosecution to prove its case beyond reasonable doubt. Not on the defendant to establish or demonstrate his innocence or to convince the assessors and the court of the truthfulness of his story. My reversal of the rape verdict turns on these very principles.”
3.	I had numerous difficulties with the complainants evidence. She said (transcript 17 August 2016 page 36) she left her Tufuiopa drinking group because she did not wish to consume any more alcohol.  Went to Magis shop around the corner to buy cigarettes. In front of the shop she met the defendant drinking beer.  He bummed a cigarette off her and offered her a small bottle of Vailima.  Which she drank at his insistence.  But then said she gave him $10 to buy two more small Vailimas.  He left and returned instead with two large Vailimas.  Which they then drank. And when he suggested they cross the road to a more private area to drink their beers, she agreed.  She went on to say she had consumed almost half her bottle before telling him he should go home as he was drunk.  She said she stood up and walked away but stopped and waited when he called out to her.  Waited for him to catch up.  Which he did.  They had a further conversation. Then walked into Tufuiopa Road where she was assaulted and raped.
4.	The first difficulty is such behavior in my view is not totally consistent with a claim of lack of consent. They are actions more indicative of a prelude to consensual intercourse. And are consistent with what the defendant said that they happily shared late night drinks and marijuana together opposite the shop before the complainant agreed to go somewhere private to have sex. 
5.	Secondly, the complainants evidence does not gel with the excellent crime scene photographs taken by Constable Nepa Papalii of the Police Forensics Section early the following morning.  These show (photographs 23, 26, 27 and 28) two open (i.e. uncapped) bottles, one small green Vailima and one large brown one lying on the grassy roadside by some rocks.  Plus remnants of a broken brown bottle, presumably the other large Vailima purchased by the defendant.  As the defendant only bought two large Vailimas according to the complainant it is not clear where the small green Vailima came from.  Furthermore, the positioning of the bottles and the fact the bottles were open suggest the parties sat on/or stood by the road-side rocks consuming their beers.  Which is contrary to the complainants evidence that all drinking occurred around the corner opposite Magis shop.  It is however consistent with the defendants evidence (transcript 18 August 2016 page 30) that they finished their two large beers on the side of the road, left the empty bottles there, leaving only the bottle he had been carrying inside his shirt.  Before proceeding to the rear of the side-road where they had consensual sex.
6.	Thirdly is the complainants account of how sexual intercourse occurred.  She was adamant in examination in chief and cross examination she was raped in a face-down position. i.e. penetrated from the rear.  Human experience reveals such a position is not the easiest to establish in the most normal of circumstances. These circumstances were far from normal.  And the alleged rape was carried out in an off-road location where lighting would have been minimal.  Photograph 3 shows what appears to be a street light but illuminating, as you would expect, the main road area.  
7.	In this regard, the complainants medical report assumes pivotal significance.  Given the violence of the alleged rape, the fact that it occurred at night and the position by which it was accomplished, one would reasonably expect in the least some bruising or lacerations to the complainants genitals and/or genital regions.  
8.	The complainant was medically examined at the National Hospital around 5:00 am that morning.  House Surgeon Dr K Ainuu noted:
“A vaginal examination was done and showed that the both thighs had no bruises, cuts or lacerations.  External vaginal was normal and showed no bruising or lacerations or active bleeding.  A speculum examination was done and showed no lacerations or active bleeding to the vaginal wall and that the cervix was nulliparous in nature.  Vaginal swabs were taken and results showed the presence of spermatozoa in the specimen.”
9.	When I questioned the doctor on his findings (transcript 17 August 2016 page 13), he assured the court he conducted a thorough internal as well as external examination of the complainants vaginal area.  And internally “sa leai se mea na faaletonu, na normal uma mea i totonu.” 
10.	The medical evidence does not support the complainants testimony that she was brutally raped in a face-down position a few hours prior to this examination by an independent medical expert. 
11.	It also does not assist the complainants credibility that the evidence of one of her group drinking further along Tufuiopa Road clashes with hers.  Benjamin Brown who is no relation or acquaintance said the complainant left the group to purchase alcohol from the shop around the corner.  He also stated in cross examination that when she came naked and bleeding, she was wearing her bra. Different to the complainants testimony that post-sex she fled to the main road unclothed.  This is also contrary to the Police evidence that part of a bra was found at the crime scene which is consistent with the defendants evidence that the complainants bra was torn during their struggle over his fathers cell-phone which the complainant hid in her bra and which precipitated his assault. 
12.	At the end of her cross examination (transcript 17 August 2016 pages 70 and 71) the complainant admitted she was angry at the defendant because of what he did to her.  That if she was a male she would have exacted physical revenge.  And that the court case was a form of payback.  An understandable reaction to the grisly damage suffered by her at the hands of the defendant.  But evidence of a strong and current motivation for retribution.  Something that requires to be factored into the evaluation of her testimony.
13.	I accept the security guard Ieremia Ieremia on duty at SOS opposite Magis shop to some extent supports the complainants testimony that the defendant followed her into Tufuiopa Road.  But I am mindful of two matters: the guards evidence was that at the time he was tired and was playing a game on his cell-phone to keep him awake and that his was but a momentary observation of two people walking on the opposite side of the road.  People he did not know or recognize or pay any particular attention to. There was no reason for him to do so.  Secondly that by his own admission he did not inform the Police about what he saw despite being questioned post incident by officers attending the scene as to whether he had seen anything.  It appears he only came forward much later. 
14.	A great deal of uncertainty permeated this witnesses evidence to the extent that I did not find him reliable.  He also failed to mention the defendant and complainant drinking opposite Magis store.  On the same side of the road as the SOS premises he was supposedly guarding. The only reason he would not have noticed them was either his preoccupation with his game; or perhaps because he was sitting facing the sea on the other side of the SOS building.  From where his view of traffic passing Magis store into Tufuiopa Road would have been limited.  This witness does not bolster the complainants credibility.
15.	In considering the totality of the complainants evidence I am left in reasonable doubt as to her accuracy and veracity.  I am unsure as to the truth and reliability of her account.  I bear in mind these events occurred in the early hours of Saturday morning after a night out clubbing with friends according to the complainant.  Which is not to say I necessarily accept the defendants version which is not without its own problems.
16.	But the onus in every criminal case lies on the prosecution to prove its case to the required standard.  There is no onus on the defendant to prove the truth of what he is saying and he may provide an explanation consistent with innocence.  The difficulties surrounding the complainants evidence are such that in my view the required standard of proof has not been met.  
17.	The tests to be applied when considering whether to set aside the verdict of a panel of assessors have been laid out in Attorney General v Sefo [2009] WSCA 7 and Attorney General v Otto [2009] WSCA 6, revisited without alteration recently in Attorney General v Crichton [2014] WSCA 8.  I remind myself setting aside the verdict is not an exercise to be undertaken lightly and is done only to prevent a miscarriage of justice.  It would be manifestly unjust to convict the defendant based on the quality of the evidence adduced by the complainant.  I must intervene and pursuant to section 100 of the Criminal Procedure Act 1972 hereby set aside the Assessors verdict in relation to the charge of rape. 
18.	Suppression of publication of the name and any other details that may serve to identify the complainant is continued. 

JUSTICE NELSON