IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 05/10

IN THE MATTER
of an appeal pursuant to the Criminal Procedure Act 1972

BETWEEN

THE ATTORNEY GENERAL
Appellant

AND

MOLIA FATU TAIOALO
male of Magiagi and Papaloloa.
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: P Chang for appellant
R Schuster for respondent

Hearing: 6 May 2010
Judgment: 7 May 2010

JUDGEMENT OF THE COURT

1.	The Attorney-General, by leave granted on 29 March 2010, has appealed an acquittal verdict returned by assessors on a charge of rape.

2.	The appeal, pursuant to the Criminal Procedure Act 1972 section 164L (4) is confined to an error of law. The Notice of Appeal claims error on the grounds that:

(a) "the Honourable Presiding Judge erred at law in the summing up to the assessors;

(b) there was a failure to draw the only reasonably available inference from unchallenged primary facts;

(c) no reasonable assessors acting properly and in accordance with the relevant law would have reached that determination;

(d) there was an error in law and/or in fact in acquitting the Respondent; and

(e) there was a miscarriage of justice."

3.	Refined those grounds may be identified as:

(1) the directions given to the assessors by the learned trial Judge were significantly flawed;

(2) the verdict was one which assessors properly directed, could not reasonably have been returned.

4.	This Court has considered the general application of section 164L in the case of The Attorney-General v Kolio and others [2008] WSCA 7, in dealing with a directed verdict following a no case submission. In that case the Court identified the question as;

"…whether the prosecution evidence, taken at its highest, could have properly led to a conviction by a properly directed panel of assessors: R v Galbraith (1981) 73 Cr. Appeal R 124."

5.	In doing so the Court considered in general terms the right of the Attorney to challenge a verdict stating at paragraphs 20-21;

"20. It will be noted that in a case of this kind the Attorney has no general right of appeal. He can appeal only on the ground that the judge in the court below made an error of law.

"21. Where the prosecution is given the right to appeal for error of law, ‘error of law’ is normally confined to only three situations – (i) an error made in answering a conventional legal question arising from unchallenged facts, (ii) a positive factual finding unsupported by any evidence, or (iii) a failure to draw the only reasonably available interference from unchallenged primary facts: Nankivell v O’Donovan (1895) 13 NZLR 60, 61-62; Edwards (Inspector of Taxes) v Bairstow [1956] AC 36; Auckland City Council v Wotherspoon [1990] 1 NZLR 76."

6.	The Act provides for review by way of referral (section 164G) or general claim of error (section 164L). The relevant English and New Zealand statues provide for appeal by way of reservation of a question of law (Criminal Justice Act 1972 UK, Criminal Act 1961 NZ sections 379A, 380) while Australian jurisdictions employ either referral, direct review or a combination of both.

7.	The term, a question of law, was considered in Auckland City Council v Wotherspoon [1990] 1 NZLR 76. In that case Fisher J rejected a challenge based on an analysis of the credibility of witnesses. His Honour defined the issue as being confined to;

"…only one reasonable inference from unchallenged primary facts’ or ‘a positive factual finding for defence unsupported by evidence."

8.	In doing so he applied the test as stated by Lord Alverstone CJ in Stokes v Mitcheson [1902] 1 KB 857 at 864;

"…this case brings out in strong relief the distinction between a case stated after an acquittal and a case stated after a conviction. Where there has been an acquittal, it is incumbent upon the appellant to shew, upon the facts stated, that there must have been a conviction."

9.	That approach was consistent with the principles stated by Lord Radcliffe in Edwards v Bairstow [1955] 3 All ER 48 when he stated at 57-58;

"If the Case contains anything ex facie which is bad law and which bears on the determination, it is, obviously, erroneous in point of law. But…it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law, and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when, in cases such as these, many of the facts are likely to be neutral in themselves and only to take their colour from the combination of circumstances in which they are found to occur."

10.	 We will consider the import of Grounds (b) to (d) as involving the question of law of whether the assessors had acted on a view of the facts which could not reasonably be entertained and the verdict reached was not one which the assessors acting judicially could have returned.

THE CASE AS PRESENTED

11.	The complainant was a student attending the National University of Samoa. On the evening of 21 February 2009 she attended a social function held at the university. The respondent was employed as a barman to serve at the function. The complainant had been drinking red wine and beer, described by the trial Judge as a lethal combination. She became intoxicated. During the course of the evening, she walked from a fale along a corridor to the front of the building to look for her friends. The bar was set up in a tent adjacent to the fale, and the respondent was able to see persons coming and going through the area. On her version, she had become drunk and decided to go home and commenced walking from the fale. She told the Court that;

"While walking I heard someone like following me – I just turned my head and saw this person Molia he was following me and I kept on walking.

…

"On my way back from the Samoan fale I felt that someone is following me and I turned back my head and saw him, I saw him clearly.

…

"Then I just walked facing the front ignoring him – I was trying to walk towards the foyer and while walking I felt someone trying to reach me – I’m trying to go away but there is something blocking me – I felt that the person is trying to kiss me and I defended with my hands and try to walk away but I can’t because it looks like he blocking the way.
 
…

"I remembered clearly it’s like I was pulled and my back touched a wall then I stopped and he tried to kiss then because he hang on me and I tried with my hands to push away and tried to turn away to walk, but I can’t because my body get weak but my action at this time is to push and walk away but I can’t."

12.	 The complainant remembered feeling someone heavy pressing on her and recounted the events following as;

"I try to move but I couldn’t. By the time I felt (sic) down my mind was blackout.

…

At this time I felt like someone’s heavy on why I felt down then I black-out. When I recovered I heard a voice of a person like calling in a strong voice and when I open my eyes to get up, and my eyes saw a light and I felt that there is something of my body that feels pain. I felt the weight of this person over me and opened my eyes and saw Molia’s face and he’s calling a person that called I’m not sure who is this person called.

…

"I heard a person called sole and the person on top of me said, turn the light off, this time I tried to open my eyes and I felt pain all over my body and that time my mind was black-out and I was unconscious.

…

"I clearly remember its Molia because I’m looked up and see he’s facing me."

13.	She had a general but broken memory of hearing voices, seeing lights but regained her consciousness and memory when waking up in hospital.

14.	The substance of her evidence was not shaken by cross-examination which was directed at minor inconsistencies and whether she left the function with the respondent by arrangement. She conceded in cross-examination that she had not screamed or called out during the incident.

15.	The respondent did not deny that he had been in the corridor with the complainant, nor that he had sex with her. He claimed that the complainant consented to sexual intercourse and that any injuries she suffered were a result of her falling over in an intoxicated state. He told the assessors that he had been talking with the complainant in the bar area at about 11.00pm, and that they began to walk together to the Chemistry laboratory when;

"…we sat down then the other one touched the other one’s hand I was shocked coz M was leaning on my shoulder we were hugging each other we started having sex at that time.

"the right leg was down my job was lifting up the skirt coz she was wearing a dress that does down to her knees.

"we had sex, during the sex after 10 minutes I felt my penis getting hot like it was on fire at the time, when the security arrived I was off the girl because I could feel she was hot I was worried I might catch something because my penis was really hot at the time.

"he told us he tried to chase us away then I told him to please turn off the lights so could put our clothes on. It was not long before the security returned with Samuelu he chased me away but I told Samuelu I can help the girl because I knew the girl was bleeding but Samuelu said no, it was best if I leave the place where the incident occurred. Then I left and tried to find someone the only people that crossed my mind were her friends that she was with that night but when I reached the spot where her friends I only found Teli the distance between Teli and Faafetai was 10 meters I went to Faafetai coz the distance was closer I told him help was needed but the securities had chased me away but I wanted to help."

16.	 He added that when he felt his penis getting hot he had withdrawn and inserted his fingers into the girl. He concluded his evidence-in-chief with the following exchanges with counsel;

"Schuster: after you had sex that night and Samuelu chased you away how did you feel?

Wit: I felt that I wanted to help the girl because in my mind we consented to having sex so I should assist with what had happened.

Schuster: how did you know M consented to your sexual intercourse?

Wit: reason why I knew M consented to us having sex was when we were sitting down and the other one was hugging the other she was the one that laid down first which was why we had sex and she told me to remove her panty from the left leg but to leave the right leg on. That is the reason why I knew she consented to the sex that night."

Schuster: was there a time when M was unconscious during your sex?

Wit: when the securities M was conscious at the time.

Schuster: was there a time when you were having sex that M stated stop I do not want it anymore or something like that?

Wit: no"

17.	 In cross-examination he maintained that the girl was drunk but not staggering and was able to speak coherently. He put the time of the sexual encounter at approximately 11:30pm. He contradicted the evidence of a security guard that the girl was motionless and appeared unconscious while he was on top of her. In the course of cross-examination he provided detail in the following exchange;

"Chang: have you forgotten Solomona’s statement?

Wit: no, Solomona turned on the light he saw we were having sex at that time, when Solomona said hey I told him please turn off the light.

Chang: so when Solomona arrived you were on top having sexual intercourse?

Wit: yes

Chang: so is Solomona correct about that?

Wit: yes

Chang: so is Solomona correct when he stated his observation was the girl seemed dead?

Wit: no

Chang: so Solomona is wrong about that?

Wit: yes

Chang: what Solomona said was she lying still like a dead person and you were having sex?

Wit: like I stated before M was conscious when we were having sex and when the security discovered us. When the security arrived and chased me away I told them please I wanted to help M but they chased me away and they questioned M."

18.	He concluded his testimony that he had by denying taken advantage of the complainant’s condition.

19.	The prosecution called evidence of medical examinations and from other corroborative witnesses.

20.	Following the events at the university, the complainant was admitted to hospital. Examination showed that her clothing was stained with blood; there were two bruise marks, consistent with biting, on her neck, bleeding from the vagina and a laceration extending from the posterior vaginal wall to the fornix. Her injuries required surgery and the following day she underwent an operation. The Obstetrician found the irregular tear, a further muscle tear to the vaginal wall and a mucosal tear on the left labial region. The blood loss was estimated to be approximately 500ml. In his evidence Dr. Ah Koui told the assessors that a ‘very big force’ during penetration would be required to produce the observed injuries. He was unable to exclude the possibility that the tearing was consistent with digital penetration, but believed that to be unlikely. Dr. Kulkarni who conducted the operation confirmed the degree of force necessary to produce the injuries but was unable to be definite on whether they had were caused by the penis or fingers. The medical evidence was consistent with an act of rape or forceful penetration but could not itself disprove a ‘rough consensual sex’.

21.	The prosecution also called evidence from witnesses present on the night at the university. Tavita was a security officer employed by the university. He gave evidence that at about 11.00pm he had advised the complainant to stop drinking and ought to go home. At about 11.30pm he was summoned to the scene where he found the complainant lying on the floor with blood coming from underneath her legs. He carried her to the ambulance. The complainant had been found by Solomona, another security officer of the university. He gave his account in the following terms;

"I arrived at the cafeteria and the lights were off then I turned on my torch before reaching the block/key and I saw two people one lay on top of the other and I went there and turn on the lights at the time to lighten that side of the building. And I approached these people and told them this kind of thing is not allowed in the school building. And how I see it they are having sexual intercourse because the man is on top and the girl laid flat at the bottom like someone dead, and the man is moving on the girl and the man turned around and called me to turn off the lights please. I thought at the time is to turn off the lights so that they can get up and get dress because I believe in the Samoan families you can’t get up to dress while some is looking at you."

22.	 He said that the respondent continued with the act of sexual intercourse as he turned to leave and;

"when I turned off the lights, I stopped and turn to them to check what are they doing at the time. Ai approached to the area about a meter and I saw him turning sideward and looks like he’s touching her little pussy and said something about her being a woman. I told him that this kind of thing is not allowed in the campus but he still fucked her and he asked me if I want to be fucked or have sex. I stood there unsure of what to do then I thought I should better get a senior security to help me with this situation and to chase them away from the compound. Then I went and get Samuelu because Samuelu was there at the night and that’s why I went to find Samuelu."

23.	 He then contacted another officer Samuelu and that on their return;

"We got there with Samuelu and turned the torch to the exact spot then Samuelu turn the lights in the room, and found out the girl is there alone but the man who was with her is gone. Then we approaches with Samuelu to the girl for help without knowing what happen. Samuelu and I arrived at the girl and saw that she’s in a serious condition, blood is oozing covering her downunder toward the cement."

24.	 He maintained his version that rather than the respondent asking him to leave the complainant ‘with him to look after’ the respondent had asked him if he, the witness, would like to have sex with the supine woman. His account of the condition of the complainant when he returned was confirmed by Samuelu, the third security officer and a lecturer at the university.

25.	The third category of evidence supportive of the complainant’s account concerned statements made by the respondent after the event. A fellow student spoke with the respondent on a bus taking persons home from the function and that the respondent had;

"said if he knew the ambulance that came, said the ambulance came because of the girl he had sex with behind the place where the party was held.

"he told me if I knew the ambulance that came, that was the girl he had sex with behind where the party was held."

26.	He described the respondent as being happy and carefree while on the bus.

27.	The respondent was interviewed by police but declined to make a statement.

28.	 There was compelling evidence supportive of a verdict of rape. A guilty verdict would not have been unsafe or unsatisfactory. The evidence of the security officer the M "laid flat at the bottom like someone dead" was particularly telling and the more so when taken with the other evidence. But was in the end for the assessors to decide what evidence they would and would not accept. An error of fact does not constitute an error of law.

29.	The respondent gave evidence already recounted. He adduced evidence from two witnesses who had attended the function. One claimed that he had seen the complainant and respondent leaving together rather than the latter following. Another claimed to have seen them chatting amicably during the course of the evening.

30.	 The assessors were required to be satisfied beyond reasonable doubt. They were entitled to take the view that the complainant’s intoxication had affected her recall or that the injuries were a result of roughness and the non-comfortable surroundings. That course was not closed to them by the evidence.

31.	 The test is not whether this Court disagrees with the verdict of acquittal. On the evidence this Court might find that there would be no reason to impugn a guilty verdict. But the test for appellate review of an acquittal is strict and confined.

32.	 We would dismiss Grounds (b), (c) and (d) of the Notice of Appeal.

DIRECTIONS

33.	The ingredient, fundamental to the crime of rape, is that the act of sexual intercourse was without the woman’s ‘consent freely and voluntarily given’. The direction given by the learned trial Judge on consent was;

 "…in the beginning as you recall ladies & gentlemen assessors I said to you that there are two elements relevant to this charge of rape in which the prosecution must prove beyond reasonable doubt. That there was a act of sexual intercourse by the accused with M and that this sexual intercourse took place without her consent, freely and voluntarily given. As you have heard from the defendant when he gave evidence it appears that the first element of sexual intercourse is not an issue in this case. So the issue is the second element, did M so has sexual intercourse with the accused without her consent freely and voluntarily given? In other words did M give her consent freely and voluntarily to this act of sexual intercourse? And this ladies & gentlemen assessors is where a common sense in life experience would come into help decide this issue based on the evidence that we have already heard in the last two days last week. Consent is not freely and voluntarily given if a person resists the conduct in question. Consent is not freely and voluntarily given if a person would resist it but if physically prevent it from doing so. True consent can only be given by a person in a possession freely able to make a rational decision with full understanding of the situation…submission that is lack of resistance if not to be taken as consent. So in this case M clearly resisted him before she blacked out. She stand by her own admission coming in and out of consciousness and in the time that she regained consciousness she did not fully understand what was happening to her, she was confused. And the accused had continued have sexual intercourse with her while she was unconscious. Even Dr. Falahola Ah Kuoi said that by the time she saw her M although she was conscious she did not seem to understand what was happening hence her uncooperativeness. So based on that, on the evidence that was presented to you ladies and gentlemen assessors there was no way that M was in a position free able to make a rational decision with full understanding of the situation of the accused having sexual intercourse with her. And on that point prosecution submits that we have proven beyond reasonable that sexual intercourse took place without M’s consent freely and voluntarily given."

34.	The complaint is that the direction was incomplete. It is said that the direction concentrated on the resistance put up by the complainant and that of her unconscious state and that the direction failed to address the third component of a rational and sober person. There is merit in the contention. Consent freely given requires a capacity for decision making. While the influence of alcohol or like substance might not negative capacity (R v Jensen [1996] 106 CCC 3d. 430), advanced intoxication can (R v Sarson [1992] 77 CCC 3d 233, R v Daigle [1998] 127 CCC 3d 129). Consent means ‘a consent freely given by a rational and sober person so situated as to be able to form a rational opinion on the matter to which he or she consents’ (Stephen’s Digest of Criminal Law 9 Ed. 257, Criminal Law in New Zealand Garrow and Caldwell 6 Ed. 112). Historic cases suggest that the test is whether the woman was rendered insensible (Camplin (1885) 1 Cox CC 220). Consent covers a wide range of states of mind ranging from desire to reluctant acquiescence and the issue ought not be left to a jury or assessors without further direction (R v Olugboja [1982] 1 QB 320). Here the complainant might not have resisted initially because of the befuddlement of intoxication. The test is whether, when there is no physical resistance, ‘her understanding and knowledge were such that she was not in a position to decide whether to consent or resist’ (R v Howard (1966) 50 Cr. Appeal R56, R v Lang (1975) 62 Cr Appeal R 50).

35.	In Lang (supra) Lord Justice Scarman considered the question of adequacy of directions and stated:

"In our judgment the Common Serjeant fell into error in the directions and guidance which he gave to the jury on the drink issue. He gave them no assistance as to the state of her mind that had to be proved before it could be said that an apparent consent was not a real consent, and in his direction he encouraged them to think that it was necessary to determine how she came to take drink.

…

"We have no doubt that there is no special rule applicable to drink and rape. If the issue be, as here, did the woman consent? The critical question is not how she came to take the drink, but whether she understood her situation was capable of making up her mind. In HOWARD (1965) Cr. App. R. 56; [1966] 1 W.L.R. 13, the Court of Criminal Appeal had to consider the case of a girl under 16. The prosecution…must prove either that she physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.

In our view these words are general application whenever there is present some factor, be it permanent or transient, suggesting the absence of such undertaking or knowledge. The cases support this view of the law. In CAMPLIN (1845) 1 Den. 45, the judges, by a substantial majority, rejected the submission and I quote the words of Serjeant Ballantine: "that there must be an opposing will on the part of the person ravished" (p.90) and upheld the conviction in a case in which the man had made a girl of 13 "quite drunk and, when she was in a state of insensibility, took advantage of it and violated her."

36.	That approach is similar to one taken by the Canadian courts as exemplified in Jensen (supra) applying a subjective test of consent by a woman in a case of rape. In considering the adequacy of a direction on that issue Roseberg JA defined the issue in the following terms:

"It remains to determine the effect of the trial judge’s error in basing the conviction on the lack of [the woman’s] capacity. It is the respondent’s submission that the trial judge was satisfied that the complainant did not in fact consent and thus his reasons respecting capacity are surplusage. The respondent, relying upon R. v Thatcher 1987 CanLII 53 (S.C.C.), (1987) 32 C.C.C. (3d) 481 (S.C.C.), argues that there is no legally relevant distinction between a finding that the victim in fact withheld consent and a finding that the victim was incapable due to intoxication of giving her consent. Accordingly, the finding of lack of consent in fact is sufficient to sustain the verdict."

37.	 After analysis of the reasons given by the trial Judge he concluded that they were inadequate since;

"Implicit in the latter half of this statement is some doubt that she in fact said "no". Since the complainant was capable of consenting or withholding consent, if she failed to say "no" it was likely because she in fact consented. In this case the question of whether or not the complainant said "no" either had to be resolved or the trial judge had to find some alternative basis (other than lack of capacity) for finding that in fact the complainant did not consent to the sexual activity. Unfortunately, he did neither."

38.	 Although the latter case involved reasons for decision by a Judge sitting alone, the remarks are apposite, here. The learned trial Judge could have dealt with the matter in more detail. The crime of rape involves three ingredients namely:

1)penetration of the body of a woman;

2) without her consent;

3) by a person holding a particular state of mind.

39.	The last ingredient requires consideration only if, what is commonly called mistaken belief is raised on the evidence. This Court is not required to consider that matter on this appeal as argued.

40.	The second ingredient requires careful consideration and direction. Here the omission from the direction earlier recounted was remedied in a more embracing direction later given, in which the learned trial Judge told the assessors;

"If you find that she did consent, its not rape and you must find the accused not guilty. But if you find that she did not consent freely and voluntarily to the sexual act then it was rape and you must convict him. And remember ladies and gentlemen any consent must have been freely and voluntarily given."

41.	 That second direction persuades us that there had been no error of law. Counsel for the prosecution did not seek any further direction at trial. The question of what constitutes an error of law required by the Act section 164L might depend on the circumstances of a particular case and for the purposes of this case needs no further consideration.

42.	 There remains the question of the verdict. For reasons of public policy there can be no evidence of the assessors’ or jury’s deliberation (R. v Thompson (1962) 46 Cr. App. R; R. v Roads [1967] 2 Q.B. 108). In Samoa the answer to the issues raised by the appellant is provided by the terms of the Act section 100.

43.	 The appeal is dismissed.

HONOURABLE JUSTICE BARAGWANATH
HONOURABLE JUSTICE SLICER
HONOURABLE JUSTICE FISHER