IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LEALOFI OTO, 
male of Saanapu and Vailuutai
Accused

Counsels: Mr K. Koria for the prosecution
Mr P. Fepuleai for the accused

Hearing: 23 March 2009
Decision: 27 March 2009

DECISION OF NELSON J.

The background to these proceedings is correctly summarized in the written submissions of the prosecution. The defendant was charged with indecent assault and attempted rape and elected trial by assessors as is his right under section 87 of the Criminal Procedure Act 1972. After a two day trial the panel of assessors returned a verdict of guilty on both charges. I was advised by the foreman that their verdict was unanimous. 

When the verdict was announced I indicated agreement with their finding on the indecent assault charge but expressed reservations about the attempted rape verdict. I here had in mind section 100 of the Criminal Procedure Act and I accordingly adjourned the matter to hear submissions from counsels. I have now had the benefit of those submissions and have had the opportunity to consider them. 

To appreciate the full flavour of section 100 of the Criminal Procedure Act, one must also refer to the preceding section, section 99. That section provides:

"On a trial with assessors no person shall be convicted of any offence unless the conviction is concurred in by not less than three of the assessors where there are four of them and by not less than four of the assessors where there are five of them."

Section 100 provides:

"If the presiding judge is of the opinion that the defendant should not be convicted or if less than three out of four or four out of five as the case may be of the assessors concur in his conviction the defendant shall be acquitted." 

Section 100 has a number of unique features: 

1.	Unlike many of our statutory provisions, it is not based on or derived from a New Zealand equivalent provision. 

2.	It does not provide for the corresponding scenario namely where the assessors return a verdict of not guilty. It only applies to where the verdict given by the assessors is guilty from which verdict a conviction would ordinarily follow. This probably has its roots in the common law tradition and belief that in our system of justice it is better to set nine guilty men free than it is to convict one innocent man. Such tradition also underlies the fundamental principle that the prosecution must prove guilt beyond any reasonable doubt before a person can be convicted.

3.	The terms of the section are clear. The presiding judge must be of the opinion and one must accept that Parliament deliberately chose the word "opinion" for the provision, that the defendant should not be convicted.

4.	 The section provides that in such a case the defendant shall be acquitted. In other words the course of action the judge must take is mandatory, the defendant must be acquitted not retried by a different panel of assessors but acquitted altogether.

I have no doubt the purpose of such a provision is to guard against guilty verdicts issued by assessors which are not supported by the evidence or which fail to reach the necessary standard of proof required by law. The provision is in some respects a safety valve reserved to the presiding judicial officer who is not a layman like the ordinary assessor but a trained qualified practitioner of the law, in many cases with years of experience and knowledge of criminal cases and evidentiary matters to substitute his view for that of a lay panel of assessors. The exercise however should not be undertaken lightly but where it is necessary the judge's duty is to intervene to prevent a miscarriage of justice.

Prosecution counsel has submitted that the real meaning of the provision is the judge can only overturn a verdict that is unreasonable. This seems another way of saying he can only reverse a verdict if a reasonable jury properly directed would not have reached such a verdict in the first place. Various New Zealand authorities have been cited by counsel in particular the New Zealand Court of Appeal in R v Ramage [1985] 1 NZLR 392. That this is the position in New Zealand is not questioned and the New Zealand situation is governed by section 385(1) of the Crimes Act 1961 (NZ). But that section imposes a different test to section 100 of the Criminal Procedure Act. In fact section 385(1) is also part of Samoan law, its equivalent is section 164N of the Criminal Procedure Act 1972. The tests to be applied under section 164N are probably those propounded by cases such as R v Ramage as I see no reason why our Court of Appeal would not apply those principles in an appeal against conviction. But unlike New Zealand this country also has section 100 of the Criminal Procedure Act. 

That provides for reversing a verdict if the judge is of the opinion the defendant should not be convicted. A judge would only hold such an opinion if at the end of all the evidence the prosecution have not proven their case beyond reasonable doubt. This can arise where the verdict is not supported by the evidence or where there is some evidence but the quality of the evidence is such that it falls short of the beyond reasonable doubt standard. The test under s.100 would therefore seem to be wider than that applicable under section 164N and in my view was deliberately made that way by Parliament in enacting what is as noted earlier a statutory provision unique to this country.

I turn now to the facts of the case. I do not propose to again exhaustively review them. That was done in the closing addresses of counsel and in my summing up to the assessors. In that I pointed out the evidence for the prosecution and the evidence for the defence and the arguments of both sides but I took care not to highlight any particular matter in case it unduly influenced the assessors' consideration of the evidence and arguments. However in my own mind I had real difficulties with the complainant's evidence in several areas. 

Firstly were the inconsistencies between her evidence in court and her statement made to the police one week post the incident. These inconsistencies were not all in relation to minor matters but involved some major matters. For example in her statement she says she formulated an intent to run away when she was woken up that night by the defendant. In her evidence in court she stated that she formulated it before she went to bed that night and in fact she had packed her school uniform and school books into a bag in preparation to running away. There is no mention of any such packing of a bag in her police statement. As to the events themselves concerning the attempted rape charge which the prosecution argued showed evidence of intent to rape and amounted to actions giving effect to such intention, I note the following: there is no mention in her police statement of the defendant smoking just before the attempted rape began; there is no mention in her police statement of the defendant turning off the light and locking the bedroom door immediately prior to the alleged attempted rape acts; there is no mention in her statement of her court evidence that the defendant was standing on the concrete floor pushing her down on to the bed; there is no mention in her police statement of her court evidence that she had one leg on the floor and one leg on the bed when her i.e. lavalava fell off thus enabling the defendant to digitally penetrate her private part; as for the sequence of events there are differences in her evidence and what is contained in her police statement. In her court evidence she said the defendant covered her mouth, she called out to Tupulua for help, Tupulua rattled the door and digital penetration then occurred. In her statement she said digital penetration occurred first then she yelled to Tupulua for help at that point the defendant covered her mouth and then Tupulua rattled the door. The latter is a more credible sequence of events.

These are some of the difficulties I had with the complainant and her evidence. I have seen her give her evidence and had the opportunity to observe her demeanour and how she presented that evidence and because the crucial evidence in this case was clearly the complainants, I paid particular attention to what she said and how she said it. My impression was she embellished her evidence and added things over and above what is contained in her statement given to the police one week after this incident occurred. I believe the police statement more truly reflects the events of the evening. She was therefore not one hundred percent believable in my mind on the attempt to rape although I accepted her evidence on the issue of indecent assault because her court evidence and her police statement were entirely consistent with each other, the unwanted touches of her breast, the rubbing of her upper legs, etc. 

There were two other areas of concern regarding the prosecution evidence. Firstly, the evidence of complaint by the complainant to her mother immediately after the incident occurred. The complainant's police statement said that her complaint to her mother was the defendant "touched her". The complainant's court evidence was that she told her mother what had happened to her but she did not go into detail as to what she told her mother. The mother's evidence was that her daughter told her the defendant "tried for her" and that the defendant "touched her". These are matters that all need to be assessed when considering the credibility of the witnesses but significantly both the complainant and the mother agree that there was no complaint made by the complainant or mention made by her of an attempt to rape her. 

As defence counsel points out this shows that the complainant who had full knowledge of what was happening to her equated the defendants actions with an indecent assault rather than an attempt to rape her. Because one would expect that if in fact what was happening was an attempt to rape that is exactly what she would be complaining about to her mother.

The other area of concern was the evidence of the so called apology. I have reviewed the evidence again and it reinforces my impression at the time and in this I agree with defence counsel, that the proper interpretation of what the defendant said was not necessarily an admission of an attempt to rape. It was an admission of improper behaviour but it was vague as to the nature of the improper behaviour being apologized for. It cannot to be taken to be any or a clear admission of an attempt to rape the complainant. By virtue of the language used by the defendant it lends itself more readily to being an admission of an indecent assault of the complainant, nothing more.

I invited the assessors to stand back and look at the evidence as a whole. Following that approach it seems to me the proper interpretation of the events of this evening is this was a clumsy attempt at seduction gone wrong. That explains the $50 passed to the complainant at the beginning, the massaging of the defendant, his massaging of the complainants legs and placing his hands on various parts of her body but at what point that intent crossed over and became an intent to forcefully and without the complainants consent rape her was far from clear. It certainly was not clear beyond reasonable doubt. I accept that while there is some evidence to support the mens rea of the charge it fails in my view to reach the required standard. I have doubts not only in respect of the mens rea but also the actus reas aspect and the so called attempts by the defendant and actions carried out by him to give effect to his intention. The law requires that the defendant be given the benefit of any reasonable doubt, I do so accordingly, this defendant should not be convicted of attempted rape and pursuant to section 100 of the Criminal Procedure Act I direct that he be acquitted on that charge. The assessors verdict in respect of the indecent assault charge however stands as noted previously.

The previous practice of this court in my experience when invoking its section 100 jurisdiction was not to give reasons for its decision. I believe the future practice should be as with any decision of a judicial nature for the presiding judge to give an explanation where possible for his decision. Accordingly these reasons that I have read out will be transcribed and copies will be distributed to counsels in due course.

E tusa ai ma le faaiuga a le faamasinoga o lea ua faataatia ese le faaiuga a le vasega a faatonu i se tasi o moliaga peitai o lea e tumau lava le moliaga o le fa’ao’olima mataga. O le faaiuga ole mataupu lena o lea ua tapa ai se lipoti a le Ofisa Faanofovaavaaia, o lona uiga e tatau ona vave faafesootai e lau susuga le Ofisa Faanofovaavaaia mo le lipoti lea ona e fesoasoani tele ia oe. O le faaiuga o le a tolopo mo le ta o le 2.00 i le aoauli aso 20 Aperila 2009, e lau ai le faaiuga i le aso lena. O le tulaga i le tatalaina o oe i tua e tumau pea mo le taimi lenei, afai o lena e te saini faamolemole faaauau lau saini.

JUSTICE NELSON