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Faafua v Police [2010] WSSC 73 (18 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CA. 10/10

BETWEEN:

AUKUSITINO FAAFUA,
male of Faleula-uta and Matatufu and
FAASALA LIUVAI,
male of Faleula-uta
Appellants

AND:

POLICE
Respondent

Counsels: Mr D. Clarke for the 1st appellant
Ms L.Vaa-Tamati for the 2nd appellant
Ms L. Taimalelagi for the respondent

Ruling: 18 June 2010

RULING OF NELSON J.
(Application for bail pending appeal)

[1] Pursuant to section 164K (1) of the Criminal Procedure Act 1972 the appellants have filed notices of appeal against their convictions for rape by a panel of assessors. On 3 May 2010 the appellants were sentenced to 7 years in prison for their offending. They have consequently sought a stay of execution of that prison sentence pending hearing of their appeal pursuant to section 164C (1) of the Criminal Procedure Legislation.

[2] Firstly, section 164K (1): when queried by the court both appellants counsels advised that in their view leave of this court to the appeals is not required. They based their arguments on the fact that section 164K confers an appeal as of right following conviction:

"164K. Right of appeal against conviction or sentence – (1)

Any person convicted in the Supreme Court except on appeal from a decision of the District Court may appeal to the Court of Appeal:

(a) Against conviction; and

(b) Against the sentence passed, unless the sentence is one fixed by law.

(2) Any person convicted or sentenced in the Supreme Court on appeal from the District Court may with leave of the Court of Appeal, appeal to the Court of Appeal:

(a) Against conviction; and

(b) Against the sentence passed, unless the sentence is one fixed by law."

It is to be noted subsection (2) of that provision requires that only where proceedings originated in the District Court is leave of the Court of Appeal to an appeal necessary.

[3] I agree with counsels for the appellants leave of this court is only required in respect of civil appeals as of right in which case it is automatically granted: see Lauano v National Provident Fund [2009] WSSC 15. Section 164K (1) imposes no such requirement.

[4] Secondly, s.164C (1): the real question for me to determine is whether bail should be granted pending hearing of the appeal. Section 164C (1) provides:

"164C. Granting of bail to appellant, and custody pending appeal - (1) The Court of Appeal or the Judge who presided at the trial in the Court below may, if the Court or the Judge thinks fit, on the application of an appellant and on such terms and. subject to such conditions as the Court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody only under the conviction to which the appeal relates."

[5] The leading authority on the issue is Stehlin v Police [1993] WSCA 5 where the Court of Appeal said:

The ordinary practice in other jurisdictions, such as New Zealand, is that bail is granted after a conviction and a custodial sentence only rarely. We accept that Western Samoan circumstances are sufficiently different to justify a more liberal approach here, bearing in mind the general importance of not taking away the liberty of citizens without solid reason. But the grant of bail is still essentially a discretionary judicial decision, normally for the Judge at first instance. Matters falling to be taken into account include the likelihood or otherwise of the person convicted absconding – a matter which is usually, though not invariably judged by the seriousness of the offence; the length of the sentence; whether there appear to be any substantial grounds of appeal; and the period expected to elapse before a Court of Appeal sits again in Western Samoa. Those are not exhaustive, but they are the kind of considerations likely to arise and are to be borne in mind in reaching a decision."

[6] Dealing with these primary factors in the order that they were listed in Stehlin:

1. The likelihood of the appellants absconding: I accept the appellants age and background coupled with their compliance with pre-trial bail conditions means there is little or no flight risk. But this is to be counter-balanced by the fact that the offence they were convicted of is one of the most serious under the law for which they have received lengthy prison sentences.
   
2. Grounds of appeal: here the appellants have advanced a number of arguments: -
   
   1. that there is new evidence that a key prosecution witness gave false testimony incriminating them at the trial;
      
   2. that the verdict of the assessors was not supported by the evidence;
      
   3. that there was error of law in the trial judges summing up on the definition of "reasonable doubt";
      
   4. that there was error of law in the trial judges ruling that a prior written statement of the complainant wherein she admitted to a past sexual history was not inconsistent with her oral testimony and she could not therefore be cross examined on the matter.
      

[7] As to the first ground this is based on affidavits filed by the appellants and members of their family that the witness in question orally recanted his evidence about seeing the appellants on the road that led to the rape scene some time prior to the alleged rape. The witness however has refused to swear a recanting affidavit.

[8] The problems with this "new" evidence are as follows:

1. the witness has not filed an affidavit recanting his trial testimony;
   
2. the affidavits that exist are from members of the appellants family; and
   
3. there was independent evidence from three women gathered at the house of one of them situated beside the road in question that they saw the appellants that afternoon in the company of the complainant on the road and heading inland. A fourth woman who was visiting the village testified about accompanying the prosecution witness inland to where they found the complainant on the side of the road in a distressed condition. These witnesses all accordingly corroborated the prosecutions key witnesses testimony.
   

[9] In the absence of a recanting affidavit, I am of the view this ground has little merit. Since drafting this judgment I have been handed an affidavit dated 16 June 2010 sworn by the witness in question Filifilia Folau. It is clear any aspirations the appellants may have had that he would assist their case are given the death knell by that affidavit. In it he confirms his trial evidence and denies recanting his evidence to the appellants or members of their family.

[10] I sense that there are matters occurring behind the scenes that the court is not presently seized of and I issue this warning to those concerned: it is an offence punishable by imprisonment to attempt to pervert, obstruct or defeat the course of justice. Perjury or swearing lies on oath is also a criminal offence punishable by up to 5 years in prison. The court will not look kindly on those who interfere in its work or attempt to mislead the court. People should tread carefully or the hammer of justice will fall upon their heads.

[11] As to the second ground that the verdict is not reasonably supported by the evidence, I respectfully disagree with the appellants counsel. There was evidence from which the assessors could find rape proven beyond reasonable doubt. It is not necessarily the verdict I would have come to given two potential inconsistencies in the complainants evidence concerning the absence of semen when examined by the doctor the next day, her evidence being that both appellants ejaculated into her vagina; and the absence of scratches or bruises given the scene of the alleged offending. But these were not sufficient in my mind to raise a reasonable doubt sufficient to overturn the assessors verdict which was not in my view perverse, unreasonable or necessarily incorrect. I addressed the assessors at length on these two issues, they must be taken to have considered them and decided they could not find therein any reasonable doubt. There is therefore nothing in this ground of appeal.

[12] Neither do I accept that my direction to the assessors as to the meaning of reasonable doubt was incorrect. It is a phrase lending itself to the nuances of a Samoan translation and this ground also has little to say for it.

[13] As to error of law on prohibiting cross examination of the complainant on her past sexual history, counsels are correct that ruling was made in chambers in the absence of the assessors. The reasons for it were firstly, the alleged inconsistent statement was ambiguous. The complainant had made two written statements to the police. In the first is the following question and answer which is contained on page 4 of the statement dated 22 February 2008 which was referred to by counsels in their submissions:

"F: O le taimi muamua lea ua fai ai e seisi se mea faapea ia oe? (Is this the first time this sort of thing has happened to you?)

T: Leai, ua kupu faakele, ae ou ke le magakua kamaiki. (No, it has happened many times, but I do not remember the kids names)"

But this was one question and answer in a 5 page statement, nowhere else of which is there any reference to past sexual history.

[14] It was also in my view clear from the question asked that it did not specifically address previous sexual intercourses. It merely asked in a general way whether anyone had done "this sort of thing" to the complainant before. If I were to apply a strict interpretation to the question I concede it is arguable that the question really meant "did any one rape you before" as the previous part of the statement contains a complaint of double rape. The answer of the complainant then would be "yes I have been raped many times before" or words to that effect. But there was no evidence to support that this was in fact what she said to the police or that there had been any such incidents. The question could equally also have been by the use of the words "se mea faapea" or "this sort of thing" referring to previous instances of sexual activity involving boys and not necessarily sexual intercourse. There is also no mention of anything of this nature in the second statement that she subsequently gave to the police. Hence I formed the view that there was some ambiguity in the question and answer and it was not necessarily a previous inconsistent statement.

[15] In any event quite apart from all that, the appellants defence was not lack of consent but was revealed by counsel at that meeting to be alibi evidence and therefore the complainants sexual past was irrelevant. Questions as to previous sexual history would only be allowable at the discretion of the trial judge if it has some direct bearing on the facts in issue and the complainants tendency or otherwise to loose moral virtue was not put into issue by the appellants. And they cannot run alternative defences of alibi, but if we were there then it was consensual intercourse. There was therefore no legal error in the prohibition that was made.

[16] From the perspective of grounds of appeal, the appellants are not on solid ground. As to how long will elapse before an appeal is heard, we have been advised by the Ministry of Justice and Courts Administration the Court of Appeal will sit again as per normal in September this year. That is approximately three months away. The delay between now and then will not be as lengthy as it was previously when the appellate court only sat in Samoa once a year. In Stehlin itself a delay of six months was not considered unreasonable.

[17] One further factor is relevant. In citing Police v Tuise [2004] WSSC 17 the appellants seem to be arguing that bail awaiting an appeal is the norm. This is not the case. I stand to be corrected by statistics produced but in my experience bail is usually not granted in capital cases. The New Zealand position noted in Stehlin of rarely being granted is also the position in this jurisdiction which not surprisingly follows New Zealand. Tuise was also a special case on its facts where my brother judge was obviously convinced the appeal had merit and would succeed, an influential factor in his decision to grant bail. That is not the case here.

For these reasons, the application by the appellants for bail is refused

JUSTICE NELSON