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Sailasa v Attorney General [2018] WSCA 5 (13 April 2018)

THE COURT OF APPEAL OF SAMOA
Sailasa v Attorney General [2018] WSCA 5

PUBLICATION OF THE NAME OF THE COMPLAINANT AND OF ANY DETAILS CAPABLE OF LEADING TO HER INDENTIFICATION IS PROHIBITED PURSUANT TO s.56(1) (b) OF THE CRIMINAL PROCEDURE ACT 2016

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

CA 12/17

BETWEEN:

TAVUI SAILASA
Appellant

AND:

ATTORNEY GENERAL
Respondent

Coram:
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Hansen

Counsel:
P Mulitalo for appellant
L Sio for respondent

Hearing: 09 April 2018
Judgment: 13 April 2018

JUDGMENT OF THE COURT

Introduction

1. Following a trial and convictions upon charges of sexual offending complainants sometimes seek to retract the evidence they provided at trial. Such a development requires an appellate court to reach an anxious decision concerning whether the retraction may be genuine and the convictions therefore unsafe, or whether its emergence is the result of other influences. This is such a case.
2. The appellant was found guilty by the verdict of assessors on charges of rape, unlawful sexual connection and indecent assault against a girl then aged 13 years. On 10 November 2017 he was sentenced to 13 years imprisonment. This appeal against conviction is founded solely on the ground that the complainant’s evidence at trial was, or may have been, untruthful and that her post-trial affidavit evidence, supported by that of her mother, dictates that the convictions be quashed.

Some context:

3. At the relevant time the complainant (hereafter referred to as “C”) and her younger sister lived in a village on Savaii with the appellant and his wife (Tafesia). Other members of her family, including her mother (Elenoa), lived in another village some distance away. This arrangement had been in place for some years following the death of C’s maternal grandfather. The appellant and the deceased grandfather were brothers; and the revised living arrangement arose when the appellant, and his wife, offered to provide care in lieu of that previously provided by the deceased brother. C called the appellant “uncle”, but in reality he is her mother’s uncle.
4. The offending occurred in December 2016 a few days before Christmas. On the morning of the particular day the appellant’s wife Tafesia and others went to the hospital to visit another family member. This left the appellant, who was about 57 years of age, C, an 18 year teenage son of the appellant named Atapana and two young children at home. The events that gave rise to the charges occurred outside in the vicinity of a detached kitchen used to toast cocoa beans from a nearby plantation. The accused’s son was temporarily absent at the crucial time and the young children were asleep or playing a short distance away from one house.

The trial evidence:

5. C was told by the appellant to fetch firewood for the open oven in the detached kitchen. She did so, and a short time later he returned from the plantation and approached her. The appellant told her to take her pants down. She refused, but he kissed her on the mouth causing C to cry. He removed some of C’s clothing and sucked her breasts. Following this the appellant penetrated the complainant with his penis.
6. Soon after the appellant desisted and in C’s words “he went down” as if to avoid being seen. A rock had hit the corrugated iron on the side of the detached kitchen. Kalifa, a nephew and neighbour of the appellant, was seen standing beneath a fau tree watching from a short distance away. He became a Police witness. His presence and action in throwing the rock, brought matters to an end.
7. C complained to both Atapana, and to Tafesia upon her return from the hospital, but these approaches were not well received. Later in the day Kalifa saw C on her way to the shop. He told her to “get ready” as he would arrange for C and her sister to return to their mother. He had already called Elenoa to check if the two sisters could return home.
8. Kalifa at the trial gave evidence of his distant observation of the sexual aspects which was broadly in accord with C’s account. He spoke of the kissing and indecent touching, but not the rape. After he threw the rock he said that the accused “saw me, smiled and walked away.” The next day Kalifa went to the accused’s house and told Tafesia he was there to return the children to their parents. Tafesia did not allow this because her husband was not present. Kalifa then said if the children were not returned he would go to the police. Later that day he saw an adult son of the accused, and the son’s wife, uplifting the two girls to return them to their home.
9. Nonetheless Kalifa reported his concerns to the church that the accused attended and to the village council. On the Sunday of the following weekend he received a visit from the accused who apologised and requested that the matter not be taken to the village council and that Kalifa speak on his behalf to the church elders. Kalifa indicated it was too late. In response to a question from Nelson J (the trial judge), Kalifa said that he did not report the matter to the police and that he was “shocked” when first approached and interviewed as a witness. He regarded the matter as closed on account of a village punishment already implemented.
10. The accused in giving evidence described his activities on the morning in terms similar to C, save for a denial that any sexual acts occurred. He also agreed that Kalifa threw a rock, but continued that he immediately approached him and Kalifa dropped his lavalava revealed an erect penis, asked the accused to suck his penis and said he would perform a similar act in return. The accused said he remonstrated, saying words to the effect you are my sister’s son (nephew), this is stupid and I am very disappointed, before he walked away. In relation to a brief police interview the appellant said he exercised his right to silence because he wished to see a doctor’s report before responding to the allegations, with which he was not happy.
11. Atapana and his mother Tafesia, also gave evidence. Atapana said he saw nothing untoward on the relevant morning nor was he aware of a rock being thrown and C made no complaint to him. Tafesia said that following her return from hospital C was doing her chores happily, and made no complaint to her. She only became aware of a problem when Kalifa spoke to her about removal of the children. But, she held reservations about his character; and indicated that she did not accept the allegations and considered there was someone who was behind all this.

The approach to retractions:

12. Over time a number of principles have emerged from cases of this kind. Those of present relevance are:
    1. The mere fact that a complainant or witness retracts does not necessarily make his or her trial testimony unreliable or mean there must be a retrial.^[1]
    2. The critical enquiry is why the complainant has recanted. Courts must be alive to human frailties in this area. As was said in R v Flower:^[2]

“Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness’s state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time.”

100. Where an appeal is brought on the grounds of post-trial retraction the appeal court has to grapple with “potentially difficult factual issues... to appraise the effect of evidence which had been or was to be given”.[3] This will usually require the court to review the evidence given at trial, and the subsequent affidavits, and any oral evidence before them.[4]

4. If the court is satisfied that the retraction is untrue, the appeal will be dismissed. If there is a doubt, a retrial will be required. In cases where the court concludes a complainant’s retraction is true an acquittal may be entered.^[5]

The post-trial evidence:

13. Three affidavits were filed in support of the conviction appeal. The first dated 30 October 2017 was before Nelson J at sentencing on 10 November. However, he declined to consider it because the copy he was given had not been sworn by the deponent Elenoa, C’s mother. It asserted that pressure and threats from the police and Kalifa drove C to give false evidence against the appellant. Curiously the affidavit included two statements:

“Despite what happened, Tavui came and apologised due to our involvement as well as our family, and ...we have forgiven my uncle Tavui and now our family is in good terms again.”

Elenoa swore a second affidavit on 25 November 2017. It contained similar assertions of pressure and threats, and also traversed concerns about only an unsworn copy of her previous affidavit being placed before the Judge at sentencing.

14. More significant is the affidavit of C. She deposed that threats from Kalifa to beat her and contact the Samoan Victims Support Group if she did not provide evidence against the appellant caused her to give false evidence at trial. In addition she was ill-treated by police when brought to Apia for interview in that her mother did not accompany her, she was not provided drink or food and was generally treated like a prisoner. Likewise, at trial she was left waiting without food or water and then threatened by the prosecuting lawyer with imprisonment if she did not say what the police wanted. C also declared that all the allegations against the accused were untrue; there was no rape or any other sexual act. Kalifa had “single handedly pushed (her) and instructed (her) on what to say.” Finally, the affidavit contained an apology to the Judge, the Court and “especially” the appellant.
15. The deponents, including five on behalf of the police, were cross-examined. This was of significant value to our evaluation of the affidavit evidence and to our conclusions. We shall explain why shortly.
16. Kalifa’s affidavit asserted that he did not threaten C to fabricate evidence of rape against the appellant. Nor did he make a complaint to the police or Victim Support. After C moved home before Christmas 2016, he only saw her at the time of the initial interviews in February 2017 and several months later at the trial.
17. A female constable interviewed C on 2 February 2017. She accompanied other officers to uplift C and her mother, and conducted the interview in Elenoa’s presence. The investigating officer was also in the room sitting at a desk but within earshot. The interviewer noted that C looked to her mother before answering questions and only responded when urged by her mother to do so. When the two page statement was completed both C and Elenoa signed it by writing their first name. The investigating officer agreed with the interviewer’s account, including an assessment that C “looked afraid of her mother and every time she says something she would firstly look at her mother.” At the conclusion of the interview C told him “e faafefe a’u e lo’u tina, e makamaka i ai a’u pe a faamaogia le makaupu lea.” (my mother threatened me you will see what will happen to you if this is proven.) He then spoke to Elenoa telling her to stay away from the appellant and not to tamper with her daughter.
18. Nine days before the trial C and her mother attended a briefing at the Attorney General’s office in Apia. A law clerk provided a copy of C’s statement to Elenoa to read to her daughter. When the briefing commenced, however, Elenoa complained that the statement was not true. The offending described did not occur. Elenoa added that nor was she present when the evidential interview was conducted. The law clerk turned to C and asked if this was true. There was no reply. After discussing these developments with the investigating officer by telephone, the law clerk interviewed C with her mother out of the room. C then indicated that the statement was true, the incident did happen.
19. The trial prosecutor from the Attorney General’s office deposed that he was advised by the law clerk of Elenoa’s assertion that her daughter’s police statement was false. He arranged to speak to Elenoa. He explained that influencing a witness concerning their evidence was inappropriate and potentially an offence. He then spoke to the complainant alone. She confirmed that the sexual acts had occurred. In Court she provided evidence to that effect, but during a recess she told the prosecutor that her mother had asked her not to tell what had happened when giving evidence. He spoke again to Elenoa informing her this was her final warning.

Assessment of the retraction:

20. We are in no doubt that the retraction was the product of external influences and that it is untrue. The following three factors indicate the basis for this conclusion:
    1. As required, we have assessed the complainant’s evidence at trial alongside that she gave before us. C’s trial evidence was detailed, and persuasive, despite some inevitable contextual details upon which she was shaken. When, at the conclusion of a lengthy cross examination, defence counsel put the key elements of the evidence of denial that the accused would later provide, C’s responses were emphatic. She responded “he did that to me” with regard to the rape; and said simply “wrong” in response to further similar questions.
    2. By contrast the evidence C gave before this Court was unconvincing. Sadly, we were left with the impression that she was saying whatever was required to exculpate the appellant. And some of her answers were plainly false, for example that her mother did not attend the initial police interview in February 2017 and neither of them signed the police statement. It was an annexure to the interviewer’s affidavit, and the two signatures were plain to see.
    100. The affidavit evidence of the various police witnesses was unshaken in cross-examination. This body of evidence from multiple sources was compelling. It established to our satisfaction that throughout the investigation and trial process Elenoa was seeking to influence her daughter not to provide evidence against a sa’o (paramount chief) of their family. Ultimately, we conclude, C relented and acquiesced in an endeavour to retract her trial evidence.
21. Our rejection of C’s retraction evidence implies no criticism of her personally. Despite adult influences to the contrary, she was brave and truthful in giving evidence in the Supreme Court. That she subsequently provided a false retraction affidavit was unquestionably the result of family pressure to which she belatedly succumbed. This is both sad and very concerning. The innocence and welfare of a young girl has effectively been sacrificed in a foolish endeavour to protect a man whose duty it was to protect, not molest, her.

Result

22. The retraction evidence is rejected. The appeal against conviction is dismissed.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HANSEN

^[1] R v Flower [1996] 1 QB 146 (Crim App) at 150.
^[2] At 150
^[3] R v Pendleton [2001] UKHL 66, [2002] 1 WLR 72 at 77.
^[4] R v Baker, CA 37/03, 5 August 2003.
^[5] R v Barr [1973] 2 NZLR 95 (CA) at 98.