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Police v K [2017] WSSC 73 (4 May 2017)

SUPREME COURT OF SAMOA
Police v K [2017] WSSC 73

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

K, male defendant.
First Defendant

AND:

F, female defendant.
Second Defendant

Counsel:
L Sio for prosecution
C Vaai for first defendant
D Roma for second defendant

Hearing: 19 and 20 April 2017

Submissions: 01 May 2017

Decision: 04 May 2017

ORAL DECISION OF NELSON J

1. K has pleaded not guilty to two charges: firstly S3763/15 alleging that between 01 September and 30 October 2014, he did indecently assault the complainant a 17 year old female. Secondly S3707/15 alleging that at the same place same date he did attempt to sexually violate the complainant.
2. The second defendant is charged again same date same place with doing an act for the purpose of aiding the first defendant to commit attempted sexual violation. The complainant is the second defendants biological daughter, first defendant is a friend of the second defendant.
3. To protect the identity of the young complainant her name and all other details including the names of both defendants are permanently suppressed from publication. That includes on any form of social media. These proceedings are to be reported as Police v K and F. Names of witnesses also suppressed.
4. The complainants evidence, largely confirmed by the evidence of her younger sister P and her step-aunt and neighbour A and the complainants older friend from church V, was that she knew the first defendant from her village and Church autalavou. However she denied having a relationship or “faigauo” with him. She was not in the habit of conversing with him and on page 13 of her evidence she says as follows:

“Fesili Le tamaloa lea o K lea e faasau agai ai lou mau, e te iloa lena tamaloa?

Tali O le tamaloa e faigaluega i uta i (village) ma ma te aulotu foi.

Fesili Fea lea tou te aulotu ai?

Tali I (village) lava i le lotu Metotisi.

Fesili Ae le’i tupu le mea lea lea na alu atu ai i le po ia oe na e iloa a K?

Tali Na ou iloa a K i le lotu ae ou te le iloa tele le tamaloa lea.”

5. In relation to the incident before the court the complainants evidence was that late one night before Lotu Tamaiti 2014 when she was still 15 years of age, she was sleeping with her sister P in their mosquito net at their house. She was awoken by her mother “fai mai oute sau i le feau a le tamaloa lea o K.” She obeyed and on page 5 of her evidence she says:

“Sa ou sau lae saofai K i le nofoa. Sa ou sau ou saofai ile nofoa lava lea e nofo ai K, ae fai mai lou tina ou te soso i autafa o K. Sa ou faapea poo le a le nei mea o le a tupu i le po nei.”

6. Again she obeyed her mother and moved closer to K and the following is her evidence on pages 6 and 7 of the transcript:

“Fesili O le a le ituaiga nofoa lea e te alu atu lea e nofo ai K?

Tali O le nofoa umi laupapa.

Fesili Ma i le taimi lea na e alu atu ai o gafea o le nofoa lea na e alu atu nofo ai a o fea o nofo mai ai K?

Tali Na ou alu atu ou nofo i leisi itu o le nofoa a o leisi pito o le nofoa lava lea e tasi lae nofo ai K.

Fesili A o fea sa nofo ai lou tina?

Tali Lae tu lou tina.

Fesili O le a le tala a lou tina lea na e ta’ua maia lea na fai atu i le taimi lea na e nofo ai i le nofoa?

Tali Fai mai ou te soso i autafa o K.

Fesili O le a la lau gaioiga ina ua uma ona fai lona tala na ia oe?

Tali Sa ou soso i autafa o K.

Fesili E mafai ona e tago e faamatala mai o le a le latalata o le uiga o lou tala lea na e soso i autafa o K? O le a le mamao o le mea lea na e nofo ai ma le mea lea na nofo ai K ina ua e soso ai?

Tali E leai lava se mamao le mea lea ou te nofo ai ma le mea lea nofo ai K lea na ou soso ai i autafa.

Fesili Na e soso i autafa o K ona a laia?

Tali Ae fai mai le tala o lo’u tina ia maua ma K ma te o i tua i le fale ‘ai.

Fesili Ona a laia?

Tali Na ou muamua i tua i le fale ‘ai a o le taimi na lae talanoa K ma lou tina i luma.

Fesili E te iloa poo le a le mafuaaga ua ala ai na fai atu lua te o i tua i le fale ‘ai i le taimi na, na e iloa?

Tali E leai.

Tali E le’i umi na talanoa lou tina ma K ae alu atu loa K i le mea o loo ou iai.

Fesili E alu atu K o a ou mea na e fai?

Tali E alu atu K lae ou te saofai i luga o le nofoa.

Fesili O le a le ituaiga nofoa lea na e nofo ai?

Tali O le nofoa umi laupapa o le laulau ‘ai.

Fesili Ia, faaauau lou mau, alu atu loa K...

Tali Alu atu loa K i le mea o loo ou nofo ai, alu atu faakisi ia te a’u.

Fesili O le a le uiga o lau tala? O le a le ituaiga gaioiga (name)?

Tali Na alu atu loa kisi ia te a’u.

Fesili O fea o oe na kisi atu ai?

Tali Lo’u guku

Fesili Ia faaaauau.

Tali Na kisi atu ia te a’u, na ia fosi foi le tatalaina o lou ofu.

Fesili I le taimi lea na faakisi ai oe o lea e te ta’ua o lea na e nofo, ae a K?

Tali Na faakisi a’u e K o lea ou te nofo i le nofoa, a o lae tu K i le taimi lea.

Fesili E mafai ona e tago e faamatala mai o le a lou ofu lea na ta’ua lea na fosiina le tatala?

Tali O lo’u mitiafu.

Fesili E mafai ona e tago e faamatala auiliili mai pe faafefea na fosiina le tatalaina o lou mitiafu e tusa ai ma lau molimau?

Tali I le taimi lea na kisi ai K ia te a’u, na ia tatalaina lou ofu a o lea ou te saofai i luga o le nofoa. Na taumafai K e tatala lou mitiafu a o lea ou te taumafai a’u ia e aua nei matala lo’u mitiafu.”

7. The complainant went on to describe how the first defendant eventually succeeded in pulling up her sleeveless tanktop and the two of them fell onto the floor. The defendant was able to remove her bra and her evidence continues on pages 8 and 9:

“Tali Na tago K ma tatala le pine o lo’u papa ae le mafai e K ona lea ou te tafiti solo ou te le manao e tatala. Na iu lava ina tago K ma momotu le lima o lo’u papa.

Fesili Fea le mea tu ai le pine o lou papa lea e te ta’ua lea na taumafai K e tatala ae le mafai?

Tali Pine e faamau ai.

Fesili Fea le mea e tu ai? Tu i luma pe tu i tua?

Tali Tu i tua.

Fesili O le a le itu o le lima o lou papa lea e te ta’ua lea na momotu e K?

Tali O le lima lea tu ai le papa.

Fesili O le a le itu na?

Tali Le itu lea.

Fesili Itu taumatau?

Tali O lea lava.

Fesili Ia faaauau lau mau.

Tali Na uma loa ona momotu e K le lima o lo’u papa nofo loa ma ‘ai o’u susu.

Fesili O le a le uiga o lou tala na nofo ‘ai ou susu, o le a le gaioiga na fai?

Tali Na nofo ‘ai o’u susu.

Fesili Ia faaauau lau mau.

Tali Na nofo ‘ai o’u susu a o le taimi lea la ou te tagi ma valaau atu i lo’u tina.

Fesili Ia?

Tali Na valaau atu i lo’u tina ou te ofo i lona le alofa o a’u o lona tama ae le ago mai lava lou tina ia te a’u.

Fesili E te valaau atu la o e iloa atu lou tina?

Tali Ou te tilotilo atu lava o lae saofai i luga o le nofoa ma omiomi lona telefoni.

Fesili Le taimi la lea e te valaau i lou tina o a gaioiga o K o loo fai?

Tali O lea e ‘ai o’u susu ma taumafai e tatala lo’u ofuae.

Fesili O le a le gaioiga na le e te ta’ua na taumafai e tatala lou ofuae, e faafefea?

Tali Lea e taoto i luga o a’u ma ‘ai o’u susu a o le taimi fo’i lea lea e nofo ma tatala lou ofuae.

Fesili Ia faaauau lou mau.

Tali Na uma loa na ou valaau i lou tina e leai lava se kea mai o lo’u tina o loo nofo lava i luga o le nofoa ma omiomi lana telefoni. A o lae e fai lava gaioiga a K ia te a’u o le ‘aiga lea o o’u susu ma taumafai e tatala lou ofuae.”

8. According to the complainant it took some time for her mother to respond but eventually she did. She came to the fale ‘ai and told the first defendant “ua lava lea”. The first defendant immediately ceased his actions and was escorted out of the house by the mother. The complainant returned crying and distressed to the mosquito net she shared with her sister. Soon after her mother came back inside, went into her mosquito net without saying anything to her.
9. The complainant said the next time she saw the first defendant was a few weeks later on a Friday. She had been staying at another part of their village with her step-grandparents from Australia who were visiting when her mother came and fetched her. Ostensibly to go to Fagalii to visit an aunty. At Savalalo Market while waiting for the Fagalii bus the first defendant turned up and in her words on page 11 of the transcript:

“Tali Sa matou faatali pasi ae te’i ua fai mai lo’u tina ma te o i lalo o niu na e autafa o le maketi. Sa matou o atu iina ou vaai atu ia K la e tutu i lalo o le niu.

Fesili Ia.

Tali Sa matou saofafai i lalo o le niu ae tago K ave le tupe i lo’u tina.

Fesili E te iloa pe fia le tupe na ave?

Tali $100.

Fesili Leai se tala na fai i le taimi lea na tuu ai le tupe i lou tina?

Tali E leai.

Fesili Ia.

Tali Sa tuu e K le tupe i lo’u tina ae fai mai loa le tala a K e ma te o i Savaii.

Fesili O ai lae fai iai?

Tali Lae fai mai ia te a’u ma lo’u tina.

Fesili Ia.

Tali Ou te le’i manao ou te alu i Savaii.

Fesili Ia.

Tali Ae la e finau mai lava lou tina ma te o ma K i Savaii.

Fesili Na a laia?

Tali Ae sa ou fai i lo’u tina pe laa ou alu la i Savaii a o ai o le a vaai o’u tei.

Fesili Ia.

Tali Ae o lae lava e finau mai lo’u tina. Na i’u lava ina toe tuu e K leisi tupe i lo’u tina.

Fesili E fia le tupe a K na tu’u i lou tina?

Tali $50.

Fesili E iai se tala na fai ina ua tuu le tupe lea i lou tina?

Tali E leai.

Fesili Uma loa ona toe tuu le tupe i lou tina ona a laia? O le a leisi mea na tupu?

Tali Na uma loa ona tuu le tupe na i lo’u tina ae sau loa le Pasi o Vaa lea na alu ai K.

Fesili Ia.

Tali Na alu loa K e alu i le pasi.

Fesili Alu laia o K ona a laia?

Tali Na ou fai i lo’u tina pe mau te o i Fagalii i le mea lea na manao ou te sau ai.

Fesili Ae fai mai e a?

Tali Fai mai lo’u tina e leai o lea laa matou o i le fale.”

10. The day after the incident occurred at the complainants home, the complainant told her step-aunt A about what had happened. She said she went with her siblings to tafao at her house and was questioned by her aunty about what happened. Initially she lied to her aunty and told her nothing happened but when pressed she finally divulged the events. On page 14 of the transcript:

“Tali Le taeao lea na sosoo ai sa matou o matou te tafafao ma ou tei ae matou o atu ae fesiligia a’u e A.

Fesili Fai mai e a?

Tali Fai mai poo ai le tamaloa lea na alu atu i le matou fale.

Fesili Ia?

Tali Sa ou pepelo iai e leai se tamaloa sa alu atu i le matou fale.

Fesili Ona a laia?

Tali Ae fai mai lava ou te tago e ta’u atu aua na mulimuli mai lona toalua i tua o le tamaloa lea o K.

Fesili Ia?

Tali Lea la sa ou taumafai e pepelo ae sa ou tautala sa’o loa ia A i le mea lea na tupu.

Fesili E iai se mea na tupu ina ua uma ona faamatala ia A?

Tali Sa ou faamatalaina ia A ae o le taimi lava lena ou te le iloa poo fea na alu ai lou tina. Na alu atu loa lou tina i le aso lava lena ae fai iai A poo le a lona mea ua fai ia te a’u ae leai ma se tautala o lo’u tina,na pepelo fo’i lo’u tina ia A, e leai se mea na tupu. Ae sa matou tapena loa matou te o i le matou fale ae ou alu atu i le matou fale ae nofo lo’u tina ma fasi a’u.

Fesili E iai se mafuaaga ua fasi ai oe?

Tali Na fasi a’u ma ana tala na fai mai, ou te ofo i so’u le alofa ia te ia i lo’u alu faamatala solo i tagata.

Fesili Faafefea na fasi oe?

Tali Na faaoga ona lima e tutu’i ai a’u.”

11. A in her evidence to the court confirmed she was told what happened by P the complainants younger sister. At page 32 of her evidence she says:

“Ou te tautino atu lava e a’u ile moni ma lo’u faamaoni oute lei vaai ai, ao le teineitiiti laititi e igoa ia P sa ia faamatalatala mea na tutupu ile olaga o lona uso matua, ile mea sa faia foi e lona tina i lona uso matua, ua ia ave lea o lona uso matua ile tamaloa e igoa ia K, ona ia faia ai lea o nisi uiga le talafeagai ia te ia, ao lona tina e nofonofo i luma o le fale e vaavaai pe iai se tasi e alu atu.”

On page 33 of her evidence:

“Pros e iai sau gaioiga na fai ina ua uma ona faamatala atu e P tala ia ia oe?

Wit ioe sa ou tuu fesili ia te ia pe moni, ae sa ia nana pei e musu e ta’u mai ia te au, ae na o le teineitiiti laititi e tautala, o a mea e tutupu i lona uso matua lea, lona uso matua lea faamatala i le teineitiiti laititi, teineitiiti laititi ia te au, ae oute lei vaai lava ise mea na tupu.

Pros A sei faamatala mai le lua talanoaga ma le teineititi matua lea lea e te taua na e fesiligia?

Wit na ou fesili ia (name), pe sa momoe ma le tamaloa, ae sa tali (name) ioe, sa faia lava mea uma ia te ia pau lea o le fesili na fesiligia ai. Ona ou fai atu lea ia te ia, aisea na e le ta’u mai ai ia te au e pei ona sau o lou uso laititi faamatala mai ia te au.

Pros ia

Wit ae na o le tagi

HH ae na o le a A?

Wit ae ua na o le tagi, na o le maligi o loimata, ona ou iloa ai lea e moni ma faamaoni le mea na tupu.”

12. Ps evidence also supports that of her sister. She said K came while they were asleep in their mosquito net but unknown to the defendants she was still awake. From pages 3 and 4 of her evidence:

“Tali O lea oute manatuaina le po ae oute leiloaina le taimi.

Fesili faaauau mai lau mau ile taimi lea na oo atu ai K

Tali na alu atu K o atu ma lo’u tina i totonu o le fale. La ma te taooto ma lo’u uso i totonu o le tainamu, aua e leiloa o la oute ala

Fesili o ai lou uso lea?

Tali o (name)

Fesili ia

Tali ae valaau atu lo’u tina ia (name) ma fai iai si tama lea ua sau. Ou musumusu loa lea ia (name) e fai ia F pe valea.

Fesili ia

Tali ae le kali mai lo’u uso ia a’u ae ku i luga sau i fafo ma le kaigamu. O laia lea ma K i autafa o le matou laulau ai, aua e iai laupapa la e pugipugi ifo ai pei se potu.

Fesili ae sau o a ona ofu la e fai?

Tali sau ma le suluaoao

Fesili sau i fafo mai fea?

Tali mai le mea lea na o ai ma K

Fesili e te iloa o le a le umi lea na iai ma K ii ile mea lea e te taua lea e iai le tou laulau ai, faatoa omai ai fafo?

Tali o le afa itula

Fesili ile taimi atoa lea na o ai i totonu ile mea lea e iai le tou laulau ai P, na e vaai atu i lou tina?

Tali o lo’u tina la ei luma o le fale.

Fesili luma o le fale i totonu poo fafo?

Tali o totonu

Fesili o gafea lea na iai lou tina mai le mea lea na o agai iai (name) ma K?

Tali e uma le laulau ai ae sau agai luma maua ai le faitotoa o le matou fale, lea na nofo ai lo’u tina.”

13. Ps evidence differs slightly from the complainant in that she said the complainant cried out to her mother only after she exited the fale‘ai. But otherwise she is generally consistent with the evidence of her sister. She also confirms she told A what happened. And that she could not see what was happening in the fale ‘ai that night. On page 4 of her evidence she says:

“O le matou fale e taalaolao uma ae puipui leisi itu, e leiloa atu e matou leisi itu o la e puipui i laupapa, ae o autafa ifo le laulau ai, o le mea lena na o ai totonu (name) ma K.”

14. The evidence of the complainants friend from her church V who is a relative of the first defendant also supports the testimony of the complainant. From page 40 of the transcript of her evidence:

“O le masina o Setema laa faaiu le masina ua lata ile lotu tamaiti, ile Aso Sa ile taeao na ma saofafai ai ma (name) ile falesa. Ae faamatala ai loa e (name) le mea o loo tupu ia ia e uiga i lona tina. Sa ou fesili poo le a le mea ua tupu , ae fai mai (name) ua faapipii e lana tina ia ia K, e la te feoai. Ia ga ou fesili loa laia ia (name) pe moi, ona e a’u e iai lo’u piikaga ia K ona o K o lo’u kei. Ae faamatala ai loa e (name) ia a’u le mea na tupu.

Pros faamatala mai le lua talanoaga ma (name)

Wit ia na faamatala mai ia te au le po na alu atu ai K ile latou fale, ma taumafai ai lona tina e la te o la te eva i tua ile umukuka

Pros ia

Wit ae fai mai (name) ia au, aua nei ou pisa i seisi nei tei ua fasi na ia e lona tina ona e fefe. Sa ou fai ia (name) e uma ou talanoa i lona tina ona o K o lo’u tei ae le fetaui lana mea lea e fai.”

15. Like the earlier evidence of complaint to the step-aunt A, there was no objection by defence counsel to the admissibility of this evidence. But even if there were I am satisfied the evidence meets the requirements of recent complaint evidence usefully summarised in Police v Miti [2010] WSSC 169 in particular the observations of the New Zealand Court of Appeal in R v Nazif [1987] NZCA 307; [1987] 2 NZLR 122, 125:

“There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken into account will include the age, nature and personality of the prosecutrix, her relations with those to whom she might be expected to complain, the reasons for delay in complaint, and all other circumstances the Judge regards as relevant.”

16. V also testified of the time when the autalavou including her and the complainant slept over at the faifeaus house and the complainants phone rang. She answered it recognizing the caller from his number and his voice as the first defendant. She says at page 41 of her evidence:

“Sa ou fai atu ia (name) le telefoni lea e tatagi ae fai mai oute tago e tali, ae ou tali atu o le tama, o loo baby atu ia (name)

Pros fai mai e a lana tala i luga o le telefoni?

Wit fai mai baby.

Pros ia?

Wit sa ou fai atu ia (name) poo ai lea. Ae fai mai o K. Na fai mai (name) e tape e le o fia talanoa ai, o ina na ou iloa ai e le fia uo (name) ia K.”

17. The final item of evidence adduced by the prosecution was a cautioned statement given by the second defendant to the police. The relevant part of which on its last page reads as follows:

“O le ala o la’u faatoesega ona sa ou faitau i faamatalaga molimau a la’u fanau, ma e leai so’u alofaga ua faamatala uma lava e la’u fanau le mea na tupu ma ua lagona ai foi lo’u mafatia ona e le o toe iai se mea na natia, ua mafua ai ona ou lagona lo’u sese, ona e sa’o lelei sa ou fai i la’u tama teine e alu ane e talanoa ma K.”

18. The 43 year old first defendant elected to give evidence. He is from a village in Savaii but at the time of this matter worked in a village adjoining the complainants village. And only went to the complainants village for church worship. At page 25 of his evidence he says:

“E pei o iina tonu na matou fetaui ai ma le teine lea o (name) ma lona tina o F. Pe masina atoa o matou masani ona faia lea o faigauo a teine ma tama, i totonu lava o le ekalesia aemaise le autalavou. Pei ua atoa le masina ma vaiaso e lua, ua tonu loa i lo’u mafaufau ua tatau ona ou agai loa ia F aua se faamalamalamaga.”

The first defendant obviously did not seem to think it inappropriate for him to enter into a faamalamalamaga with the then 15 year old complainant. For that matter it would seem from the evidence that neither did the second defendant.

19. The first defendant said he went to the family home between 7:00 and 8:00 p.m. on the night in question, although he did not explain why he waited till that time to pay his visit. His version of events is as follows as recorded on page 26 of the transcript:

“Tali o le faamalamalamaga ua ou alu ai ia F, o maua ma (name) lea ua fai le ma uo. Ia sa tali F, sa tali fiafia lava F ma fai mai ana faapea ua matua (name), ae leai se mea o iai fai pea se lua talanoaga, ae tatou te talanoa faatasi e le mafai ona tuu eseesea oulua. Ia sa ma talanoa i luga o le nofoa umi ae faasaga mai F, matou te faafesagai faatasi. E lei leva ae ou fai atu loa ia F e leai seisi mea o a’u o le a ou alu leaga e mamao le mea oute sau ai, ou toe tu loa lea i luga ma ou toe alu I le mea sa ou nofo faigaluega ai.

Fesili o lea sa e faafofoga i mau ia sa fai ananafi ma le aso lea sa taua ai e le teine lea o (name) sa faia ni uiga mataga ia te ia, o le a sau tala?

Tali oute teena lea molimau.”

20. He also said that he would often talk with the complainant after volleyball games. But because they were meeting in secret as “evaevaga faatama ma teine” members of the autalavou and the church congregation probably did not know what was happening. He was asked by his lawyer:

“Sa iloa e isi tagata o le autalavou poo le autalavou le lua feoaiga?

Tali: oute lagona na masalomia maua, aua na fai foi si umi o le ma faigauo, aemaise taimi o taaloga i afiafi o Aso Toonai.”

21. When the court questioned him further on this aspect he said as recorded on page 32 of the transcript the following:

“Fesili o le a le umi talu ona fai le lua faigauo?

Tali ua masina ma vaiaso

Fesili ma o lau molimau K o le lua faigauo e mafua mai le voli ma le autalavou?

Tali o lea lava

Fesili o lona uiga e masani ona e auai ile voli ma e talanoa ai ile teineitiiti ile taimi lea e te auai ai ile voli?

Tali o lea lava

Fesili e tatau la ona iloa e isi tagata o le tou autalavou le lua talanoaga ma le teineitiiti lea e sa’o?

Tali o evaevaga faatama ma teine

Fesili ioe ae tatau ona silafia e isi tagata o le tou autalavou e sa’o?

Tali o lea lava.”

22. Depite this evidence none of the autalavou or any member of the church congregation was called to verify the existence, perceived or otherwise, of a “faigauo” or a relationship between the complainant and the first defendant. His own relative V saw no evidence of any such “faigauo”.
23. The final notable aspect of the first defendants testimony was his evidence that he wanted the complainant to go to Savaii with him but she refused. This is in accord with what she says. And it is obviously not supportive of his suggestion that they were in a relationship of some kind.
24. The first defendants evidence is simply not credible. Although his counsel did not appear at the hearing of submissions he filed a written submission which I have read and considered.
25. I prefer the evidence of the complainant as supported by the evidence of the other prosecution witnesses. I accept there are inconsistencies in relation to their sworn testimony and their police statements. But their sworn evidence for the most part is consistent with what is in their police statements. Especially in relation to the main parts. In the complainants case in relation to the nature of the sexual assault.
26. I also remind myself of the age of the two young girls and I take into consideration this matter occurred over two and half years ago. I would be more concerned if in fact the sworn testimony of all the witness was exactly the same down to the last detail. It is ultimately a matter of gauging and assessing credibility of the prosecution witnesses as compared to the first defendant and in that regard, I clearly prefer the former.
27. I am accordingly satisfied beyond reasonable doubt of the first defendants guilt of attempted sexual violation and his indecent act committed on the complainant. He is convicted accordingly.
28. In relation to the second defendant mother the position is less certain. I have no doubt she actively encouraged the first defendant to have a relationship of some kind with her daughter. Whether she was paid for it or not is unclear. But in accordance with the first defendants own evidence he gave her money around Lotu Tamaiti, he says to pay for a dress for the complainant for White Sunday. There are only hints of the mother trying to prostitute her daughter for reward but the evidence is far from conclusive.
29. The second defendants defence seem to be two fold in nature. Firstly that the first defendant did not commit the sexual offending alleged. And secondly that her cautioned statement should not be used as evidence against her as it was obtained under the misrepresentation by the investigating officer in question F.5 that the police were investigating a complaint from the Samoa Victim Support Group.
30. I have already dealt with the first issue and found the defendant culpable and that he did commit the sexual offending in question. As to the second matter I note no objection to admissibility of the cautioned statement was entered. But even if it were the argument overlooks two essential facts. Firstly it is irrelevant to a cautioned statement who laid the complaint or brought the matter to the attention of the police, whether it be Samoa Victim Support Group or some other entity or person. Secondly in any event question F.5 states succinctly what the police were investigating. It records what the officer told the defendant namely “ona o loo iai se suesuega o loo faagasoloina nei ona o le tagi a lau tama teine e igoa ia (name) e 17 tausaga” but that the complaint was lodged or “tauala mai” through Samoa Victim Support Group. There is no misleading in that. It identifies the complainant and the role of Samoa Victim Support Group in the matter.
31. What is relevant and requires consideration is whether the rules as to voluntariness and fairness have been observed by the police in obtaining from the second defendant an admission of guilt. In my view there is no evidence the police failed in either measure. I am satisfied the second defendant was properly made aware of her legal rights to silence and counsel and voluntarily agreed to make a statement after reading her childrens statement. The interviewing officers evidence was she requested the childrens statements prior to the cautioned statement being taken and the Constable obliged. Following which she then took the statement hence the reference on the last page. I find no improprietry in the Constables action or that such actions should be considered unfair or oppressive. As noted no objection to admissibility on this ground was made.
32. Defence counsel also expressed concern at the fact that the charges expressed by the constable to the second defendant was not what is presently before the court but was the offence of aiding K by allowing the complainant “e alu e eva ma K.” This is mentioned in the prelude as well as the concluding part of the statement. As indicated to counsel there is no such offence that I am aware of and it is therefore difficult to see how such a statement can in any way affect the veracity, reliability or admissibility of the cautioned statement. There was an obvious misunderstanding by the constable of the law but she was clear when she needed to be. It should also be noted there is no obligation on police to advise a defendant at the end of a Police interview or a cautioned statement of the final charge that he or she will be facing. In some cases it is not possible. For example a victim of a grievous bodily harm later dies and the appropriate charge becomes murder. On counsels reasoning a cautioned statement obtained pre-death would not be admissible as evidence against him or her in his or her trial for murder.
33. In this regard counsel also sought to tender into evidence as Exhibit “D-1” for the defence the witness statement of the second defendant dated 20 August 2015. I expressed doubt as to its admissibility but admitted it provisionally subject to the matter being canvassed in final submission. Having now perused section 13 of the new Evidence Act 2015 that statement is clearly inadmissible and I have paid it no regard.
34. What is of concern in relation to the second defendant is the extent of her knowledge of what went on in the “fale‘ai”. Prosecution submits that because the complainant could see her mother at the door therefore the reverse is true. But that does not necessarily follow. Ks evidence shows the only light in the house was a moli-kalasigi in the center of the house and that according to P there is a partition sealing off the “fale‘ai” area from the rest of the house. The evidence also shows the mother was more interested in her phone than what the first defendant and the complainant were doing. And that when the complainant called out she responded and told the first defendant that is enough and escorted him out. These are not the actions of someone aiding or abetting a rape. I am not satisfied beyond reasonable doubt her intent was to aid K in attempting to sexually violate her daughter which is the mens rea required for the offence with which she has been charged.
35. But I am satisfied she condoned a 40 plus year old man taking her 15 year old daughter to a deserted part of the house away from the kerosene lantern. And he took her “into the “fale‘ai” as testified too by the girls. It would have and should have been well within the second defendants contemplation that the daughter was not “au-fait” or compliant to all this or to any relationship with the first defendant. And that an indecent assault would likely take place. Her exposing the complainant to such a situation and encouraging the first defendants inappropriate intentions is in my view doing or omitting an act for the purpose of aiding the first defendant to commit an indecent act.
36. The issue then becomes in light of the charge whether the court can amend to a lesser charge than what is currently facing the second defendant. Under the previous Criminal Procedure Act 1972, the court had power to amend. Thus in Saolele v Attorney General [2007] WSCA 4, the Court of Appeal said.

“This court has the power to ‘make such...order as justice requires’: s164N(4) of The Criminal Procedure Act 1972. The Supreme Court has power to amend an information by substituting one offence for another: s36(2), of the Criminal Procedure Act 1972. There is no restriction on when this substitution may be made. In this courts view there is no reason why this court can not, if it is satisfied that the Judge’s findings are such that Ms Saolele is guilty of another charge, substitute that other charge. We find nothing in s9 of the Constitution which leads us to a different view. Ms Saolele defence was that she did not falsify the Ty1s or ensure the non registration of the false Ty1s. Her defence would not have been different if the charges had been false pretences rather than the (name). On the facts on which she was found guilty of the (name) she would have inevitably have been found guilty of obtaining by false pretences under s89 of the Crimes Ordinance 1961. There is no prejudice to her by substituting the informations as the Court proposes to do.”

37. The test was one of whether prejudice to the defendant would ensue. In Saolele there was no prejudice as her defence to the amended charge would have been the same. This was also the case in Police v Pao [2016] WSSC 189 where Sapolu, CJ said:

“The exercise of the Court’s discretionary power to amend an information during a trial must be guided by what the interests of justice require in the circumstances. In this case, there was no undue prejudice to the accused if the amendment to the information sought by the prosecution was granted.

Defence counsel opposed the amendment because he says that the accused relies on the mistaken time of the offence stated in the information as a defence.

I do not accept the opposition from the defence. To accept such opposition would mean that even if the evidence discloses an offence, the charge can be dismissed if the prosecution has made a mistake in dates. This would make the law overly technical without due regard to the interests of justice. This is one of the types of situation to which the Court’s power to amend an information in any way at any time during a trial was intended to apply.”

38. It is also established law that an amendment can be made even after the prosecution and defence have closed their respective cases: see Police v Eteuati [2005] WSSC 10 a decision reversed on appeal [2006] WSCA 8 but not on this point. This also aligns with the New Zealand approach: refer Jones v Police CA 332/97 a judgment of the New Zealand Court of Appeal dated 22 October 1997 where the court said:

“Whatever way the one looks at the issue, we are satisfied that the hearing does not irretrievably end at the moment the Judge reserves decision.

The policy behind s43 is that amendments should be allowed when appropriate and subject to the procedural safeguards contained in the section. Whether to allow an amendment will usually involve striking a balance between the interests of the prosecution and the policy of the section on the one hand, and what, if any prejudice there may be to the defendant on the other.

Consistent with s204 of the Act, the purpose of s43 is that subject to questions of prejudice, variances between the proof and the charge should not result in an outright acquittal, or even a dismissal without prejudice. Not only can an information be amended in the conventional sense under s43; a wholly different charge may be substituted.

Under s335 of the Crimes Act 1961, in an environment which is likely to involve more serious offending, the court of trial, and even this Court on appeal, may amend the indictment or any count in it to make it coincide with the proof. Indeed, if the accused has not been misled or prejudiced, the Court is required to make the necessary amendment.”

This is in fact what the Court of Appeal did in Saolele.

39. The position under the new Criminal Procedure Act 2016 is now codified and s.55 of that Act provides:

“55. Amendment of charges – (1) Subject to subsections (2) to (5), if the defendant appears to answer a charge, the Court may amend the charges in any way at any time during the trial .

(2) At the trial of any person, a Judge may amend the charges pursuant to subsection (1) in a manner that brings the charge into conformity with the evidence offered by the informant or prosecutor.

(3) Amendment under subsection (1) may allow the charges to be amended by:

(a) amending any particulars; or

(b) removing or adding or substituting charges; or

(c) adding or removing the name of any defendant.

(4) If an amendment is by way of substituting another offence for that charged, then:

(a) before the trial is continued, the substituted charge is to be read to the defendant who must be asked to plead to it;

(b) the trial is to proceed as if the defendant had been charged with the substituted offence subject to any order of the Court as to the rehearing of any evidence given in relation to the original charge.

(5) If a charge is amended under subsection (1) and subsection (2) does not apply, the trial is to proceed as if the defendant had been charged on the information or charging document as amended.

(6) In any case, the Court may on the application of the defendant adjourn the hearing if satisfied that an adjournment is required to allow the defendant to meet the charge as amended.”

40. Subsections (3), (4), (5) and (6) would seem to apply where the amending power is exercised pursuant to subsection (1) “at any time during the trial.” Subsection 55(2) however applies “at the trial” which arguably confers a wider discretion to amend “at any time” but not necessarily “during” the trial. The purpose of the amendment being to bring the charge into conformity with the prosecution evidence. Perhaps as observed by defence counsel a very pro-prosecution provision but nevertheless now the law of the land. No doubt aimed at preventing the injustice that can be caused by prosecutorial misadventure or mis-interpretation. It is as noted by the New Zealand Court Appeal in Jones a balancing exercise between societys interest in holding offenders accountable for their actions and the prejudice a late amendment may entail. To this extent the previous authorities on prejudice continue to apply.
41. In the instant case the amendment would be substituting the lesser charge of aiding the first defendant to commit an indecent act on a female under 16 years of age in breach of s59(3) of the Crimes Act 2013. This is the other charge the first defendant has been found guilty of. This course of action was followed by the court in R v Lewis [2014] NZHC 2331 a case very similar to the present one. There Brewer, J found the evidence did not establish to the required standard the element of penetration and he accordingly reduced the sexual violation charges to committing an indecent act on a child under 12 years of age. In doing so he observed at paragraph 38:

“In my view, ss133 and 136 were enacted to prevent proved criminal conduct going unrecognized because the conduct does not fit the charges brought. I have decided that there is proof of indecencies on a child, but I am not sure whether there was the penetration which would elevate the conduct to the sexual violations charged. If I simply acquit Mr Lewis on charges 3 and 4 then this proved criminal conduct will go unrecognized.”

42. The question that arises is whether an amendment would prejudice the second defendant? In the sense that she was misled and would have presented a different defence or line of evidentiary attack to an amended charge?
43. If the charge were to be upscaled, the potential for prejudice would naturally increase. But here the charge facing the defendant is being downgraded. It is also apparent her defence such as it is of “no sexual activity of any kind occurred” remains her defence irrespective of the type of sexual assault alleged. There is therefore no prejudice to her if the lesser charge were to be substituted. As noted by the court in Lewis:

“It might be that if Mr Lewis had faced from the beginning only the lesser charges then a more aggressive defence might have been mounted. But, in this case, the defence was not acceptance of some sexual contact but a denial of sexual violation. The defence was a total denial of contact. I do not see prejudice in this case which is material to the decision I have to make.”

44. The end result is I have come to the conclusion there is no prejudice to the second defendant if the charge were to be reduced to the lesser charge and I accordingly amend it to doing of an act to aid the first defendant in committing an indecent act on a girl under 16 years of age contrary to section 59(3) of the Crimes Act 2013.
45. I am satisfied beyond reasonable doubt from the evidence of the second defendants guilt on that charge and convict her accordingly.
    

JUSTICE NELSON