R v Masina (No 3)
[2020] ACTSC 154
•19 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Masina (No 3) |
Citation: | [2020] ACTSC 154 |
Hearing Dates: | 10 – 16 June 2020 |
DecisionDate: | 19 June 2020 |
Before: | Mossop J |
Decision: | On counts 1, 2, 3 and 4 in the indictment dated 13 September 2019 the accused, Alofa Talouli Masina, is not guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – acts of indecency – strong complaint and tendency evidence – temporally confined nature of allegation – accused had alibi for specific dates – satisfied of each element of the offences – reasonable doubt about whether offending occurred in the period specified on indictment – not guilty |
Legislation Cited: | Crimes Act 1900 (ACT), ss 50, 54, 60, 67 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 49, 57, 80B Supreme Court Act 1993 (ACT) ss 68B, 68C |
Cases Cited: | Banditt v The Queen [2005] HCA 80; 224 CLR 262 Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 WGC v The Queen [2007] HCA 58; 233 CLR 66 |
Parties: | The Queen (Crown) Alofa Talouli Masina (Accused) |
Representation: | Counsel S Jerome (Crown) G Urbas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused) | |
File Number: | SCC 196 of 2019 |
MOSSOP J:
Introduction
The accused, Alofa Talouli Masina, is alleged to have committed four offences “on or about 2 February 2018”. The complainant in relation to each offence is a woman who will be referred to in these reasons as “the complainant”. The offences alleged are:
(a)count 1: committing an act of indecency on the complainant contrary to s 60 of the Crimes Act 1900 (ACT);
(b)count 2: sexual intercourse without consent contrary to s 54 of the Crimes Act;
(c)count 3: committing an act of indecency on the complainant contrary to s 60 of the Crimes Act; and
(d)count 4: committing an act of indecency on the complainant contrary to s 60 of the Crimes Act.
The accused was a pastor in the Matagofie Baptist Church, the membership of which was largely or exclusively people of Samoan heritage. Although the church was based in Sydney, the complainant was also considered to be part of the church even though she lived in Canberra. The accused is alleged to have attended her house in order to perform a “prayer of deliverance”. He is alleged to have instructed her that it was necessary, as part of that process, to perform sexual acts. He is alleged to have told her that if she did not then she would be, or would remain, cursed.
The acts constituting the charged counts were particularised as follows:
(a)count 1: the accused kissed the complainant on the lips and she kissed him back;
(b)count 2: the accused performed oral sex on the complainant’s vagina;
(c)count 3: the accused pushed the complainant’s head down towards his groin area demanding oral sex. The complainant’s lips touched the accused’s penis as a result; and
(d)count 4: the accused pushed the complainant’s head a second time towards his groin area.
In relation to counts 1 and 2 the Crown relies upon the provisions of s 67 of the Crimes Act, which provide that consent is negated in certain circumstances. In particular, the Crown relies upon s 67(1)(g) which provides that consent is negated if caused by a fraudulent misrepresentation.
On 17 April 2020 Elkaim J made a pre-trial ruling permitting three tendency incidents to be led in support of counts 1 and 2 but not in relation to counts 3 and 4: R v Masina [2020] ACTSC 89 (R v Masina). The relevant tendency was articulated by his Honour as:
The respondent used his position as a religious leader, to offer and/or conduct the “prayer of deliverance” to Samoan women in order to engage in sexual activity with him, for his own sexual gratification.
The difference in the ruling between the use of tendency evidence in relation to counts 1 and 2 as opposed to counts 3 and 4 was because it was only in relation to counts 1 and 2 that the Crown relied upon negation of consent due to fraudulent representations being made about the scope of the prayer of deliverance. In relation to counts 3 and 4 the Crown case was put on the basis of simple recklessness as to the lack of consent in relation to which the tendency evidence was less comparable.
Election
As a result of amendments to s 68B of the Supreme Court Act 1993 (ACT), an election could be made for a trial by judge alone in these proceedings, notwithstanding that they related to “excluded offences”: s 68B(3A)(b). Such an election was filed on 13 May 2020.
Directions
Under s 68C of the Supreme Court Act I am obliged to set out:
(a)the principles of law applied: s 68C(2); and
(b)the findings of fact which I make: s 68C(2).
I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3).
General principles
The Crown bears the onus or burden to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of the offence with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
The accused did not give evidence. He was not obliged to. At all times the burden lies upon the Crown to prove the case beyond reasonable doubt.
Directions particular to this case
I have also given myself the following directions.
Liberato direction: There was a significant conflict in the evidence between that given by the complainant and the denials by the accused in his interview with police. Even if I prefer the evidence for the prosecution, I should not convict unless I am satisfied beyond a reasonable doubt of the truth of that evidence. Even if I do not positively believe the evidence for the defence, I cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue.
Murray direction: As the prosecution case is largely based on the evidence given by the complainant, I need to examine that evidence carefully. I am entitled to convict the accused on the basis of that evidence if I accept it. However, in order for the prosecution to establish the charges beyond a reasonable doubt, I would need to accept beyond a reasonable doubt the accuracy of that evidence. It is therefore important that I consider it carefully.
Markulevski direction: Each of the charges against the accused must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges, I must consider what effect, if any, the doubts that I have about the complainant’s evidence on that charge have in relation to the other charges.
Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act): I have also given myself the directions that are required by the EMP Act:
(a)Directions about the manner of giving evidence: In this trial evidence was given by a pre-recorded interview, by audio visual link and with a support person present. That is the usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given greater or lesser weight because the evidence was given in that way: EMP Act ss 49, 57.
(b)Delay in complaint: The absence or delay in making a complaint does not necessarily indicate that the allegation that an offence was committed is false. There may be good reasons why a victim of a sexual offence may not make, or hesitate to make, a complaint about the offence: EMP Act s 80B.
I must also give myself those directions which arise out of particular aspects of the evidence in this case:
(a)Good character: I must take the accused’s good character into account in his favour in two ways. Firstly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not the Crown has proved his guilt beyond reasonable doubt. Secondly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not to accept what the accused has said about the Crown’s allegation against him. The accused’s good character and reputation does not provide him with some kind of defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the Crown has proved beyond reasonable doubt that the accused is guilty of the offence.
(b)Complaint: In relation to evidence of complaints made by the complainant after the event, if I accept that the complaints were made and that evidence is consistent with the evidence of the complainant, then I can use that evidence in two ways:
(i)First, I can use evidence of what was said in the complaint as some evidence that the incident did occur as the complainant said. The law says that because of the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I must consider whether I draw that conclusion in this particular case and so treat the complaint as evidence of the alleged incident by the complainant. If I do use it as some evidence of the incident that is the subject of the relevant count, then I must determine what weight to give it.
(ii)Second, whether I do use the evidence of complaint in that way or not, the fact that the complainant raised the allegation against the accused at the time and in the manner that she did may lead me to accept the evidence she gave. In other words, it makes her evidence more believable than if she had not raised the allegation as she did. If I use the evidence in that way, I must determine what weight the evidence should be given.
I must, however, bear in mind that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
(c)Tendency: The accused is charged only with the offences stated in the indictment. The Crown has also led evidence that goes to other acts said to have been committed by the accused which do not relate to the charged counts. That is the evidence of UM, DG and FG.
(i)That evidence is before me because the Crown says there is a pattern of behaviour that reveals that the accused has a tendency to act in a particular way, namely, to use his position as a religious leader, to offer and/or conduct the “prayer of deliverance” to Samoan woman in order to engage in sexual activity with him, for his own sexual gratification.
(ii)The evidence can only be used to establish this tendency if I make two findings.
(iii)The first is that one or more of those acts occurred. In making that finding I do not consider each of the acts in isolation but consider all the evidence in order to determine whether a particular act or acts actually took place. If I find that none of the acts are proved by the Crown, then I must put aside any suggestion that the accused had the tendency advanced by the Crown. If I do find that one or more of those acts occurred, then I go on to consider the second finding.
(iv)The second finding is whether, from the act or acts that I have found proved, I am satisfied that the accused had the tendency that the Crown alleges. If I cannot draw that conclusion, then again I must put aside any suggestion that the accused had the tendency alleged.
(v)However, if I do conclude that the acts are proved and that they establish that the accused had the tendency to act in the particular way alleged, I may use the fact of that tendency in considering whether the accused committed the offences charged. I must bear in mind that this is just one part of the evidence relied upon by the Crown and give it the weight that I think it deserves in the context of the evidence before me.
(vi)The evidence of other acts must not be used in any other way. I cannot reason that because the accused has committed these other acts that he is therefore generally a person of bad character and for that reason must have committed the offences charged. I cannot punish the accused for other conduct attributed to him by finding him guilty of the charges in the indictment. I cannot use the evidence in any way prejudicial to the accused unless I accept the Crown’s argument that it discloses a tendency and therefore makes it more likely that the accused committed the offences charged against him.
(vii)Even if I accept that the accused has a tendency to act in the way alleged, I need to consider whether or not he acted in that way on the occasion when the Crown alleges.
(viii)I must recognise that the evidence led by the Crown to prove that the accused had a tendency to act in a particular way is separate from the specific allegations in the indictment. I must not substitute the evidence led by the Crown to prove that the accused had that tendency for the specific allegations in the indictment. I am concerned with the particular and precise occasion alleged in each of the counts on the indictment. If I find that the accused had the tendency alleged by the Crown it may indicate that the particular allegations are true, but I must remember that I am required to find that each specific charge is proved beyond reasonable doubt before I can find him guilty.
Elements of the offences
Counts 1, 3 and 4 are charges under s 60 of the Crimes Act which provides:
60Act of indecency without consent
(1) A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.
…
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
The elements of this offence are:
(a)the accused intentionally commits an act;
(b)the act is indecent according to the standards of morality and decency held by ordinary members of the community;
(c)the act is committed on, or in the presence of, another person;
(d)the other person does not consent to the act; and
(e)the accused is reckless as to whether the other person is consenting to the act.
The charge of count 2 is under s 54 of the Crimes Act which provides:
54Sexual intercourse without consent
(1) A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
…
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
The elements of engaging in sexual intercourse without consent are:
(a)the accused intentionally engaged in sexual intercourse with another person;
(b)the other person did not consent to the sexual intercourse; and
(c)the accused was reckless as to the consent of the other person.
The definition of sexual intercourse includes, relevantly, the penetration, to any extent, of the genitalia of a person by any part of the body of another person: s 50(1)(a). It also includes the continuation of such intercourse: s 50(1)(f). It therefore covers penetration of any part of the female genitalia by the lips or tongue of another person or the continuation of such penetration.
Because recklessness for the purposes of s 54(3) or s 60(3) includes knowledge or recklessness, this element may be satisfied by establishing beyond reasonable doubt:
(a)knowledge on the part of the accused that the complainant did not consent to sexual intercourse or the indecent act;
(b)awareness that there is a possibility that the complainant was not consenting: Banditt v The Queen [2005] HCA 80; 224 CLR 262; or
(c)a failure to consider whether the complainant consents or not, reflecting an indifference as to whether or not she consents: R v Stevens (No 2) [2017] ACTSC 296.
Section 67 of the Crimes Act provides:
67Consent
(1) For sections 54, 55(3)(b), 60 and 61(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to a sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused -
…
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
…
(2) A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3) If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1)(a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
The evidence at trial
Oral evidence was given by a number of witnesses. 32 documents were tendered. I make reference to the oral evidence given by each of the witnesses and address the significance of the documentary exhibits.
Steve Bartlett
Mr Bartlett is the Director of Ministries for the Baptist Association of New South Wales and ACT. The accused’s application for acknowledgement as a recognised minister of the Baptist Church was tendered through Mr Bartlett. So too was a statement in relation to the accused that was attached to the application. Those documents were submitted as part of the application by the Matagofie Samoan Baptist Church to be affiliated with the Baptist Church.
He indicated that one of the features of the Baptist Church was an emphasis on local ministry. Rather than being a hierarchical organisation, the church is joined together as a network. A document containing the foundational beliefs and statements of values of the church was tendered. He said that the role of “prophet” was not part of the church structure. It would be open to the leaders of a church to recognise that a person fulfilled that role in the life of the church. “Apostle” was not a term used widely in the Baptist movement when talking about members of the church as opposed to Jesus’ 12 disciples.
The accused took a week-long course in June 2017 run by the association, was interviewed and ultimately recognised as a minister of the Baptist Church.
Mr Bartlett explained that a prayer of deliverance was part of the ministry of a number of churches in the Baptist movement. He said:
So ministry of deliverance is one that acknowledges that for a particular person they might be under - having particular problems in their life, that there might be a sense in which they were being oppressed by evil force, and a person who believed that was happening to them, one of - they might come to the church for help. And one of the ways that the church could help is through prayer. And we believe that prayer is powerful and we believe that God is more powerful than evil force. And so a prayer of deliverance would be, in general terms - and churches might practice it in unique ways. But in general terms it would be where a person was prayed for specifically, so - and usually naming whatever they were being troubled by and asking God for that to be removed from their life so that they might flourish as a person. Sometimes it could involve speaking directly to the evil force in a person's life, in the name of Jesus, and sometimes it may be done by an individual on - like, pastoral leader on occasions. More often it would be done in a group.
He was asked whether a prayer of deliverance involved sexual acts and said:
I don’t know of any circumstances under which a prayer of deliverance, rightly understood, would involve a sexual act of any form.
He said that his understanding of the Book of Ezekiel and the Book of Isaiah was that they did not justify sexual acts in the prayer of deliverance.
He said that the Baptist Church would regard any sexual act forced on one person by another as being “utterly incompatible with Biblical teaching and abhorrent”.
In cross-examination he was asked about the role of prophet or apostle. He accepted that a high value was placed on autonomy of individual churches and that they had the freedom to recognise members in whatever capacity they chose.
He accepted that there was no official position taken on prayers of deliverance by the association and that an individual church might have a prayer of deliverance. He accepted that the form in which they might be administered could be different and that there were no set words or set procedure for such a prayer.
So far as physical contact during a prayer of deliverance was concerned, he said that it was possible that it may involve a laying of a hand on a person’s shoulder as a sign of support or sitting close to the person. He was not aware of a Bible being used as part of the prayer, other than as a book to be read from.
The process of accreditation of ministers, which would involve a minimum training requirement of four years, may include a general discussion of prayers of deliverance.
He explained that there may be more than one pastor in a church but that the association understood the role of leadership as being a servant of the congregation.
In relation to the specific complaint made to the Baptist Association, he said that the Ministry Standards Director received a complaint and encouraged the person making the complaint to contact the police. He agreed that Lance Liuvao became the senior pastor when the accused was stood down from that role. He described that as a temporary measure.
The evidence of Mr Bartlett was reliable.
Evidence of the complainant
The complainant’s evidence-in-chief was given in the form of two evidence-in-chief interviews. The first of those occurred on 6 September 2018 and the second occurred on 24 September 2019.
At the time of the first interview the complainant was 65 years old. At the time of the second interview she was 66 years old.
In 1996 or 1997 the accused and his family came to Hamilton, in New Zealand, and attended the Assemblies of God Samoan Church there. The pastor of the church was the brother of the complainant’s husband. The accused was the cousin of the pastor and the complainant’s husband. In 1996 or 1997 the complainant moved to Auckland but commuted to Hamilton for church. She described her marriage as being “on the rocks”. In 2001 her husband walked out and left her with the children and her parents in their house in Auckland. In 2003 or 2004 she and her mother moved back to Hamilton, leaving her children with her father in Auckland. They stayed there for about a year and maintained the friendship with the accused and his wife, Tolotea, who was known as Tea. Then the complainant and her mother moved back to Auckland. At some stage after that, the accused and Tea started commuting to Auckland for church.
During the period when the complainant was in Hamilton after her divorce, the accused and his wife were a loving couple who gave their support to her. She would go to their house at night. She and the accused would discuss the Bible with each other. His wife would not participate most of the time. Sometimes they would discuss the Bible until the early hours of the morning.
She described her relationship with the accused and his wife as being “more like a family”.
She said the accused and his family moved to Australia in about 2008 or 2009. In 2011 the complainant and her family moved to Australia. The complainant got in touch with the family of the accused through the accused’s son’s Facebook account. The accused lived in Sydney and the complainant and her family lived in Canberra.
She participated in the establishment of the Matagofie Samoan Baptist Church. The main branch was in Sydney and there was an attempt to start another branch in Canberra but that did not take off. The leaders of the church were the accused, Lance Liuvao (also known as Lance Slade) and Vaa Blore. There was another man involved. His first name was Tautiaga and he was the secretary or treasurer of the church.
In 2015 or 2016, when there was an attempt to establish a Baptist Church in Canberra, the accused and his family, and Lance and Vaa and their families, would come down every weekend. Trips down became less frequent after a few months, but they kept visiting for prayer meetings for a couple of years. The prayer meetings involved the complainant and a cousin of the accused. Vaa and the accused always came. Lance came sometimes. Sometimes a new member of the church, Siaosi (also known as George), also came.
In 2016 or 2017 the Matagofie Samoan Baptist Church was recognised by the main Baptist head office.
Although the church in Canberra did not take off, there was a regular prayer meeting. The prayer meeting occurred on a Saturday. It occurred at the Baptist Hall in Dickson.
The accused is of Samoan background, 6 foot tall and a “very strong, sturdy man”. He knows very little English. When speaking to the complainant he spoke in Samoan.
In about 2017 the complainant received calls from the accused. She had prior to that received phone calls from him at night and they would discuss “how we find God’s word so comforting and all that”. On this occasion he said that he was asking her an open question. He referred to the fact that her husband left in 2001 and asked her “Don’t you feel the urge or the longing to have sex with someone?” She then said that she had prayed to God about that and that she did not want “to be one of those ladies that gonna and go and run around with all men just to, um, satisfy my need.” She asked God to “take it away from [her]”. After she explained this to the accused he said “Oh, okay” and talked about other things. There was then a gap of four or five months and he asked her the question a second time and she gave him the same answer.
She said that on 26 January 2018 there was a scheduled meeting with the accused and Vaa Blore. They came to her house, sat down and had a “little chat” and then there was a “prayer of deliverance” for the complainant. She had not requested a prayer of deliverance, nor had she heard of it previously. She said “I thought it was just a prayer that whatever he think [sic] that he sees that’s happening to me, be set free from”. Later in her evidence she said that the pastors had come down and said a prayer of deliverance for her father and her mother prior to the prayer of deliverance with her. That had simply involved laying their hands on her parents and praying. She had been told by the accused on the telephone that they were coming down. She thought it would be good that they came down and prayed for her and her parents as well.
The accused asked her to reveal any hidden thing that happened in the past. She was thinking “the cross of Jesus is enough for that… Why is he asking for this secret things [sic]?” She ended up revealing that she had suffered sexual abuse when she was young at the hands of her aunty’s husband. The accused said to the other pastor that this is the kind of thing that needs to be hidden and said that it should not be revealed to anyone. They prayed about it. In her evidence she described the terms of the prayer said by the accused. Following the prayer she thought “that was that”. She was feeling happy about it because it was easy. Then the accused said that there was another prayer of deliverance that he had to conduct between himself and her. He said he was going to come down the following Friday.
The next Friday he did come down. The complainant was present at home. He arrived around 11am. Her mother was also at home. Her mother suffered from Alzheimer’s disease.
Her mother was in a bedroom and not present during any of the events that occurred. The accused explained what the prayer involved. He said it involved performing a sexual act. The description in Samoan was translated as “we sleep together”. She queried whether that was in the Bible. The accused made reference to Ezekiel the prophet and Isaiah the prophet and said that it was similar to what they had been required to do. Her evidence was:
He didn’t say what chapter or what - those prophets when they got told they had to eat the dung of some animals to set the nation free of - or set someone free. And so to him, he is the prophet. He call himself he is the prophet [sic]. He’s the apostle. So the same to him he got the, um, spirit anointing that he needs to do the same. But this time it is not the dung of anybody but just to, you know, perform the oral sex on someone.
The complainant had never come across any part of the Bible in which a prophet or apostle had sex with someone in order to set them free. The complainant thought to herself “Is this real?” He said “Well, it’s up to you whether you want to do or not but that’s what the Lord convict us to do because this is the end result to what we did the other Friday”. Later in her evidence she said that he told her that it was up to her but if she did not do it then “that curse is still on [her]”.
She said that she loved his wife, who she knew very well, and said that it would be adultery. He told that it was not adultery. She then complied with his request. She was asked about what she thought the consequence was of not doing as the accused had suggested and said:
Q 219.And so you’ve told me there’s - you’re thinking hard about this, thinking about if you don’t do it what will happen and if you do do it what will happen. What did you think would happen that if you didn’t do it?
A.Fear of God.
Q 220.And what was that fear?
A The fear that if I don’t do what he said, something would happen to me or my family.
Q 221.And was that something he said?
A.No, he didn’t say it, but he just said, you know, it’s a curse. So to me, what will that curse be, so is it something to happen to me or my family?
Q 222.So did he say that was a curse if you didn’t do it?
A.Well, he said, you know, “You’ve got to clear or the curse will still remain.”
She said that she was not strong enough to say no. She said that prior to this she trusted him.
They went into the bedroom and undressed. He started kissing her. She kissed back. He started to kiss her all over her body. There was no conversation. The complainant said:
Nothing like lovey-dah-dah or - because I don’t love this person, you know, and before this whole thing I was in kind of I want to get over with it. My heart wasn’t in it. I’m just totally didn’t want to do it, but because of what he said the consequences will be, that just put me into it.
They lay down on the bed. He got on top of her. He “went all over [her]” and performed oral sex on her. This involved sucking her vagina inside and out with his mouth. It involved licking it with his tongue inside and out. This occurred for approximately three minutes.
He then “juggle [her] over to do oral sex on him”. He said “All right, you suck me.” He put his hand on her head and pushed her head towards his penis. She pulled her head up and said no. He said “It’s what needs to be done”. She said no. He tried to force her head downwards towards his penis. She said “no”. The second time she did not touch his penis. During these events his penis was not erect. He did not ejaculate at any time.
He said “no wonder your husband left you” and she said “I don’t care, I don’t do that sort of jazz”.
They both got up and dressed. He went and had a shower. It was very awkward after he emerged. He said he was leaving. Before he went he said “You’ve got a sickness in you and your kids will inherit, um, some fortune of some kind”. She asked him what kind of sickness she had but he did not reply. He also said that if she had any questions about this to ring him.
The complainant said that while she believed that what was happening was “pure wrong” she kind of half enjoyed it as she had not had sex since her marriage ended. Later in her evidence she said that she thought she had an orgasm.
In the second police interview there was considerable discussion about the exact day upon which the incident occurred. The effect of that evidence was that the complainant thought the first meeting where others were present occurred on a Friday or Saturday and that the incident involving the accused occurred on the following Friday. The complainant placed these dates by reference to her granddaughter’s birthday which is on 23 January. She recalled the meeting with the pastors happened after that. Her mother died on 22 February 2018 and the incident occurred prior to that. She was asked about Vaa being a worker. She said that he has an everyday job as opposed to a shift work job. She thought it was a “very hard job”, a “Kind of a labour job”. She believed that he worked on Saturdays but came to church on Sunday.
After the incident she threw the bedspread away.
She rang the accused the following night or the following week and asked “How long have you been after me?”. He denied that he had been “after her” and said that it was a prayer of deliverance. He said “This is a prayer of deliverance to set people free”. He said that if she had any more questions she should call him and he would explain it.
The complainant said that she “felt really yucky about the whole thing”. She was, however, dealing with her mother who was very ill.
She said that he rang her one time to check on her and she said that she was fine. He asked whether she had any questions and she said no. She did not say very much and the conversation ended. The whole conversation was about three or four minutes.
Her mother died on 22 February 2018 and the accused conducted the funeral. She said the funeral was on 8 March 2018. She found that “really awkward”. She did not tell anyone about what had occurred. After that she rang him and said that she was going to quit the church. He did not ask why.
The complainant returned to the church that she had previously attended. At that stage she was looking after her ill father. Her father died on 26 July 2018.
In the days after his death she decided that she was going to come out in the open about what happened. However, she decided to ring the wife of the accused, Tea, first. She rang her. The accused was out. She told Tea what had happened with her husband. Tea said that she was angry and was going to talk to him and make him call her. That was meant to happen that day, but it did not.
The next day the complainant sent Tea a text. She rang but nobody answered.
Subsequently, she sent a text saying that she was still waiting and if they did not call she would go to the police. Shortly after sending that text they rang. Tea said that she had spoken to the accused. The complainant asked whether Tea was saying that she was lying. Tea did not respond. Tea said that she had called her on the day of the deliverance and that the complainant had thanked her for the good job that the accused had done. The complainant said that she had never called. The complainant got angry because she perceived that she was being accused of lying. She cut off the telephone call. The accused or his wife rang five or six times, but on each occasion she cut them off because she was “fuming”.
Following that conversation, she made complaints to pastors in the Matagofie Baptist Church as well as to the central administrative organisation of the Baptist Church. She sent a text message to Lance Liuvao sometime shortly after 3 August 2018. She had a meeting with the Baptist head office two weeks prior to her first interview with police. That meeting involved people that she referred to as Pastor Jonathan, Graham, a lady from another Baptist Church who was there to support her, as well as a person from her own church there to support her, Lance’s wife UM (also known as UT). That meeting took place in Sydney. She told them the details of what had happened although was not asked in as much detail about the sexual acts. She was given a document describing how pastors in the church should behave.
In her police interview she explained why she had not made a complaint immediately. She did not know what would happen to her family. She did not know how far her complaint would go. She felt embarrassed. However, she felt angry about the lies that the accused had told her. She was asked whether, if he had not told her that it was a prayer of deliverance and that she would be cursed if she did not do the acts, she would have engaged in sexual acts with the accused. She said that she would not have. She said that she would have said “Oh, you’re mad, get out of my house” and that she would have rung his wife straightaway to tell her.
In the second police interview the complainant said that during the long time that they had known each other from the 1990s to 2018 there had never been “any hanky-panky kind of stuff.”
In cross-examination she agreed that the accused and his family moved to Sydney in 2010 (later than the 2008 or 2009 date that she had referred to in her evidence-in-chief) and that she moved to Canberra in 2011. She agreed that the date of the funeral of her mother was in fact 2 March 2018, rather than 8 March 2018, and that was confirmed by the death certificate which was tendered.
She was asked about birthday celebrations on 11 February 2018 for her father whose birthday was on 6 February. This took place at the Sir Leslie Morshead Nursing Home in Lyneham. Lance and his family, as well as the accused and his family, were present. Vaa Blore was there but without his family. On that day there was a church service at the Baptist Church in Turner and then the whole of the congregation went to the rest home. She agreed that her father died on 26 July 2018, that there was a church service on 7 August 2018 and that he was buried on 8 August 2018.
She agreed that a prayer of deliverance had been performed for her mother at the Calvary Hospital sometime before 26 January 2018. The accused, Lance and Vaa were there.
She was also asked about a church service at the Baptist Church in Turner on 14 January 2018 attended by the family of the accused, Lance and his wife and the complainant. She agreed to the proposition that Vaa was there, but this evidence was not clear. The accused did not come to her house on that day.
She confirmed her evidence that the prayer of deliverance occurred on two Fridays after her granddaughter’s birthday on 23 January 2018 and before the death of her mother on 22 February 2018. She agreed with propositions that she may have got her dates mixed up. She accepted that she was not in Canberra on 26 January 2018 because she had found that out from the police. On that basis, she accepted that she had dates muddled up. Her evidence was that she was in Parramatta with her blind aunty on 26 January.
She was asked whether she had seen any tattoo on the body of the accused during the sexual incident. She said that she had not. A photograph of the accused showing a tattoo on the upper portion of his left arm was tendered. The tattoo was of a bird and was almost the width of his upper arm.
She was asked about her initial conversation with a police officer of the Belconnen Police Station that occurred prior to her first formal evidence-in-chief interview. She agreed that she had told the officer that the accused had attempted to insert his penis but it was not erect. She agreed that she did not say during the course of her interviews that he had attempted to insert his penis. She said that she had said in those interviews that his penis was not erect. She said that it was an awkward situation and she felt that she had said enough to “really give [her] knowledge of what happened there”. What was actually physically involved in any attempt by the accused was not explored in cross‑examination or re-examination.
She was asked about the two conversations which she said had occurred at night when the accused asked her about whether she had the urge to have sexual intercourse. She gave evidence consistent with her earlier evidence. It was put to her that these never happened and she denied that proposition. She agreed that she did not mention that when she first spoke to a police officer at the Belconnen Police Station.
It was suggested to her that the accused had never said that she would be cursed but rather that was something that she thought. Her evidence was that he had said that they had to do the act “to get clear of this curse”.
She was asked about the timing of the call that she made to him after the incident. She clarified her evidence, that it was not the next day but something like a week later. It was after that that the accused called her and they had a brief conversation in which she said that her mum and dad were fine.
She agreed that although there had been a laying on of hands by the accused when the prayer of deliverance was performed with her parents, this did not occur on 26 January. She had no expectation whether or not it should occur because, as far as she was concerned, it was just a prayer.
She agreed that following the complaint that she made to Lance, she had close contact with him by phone and text message. She had telephone calls with him leading up to the interview with police. She discussed her allegations with his wife, UM, when going to the meeting at the Baptist Church headquarters, as UM was there as a support person for her.
She was asked about the conversation with Senior Constable Stuart on 18 October 2019 in which he raised the issue of her phone using cell towers in the Silverwater area and suggested that it meant that she was at that location. She agreed that she had told Senior Constable Stuart that the incident had happened not long before her mum died. She said that she attended church with her grandchildren on Sunday, 11 February 2018 and that she remembered feeling guilty about what had happened between her and the accused prior to that. She also recalled that she did not have that feeling of guilt at Christmas 2017.
She agreed that she had a discussion with Lance on the day before she went to police during which she indicated that she wished that the Baptist Church removed the accused from his role.
It was suggested to her sequentially that the incident did not occur in February 2018, January 2018 or December 2017. Her evidence, which is referred to later in these reasons, was to the effect that it occurred close to the death of her mother even if she had muddled dates. In answer to one question she said that the incident may have been in November or December 2017. It was then suggested to her that it did not happen at all, a proposition which she denied.
In re-examination the complainant gave evidence that she had no knowledge of how mobile phone towers worked or how phones picked them up. She said that she gave evidence that she visited her aunty in Sydney in January 2018 because she took those dates from what the police had told her. She had no specific memory of exact dates. She recalled on one occasion attending for about a week to do some cleaning in her aunt’s home and on other times shorter visits such as a weekend.
She explained her evidence in relation to what the accused had said about a curse. Her evidence was:
The [pressure], he put on me before we got into it, “There will be a curse. You know, it's up to you whether you want to do it, but there will be a curse.”
… he didn't go into further details, but it's just a curse. And to me, you know, a curse is something really bad to happen.
…He said, “It's up to you whether you want to do it, but if you don't do it, there will be a curse.” So to me, a curse is quite a horrible thing, you know, to happen to anybody and that, to me, “Oh, I better get on with it, get out of it.” And that's why I did it.
She explained why she did not make any complaint when the accused presided at her mother’s funeral. She said she could not deal with “two major issues”. In the period after that, up until her father’s death, she explained that she had to deal with her father and that was a burden on herself as she was the only one looking after him and he could not speak English.
She also explained that the reason that she thought she had been muddled up with dates was because the police had told her that she had been in Sydney. She was asked about her reference to the event possibly occurring in November or December. Her evidence was as follows:
You also said in cross-examination that that second prayer of deliverance between you and [the accused] could have occurred December or November. Why do you say that?‑‑‑Also the other taking from what I just learnt from [Stuart] on our phone call that that wasn't the right dates that I put forward so to me, it happened way before then, before my mother died.
When you say it happened way before your mother died, what do you mean by that?‑‑‑All right. My mother died on the 22nd. [The accused] came and my mother was still alive, as shown in the diagram, the two rooms, so he was - she was there and he saw her and we were just gone into my other room so to me it was just very fresh that that happened and then she died so to me probably around months further down from when she died.
A portion of the text message that she sent to Lance Liuvao containing the complaint was tendered.
UM
UM is the wife of Lance Liuvao, one of the pastors at the Matagofie Baptist Church. Her evidence-in-chief was largely given by an evidence-in-chief interview which was conducted on 27 October 2018. Her evidence was tendency evidence which was ruled to be admissible in relation to counts 1 and 2 by Elkaim J following a pre-trial application: R v Masina.
Her evidence was that on a day when her husband was very sick at Liverpool Hospital, the accused called her and said that there was something he wanted to talk to her about. She went to the unit where the accused lived later that day. He told his wife to go outside. He asked her a lot of questions about her past, told her that her husband was sick and was going to die and that he wants to pray for her to “do the deliverance”. He said he would let her know when.
The accused called again and asked if she was ready to do the deliverance and she said okay because she was going to do it for her husband. He asked whether anybody else was at home because he said he could not do the deliverance if anybody was there to disturb him. He came to her house. He brought a copy of the Samoan Bible with him. It had a black cover. She had only just finished work. She finished work at 1:30pm and thought it was around 2.00pm or 2.30pm when he arrived. Her children were still at school. He sat next to her. He asked her to give him her hand. He held her hands. He then prayed. He asked her about her past. She told him about her boyfriend before she got married and about her first daughter. He asked if she had feelings if she saw another man and she said no. He told her that if he sees her “he wets himself”. He continued talking as they were sitting close. She was crying because she was thinking about her husband in hospital. She thought that maybe she should blame herself and that that was why her husband was sick. She thought that might be why the accused was asking whether she had got someone behind her husband’s back.
After about 15 minutes of talking he touched her on the outside of her pants on her private parts. She was wearing long pants. She thought she was wearing jeans with underpants underneath. She said “What is this?” He said “This is part of the deliverance”. He said that they had to go into a room because he could not do the deliverance that he wanted to. They went into the bedroom of her oldest daughter. She did not feel comfortable but believed what he said and told herself that she was doing it for her husband. She was still crying, having started when they were discussing the fact that her husband was going to die. He told her to pull down her pants. She pulled her pants and underwear down below her knees. She just did it because she said to herself “it’s all for the best”. Then she said “he touched me. He put his hands inside me and I was not feel [sic] comfortable”. She later clarified that this meant he put two fingers inside her vagina. She did not say anything. While his fingers were inside her he said he wanted to “suck [her] private part”. (When describing this during her evidence-in-chief interview her voice dropped and she began crying.)
At this stage it had become clear in her mind that it was not the right thing and she said “What is this? Can you tell me what is this?”. She left the room and said she was not going to continue. She never consented to the accused putting his fingers inside her. She went to the bathroom and spent 10 minutes there. He waited for her and when she returned he said that they were going to pray. After they finished praying she said that he had to go and that she was going to the hospital. He said that she was not allowed to say anything or tell anything to somebody else, even her husband. He said it was between him and her and God. He said that if she opened her mouth then somebody was going to die. He had spent a total of approximately half an hour at her house. For nearly a week afterwards he kept ringing her. She did not answer his calls because she did not want to talk to him.
At the time these events occurred the accused was living in Liverpool. She lived in Fairfield Heights. He was not a pastor at that time. He was a friend. He said that it was his calling to “deliver” and that he was a prophet. He kept saying that he was a prophet and that he did deliverances for other people. She agreed with propositions that the only reason she went along with him to do the deliverance was because she believed that he was a Christian and was saying his calling as a prophet was to do deliverances. She knew him through her husband who was somehow related to the accused. Prior to the incident the accused and his family would sometimes go to their house and have dinner together.
All of her conversations with the accused were in Samoan.
She could not recall the precise date when these events occurred, but said it was during the time that her husband was in hospital, about three or four years prior to the interview. She thought it was summer but could not remember the month or the year. She said her husband had been in and out of Liverpool and Westmead Hospital.
She explained that she was a Christian and she believed in the power of prayer but things like she described were “an evil act”. Prior to him coming she did not know what the process of deliverance involved, she thought it was a prayer.
After the incident she told her husband what the accused had said about wetting himself when he saw her but did not tell him about being touched by the accused. It was only after the complainant disclosed what had happened that she thought it was the right time to tell her husband about being touched and she did.
When the Matagofie Baptist Church was established her husband had encouraged her to go to church. Whenever the accused said things in church she would disagree and her husband would ask her why she always disagreed. She never confronted the accused about the incident.
She disclosed what had happened to her at a meeting of nine elders of the church. These were Vaa, Tautiaga, Seepa, Siaosi, DG, Ben, Susanna, Lance and herself. She disclosed to them that the accused had said things to her. She had previously told her husband about being touched.
In cross-examination she was asked about photographs from Facebook relating to a picnic on Australia Day 2018 at Cronulla Beach. She identified that she and her family were present, the accused and his family were present and Vaa Blore was also present.
She also agreed that she was present on 11 February 2018 at an event at the nursing home where the complainant’s mother and father lived. She was also asked about photographs of her and of the accused’s family at the Baptist Church in Canberra. Those were either taken or uploaded to Facebook on 14 January 2018. She was not familiar with the date stamping process on Facebook.
So far as her police interview was concerned, she accepted that given that she and the accused only spoke to each other in Samoan, what she told the police the accused said to her was her translation of what he had said to her in Samoan.
She agreed that she could not give a date or a year for the incident. She could only identify that it was in summer and in the afternoon.
She said that she told her husband some of what happened sometime after he got out of hospital. She did not tell him about the touching. Although the evidence was somewhat unclear, it appears that she disclosed some of what occurred to her at the point where she was being asked to join the accused’s church. She refused and her husband asked what the reason was, and it was that which prompted her to tell him some, but not all, of what had occurred.
It was only when the issue with the complainant came up that she explained to her husband that the accused had touched her. She said that when she knew about what had happened to the complainant she had to speak up because she did not want it to happen to anyone else.
She said it was a long time between telling her husband that something had occurred and telling him that the accused had touched her. She said it took a long time to be calm and summon the courage to do so. She agreed that the disclosure to her husband was before the meeting at the head office at the Baptist Church where she acted as a support person for the complainant.
It was suggested to her that she knew that her disclosure of being touched and the complaint made by the complainant would cause trouble for the accused. She said that she did not know whether that was the case. She did not know whether he would be removed as senior pastor and did not know whether or not her husband would replace him. She did not know whether her husband and the complainant had been in contact with each other.
Prior to the meeting at the head office, where she acted as a support person, she had not spoken to the complainant. Her husband had said that the complainant needed someone as a support person and he explained about the allegations made by the complainant. She then learned the details because she sat in on the meeting with the people from the Baptist Church head office. All of this knowledge was acquired prior to the recorded interview with the police.
She was asked about what the accused was wearing on the day when he came to her house. She said that he was wearing shorts but she could not recall the colour. She said that he was wearing a sulu or lavalava, a cloth skirt around his waist.
It was suggested to her that a wheelchair was never taken to church. She denied this.
She denied discussing her interaction with the accused with the complainant prior to her own police interview.
She denied that she wanted Lance to become the senior pastor.
It was suggested to her that the sexual incident with the accused did not happen, that there was no sexual contact, that he did not say he wished to suck her vagina, that he did not put his fingers inside her and that he did not tell her to stay quiet. She very firmly denied these propositions.
In re-examination she was asked about the date on the Facebook photo of 14 January 2018 and her answer indicated that she had no idea whether that was the date the photo was taken or the upload date.
She explained that Lance was in hospital at the time and he had a heart problem. He was waiting for a heart operation.
She clarified that the meeting at which she was a support person for the complainant was different to, and earlier than, the meeting at which the Baptist Church head office brought the elders of the church together to let them know that the accused was no longer a pastor.
She clarified that what she was told by her husband about the complainant’s allegations was that he had come down to do a deliverance with the complainant. She had not spoken to the complainant about her own experiences with the accused.
She explained that she did not want her husband to become the senior pastor because the job of a pastor was not easy.
This witness was an absolutely credible and honest witness. Nothing in the content of her evidence or her cross-examination caused me to have any doubt that what she said was true. Her inability to fix a date or even a year for the incident does not cause me to have any doubt about the reliability of her evidence insofar as it relates to the conduct of the accused. The precise timing of the incident is able to be worked out having regard to objectively verifiable events, in particular, her husband’s hospital stay. Her uncertainty about the timing of the event does not cause me to have any doubt that the event occurred as it was described by the witness. The suggestion that perhaps she concocted her story in order to assist her husband become the senior pastor of the Matagofie Baptist Church was rejected by her. I completely accept her denial of any knowledge of the likely consequences of the disclosure of what happened to her and her denial of any desire to have her husband take on a more prominent role within the church.
FG
FG met the accused in 2017 when she joined his church. She lives in a house on the same street as the accused opposite that of the accused. She moved in in 2017. She lives there with her elder sister DG, DG’s partner Siaosi and their two children.
Her first language is English, but she understands Samoan.
She first spoke to police on 29 September 2019 and described an incident that had happened with the accused.
The accused took her into the living area of his house. He shut the door. He sat on a chair and she sat on the coffee table right in front of him, close enough so that their knees could be touching. He said a prayer. He then asked her questions such as whether she was in a relationship and whether she was a virgin. She said that she was a virgin. He said that that was a lie. He said that the Holy Spirit was telling him that there was a man following her who “pretty much sleeps with [her] at night time”. He asked whether she felt somebody eating her at night or that a snake goes into her.
She was asked about relationships and she said that she had talked to a few boys. He asked about their nationality and she said that there was a Samoan and a Tongan. He suggested that there was a Chinese and another Samoan. He asked her whether at parties if she “had a few” and “hook[ed] up” with someone whether they would feel her breasts. She said that was too personal a question. He said “It’s all right… the Holy Spirit is with us” and asked “do youse like do it then and there”. She said that she was a virgin.
He then said that the Holy Spirit was telling him there would be “a man coming in a white horse who [she was] going to be with and [they would] have heaps of sex”. At this point the accused demonstrated what he meant using a hip thrusting movement.
She said that this occurred in March 2019. She fixed on this date because there was a day when her sister had undergone a prayer of deliverance and a cousin of hers had left for Samoa and the incident took place the next week.
At the time the incident occurred, the accused’s wife and children were in the garage. In the middle of the incident when she was answering his questions, he told her to speak in a lower voice. He was speaking in Samoan and she would respond in English.
At the time this incident occurred, she was in a “dark place” and was depressed. She had no job and she was struggling with bills and nothing seemed to be going right. The accused had been told about these difficulties.
One of her sisters was sick and the accused said that the whole family needs to be “delivered” so that her sister could get better.
The incident ended when she told him that she was depressed and needed a prayer. He prayed and then it was finished and she walked out. He told her that if she spoke to anyone about what had happened then she would not receive her blessings.
In cross-examination she agreed that when she was giving evidence about what the accused had said she was translating it to English. She said that she fully understood Samoan but was not able to speak it.
She had discussed what had occurred with her sister DG, DG’s partner Siaosi and a cousin of hers.
There was some rather confused evidence about whether, and if so when, she had told either the police or the Crown prosecutor about the timing of the incident.
It was put to her that the accused never said anything sexual to her, never told her to keep her voice down and never told her that she would not receive her blessings if she told anyone. She rejected these propositions.
She was a credible witness. Notwithstanding the unusual nature of the interaction, there is no basis upon which to reject her evidence. I do not accept the submission of the accused that the evidence was contaminated as a result of her discussing it with her sister. That proposition was not squarely put to her in cross-examination.
DG
DG is FG’s sister. Samoan is her first language and English is her second language. She moved into the house opposite that of the accused about two years ago. She had met the complainant when she came down to Canberra and attended the Baptist Church in Dickson. The first time she met the accused was when she went to his church in about 2017.
She had an understanding that a prayer of deliverance was required when someone was possessed and that a pastor and others would gather round if the person needed healing. She had been the subject of a prayer of deliverance about five years previously.
In March 2019 she attended the home of the accused. He then took her to a small room and he sat on the chair and she had to sit on the coffee table facing him. He prayed and then asked her sexual questions. These were questions such as: how long does she and her partner have sex for? Does she touch herself or play with herself at night? Does she feel like anyone is trying to have sex with her? He said that in her past the Holy Spirit had told him that she had “sucked off someone that’s an Asian, an African”. He asked her how she feels when her partner sucks her. She said that he does not suck her. He said that “the Holy Spirit is telling him that that’s why her partner doesn’t suck her because the devil is under there and it’s also smelling”. He said that the Holy Spirit was telling him that there was also an African man and an Asian guy with whom she had had sex in the car. She said “Yes it’s true” even though it was not. He clapped his hands and started laughing, saying that the Holy Spirit was talking to him at the time. Throughout the whole process he was whispering because his wife and DG’s aunty were in the kitchen. The room they were in was close to the kitchen, but the accused had closed the door.
She said that the whole process took two to three hours. He was talking Samoan. She was talking in either Samoan or English. She would break down English concepts into Samoan where necessary. She said that he kept coming back to the same sexual topics asking similar questions. She said he kept on going over “the same rubbish”, namely those sexual questions. Those included whether at night she feels that there is someone touching her, playing with her breasts and whether she feels that she is wet. As to being felt she said “No”. As to being wet she said yes “Just to go with the flow”.
He had told her that she needed to undergo a prayer of deliverance because she had lots of demons and if she did not undergo a prayer of deliverance she would not receive her blessing and when they came back from America she would be on her deathbed in a slum. He told her this the day prior to the prayer of deliverance. She said:
… I went home thinking “Oh, if this is true, that the holy spirit is talking to him, then I must go through with it, just so that I can receive my blessing.” Because at the time we were financially struggling. I was, like, near - I was sick, I had, like, stuff all over my body, and I wanted to get better.
She had asked him whether there was anything he could do to help her and he suggested a prayer of deliverance.
At the end of the process he put a Bible on her breast and prayed. He put a Bible on her head and prayed. It then ended and he told her to have a shower. He said that if she told anyone about what had happened, she would be cursed and would not receive her blessings. She recalled the date as being March 2019 because there was somebody who was overseas who was coming back from Samoa at the time.
In cross-examination she agreed that by the time she spoke to the police on 29 September 2019 she had spoken with FG and Siaosi about what had occurred.
She was asked where she got her knowledge of what a prayer of deliverance was. She said:
Because that’s what we normally do. So as us in Samoa that’s what we - we do. You cast out with - you know, you have demons, you cast out with prayer. I’m sure everyone should know.
She had thought that a Bible was simply read from during the prayer of deliverance.
She was asked about whether she had told the prosecutor that the incident happened at the end of May or the beginning of April in 2018. However, she insisted that her evidence was that it occurred in March 2019. She was asked about what occurred over the two to three hours and repeated what she had said about the accused coming back to the same questions and asking them in different ways.
It was suggested to her that he did not talk to her about sexual matters. At this point in the cross-examination she got angry at the suggestion that she was not telling the truth. She explained in emphatic terms that she was telling the truth and suggested that the accused should do so.
Her evidence was very credible. The fact she got angry when it was suggested to her that it did not occur as she said it did tended to reinforce, rather than detract from, the credibility of her evidence.
Siaosi Pau’u
Mr Pau’u is the partner of DG. He is also known as George. He had known the accused for one and half to two years. He first met him when he was invited to the church service of the Matagofie Samoan Baptist Church. He thought that this was in about 2017. He became the band leader.
He understood that a prayer of deliverance was not used every day. It was only used when a person was possessed by a demon.
The complainant told him about what had happened to her in a phone call in about August 2018. She said that the accused and Vaa had come to visit her a week before and talked about a prayer of deliverance. The accused had come back a week later by himself. He made references to passages from the books of Ezekiel and Isaiah. He also mentioned “something about scaring her with that her family is cursed and if she doesn’t do this, this is - everything that happened to her in the past will all come back to her. It’s like a dark cloud on top of her.” She said that she was on the bed but did not go into detail. Mr Pau’u thought that she was embarrassed and he found it hard to ask about it. She was in tears. She said that she was telling him because she was worried about his family. She did say that the accused said “No wonder why your husband left you”. She said that it occurred before her mother’s funeral. The phone call took half an hour to 45 minutes in total.
Mr Pau’u had a conversation with the accused and his wife the next day. The conversation was in Samoan. Tea had already come over to speak to DG and was in tears about what had happened. He was upset as the accused was someone that he looked up to. He said that Tea started the conversation about what was going on between the accused and the complainant. Mr Pau’u said that we are all Christian and all sinners and “it’s never too late to maybe talk to [the complainant], have a chat, maybe, you know, it was God’s time, I was just telling him, you know, it is time to sort out”. The accused said he was not going to say whether she was right or wrong or that he was right or wrong. He said that the matter was between him and the Holy Spirit. He said “We’ll just leave it to God”. His wife, Tea, said that the complainant was telling lies about it.
In cross-examination Mr Pau’u was asked about the event on 11 February 2018, when members of the church went to church in Canberra and then attended the nursing home where the complainant’s parents lived. He was also asked about the visit to Canberra on 14 January 2018 and he said that he had not attended. He agreed that the accused was present at Cronulla Beach on Australia Day 2018. It was suggested to him that when he confronted the accused, the accused had said “No, nothing happened”. He did not accept this proposition, repeating the evidence that he had given in evidence-in-chief.
He was a very credible witness and the cross-examination does not cause me to have any doubt about the accuracy of his evidence.
Lance Liuvao
Mr Liuvao’s first name is Lancelot although he is known as Lance. The evidence discloses that he also uses the surname Slade on occasions. Mr Liuvao is the husband of UM, who also on occasions uses the surname Slade. Mr Liuvao gave evidence that in October or November 2012 he was waiting for a heart operation. The medical records for the Liverpool and Fairfield hospitals were tendered and show that he was admitted as an inpatient at the Liverpool Hospital between 5 and 22 October 2012.
He said that he was the assistant pastor and secretary of the Samoan Baptist Church. He said that prayers of deliverance were recognised in the church. He said that elders or pastors could perform them. He said that they involved quoting from the Bible, laying hands on the person, asking about the problem and what they needed to pray for.
He said there has to be at least two people because there must be a witness.
He said that no sexual acts should happen because it was not in the Bible. He said that the senior pastor or the elders would lay their hands on the head of the person.
In relation to the Matagofie Samoan Baptist Church in Canberra he, the accused and Vaa Blore started it. He said that there was a prayer meeting on Saturday at the Dickson Baptist Church and that they used the North Canberra Baptist Church in Turner in 2018 two times a month.
He said that the complainant was a member of the church, but was not a member now because she quit in 2018.
In relation to the complaint he said that the complainant called and said that there was something she wanted to share but she could not tell him and so she wanted to speak to his wife.
He said that the text message in Exhibit 13 was the full message that he received. He thought it was received close to the beginning of 2018.
He said that after he received the text message, she requested he send it to the head office and he said that the professional way to send it was by email. She asked if he could do it. He sent it to Jonathan Bradford at the Baptist head office.
In cross-examination he denied that he had taken over as senior pastor of the church. He said he had taken over the duties of the senior pastor and dealt with the finances of the church but had not been appointed as senior pastor.
He said that he was shocked at the allegations, that it was not his intention that the accused be removed from the position of senior pastor and that he had fully supported him in that role.
He said that prior to the meeting organised by the head office he had not shared the allegations with anyone. After the meeting with representatives of head office they went to deliver a letter to the accused to notify him that he had been stood down.
He said that the prayer of deliverance came from the Bible but did not involve sexual acts. It was suggested to him that the prayer of deliverance was not referred to in the Constitution of the Baptist Church and he could not recall. He was cross-examined on the document which became Exhibit 3, which did not make reference to the prayer of deliverance.
He was cross-examined about his evidence that the prayer of deliverance requires two people. He said that this was in the Bible but he could not quote the relevant part. It was suggested to him that he was making up the requirement for there to be two people because of the present allegations. He denied that.
On 11 February 2018 he said that the accused did the praying at the nursing home and that the other people simply gathered around the bed. He denied that he had been a participant in a prayer of deliverance on that day.
He accepted that he was in Canberra at the Baptist Church in Dickson at the beginning of the Matagofie Baptist Church along with the accused and Vaa Blore.
He agreed that the whole church travelled from Sydney to Canberra for services on a Sunday. He agreed that on 14 January 2018 the accused and other members of the church including himself came down on that day.
He agreed that there was an event at Cronulla Beach on Australia Day 2018.
He denied that after the accused was removed by the head office he discussed the allegations with the complainant by phone and with his wife.
He denied discussing his wife’s allegations with her prior to her talking to the police.
Mr Liuvao’s evidence tended to be somewhat imprecise and was inaccurate in some respects. I formed the view that, except in relation to the evidence about being hospitalised in 2012, care would need to be taken if reliance was to be placed upon his evidence on any issue of significance.
Benjamin Stuart
Senior Constable Stuart is the informant. He obtained the records relating to the complainant’s first contact with police at the Belconnen Police Station. He conducted a recorded interview with the complainant on 6 September 2018. On 18 October 2018 he had a telephone conversation with the accused in which he was invited to participate in an interview with police. He conducted that interview on 26 October 2018. The video of that interview and the revised transcript of that interview as referred to in R v Masina (No 2) [2020] ACTSC 152 (R v Masina (No 2)) were tendered.
Medical records obtained from the Liverpool Hospital and the Fairfield Hospital showing Lance Liuvao’s date of admission were tendered through him.
Senior Constable Stuart gave evidence about having obtained phone records in the following names:
(a)the complainant;
(b)Vaa Blore;
(c)Tolotea Masina; and
(d)Tobia Masina.
(There was no evidence as to who Tobia Masina was even though the telephone number associated with that name was relevant to this case.)
He said there were no phone records in the name of the accused. He obtained call charge records and reverse call charge records for two numbers that were stored in the complainant’s phone in the name of Tolotea Masina, one ending in 146 and the other ending in 364.
He described how these call records indicated, in relation to a particular occasion upon which the mobile phone was used for phone or data purposes, the first and last mobile phone towers that were used. These mobile phone towers were given names which corresponded in some way to their location in a particular suburb. As a consequence, it was possible to get a general idea of the location of that mobile phone at particular times.
He created a table which became Exhibit 20 which showed the telephone calls and text messages between the complainant’s mobile phone and the phone numbers ending in 146 and 364 in the period 10 January 2018 to 15 August 2018. The CD containing the base data was tendered. So too was a 2018 calendar. The death certificate of Vaa Blore was tendered.
In cross-examination Senior Constable Stuart agreed that the accused had no prior convictions.
The balance of his cross-examination was largely devoted to the mobile phone records which had been obtained as a consequence of the accused giving notice of an alibi.
Following the obtaining of the records he had asked the complainant why her phone might have been using a mobile phone tower in the Silverwater area in New South Wales. The complainant explained that was when she was visiting her blind aunt who lived in Parramatta.
He was then asked about questioning the complainant by reference to other fixed points such as the death of her mother and 11 February 2018 when members of the church came to celebrate her father’s birthday. He recorded that she said that she remembered feeling guilty on 11 February as a result of what had happened. She also said that the incident with the accused had happened not long before her mother died. He also asked her about Christmas 2017, and she said that she did not feel bad at Christmas. She said she thought it happened after her granddaughter’s birthday on 23 January 2018.
A number of documents obtained from the managing agent for a rental property which the accused and his family vacated at about that time were put into evidence (Exhibits 27, 28, 29, 30 and 31).
Returning to the issue of phone numbers, Senior Constable Stuart said that he obtained records for Vaa Blore and the numbers ending 146 and 364 back to the end of 2017. He only obtained three weeks of the complainant’s records from 25 January until 12 February 2018. However, he was able to locate calls made to and from the complainant’s number to the phone numbers ending 146 and 364 by reference to the records obtained in relation to those numbers.
The evidence of FG and DG each involved the use of the prayer of deliverance as a device to give the accused an opportunity to engage in highly sexualised conversations with young women. The evidence of both women was completely credible and I accept it as accurate. Even though this sexual activity did not relevantly involve physical contact, I am satisfied that the accused engaged in it for his own sexual gratification. I am also satisfied that neither of the young women would have participated in the sexualised questioning if they did not believe the statements of the accused that they were participating in a prayer of deliverance and that the accused knew of that fact.
While there is a possibility of contamination between, in particular, DG and FG, such a proposition was not squarely put to them in cross-examination and, in any event, I am not satisfied that there was any contamination in the sense of rendering their evidence less reliable.
On the basis of this tendency evidence, I am satisfied that the accused had a tendency to use his position as a religious leader to offer and conduct the prayer of deliverance to Samoan women in order to engage in sexual activity with him for his own sexual gratification. Even though, in accordance with the decision of the High Court in R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 at [80], it is not necessary to be satisfied of this tendency beyond reasonable doubt, I am so satisfied. That is because I accept beyond reasonable doubt the accuracy of the evidence of UM, DG and FG. I find beyond reasonable doubt that the evidence establishes the tendency. Even if the evidence had only been that of UM, I would have reached the same conclusions.
The existence of the tendency that I have found to exist provides substantial circumstantial evidence that supports the truthfulness of the complainant’s allegations in relation to counts 1 and 2 and hence for the Crown case. That is particularly so because of the specific nature of the tendency that I have found to exist and the close correspondence between that tendency and the allegations made in counts 1 and 2 on the indictment. It does not provide support for the allegation that the events in question occurred “on or about 2 February 2018” as opposed to at some other time.
Evidence in relation to the timing issue
The timing issue became the central issue in the case. Although the accused did challenge the reliability of the evidence given by the complainant and the tendency witnesses, that challenge was not pursued with any significant vigour or success. The main attack on the Crown case was as to whether the Crown had established beyond reasonable doubt that the offending occurred “on or about 2 February 2018”.
Evidence of the complainant
The complainant’s initial complaints were made in August 2018, almost six months after the incident is alleged to have occurred. In her initial complaints sent to Lance Liuvao the complainant was very specific that the unlawful acts of the accused had taken place on 2 February 2018.
The evidence of the complainant was that the incident took place prior to her mother’s death (22 February 2018). She also said that the first visit by the accused and Mr Blore occurred after her granddaughter’s birthday on 23 January 2018. She said that on 11 February 2018 she was feeling guilty because of what had occurred with the accused. She said that the incident definitely happened after Christmas 2017 because she remembers not feeling guilty at that time. Consistent with her evidence as to what had occurred between her and the accused, she left the church after her mother’s funeral.
On 18 October 2019 she was asked by Senior Constable Stuart about why the mobile phone records showed her phone to have been in Sydney. She then accepted that on 25 January 2018 she travelled to Sydney and returned to Canberra on 29 January 2018.
In cross-examination:
(a)the complainant appeared to accept that the incident did not happen on 2 February 2018 (“I am going to put to you that it did not happen at all?---Not on the 2nd, yes.”… “It - well as I see the date is wrong, I muddled up my dates but it did happened [sic]”);
(b)she said that she did have sexual intercourse but “I muddled up my date”; and
(c)the following exchange took place towards the end of cross-examination:
Dr Urbas: It didn’t happen in the week leading up to 2 February?---I would say around - just before my mum passed away it happened, around about – leading – around - for the 22nd it did happen, so yes.
I’m putting to you it didn’t happen at all in February?---I would say yes, probably not February, but months before February, around that time.
I’m going to put to you that it didn’t happen in January 2018?---As I said, I muddled up my dates but it did happen closer to the day before my mum died.
I’m going to put it to you that it didn’t happen in December 2017?---Around - before my mum died it happened, so it will be around - sometime around there, probably December or November. We are going back.
Having regard to her evidence elsewhere that the incident occurred proximate to the death of her mother, I would take care not to place too much weight upon the concession in the last portion of this quote. However, it is a statement of uncertainty as to the date of the offending which cannot be completely ignored. That is particularly so in light of the other objective evidence.
Call charge records - general
The telephone call charge records provide some location information in relation to the two telephones which were recorded in the complainant’s phone as being for the wife of the accused. It is these telephone numbers that the complainant used to talk to the accused.
The evidence indicated that both the number ending 146 and the number ending 364 were entered in the complainant’s phone under the name of the wife of the accused. The evidence (in particular Exhibit 32 and the evidence of Moetai Masina) is more consistent with the 146 number being that more commonly used by the accused, but not necessarily exclusively so. Similarly, the evidence of the complainant, Moetai Masina and Exhibit 28 are consistent with the number ending 364 as being used principally by Tea. There is no evidence of the accused regularly using a telephone that was not using the number ending 146 or ending 364.
There are obviously limits to the precision at which the mobile phone records disclose the location of the user. However, they are certainly sufficient to disclose whether the user is in Sydney or Canberra. They may also be used to provide, in a general way, information about the movements of a user where a sequence of phone towers is used in different areas.
The fact that the numbers ending 146 or 364 have an association with the accused does not prove that he was with the phone at all relevant times. There is always the possibility that he left the phone somewhere or allowed someone else to use the phone and as a consequence may have been in a different place from that where the phone records show that the relevant phone was. The possibility that he was separated from his phone is a possibility which must be assessed in light of all of the evidence in the case and bearing in mind the burden ultimately borne by the Crown. Similarly, there is a possibility that his phone was turned off during the relevant period. It would appear to be possible to identify such a period by reference to the absence of records associated with calls or data use of any sort by the phone. However, in this case no attempt was made to identify any such period.
Finally, it is worth noting as a preliminary matter that the mobile phone records were very substantial, involving thousands of pages of data if printed out in a readable form. The manner in which the parties approached the assessment of the evidence was through the examination of these records by Senior Constable Stuart. He gave evidence that he had carefully examined the records in order to assess its significance in light of the alibi notice. So far as the Crown case was concerned, he prepared a summary of the communications between the complainant’s phone and the numbers ending 146 and 364, which was tendered. In cross-examination he gave evidence about the content of the records and the conclusions about the location of the phones or the calls that were made which he could identify having examined the records at some length. Some of the records were displayed during the course of his evidence however only an electronic form of the records was tendered and, apart from the summary exhibit, no hard copy form of the electronic records was tendered.
Call charge records - particular dates
The call charge records are significant because, if it is assumed that the accused was with his mobile phone, then they demonstrate that he was only in Canberra on the dates that he said he was, which are dates upon which the complainant said the charged incidents did not occur. As pointed out earlier, the assumption that the accused was with his mobile phone may not be an accurate one. However, the possibility that he was with his mobile phone is one which has the potential to give rise to a reasonable doubt as to his location on a particular date.
So far as 26 January 2018 is concerned, the records are consistent with the other evidence which indicates that on that day the accused, along with other members of the church, attended a picnic at Cronulla Beach.
So far as 2 February 2018 is concerned, the records are consistent with the phone number more closely associated with the accused (ending in the number 146) not accessing any mobile phone towers in Canberra on that day. Instead, the records are consistent with it accessing mobile phone towers in Cobbitty and Canley Heights. That was consistent with other evidence which indicated that the accused was at about that time moving from a rental property in Cabramatta West to his current address in Cobbitty.
So far as other dates in January and February 2018 are concerned, the mobile phone records for the number ending 146 was demonstrated to have travelled to Canberra on 14 January 2018 and 11 February 2018 but not on any other days in January or February. Similarly, the number ending 364, which the evidence suggests is more closely associated with the wife of the accused, is shown to have travelled to Canberra only on 14 January and 11 February. The same is true of the phone of Vaa Blore.
The accused’s admissions
In his interview with police he admitted involvement in a prayer of deliverance with the complainant. He admitted, consistent with the evidence of the complainant, that he made reference to the books of Ezekiel and Isaiah. He made no admission that this was performed on 2 February 2018. He made no admission that any sexual act was involved in the prayer of deliverance that he performed. Rather, he positively denied that.
I do not consider that the conversation with Siaosi Pau’u involved any admissions on the accused’s part.
The significance of “on or about 2 February 2018”
Following the service of the alibi notice on behalf of the accused, the Australian Federal Police conducted further investigations in relation to that alibi. Following those investigations, the Crown did not seek to amend the indictment so as to specify a range of dates. In closing submissions, the Crown contended that it was sufficient to establish that the incident occurred on a date that was a “reasonable approximation to 2 February 2018”.
The most commonly cited discussion of the significance of dates in an information is that in the dissenting judgment of Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 185:
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf Page v Butcher. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson.
(Footnotes omitted)
Consistently with this, in WGC v The Queen [2007] HCA 58; 233 CLR 66 at [155]-[157] Crennan J said:
155. It is undoubtedly good practice to frame a count in an information with "all such specificity as to time" as circumstances permit so as to clearly identify for the accused the charges with which he or she needs to deal.
156. However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence" …
157. Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material.
(Footnotes omitted)
In Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 at [10]-[14] the Victorian Court of Appeal said:
10.It is most unusual for the date of an alleged sexual offence — or, in this case, the period within which an offence is alleged to have occurred — to be viewed as an element of the offence rather than as a matter of particulars. Take a charge of rape, for example. The elements of the offence which must be proved are that:
“(a)the accused intentionally sexually penetrated another person;
(b)the other person did not consent to the penetration; and
(c)the accused did not reasonably believe that the other person had consented to the penetration.”
11.Axiomatically, the accused person is entitled
“to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.”
In the usual case, the particulars of a charge of rape will identify the date and location of the alleged offence. Alternatively, the particulars may take the familiar “between dates” form.
12.As the South Australian Court of Criminal Appeal said in R v H:
“Dates in particulars of a charge are not to [be] regarded as an element of the offence or even as a material matter unless it is an essential part of the offence … Examples where that could be the case are where the age of the alleged victim is an essential element of the charge or, in former times, where the one year and one day rule applied in cases of homicide.”
13.Nor is it unusual for the evidence at trial to depart in some respect or another from the particulars. The usual course is for the particulars to be amended to conform with the evidence as given and, if necessary, to grant the accused an adjournment to address the amended particulars. Counsel for the respondent readily conceded that, if these were “between dates” charges, a grant of leave to amend would have been unremarkable.
14.There may, of course, be cases where the specification of the day, although not an element of the offence, is “material to the integrity of the criminal process”. This may be true, for example, where the accused has given notice of an alibi defence with respect to the alleged date(s). In the present case, however, no such notice has been given.
(Footnotes omitted)
The reference to it being “material to the integrity of the criminal process” is a reference to the judgment of Mullighan J (with whom Perry and Debelle JJ agreed) in R vH (1995) 83 A Crim R 402 at 411. Mullighan J quoted from the judgment of Derrington J in R v Jacobs [1993] 2 Qd R 541, who said that it was going too far to say that the time alleged in the indictment may become an element of the offence:
Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.
The position appears to be that where the Crown has been specific as to the date of the charged offence, that does not necessarily become a fact to be proved beyond reasonable doubt. However, the practical consequence of an allegation in that form may mean that fairness to the accused requires, in the absence of an amendment to the indictment, that the case be determined on the basis that it is either made out beyond reasonable doubt in relation to the specific date or dates alleged or not at all. An obvious example is a case in which the existence of an alibi in relation to the date or dates in the indictment is raised.
In the present case an alibi notice has been issued. The incident alleged is not one which is established by other events to have occurred but in relation to which there is a dispute about the date on which it occurred. Rather, it is one which has been alleged by the Crown to have occurred at a particular time and that time is set with a degree of specificity rather than, as is commonly the case, by reference to a range of dates. The case at trial has been contested on the basis of that specific allegation.
The expression “on or about” serves the function that a minor error as to when an event occurred is not material. It permits a degree of precision to be given without leading to any minor inaccuracy as to the specification of the date resulting in there being a defect in the charge. I was not referred to any authorities which have considered the potential scope of the expression in a case such as this. The Crown’s submission was that it asserted a date that was “a reasonable approximation to 2 February 2018.” The accused submitted that the expression should be interpreted narrowly. I accept that submission to the extent that it would be inappropriate to give the expression such a broad operation that it defeated the point of the precise identification of a date.
Conclusions as to date
In order to accommodate the uncertainty as to what degree of inaccuracy was permitted by the use of the expression “on or about”, the submissions put on behalf of the accused addressed the matter at various levels of generality. My conclusions as to the most significant dates are as follows.
In relation to 26 January 2018, the evidence establishes that the accused attended a picnic at Cronulla Beach. That evidence is inconsistent with him having been in Canberra that morning. Further, the mobile phone records associated with the accused (number ending 146) and Mr Blore demonstrate that those phones were in Sydney and not in Canberra on that day. The complainant herself was not in Canberra that day. She admitted, and her mobile phone records demonstrate, that she travelled from Canberra in the late morning of 25 January 2018 and only returned to Canberra on 29 January 2018. The inaccuracy in this date was significant because of the complainant’s evidence about the relationship between the prayer of deliverance performed on this day and the incident involving the accused which she said happened on the following Friday.
The complainant identified 2 February 2018 because she recalled the incident occurring on the Friday following the visit by the accused and Vaa Blore on 26 January 2018. The call charge records for the number ending 146 show that it was using mobile phone towers in Western Sydney and not in Canberra. The evidence of the accused’s son, Moetai, as to the movements of him, the accused and his brother between Cobbitty and Cabramatta and back on 2 February was not particularly persuasive having regard to his apparent lack of real recollection and the uncertainties about the signing and dating of the documents relating to the refund of the bond for the old property. However, it was consistent with the mobile phone records for the day in question. There is clearly a possibility that his evidence was inaccurate and the accused was not with his phone, but that is a mere possibility. There is certainly a reasonable possibility that his evidence was accurate. Further, there were no phone calls made to or from the complainant and the numbers ending 146 and 364 on 2 February. The absence of such calls is not conclusive but does not support the proposition that the accused attended on that day.
The mobile phone data, the association between the number ending 146 and the accused, the concessions made by the complainant in cross-examination and the evidence of Moetai Masina are sufficient to create a reasonable doubt as to whether or not the incident the subject of the charges took place on 2 February 2018.
If the incident did not occur on 2 February but did occur prior to the death of the complainant’s mother on 22 February and involved two visits on a Friday one week apart, then 9 and 16 February are possible candidates. However, there are no other dates in February where the phone number ending 146 used mobile phone towers in Canberra other than 11 February, on which date there was the celebration for the birthday of the father of the complainant at the nursing home. The evidence was the same in relation to the number ending 364 and Vaa Blore’s phone. I could not be satisfied beyond reasonable doubt that the incident took place after 22 February 2018, having regard to my acceptance of the complainant’s evidence generally and her statement that the incident predated her mother’s death. Further, it is a possibility that the complainant’s evidence that both visits took place on Friday, and on sequential Fridays, is mistaken. That would open up a broader range of possible dates within February, but that possibility remains inconsistent with the mobile phone records.
In relation to 11 February, a day when the accused is proven to have been in Canberra, the complainant’s evidence was that the incident took place prior to this date because she recalled feeling guilty on this date. She agreed that the incident with the accused did not take place on this day.
So far as January is concerned, the only day when the phone numbers ending 146, 364 and that of Mr Blore used mobile phone towers in Canberra was Sunday, 14 January 2018. That was the day when the evidence shows that there was a service at the Baptist Church in Turner attended by the members of the church. The complainant agreed that the offending did not take place on that day. Although Moetai did not recall his father making any trip to Canberra by himself in this period, I do not place weight on that evidence having regard to my concerns about the nature of his recollection.
My conclusion is that I have a reasonable doubt as to when the charged incident occurred. Specifically, I have a reasonable doubt as to whether it occurred in the period 23 January 2018 to 22 February 2018.
Findings
In making the following findings I have taken into account the fact that the accused has no previous convictions and hence is a person of good character in that respect. I have taken this aspect of good character into account in assessing the denial that he gave to police and in assessing the likelihood that he acted as alleged: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [94].
I am satisfied beyond reasonable doubt that the accused engaged in sexual intercourse with the complainant. That sexual intercourse involved the penetration to some extent of her genitalia by the lips or tongue of the accused when he performed cunnilingus upon her.
I am satisfied beyond reasonable doubt that the complainant did not consent to that sexual intercourse. That is because I am satisfied beyond reasonable doubt that her apparent consent was caused by a fraudulent misrepresentation within the meaning of s 67(1)(g).
The fraudulent misrepresentation was that the sexual acts were a legitimate part of a prayer of deliverance and that the complainant would remain cursed if she did not undergo a prayer of deliverance involving such acts. The representation was false in that sexual acts did not form any legitimate part of a prayer of deliverance in the Baptist Church of which he was a recognised minister. The misrepresentation was fraudulent because the accused knew that the representation that he made was false at the time that he made it.
I am satisfied beyond reasonable doubt that there was a sufficiently substantial causal connection between the accused’s fraudulent misrepresentation and the complainant’s consent to warrant the attribution of criminal responsibility: Gillard v The Queen [2014] HCA 16; 236 A Crim R 586 at [24].
I am satisfied beyond reasonable doubt that the accused was reckless as to the consent of the complainant. Recklessness may be established by knowledge or recklessness: s 54(3). In this case I am satisfied beyond reasonable doubt that the accused knew that the consent of the complainant to sexual intercourse was caused by his fraudulent misrepresentation. I am satisfied beyond reasonable doubt that the accused knew that, in the absence of his statements as to the legitimacy of sexual acts as part of a prayer of deliverance, the complainant would not have agreed to perform any sexual acts with him. Indeed, that knowledge was the very reason why he made the false representations in relation to the prayer of deliverance. Because of this knowledge, under s 67(3) he is deemed to know that the complainant did not consent to the sexual intercourse.
So far as the alleged acts of indecency are concerned, I am satisfied beyond reasonable doubt that each of the alleged acts occurred. Those acts were the kissing of the complainant on the lips when she was naked, the pushing of her head towards his penis so that her mouth touched his penis, and the pushing of her head again towards his penis but not so as to touch his penis.
Further, I am satisfied in relation to each of these three acts that it was indecent according to the standards of morality and decency held by ordinary members of the community. The acts very clearly had a sexual connotation. The kissing occurred when both persons were naked and intending to engage in a sexual act. The pushing of the complainant’s head towards the accused’s penis on both occasions was intended to encourage or coerce the complainant into performing a reciprocal act of oral sex upon the accused.
I am obviously satisfied beyond reasonable doubt that the acts were performed by the accused upon the complainant.
For the reasons given earlier in relation to the sexual intercourse, I am satisfied beyond reasonable doubt that the apparent consent of the complainant in relation to count 1 (kissing) was negated by operation of s 67(1)(g) because that consent was caused by the fraudulent misrepresentation.
I am satisfied beyond reasonable doubt that the accused was reckless in relation to that lack of consent in relation to count 1 because he knew that the consent was caused by his fraudulent misrepresentation. As a consequence, under s 67(3) he is deemed to know that the complainant did not consent to the acts of indecency.
In relation to counts 3 and count 4, I am satisfied beyond reasonable doubt that the complainant did not consent. That is clear having regard to her evidence and her resistance to his attempt to force her to perform the acts.
Further, I am satisfied beyond reasonable doubt that the accused was at least reckless as to her absence of consent. In relation to count 3 he was initially reckless when he pushed her head towards his penis as, in the circumstances and having regard to the fact that she had neither said nor done anything that indicated that she consented to the act, he must have realised that there was a possibility that she did not consent. After she pulled her head up and said “no” he knew she did not consent. In relation to count 4, he had knowledge that she did not consent because she had previously expressly refused to perform the act and said “no” again when he tried to force her head down towards his penis.
Conclusion
I am satisfied beyond reasonable doubt:
(a)that the tendency incidents relied upon by the Crown occurred;
(b)that the accused has a tendency to use his position as a religious leader to offer and/or conduct the “prayer of deliverance” to Samoan women in order to engage in sexual activity with him for his own sexual gratification; and
(c)that the elements of each of the offences charged are established.
However, there is a reasonable doubt as to whether the offending alleged occurred in the period specified in the indictment that is, “on or about 2 February 2018”. Notwithstanding that I am satisfied that each of the elements of each of the offences is made out, having regard to the manner in which the indictment was expressed, the issues at the trial and the way in which the trial was conducted, it is a case in which the temporally confined nature of the allegation is significant and fairness in the conduct of the trial requires that the charges be determined on the basis of the timing specified in the indictment. It is not necessary to reach a final conclusion as to the outer boundaries in this case of the period identified by the expression “on or about 2 February 2018.” Even if I interpret the expression “on or about 2 February 2018” in a manner which in my view is likely to be unduly favourable to the Crown so that it extends to the whole of the period from 23 January 2018 until 22 February 2018, I cannot be satisfied beyond reasonable doubt that the offences occurred “on or about 2 February 2018”. In those circumstances, a verdict of not guilty must be recorded.
The verdict that I record is: On counts 1, 2, 3 and 4 in the indictment dated 13 September 2019 the accused, Alofa Talouli Masina, is not guilty.
| I certify that the preceding two hundred and eighty-eight [288] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 22 July 2020 |
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