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Police v X [2009] WSSC 30 (26 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

X,
male of Saletele Fagaloa
Accused

Counsels: K. Koria & F. Lagaaia for the prosecution
M. Tuatagaloa for the defendant

Hearing: 25 March 2009
Decision: 26 March 2009

DECISION OF NELSON J.

The accused in this matter is charged that at Saletele Fagaloa on the 29 November 2007 he did indecently assault the complainant a girl between 12 and 16 years of age contrary to section 53(1)(2)(a)(b) of the Crimes Ordinance 1961. As the charge is clearly one of indecent assault this must refer to an offence under section 53(2) (a) and all counsels appear to have proceeded on that basis. So therefore will I.

Before I begin if no suppression order has been made in respect of this matter I do so now and order that the name, village and any other details in relation to the complainant be suppressed from publication. The complainant in question will therefore be referred to in this judgment as simply "the complainant". The order must necessarily extend to the names and village of all persons involved in these proceedings because of the fact that they all come from the one family unit and that includes the accused who is the complainant's step-father. To further protect the identity of the complainant the proceedings in this matter will be recorded as Police v "X".

There seems no dispute the complainant was aged between 12 and 16. This was confirmed by her mother's evidence and production of her birth certificate. She was at the relevant time just over 12 years of age. That element of the charge then has been established.

The real controversy centers around what happened on the night of 29 November 2007. Police evidence in that regard consisted of the complainant and two eye witnesses. Firstly, P the complainants step sister being the daughter of the accused from a previous relationship. The other eye witness is the witness T a relative of P’s husband who was living with the family at the material time.

Firstly the evidence of the complainant. She was a very difficult witness to say the least. She was obviously distressed in having to give evidence about the matter and spent a lot of her time in court in silent tears. It was clear to me she found having to testify a traumatic experience and every effort was made to make the courtroom a less intimidating environment including the disrobing and reseating of counsels and myself as trial judge and including hearing her evidence in closed court and in the absence of the accused as is permitted by section 41(2) of the Criminal Procedure Act 1972. Despite all this she was willing to talk about everything else except the subject matter of the charge. Half of the morning was spent to try and elicit her evidence but this proved unsuccessful despite the full co-operation of counsels for both the prosecution and the accused. The end result was her evidence is of no value to the inquiry being conducted by the court because of her reluctance to talk about what if anything may have happened to her on the 29 November 2007. I am in full agreement with counsel for the prosecution however that this was not the happy talkative girl described by the accused in his evidence. The prosecution case therefore rested by and large on the testimony of the two eye witnesses. The first of which to testify was T the relative of the husband of the complainants step sister.

Ts evidence was that after 11 pm on the night in question she was at the front part of the main house of the family doing some weaving or "filiga‘afa". The main house is situated on a small incline or hill on one side of which is a faleoo/kitchen used for cooking and sleeping. The main house overlooks the faleoo and while the main house has walls the faleoo is enclosed only by a wooden railing ("puipui laau"). Behind the main house is a bathroom and if one stands at the back of the main house one has a clear view into the lower down and sideless faleoo. There are bananas in front of the faleoo but these do not obscure the view into the faleoo from the back of the main house.

T testified that on her way to the bathroom for a shower she noticed the light in the faleoo was on. The light came from a small light bulb inside the faleoo. She therefore stood outside the back of the main house and looked into the faleoo and she was shocked to see the accused bending over the complainant in her words "eating her breasts" and with his hand on the complainant's private part. She said the accused wore an i.e. lavalava but the complainant was lying down naked except for a sheet over the lower part of her legs. She stood for a while to make sure of what she was seeing and then returned to the main house and woke up the complainants step sister P. She told her to come and see what her father was doing and the two of them went to the back of the main house and stood where she had been standing previously. She said P just shook her head then went down to where the accused was and disturbed ("fa’akei") him. She said P talked to her father then her and P returned to the main house, talked and went to sleep. She said the only people at the family houses that night was herself, P, the accused and the complainant. The complainant's mother and older sister had gone out.

Her further evidence was the next day when she took the accused his breakfast she talked to him about the matter. The accused begged her not to tell anyone about it promising not to do anything like this again to the complainant. He also told her the complainant was no longer a virgin because she had long ago lost her virginity to his hands. She said she kept the matter a secret because of the accused's request and she did not tell anyone not even the complainant's mother. The only person she discussed the incident with was P.

When asked in cross examination why she remembered the particular night this happened she said it was because this was the first time she had seen such a thing. When queried as to why her statement to the police investigators said she discussed the incident with the accused that night she explained that only P went down and talked to the accused and that it was P who came back and told her what the accused had said. But she only talked direct to the accused the next day and that the police officer must have misunderstood what she was telling him.

The evidence of P was that she was awoken by T around 11pm on the night in question. T told her to come and look at what her father was doing to the complainant in the faleoo and that she had seen this on her way to the bathroom for a shower. The two of them went to the back of the main house and while T stayed there P went down to her father at the faleoo. P testified she leaned over the railing of the faleoo and said to her father, does he want to go to jail for what he was doing. When asked as to what the accused was doing she said both the accused and the complainant were naked and that he was sucking the complainant's breasts and had his hand on her private part. The accused stopped what he was doing and said to her not to tell anyone as the complainant had been a bad girl for a long time. He also told her she had lost her virginity to his hands. P’s further evidence was no one else of the family was at home this evening as the complainant's mother was out playing poker at another sub-village.

Nothing further appears to have happened that night but when she confronted the accused the next day he became angry and chased her around with a sapelu. Although she initially told no one about the incident not even the complainants mother she noticed the accused's increased favouritism towards the complainant and the complainants other siblings whereas she and her children from the accused's first marriage were ignored and treated badly. P’s evidence was her relationship with her father steadily deteriorated in the ensuing time period to the point where he chased her and her family away from the property. She became most unhappy with her father and things have not improved since. She said eventually she got tired of the accused's treatment of them and came and reported the 29th November 2007 incident to the police in July 2008 some eight months post incident.

When cross examined as to why her evidence of the accused's nakedness differed to T’s she explained she was physically closer to the accused than T. She also refuted the suggestion put to her several times in cross examination that she was motivated by malice and jealousy to lodge a false complaint about her father with the police. She maintained that she only made the complaint to the police after she became tired of the accused's constant mistreatment of her and her immediate family and his open bias towards the complainants mother and her children and in particular the complainant.

The only other evidence adduced by the prosecution was a medical report of an examination on the complainant which indicated that her hymen was only partially intact.

In his defence the accused elected to give evidence. He denied all the accusations and said no such things as related by P and T happened. He did not remember what in particular he was doing the night of 29 November 2007 but he was adamant that he never indecently assaulted the complainant at any time. He said T and P are lying and angry with him because he chased them away from the family because they had become lovers. As to the chasing with the sapelu he said P had stoned his house and he went armed with the sapelu to see who was doing the stoning, he found P and told her to stop what she was doing and that is all that occurred. The gist of his evidence was he denied chasing or threatening P in any manner. However he accepted the faleoo is where he usually sleeps to look out for night thieves but added that the children usually sleep in the main house of the family and further that when the complainants mother is absent from the family she always takes her three children with her including the complainant. He accepted in his evidence that someone standing at the back of the main house would have an unobstructed view of the lower down and open faleoo but reiterated on the Bible and on his oath that no incident as related by T and P ever happened.

I have seen the witnesses and have had the opportunity to observe their demeanour as they gave evidence and to assess their credibility. Counsels are quite correct the prosecution version and the accused's evidence are diametrically opposed. It is a question of whom the court is to believe. In assessing whether T and P are telling the truth I note that their evidence is consistent with each other and that evidence was not shaken or changed in cross examination. The witness T was credible and if anything, cross examination served to strengthen this impression. She delivered her testimony in a direct straight forward manner without hesitation and the question about her police statement was explained to my satisfaction.

As for the witness P clearly she bears serious grudges against her father but she did not try to hide these and in my assessment she does not have the sophistication or guile to tell anything but the outright truth including the truth as to her feelings and displeasure with her father. The difference between her and T’s evidence as to the accused's state of undress is not entirely unusual given where T was standing. I will accept her evidence over T as she was the one physically closest to the accused at the material time.

It was submitted by counsel for the accused that I should not accept the evidence of these two witnesses because if they did see something why did they not immediately help the complainant? By for example, removing her from the accused's custody or control not only that night but subsequently. Instead the argument goes, they did not try to help the young complainant and the evidence indicated that after talking they went to sleep. It is a valid question but the difficulty with the question is that the evidence does not address this aspect. These issues were not specifically pursued with either T or P in their examinations and the issue of their actions subsequent to discovery of the incident and to P talking to the accused were not explored in any depth. If the question were directly put to them maybe they would have come up with a reasonable explanation. The evidence seems to have halted at the stage after the incident occurred and P talking to the accused and the two girls then going to sleep. The issue is not addressed in the police statements of the witnesses either so it remains very much an unknown. Certainly there is nothing there from which the court can draw inferences one way or another.

As mentioned earlier the accused elected to testify. I found him to be a most unconvincing witness. There were many indicators that he was being less than truthful and his explanations and protestations were rather hollow. And he failed to address what was patently obvious when the complainant his step daughter appeared to testify, namely why she went from the happy talkative step daughter that he described to the troubled, distressed and visibly upset complainant in this courtroom. The complainant's appearance and clear distress is more consistent with a young child who has suffered a grevious and embarrassing trauma more mental than physical. Furthermore the accused's explanation that P and T were lying must necessarily include the complainant in order for it to be a credible conspiracy. I do not find the complainants appearance and distress in coming to this court to be anything other than consistent with P & T’s testimony. The liar in this courtroom is seated in the dock, I find the charge against him proven beyond reasonable doubt.

The accused will be remanded on the same bail conditions to 2.30pm 24 April 2009 for sentencing submissions.

JUSTICE NELSON