IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SIMONA AVIA
male of Salani, Falealili
Accused

Counsel:	R Titi and L Su’a-Mailo for prosecution
Accused in person

Hearing:	21 April 2009
Judgment:	21 April 2009

JUDGMENT OF SAPOLU CJ

The charges

1.	The accused is charged under s.48 of the Crimes Ordinance 1961 that at Salani, Falealili, on 31 July 2008, he and a co-accused attempted to rape the complainant, a female of Salani, Falealili

2.	The accused is further charged under ss.54 (a) and 23 (1) (b) of the Crimes Ordinance 1961 that at Salani, Falealili, on 31 July 2008 he and a co-accused indecently assaulted the complainant, a female of Salani, Falealili, over the age of 16 years.

3.	The co-accused, as the Court was informed, has left for American Samoa so that he was not available to attend trial.

The evidence

4.	According to the complainant, who was called as a witness by the prosecution, she is 17 years old and no longer attending school.

5.	She testified that on the night of 31 July 2008, she went to watch a movie at the house of another family some distance from the house of her family at Salani, Falealili. The movie finished after 11pm. She then walked to the road to return home. It was dark at the time. 

6.	On the road, the complainant met two boys, the accused and his co-accused. She knows them well as they usually play and be happy together. The complainant then asked the accused and the co-accused for a cigarette and they gave her a cigarette. The complainant then smoked the cigarette and walked with the two boys along the road towards the village proper where the house of the complainant’s family is located. 

7.	When they came to that part of the road a very short distance from being directly in front of the house of the prosecution witness Lalopua Keti; the complainant said that the accused closed her mouth, laid her down, and laid on top of her. At the same time, the co-accused removed her panty and the accused said "tope loa". The co-accused then touched her private part and she felt pain. She then screamed. At that time, the co-accused stood up and ran away to the seaward side while the accused ran away to the inland side. She then saw a torch. When the person with the torch came to her she was already standing up and putting back her lavalava. 

8.	According to the complainant’s testimony, the house of the prosecution witness Lalopua Keti and the house of the family of Ofoia are close to that part of the road where this incident happened. 

9.	From the evidence given by the other prosecution witnesses senior sergeant Luatimu Samau who prepared the plan of the scene of this incident, constable Afelua Fetu who took the photographs of the scene, and Lalopua Keti who came to the scene with a torch, it appears that where this incident happened was on that part of the road in the village proper (aai) with houses close by and a lamp post not far away.

10.	The prosecution witness Lalopua Keti testified that his house at Salani is not far from the road. He estimated the distance from his house to the road to be about the distance from the witness stand from which he was giving evidence to Beach Road in front of the Courthouse.

11.	Lalopua further testified that on the night of 31 July 2008, after 11pm, while he and his wife were watching TV, he heard a person calling out as if to someone else. He heard the name Numia. He then went towards the road with his torch to where the voice came from.

12.	Lalopua said he first saw the accused walking along the road heading inland. He asked the accused whether something was happening and said good bye to him. The accused replied good bye.

13.	Lalopua then walked along the road in the seaward direction to where he had heard the voice come from. There he saw the complainant standing on the road in front of teuila plants on the roadside. She was crying.

14.	Lalopua then asked the complainant if something had happened and the complainant replied that the accused had held her while the co-accused did something stupid (mea leaga) to her. Lalopua then took the complainant to her home.

15.	Lalopua also testified that in his estimation of the distances between where he saw the accused that night and where he saw the complainant crying, the distance would be about from the left door of the Courtroom to the road between the Courthouse and the New Zealand High Commission. He was asked the question:

Q:	O gafea na e maua ai X mai le vaega lea ete faasino mai – tusa o lea e i le ua molia, o oe lena o loo ile mea o fai ai lau molimau, o fea la o iai X?
(Where did you find the complainant from where you have pointed out- the accused is there, you are in the wtiness stand, so whereabouts was the complainant?)
A:	E fai si mamao laititi o le mea na tutu ai X – O ii lea ou te iai, ao X ei le faasikepu lea i le isi potu faamasino. (A little bit far where the complainant was standing – I would be here, but the complainant would be at the steps of the next Courtroom)

Q:	O fea la o iai le o lo’o molia?
(where would the accused be?)
A:	O loo le isi va le la
(That gap over there)

16.	The accused is 21 years. According to what is said in the accused’s caution statement made to the police and produced by the prosecution as part of its evidence, on Thursday, 31 July 2008, the accused, his co-accused and another boy of their village had been drinking a bottle of vodka inland of their village of Salani since the afternoon of the same day.

17.	After 11pm at night, the accused and his friends finished drinking the bottle of vodka. The accused and the co-accused then left and took the road heading seaward to the village proper (aai). The accused’s other friend did not go together with the accused and the co-accused.

18.	While walking along the road, the accused and his co-accused met with the complainant who asked them for a cigarette. The accused told the police that they gave a cigarette to the complainant and they smoked cigarettes together and conversed with the complainant on the road. They then started kissing one another and the accused and the co-accused also touched the complainant’s breasts.

19.	The accused also told the police that they then walked seaward to take the complainant to her home. When they got to a dark spot on the road, the accused embraced the complainant. At the same time, the co-accused also embraced the complainant. They all fell down. The accused further said to the police that when they fell down, the complainant screamed and called out his name and the name of the co-accused. So they left the complainant.

20.	According to the accused in his caution statement, he had thought that the complainant would accept him and the co-accused again as she had allowed them just a short while before to kiss her. However, when he and the co-accused embraced the complainant again, she screamed and so they left.

21.	The accused who is not represented by counsel, elected not to give evidence. He does not appear to be an intellectually strong person.

22.	The doctor who medically examined the complainant the next day was also called as a witness for the prosecution. She testified that she did not find any bruises or abrasions at the complainant’s genitalia area and her hymen was intact. The rest of the doctor’s examination was unremarkable.

Analysis

23.	It is clear from the evidence, that on Thursday night, 31 July 2008, the complainant, went to watch a movie at another family in her village. The house of that family is situated inland at some distance from the village proper (aai) of Salani. The movie finished after 11pm and the complainant went to the road to return to her family at the village proper (aai). On the road, she met the accused and the co-accused and she asked them for a cigarette and was given a cigarette.

24.	The accused says in his caution statement that he, the co-accused and the complainant then smoked cigarettes and conversed on the road. They were then kissing with the complainant and he and the co-accused also touched the complainant’s breasts. The events related in this part of the caution statement produced by the prosecution was not the subject of any comment by the complainant. The accused who is not represented by counsel asked only very few questions which were unrelated to the part of the caution statement just referred to.

25.	I must say here that while I have doubts that the complainant was telling the Court everything that happened, the accused does not impress as a very intelligent person.

26.	I would also have thought that if the accused had the intent to rape the complainant, it would have been more safe from any human intervention to do it at where they were smoking cigarettes, with the assistance of the co-accused, as it is further away from the village proper (aai). There is also no evidence that there were nearby houses to that part of the road.

27.	However, it was after the accused, the co-accused and the complainant had continued seaward to the aai when this alleged incident occurred on the road with houses nearby. In one of those houses, the witness Lalopua and his wife were watching TV.

28.	Even though there are discrepancies between the complainant’s oral testimony and what the accused says in his caution statement happened at that point in time, I am prepared to proceed on the basis that when the complainant screamed, the accused and the co-accused ran away. The doctor who examined the complainant’s genitalia area found no bruises or abrasions and the rest of her examination was unremarkable.

29.	The evidence given by the prosecution witness Lalopua, who came out of his house with a torch, as to the distance where he saw the accused on the road and where he found the complainant crying is open to the inference that the accuse left the complainant when she screamed, before Lalopua came with his torch.

30.	On all of this evidence, the following points may be noted. It is rather doubtful that the accused, if he had the intent to rape the complainant or was reckless about it, would have tried to rape the complainant on the road at the aai of the village, or so close to it, with houses nearby. A TV turned on in one of those houses – a sign that people were awake.

31.	Secondly, given that the accused and the co-accused desisted and ran away when the complainant screamed, it is doubtful whether the accused intended to have sexual intercourse with the complainant without her consent or was reckless about it. The requisite mens rea for rape is more than the intent to have sexual intercourse with a woman. If that were so, a male who tries to have sexual intercourse with a female with just the intent to have sexual intercourse with her will be guilty of attempted rape even if he stops when the female says no or otherwise indicates her lack of consent. 

32.	In this case, the accused ran away when the complainant screamed. He might have intended to have sex with the complainant, but I am left in doubt on the evidence whether he also had the intent to have sexual intercourse with the complainant without her consent or was reckless whether the complainant consented or not. 

33.	What was said by the accused to the police in his caution statement further increases my doubt whether the accused intended to have sexual intercourse with the complainant without her consent. The evidence given by the doctor also does not diminish that doubt. 

34.	I am, therefore, left in doubt whether the accused had the necessary mens rea for the crime of attempted rape. As a result, that charge should be dismissed.

35.	In relation to the elements of the charge of indecent assault brought by the prosecution, one of the elements of that charge is that the complainant must be over the age of 16 years. The complainant testified that she is 17 years old. The usual method of proving the age of a complainant in a sexual case is to call the mother to testify as to the age of the complainant and to produce her birth certificate. If the mother is not available, then call the father. No such evidence was called in this case. I am also not able to infer from the complainant’s physical appearance whether she was over 16 years of age at the material time. I am not satisfied from the complainant’s oral testimony alone that she would be more than 16 years old at the time of this offence. 

36.	I am, therefore, left in doubt whether the complainant was over the age of 16 years at the material time. The charge of indecent assault is also dismissed.

Conclusion

37.	Both charges of attempted rape and indecent assault of a girl over 16 years of age have not been proved beyond reasonable doubt. 

38.	They are, therefore, dismissed. 

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution