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Police v Lavasi [2011] WSSC 146 (12 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FAAIVIIVI LAVASI male of Vaitele-fou and Mulifanua.
Defendant

Counsel: Ms L Taimalelagi for prosecution
Defendant unrepresented

Hearing: 09 December 2011
Ruling: 12 December 2011

ORAL DECISION AND SENTENCE OF NELSON J

The convoluted history of this matter began with the defendant disputing the police summary of facts in respect of charge S504/11, an allegation that he did rape the complainant with whom he was at the time having a sexual relationship. The complaint of rape was in respect of the last incidence of sexual intercourse between the parties and it is alleged to have occurred on 13 May 2011. Suppression orders have already been made in respect of the details of both the complainant and the defendant and these are to continue.

The defendant has pleaded guilty to four charges of carnal knowledge for which he is currently serving a 12 month prison term. Sentencing remarks for this are recorded in the courts sentencing notes dated 18 July 2011. Initially he was given leave by the court to change his plea to not guilty on the remaining rape charge. But when the matter was called to set a trial date he reversed this again without the benefit of legal advice to a plea of guilty. It is regretful we do not have a duty solicitor scheme as it is most important that defendants understand what they are pleading to. That would avoid what has occurred in this case.

As a result of his guilty plea the defendant was returned to this court for sentencing but at sentencing he once again disputed the forced nature of the intercourse that is said to have occurred on 13 May. On prosecution application a hearing has been conducted involving calling of the complainant and the investigating officer to produce the defendants cautioned statement to the police.

The prosecution evidence has not been satisfactory. The complainant was very reluctant to discuss the issue of the intercourse of 13 May 2011 and said she only agreed to it because the defendant had threatened to beat up her elderly grandmother who was the only other occupant of their house at the time. It took several attempts by counsel for the prosecution and the court to elicit this testimony. She also said that prior to the intercourse she had checked the house to see if her brother was still at home.

These are not the actions of a non-compliant party. It is also relevant that the previous four instances of intercourse were by her own evidence consensual. Further more that the instance of intercourse on 13 May 2011 left a love bite on her neck and it was that which led to her family discovering her affair with the older married defendant.

The defendants cautioned statement does not assist the prosecution. It does refer to the complainant being "musu" or unconsenting but the whole tenor of the statement and actions of the complainant pre and post intercourse on 13 May 2011 leave me in real doubt as to how "musu" this complainant really was. It is also obvious she was not the party who laid the complaint with the police and according to the defendants cautioned statement she had been in text communication with the defendant prior to that complainant being laid to the effect that she has been caught by her family "ua maua gaia". The onus always remains on the prosecution to prove in a case of rape a lack of consent. I am not sure that what occurred on the night of Friday 13 May 2011 was a rape.

The law requires that I give you the benefit of any reasonable doubt I may have on the matter of consent. I do so accordingly and acquit this defendant of the count of rape. But I am in no doubt that an unlawful sexual intercourse was committed by the defendant on 13 May 2011 on a girl between the age of 12 and 16 who was not his wife. I therefore substitute in place of the rape a conviction for carnal knowledge and sentence the defendant also to a 12 month prison term on that charge such term to be served concurrent to his other sentences in this matter.

............................
JUSTICE NELSON