[THE NAMES OF THE COMPLAINANT, HER FAMILY AND HER VILLAGE ARE SUPPRESSED]

SUPREME COURT OF SAMOA
Police v Faalogo [2012] WSSC 109
Case name: Police v Mitai Pouvi Faalogo
Citation: [2012] WSSC 109
Decision date: 11 April 2012  
Parties: police (prosecution) and mitai pouvi faalogo male of Sapunaoa
Hearing date(s): 10 – 11 April 2012
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
T Toailoa for prosecution
T Atoa for defendant 
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961
Police Offences Ordinance 1961
Criminal Procedure Act 1972, s.39
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

AND

MITAI POUVI FAALOGO male of Sapunanoa
Defendant

Counsel:	T Toailoa for the prosecution
T Atoa for the defendant
Hearing:	10 – 11 April 2012
Ruling:	11 April 2012
Charges:	Rape, Incest, Insulting Words

EX TEMPORE REASONS FOR JUDGMENT OF SLICER J

1. 	Mitai Pouvi Faalogo (“Mitati”) has been charged with 3 counts of Rape, occurring between 1 January 2010 and 17 September 2011; 3 counts of Incest between 1 January 2010 and 17 September 2011; 3 charges of Indecent Assault, contrary to the Crimes Ordinance 1961; and finally 1 charge of using Insulting Words, contrary to the Police Offences Ordinance 1961, said to have occurred on 8 October 2011.
2. 	The prosecution did not call the complainant as a witness and offered no evidence in support of the rape allegations.  Each will be dismissed.
3. 	On the evidence presented to the Court, it in effect proceeded with 2 charges namely, 1 charge of Incest, said to have occurred on 17 September and 1 charge of Indecent Assault of a girl under the age of 16, again said to have occurred on 17 September 2011.
4. 	The evidence in support of those 2 charges are:
(1)	that it was agreed:
(a)	that the complainant and the defendant were brother and sister of the half blood through the father; and
(b)	that the girl, born in 1996 was under the age of 16 years at the relevant time.
5. 	Evidence was given by a number of prosecution witnesses and I will briefly recount the substance of those testimonies.
6. 	The first witness was Failagi Vaimanu (“Failagi”).  She says that on the day in question she was with her husband and children, but her children were playing in the river further down, away from where she and her husband were.  She saw a boy and a girl, and her husband told her not to make a noise and the husband pointed to a cluster of fao trees.  They looked under the trees and could see feet, and persons who appeared to be wearing no clothes.
	“I saw the bottom of the male go up and down; the girl was also present underneath.  We were unable to identify her because they were under the bushes.  She was laying face upwards and he was on top; bottom side going up and down.  I walked slowly towards them but was still unable to see their faces.  I sat on a rock beside the river and I was eyeing these people.  The boy then slipped away and performed oral sex on the girl.”  
7. 	But she did not recognize the person as being Mitai until he had finished and the girl sat up.
	“The girl sat up and I could see that it was Su’e; until then I was unaware of the identity.”
She had known Su’e for a long time.
	“The defendant then picked up his green pants and put them on, and she grabbed her clothes which included red panties.  I was reluctant to look at him but I did have a conversation and he later came to me and apologised.  I did not accept that apology.”
8. 	She was cross-examined but was not shaken in cross-examination.  She said it was her husband who first saw them.  She could not identify them early because she could not see the faces.  She was cross-examined about the difference between what she told police and what she said in Court.  She did say in Court that Su’e was wearing green shorts, blue t-shirt and a red panty.  Another line of criticism in cross-examination was why she did not interrupt.  At some stage she says that it was not totally unusual to see people having sexual relations in the bush, and one can understand that with open houses it is sometimes difficult for a husband and wife to find a quiet place out of view of the family, and one would be embarrassed if one was passing and saw people hiding but they turned out to be husband and wife who had slipped away from an open house.  You would be embarrassed yourself for intruding onto them, so the Court does not think it unreasonable or voyeuristic for at least not to interrupt and to wait, but, of course, if it is husband and wife or adult lovers you should not intervene, so by saying that I say that I accept the evidence of the witness.
9. 	She said that she could identify because she saw Su’e and saw them nearly everyday, and in fact they were neighbours and there is a relationship between the two families.  She said that she certainly recognised the girl.
10. 	The evidence of her husband was supportive and in similar terms.  Vaimanu Esau (“Vaimanu”) was the husband and he was with her when they were doing the washing at the river.  He could see tracks that led across the river so he followed the tracks and then saw feet pointing out towards the river.  He confirmed that his wife sat on rocks and he was looking at what they were doing, and then he said that the man got off the girl and ‘ate the girl’, which I take to mean oral sex.
	“After that he stood up and put on his pants and walked away.  I then recognised it to be Mitai.  Su’e walked over and spoke with my wife.  I went to my children and left my wife, Su’e and Mitai speaking together.  I first recognised the boy after the sexual interlude.”
11. 	He described the conduct as seeing ‘his bottom going up and down and the girl lying underneath.’  He also was cross-examined and said he did not call out to his wife when they first saw them, and that confirms the wife that her husband told her to keep quite.  He stayed there and saw what was happening.  He saw the man being sexually intertwined with the girl.  He was not sure about identity until after the event.  
12. 	Again, he was not moved in cross-examination and again, he explained that he did not call out to the couple.  He kept eyeing them until he could be certain of identity, and I again would accept that if it had been husband and wife, one should not have done anything and would have pretended to have seen nothing.  The second line of cross-examination of him was that there was tension of hostility between the two families and he says ‘no, there is a good relationship.’  It was put that he was jealous and did not know about what the jealousy was because Counsel did not put that question, but he said there was no jealousy.  Was the family relationship strained?  He said no.  There was some trouble if somebody had salt and would not give it to the other; he said they were minor in nature.   
13. 	I accept the evidence of those two witnesses; of what they saw and the identity of the two persons.  The Certificate of Birth (“Exhibit P2”) establishes the age of the girl.
14. 	The final piece of direct evidence comes from a Caution Statement administered by a police officer.  There is a criticism of his conduct, but the Court accepts that it is the signature or mark of the defendant which appears at the bottom of each page of the interview, not just at the end.  The signature is that of the defendant and the defendant says ‘I made admissions because I was afeared of the police officer.’  However, he said he was not threatened with violence and was not threatened with words.  He simply said the very office itself made him fearful so he agreed.  That was his first explanation.  And his second explanation was that it was not read over to him.
15. 	The record of interview itself begins with the allegation:
	“You are brought here by police because you rapes Su’e, a female of 14 years of Sapunaoa Falealili who is also [said to be or] told to be your younger sister...”
16. 	So it is clear that the officer tells the man of the allegation, and he then begins to follow a course which is proper and followed by honest police officers in Samoa.  He first of all asks personal questions without a warning: who are you; what is your name; how old are you; what is your date of birth; are you married; where do you live; what is your village; are you employed?  The man gives answers which were true.  He tells us what his age is.  He tells us what his village is.  He tells us what his occupation is so the policeman could hardly have made that up and got it right at the beginning of the statement, unless the words were asked and those answers given, so it supports the conclusion that it was a valid interview.  Why?  Because those innocent questions of age, village, date of birth, marital status and employment turn out to be correct.  How could the policeman know that unless they were told to him by the defendant, so the Court accepts that the defendant did give information to the police, and then, as is known, he followed the practice of giving the white card of your Constitutional rights.
17. 	I accept that the defendant may not have understood them completely, whether he is able to read them or not, I do not know.  The fact that he gives his mark on the interview suggests that he has not great learning.  That is not an insult to him; it is just that he has grown up and gone to school and does not have great learning, so the police officer, quite properly, says
	“I will explain them.  Do you understand this right that I have just explained to you?”
He reads it:
	“You have a right not to say anything unless you wish to do so…”
And then he says:
	“Do you want to exercise this right?”
And he answers:
	“No, I don’t want to make a statement…”
18. 	To me a statement is what we would call a witness statement.  In other words, I sit and write the statement down or dictate it and then I sign it and it is a statement.  And he says:
	“I don’t want to make a statement regarding this matter.”  
That is his right.
	“…but I agree about what that has happened.”
19. 	Now what was put to him was that he had raped his sister.  Now that may be a complex legal question but I interpret the words ‘I agree about what that has happened’ is that he is agreeing there was some sexual impropriety with his sister.  The next question may have been mistranslated in my copy:
	“So you pleaded guilty with the incident.  What happened?”
20. 	Well, he has not pleaded.  You do not plead until you come to Court, but the officer is saying, ‘When you say I agree about what has happened, he is simply saying so you agreed that has happened.’  ‘What happened?’ says the officer.  ‘I have sexual intercourse and did wrong to my sister Su’e.’  That is not a forced confession, and it is not an improper way of a confession.  The further criticism of the officer by Counsel was when the man exercised his right of silence, as a matter of fact he did not, ‘I do not want to exercise this right but I do not want to make a statement.’  He asked the next question:
	“You have the right to contact a lawyer and ask the lawyer to be present at the interview.”
21. 	That was the responsibility of the officer and he was entitled to ask that question, and the defendant says, ‘No, I don’t want a lawyer [present at the interview].’  He then reads him the third warning:
	“You also have the right to seek legal assistance from a lawyer to represent you in Court if you are charged…Do you want to exercise this right…?”
22. 	And he says, ‘Yes, leave that for later because I have to talk to my father first if he can afford a lawyer.’  That is a perfectly normal and reasonably thing for the defendant to say.  ‘Do you understand the charges?’  ‘Yes.’  And, as often happens in the Court’s experience, the officer gives a person the final opportunity and says:
	“Mitai, do you have anything else that you want to say?
	Mitati: 	Just want to say that I feel guilty about what I have done to my sister, I was tempted by the devil at the time, but I pray God to forgive me.”
23. 	That is the third component of the prosecution case and I accept that he is admitting to sexual impropriety.  I will deal separately with the question of the word ‘sexual intercourse’.
The Defence
24. 	I am dealing with this out of sequence because we had finished with the prosecution case, we then heard from the defendant, the Court then enabled the prosecution to reopen and we then heard from the defence, so I will deal with the defence case in full and then come to what I will call the reopening of the prosecution case.
25. 	Mitai tells us that he went to the river with his young siblings, but he had gone to collect firewood, so he admits being at the place with his siblings and he had said it was about 12 o’clock but he did not meet anyone there.  In other words, he did not see the two prosecution witnesses who were doing their washing in the river.  He did not meet anyone.  ‘I went with my four siblings’ and I think from memory he named Su’e, Pouvi and Tafa, were the three that he named.  But he did not see the prosecution witnesses.
26. 	He agreed that the woman Failagi is related to his father, and he says ‘There are differences between our families about foods (salt)’ and then he tells us ‘I told the police that it was not true.  I said it was a lie.’  And the policeman does not agree with that, and I have dealt with the Record of Interview or Caution Statement and at no time does he say that they are telling a lie.  Then he changes that and says, ‘But I did say that I admitted to the police officer after he recorded our interview when he told us that my parents had brought the charges but I had no knowledge of this.’
27. 	He said that if the witnesses who had claimed to have seen him in the river were telling a wrong story it was because there were differences between the families.
28. 	He was cross-examined and the Court finds that his evidence was internally inconsistent.  At one time he said he was not at the river but he agreed that Su’e was at the river on that day.  He said that Failagi and Vaimanu did not know him quite well but later changed and said they were neighbours and that their plantations were next to each other.  He said that our differences were small differences, but he then says that ‘…one time we sent our brother to get salt and she chased him away and that was what led to it.’
29. 	‘Why did you sign or put your mark on the Records of Interview?’ and he said, ‘Because I was scared of police…He did not hit me or threaten me with words…Our relationship is still good.’  He then said, ‘Ah, but the policeman did not read it out to me…I signed but he had not read it to me.’  I do not accept that.  He then says, ‘I signed it because the officer threatened me…’ but then said in re-examination ‘He made me sign the paper…I made a mark…’ and then he repeated that he was afraid of police.
30. 	The defence then called the mother and she gave evidence that she knew of no impropriety until she had been told by the others that something had happened.  She says in October 2011 she was taken to the police station but she cannot recall which day.  She was taken by police about these charges.  We do not know much more about what happened on that day.  I presume she simply said that she would know nothing about it and nobody suggested that she was hiding anything or was protecting her husband’s child.  Simply in her evidence she was not a witness and so on.  But she said ‘but my mind was made uncertain because these allegations had been made.  But Su’e never mentioned it to me.’  The Court accepts that in many cases children are reluctant to come forward and disclose family sexual matters with their parents.  It is known by many Courts that such is often the case.
31. 	But the mother acted responsibly and accompanied her daughter to the doctor.  I do not accept that the doctor said nothing had happened.  All the doctor is being asked to do is to take the swabs or tests for any sexually transmitted disease, and she said ‘I did not confront the defendant’ and again, that is not always unusual within families.  There are many complex matters that happen in situations such as these.
32. 	She said ‘I have 8 children with my husband.  I have no reason to observe any behaviour which would worry me.’  And then she confirms that she had good relations with the two people who had made the complaint to police that they had seen the unlawful sexual activity.
33. 	She was cross-examined but she simply said there were no bad feelings.
34. 	Today we have heard from Tenisi Faalogo (“Tenisi”), another brother and he told us that he remembers the 17th of September; he was at his fale, his parents went to Apia, caught the 5:30 a.m. bus, he said I was with them the whole day.  Well, it turned out that he had in fact woken at 9 o’clock, gone back to sleep, woke up at 11 o’clock and then says he then remembers that his brother was there, clearing up the banana plantation.  He remembers saying that Mitai was around about 12 or after 12 o’clock but then he said he knew that the children had gone off and they were down at the river, but the river is fairly close to the fale but he did agree, during cross-examination that he did observe seeing the defendant coming back towards the fale from the river behind the children.  And he says, ‘today is the first time that I have told that story.’
35. 	I make no criticism of his evidence.  I do not disbelieve it but it does not provide an alibi.  It simply establishes that his brother was with him for some of the time.  He was asleep for some of the time, and confirms that the brother returned behind the siblings which, rather than being an alibi, is almost confirmation that he had been present with the siblings at a particular time.
36. 	Now the Court gave leave for the prosecution to reopen and we have the medical notes and then the comments of the Doctor who helped us with those notes.  They tell us that on 28 September the girl was brought to the hospital.  A full body check was taken and there was a history of indecent assault by the brother on 17 September.  I accept Counsel for the defence’s critique that the history may have been provided by the accompanying police officer and may be second hand and not come directly from the daughter.
37. 	Central to the evidence is the question of whether the hymen was intact and the Doctor who gave evidence says it was, but medical evidence now suggests that a girl or young woman can lose their hymen with intercourse, whether its voluntary or non consensual, or in some cases you can keep your hymen; it stretches and is not broken, so it is not necessarily evidence one way or the other and as human experience teaches, sometimes the hymen can be broken without sexual intercourse; broken by the girl herself inserting an object in out of curiosity, out of an accident in sport, there are a number of ways that it could happen.  I regard that evidence as being of some assistance.  It does not prove that there had been penetration or at least it does not prove there had been penetration beyond the hymen.  Nor does it disprove the possibility of penetration.
38. 	The evidence is accepted in full and the opinion of the Doctor accepted in full, but in a way had the hymen not been intact it would point more towards there having been sexual intercourse but I will not proceed on suspicion or speculation.
39. 	Therefore I have three ingredients to determine on the question of incest.
(1)	Were they brother and sister?  
	The answer is yes.
(2)	Had there been sexual contact between the two on the day?
	Answer: yes.
(3)	Is the Court satisfied beyond reasonable doubt that he sexually penetrated her with his penis?
40. 	Now in more modern statutes, penetration could be achieved with the tongue, finger and so, but here we are still left with sexual intercourse being penetration by the penis inside the vagina, and I accept the prosecution’s argument ‘to the slightest degree’ is sufficient to establish the second ingredient of incest.
41. 	But I did put to the Doctor a hypothesis that there can be sexual misconduct through friction which does not involve penetration of the vagina, and I gave him an example and he said ‘Yes, that is sometimes possible and it is sometimes, within medical science, no.’
42. 	Accordingly, I have come to the conclusion that I have suspicion that there had been penetration of the girl, on the day in question, by the penis of the defendant.  But that is suspicion only and I am required to be satisfied beyond reasonable doubt.  
43. 	I am satisfied beyond reasonable doubt that the defendant made sexual contact with the genital area of the complainant by lying on top of her and rubbing his penis, at least, between her thighs.  That suspicion is not sufficient to cause me to believe beyond reasonable doubt that he had sexual intercourse with her.  Had she been called as a witness and given evidence of that then I would not be having this trouble but I do not have direct evidence of sexual penetration.  I have evidence of sexual misconduct.
44. 	Accordingly, in accordance with the Criminal Procedure Act 1972 (“the Act”) section 39, I make a finding of indecent assault against him on the incest charge as being an alternate.  Section 39 of the Act states:
	“Part of charge proved - (1) Every information shall be divisible; and, if the commission of the offence charged, whether as described in the enactment creating the offence or as charged in the information, necessarily includes the commission of any other offence, the defendant may be convicted of any offence so included which is proved, although the whole offence charged is not proved.”
45. 	I am satisfied that he indecently assaulted her by rubbing his penis between her legs in the area of her vagina.  I am not satisfied beyond reasonable that he achieved penetration and accordingly, I find him guilty of indecent assault.
46. 	I accept that there was a second act of indecency or what is called indecent assault and that is oral sex by him licking the vagina of the complainant.  It now follows from that that I record the following verdicts on:
(1)	Informations S2489, 2493, 2507 of 2011, each being an allegation of Rape, the Court finds there is no evidence before it and accordingly the verdict returned is not guilty and the charges are dismissed.   
(2)	Information S2146/11 is an allegation of Incest, I find him not guilty of Incest but guilty of the Indecent Assault committed on 17 September.
(3)	Information S2491/11 relates to a different allegation of Incest, said to have occurred between 1 January 2010 and 31 December 2010, there is no evidence at all given on that and accordingly I am required in law to return a verdict of not guilty.
(4)	Information S2492/11 is also an allegation of Incest, said to have occurred between 1 January 2010 and 31 December 2010, again there has been no evidence at all led as to that and the Court has no alternative but to enter and record a verdict of not guilty on that Information.
(5)	Information S2145/11 is an offence under section 4(g) of the Police Offences Ordinance 1961.  The allegation is said to have occurred on 8 October 2011, and presumably alleges words said by the defendant to other members of the family or the neighbours in those terms.  Again, I have no evidence led on that and the prosecution have asked me to deal with it in this Court as part of the other charges.  The verdict I return is not guilty.
(6)	Information S2490/11 is another allegation of Indecent Assault, occurring on 17 September 2011 and that is the indecent assault of oral sex and I find him guilty.  Accordingly the Court finds him guilty of two acts of Indecent Assault on 17 September 2011.
47. 	They are my verdicts and these are my reasons.
(JUSTICE SLICER)

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