SUPREME COURT OF SAMOA
Police v TT [2012] WSSC 62

Case name: Police v TT
Citation: [2012] WSSC 62
Decision date: 15 June 2012
Parties: POLICE v TT
Hearing date(s): 22 and 28 May 2012
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Nelson J 
On appeal from:
Order:
Representation: 
Ms F E Niumata for prosecution
Defendant unrepresented
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

TT
Defendant

Counsel:  Ms F E Niumata for prosecution
Defendant unrepresented

Hearing:  22 & 28 May 2012

Decision: 15 June 2012

ORAL DECISION OF NELSON J

1.	The defendant faces three counts of attempted rape with three corresponding alternative counts of indecent assault.  Together with one count of using threatening words.  The charges arise out of three alleged incidents of sexual assault said to have occurred in 2004 when the alleged victim was 5 years of age,  2009 when she was 9 years of age and 2011 when aged 12 years.  
2.	The first two incidents are alleged to have taken place in the family home at Manunu.  And the third in bushes on the way there after the defendant fetched the complainant from her grandmothers house in a neighbouring village.  These incidents were only drawn to police attention when the defendant and his wife had a fight in March this year and relatives called the police for assistance.  
3.	The defendant is the victims biological father and a suppression order will issue in respect of the details concerning both the defendant and the victim and their places of residence.  This case is to be reported as Police v TT.  
4.	The prosecution evidence consisted of firstly a police photographer who photographed the inside of the family home at Manunu.  Witnesses confirmed that although the interior furnishings have changed the house which is a falepalagi “taalaelae” style with no walls  was essentially in the same condition as it was when the defendant and his children resided there.  Although the defendant tried to deny it I am satisfied from the prosecution evidence that at all material times the defendant and his immediate family resided in that house being the house of his family at Manunu.  The photographs also included the family kitchen situated inland of the house but I am satisfied none of the alleged incidents occurred there and their inclusion in the police photographs booklet was merely to complete the overall picture of this family and its circumstances.  
5.	The primary prosecution witness was the complainant herself born 14 June 1998 which means she turned 14 years old yesterday.  Her evidence was that while she was asleep during a night in 2004 the defendant pulled her out of the mosquito net that she shared with her mother, sisters and other siblings.  He undressed her and performed various sexual acts upon her including oral sex of her private parts.  She said she tried to scream but he covered her mouth and that he was unable to penetrate because she kept her legs tightly crossed.  The defendant had earlier been sleeping alone in his smaller mosquito net on the other side of the house.  She said she reported the incident to her mother and aunty a day or so later leading to a family meeting involving her, her mother, her aunty and the defendant.  At which the defendant denied any wrong doing but the matter was discussed and resolved.  
6.	The complainants further testimony was about a repeat incident of sexual assault in 2009.  She gave almost identical evidence of what happened except that this time she and her younger sister were in one mosquito net and her mother and sisters in another.  The defendant was sleeping in their faleoo and he came to her during the night and sexually assaulted her but this time the sexual assault was accompanied by a threat to slash her with a bush knife.  She said the knife was physically present in the house leaning against a nearby post and that at one point she accidentally cut herself on the knife during the course of her struggles.  
7.	The complainant also testified about a third sexual assault around Christmas 2011 when the defendant came and got her from her grandmothers house in the neighbouring village of Lalomauga, her mothers village.  She said they returned to Manunu via an “auala kipi” or a short cut via a dirt track and enroute he pulled her into the bushes.  He pushed her down undressed her and sucked her breasts.  He tried to insert his penis into her but she squirmed and screamed and he was unable to penetrate her.  Eventually the defendant gave up and pushed her back onto the road.  She dressed and the two of them continued their journey. She did not tell any one about this incident in 2011.  
8.	A medical examination of the complainant on 23 February 2012 confirmed old tears in her hymen but no evidence of recent sexual activity.  That evidence was given to the court by the examining doctor.  
9.	Also called as a prosecution witness was the complainants mother who is the defendants married wife.  She confirmed she was willing to voluntarily testify against her husband.  And confirmed being told of the 2004 incident and the occurrence of a family meeting wherein the matter was discussed and settled.  But she denied knowledge of the other two alleged sexual assaults until the police intervened in February 2012 because of a dispute that arose between her and her husband.  It was only then that those matters were revealed.  
10.	That such things can happen within a family that live and sleep together in the same house without the mothers knowledge is a little difficult to accept but that is what the complainants mother is asking the court to believe.  And this even though she admitted in questioning by the court that she had been told by her daughter of a further incident that occurred in 2006 involving the defendant going to the complainants mosquito net one drunken night after partying with some friends.  
11.	Also called by the prosecution was an aunty of the complainant but not the aunty that the complainant had complained to in 2004.  This aunty gave evidence about suspicious behaviour and a late night “evaga” between the defendant and the complainant.  It was this aunty who rang the police for assistance in February when the couple quarreled and things were being thrown around by the defendant.  
12.	Also produced as evidence for the prosecution was a cautioned statement given by the defendant to the police.  Though the defendant denied admitting anything to the police I am satisfied after hearing the evidence of the investigating officer and the defendant that the cautioned statement was properly obtained and the partial admission therein on page 7 is admissible as evidence against the defendant.  The admission reads: 
“Tailo iai pe aisea ua toe aumai ai nei mea na tutupu muamua.  Ae ua leva ona tutupu ma ua maea foi ona teuteuina a’o lea ua avea le mataupu lenei na molia muamua ai a’u ua laga mai ai le mataupu lenei.”  

13.	This is a clear reference by the defendant to incidents that occurred a long time ago which have been settled being dredged up again because of the current complaint arising from his misa with his wife in February 2012.  And this admission is contained in a statement signed by the defendant and the investigating officer.  
14.	After being fully advised as to his options the defendant elected to give evidence.  This comprised denials of wrong doing and the assertion that the complainant is making up stories because she is afraid of the mothers family.  And that the other prosecution witnesses are lying because of the damage he caused to their properties.  
15.	I have listened carefully to the evidence in particular that of the defendant.  I have observed his manner and demeanour throughout this trial and I do not believe a word he has told me.  I therefore find as follows:  I am satisfied the sexual assaults as related by the complainant who was very articulate and firm in her evidence did occur during the years 2009 at night in the family home at Manunu and in 2011 in the bush on the way from Lalomauga to Manunu.  
16.	I am not satisfied beyond reasonable doubt as to the 2004 assault as at that time as the defendant rightly points out the complainant was only 5 years of age.  The complaint for that matter was only made to the police in February this year some 8 years later.  I also doubt such a sexual assault as described by the complainant could have occurred in the same house only a few metres from her sleeping mother and siblings without any of them noticing.  
17.	I accept a family meeting confronting the defendant about his actions was held. The defendant confirms as much in his cautioned statement.  But I believe that the parties are mistaken as to the dates and that meeting was in relation to later incidents probably 2006 or possibly 2009 but not in relation to 2004.  I also note the complainant initially in her evidence in chief said no such meeting had occurred the day after the offending in 2004.  The complainant was far more credible in her description of the events of 2009 than 2004 which is not at all surprising given her age in 2004.  
18.	Accordingly the charge of attempted rape S392/12 in 2004 and the charge of indecent assault S395/12 relating to 2004 are both dismissed.  
19.	The charge of attempted rape in 2009 S393/12 I find proven beyond reasonable doubt.  The alternative charge of indecent assault in 2009 S396/12 is dismissed as it was an alternative charge.  
20.	The charge of attempted rape in 2011 S394/12 I also find proven beyond reasonable doubt.  The alternative charge of indecent assault for 2011 S397/12 is likewise dismissed.  
21.	In respect of the one count of threatening words S391/12 I am satisfied this occurred and threats were made by the defendant to his daughter to keep her subdued.  As per her evidence this occurred in 2009.  Accordingly I amend the dates in S391/12 to read between 01 January 2009 and 31 December 2009 the defendant did carry out these threats and I find that charge proven beyond reasonable doubt.  
22.	lona uiga o le faaiuga a le faamsinoga ile mataupu lenei Talimalama e tusa ai ma moliaga e fitu ia na aumai ai lau susuga i luma o le faamasinoga.  E tolu moliaga ua faamaonia, fa moliaga ua faaleaogaina e le pule a le faamsinoga ona e le lava molimau a le mataupu lena.  O le faaiuga ma le faasalaga mo lau mataupu o le a tolopo e lau i le aso Gafua aso 02 o Iulai 2012.  O le a  faaauau pea lou nofo taofia e faatalitali ai le faaiuga o le mataupu lenei.

JUSTICE NELSON