SUPREME COURT OF SAMOA
Police v Faalogo [2012] WSSC 66

Case name: Police v Faalogo
Citation: [2012] WSSC 66
Decision date: 22 June 2012
Parties: 
POLICE v KURESA LUATASI FAALOGO, male of Sagone
Hearing date(s): 19 June 2012
File number(s): 
Jurisdiction:  Criminal
Place of delivery: Mulinuu
Judge(s): Nelson J
On appeal from:
Order:
Representation: 
Ms P Valoia 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
Informant

AND:

KURESA LUATASI FAALOGO, male of Sagone.
Defendant

Counsel:  Ms P Valoia for prosecution
Defendant unrepresented

Hearing:  19 June 2012
Decision:  22 June 2012

ORAL DECISION OF NELSON J

1.	The defendant is said by the prosecution to face two charges, one that at Sagone on 12 November 2011 he indecently assaulted the complainant a girl between 12 and 16 years of age.  And the second that at the same place on the same day he threatened to kill her.  I have now been able to locate the second charge and it is clear from what the defendant maintained at trial that he is also contesting and pleads not guilty to that matter as well.  For the purposes of the record the charge numbers are the indecent assault S2774/11 and the threat to kill S1146/12.  There will also issue a suppression order prohibiting publication of the name and any details in relation to the complainant.  
2.	The complainant at all material times was aged 13 years having been born on 11 February 1998 at Sagone where she lived with her parents and family.  Her evidence was that in the early hours of Sunday 13 November 2011 the day after the church faigāmē she was asleep in of the bedrooms of the family home with her younger siblings.  She was awakened by the drunk defendant covering her mouth and proceeding to undress her.  She said the defendant sexually assaulted her by “eating her breasts and private part” and then told her that he had done the same to a girl of his wifes family and if she tried to tell anyone about what happened he would kill her.  She recognized the defendant because the room was lit by moonlight and she was sleeping next to the rooms only window.  She also said the defendant had a white T-shirt draped over his shoulder (“asoa”) and that he left it in the room after the sexual  assault.  She called out to her mother and siblings for assistance.  He mother came and she reported to her what had happened.  The defendant is a neighbour of the complainant and the mother rang and confronted the defendant and also went to the house of the defendants family that night.  
3.	The complainants 12 year old brother was also called as a prosecution witness.  Essentially he corroborated what the complainant said that the defendant was “moetolo” to his sister.  He said he was awakened by the complainants struggles and he saw what the defendant was doing to his sister.  But he was afraid to intervene in case the defendant beat him up.  The young boys fear of the defendant was obvious when he gave his testimony in court.  When the defendant left the room the boy got up and turned on the house lights and was able to see the defendant standing in front of their familys house next door.  He said he was able to clearly recognize him because he turned back to look at him.  He also confirmed that he had seen the defendant wearing a white T-shirt earlier that day.  And that the T-shirt was left in the bedroom post incident.  Both these children know the defendant well because he is a neighbour although the house he actually resides in is one house away from their house.
4.	The testimony of the complainants mother was that she was awoken by cries from her children while asleep in the bedroom next to theirs.  She went to investigate and found the distressed complainant.  The complainant complained to her of a sexual assault by the defendant.  So she rang the defendants cell phone but the defendant denied the accusation.  Accordingly she took the defendants T-shirt next door and confronted him in front of his parents and family.  The defendant continued to deny involvement.  She said the T-shirt was subsequently returned to her by the defendants sister in law and in due course she passed it on to the police.  T-shirt was produced before the court and it is a well used white T-shirt with a collar.  
5.	The prosecution also called three men of the village who had been drinking with the defendant that Saturday night at the house of one of them Pelesauma Tapuai.  The party began upon completion of the church faigāmē activities.  All the three men agreed that the defendant joined the party around 10:00pm that Saturday night.  And after shouting a second bottle of vodka he received a phone call and left the party.  This was somewhere between 11:00 pm and midnight.  At about midnight one of the three men Sefo Maoae left the party while the other two continued drinking.  
6.	The two men testified about the defendant returning to the party somewhere between 12:00 midnight and 1:00 am and calling out to Pelesauma.  Pelesauma and the defendant then went to the defendants parents house nearby where Pelesauma confirmed to them that the defendant had been earlier drinking with them at his house.  Two of these three men said that the defendant had a white T-shirt around his neck.  The third said that he was “faasausau” or not wearing anything on top and only had his ie lavalava on.  Sefo Maoae who sat next to the defendant confirmed that the T-shirt had a collar and was used.  None of these witnesses changed their evidence in cross examination in response to questioning from the defendant.  
7.	The defendant was subsequently interviewed by the police and he gave a statement to them but as it was an exculpatory statement denying any criminal wrong doing that statement was not admitted as part of the prosecution case.  The defendant has continued to deny any involvement in this matter. At the end of the prosecutions case his options were explained to him and he elected not to testify as is his constitutional right but to make instead an unsworn dock statement.  He claimed that the first he knew of this matter was when the complainants mother called on the phone and abused him.  So he took Pelesauma to his parents place to confront his accuser and to confirm his “alibi” for the evening. 
8.	Unfortunately this alibi evidence is not as secure as the defendants believes.  Because the witnesses said that he left the drinking party around midnight and returned a while later to fetch Pelesauma.  Given the proximity of Pelesaumas house where the party was taking place to the complainants house there was ample time for the defendant to leave the party, commit the offence be accused and then return to fetch Pelesauma. 
9.	The defendant was clearly up and about in the area at the relevant time as there was no suggestion by him or evidence that he was for example asleep.  I also note his explanation that his wife was constantly ringing him on his cell-phone to leave the party and come home was not mentioned by his three drinking compatriots.  Neither was it put to them by the defendant when he cross examined them.  The evidence of the three men is that he received only one call during the party which led to him leaving the party.  That was probably call from his wife. 
10.	I am well satisfied from the prosecution evidence the defendant is the perpetrator of the indecent assault. There is no possibility of misidentification.  I am also satisfied beyond reasonable doubt these accusations are not being made up by the complainant or her brother.  They were both credible witness who gave their evidence in a clear and direct style.  I find Kuresa both charges proven beyond reasonable doubt.  You are remanded in custody to the 09th of July 2012 for probation report and for sentence.   

JUSTICE NELSON