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Police v Pao [2016] WSSC 189 (24 October 2016)

Supreme Court of Samoa
Police v Pao [2016] WSSC 189

S1873/15-S1883/15

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D

MEAPILA FONO PAO male of Vaigaga and Saleimoa.
Accused

Counsel:
R Titi for prosecution
T I Ponifasio for accused

Hearing: 30, 31, March 2016; 26, 29 August 2016

Written submissions: 21, 26 September 2016

Judgment: 4 October 2016

Reasons for Judgment: 24 October 2016

REASONS FOR JUDGMENT

The charges

1. The accused Meapila Fono Pao, a 24 year old male of Vaigaga and Saleimoa, stood trial on one charge of having sexual connection with a girl between the age of 12 years and 16 years. The provisions of the Crimes Act 2013 cited by the prosecution in support of the charge are ss.50 and 59 (1), (5).

The elements of the charge

2. The charge of having sexual connection with a girl between the age of 12 years and 16 years consists of two elements which the prosecution must prove beyond reasonable doubt. These are:

(a) the accused must have had sexual connection with the complainant, and

(b) the complainant was at the material time between the age of 12 years and 16 years.

3. It is essential that the prosecution must be clear about the elements of the charge as it will assist the prosecution to determine what evidence is relevant to prove the elements of the charge. It is also essential for the defence to be clear about the elements of the charge that the prosecution has to prove so that cross-examination of prosecution witnesses will be focused on what is relevant. This will help to save time for everyone concerned and expedite the trial.
4. The term “sexual connection” is defined in s.50 of the Act to mean, inter alia, connection by the penetration of the genitalia of any person by any part of the body of another person. It appears from the evidence adduced by the prosecution that this is the meaning of the term “sexual connection” that the prosecution is relying on. It would have been helpful for the purpose of clarity if the prosecution had particularised in the information the particular type of “sexual connection” it is relying on. Anyway, there was no application from the defence for the prosecution to provide further and better particulars of the charge.
5. Section 59 (1) makes it an offence to have sexual connection with a “young person” which term is defined in s.59 (5) to mean a person who is over the age of 12 years and under the age of 16 years. The usual method of proving the age of a complainant in a sexual case is by calling the mother of the complainant to produce the birthcertificate of the victim provided that the evidence of the birthcertificate standing alone is sufficient proof: R v Forrest and Forrest [1970] NZLR 545 per North P. But production of the brithcertificate by the mother is not the only method of proving the age of the complainant in a sexual case. There are other methods. For example, in R v Weaver (1873) LR 2 CCR 85 the evidence of a child’s grandmother who was present at its birth was held admissible to prove the age of the child even though the grandmother was not present at the registration of the child’s birth.

Relevant evidence adduced by the prosecution to prove the charge

6. As to the first element of the charge, namely, that the accused had sexual connection with the complainant, the prosecution rely first on the evidence of the complainant. According to the complainant, it was on a Wednesday night in early December 2014 when the Filipino series of Ina and Angelo was showing on TV in one of her relatives nearby house that her mother told her to go to their faleoo and fix their beds and sleeping mats while she, the mother, prepared their food from the house of one of her brothers. After fixing their beds and sleeping mats the complainant returned to the house where her mother was. She was then told by her mother to take her baby sibling to the faleoo to be put to sleep. The complainant said that while she was at the faleoo, the accused came and asked her where her father was and she replied her father was on the other bed. The accused then went and looked at the other bed but the complainant’s father was not there. He then said to the complainant that she was lying. The accused then left the faleoo but after a while returned to the faleoo and got on the complainant’s bed. The complainant said that the accused then forcefully removed her shorts. When she tried to call out to her mother, the accused covered her mouth with his hand. He then laid on top of her, inserted his penis inside her vagina, and had sexual intercourse with her. He then got off her, laid beside her for a short while before he got on top of her again, inserted his penis inside her vagina and had sexual intercourse with her again. The complainant said the accused did this to her three times before he saw the approaching headlights of her father’s car as her father was returning from work. The accused then jumped off her and ran away.
7. The complainant was sure that it was the accused who had sex with her as he is her first cousin, they live together in neighbouring houses, and she is familiar with his face, looks, and voice as they had grown up together. There was also light that came from a lamp behind their faleoo where this incident happened. According to the complainant, she became pregnant as a result of the accused having sexual intercourse with her. This was subsequently known to her family. She gave birth to a baby on 20 August 2015.
8. The complainant also said that prior to this incident, the accused had shown her unbecoming behaviour as he would come up and touch her bottom when she goes to buy something from a nearby shop. However, under cross-examination by defence counsel she gave evidence to the effect that the accused had only touched her bottom once.
9. The prosecution also relies on the evidence of the complainant’s mother who testified that on a Sunday afternoon after the said incident between the accused and the complainant had happened, their family had a meeting at Vaitele. Amongst the people present at that meeting were the complainant’s mother and the accused and his mother. The complainant’s mother and the accused’s mother are sisters. The complainant’s mother testified that when the matter concerning her daughter and the accused was raised at that meeting, the accused cried and apologised. He said “Ou te faatoese atu ile mea ua tupu” (I apologise about what has happened) and continued crying.
10. The complainant’s evidence about the accused having sexual intercourse with her was subjected to extensive cross-examination and subsequent submissions by defence counsel. One of the main reasons for this stems from the way the charge was originally framed by the prosecution which shows that the alleged offence occurred between 30 November 2014 and 1 February 2015. In other words, the alleged offence occurred in December 2014 or January 2015. The complainant said in her oral testimony that it was about early December 2014 that the accused had sexual intercourse with her but she was unsure about the exact date. However, when the doctor who medically examined the complainant was called as a witness by the prosecution, she said that because the complainant gave birth on 20 August 2015, conception could have occurred in October 2014. I can understand this because according to accepted medical knowledge a typical period of gestation or pregnancy for a woman is forty weeks, or about ten months, from the first day of a woman’s last menstrual period to the birth of the baby. If counsel for the prosecution had thought carefully about it, this point could have been picked up during the preparation of this case thus saving much time for everyone at the hearing. As a consequence, the prosecution towards the end of the trial applied to amend the charge by backdating to October 2014 the commencement of the time period during which this offence could have been committed. This was opposed by defence counsel. I decided to grant the amendment sought by the prosecution.
11. Defence counsel in his written submissions also points to other inconsistencies in the complainant’s evidence together with the medical evidence which he says results in a reasonable doubt as to whether the accused had sexual intercourse. I should point out that while the inconsistencies in the complainant’s evidence, particularly the inconsistency between the complainant’s evidence and that of the doctor, are relevant to credibility and reliability, the real issue for determination is whether the accused had sexual connection with the complainant and not when such sexual connection took place. In examination in chief and under cross-examination, the complainant maintained that the accused had sexual intercourse with her. She was certain it was the accused. That is because she knows him well 2, is familiar with his looks and voice, they live close by to one another, they are first cousins and had grown up together, and there was light from behind the faleoo where the accused had sexual intercourse with her. The complainant’s mother also testified that when this matter concerning the accused and her daughter was raised at a family meeting, the accused cried and apologised.
12. As to the second element of the charge, namely, that the complainant was at the material time between the age of 12 years and 16 years, the complainant testified that she is now 14 years and was born on 10 March 2002. The prosecution also called as a witness the complainant’s mother. She confirmed that the complainant was born on 10 March 2002 and produced the complainant’s brithcertificate which shows the complainant’s date of birth as 10 March 2002. This must mean that the complainant was 12 years and several months at the time of the alleged offence.
13. Under cross-examination by defence counsel, the complainant’s mother said that she is not the complainant’s natural mother but she was present at the birth of the complainant when the complainant’s natural mother gave the complainant to her to be her child. That is why she knows the complainant’s date of birth. The complainant was subsequently registered under the names of herself and her husband that is why she refers to the complainant as her daughter. The mother’s evidence that she was present at the birth of the complainant is direct evidence which is admissible to prove the complainant’s date of birth.

Evidence by the accused

14. The accused testified that during the months of November and December 2014 and January 2015 he was always busy at work at the restaurant in Apia where he was working as a chef. During that time he worked days and nights and only went home on Saturdays as there were a lot of functions they had to cater for because of the festive season. His working hours were from 7:00am in the morning to 2:00pm in the afternoon and then started again at 3:00pm in the afternoon and continued throughout the whole night. He was therefore staying at the restaurant all the time except on Saturday nights when he went home. He therefore denied that he was at home at the time the complainant says he had sexual intercourse with her on a Wednesday night in the early part of December 2014. As a consequence, counsel for the prosecution submitted that the accused was raising alibi as a defence and applied to call evidence in rebuttal. Defence counsel in his submissions says that the accused never had any intention to raise alibi as a defence. The defence was merely disputing that the offence ever occurred. Even if that is so, the evidence given by the accused was tantamount to raising alibi as a defence and as a consequence, counsel for the prosecution applied for leave to call alibi rebuttal evidence. Leave was granted.

Prosecution evidence in rebuttal of alibi

15. The first rebuttal witness called by the prosecution is the operation manager of the restaurant where the accused said he was working. When counsel for the prosecution put the accused’s evidence to this witness, she said that no employee ever worked like this at their restaurant. Employees of their restaurant hardly sleep at the restaurant except on one-off occasions when they were required to cater for big functions.
16. The hearing was further adjourned part-heard for the prosecution to call more evidence in rebuttal of the accused’s alibi. On the day the hearing was to resume, defence counsel advised that the defence has abandoned alibi as a defence. This does not reflect favourably on the accused.

Amendment of the charge

17. As a consequence of the evidence of the doctor who medically examined the complainant, the prosecution applied to amend the information so that the period of time during which the accused had sexual intercourse with the complainant was to be changed from “between the 30^th day of November 2014 and the 1^st day of February 2015” to “between the 30^th day of October 2014 to the 1^st day of February 2015”. The defence opposed the application to amend the charge. I decided to grant the amendment sought by the prosecution.
18. Section 36 of the Criminal Procedure Act 1972 which gives the Court discretionary power to amend an information provides insofar as relevant:

“(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge, the Court may amend the information in any way at any time during the trial.

“(2) Without limiting the generality of the powers conferred by subsection (1) of this section, the Court may amend an information by substituting one offence for another”

19. The exercise of the Court’s discretionary power to amend an information during a trial must be guided by what the interests of justice require in the circumstances. In this case, there was no undue prejudice to the accused if the amendment to the information sought by the prosecution was granted. I therefore granted the amendment.
20. Defence counsel opposed the amendment because he says that the accused relies on the mistaken time of the offence stated in the information as a defence. All of this could have been avoided and time saved for everyone if the prosecution had taken care in drafting the information in view of the evidence in its possession. Reference should also have made to a medical dictionary which would have shown that the typical period of gestation or pregnancy for a woman is forty weeks, or about ten months, from the first day of a woman’s last menstrual period to the birth of the baby. From December 2014 to 20 August 2015 when the complainant gave birth to her child is only about eight months.
21. Anyhow, I do not accept the opposition from the defence. To accept such opposition would mean that even if the evidence discloses an offence, the charge can be dismissed if the prosecution has made a mistake in dates. This would make the law overly technical without due regard to the interests of justice. This is one of the types of situation to which the Court’s power to amend an information in any way at any time during a trial was intended to apply.
22. The time of an offence is not an element of the charge that the prosecution has to prove. In terms of s.16 of the Criminal Procedure Act 1972, the time or date of the offence is a particular that has to be specified in the information in order to fairly inform the accused of the substances of the offence. But it is not an element of the charge. A mistake as to the time or date of the offence as shown in the information in this case can be amended provided it does not result in any undue prejudice to the accused. There is no such prejudice in this case.
23. Perhaps it should also be noted that in terms of s.36 (3) (c) of the Act, the Court’s power to amend extends to as far as substituting one offence for another. The guiding principle in the exercise of the power to amend is what the interests of justice require in the circumstances.

Discussion

24. Having regard to the evidence given by the complainant and her mother for the prosecution, I am satisfied that the accused had sexual intercourse three times with the complainant. There is nothing in the evidence given by the accused to make me change my mind. I therefore conclude that the prosecution has proved the first element of the charge beyond reasonable doubt.
25. In respect of the second element of the charge, I am also satisfied from the evidence of the complainant and her mother that at the material time, the complainant was between the age of 12 years and 16 years. She was actually 12 years and several months. I therefore conclude that the prosecution has also proved the second element of the charge beyond reasonable doubt.

Conclusion

26. All in all then, I find the charge against the accused to have been proved beyond reasonable doubt.

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CHIEF JUSTICE