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Police v Seve [2018] WSSC 106 (27 August 2018)

SUPREME COURT OF SAMOA
Police v Seve [2018] WSSC 106

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LOGOIMAMAO SENIFILI SEVE male of Fagalii-uta and Satalo Falealili.
Defendant

Counsel:
F Ioane for prosecution
I Sapolu for defendant

Hearing: 02 & 16 July 2018

Ruling: 27 August 2018

RULING OF NELSON J

1. The defendant faces three (3) charges. The first that at Fagalii-uta on 07^th October 2017 he did have sexual connection with the complainant a female under the age of 16 years. The second is that same date same place he committed an indecent act on the same female. And the third is that same date same place he did assault the complainant.
2. At the end of the trial his counsel conceded there was evidence establishing the assault and indecent act charges but submitted that in light of the doctors evidence the charge of unlawful sexual connection was not proven beyond reasonable doubt. I will accordingly examine the evidence on this basis.
3. The evidence of the then 12-year-old complainant is that on Saturday, 07 October 2017 the Saturday before Lotu Tamaiti, she was sent by her mother to fetch a “lapalapa” from the back of their property. There she encountered her neighbour the defendant. According to her he clamped his hand over her mouth and sexually assaulted her by reaching into her clothes and touching her breasts and private part. She also mentioned his kissing her on the mouth. In cross examination she described the defendants actions on her genitals as “eneene” which is what is contained in her statement to the police. A statement taken a few days post incident.
4. The defendants actions were disturbed by the arrival of the complainants uncle Okei. He told the defendant he would report him to the police and the defendant responded “lets talk”. The uncle took the complainant back to her house and she told her mother what had happened. The mother reported the matter to the police and later that day the complainant was taken to hospital and examined, including a vaginal examination by a female doctor but the complainant did not recall the doctors name.
5. The uncles evidence was she was sent by the complainants mother to the back of the land to look for the complainant as she had been gone for a long time. And when he came upon the couple they were engaging in “uiga e le fia tilotilo iai seisi”. He described them as kissing and mutually touching each others private parts. He said they were surprised to see him. And that the defendant quickly pulled up his zipper and invited him to have a discussion. The uncle said he warned the defendant and suggested he leave the area before something happens. The defendant then left. He came with the complainant to the front and reported to the mother the “uiga le fetaui” that he caught the couple engaged in. He also testified as to the defendant later coming to his house with food seeking an opportunity to talk. Which he rejected and reiterated his warning to the defendant.
6. Apart from the complainants mother the only other prosecution witness is Doctor Manatua Iati who examined the complainant at Motootua Hospital. Her report notes that this occurred on 10 October 2017 at 1742 hours and her evidence in chief was as follows.

“Pros: o le a foi lou piitaga i le mataupu lea e suesueina, o le a lau galuega sa faatinoina?

Wit: I was on call on the day that the police presented a patient to the labour ward at around 6pm in the evening with the complaint of allegedly having been sexually assaulted on the day.

Pros: do you remember if you had a written report for that examination?

Wit: ioe

Pros: if the report is shown to you would you be able to recognize it?

Wit: e faapea lava

Pros: your honour I respectfully ask if the report could be given to the doctor?

HH: yes

Pros: faamolemole pe mafai ona e faitauina mai le vaega o lau lipoti lea e faapea mai findings

Wit: findings: intact hymen, abrasions seen on the inside of the labia minora, no bleeding”.

7. The difficulty that arises out of the doctors evidence was that the examination occurred on Tuesday, 10 October 2017 which was after the Lotu Tamaiti Sunday and Monday public holiday. And some days after the alleged assault. However, it also emerged in cross examination that the doctor has taken photos on her phone of the complainants abrasions of the private part. Photos that she was requested to make available to the defence if required. The doctor was also firm in her testimony that the abrasions that she saw were fresh, less than 12 hours old. I noted her report was written in July 2018.
8. I conclude from considering the whole of this evidence that the doctors report notes the wrong date. And that the young girls examination occurred as testified to by her and her mother on the evening of Saturday before the Lotu Tamaiti. These abrasions are consistent with digital fondling or penetration of the complainants private parts. Which is what the complainant said happened to her.
9. It is clear from the evidence of the uncle that the couple engaged in consensual sexual activities. That however is no defence to a defendant. Section 61(2)(a) of the Crimes Act specifically provides it is not a defence to this kind of charge that the young person involved in the offending consented to the sexual connection.
10. I am accordingly satisfied beyond reasonable doubt the defendant committed the unlawful sexual connection in touching the complainants breasts and private part as alleged. I accordingly find him guilty of that charge as well as performing an indecent act on the complainant. But not guilty of the assault given that the girl consented to his actions.
11. Ona o lea ua faamaonia moliaga ia e lua e faasaga ia oe, tasi lea ua faaleaogaina Logo. O lea o le a tolopo le tatou mataupu i le aso 16 Oketopa 2018 mo se faaiuga. Tatau ona e oo i le Ofisa Faanofo Vaavaaia e tapena mai se lipoti mo oe, e taua le lipoti lena mo lau susuga. Tulaga foi lea e tatala ai oe i tua e tatau ona faaauau e faatalitali ai le faaiuga, a’o le ta o le 10:00 i le aso 16 o Oketopa lea ua toe tolopo iai le tou mataupu.
    

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JUSTICE NELSON