Police v Taivale (Reasons) [2000] WSSC 34 (29 September 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SOOLEFAI TAIVALE,
male of Faatoia
Defendant

Counsel: Ms T.P. Vaai for the Prosecution
Mr T.V. Eti for the Defendant

Hearing Dates: 13 September 2000
Sentencing Date: 29 September 2000

REASONS FOR DECISION OF VAAI J.

The accused is charged that at Faatoia on the 15^th July 2000 he indecently assaulted a female under 12 years of age. At the conclusion of the trial held before me as a judge sitting alone on the 13^th September 2000 I announced my verdict of guilty as charged but I indicated I would announce my reasons later. This I now do.

The victim is the 11 year old daughter of the accused who is 39. She was born on the 25^th September 1988 and at the time of the offence she was living with her parents at Faatoia. She is the third child in a family of 5. On the evening of the alleged offence the victim and her 2 younger brothers were at home together with the accused while the mother attended a game of Bingo organised by her congregation at Faatoia. When the mother left for the bingo the accused was drinking Vailima beer and she recollects he was drinking his 3^rd large bottle when she and her older daughter and son left the house. The son did not stay at the bingo but was sent back home to organise the evening meal for the accused. Later in the evening the son was sent by the accused to the bingo to request from the mother some money to buy more beer. The request was refused and later in the evening the accused confronted the mother at the bingo where after an exchange of abuses the accused was escorted home by the mother who promptly ordered the accused to pack up and disappear. Not long after she arrived back at the bingo the mother was told by her son to go to the Police Station.

It is alleged by the victim that after her older brother left the house where the victim and her 2 younger brothers were asleep, the accused came and inquired of her where the older brother was. The accused then left and walked towards the main family house and called out to the victim to come over. She went over and sat besides the accused who was sitting outside the main house and he asked the victim to kiss him. She kissed him but he told her to kiss him with her tongue. He then proceeded to kiss her the way he wanted to be kissed. He then took off the t-shirt she was wearing, sucked her breasts, lie her down, got on top of her and he then inserted his finger insider her vagina.

She was wearing a t-shirt and a skirt. He then got up, held her by the hands and tried to take her into the main house but as he tried to open the door with one hand she pushed him away and ran towards the stream, crossed the stream and onto the road where she met up with one Sala Taefu and her younger siblings who were walking home that night. Sala testified that on their way home she saw a young girl (victim) running towards them. The victim was wet, scared and crying and she was wearing a wet skirt at breast level.

No response came from the victim when questioned by Sala and because of the expression on her face, Sala took the victim to her family where the victim told Sala’s mother Sinei what took place. The victim told Sinei that she was asleep with her younger brothers when her father woke her up, told her to take off her t-shirt and asked her to kiss him. After kissing she went back to sleep but she was again woken up by the accused who wanted another kiss but she got up and ran away. The remainder of the evidence of this witness is inadmissible on the grounds that the witness elicited responses from the victim by questions of leading and inducing character. For the same reasons I reject in totality the evidence of Perenise Taefu, the husband of Sinei who interrogated the victim before deciding to telephone the police who came and took the victim to the police station.

I have reminded myself that the evidence of what the victim is alleged to have said to Sinei by way of complaint shortly after the incident is not evidence of the truth of what was said; it is not evidence tending to prove what actually had occurred, but to show (if it did) some consistency on her part between what occurred on the night in question and the story told by her in the witness box. In so far as such evidence was admissible it ought not in my judgment to be used in the circumstances of this case to bolster the credit of the victim. But that is not to say I reject the evidence of the victim entirely.

Shortly after the victim lodged her complaint with the police on the night of the alleged incident the 15^th July, the accused was brought by the police from his home in the early hours of Sunday morning the 16^th July and was questioned by Sergeant Joe Stowers. During the course of questioning the accused, Sergeant Stowers says the accused admitted kissing the breasts of the victim, rubbing her stomach and attempting to have intercourse with the victim. The accused was then cautioned.

In his sworn testimony the accused denied telling the police that he sucked the victim’s breasts and rubbed her stomach. He admitted drinking Vailima beer and he admitted sending his son to the bingo game to fetch some money to buy more beer, and he admitted marching down to the bingo game to confront his wife when money was not given. He went on to say that he then sent his son to the shop to request beer on credit. He then went over to where the victim was asleep, woke her up, and asked her to come with him to the main house. She went with him. As they walked together towards the main house the accused was leaning on the victim and he then told her to accompany his older brother to the shop as it was late at night. She was afraid and she therefore refused to go but this made him mad and so he slapped her on the cheek. He asked her two more times and for her refusal she was slapped twice on the same cheek. She cried and he then tried to kiss her as he was sorry for what he did and as he tried to take her into the main house she pushed him away and ran towards the stream.

In considering the evidence adduced, I am required by a rule of practice to give myself a warning that it is unsafe to convict the accused on the uncorroborated evidence of the complainant. And corroborative evidence is some evidence coming from an independent source other than the complainant herself which implicates the accused and confirms or tend to confirm in some material particular that the accused is guilty of the offence. For the evidence to be corroborative it must be such as to show not only that the crime under consideration was committed but also that the accused committed it.

I accept from the uncontested evidence of the victim and of her mother that the accused was 11 years of age at the time of the alleged offence. It is also confirmed by the accused himself that the victim did run away from home towards the stream as he (the accused) tried to take her into the main house and after he assaulted her.

After giving careful consideration to the evidence I have decided to accept the uncorroborated evidence of the victim that the accused kissed her with his tongue, took off her t-shirt, sucked her breasts and poked his finger inside her vagina. When the victim was met on the road by Sala Taefu on the night of the alleged offence she was wet and was wearing only a wet skirt at breast level. And I also accept the evidence of the investigating Police Sergeant that during the interview, the accused admitted to kissing the victim’s breasts, rubbing her stomach and trying to have intercourse with her.

I reject the evidence of the accused concerning his reasons for assaulting the victim. If the accused had wanted the 11 year old victim to accompany her older brother to the shop because it was late at night he would have sent them off together to the shop. But according to his evidence (if it is to be believed), he sent his son to the shop, he then went to the house where the victim was asleep, woke her up and he asked the victim to come with him to the main house. And he had his arms around her as they walked to the main house. He then asked her to go to the shop. At this stage the 2 youngest children who were sleeping with the victim were left unattended at the other house. It requires very little imagination to conclude that the accused had wicked motive in mind when he was outside the main house with the victim.

I am satisfied that the charge to indecent assault has been proved beyond reasonable doubt.

JUSTICE VAAI