Police v Paulo (Reasons) [2002] WSSC 2 (13 February 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

LAFAELE PAULO,
male of Tafitoala and Leauvaa
Defendant

Counsel: Mr D. Potoi for the Prosecution
Mr A. Roma for the Defendant

Date of Hearing: 24 January 2002
Date of Sentencing: 13 February 2002

REASONS FOR DECISION

The accused is charged with indecent assault under Section 53(2)(a) of the Crimes Ordinance 1961. He is 51 years and was at the time of the alleged offence a Catholic Catechist of the village of Mulifanua. The alleged victim, a 12 year old girl from the village of Mulifanua is a member of the congregation of the accused. At the conclusion of the hearing of the evidence on the 24^th January I announced my verdict of guilty as charged but I indicated that I would give my reasons later. These are my reasons.

The Complainant’s (Victims) Allegations:

On Monday afternoon (1/10/2001) the victim and her 9 year old younger brother on instructions from the accused went to practice prayers of confessions with the accused in a room inside the church. After her younger brother came out of the room upon completion of his practice the victim went inside for her turn. Once the victim was inside the room the accused locked the door; he asked the victim to come to where he was and when she did not comply he grabbed her and pulled her towards him, undid her shirt and sucked her breasts. He sucked her breast for a long time. Her attempts to stop the accused did not deter the accused; he in fact continued on by pressing his lips against her lips and sucked her tongue. In the meantime the younger brother of the victim and another younger girl were trying to open the door from the outside and the victim was allowed to leave the room and whilst they were walking home the victim told her younger brother that the catechist (faifeau) was bad. It was not until the next day that the victim told her mother what the accused allegedly did to at her.

Under cross examination it was put to the victim that in her statement to the police dated the 24^th October 2001 she told the police that the alleged incident took place on the 2^nd October and not the 1^st October as she had testified. She insisted the incident was on the 1^st October. I accept that at the beginning of her police statement it says the indecent assault was on the 2^nd October; but towards the end of the same statement it says that on the following day the Tuesday (2/10/2001) she told her mother about the incident.

EVIDENCE OF RECENT COMPLAINT:

I have reminded myself that evidence that what the victim is alleged to have said to her brother on the day of the incident does not amount to what the law calls recent complaint. Similarly evidence of what the victim is alleged to have said to her mother the following day does not amount to recent complaint. In her testimony the victim told the court that when she arrived home with her brother on the day of the alleged incident her mother and father were arguing and she therefore decided not to mention the incident. The mother gave evidence. She testified that when the victim and her younger brother arrived home on the Monday 1/10/2001 (the alleged day of incident) her husband had gone fishing. She did admit that she and her husband had an argument earlier that day. It appears also from the evidence that while on Tuesday (2/10/2001) the victim was crying causing her mother to inquire; on Monday (1/10/2001) the day of the alleged incident the victim appears to have displayed no signs of distress.

Uncorroborated Evidence – The Warning:

I am required by a rule of practice that it is unsafe to convict the accused on the uncorroborated evidence of the complainant. I have reminded myself and I have also decided that it would be very dangerous to act on the evidence of the complainant and her younger brother and I must therefore look for some other evidence capable of corroborating the evidence of the victim. 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. Before evidence can be treated as corroborative, I must first be satisfied beyond reasonable doubt that it is true, and secondly, I must be satisfied beyond reasonable doubt that the proper inference from it is that it tends to confirm the guilt of the accused.

The Apology of the Accused:

The mother of the victim testified that on Friday the 19^th October while she was home with some members of her family watching a video movie the accused came and sat besides her. The accused told the mother of the victim that he came to apologise, that he has done wrong to Leitioa (the victim); that he does not know whether it’s a sickness or the evil spirit which caused it. The mother refused to accept the apology telling the accused that she has already informed the chairman of the church. But he pleaded with her seeking her forgiveness, as he was concerned about his career. In reply the mother told the accused to leave God alone for he the accused came to the village to take care of the sheep but he has instead taken advantage of and used the little lambs. The accused then left. The evidence of the mother of the victim relating to the apology was not challenged under cross-examination.

Counsel for the accused submitted that the apology tendered by the accused cannot amount to corroborative evidence because such conduct could be interpreted to mean that the accused was simply apologising for slapping the victim. In other words it was an admission of common assault. For very obvious reasons I have no difficulty in dismissing the submission. In the first place there was never any allegation of slapping against the accused; secondly it was never suggested to the victim under cross examination that she was not assaulted (common or indecently) by the accused; and thirdly it was never put to the mother of the accused under cross examination that the accused was apologising for assaulting (slapping) the victim.

Indeed I concluded that the apology tendered by the accused provided strong corroboration evidence of the victim’s evidence as to what took place inside the room where confession was supposed to take place. It is capable only of one and no other interpretation; that is the accused did indecently assaulted the victim.

Indeed I am satisfied beyond reasonable doubt that all the elements of the charge have been proved beyond reasonable doubt. I accept that the accused intentionally touched and kissed the victim’s breasts and mouth; I also accept that the touching and kissing were hostile in a sexual sense or that the touching and kissing were accompanied by circumstances of indecency; and thirdly that the victim is known by both names in the information and her birth-certificate confirmed that she is over 12 years and under 16 years of age. For these reasons I found the accused guilty of the charge of indecent assault.

JUSTICE VAAI