Police v Fetu [2002] WSSC 37 (28 February 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MAELI MAPU FETU,
male of Apolima-uta.
Defendant

Counsel: Ms Vaai Hoglund & Ms Hunter Betham for the Prosecution
Mr K. Ainuu for the Defendant

Date of Hearing: 22 February 2002
Date of Reasons: 28 February 2002

REASONS FOR VERDICT

At the conclusion of the trial on the 22nd February 2002 I announced my verdict of not guilty. These are my reasons for that verdict.

The charge

The defendant is charged that on the 31st March 2001 at Apolima-uta he had sexual intercourse with a young girl of over 12 years and under 16 years of age, not being his wife.

The information was laid on the 7th April 2001 and after several adjournments it was finally set down for hearing on the 22nd February 2002.

Before the commencement of the trial counsel for the prosecution sought leave of the court to amend the information to read that the accused attempted to have sexual intercourse with a young girl of over 12 years and under 16. Leave was granted.

The Complaint’s Allegations

The victim alleges that on the night of the alleged offence she and an aunt were asleep in one of the family’s house. It was about 11pm when she and her aunt laid down on the mat to sleep. The accused then came while the victim was still awake and the aunt was asleep; the victim was asked by the accused to go with him but she refused; the accused then pulled up her t-shirt and sucked her breast, and then the accused pulled down her panties, got himself undressed and inserted his penis inside her private part. As they were having sex the brother of the victim came inside the house and the accused got dressed quickly and sat besides the victim. And while all these events were happening the victim’s aunt was fast asleep next to the victim.

It did seem very odd that after the prosecution sought and was granted leave of the court to amend the information to one of attempted sexual intercourse, it immediately thereafter adduced evidence to establish that there was in fact sexual intercourse. Under cross-examination the victim told the court that the accused put his penis inside her vagina but did not completely go inside. She admitted being examined by a doctor after the alleged incident and she told the doctor that she had sex with the accused and the doctor confirmed to her she had sex. But the doctor did prepare a written report which was sent to the police and which the police in turn forwarded to defence counsel in preparation for this trial. Although the prosecution did not call the doctor his report was produced by consent. Part of that report states:

“She denies having penetrated sex with her uncle, and claims that he only suck on her breast.

On examination, she’s fully conscious, conversing well, stable vital signs. Breasts fully developed and no injuries or bruises noted, chest clear with normal heart sound. Examination of her vagina shows the hymen intact and no oedema or any bruises to suggest forced entry.

Patient was advised and discharged home.”

Inconsistent Statement

During cross examination the victim was referred to her written statement she gave to the police wherein she stated that she was asleep and was woken up by the accused when he came on the night of the alleged incident. When she was reminded that her evidence in court is different from what she told the police she simply stated she was awake when the accused came.

I remind myself that the statement she gave to the police is not evidence before the court.

Demeanour of the Victim as a Witness

Understandably the victim was originally nervous and the court did accommodate for the situation and allowed time for the victim to give her answers. Adjournment was also granted to allow the prosecution to reassure the victim when she appeared reluctant or hesitant to answer questions in examination in chief.

Normally, the court expects a relatively young victim to be somewhat reluctant to give details of any sexual violations allegedly committed against her. However in this case the victim appeared to have no problem in telling the court what the accused allegedly did to her but she hesitated to answer questions under cross-examination and in fact ignored to give answers to some questions, which seriously questions her credibility as a witness. For instance when she was cross-examined as to the inconsistency of her testimony and the written statement she gave to the police, she was asked by counsel whether she signed the statement and she gave no answer. And when she was shown the signature on the statement and was asked whether the signature was hers she again refused to answer.

There were several other questions during the examination, which she simply ignored to answer despite persuasion to answer.

Corroboration

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 or as in this case the accused attempted to commit it.

Before evidence can be treated as corroborative I must first be satisfied beyond reasonable doubt that it is true, and secondly it confirms or tends to confirm the guilt of the accused.

Corroborative evidence must come from a separate independent source; ii should render the victim’s evidence more probable and it implicates the accused and conforms or tends to confirm that the accused is guilty of the offence.

Two young boys were called by the prosecution to confirm the evidence of the victim. Ionatana Halo a 15-year-old student said that he and other boys were watching rugby sevens tournament on television. It was after mid-night when the programme finished and they then walked with [brother of victim] and another boy towards the victim’s family. As he walked past the house where the victim and her aunties were asleep he saw a person inside the house. He then went and told the other boys and they went to the house and hid behind the box. From behind the box he saw the accused on top of the victim and they were both naked and the accused was pumping the victim. He was able to see into the house and saw what the accused was doing because there was a street light on the road not far from the house.

The 17-year-old brother of the victim said he was in their other house when Ionatana Halo told him that there was a person in their house where the victim and her aunties were asleep. They went over and hid behind the box with Ionatana and he saw the accused lying on top of the victim and doing bad things. The accused was wearing shorts. Ionatana then turned on the lights and the accused got up and apologised.

Under cross-examination Ionatana confirmed the accused was wearing shorts and the accused and the victim were hugging and kissing.

Defence Evidence

It is not disputed by the defence that the victim is 15 years of age. I also accept that the wife of the accused is the aunt of the victim and the accused’s wife and her children were asleep in the same house with the victim together with the victim’s other aunt.

The accused says that on the night in question when he went to the house where his wife and children were asleep the victim and her aunt were awake and he joined them and talked with them when [the brother] and other boys came. [The brother] walked inside and beat the victim with a stick. He denies having sex with the victim or being on top of her and he confirmed he was wearing short and T Shirt.

The grandmother of the victim also testified. She is also the mother of the wife of the accused. She said that after the alleged incident she talked to the victim and the victim denied having any involvement with the accused in any sexual activity that night.

Findings of Fact

Firstly I accept as true the contents of the medical report produced in evidence and I therefore do not accept the allegation by the victim that she had sexual intercourse with the accused.

Secondly I accept from the evidence of the two young boys and from the admission by the accused that the accused was inside the house with the victim on the night of the alleged incident. I also accept from the same evidence that an aunt of the victim was with the victim and the accused.

Thirdly I find the evidence of the two boys to be conflicting in material part. [The brother] said the accused was wearing short while Ionatana Halo said the accused was naked. Given the time of the night, the form of lighting available; the age of the witnesses; and the fact that aunty was lying next to the victim I am left with some reasonable doubt about the truthfulness of the testimony of the two boys.

Accordingly I find that the evidence of the two boys do not corroborate in material part the evidence of the victim. I am left with a reasonable doubt which must be exercised in favour of the accused.

The evidence does not support the charge of attempting to have sexual intercourse or any other offence such as attempted indecent assault as suggested by the prosecution in final submissions.

JUSTICE VAAI