Police v AB [2003] WSSC 24 (30 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

AB
of Faga, Samatau and Vailele
Accused

Counsel: L Vaa-Tamati and S Petaia for prosecution
F Vaai-Hoglund for accused

Hearing: 27, 28 October 2003
Judgment: 30 October 2003

JUDGMENT OF SAPOLU CJ

The accused was initially charged with two counts of having indecently assaulted the victim who is a girl of over 12 years and under 16 years of age under s53(2) of the Crimes Ordinance 1961. The count charging the accused that at Samatau on the 5^th day of July 2003 he indecently assaulted the victim who is a girl of over 12 years and under 16 years of age was withdrawn by the prosecution at the commencement of the trial and was dismissed upon application by counsel for the accused to dismiss that count. That left only the count charging the accused that at Samatau between the 1^st and 14^th day of July 2003 he indecently assaulted the victim who is a girl of over 12 years and under 16 years of age.

A charge of indecent assault under s53(2) of the Crimes Ordinance 1961 consists of two elements which the prosecution must prove beyond reasonable doubt. These are: (a) the girl was between the age of 12 years and 16 years at the material time, and (b) the girl was indecently assaulted by the accused. As to the first element of the charge, the victim in this case testified that at the time of the alleged indecency in July this year, she was 13 years old. Her natural mother who was also called by the prosecution, produced the victim's birth certificate which shows her date of birth as the 17^th of September 1989. Counsel for the accused did not dispute the evidence as to the victim's age or date of birth. I therefore find the first element of the charge to have been proved by the prosecution beyond reasonable doubt. It is the second element of the charge which is in dispute.

Counsel for the prosecution and for the accused referred to corroboration of the victim's testimony. In England and New Zealand there is no longer a requirement for the traditional corroboration warning in sexual cases. The rationale usually given for that warning is that it is easy for a girl to allege rape or indecency but difficult for the man to disprove it. That rationale is no longer accepted in the jurisdictions I have referred to. I, myself, for a number of years now, have been in doubt about the validity of the rationale for the corroboration warning. The real question ought to be, does the evidence, including that of the victim in a sexual case establish the elements of the charge beyond reasonable doubt. There should be no preconceived prejudice that it is easy for a girl to cry rape or indecency. Not only is there no data in Samoa to show that that is in fact the case, but the rationale for the traditional corroboration warning is somewhat insulting of girls and women. It puts their credibility into question right from the commencement of a trial without any solid justification for doing so. I will therefore consider the evidence given for the prosecution and for the defence without a preconceived prejudice that it is easy for a girl to cry rape or indecency.

In her oral testimony, the victim said that she was asleep late into the night when the accused came and lay beside her, removed her clothes, sucked her breasts, parted her legs, and ate her private part. That was a Saturday night. She said that at that time her aunt who is the wife of the accused was just in front of the bed on which she was sleeping and she told her aunt on Sunday night what had happened to her. The victim also said that she knew it was the accused who came to her because of the light and she knew the accused's face and physical built. She did not elaborate on the condition of the light.

In cross-examination, the victim said that the accused came twice to her but she could not remember the dates. She said that what she was telling the Court related to the second incident. She also said she was sleeping with her aunt's baby when the accused did this thing to her. A little later she said that her aunt was sleeping inside the mosquito net with the baby. She then said that on the second time, the accused came and pulled her sheet and his wife came and kicked him. She then told her aunt the following day about what happened.

In re-examination, the victim said she was sleeping at the faleo'o (small house) at the back which belongs to her aunt and the accused on a sofa which belongs to her father. She slept there because her aunt had asked her to come and sleep with her baby. Her aunt then went to have a bath by herself whilst she was with the accused in the faleo'o. The baby was inside the mosquito net. That was the time this incident occurred.

In her closing submissions, leading counsel for the prosecution stated that the testimony of the victim as to what had happened to her was detailed and should be believed. Counsel for the accused on the other hand submitted that the testimony of the victim was rather vague, inconsistent and confusing.

The witness Leai Faalea who was also called by the prosecution testified that on Monday, 7 July, the victim's aunt related to her what happened. The witness Faalavelave Mika who was also called by the prosecution testified that his wife related this matter to him on Saturday night and on the next day which was Sunday the 13^th, but he could not recall the month, he called for the victim who related to him what happened. He then called for the victim's grandfather and after some discussion with him, they went and lodged a complaint with the police. The victim's grandfather testified that was on Sunday 13 July.

I must say that I find this evidence very unsatisfactory. Not only is it vague, but it is hearsay and is conflicting as to dates. I granted the prosecution the indulgence of proceeding with this evidence because of their request that they were trying to establish the dates.

The victim's grandfather who was called by the prosecution, testified that he was deeply displeased and shocked by what had happened, and after prayers on Sunday night, the accused came and knelt before him and apologised by saying to love him and forgive him, the sinner, for what he had done. Under cross-examination, counsel for the accused put to the victim's grandfather the statement he had previously made to the police where he is shown to have told the police that the accused came and apologised to him by saying to love and forgive him for any wrongdoing even though he (the accused) did not confirm this matter. When asked by counsel for the accused which is the truth, whether it is what he said in his evidence in chief or what is contained in his police statement, the victim's grandfather said the truth is what is in his police statement. He further said under cross-examination that he confirmed the offence from what Faalavelave Mika had told him during their discussion on Sunday before they went to see the police. But he has never talked to the victim about this matter. Again this is not satisfactory evidence and what the witness Faalavelave Mika might have told the victim's grandfather would be hearsay.

The doctor who medically examined the victim on 14 July 2003, and was called by the prosecution, states in his report that the whole body of the victim showed no evidence of bruises (love bites) and her hymen was intact.

The evidence for the accused consists of the testimony of the accused himself and that of his wife. The accused denied what the victim said in her oral testimony. He said that he does not know what the victim has related against him as he did not commit what the victim has alleged against him. He said that he is currently serving an imprisonment sentence for another offence and when he is in prison, the victim would come and sleep with his wife and her baby. But when he comes home on weekend parole, the victim would not be required to sleep in his house (faleo'o) with his wife and she would not sleep in his house.

He also said that his house with his wife does not have electricity and they only use a moli fagu (bottle light). He also said that there is a street light which is some distance from his house. He further said that his wife's sister and her girlfriend also sleep in his house so that there would be no space for the victim to sleep when he is at home.

As to the apology related by the victim's grandfather, the accused testified that on the Sunday in question he was on weekend parole, and there was tension between his father in law, that is, the victim's grandfather, and himself. Apparently this must have been because of what Faalavelave Mika might have told his father in law. He thought he should reconcile with his father in law as it was him who was looking after his family. So he apologised to his father in law to forgive him for any wrongdoing but he did not confirm this matter. He denied that he apologised because he confirmed the allegation by the victim against him.

The wife of the accused was also called by the defence. She said the victim is her niece. She denied what the victim said concerning her involvement in this matter. She said it is not true. The victim would only sleep with her and her baby when her husband is in prison. But when her husband comes home for weekend parole, the victim would sleep in the house at the front with her grandfather.

Under cross-examination, the accused's wife was asked if she had made a statement to the police. She said that when the police first approached her about this matter she denied it. But the police kept coming to her and they forced her to make a statement which she did not sign. The statement was thus not shown to her by cross-examining counsel.

I have given careful consideration to the testimony of the victim and I have decided to accept the submission by counsel for the accused that it is somewhat vague, inconsistent and confusing in several material respects. The denials by the accused and his wife of the victim's testimony do not assist that testimony. The victim's demeanour was also not particularly helpful as her testimony was interrupted at times by somewhat lengthy pauses. Once or twice I had to ask her what was her answer to the question from counsel. I cannot safely rely on the victim's testimony.

On the evidence, I cannot conclude with the necessary degree of confidence that the prosecution has proved the second element of the charge beyond reasonable doubt. The charge is therefore dismissed.

CHIEF JUSTICE

Solicitors:
Attorney General's Office for prosecution
Vaai Law Firm for accused