Police v Vaitolu - Decision [2003] WSSC 55 (20 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

IAKOPO UMU VAITOLU,
male of Fa’ala Palauli
Defendant

Counsel: Messrs A. Faasau and J. Stowers for prosecution
Mr M. Leung Wai for the defendant

Hearing: 10 and 20 October 2003
Decision: 20 October 2003

DECISION OF JUSTICE DOHERTY

The accused is charged with indecently assaulting a female who was more than 12 years and less than 16 years at sometime between the 1^st and 31^st of May of this year. The alleged assaults are the touching of the left breast, kissing, and the touching of the skin in the lap area of the complainant.

The complainant is the niece of the accused. There were other alleged indecencies originally relied upon by the prosecution. For the record, I note that I disallowed the showing of genital area allegation as not satisfying the definition of assault, let alone an indecent assault, in the context of the evidence in this case.

In such a charge there are four (4) things that the prosecution must prove to the standard beyond reasonable doubt. Firstly that there was an assault. An assault is the intentional touching of the body of another person or in some cases the threat of such touching, so its an intentional application of force. Secondly that that touching was indecent according to commonly accept the community standards. Third that the accused knew the touching was indecent in that sense and fourthly that the complainant was aged more than 12 years but under 16 years.

I do not think there is any doubt in this case that the elements of indecency, the accused’s knowing that touching was in that sense was indecent, and that the complainant was aged the right number of years were proved. That is there is no doubt about those things provided there was an assault and that is the real question in this case. If there was a touching to the breast and a kissing on the lips and the touching to the lap by an uncle of his niece there is no doubt in my mind that that is indecent and bearing in mind the relationship between the parties there will be no doubt in my mind that the accused would have known that such actions were indecent in that sense. There is also in relation to the age of the complainant, her birth certificate which puts her within the appropriate range of years.

This has continued for two (2) days. Having heard the conflicts of evidence I am of the view that the essence of the case and the decision of it will come down to the complainant versus the accused. There was a considerable amount of peripheral evidence about circumstances, about happenings, about dates, about who was there, who was where and with whom. Effectively that came down to one family against the other. There was no independent evidence which may tend to corroborate one side or another. I do not intend to go into the evidence in depth about where people were and when, but suffice to say that there was no agreement between the two sides and the witnesses called by them as to when this alleged incident happened.

For the accused it was alleged to have happened at around Easter, for the prosecution sometime later. Easter that year have occurred in April and I have already referred to the dates alleged by the crown this incident is alleged to have happened.

The crown’s main witness is the complainant. She gave categorical, detailed evidence about her being with her family (that is her siblings) left in the care of the accused and his wife whilst her mom and dad were in Upolu and in particular in Apia. The alleged offending took place at the home of the accused in Savaii. The complainant’s evidence was that she was called by her uncle into his mosquito net. I do not think there is any doubt that about this time he was recovering from the effects of typhoid fever. She said that he had called both her and her younger sister into the net. That was to massage him. She went into some detail about where she was, where she was placed on the right hand side of his neck, what she did and what he did. He was facing downwards, she at his neck or in that area to the right hand side and her younger sister was massaging his feet. She demonstrated to me how on one occasion he turned from his position, put both hands on her face and pulled her towards him, kissing her. She said that he asked her to read the time on his watch which he had on his hand. When she bend down to do so, she was kissed. She said that she had expressed her dissatisfaction with this, she said, “don’t” but nothing else. She then said that he asked her to move closer to him, she massaged the back, and this is where or when he touched her in the inside of the lap. She did describe the clothes she was wearing, a skirt and a singlet. Again she said that she had asked him to desist by saying, “don’t”. Shortly after she said that he reached inside her dress and touched her left breast. She removed his hand, moved back, jumped out and left the mosquito net.

She was cross-examined at length about the configuration, about where people were and how possibly the accused could have done what she said. She was pretty much untroubled by cross examination as to what had happened and certainly did not change her views. She also said that the next day, the following Saturday, she had told her mother about the incident. She said the incident had happened on a Friday. Her mother had returned on Saturday, she later had told her father. That is recent complaint evidence.

The accused in his evidence denied categorically that this had happened at all, denied that he had the opportunity in the sense that he was alone without his wife and children in the vicinity. He was pretty much backed up in that by his wife who gave evidence on his behalf.

I have already mentioned the conflict between the prosecution and the defence witnesses as to dates and then whether this happened on the day that the complainant said that it did. That is not the only evidence though of the views of the accused because he was interviewed shortly after a complaint was made and I have already ruled as admissible an admission that he made to the police.

The relevant part of his admission is couched in the following terms in a statement made to the police on the 26 June of this year: “I admit indecently assaulting Tina Tovia, female 13 years old of Fa’ala Palauli by touching her breast and kissing her on May, I do not recall the date in the year 2003 at Fa’ala Palauli.”

In assessing a case such as this indeed any criminal case, the standard of proof is proof beyond reasonable doubt. In other way of saying that is merely to say that I must be sure of guilt. If I am sure of guilt then it is my duty to convict, if I am unsure of guilt, it is my duty to acquit.

When an accused gives evidence or brings evidence on his own behalf there are three (3) possible consequences. The first is that the court may accept the evidence of the accused as being the truth. If that is the case then the court must acquit. A second possibility is that what the accused has said might reasonably be true, although the court may not be convinced of its total truth, it may have some doubt about exactly what did happen. And again in that case the court has a duty to acquit because the prosecution would not have proved the charge in the elements of the charge beyond reasonable doubt. The third possibility of an accused giving evidence is that the court may reject it completely, that is to decide that he is not telling the truth and that he is lying to the court. If that is the case the Court cannot automatically jump to the conclusion that he is guilty.

At law the Court must put aside the defendant’s evidence and go back to the rest of the independent evidence and decide on that whether he is guilty or not guilty. And in doing that the Court can take into account admissions he may have made on another occasion.

I find myself in the category, in the last category. I am not convinced at all that the denials of the accused are what happened mainly that he did not do what some of what is alleged to have been done. The question is whether or not what he has told me might reasonably be the truth or whether I should reject all of his evidence and go back to the rest of the case which is the prosecution evidence. That is what I have decided to do, reject his evidence but then assess the prosecution case. And in doing that as I have just said that because of the lack of independent evidence in relation to the peripheral issues of timing and of places of when and of where, I intend to set aside and not take too much into account from the other witnesses. It was always within the prosecution’s ability to bring independent evidence of admissions records of hospitals, of ferry tickets, accommodation, confirmations etc. so as to deal with, the where, when and why of the situation.

I am really left with assessing the evidence of the complainant. As I have said she gave detailed evidence as to what happened and was not really shaken on cross examination, but that does not mean necessarily that that in itself can prove the charge because she had some difficulties, for example she was not accurate at all. Even in her own evidence in chief, let alone on cross examination about some of her personal circumstances. She told the Court for example that she does not ever have one month off school but when her mother gave evidence it became quite apparent that she had been off school for a year. Now that may well be understandable given a child’s perception of time or her possible embarrassment about her circumstances. It may also mean that her evidence generally is not accurate because of her difficulties of recall or reconstruction or other.

There is also the question of her the disclosure made to her parents. Usually such disclosures are hearsay evidence but in our law recent complaint evidence, namely a complaint made shortly after an incident is alleged to have happened, is admissible. Of course it does not mean that the complaint made by a complainant to her parents or to the police or anyone else is necessarily correct all it shows is a consistency between what she said then and what she says now. If she was not telling the truth then, it does not mean she is telling the truth now.

She said that she had made a complaint to her mother on the Saturday the after and then her father the following Monday. Her mother said the complaint was made to her on the Saturday and that the mother told the father sometime later and before Tina told her. The father said that he was first told by the mother and then by the complainant sometime later. There may be some confusion as to who said what and when again. But what is clear is that she did make a complaint and the essence of what she told her mother and father or both, was not really challenged. But the difficulty again with the question of when disclosures were made and to whom and in what sequence is a matter that the Court may take into account in going to the accuracy of the complainant’s recollections and her credibility generally.

There were again or also a number of circumstances which were at odds one with the other and which go to her credibility or at least the assessment of her evidence. Her evidence about being there for a period of time, her evidence about her aunt, the accused’s wife, not being there on this occasion, she goes to a committee meeting. That needs to be compared with the wife’s evidence that she was there for the whole time. There are matters such as that.

Putting in the mix also is the statement and the admission of the accused. That was ruled admissible but the thrust of the cross examination from counsel for the accused in relation to that when we got to hearing about it from the police, was that it was couched in terms not really consistent with the words of an accused person such as this. However in cross examination, the accused did not deny that he used those words as set out. His explanation was that he was in a position where he was wanting to get out of that police station as fast as he could and he was wanting to do so to visit his father who, from all accounts, was gravely ill. The police officer who took the statement candidly accepted that information was brought to the police station during the later evening, (I correct that), at sometime during the day about the deteriorating position of the accused’s father. It may well have been then that the accused felt himself compelled to do whatever it took to get out. Effectively, that was his evidence. He was cross examined thoroughly and well by the prosecutor in relation to his knowledge of what the effect of such documentation is and what the effect of putting one’s signature to such admissions were but I am left still with an uneasiness that not withstanding his knowledge of the world and experiencing of these things that he may well have subjectively found himself in a position of having to get out of there whatever.

So what I am left with, I am left with the evidence of the complainant which I think in the circumstances leave me in a position of being unsure that what she said actually did happen. My unsureness, of course, is the same as not being satisfied beyond a reasonable doubt. I have a strong suspicion and if I were to find this case on the balance of probabilities I would find it more likely than not that the accused did what is alleged he has done. That is not the test. The test is whether I am satisfied beyond reasonable doubt and bearing in mind all the matters that I have discussed, I am left with a doubt which in the circumstances is a reasonable one. I am not satisfied that the evidence and the quality of the evidence is such that I should find the accused guilty. I have, therefore, decided that the prosecution has not proved it beyond reasonable doubt and the accused is found not guilty.

JUSTICE DOHERTY