Police v Faapoi [2004] WSSC 24 (17 December 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TUI FAAPOI alias TUI YANKE,
male of Fasito’o-uta
Defendant

Counsel: Ms Wulf for prosecution
Mr S Toailoa for the defendant

Hearing: 17 December 2004

REASONS FOR GUILTY VERDICT OF JUSTICE VAAI

The accused is charged that between the 1st and 31st January 2004 at Aleisa he had sexual intercourse with Siatua Alesana, a female over 12 years and under 16 years not being his wife. It is not disputed that the girl is under 16 years and it is also not disputed that she is not the wife of the accused so that the only issue for the court to rule on is whether there was sexual intercourse. At the commencement of the trial the prosecution attempted to amend the information by amending the date of the alleged offence from January 2004 to between 1st November 2003 to 31st December 2003. The application was refused. At the conclusion of the trial I delivered my verdict of guilty and reserved my reasons to be delivered in writing. These are my reasons:

The accused is a taxi driver. He met the young girl (herein referred to as the complainant) through a fellow taxi driver who was at the time dating the complainant’s older sister. On the second occasion they met, it was at Vaitele-tai near the Vailima Breweries in the evening when the older sister was talking with her boyfriend while the accused was talking with the complainant. Later that evening the accused and the complainant drove away in the accused’s taxi.

The complainant told the court that they drove to Aleisa where they had sexual intercourse three times and spent the night until about 5 o'clock the next morning when she was driven back to Vaitele near the Breweries from where the accused’s friend (boyfriend of the complainant’s sister) drove the complainant home. Both the complainant’s sister and her boyfriend confirmed that the accused and the complainant drove away in the accused’s taxi that evening from in front of the Breweries compound where they were all talking and the sister’s boyfriend confirmed the complainant’s story that the accused brought the complainant back to the Breweries at about 5 o'clock the next morning. He then drove the complainant home. When the complainant arrived home about 5.30am the complainant’s sister noticed love bites on her neck and chest. It was not until the complainant became pregnant that the authorities were notified and the present information laid against the accused. She gave birth on the 28th August 2004. The information was laid and sworn on the 27th August 2004.

The accused gave evidence. He admitted that on the second occasion he met with the complainant, her sister and sister’s boyfriend outside the Breweries he drove away with the complainant but they soon thereafter returned at about 11 o'clock and dropped her off at the same spot outside the Breweries compound. No one was around. Since that occasion the accused and the complainant have not met again. He denied driving with the complainant to Aleisa and he denied having sexual intercourse with the complainant.

It is true as defence counsel submits that if the complainant gave birth in August 2004 and the complainant had sexual intercourse with the accused and no one else then intercourse could not have occurred in January as alleged in the information. I am satisfied from the evidence of the complainant and supported by the evidence of her sister and boyfriend that the complainant was driven to Aleisa and back to the Breweries at 5 o'clock the next morning. She was then driven to her home by the sister’s boyfriend and love bites were seen on her neck and chest. I reject the evidence of the accused; it does even raise a reasonable doubt. The day before the trial he admitted telling the maintenance officer he does not know the complainant. Intercourse did take place at Aleisa on the night the accused met the complainant outside Brewery compound.

As to the date sexual intercourse did take place, the complainant’s sister told the court it was November 2003 that they met outside the Brewery compound when the complainant drove away with the accused and returned home at about 5.30 the next morning. But she admitted under cross examination she told the police in her written statement it was January 2004. It will be remembered that it was not until July 2004 that the incident was investigated and the witnesses interviewed by the police. The fact that sexual intercourse was either in November or December 03 and not January 2004 is not fatal to the prosecution case. The charge has been proved beyond reasonable doubt.

JUSTICE VAAI