Police v Avia [2007] WSSC 34 (30 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TIA AVIA,
male of Vaivase-uta and Iva Savaii.
Defendant

Counsels: A. Lesa and L. Su’a for prosecution
Defendant unrepresented

Hearing: 30 March 2007
Decision: 30 March 2007

DECISION

Defendant you have been charged that at Vaivase-uta on the 22nd December 2006 you had sexual intercourse with the complainant who is a female over the age of 12 years and under the age of 16 years and who was not your wife. You did thereby breach section 53(1) of the Crimes Ordinance 1961 and commit the offence known as carnal knowledge.

Prosecution had called three witnesses in support of the charge; the complainant, her older sister S and the complainants mother L. The complainants evidence is that she knows the defendant well. He is their neighbour at Vaivase-uta. He formed a relationship ("faiga-uo") with her about two months before this incident occurred. She testified that around midnight on Friday 22 December 2006, the defendant invited her to his house and she accepted his invitation and went over. There she had consensual sexual intercourse with the defendant. She refuted in cross examination the defendants suggestion that there was no sexual intercourse and that he was at another village that particular night. She went on to say there was a subsequent night when she again went to the defendants house. That particular night she was caught by members of her family and no sexual intercourse occurred on that night. The complainants evidence is corroborated by the evidence of her mother who testified that on a rainy night sometime in early 2007 she found the complainant missing from their house. She searched for her and found her next door in the defendants house. She knew that the defendant was present because she heard his voice confirming the presence of the complainant in his house. The complainant came out of the house and when she questioned her, the complainant told her nothing had happened.

The third witness called by the prosecution was the complainants older sister. She testified that at her mothers request, the complainant was sent to live with her at Sinamoga because of contact between the complainant and the defendant. She says she knew nothing of what had happened until three or four days after the complainant stayed with her. On Saturday, the 13th January 2007, the complainant was confronted by their brother who questioned her and the word used by the witness was the word "faamasino". The use of that word denotes that it was more than just asking what was involved and as a result of such questioning the complainant confessed to having sex with the defendant.

As a matter of law the evidence of the sister falls into the category of possible evidence of recent complaint. Again as a matter of law it is only admissible to show consistency of the conduct of the complainant which is an issue relevant to her credibility. It is not admissible as evidence of corroboration or as to the truth of the complaint. It must however have been made voluntarily and must not have been elicited by questions of a "leading and inducing or intimidating character"; and must have been made "at the first opportunity after the offence which reasonably offers itself" – See R v Osborne [1905] UKLawRpKQB 45; [1905] 1 KB 551; R v Aramoana [1985] 1 NZLR 390; R v T [1998] 2 NZLR 257; Pol v Sale [2000] WSSC 49.

I have considered this evidence carefully and come to the conclusion this evidence cannot be admitted for purely legal reasons – in brief they are firstly, it is not a recent complaint, it having been made on 13th January 2007 about three weeks after the incident occurred and some three to four days after the complainant had been staying with her sister at her sisters house at Sinamoga. There was no mention of the incident to the sister nor was a complaint made to the sister or any other adult member of the family. The complaint was not made as early as could reasonably be expected. Furthermore, the complaint was only made when the complainants brother confronted and questioned her. Only then did the complainant confess but it was in answer to what appears to be an interrogation by the complainants older brother. And in any event prosecution counsel should also note that there was no evidence from the complainant herself that she made any complaint of any sort to the sister, at the sisters house at Sinamoga or elsewhere. A further breakdown in the chain of evidence of recent complaint itself.

I am left therefore only with the evidence of the complainant and her mother and as I have said I am satisfied that the mothers evidence corroborates the complainants testimony. But even without the mothers testimony I still would have been satisfied as to the complainants evidence of sex having occurred. Because having seen and observed the complainant as she gave evidence, I am satisfied she was telling the court the truth.

It is certainly no longer a requirement of the law of this country that a female complainants evidence of a sexual assault requires some sort of special corroboration. Such evidence need not be treated differently from the evidence of any other witness and the matter of corroboration only goes towards its credibility and weight. See the judgment of Sapolu CJ in Pol v AB [2003] WSSC 24. The law now is able to convict on the testimony of a complainant standing alone.

The end result of all this Tia, is that I find it proven beyond reasonable doubt that on the 22nd December 2006, you did have sexual intercourse with the complainant, a girl who was not your wife at the time and that intercourse occurred at your house at Vaivase-uta and at the time, the complainant was between the age of 12 and 16 years, in fact she was at that time 14 years of age. All ingredients of the charge have been proved to the required standard, you are found guilty accordingly.

I am going to require a probation report as well as a victim impact report from the prosecution. You are remanded on bail to the 24th day of April 2007 for probation report, victim impact report and for sentence. Bail conditions to be continued.

An order suppressing publication of the name and any other details that may serve to identify the complainant in this case is to issue.

NELSON J.