Police v Poi [2007] WSSC 49 (22 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SEMAU POI
male of Patamea.
Accused

Counsel: L S Petaia and L M Su’a for prosecution
S Leung Wai for accused

Judgment: 22 June 2007

JUDGMENT OF SAPOLU CJ

The accused, a 34 year old male of Patamea in Savai’i is charged under s.58E (1) (b) of the Crimes Ordinance 1961 with two counts of sodomy, namely, that:

(a) at Patamea, Savaii, on Wednesday, the 26th of April 2006, he committed sodomy on the complainant, a male of Patamea under the age of 16 years, and

(b) at Patamea, Savai’i, on Friday, the 28th day of April 2006, he committed sodomy on the complainant, a male of Patamea under the age of 16 years.

Under s.58E 91) (b), the crime of sodomy with which the accused has been charged consists of two elements which the prosecution must prove beyond reasonable doubt. The first element is that the accused must have committed sodomy on the complainant. Sodomy means anal intercourse, that is, penetration of the complainant’s anus by the accused’s penis. The extent of penetration is irrelevant but there must be some degree of penetration. Ejaculation by the accused is also not necessary. The second element is that the complainant must be under the age of 16 years and the accused must be of or over the age of 21 years. Consent is not a defence.

In considering the charges, it is not necessary to refer to all of the evidence that was adduced for the prosecution and for the accused. The principal witnesses on whose testimonies the prosecution relied to prove the charges were the complainant, his mother, Upolu Lui, Taelega Semau Aukuso, Dr Aleki Fuimaono and sergeant Tulafasā Su’a.

The testimony of the complainant who was nine years old at the time of the alleged offences shows that on Wednesday, 26 April 2006, he was hanging around the shop of one Faranisisi at his village of Patamea when the accused called to him from his nearby house behind the shop to come and pull out the white hair (sina) of his shoulder. The complainant then went to the accused and pulled out the white hair of his shoulder inside the house of the accused. After a while, the accused told the complainant to go inside the toilet which is a short distance from the accused’s house. This is the toilet of the accused’s family and it adjoins a shower. The complainant then went to the toilet. He was followed by the accused. Inside the toilet the accused removed the complainant’s shorts. The complainant testified that he then laid down on the floor, as he was instructed by the accused, and that was when the accused sodomised or performed anal intercourse on him. After the accused had sodomised the complainant, he gave the complainant .50 sene and the complainant went home.

The complainant further testified that on Friday, 28 April 2006, he was again hanging around the shop of Faranisisi when the accused called to him from his nearby house to come to buy something for him (sau e fai lana faatau). After doing the accused’s shopping, the accused told the complainant to come and pull out the white hair of his shoulders. The complainant complied. After a while the accused told the complainant to go to the toilet, that is the same toilet that the accused had instructed the complainant to go to on Wednesday. The complainant then went to the toilet. Shortly afterwards, he was followed by the accused. The complainant testified that inside the toilet the accused told him to remove his shorts and lie down. He then removed his shorts and laid down facing downwards. The accused then sodomised the complainant again. Afterwards the accused gave .20 sene to the complainant and the complainant went home.

The mother of the complainant who was called as a witness by the prosecution testified that the complainant was born on 11 July 1996. She produced the complainant’s birth certificate to confirm his date of birth. So the complainant was about 9 years and 9 months old at the time of these alleged unlawful acts committed on him.

The witness Upolu Lui who was also called by the prosecution is a 23 year old female from the village of Patamea. According to the testimony of this witness, she was at the house of her family, which is next to the house of the accused and a short distance from it, when she saw the complainant walking to and entering the toilet of the accused’s family. Very shortly afterwards she saw the accused walking to the toilet and looking around as if to see if someone was looking. The accused then entered the toilet while the complainant was already inside. This witness further testified that she then went and told the sister of her husband who was doing her cooking about what she had just observed. She also said to her husband’s sister that she wondered what the accused was doing to the complainant. The sister in law stopped her cooking, came to the front of the house and focused he sight on the toilet waiting to see the accused and the complainant come out.

The prosecution witness Taelega Semau Aukuso is a 55 year old female from the village of Patamea. She is the sister of the husband of the witness Upolu Lui. This witness testified that on Friday, 28 April 2006, she was doing her cooking at the kitchen when her sister in law Upolu Lui came and told her that the accused had taken the complainant inside the toilet. She then went to the front of her family’s house, and sat down, and watched the toilet while waiting for the accused and the complainant to come out. This witness said that she had a clear view of the toilet and after about five minutes she saw the accused and the complainant came out. The complainant then walked away while the accused was standing at the toilet looking at the complainant.

The prosecution also called as a witness Dr. Aleki Fuimaono who had medically examined the complainant. Dr Fuimaono testified that he examined the complainant at a private medical clinic at Salelologa on about 2 May 2006. The said that he found the complainant’s anus enlarged and painful to touch. There were areas of redness which showed there was some sort of infection going on. He also said that normally with children of the complainant’s age the anus is very tight but with the complainant his anus was very laxed. The medical term used by the doctor was dilatation which means enlargement or expansion. The doctor then gave as his opinion that what he found must have been due to penetration of the complainant’s anus by some external object. The doctor ruled out the possibility that what he found could have been caused from within.

Sergeant Tulafasā Su’a who was in charge of the police investigation of this case was also called as a witness by the prosecution. The police sergeant testified that on 2 May 2006, the complainant, his mother and Faranisisi, the owner of the shop at Patamea, came to the police station at Tuasivi and lodged a complaint against the accused for having sodomised the complainant on 26 and 28 April 2006. He was then about to take the complainant to be medically examined when the complainant’s mother told him that the accused was sitting at the front door of the police office. He then turned to the accused and asked him if he was Semau Poi and the accused replied yes. He then asked the accused as to why he had come and the accused replied it was because the complainant’s family was bringing a complainant against him to the police. Sergeant Su’a then took the accused into a room and informed him of the complaint and of his right to counsel and his right to silence. The police officer said that after he had informed the accused of these matters, the accuser just sat and shook his head and then said I was wrong at that time ("Ua ou sese fo’i i lea taimi") but he would not make a statement.

In his oral testimony, the accused, a 54 year old male of Patamea, denied the evidence given by the complainant that he sodomised the complainant twice on 26 and 28 April 2006 inside the toilet of his family. The testimonies of the prosecution witnesses Upolu Lui and Taelega Semau Aukuso were also put to the accused by his counsel and he denied them. He also denied what sergeant Tulafasā Su’a said that he had said I was wrong at that time ("Ua o’u sese fo’i i lena taimi").

After careful consideration of the evidence, I have come to the conclusion that the evidence of the complaisant that he was twice sodomised by the accused on Wednesday, 26 April 2006, and Friday, 28 April 2006, should be accepted as the truth. The evidence, particularly in relation to the allegation concerning the incident on 28 April 2006, is supported by the oral testimonies of the witnesses Upolu Lui and Taelega Semau Aukuso whom I found to be credible witnesses. It is also supported by the oral testimony of Dr. Aleki Fuimaono. I have also decided to accept the oral testimony of Sergeant Tulafasā Su’a. On the other hand, I have found the denials by the accused to be incredible and therefore reject them. It follows that I have accepted the complainant’s testimony that he was sodomised by the accused on 28 April 2006. That in turn gives an air credibility to the complainant’s testimony that the accused had also sodomised him on 26 April 2006 as opposed to the denial by the accused.

I have not overlooked the testimony of the defence witness Gasologa Samuelu who gave evidence as to the interior measurements of the toilet of the accused’s family to support the accused’s evidence that the alleged sodomies could not have taken place due to the size of the toilet. I have not found the evidence given by this witness as sufficiently cogent persuasive to overcome the weight of the evidence given by the complainant as supported by the other prosecution witnesses.

All in all then, I find the charges to have been proved by the prosecution beyond reasonable doubt.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Leung Wai Law Firm for accused