Police v Pu'a [2008] WSSC 46 (16 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE

Prosecution

AND:

TAPULOA PU’A
male of Vailoa Aleipata and Faatoia
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Titi for prosecution
Ms Tamati and Ms Atoa for defendant

Hearing Date: 26/06/2008
Decision Date: 16/07/2008

RULING BY JUSTICE VAAI

The accused aged 51 years is charged that on the 24th day of April 2007 he indecently assaulted a girl under the age of 12 years of age. He was apprehended by the police on the 15th May 2007. He denied the allegation.

Allegations by the complainant

The 8 year old girl told the court that on the 24th April 2007 after school she went with a friend to tidy up one of their houses where an election campaign committee meeting was held earlier that day. The accused who was a member of the campaign committee was at the house. The complainant went to sweep the house while her friend washed the dishes. Whilst the complainant was in the bedroom the accused came inside closed and locked the door and he told the complainant to lie down on the bed. Her friend called out for the complainant to come outside.

She laid down and the accused kissed her on the lips. At that time her friend again called out to come outside. She tried to sit up but the accused pushed her down. The accused then proceeded to put his hand inside her shorts, touched her private part and inserted his finger inside. She felt pain. The accused then left the room to look for something and came back inside. Her friend called out again and she left the bedroom and they both went outside of the house.

Testimony of complainant’s friend

The 13 year old told the court that she washed the dishes, the complainant was sweeping, whilst the accused was outside. The accused then came inside and requested the friend for a cup of tea. Upon being told by the friend that there was no tea the accused asked the friend to get a drink from the other (main house). The friend went to get coffee from the other house and on her return she met the complainant outside who was almost in tears. The complainant told her friend that the accused opened his shorts to her.

Police Statement of Complainant

She told the police in her written statement dated 6th May 2007 that while she and her friend were tidying the house the accused came and hugged both of them and kissed them. He later called from inside the room and both of them went inside the room where he made both of them to lie down and fondled with their vaginas. The accused then sent the friend away to get a cup of coffee and the accused made the complainant lie down, kissed her and fondled the complainant’s vagina. The accused then called Mathew, the complainant’s cousin, to drive him home.

Police Statement by complainant’s friend

In her written statement dated the 8th May 2007 she told the police the accused pulled both of them into the room which he locked. They were both made to lie down and the accused kissed them and fondled their private parts. She was then sent away to get a cup of coffee and on her return the complainant came running to her and told her the accused kissed her and touched her private part.

On the 26th June 2008 (two days before the trial) the friend gave another police statement. She stated that while they were tidying inside the house the accused who was outside called to them for a coffee. The friend then went to the next house to bring coffee and on her return she met the complainant crying and telling her that the man opened his lavalava to her. This second statement was not given to the defence prior to the trial. It was only through cross examination by defence counsel of this witness that the defence and the court were made aware of this second statement which differ significantly from her first statement. She has given reasons for the inconsistencies and I accept her explanation. When she was interviewed on the 8th May 2007, she was told by the interviewing police officer that the complainant has given a written statement and the written statement by the friend should match that of the complainant. She signed the statement which she knew was not correct.

Evidence of Mathew Faaita

Mathew is the cousin of the complainant who drove the accused home later that afternoon. He testified that he saw the two girls earlier that afternoon playing outside the house and later on when the accused called out to Mathew to take him home, Mathew saw the two girls walking behind the accused.

Testimony of the Accused

He was a member of the campaign committee for the father of the complainant who was a candidate in the Parliamentary by-elections in April 2007. The committee met on the 24th April 2007 and dispersed early in the afternoon. T-Shirts for the committee were given to those members who attended that day. At the conclusion of the meeting the accused stayed behind in the event members of the electorate may turn up at the committee headquarters and the accused was told to stay behind to meet them. Two young girls came to clean and tidy the house; they were not personally known to the accused who was reading the electoral roll in the sitting room. The other girl used the toilet which was facing the accused and after she came out the bad odour struck the accused prompting the accused to tell her to flush the toilet. She did not, and instead she went outside and called to the complainant who was sweeping by the kitchen sink to come outside. He also requested a cup of coffee but he got none. The complainant did not go inside the bedroom but the accused was inside the bedroom to fold and put away the rest of the committee’s uniform. He left the house through the front door and went to the complainant’s father main house, talked to the complainant’s father and was then driven home by Mathew, the complainant’s cousin.

Medical Evidence

When the complainant was medically examined on the 25th April 2007 the doctor found the hymen was not intact and there was redness outside the genital area suggesting recent application and penetration of the vagina by a blunt object. During examination the complainant was sad, depressed, teary and crying at times.

Elements of Indecent Assault

The defence did not contest that the complainant was under 12 years so that the prosecution needed to prove that:

(a) the accused assaulted the complainant by the deliberate (intentional) application of force to the person of the complainant; and

(b) the assault occurred in circumstances of indecency in the sense that it would be so regarded by right thinking members of the community generally.

Recent Complaint

The purpose of recent complaint evidence is to bolster the credibility of the complainant, not to assert the truth of the statement. As stated by the New Zealand Court of Appeal in R v T (1998) 2 NZLR 257 @ 270:

"It is trite law that evidence of recent complaint is not evidence of its truth or of any other fact than that it was made ... . Recent complaints are admitted only as showing consistency between the complainant’s conduct at the time of her evidence at the trial thereby supporting the credibility of the witness’s testimony."

Discussion

The statement given by the complainant to the police differ significantly from her sworn testimony. Visibly she was nervous and uncomfortable when she took the stand at the trial and it was for that reason the court took a short recess and provided the complainant with a seating arrangement (with her back towards the accused) and a closed court (with the exception of her mother) to ease the tension and to encourage her to speak.

When she spoke to the police in the presence of her mother on the 6th May 2007 she was also nervous and scared. That is accepted also. A little bit of exaggeration could also be expected.

The inconsistencies in her statement to the police and her oral testimony and the inconsistency in what she told her friend and what she alleged the accused did to her requires the court to be appropriately cautious in accepting her evidence, but not to assume deliberate falsehood or that her evidence is necessarily wrong on all points.

It is not sufficient for the prosecution to suggest as counsel submitted that the account of the complainant in relation to the touching by the accused of the complainant inside the room should be accepted, as there is no reason why a complainant of such a young age would make up such a serious allegation. The submission appears to suggest that the onus of proof has shifted to the defence to show reasons why the evidence of the complainant should not be believed. The complainant told the court that after she was indecently assaulted by the accused, her friend Sia called out and they both left the house to go outside. But the friend on the other hand testified that when she returned from the other house with the coffee she met the complainant outside. She was then told by the complainant that the accused opened his shorts (trousers) to her. The friend went on to say that when she and the complainant went back to the house the accused had gone. This evidence is contradicted by the testimony of Mathew, the complainant’s cousin who drove the accused home. Mathew told the court that when the accused walked towards the car from the house, the two girls were walking behind him.

The accused admitted being inside the room but denied that the complainant was also inside the same room at the same time. He denied indecently assaulting the complainant.

As a result of the complaints by the complainant and her friend the accused was charged with indecently assaulting the two girls. The accused denied both charges when he was questioned by the police on the 15th May 2007. He has maintained that denial throughout. The charge alleging indecent assault on the friend of the accused was withdrawn on the first day of the trial.

The conflicting and inconsistent evidence suggest a suspicion of guilt or that the accused is probably guilty. That is not sufficient to justify a conviction. The charge against the accused is dismissed.

JUSTICE VAAI