Police v Ai'i [2009] WSSC 113 (23 October 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LI’IMOA AI’I,
male of Sasina and Vaitele.
Defendant

Counsels: Mr F. Lagaaia and Ms L. Su’a-Mailo for the prosecution
Defendant unrepresented

Decision: 23 October 2009

DECISION OF NELSON J.

The defendant is charged that on the 6 December 2008 at Samauga in Savaii he did indecently assault the complainant a girl under 12 years of age. I am satisfied on the evidence that I have heard from the girls mother that the complainant is less than 12 years of age, she was born on 2 October 1998 and was therefore 10 years of age at the time of the alleged offending. That part of the charge is proven beyond reasonable doubt. The real issue in dispute is the defendants actions on the day.

The complainants evidence is that she was eating mangoes under their mango tree with her cousins Ata and other children. The defendant came and asked Ata to accompany him seaward to fetch some medicinal leaves for his sick wife because the defendant is a faiavā in the family and he is not familiar with the area. Ata refused and she explained in her evidence that was because her mother forbids her to go off alone with strangers which is very sound and smart advice for young girls. All mothers should teach their daughters this. The complainant did not follow Ata’s example and she went willingly with the defendant. It was probably because she trusted him as a member of the extended family because the defendant is the husband of the complainants fathers sister with whom she was living at the time. The complainant said they went and fetched the leaves and on their way back the defendant took her to a secluded area and kissed her on the lips. He also touched her private part and the defendant asked her to touch his testicles. She refused. She said his touching her caused pain and made her cry. The defendant told her not to tell anyone what he did and gave her a packet of M & M chocolates to keep her quiet. The word she used several times in her evidence was this was to "faapele" her.

The two then returned and the defendant went home. The complainant told her older cousin Ata what had happened. Curiously, the cousin kept quiet about this and only told her mother the next day. She did not say why she did not tell her mother immediately about the incident which was obviously a very serious occurrence involving a sexual assault on her cousin.

The cousin gave evidence confirming what the complainant related to her. Such evidence is of course admissible as evidence of recent complaint, to establish consistency of conduct on the part of the complainant.

The final prosecution witness was the police officer who witnessed the defendants police interview at Tuasivi Police Station some days later. The cautioned statement made by the defendant was produced as evidence and in it, the defendant admitted kissing the complainant on the cheek but nothing else.

The defendant elected to give evidence and in the witness box essentially confirmed the cautioned statement and admitted to only kissing the complainants cheek. He was not shaken in cross examination on this aspect.

If I believe the complainant, I can convict the defendant based solely on her testimony. The question is do I believe her?

I am troubled by a number of matters concerning her testimony. First and foremost is the contradiction in her evidence about the mango eating and the defendant calling Ata to come with him. In examination in chief she said they were eating mangoes under their mango tree with Ata when the defendant came and called out to Ata to go with him. In cross examination under questioning by the defendant, she changed her evidence and agreed that the defendant was correct in saying that Ata was not at all present and the mango eating occurred under the mango tree belonging to one Lee Lo. In re-examination, she reverted back to what she said in examination in chief. The reasons for her contradictory testimony were not explained. Neither is it apparent from the evidence as none of the Lee Lo children testified.

The second aspect that disturbs me is the manner in which the complainant gave her evidence. It seemed rehearsed and she had to give it all in one sentence, almost compellingly in one breath. I am also concerned that she used the word "faapele" which is not the language of an 11 year old but is the language of an adult.

Furthermore, her evidence as to what actually took place at the scene lacked any real specificity or detail. It was very general and almost cursory in nature. Details of course are useful as detailed evidence can be very credible evidence. The exact opposite can be said about general unspecific evidence. In sexual cases involving young girls detail can often be important.

I also note the absence of medical evidence supportive of the complainant’s testimony. I am told the medical doctor concerned has left the jurisdiction but that is of no assistance as there are and were other options available to the prosecution.

The cousins evidence does not assist the complainants credibility. She too contradicted herself in cross examination on the mango eating issue and then in re-examination, returned to her original story. There is also the unexplained silence for 24 hours concerning her cousins complaint. The complainant herself seems to have told no one else about the incident, there is no evidence she made a complaint to any other person.

Taken collectively, these leave me in reasonable doubt as to the reliability of the girls evidence as to the acts of indecent assault. But I do accept the defendant kissed her as she described not on the cheek but that he did so by "ai o’u laugutu" (eating her lips, an apt description from an 11 year old). That has a clear ring of truth. It may be because of that she embellished the rest of her story which she subsequently related to her cousin.

This is not to say that I believe the defendant. It only means I am in reasonable doubt about some of the complainants evidence and accordingly I propose to enter a conviction of indecent assault but the act in question consisted of the unwanted kissing of the complainant on the lips in circumstances where such action was indecent.

The defendant is convicted accordingly of the charge against him. He is remanded on bail to 10am on the 9 November 2009 for probation report and sentencing. Defendant to see the Probation Office when court is concluded.

JUSTICE NELSON