Police v Fretton [2009] WSSC 17 (3 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

RAINBOW FRETTON, male of Satapuala.
Defendant

Counsels: Ms P. Chang for the prosecution
Mr LT. Malifa for the defendant

Hearing: 2nd & 3rd March 2009

Decision: 3rd March 2009

DECISION OF NELSON J.

The defendant is charged that at Satapuala on Saturday 28 June 2008, he did indecently assault his daughter a girl under the age of 12 years. The charge has two essential components; firstly that the complainant was under 12 years of age at the time of the offence and secondly that the accused committed an indecent assault upon her.

As to the complainant's age I am satisfied from the evidence of her mother Tasi Fretton that she was born 29 December 1999 as per her birth certificate produced as Exhibit "P-2" for the prosecution and that at the time of the alleged offending she was about 8½ years old. As to the indecent assault aspect the prosecution called a number of witnesses. The complainant herself, her ten year old brother Matagi, Nika Siaosi the sister-in-law of the accused alleged to be an eye witness to the indecent assault, Nikas mother Nise Siaosi to whom Nika related what she saw shortly after the incident occurred, the accused's wife Tasi Fretton to whom it is alleged certain threats were made by the accused and finally Dr. Falahola Ah Kuoi who examined the complainant the day after the alleged incident.

The complainant's evidence is that she was asleep at home on Saturday 28 June 2008 when her father awoke her. She was wearing pants and a t-shirt. Her father asked her to accompany him to go presumably inland to fetch some timber, "ta laau" were the words she used but she refused. He then told her to undress which she did and he told her to get on top of their television which she did. She said the accused took off his long pants which had a zipper in front and that he then put his penis on to her vagina but it did not penetrate her. She said he then put his index finger into her vagina and this caused her pain. At that point her mother's sister Nika came onto the scene and called out to them asking what they were doing. Her father replied that he was fixing the TV antennae. The two of them then got dressed and that was the end of the incident.

She went on to testify about making a statement telling the police about the incident the following day and being examined at the hospital by a doctor. The doctor was Dr. Ah Kuoi and her evidence as noted on her medical report produced as Exhibit "P-1" for the prosecution was that she found the opening to the complainants vagina inflamed. She also found the hymen was partially torn suggesting some form of penetration had occurred but no laceration or any other injury was seen. This is consistent with the complainant's evidence.

The evidence of the aunty Nika was she went to the accused's house because she wanted the complainant's brother Matagi to run an errand for her. She got there and called out to the accused looking for Matagi but received no reply. She said she then saw the complainant sitting on the TV with only her shirt on and the accused between the complainant's legs making thrusting motions. She said it looked like the two of them were having sex and she called out to them asking what they were doing. At this point the accused tried to pull down the tarpaulin on that side of the Samoan style house and he told her Matagi was in the toilet. The accused said nothing further to her but he lifted the complainant down and the complainant got dressed. She said she was stunned by what she had seen and did not know what to do but she called out to Matagi who answered from the toilet then she left the area. She went to a shop from there she called her mother and asked her to wait for her. Subsequently she took a plate of food to her mother and told her what she had seen.

The mother Nise in her evidence confirmed Nika’s testimony. The other witness the complainant's brother Matagi also confirms this evidence saying that at the time in question he was sent to the toilet by his father leaving his father and the complainant alone together. He stayed there until he was told to come out by Nika.

The evidence of the accused's wife was on that particular day she was at a meeting and only returned home about 3.15pm. Her mother summoned her and told her about the incident. She confronted her husband who got angry and threatened to cut up (‘fa’anini’i") her family with a machete. The next day when her husband went to work she went to the police station and laid a complaint and also accompanied her daughter to hospital for the medical examination. The couple have since split up and the accused is now back at his family at Tanumalala while she continues to live with the children and her family at Satapuala. The wife, her sister and her mother all deny these allegations are an attempt to smear the accused and there is nothing arising from the evidence that would support such a suggestion. There is also nothing in the evidence that I have heard showing why the complainant and her brother would give false testimony against their father.

The defence has attempted to raise the defence of recent fabrication based on the evidence that the complainant has been in the custody and care of the Samoa Victim Support Group in Apia for the past few weeks prior to trial. But I fail to see the basis of such a defence as there is no evidence that the Samoa Victim Support Group "coached" or have otherwise tried to influence the testimony of the complainant. What the evidence does show is consistency on the part of the complainant in making her allegations to the police the day following the incident and which she has pursued today by giving evidence in court.

In any event the complainant is not the only witness against the accused. There is also the damning evidence of the accused's sister-in-law Nika who witnessed the indecent assault incident plus the medical evidence. The accused's counsel has had a difficult task confronting him but even he cannot weave a silk purse from a sow's ear.

The accused has elected to testify and he denied everything and said he really was fixing the TV antennae and no such incident as related by the complainant and Nika occurred. However I do not accept his denial in the face of the testimony of two of his own children, his own wife and his own sister-in-law. None of whom have been shown to be unreliable or in respect of whom it can be said that they had cause to make up these allegations.

I am satisfied after seeing and hearing the prosecution witnesses and in particular the complainant that they are telling the truth and the only liar in this courtroom is the accused. I have no hesitation in finding the charge against the accused proven beyond reasonable doubt.

Rainbow ole aso 23 o Mati lea ua tolopo iai lau mataupu mo se faaiuga, e tatau ona e faafesootai le ofisa faanofo-vaavaaia mo se latou ripoti e fesoasoani i lau mataupu. O le tulaga o lau saini ma tulaga faapena e faaauau pea e faatalitali ai le faaiuga o le mataupu lenei (adjourned to 23 March 2009 for probation report and sentence, bail to continue).

JUSTICE NELSON