Police v Laumatai [2009] WSSC 54 (19 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

VISALA TIATIA LAUMATAI, male of Gataivai Savaii, Vaitele-uta and Satapuala
Accused

Counsels: Ms R. Titi for the prosecution
Defendant unrepresented

Hearing: 19 May 2009

Decision: 19 May 2009

DECISION OF NELSON J.

The defendant faces two charges. Firstly that at Vaitele-uta on 4 July 2008 he did indecently assault the complainant a girl under 12 years of age. And secondly that at Vaitele-uta on 16 July 2008 he did indecently assault the same complainant.

The prosecution case is brief but concise. The complainant was born on 11 June 1999 at Motootua Hospital and she currently attends school and is in Year 5. At the relevant time she was living at Vaitele-uta with her family in their two storey home. In the front of the bottom storey is located a shop belonging to the family. In that room is where the defendant sleeps.

The defendant is the first cousin of the complainant's mother because their fathers are brothers. He had been brought to live with the family in June 2008 to help out with certain family matters. He is stated in the information to be a 54 year old male.

The main witness for the prosecution was the complainant herself who is the youngest of five children. At the time of the alleged offending she was 9 years of age. Her evidence related to three instances of sexual assault but as there are only two charges before the court I will confine myself to the evidence concerning those two charges.

The complainant said that on 4 July 2008 she went to the kitchen on the bottom storey of the house to fetch some milk. In the kitchen was the defendant. There was no evidence there was anyone else present at the time. She said the defendant lifted her up put his hands on her pants and took them off. He touched her with his fingers involving at one stage some digital penetration as well as performing oral sex on her by licking her private part. She said that she felt pain probably from the digital penetration and that when it was over the defendant told her not to tell anyone or he would harm her. She pulled up her pants and went upstairs and told no one of the incident. No doubt because of his threats to her.

On the 16 July 2008 she went to the family shop which as I have stated is located at the front of the main house to retrieve some shoes that had been left there by one of her younger relatives. The defendant was there and he opened the door and took her inside the shop. He kissed her and at some stage laid her on the bed and pulled down her pants. Again he touched her and licked her private part. She said he also spat on his hand and used this to lubricate her, he took off his pants and then used more spit to lubricate himself. He opened her legs and then put his private part to hers. She said he told her not to give her private part to any one else. She said he described her private part as "his mea" suggesting that somehow he believed her private part belonged to him in some bizarre fashion. Her evidence was this was not the first time he had referred to her private part in this manner. She said she resisted what he was trying to do and left the shop and went back to the main house. Again she did not tell anyone about the matter because she was afraid about what he said he would do to her.

The prosecution also called to testify the doctor who had examined the complainant at Motootua Hospital on 25 July 2008. The doctor found the introitus or opening to the vagina was well-opened and was inflamed. She also found the hymen was not intact and digital penetration with one finger was accomplished with ease and with no pain. This evidence is consistent with the complainant's evidence of digital penetration on more than one occasion and also consistent with her evidence of recent activity around the vaginal opening.

In reply to all these the defendant elected when his options were explained to him not to testify or call evidence on his behalf but he continued to maintain from the dock his not guilty plea to the allegations against him. Why he would think the court would accept such a bare denial without any supporting evidence is beyond my comprehension. In any event I have seen and heard the complainant give evidence. It is clear law that she needs no corroboration and that if I am satisfied as to the truthfulness of her evidence I am able to convict solely on the basis of her evidence. In this case I do have something other than the complainant's evidence. I have the medical report which supports her evidence and is consistent with it.

I am well satisfied this young child was telling the truth and there is absolutely nothing before me to suggest she was acting or making up these allegations. Furthermore, there is nothing in the evidence even remotely hinting or suggesting a motive for her to come to this court and lie. The child's evidence is believable, I accept it completely, the defendant's denials have no substance, the charges against you are proven beyond reasonable doubt.

The defendant will be remanded in custody till 15 June 2009 for Victim Impact Report, Probation Report and for sentence.

JUSTICE NELSON