Police v Pilako [2011] WSSC 85 (13 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

NIKO PILAKO
male of Faala Palauli
Defendant

Counsel: Rexona Titi for prosecution
Ameperosa Roma for defendant

Submissions: 4 July 2011
Conclusions: 11 July 2011
Reasons: 13 July 2011

REASONS FOR VERDICT

On the 11th July 2011 I found the accused not guilty of two counts of unlawful sexual intercourse and one count of indecent assault. These are my reasons for those three verdicts.

The Informations

1. Informations 1636/10 and 1637/10 alleged that on the night of the 19th May 2010 at Fa'ala Palauli the accused had sexual intercourse with Pila a girl over the age of 12 but under 16 years of age. It is also alleged that at the same place and time he indecently assaulted Loleka a girl over 12 but under 16 years of age.
   
2. Information 23/10 alleged that at the same place on the night of the 11th June 2010 the accused had sexual intercourse with Loleka.
   

Prosecution Evidence concerning the night of the 19th May.

3. In May 2010, the complainant Pila was staying at complainant's Loleka's family at Palauli. They were friends at school.
   
4. In her evidence in chief Pila told the court that on the night of the 19th May 2010 she slept in an open fale with her friend Loleka. They were both inside a mosquito net. Late that night while they were both asleep she felt a hand inside her shorts. When she awoke, the accused covered her mouth with the pillow, removed her shorts and inserted his penis inside her vagina. She tried to wake up Loleka. When Loleka woke up, the accused jumped out of the mosquito net. Pila could not identify the person who raped her but Loleka told her it was the accused.
   
5. Under cross examination Pila conceded that two boys came to the mosquito net that night and one of them was Tutaia. She deliberately withheld mentioning Tutaia's name in her evidence on instructions from a Police officer.
   
6. Pila also admitted under cross examination that it was a dark night and there was no source of light inside or outside the house.
   
7. Loleka told the court that her 10 year old younger sister was also in the mosquito net so that there were three instead of two people inside the mosquito net when they went to sleep on the night of the 19th May. During the night she felt a hand inside her panties and fingers were poking her vagina. When she woke up both her younger sister and Pila were laughing at her as the accused Niko was running away. She identified the accused that night as there was a street light at the front not far from the house, and the accused was wearing black shorts with white stripes.
   
8. Under cross examination she admitted the night was dark. She also conceded, when the photograph of the street lamp post, produced as exhibit by the prosecution, was shown to her that the street lamp post had no light on it.
   
9. The 10 year old sister of Loleka also testified. She said she woke up about midnite and saw the accused lying on top of Loleka biting Loleka's neck and when the accused ran away he was only wearing an underwear.
   

Prosecution evidence relating to the 11th June allegation

10. Complainant Loleka told the court she was asleep with her 10 year old sister inside the same mosquito net in the same house when she felt someone on top of her. She awoke to find the accused on top of her. He said to her not to make any noise and requested her to have sex and although she did not reply he continued to remove her shorts and panties, parted her legs and had sex. After sexual intercourse she went outside of the mosquito net and the accused ran away.
    
11. The next morning the mother noticed love bites on the complainant's neck. When the complainant did not respond to questions by the mother she was subjected to physical beating by the mother. As a result the complainant told the mother about the both incidents of the 19th May and the 11th June.
    
12. Under cross examination she admitted that she has had three boyfriends from the same village namely Line, Faauuga and Tutaia. Tutaia is her current or latest. Tutaia and Line are brothers, they are the sons of Aiulu's brother. Aiulu is the husband of Loleka's mother.
    

Discussion of 19 May allegations

13. The court accepts that the night of the 19th May was dark and there was no source of light at or near the house where the two complainants were asleep. If the court accepts Pila's evidence that she was raped while Loleka was asleep then Loleka could not have been indecently assaulted by the same person who raped Pila. Pila did not identify the person who raped her and that person jumped outside the mosquito net from on top of Pila and ran away when Loleka woke up. If that was the truth of what happened that night, there is grave and serious doubt that Loleka had sufficient time after waking up to focus and identify convincingly the person who was running away given the darkness and time of the night.
    
14. Loleka attempted to bolster her identification evidence by testifying that there was a street light, but when shown the photograph of the lamp post without a light, she had no alternative but admitted there was no light. She deliberately lied under oath. She further dampened her credibility by describing the colour of the accused's short as black with white stripes when obviously one cannot identify colour in the circumstances she was in.
    
15. The testimony of the 10 year old sister of Loleka lacks credibility and cannot be accepted. The love bites on Loleka's neck existed after the incident the night of the 11th June not the 19th May.
    
16. If indeed there was sexual intercourse as testified to by Pila, there is insufficient evidence, considering the standard of proof, to implicate the accused with the offence. Although the offence described by the complainant Pila tantamounted to rape, the police proceeded with a lesser charge and Tutaia who was identified by Pila apparently has not been charged.
    
17. Pila knew Tutaia and she was adamant Tutaia came that night to the mosquito net. She told the police when she was interviewed by the police that Tutaia came that night. She impressed as a more reliable witness than her friend Loleka. Loleka woke up that night when Pila woke her up which means Loleka was not woken up by the accused who Loleka said indecently assaulted her. Loleka's testimony that her friend and younger sister were laughing at her when she woke up is not supported by the evidence of both Pila and the younger sister and is accordingly rejected.
    
18. It follows that the allegations of indecent assault and unlawful sexual intercourse on the 19th May 2010 must fail.
    

Discussion of allegations of the 11th June

19. The events of the night of the 11th June 2010 came to light the next morning when Loleka's mother spotted love bites on Loleka's neck. As a result of the beating she got from her mother, Loleka told the mother it was the accused. Whether she told the mother she had sexual intercourse with the accused was not brought out by the evidence of the mother.
    
20. But neither the mother, nor her husband, nor the complainant laid a complaint with the police. It was the mother's uncle who informed the police.
    
21. Loleka attempted to hide Tutaia's name from the events of the night of the 19th May. Lila who was awoken that night by someone on top of her clearly identified Tutaia as the second person who came to the mosquito net. She had no reason to hide that from the police and the court. She probably did not know that Tutaia was Loleka's boyfriend and Tutaia was the son of Loleka's stepfather. An intimate relationship between Loleka and Tutaia would be frowned up within their family, church and village; indeed it would undoubtedly invite village sanction. Perhaps that was the reason why Loleka's mother did not pursue laying a complaint with the police.
    
22. At the time of the alleged offence, the accused was not the boyfriend of the complainant, it was Tutaia, and by her testimony the alleged sexual intercourse was not prearranged with the accused yet she appeared to be a willing partner. This is her description of the incident at page 23 of the transcript.
    

Answer: While I was asleep I felt someone heavy on me, I opened my eyes it was Niko facing downwards on me telling me not to make noise and asking me to have sex but I did not say anything, he then took off my shorts, my panties and told me to part my legs but I did not, then Niko parted my legs and made sex with me.

Question: What do you mean made sex with you?

Answer: He then fucked me

Question: Put his penis inside you?

Answer: Yes

Question: Where was Luana at that time?

Answer: Asleep

Question: Didn't wake up

Answer: No

Question: After sex what happened next

Answer: I came out of the mosquito net, Niko also came out and ran home.

23. If Loleka and the accused were not friends and if the accused's presence in the mosquito net on the night of the 11th June was not pre-arranged with Loleka, then any ordinary, normal person would have screamed or reacted to repulse the advances made by the accused as described by Loleka. She was after all not threatened. Her father and paternal grandmother were sleeping nearby and her younger sister was right next to her.
    
24. I have expressed serious doubts about Loleka's evidence relating to the events of the 19th May. She does not impress as a sincere person, indeed her responses under cross examination severely impaired her integrity as a witness. All of her evidence relating to the events of the 19th May was destroyed under cross examination and by the evidence of her younger sister and her friend Lila. I have found no compelling reasons to accept her evidence relating to the allegations of the 11th June, in fact I have very serious doubts about her testimony.
    
25. The allegation of the 11th June must also fail.
    

Result

(a) The three informations against the accused are dismissed.

_________________

JUSTICE VAAI