Police v Faotu'i [2012] WSSC 80 (17 August 2012)

SUPREME COURT OF SAMOA

Police v Faotu’i [2012] WSSC 80

Case name: Police v Faotu’i

Citation:[2012] WSSC 80

Decision date:17 August 2012

Parties: POLICE v SAMUELA FAOTU’I, male of Safotu

Hearing date(s): 7 and 8 December 2010

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi and F E Niumata for prosecution

Ms T Leavai on behalf of Mr Jerry Brunt for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Informant

AND:

SAMUELA FAOTU’I, male of Safotu.

Defendant

Counsels: Ms L Taimalelagi and F E Niumata for prosecution
Ms T Leavai on behalf of Mr Jerry Brunt for defendant

Hearing: 07 & 08 December 2010
Scene Visit: 03 March 2011
Submissions: 25 May 2011
Decision: 17 August 2012

ORAL DECISION OF NELSON J

1. Firstly the court must apologise to the parties concerned in these proceedings. The file for this matter was inadvertedly misplaced. It was adjourned several times because of election petitions and seems to have got lost in the system and only recently resurfaced. I regret any inconvenience the late delivery of a decision has caused.
2. The defendant is charged that at Safotu between 31 April and 01 June 2009, that is during the month of May 2009, he did on two occasions indecently assault the complainant, a girl who in May 2009 was one month under 6 years of age. There was no dispute at trial as to the age of the complainant but the defendant denied both counts of indecent assault. The prosecution evidence consisted firstly of the evidence of a qualified medical practitioner who had examined the girl post the alleged assaults. According to her medical report about seven months after the alleged assault. As well there was the evidence of the complainant herself and her slightly older sister as well as the complainants mother.
3. The mothers evidence was that her two daughters were victims of a previous sexual assault involving her then husbands brother for which the brother was at the time of the trial serving a term of imprisonment. It led to them leaving the husbands family at Siumu where the incident occurred and her sending her female children to Safotu Savaii to attend school and live with her mother. It also led to her separating from her then husband who was the natural father of the children. She subsequently married another who is her current partner. As the man was from Vailele she then took up residence at her husbands village. But she said she visited her children in Savaii almost every weekend except for when she was in American Samoa for a period looking for work.
4. The complainants evidence. I could not help but observe that the complainant was not very forthcoming in her evidence in chief. It was only in cross examination that she went on to describe in detail the alleged two incidents of sexual assault.
5. She said the first happened on a Sunday afternoon after toonai. She was in her grandmothers house when the defendant called her to come over to a nearby Samoan fale. The defendant was at that time looking after his baby daughter. His wife was nearby doing some washing. And other children of the family were “tafao” or playing in the vicinity. The Samoan fale in question where the defendant was is not very far from the grandmothers house. And she said that when she went over the defendants baby daughter was asleep. She said he called her over to him and proceeded to touch her private parts. Which caused the baby to awaken. So he picked her up and while holding her (she used the word “sii”) he kissed the complainant on the lips. She said nothing else happened and she left the fale but told no one about the incident except for her older sister. The sister is two years older than her so at the time of the incident was around seven to eight years of age.
6. Neither girl however told the grandmother of the incident. And it was not clear from their evidence when exactly the complainant told her sister of this post toonai allegation of sexual assault. The two girls gave conflicting evidence as to when this complaint was allegedly made by the complainant to her older sister.
7. The sister was a witness to the proceedings and she also testified about the complainants complaints. The sisters evidence was that the complainant had told her about a further incident of sexual assault that occurred at night. This comprised the defendant jumping on top of the complainant while everyone else in the house was asleep. She said that the complainant told her about this incident before telling her about the post toonai Sunday incident. Which seemed to suggest that the night time incident occurred before the post toonai matter. An aspect that was not clear from the complainants own evidence.
8. I have many other difficulties with the complainants evidence. Her description of the post toonai assault was not very credible. She was asking the court to accept that the defendant carried out these actions while there were many people including his wife and the grandmother in the area. His wife is the complainants mothers sister.
9. Secondly a scene visit by the court confirmed that there is a clear and unobstructed view from the grandmothers house to the Samoan fale in question where the sexual assault is alleged to have taken place. It also confirmed that the distances between the two structures are quite small. Quite apart from that the scene visit also confirmed that the Samoan fale is plainly visible to neighbours, as well as to the front yard of the property and to the main road some 30 metres away. The fale is a faleoo style building and has no “puipui” or walls or even a half-wall.
10. Thirdly the complainant was a reluctant story teller. Her evidence in chief was barely adequate to say the least and details were only added in cross examination by defence counsel. I accept she is a very young child but she did not appear truthful or forthcoming. She seemed to be embellishing the story as she went along.
11. As well I noted there were also differences of a substantial nature between her sworn testimony in court and her police statement. In addition to that were the conflicts between her evidence and that of her sister in relation to more than one matter.
12. The only evidence consistent with hers was the medical evidence where the doctor expressed surprise that someone so young had a torn hymen. But this was an examination undertaken seven months post the alleged assaults. And the doctor could not say how old the tears were. Clearly they were not recent. These could have therefore occurred in the previous sexual assault on this young complainant by her uncle in Siumu.
13. It was also not conducive to the complainants credibility that at the scene when I asked her to tell me again what had happened and where the various things had occurred that she told me she could not remember as she had forgotten about the incident. It did not help her cause that family members at the scene were prompting her to tell the court what had happened.
14. To all that must be factored in her evidence that she and her sister were unhappy living in Safotu with their grandmother. They did not want initially to go there and preferred living in Siumu with their natural father. These allegations were only made by the girls when they were released by their grandmother into the custody of their natural father.
15. The grandmother herself gave evidence as a defence witness and her hostility to the childrens natural father was obvious. It also appeared from her evidence that she had received strict instructions from the complainants mother not to release the girls into the care of the natural father and that she had declined the girls request to go and spend school holidays with their natural father in Upolu. She had also told the natural father when he called for permission for the girls to spend the holidays with him that she had no authority from the mother to release them to him. The grandmothers evidence indicated that this was not the first time she had rebuffed an approach from the natural father to have the girls for school holidays.
16. It was only when the complainants natural mother changed her mind and advised the grandmother accordingly that the girls were then allowed to come to Vaitele and spend school holidays with their natural father. It was during that trip that the allegations of sexual impropriety against the defendant then surfaced and the father reported it to the police. And according to the evidence of the complainants mother led to the natural father applying for a custody order from the Family Court for the girls.
17. Quite clearly at the relevant time there was a dispute involving these two young girls between the biological parents. Sadly this dispute seems to have worked its way down to the young girls. I am not confident that these allegations were not made up by the girls in order to allow them to stay with their natural father and not return to the care of their grandmother in Safotu Savaii. I sensed that there were undercurrents between the two sides during the hearing of this matter. And the grandmother had admitted in her evidence that the young girls had at least once cried because they wanted to go to their father but the mother and grandmother would not let them.
18. In addition to all that the grandmothers evidence in so far as it was relevant to the allegation of sexual assault at night was that she always slept with her grand-daughters, except for one night when she was absent attending a funeral. She said she found it hard to believe the defendant would be able to do what the complainant said he did without her knowing. And without the complainants siblings asleep in the same fale also noticing.
19. I have also seen the defendant and compared his size to the complainant who is of a very small and slight build. There is a massive difference and if he indeed jumped on her or lay on top of her as she stated he would crush her.
20. In relation to the night allegation the complainant again did not tell the whole story in evidence in chief. She only added the details in cross examination. Including details that she did not even tell the police.
21. In this case, the complainants evidence is far from credible. Secondly the complaint evidence was not good or consistent. Thirdly a scene visit did not support the complainants testimony. Fourthly there were things going on in the background in this family. And fifthly the evidence is capable of the construction that these allegations could have been made up by the girls so that they continued to reside with their natural father which was their preference. Which is not surprising given that they were not living with their natural mother who had given them over to the care of her mother while she went and lived with her new husband. The grandmother too struck me as a very old-fashioned disciplinary type grandmother. I do not intend that comment to be disrespectful because such grandmothers are a necessity in any Samoan family. But it makes them less appealing to young girls.
22. I accept as submitted by the prosecution that these are very young girls and some latitude must be extended in relation to their evidence. And in relation to any inconsistencies therein. But there are more problems in this case than merely inconsistencies in the evidence of the young girls. And the defendants denials on the witness stand were quite credible.
23. Viewing the evidence of this case as a whole I am not sure at all about your guilt in relation to these allegations. There is more than one reasonable doubt arising from the evidence. I am not satisfied the prosecution have proven the allegations to the required standard. The law says the benefit of any reasonable doubt the court may have as to whether or not you committed either of these offences must be given to you. These charges have not been proven beyond reasonable doubt they are accordingly dismissed.
    

JUSTICE NELSON