Police v Mikaele [2012] WSSC 81 (15 June 2012)

SUPREME COURT OF SAMOA

Police v Mikaele [2012] WSSC 81

Case name: Police v Mikaele

Citation: [2012] WSSC 81

Decision date: 15 June 2012

Parties: POLICE v SAVELIO MIKAELE, male of Tafaigata Prison and Sapapalii

Hearing date(s): 28 May 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms F E Niumata for prosecution

Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

SAVELIO MIKAELE, male of Tafaigata Prison and Sapapalii.

Defendant

Counsel: Ms F E Niumata for prosecution

Defendant unrepresented

Hearing: 28 May 2012

Decision: 15 June 2012

ORAL DECISION OF NELSON J

1. When this defendant appeared for sentence on other charges he disputed the police summary of facts in relation to the allegation that at Alafua on 29 August 2011 he attempted to rape the complainant. In the last part of its decision dated 17 October 2011 the court granted leave for his plea of guilty to that charge to be reversed to not guilty. The defendant had also earlier pleaded not guilty to associated charges of assault and armed with a dangerous weapon and a new charge of indecent assault. Trial therefore proceeded on the defendants election of trial before a judge alone in respect of all four charges.
2. The prosecution called 6 witnesses. Firstly a police photographer who took photographs of the jungle scene on the way to the complainants house where the offending allegedly took place. Secondly the complainant who testified that on her way home from school she met the defendant on the deserted road and how he attracted he attention by giving her a cell phone he told her that she may have dropped. How she turned to walk away when the defendant surprised her from behind, put a knife to her neck, covered her mouth and dragged her into the bushes on the side of the road. How he only succeeded in kissing her on the cheek before she was able to free herself and yell out for help. How he then threw her to the ground and ran away. How although the defendant was unknown to her she was able to identify him because of distinctive tattoos on his arm and the gap in his upper front teeth.
3. The complainants brother was also called as a prosecution witness and he testified how the complainant came home that day distressed complaining of being molested by a stranger on the way home. How the brother went to the boys of the family to investigate but found no sign of the defendant which is probably just as well because I do not need to tell the defendant what they would have done to him if they had found him. The complainants mother was also a witness and she confirmed the complainant at the relevant time was only 13 years of age.
4. As well the prosecution called a female neighbour of the complainant who told the court about the presence of a strange man on their property who tried to befriend her with some “kekesaiga”(cakes) and donuts. And how when he noticed her husband was in their kitchen preparing food he left the property. She too was able to identify the defendant because of his tattoos. The final prosecution witness was the police investigating officer who interviewed the defendant and obtained from him a cautioned statement wherein he admitted hugging and kissing the complainant.
5. The defendant was given an opportunity to cross examine all the witnesses but he had no questions in respect of any of them. Yet he continued to deny involvement in the matter. In the face of such overwhelming evidence the defendants denials cannot be accepted. His choice not to question any of the witnesses is proof beyond doubt of his guilt. In respect of this matter Savelio I therefore have no difficulty in finding you guilty in respect of all four charges against you. You will be remanded in custody to 02 July 2012 for sentencing.
   

JUSTICE NELSON