Police v Ah Lam [2012] WSSC 94 (13 April 2012)

SUPREME COURT OF SAMOA

Police v Ah Lam [2012] WSSC 94

Case name: Police v Ah Lam

Citation: [2012] WSSC 94

Decision date: 13 April 2012

Parties:
POLICE v FALENIU NIUELI AH LAM, male of Vaigaga and Vaimoso

Hearing date(s): 28 February 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms R Titi for prosecution
Mr A Roma for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v Hansel (unreported) 6 November 2009

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Informant

AND

FALENIU NIUELI AH LAM, male of Vaigaga and Vaimoso.

Defendant

Counsels: Ms R Titi for prosecution

Mr A Roma for defendant

Hearing: 28 February 2012

Submissions: 20 March 2012

Decision: 13 April 2012

ORAL DECISION OF NELSON J

[1] The defendant has pleaded not guilty to 9 counts alleging that during the month of February 2011 he did at Vaigaga indecently assault the complainant a female under 12 years of age. There is no dispute the complainant is under 12 years of age, her date of birth is 12 February 2003. That is she turned 8 on 12 February 2011 during the month of these allegations. In case one has not been issued there will issue a suppression order prohibiting the publication of the details of the complainant including her place and village of residence.

[2] The complainants evidence was to the effect that her neighbour the defendant did three bad things to her. The first occurred in the falepopo of the family on a Saturday after she came home from school. She did not elaborate nor was she asked why she was attending school on a Saturday. But she testified that her and the defendant were alone at the property and her father who is a grounds-keeper by profession was working. No one else lives in the family or looks after the young girl when her father goes to work. Her mother had left the family home some time ago and lived in another part of the village.

[3] Her evidence was at the falepopo the defendant told her to undress which she did and then lay on top of her and put his private part or parts thereof into her. She used in her evidence the Samoan word “polo” which she said the defendant put into her mouth and into her private part. She also said that he digitally penetrated her with his finger. She could not recall the date that this happened but she said she reported it to her father and to a woman of their village name Palepa Kose.

[4] She gave evidence about another incident that occurred in the “togavao” or bush behind their house. That involved the defendant kissing her on the lips and putting his “polo” into her mouth. She further testified about a third incident that occurred at a rock wall by the defendants house. When he put his hand onto her private part after which he gave her $3.

[5] The young girl did not fare well in cross examination. Where at one point she admitted her evidence was rehearsed and that her father had helped her prepare her testimony for the court case. She also admitted that another boy of the village named Iakopo had also done a bad thing to her. Namely he had put his polo into her mouth. And that he was interrupted and caught by her father who promptly beat him.

[6] She also gave evidence about telling Palepa what the defendant had done to her but she made no mention of telling Palepa about what Iakopo had done to her. Her evidence was generally unclear as to when she told Palepa all this i.e. whether it was on the day of the alleged accident or shortly thereafter or sometime thereafter.

[7] Palepa is a neighbour of the defendant and her evidence was that on the day of the Japanese Tsunami which was historically Thursday, 10th of March Samoan time, she saw the complainant on the road. She called her over and enquired of her if it is true what she had been hearing about the defendant doing something to her. She said the young girl started crying and she told her not to be afraid but to tell her the truth. The young girl was not forthcoming but she continued questioning her as to what happened. It was then that the complainant told her of the defendant touching her private part and putting his genitalia into her mouth “nine times.” She also said the young girl described these events as all occurring at the falepopo after the defendant came and got her from school. Again she was neither asked nor did she elaborate as to why the defendant would come and fetch her from school.

[8] In cross examination Palepa said that the complainant was on an errand when she called her over and talked to her. That she called her over because she had heard stories in the village the previous month about this matter and the defendant and the complainant. The stories were to the effect that the defendant had raped the complainant and she wanted to find out if these stories were true. She also said that she heard no stories however involving the complainant and a male of their village named Iakopo.

[9] The prosecution sought to introduce the evidence of Palepa as evidence of complaint which goes to show consistency of conduct on the part of the complainant. As a matter of law the evidence of complaint from Palepa is plainly inadmissible. It is not first opportunity evidence given that the parties were neighbours. The informations allege incidents that occurred in February Palepas evidence was she had this discussion with the complainant on the 10th of March. There had been sufficient time for rumours to circulate in the village about the defendant and the complainant. Furthermore the complaint was elicited as part of a fact finding mission by the faikakala (nosey) Palepa. It was complaint elicited by questioning and it lacks the spontaneity of recent complaint. And in its detail it seriously contradicts the complainants sworn evidence. As such it can be supportive of the case for the defence. The prosecution would have done well to avail themselves of the applicable law in this area as set out in works such as Cross on Evidence 7th New Zealand Edition at paragraphs 9.30, 9.31 and 9.32.

[10] These principles have been applied in many cases in this jurisdiction for example Police v Hansel (unreported) 6 November 2009 where evidence of complaint was in fact admitted. The credibility of this young complainant was not salvaged by the evidence of the final prosecution witness who was the complainants father. His evidence in chief was that it was only when he beat up his daughter that she named the defendant. Why it was necessary for him to beat up the young girl is beyond my comprehension.

[11] In cross examination he said he knew about what Iakopo had done to his daughter. Because he caught Iakopo doing something to his daughter, leading to him assaulting Iakopo. The defendants name was given to him by the police and that was the first time that he realized there was also an allegation involving the defendant and his daughter. He confirmed in his oral sworn evidence what he told the police in his written statement to them shortly after the incident that he was shocked to learn about the allegation involving the defendant and his daughter. He also admitted in cross examination that it was Palepa who reported this matter to the police not him. Probably because he had already assaulted Iakopo.

[12] While this witness tried in re-examination to return to his original examination in chief as to when he became aware of the defendants involvement the damage to his evidence had already been done in cross examination. I am of the view that it was only in cross examination that he told the truth. At best he contradicted himself, at worse he has committed perjury. If in fact he knew about the actions of both men on his 8 year old daughter his lack of action is appalling and borders on the disturbing and leads one to question his fitness to be the sole caregiver for a young innocent 8 year old child.

13] The evidence in this case is quite unsatisfactory. It would be unsafe for me to found a conviction thereon. The wrong defendant it would appear is in the dock because the evidence points clearly to Iakopo who the father caught “in flagrante delicto”. I am not satisfied beyond reasonable doubt on the evidence produced that the defendant also committed indecent assaults on the young girl. The charges against him must be dismissed.

...............................

JUSTICE NELSON