Police v Malota [2013] WSSC 145 (15 November 2013)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Samoa

Case name:	Police v Malota

Citation:	[2013] WSSC 145

Decision date:	15 November 2013

Parties:	POLICE and TUSITALA MALOTA male Vailima and Melbourne Australi

Hearing date(s):

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Mulinuu

Judge(s):	Justice Nelson

On appeal from:

Order:

Representation:	L Su’a-Mailo for prosecution A E G T Faleauto for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:	Jackson v Attorney General [2009] WSSC 122 Davie v Edinburgh Magistrate (1953) SC 34,40 R v J-LJ [2000] SCC 51, 56

Summary of decision:

Prosecution
AND:
TUSITALA MALOTA male Vailima and Melbourne Australia.
Defendant

Counsel: L Su’a-Mailo for prosecution
A E G T Faleauto for defendant
Hearing: 02, 03 and 04 October 2013
Judgment: 15 November 2013

[1] Originally the defendant faced seven counts of having a sexual connection with the complainant on the 18th, 19th and 20th of June this year at Vailima. The complainant being a girl over the age of 12 and under the age of 16 years. He also faced eight counts of indecent assault of the same complainant at the same place but on diverse date in May and June of this year. As well as that he faced three counts of solicitation of the same complainant at Vailima between the 1st of May and the 30th of June this year.

[2] There is no dispute as to the age of the complainant. Her birth certificate establishes she was born on the 6th of October 1998 so that at the relevant time she was 14 years of age. She was also attending a local college and it appears the defendant is related to her. He is the complainants mothers uncle.

[3] The evidence and the courts visit to the scene of the alleged offences establishes that the complainants house was located towards the rear of the defendants familys property at Vailima. The complainants house is no longer there as her family have since moved away but the witnesses pointed out the previous location of her house to the courts satisfaction. It was closer to the Avele College road than the Alaoa road leading to the defendants property.

[4] And I noted there are few power lines in the area. So I am satisfied there was at the relevant time no power connected to the complainants house. Only to the defendants house at the front of the property. There is a grass track that leads from the defendants house to the rear of the property and I am also satisfied that there was no evidence that track was lit up or illuminated at night.

[5] The complainants evidence was that around the time of her mid-year exams in June this year she went to the defendants house on two occasions to do her homework as their house had no electrical power. Because she only got home after school at around 6:00 pm. She would normally be accompanied on these visits by her brothers Dominic aged 16 and Cedrick aged 13.

[6] On one such night she said her brothers had left and gone home but she slept over at the defendants house after doing her homework because it was late. That was the night his house was raided by the police who were looking for a missing female and had received reports the female may be at the defendants house. At the time the police search party arrived she was asleep in the defendants bed wearing a T-shirt and an ie and a panty. She was asked by the police if she was the missing girl and she told them no. The officer in charge of the party Corporal Goretti Fidow told her not to tell lies and she said she ordered her into the police vehicle and took her to the police station.

[7] When she was asked in court if the defendant did anything to her or if anything happened to her that night her answer was “no”. In questioning at the end of her evidence by the court she said the defendant is like a father to her and confirmed nothing happened. She also stated in her evidence that on two occasions the defendant gave her money small amounts of $10, $20 and $50 for her school stuff and for pasese. She said she passed these monies to her parents telling them it was from the defendant and they gave her some of the money as pocket money. And that they were all grateful for the monies.

[8] There was no application by the prosecution to declare the complainant as a hostile witness. Neither was any written statement contradicting the complainants sworn testimony at any time put to the complainant. Neither did the prosecution invoke or seek to invoke the provisions of section 11 of the Evidence Ordinance 1961 which reads:

“11. Proof of contradictory statements of witness – Every witness under cross-examination, and every witness on his examination in chief (if the Court, being of the opinion that the witness is hostile, permits the question), may in any proceedings, civil or criminal, be asked whether he has made any former statements relative to the subject-mater of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and, if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.”

[9] Without the evidence of the complainant the police case therefore rested on the defendants cautioned statement which was admitted following an unsuccessful challenge to admissibility - see the courts ruling of 02 October 2013. And on the evidence of the police search party.

[10] Their evidence was that on the night of 20 June 2013 they were looking for a missing girl from Leauvaa named Monica. Acting on information they proceeded to the defendants house somewhere between 10:00 pm and midnight. There were no lights on inside the house. Only an outside light. They identified themselves as police officers, called out several times but received no response. Constable Maseiga Lauina said that using the light from his cell phone he went around the perimeter of the building shining his light into the building. He shone it into the defendants bedroom and saw the legs of two people on a bed. He called out some more and the people stirred and woke up. He saw the defendant get up naked. Grabbed an ie or towel hanging from a nearby wire and come to the front door of the building. Where Corporal Goretti advised him of their matter and asked if they could enter the premises. She said the defendant invited them in and unlocked the door for this purpose. The police entered the building. A search of the building by the police officers found the complainant who was taken to the police vehicle. He followed the defendant into the bedroom and waited while the defendant put on an underwear and some pants before the defendant was further questioned by the police officers.

[11] The evidence of another member of the police party Constable Leone Filemu who initially went around the back of the house with Corporal Goretti was that no one responded to the initial calls to people in the house. But he saw the defendant come out of the bedroom so they went around the front of the building. Where the police party were invited into the house by the defendant wearing a white towel. The defendant was questioned about the missing girl. He denied there was any missing girl in the house and invited the police to search the house to verify. The constable said he went into the defendants bedroom and noticed the complainant inside a mosquito net on the bed hiding under a sheet “pulou i le ieafu” were his words. He got her up. She grabbed her clothes and a lavalava and got out of the bed. He questioned the defendant as to the identity of the girl and he said she had come there to do her homework. From there the girl was taken to the police station.

[12] The third officer of the party who testified Constable Pauga Ofisa gave similar evidence. He went into the defendants bedroom with Constable Filemu and found the complainant apparently hiding under a sheet. He confirmed the complainant was not fully clothed and had to dress before being brought out of the room.

[13] The evidence of the officer in charge of the search party Corporal Fidow was also essentially the same. The police were looking for a missing girl and in the evening she received information the girl may be at a house at Vailima. As there were no other members of the Domestic Violence Unit on duty she co-opted the services of constables from the CID unit and they proceeded to Vailima in a police vehicle to undertake further enquiries and a search of the house. When the defendant eventually came to the door she said she recognised him from a previous unrelated police matter. She told him they were looking for a missing girl named Monica and asked if they could come in. The defendant agreed and invited them inside. He told he was alone there was no girl in the house and invited them to search the premises. Which they did finding the complainant. She questioned the defendant and the defendant told her it was his niece who had come to do her homework. From there the girl was taken to the police station. Where she was given something to eat and was interviewed. As the girl claimed to be in some distress she took her to the hospital but no doctors were on duty in the early hours of that morning. Returned to the police station and the complainants statement was taken. Following which the complainant was placed in the office of her superior to lie down and have a rest. It was there she noticed the complainant was not wearing a panty. When she asked the complainant told her it had been left behind at the defendants house. At that point she determined the defendant should be charged. She sent officers to fetch the defendant which they did. The defendant was brought by the police to the station charged and remanded in custody into the police cells. Later that morning she interviewed the defendant and obtained from him the cautioned statement. In which the defendant while refusing to make a statement made an admission of having sexual intercourse with the young girl.

[14] The further witness from the prosecution was the doctor who examined the complainant the next day Doctor Cecilia Bartley. Who in addition to her oral testimony also produced a medical report recording her findings. The report relevantly reads:

“General appearance: appeared well groomed. There was no evidence of distress. There was no evidence of bruises or cuts on her body.

Perineal exam: There was a thick white vaginal discharge at the vulva with no obvious smell. There was a vaginal septum present.

The hymen was smooth, pink and stretchable. No tear was seen. The edge was traced with a cotton tip.”

[15] The report and the evidence of a further witness from the hospital laboratory also referred to the complainant testing positive for chlamydia. A sexually transmitted disease or STD normally associated with sexual activity. But as there is no evidence the defendant has this disease such evidence is irrelevant and of no value. Chlamydia is also a disease that can be transferred during birth via the vaginal canal from mother to daughter and can remain dormant for many years. That particular evidence does not in any way assist the prosecution case.

[16] The startling aspect of the doctors evidence was her testimony that notwithstanding her finding that the girls hymen was intact as shown by her tracing the edges of the hymen using a cotton tip, that it was nevertheless possible the girl had engaged in sexual intercourse which only stretched but did not break or tear the hymen. She did not say how or based on what research she reached such a conclusion and maintained her conclusions notwithstanding her findings that the patient made no complaint to her upon questioning and that the patient showed no evidence of distress or bruises of any kind around her genital area.

[17] The evidence of a duly qualified medical practitioner is the evidence of a medical expert. It is given to assist any court in its deliberations and search for the truth. But it is not to be accepted blindly and without question. For at the end of the day, it is opinion evidence only. Albeit of a specialised form. It can be accepted or rejected as seen fit by a trier of the facts.

[18] As stated by this court in Jackson v Attorney General [2009] WSSC 122:

“When evaluating the evidence of expert witnesses great care must be exercised by the court to ensure that the tribunal reaches its own decision and does not merely adopt the conclusion of an expert. The proper approach was laid down by Lord Cooper in Davie v Edinburgh Magistrate (1953) SC 34,40 where he said:

“Expert witnesses however skilled or eminent can give no more than evidence. They cannot usurp the functions of the jury or judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the court. Their duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form his own independent judgment by application of these criteria to the facts proved in evidence.”

As noted by Justice Binnie in the Canadian case of R v J-LJ [2000] SCC 51, 56 the expert witnesses role is -

“to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an informed judgment, not an act of faith.”

[19] This is not my first case involving medical experts where virginity has been in issue. But this is the first time I have heard a doctor testifying that notwithstanding the presence of a healthy unruptured hymen in a 14 year old girl and absent any signs of mental or physical distress that nevertheless the complainant could have had sexual intercourse within the previous twelve to twenty four hours. Such evidence defies logic, common-sense and life experience. I do not accept the doctors conclusions. There being nothing to indicate that the complainant she examined was anything other than a normal and healthy 14 year old female. Who had not apparently been subject to any recent trauma.

[20] The proper interpretation of the doctors findings is that the complainant was still a virgin and that there was no obvious evidence of digital or penile penetration of her genitalia.

[21] At the close of the prosecution case application was made to withdraw all charges except S1005/13 one of sexual connection with the underage complainant at Vailima on 20 June 2013 and S1006/13 indecent assault of same complainant, same date and place. This was granted and all the other charges were dismissed. It is then a task of assessing the evidence as against the two remaining charges.

[22] The evidence I have heard is contradictory. On the one hand we have the evidence of the police officers that they discovered the defendant sleeping naked on his bed. Hence his grabbing a towel or ie to wrap around himself when he went to greet the police officers at the door. And their further testimony that the complainant was found hiding under the bedsheets of the same bed and she too appeared naked and had to “suluaoao” (sarong style) an ie lavalava in order to get out of bed.

[23] There is the further evidence that she was found to be pantyless at the police station. This is suggestive of sexual activity but not indicative of what kind of activity may have occurred. This evidence is bolstered by the defendants cautioned statement to the police which on page 3 says: “Ou te le o manao e fai sau faamatalaga ae o lea oute ioeina lou fai aiga ia Lakisha Tyrell”.

[24] I have no difficulty with the admissibility of the cautioned statement. Even though it is apparent from the post voire dire evidence that the statement was given after the defendant had been charged and remanded into custody in the police cells. I am satisfied the defendant was interviewed at the first reasonable opportunity by the police and there had been no prior interview. If there had been a prior interview the position may well have been different. Then defence counsels argument as to possible breach of the Judges Rules would have to be considered. Because those rules permit re-interview of a defendant in custody only for limited purposes. For example to clarify any ambiguity. But the Judges Rules do not operate to prohibit an interview once a person has been charged and remanded in custody. It only requires that if an interview is in those circumstances conducted that he must be first advised as to his constitutional and legal rights. The cautioned statement indicates that was done prior to his being interviewed by the police officers.

[25] On the other side of the coin there is the evidence of the complainant who denies any impropriety took place. Who testified that the defendant was like a father to her and while admitting to sleeping over in the defendants bed on the night in question, denied that anything happened between her and the defendant. Her evidence is supported by her medical report which shows she is still a virgin. And which indicates she was not the victim of any recent sexual activity. As the report noted she was well groomed, there was no evidence of distress, there was no evidence of bruises or cuts on her body. The examination of the doctor would have necessarily covered and been quite close in respect of the genital area of the complainant given the nature of the reason for the examination. I have no reason to doubt the doctors examination would have been anything other than thorough. The report also notes that the hymen was smooth and pink and despite tracing the edge with a cotton tip, no tear of any nature in the hymen was noted. The complainant testing positive for chlamydia does not alter the findings of the doctor or point the finger at the defendant.

[26] The defendant has denied any wrongdoing. I did not find him a credible witness. However there is no onus on a defendant to say or prove anything. The onus is on the prosecution who bring the charges to prove them. I therefore do not accept the defendants evidence that the police were not authorised by him to enter his house. I find as a matter of fact that he did as testified to by the police officers invite them into the building and challenged them to search the house for the missing girl Monica. Which is exactly what the police officers did.

[27] The head-on conflict between the evidence of the search party and the one line admission in the cautioned statement and that of the complainant as supported by her medical report inevitably raises a reasonable doubt as to the defendants guilt. There is no question that your behaviour defendant was inappropriate and foolish. Any mature man who sleeps naked with an underaged female is asking for trouble. Which is exactly what you got. I have my suspicions as to what you may have been up to with this young girl. But I cannot convict you based on my suspicions. The law says the matter must be proved beyond reasonable doubt. The prosecution in this case have not met the beyond reasonable doubt standard. The charges against you are therefore dismissed.

Supreme Court of Samoa

Police v Malota [2013] WSSC 145 (15 November 2013)