Police v Ioane [2015] WSSC 30 (9 April 2015)

SUPREME COURT OF SAMOA
Police v Ioane [2015] WSSC 30

Case name:	Police v Ioane
Citation:	[2015] WSSC 30
Decision date:	9 April 2015
Parties:	POLICE (prosecution) AH FOOK IOANE male of Tufulelel and Leauvaa (accused)
Hearing date(s):	17, 18 July 2014, 26 August 2014
File number(s):	S417/15-S420/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- For the foregoing reasons, I arrived at the conclusions which I delivered on 26 November 2014 that all the four charges against the accused have been proved by the prosecution beyond reasonable doubt.
Representation:	F Lagaaia for prosecution T Leavai for accused
Catchwords:	indecent act on a child - assault with intent - sexual violation abduction- threatening words- sexual violation- alibi evidence –un-contradicted evidence of the victim
Words and phrases:
Legislation cited:	Crimes Act 2013
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S417/15-S420/15

BETWEEN

POLICE
Prosecution

AND

AH FOOK IOANE male of Tufulele and Leauvaa-uta.
Accused

Counsel:
F Lagaaia for prosecution
T Leavai for accused

Hearing: 17, 18 July 2014, 26 August 2014

Conclusions: 26 November 2014

Reasons for Judgment: 9 April 2015

REASONS FOR JUDGMENT

1. I sincerely regret that it has taken this length of time to provide my written reasons for the conclusions I delivered on 26 November 2014 in this matter finding the accused guilty of the charges against him. These are now those reasons.

The charges

2. The accused Ah Fook Ioane stood trial on : (a) one charge of doing an indecent act on a child, which is defined as a person under the age of 12 years, contrary to s.58 (3) of the Crimes Act 2013, (b) one charge of assault with intent to commit sexual violation, contrary to s. 53 (2) of the Act, (c) one charge of abduction of a child under 16 years, contrary to s.131 of the Act, and (d) one charge of using threatening words for the purpose of sexual violation, contrary to s. 62 (1) of the Act.

The evidence for the prosecution

3. I do not propose to refer to the evidence of all the witnesses called by the prosecution. I will deal only with the evidence of the prosecution witnesses which are material to the outcome of this case.

(a) The night of this incident

4. The victim who is an eight year old girl testified that on the night of Christmas 2013, which was a Wednesday, she was sleeping with her parents and siblings in their house at Leauva’a-uta. She later woke up during the night to find herself outside, in front of her family’s house, being carried with her pillow in the arms of a boy. The boy then put her down and walked her to the road. When they got to the road which is a short distance from the house of her family, the boy continued to walk her inland until they came to a cocoa plantation. The victim asked the boy that she wants to go back to her father and mother but he paid no attention to her. The boy then led the victim from the road to under a cocoa tree where he kissed her. He then told her to take off her clothes but she refused. The boy then removed her clothes. He also took off his clothes and laid out the t-shirt he was wearing under the cocoa and laid down the victim on his t-shirt. He then threatened the victim not to scream.
5. The victim said the boy then sat next to her and inserted his fingers inside her vagina. She told him it was painful. He then stopped and put on his clothes. The victim also put on her clothes. They then headed back to the house of the victim’s family. The boy told the victim to hurry up in case her father woke up and find out that she was missing from their house. When they came to a breadfruit tree on the side of the road near the victim’s house, the boy told the victim to go home. The victim went home and the boy left.
6. The victim also testified that she is familiar with the face and looks of the boy but she does not know his name. The reason why she is familiar with the face and looks of the boy is because she usually sees him walk by her family’s house to go to the house of her relatives at the back of her family’s house. She also said that the night of this incident was a moonlit night. Her father testified it was a full moon. She further said that the boy was wearing a gray (lanu efuefu) t-shirt and long black pants.
7. The victim’s mother testified that on the night of Christmas 2013, she woke up from her sleep and found her daughter, the victim, sitting up. Her husband, the victim’s father, also woke up at the same time. She then asked the victim as to why she was sitting up instead of lying down and sleep. The victim explained to her what had happened. The victim’s mother also said that when she turned on her cellular phone to find the time, it was 6 minutes to 4am in the early morning.
8. The victim’s father testified that on the night in question, he went to sleep at about 12:30am. At that time the victim was still sleeping in the house. When he later woke and found the victim sitting up he asked her whether something has happened to her. She remained silent. When he asked the victim again, she replied that someone had lifted and carried her together with her pillow. The victim’s father also said that when he turned on his cellular phone he saw that the time was 6 minutes to 4am. He further said that it was a full moon on that night.

(b) Thursday, 26 December 2013

9. On the next day, Thursday 26 December 2013, in the late afternoon while it was still daylight, the victim’s mother was with her other children towards the back of their house while the victim was at the front of the house a short distance from the road. The victim’s mother testified she was surprised when the victim called out to her, mum that is the person who carried me. She also said when she looked at the road she saw that it was the accused walking by heading inland. When the accused saw her looking at him, he covered his head with a red t-shirt he was carrying. She further said that at that time the accused had no beard and his hair was not long. She also knows the accused well as he usually walks by their house to go to the house of her relatives at the back, as the accused and two of her male relatives are friends.
10. The victim testified that in the late afternoon of the next day after the alleged incident she saw someone walking by on the road in front of her family’s house. She recognised this person as the boy who had carried her from her family’s house while she was asleep. She then called out to her mother and pointed out to her that that is the boy who carried her.

(c) Friday 27 December 2013

11. On Friday 27 December 2013, the victim’s mother lodged a complainant with the police against the accused. This appears from the evidence of constable Jossie Papalii.

(d) Saturday 28 December 2013

12. The victim’s mother also testified under cross-examination that on Saturday afternoon 28 December 2013, the accused and a friend named Poka, later called as a witness for the defence, came to her house and the accused asked her if it is true that she had lodged a complaint with the police against him. The victim’s mother replied yes. The accused then asked where was the victim. At that time the victim was watching TV at the house of their relatives at the back. The victim’s mother then called out to the victim to come. When the victim came her mother told her to look at the accused. She then asked the victim what do you say; this is the person you pointed out to me. The victim did not say anything but made gestures with her eyes at her mother (gegogego ona mata i lona tina). The mother then told the victim not to make gestures with her eyes at her but to speak out. The cross-examination then did not go further on this point. When the victim’s mother was re-examined by counsel for the prosecution on this point, she said that the victim then said yes, that is him. The victim’s mother then told the accused and his friend Poka to leave.
13. Not long after the accused left, a police vehicle arrived at the victim’s house. The police asked the victim’s mother about the victim. At that time, the victim had gone back to the house of her relatives at the back to watch TV. The victim’s mother then sent for the victim to come. When the victim came the accused was inside the police vehicle. The victim’s mother said that constable Jossie Papalii and another police officer then asked the victim whether this was the real person referring to the accused inside the police vehicle; the victim replied yes that is him. Constable Papalii in her testimony said that when the victim came to the police vehicle, the accused was inside the police vehicle. She then asked the victim if this is the real person who did the stupid thing (mea valea) to her and the victim replied that is him. The police then left with the accused.
14. One of the victim’s male relatives who lives at the back of the house of her family was called as a witness by the prosecution. He testified that he and the accused are friends and every day of the week the accused would come to hang out with him at his family’s house. The accused would come to his family’s house twice a day for most days. And when the accused comes to his family’s home, the accused would walk by the house of the victim’s family. Likewise, when the accused leaves his family’s home to go to his home.
15. Towards the end of the prosecution’s case on the second day of the trial, defence counsel informed the Court that the defence would be relying on the defence of alibi. The trial was then further adjourned for the defence to comply with the usual procedure when relying on alibi as a defence. This appeared to be the first time that counsel for the prosecution became aware that the defence would be relying on alibi.

The alibi evidence for the defence

(a) The Christmas party and the departure time for the hospital

16. The defence witnesses Poka Ioane (Poka) 18 years old, Lafaele Asiata (Lafaele) 19 years old, and Akeli (Akeli) Aualiitia 16 years old, all testified that on Christmas Day 2013 they had a party with another friend named Faapiano at the house of Faapiano’s family at Leauvaa-uta. They were drinking two large bottles of locally produced vodka. The witness Poka said that their party started in the morning. The defence witness Aia Kalolo (Aia) 15 years old testified that he joined the party in the afternoon. Poka and the witness Lafaele also testified that the accused joined their party after 6pm in the evening. The witness Akeli testified that the accused joined the party around 6pm in the evening. These three defence witnesses also testified that their party ended at about 9pm at night when their friend Faapiano was injured in a fight. They then looked for a vehicle to take Faapiano to the Apia National Hospital. When a pickup vehicle was found, the witnesses Poka, Lafaele, Aia, and the accused took the injured Faapiano to the hospital. Poka said they left Leauvaa-uta for the hospital at about 11pm but Lafaele said that they arrived at the hospital at about 11pm. Under cross-examination by counsel for the prosecution, Lafaele was not sure about the time they arrived at the hospital.
17. Poka and Akeli also gave evidence that after Faapiano was taken into the hospital shortly after midnight, they went with the accused and slept inside the vehicle in which they had taken Faapiano to the hospital. They were woken up by Lafaele about 2am and they then returned home to Leauvaa-uta.
18. The accused testified that he was sleeping at the house of his maternal grandmother in the afternoon of Christmas Day 2013. When he woke up it was close to 6pm in the evening. He then went to the house of Faapiano and joined the party that was being held there. He consumed alcohol with the other boys at the party. If this is correct, the accused could not have been more drunk than Poka, Lafaele, and Akeli who had been drinking since the morning or the witness Aia who joined the party in the afternoon.
19. The accused further testified that the alcohol at the party ran out close to 10pm. This is not consistent with the testimonies of Poka, Lafaele, and Akeli that the party ended about 9pm. The accused also said that when they took Faapiano to the hospital it was close to 2am. However, Poka said that they left Leauvaa-uta at about 11pm. Lafaele said they arrived at the hospital at about 11pm but under cross-examination he was not so sure about the time they arrived at the hospital. Even if Poka is correct that they left for the hospital at about 11pm, given the distance between Leauvaa-uta and the Apia National Hospital, I do not believe it would take more than 30 minutes at the most to reach the hospital. On the basis of Poka’s evidence that they left for the hospital at about 11pm, they should have arrived at the hospital around 11:30pm. The witness Akeli also testified that they were travelling at speed to the hospital to take the injured Faapiano for treatment. When Akeli was asked during cross-examination by counsel for the prosecution whether it would be correct to say that Faapiano was taken to the hospital after midnight, he replied no (leai).

(b) Departure time from the hospital to return home

20. The witness Poka testified that they left the hospital to return to Leauvaa-uta after 2am. The witness Lafaele who stayed behind with Faapiano at the hospital testified that the accused and the other boys left the hospital around 2am to return home at Leauvaa-uta. The witness Akeli also testified that they left the hospital to return home about 2am and he was confident about the time because he had a cellular phone with him. The witness Aia testified that they left the hospital to return home about 3am but he was not sure about the time.
21. The accused on the other hand testified that he left the hospital with the other boys to return home around 4am. This is very different from the evidence of Poka, and Akeli who both testified that they left the hospital about 2am. Lafaele who stayed behind with Faapiano at the hospital said the same thing in his evidence. Even the witness Aia put the departure time from the hospital at about 3am but he said he was not sure about that time.

(c) Arrival time at Leauvaa-uta

22. The witness Poka said they arrived back at Leauvaa-uta close to 3am. The witness Akeli also said that they arrived back at Lauvaa-uta about 3am. The witness Aia also said that they arrived back at Leauvaa-uta about 3am.
23. The accused in his evidence did not know the time he and the other boys arrived back at Leauvaa-uta. However, the defence witness Urima Panama who is married to the uncle of the accused said in her evidence that the accused arrived home at 3am. This witness was confident about the time the accused arrived home because she had a cellular phone with her. The defence witness Feagai Siaki who is a cousin of the accused’s mother said that the accused arrived home about 3am. The other defence witness Lolina Tafunaina who is the paternal aunty of the accused also said that the accused arrived home at about 3am.
24. The evidence from the defence’s own witness is overwhelming that the accused arrived back at Leauvaa-uta at about 3am. I therefore do not believe the evidence of the accused that he and the other boys left the hospital around 4am but he does not know the time he got back to Leavaa-uta.
25. The accused had heard the evidence of the victim’s parents that when they woke up on the night in question and saw the victim sitting up instead of sleeping, they looked at their cellular phones and the time was 6 minutes to 4am. By placing the time that they went to the hospital at about 2am and the time that they left the hospital to return home at about 4am, the accused was evidently trying to give a false impression that it was not him who went to the house of the victim’s family on the night the victim was carried and taken away from her family’s house while she was asleep.

(d) Evidence of the bingo players

26. When the accused arrived home at about 3am, members of his family were playing bingo. These included Urima Panama (Urima) the wife of the accused’s uncle, Feagai Siaki (Feagai) a cousin of the accused’s mother, and Lolina Tafunaina (Lolina) the accused’s paternal aunty. These women were called as witnesses by the defence.
27. Urima testified that when the accused arrived at about 3am he was heavily drunk (ona tau ile ua) and smell strongly of alcohol. The accused then played one game of bingo before falling asleep at where they were playing bingo. When their bingo finished at 7am in the morning, the accused was still sleeping.
28. When the witness Urima was asked about the clothes the accused was wearing that night, Urima said that the accused was wearing long black pants and a gray (lanu efuefu) t-shirt.
29. The witness Feagai also testified that when the accused arrived home about 3am, he was heavily drunk (ona tau i le ua) and was staggering towards the house. The accused then played only one game of bingo before he fell asleep. When asked about the clothes the acused was wearing that night, Feagai said that the accused was wearing long black pants but she could not remember what he was wearing on the top.
30. The witness Lolina testified that when the accused arrived home about 3am, he played only one game of bingo before he fell asleep where they were playing bingo and he was snoring. This is in spite of the accused’s evidence that he is only 19 years old. When they finished playing bingo at 7am in the morning, the accused was still asleep. When questioned about the clothes the accused was wearing that night, Lolina said that the accused was wearing a short dark blue pants down to just below his knees but she cannot remember what the accused was wearing on the top.

Discussion

31. After careful consideration of the alibi evidence called by the defence, I have decided to not to accept the accused’s evidence which suggests that he was not the person who committed the acts with which he was charged by the police. In the first place, the times given by the accused are very different from and inconsistent with the times given by the other defence witnesses.
32. The accused said that the alcohol at the Christmas party at Faapiano’s house ran out close to 10pm at night. The defence witnesses Poka, Lafaele, and Akeli said that the party ended at about 9pm. The accused also said that they left Leauvaa-uta to take Faapiano to the hospital around 2am. Poka said it was about 11pm that they left for the hospital. Lafaele said that they arrived at the hospital at about 11pm but later said under cross-examination that he was not sure about the time. Akeli said that they travelled at speed to take the injured Faapiano to the hospital, and he rejected that they left Leauvaa-uta for the hospital after midnight.
33. The accused’s evidence that they left the hospital to return to Leauvaa-uta about 4am is directly contradicted by the evidence of the witnesses Poka, Lafaele, and Akeli who said that they left the hospital to return home at about 2am. The witness Aia also said that they left the hospital to return home at about 3am but he was not sure about the time.
34. The accused’s evidence about the time he and the other boys left the hospital to return to Leauvaa-uta is also indirectly contradicted by the evidence of his relatives Urima, Feagai, and Lolina who said the accused arrived home at about 3am.
35. All these inconsistencies as to times between the evidence of the accused and the evidence of the other defence witnesses do not inspire confidence in the credibility and reliability of the accused’s evidence. It follows that if the accused had arrived home at about 3am, then there was still enough time to go to the house of the victim’s family which is not too far away and carried the victim away. This would be in line with the evidence of the victim’s parents that when they woke up and found their daughter sitting up instead of sleeping it was 6 minutes to 4am.
36. The evidence of the acused’s relatives Urima and Feagai that the accused was wearing long black pants is consistent with the victim ‘s evidence that the boy who carried her from her family’s house and indecently assaulted her was wearing long black pants. Likewise, the evidence of Urima that the accused was wearing a gray t-shirt is consistent with the evidence of the victim that the boy who carried her was wearing a black t-shirt given that it was night time.
37. I am also not/prepared to accept the evidence of the accused’s relatives that the accused was sleeping at where they were playing bingo because of their close family connections to the accused. Furthermore, I do not believe the evidence of Urima and Feagai that when the accused arrived home at about 3am he was heavily drunk and after one game of bingo he fell asleep beside them. I also do not accept the evidence of Lolina that the accused was snoring as if to suggest that the accused was heavily drunk.
38. As earlier mentioned, the accused testified that he was sleeping at his grandmother’s house during the afternoon of Christmas Day 2013. When he woke up it was close to 6pm. He then went to the house of Faapiano and joined the party that was being held there. The witnesses Poka, Lafaele,and Akeli said that the accused arrived at the party after 6pm and the party ended about 9pm. So the accused must have spent about three hours drinking at the party. He then went with the other boys at the party to the hospital. He arrived home at about 3am. So between the time the party ended and the time he arrived home is six hours. In addition, Poka and Akeli gave evidence that after Faapiano was taken into the hospital, they came out with the accused and slept inside the vehicle in which they had taken Faapiano to the hospital. That was shortly after midnight. They woke up at about 2am and returned home. Poka also said that when they woke up their drunkenness had somewhat faded . Given this evidence, I am not prepared to accept the evidence of Urima and Feagai that the accused was heavily drunk when he arrived home. I also do not accept the evidence of Lolina that when the accused fell asleep he was snoring as if to suggest that the accused was heavily drunk. The evidence of these three witnesses is trying to suggest that when the accused arrived home he was too drunk to be able to go anywhere. I do not believe that the accused was heavily drunk six hours after the party where he had only been drinking alcohol for about three hours. The accused had also had about two hours of sleep inside the vehicle at the hospital. I do not believe the alibi witnesses for the defence.
39. Having decided not to accept the alibi evidence by the defence, I have to consider whether the charges have been proved beyond reasonable doubt by the prosecution itself. In that regard, I have decided to accept the identification evidence given by the victim, especially the identification of the accused by the victim to her mother on Thursday 26 December 2013 in the late afternoon when she saw the accused walking by on the road in front of her family’s house. At the time of the offending, the victim was very close to the accused. It was also a moonlit night with a full moon. The victim had also often seen the accused when he walks by her family’s house to go to the house of her relatives at the back. She was therefore familiar with his face and looks. The victim’s mother confirms in her evidence that the accused often walks by their house to go to the house of her relatives at the back. A relative of the victim who is a friend of the accused and lives at the back of the victim’s house also testified that the accused always walks by the house of the victim’s family when he comes everyday to hang out with him.
40. Furthermore, the victim had also identified the accused to her mother on Saturday afternoon 28 December 2013 when the accused came and enquired whether it is true that the victim’s mother had lodged a complaint with the police against him. Later on the same day, the victim identified the acc used to the police who came with the accused to her family’s house in a police vehicle. Perhaps a better method of identification like an identification parade could have been held by the police.
41. Having considered the evidence adduced by the prosecution, I am satisfied beyond reasonable doubt that the victim had correctly identified the accused as the boy who took her from home to under a cocoa tree where he indecently assaulted her.
42. In relation to the offending, there is no evidence to contradict the victim’s evidence as to what was done to her by the accused. I accept the victim’s un-contradicted evidence and the evidence of the other prosecution witnesses already referred to which substantiate all the charges against the accused.

Conclusions

43. For the foregoing reasons, I arrived at the conclusions which I delivered on 26 November 2014 that all the four charges against the accused have been proved by the prosecution beyond reasonable doubt.

Honourable Chief Justice Sapolu