[Nb: any reporting or publication of these proceedings is subject to section 8 of the young offenders act 2007]

youth court of samoa
Police v LT [2014] WSDC 3

Case name: Police v LT

Citation: [2014] WSYC 3

Decision date: 16 May 2014

Parties:
police (Informant) and LT a young male (Young Person) 

Hearing date(s): 21 March, 24 March 2014, 16 April 2014 

File number(s): 

Jurisdiction: CRIMINAL 

Place of delivery: MULINUU 

Judge(s): judge mata keli tuatagaloa

On appeal from:

Order:

Representation:
Ms Rexona Titi-Reti and Ms Brigitta Faafiti for the Prosecution
Ms Hellene Wallwork-Lamb for Young Person

Catchwords: 

Words and phrases: 

Legislation cited:

Cases cited:
Police v Gese Kuki (1994)
Moeva v Attorney General [2000] WSSC 12
R v Bain [2009] NZSC 16
Police v Masame [2007] WSSC 66
R v Watson [1980] 2 All ER 293
R v Watson [1999] 3 NZLR 257

Summary of decision:

in the youth court of samoa
held at mulinuu
between
police
Informant
and
LT a young male
Young Person

Counsel:	Ms Rexona Titi-Reti and Ms Brigitta Lo Tam-Faafiti for Prosecution
Ms Hellene Wallwork-Lamb for Young Person
Hearing:	21 March, 24 March 2014, 16 April 2014
Judgment:	16 May 2014

decision of DCJ tuatagaloa
1.	The young person LT is charged with attempted sexual violation and indecent assault as an alternative charge of a girl over 12 years and under 16 years old.
2.	The young person was 15 years old at the time of the alleged incident. The Victim was 13 years old.
The Law:
Attempted Sexual Violation:
3.	The offence of attempted sexual violation is akin to the old one of attempted rape. Except the new one has a higher maximum penalty of 14 years in prison.
4.	For the offence of attempted sexual violation it must be proven that a person:
i.	Has an intent to commit the crime of sexual violation;
ii.	Does an act for the purpose of achieving that purpose;
iii.	The act is immediately or proximately connected with the intended crime; and
iv.	Whether or not it was possible to commit the crime.
Indecent Assault:
5.	The offence of indecent assault is filed as an alternative. The prosecution must prove:
i.	Firstly, that there was an assault. An assault is the direct and intentional touching by the accused of the body of another person (the victim) without lawful excuse, so it’s an intentional application of force. 
ii.	Secondly, an assault is indecent if accompanied by circumstances of indecency judged according to the standards of ordinary reasonable members of the community. That is to say, it must be a hostile touching in a sexual sense [the indecency]. 
iii.	Thirdly, the accused knew the touching was indecent in that sense.
iv.	Fourthly, the victim did not consent to such touching.
Evidence of Recent Complaint
6.	A statement made by way of complaint by the alleged victim of a sexual offence prior to testimony is admissible and may be used in evaluating the veracity of the complainant’s claim that she was assaulted in the manner charged.
7.	The complaint ought to have been made at the first reasonable opportunity, which depends on a variety of reasons and circumstances. The question of what is reasonable is dependent on the surrounding circumstances including the state of mind of the complainant. 
8.	This is not evidence of the truth of what was said; it is not evidence tending to prove what actually had occurred; such evidence goes to show consistency on the complainant’s part between what occurred on the day in question and the story told by her in the witness box. This evidence might be used by me to rebut any suggestion that the victim had made up her story.
Rule of practice re uncorroborated evidence – the warning. 
9.	I am required by a rule of practice here in Samoa to give myself a warning that it is unsafe to convict the accused on the uncorroborated evidence of the complainant (see the decision of Sapolu CJ in Police v Gese Kuki (1994) at p. 141).
10.	However, there is really nothing to prevent the Court from convicting the accused solely on the uncorroborated testimony of a complainant if satisfied of the truthfulness of her testimony. But if the Court so convicts it must do so bearing in mind the danger of convicting solely on uncorroborated testimony of the complainant.
Meaning of Corroboration.
11.	It is some evidence coming from an independent source, some source other than the complainant herself.  It is, in short, evidence which renders the complainant’s evidence more probable.  Moreover, for the evidence to be corroborative, it must be such as to show not only that the crime under consideration was committed, but also that the accused committed it. 
12.	Before evidence can be treated as corroborative, I must first be satisfied beyond reasonable doubt that it is true, and, secondly, I must be satisfied beyond reasonable doubt that the proper inference from it is that it tends to confirm the guilt of the accused.  
13.	The Chief Justice in Moeva v Attorney General [2000] WSSC 12 on corroboration made the following observation:
“I have had serious reservations about the validity of the corroboration warning for a very long time because it implies that victims of sexual cases who are usually females have an inclination to concoct or fabricate sexual allegations. However, there is no solid evidence, at least in Samoa, to support such a rationale for the corroboration warning.”
Voir Dire:
14.	The young person challenged the admissibility of the cautioned statement on the common law ground of voluntariness. A voir dire was held to determine the young person’s challenge. I found the statement to have been voluntarily and the cautioned statement was ruled admissible. I was also satisfied that there was only one cautioned statement made and signed by LT and that cautioned statement was taken at Faleolo Police and that statement is the cautioned statement that is ruled admissible and is Exhibit P1.
15.	It is settled law that the focus in a voir dire should be on the circumstances in which the statement was made, as opposed to the veracity of the statement itself, the latter becomes an issue in the event the statement is ruled admissible. (see R v Bain [2009] NZSC 16)
16.	The truthfulness of the admissible cautioned statement and weight to be given to the statement depends on the totality of the evidence. His Honour the Chief Justice in Police v Masame [2007] WSSC 66 said:
“The initial voir dire is not final; the matter may be reviewed at later stages in the trial if further evidence emerges (R v Watson [1980] 2 All ER 293) or simply because the Judge has had a change of mind (R v Watson [1999] 3 NZLR 257).”
The Evidence:
17.	The following facts are not disputed:
•	The young person, LT and victim were on the same road walking to their homes at around 8am or shortly after on 12 September 2013. Both did not attend school on this day.
•	The victim was 13 years old at the time of the offence.
•	The Victim went to her Aunty Siainiu’s house on her way home while LT carried on walking.
•	The Victim and LT met Suluafi Toleafoa on the way home. They were going opposite directions. Sulu was going to the shop or seaward (alu I tai) and LT and Victim were going inland (o I uta).
•	LT met Ameto Lino on the same day
•	The findings in the Medical Report. 
18.	LT said he knows the Victim because they live on the same road and are always walking the same road going to and from school and to the shop. When going inland you will get to the Victim’s house first and LT’s house is further inland. LT said that he and the Victim walked together that morning on the way home from Toleafoa’s shop.  They talked and were playing on the way. When they got to the Victim’s Aunty Siainiu’s house she told him that she had to go and drop off some shopping and then come back. He said that the Victim caught up with him in front of Mafutaga’s house  (marked ‘X2’ on photo 1 of EXH P2) when she came from her Aunty’s house and again they continued to talk and play on their way home. When he touched the Victim on the collar she cried and told him that she will tell him to her father.  She turned and walked back to where they came from and he carried on home. The young person basically confirmed everything recorded in his caution statement except for questions 8 & 14 that he said were never asked in the interview at Faleolo.
19.	The young person’s mother Tautua Tiasasa said that the road going to their house and that of the victim is always used by people. There are always people using this road, in the morning when school children and working people go to catch buses, after school, after work and in between these times there are people walking to Toleafoa’s shop on the main road going to the airport or people going to their plantations. She said that after the interview at Faleolo she was informed by Constable Tusa that her son was being charged with assault but not attempted sexual violation or indecent assault. She also said that questions 8 & 14 were never asked of LT when he was interviewed at Faleolo Police.
20.	The victim, confirmed that she saw LT on the road and they were both walking the same direction. The Victim’s evidence suggests that she does not know LT but knows of him. The Victim said that LT was walking on the other side of the road from her but behind her. She said that LT caught up with her at the Seventh Day church and he asked her for her name and she told him her name is ‘Jesus’. She said that LT then said to her ‘whether anyone has ever wrestled her’ (faimai pe le’I piia au e se isi I lau tala le la). These words and its meaning had sexual inference and I think in the way it was said it was said with that meaning or inference. 
21.	The Victim went to her aunty Siainiu’s house which is on the way to buy an ice cake and LT said to her ‘to go and come back’ (fai mai LT ou te alu ou sau ai). She was only at her Aunty’s house for a short time and then left to go home. She got to a road bend (refer photo 2 marked ‘T2’of EXH P2) when LT came from behind the bushes   (marked ‘T1’) and put his arms around her shoulders (faauouo). She turned to run back to her aunty Siainiu’s house but LT got hold of her, held her to him and pressed his private parts against her. She pushed LT away he fell down and she ran but LT caught up with her and lifted or pulled her to the side of the road. She resisted and she fell down sitting. She said that LT knelt down to her and touched her on her private parts through her shorts and panties. LT at the same time kissed her on the cheeks (ai o’u alafau) and touched her breasts. 
22.	Suluafi Toleafoa met the Victim and LT that morning. She met them before the Seventh Day church on her way to Toleafoa’s shop going seaward and they were going inland. She said that the Victim was walking on the other side of the road from LT who was walking behind her. 
23.	Siainiu Peteru, Victim’s aunty confirmed that the Victim came that morning and bought an ice cake. She saw LT walked past her house shortly before the Victim arrived. She told the Victim to wait and she would take her home but the Victim told her that she had to go because her father was waiting for the sugar for their tea. Sianiu said that the Victim left and Tapu got to her house.
24.	Tapu Leaupepe Too said he saw the Victim at Toleafoa’s shop that morning. The Victim was leaving when he went in.  He again met the Victim in front of Siainiu’s house, she was leaving and he was going to Sianiu’s house to buy cigarettes. He was only at Siainiu for about 2 minutes as he said when asked in cross examination, from there he went to a friend’s house (marked ‘X2’ on photo 1 of EXH P2). When he left Siainiu’s house he saw the Victim on the road going inland (alu I uta) before he turned in to his friend’s house. He was at his friend’s house for not long. He left and he was singing on his way when he came across the Victim squatting crying, with shorts on, her ie lavalava next to her and her hair all untidy and messy. He asked the Victim what happened and she told him that LT forced himself upon her. He went after LT but saw that LT was too far ahead of him. He called out to LT to wait up but LT only looked at him and kept on running. He went and took the Victim home.
25.	Ameto Lilo said he met LT that morning at about 11am he was heading seaward and LT was going inland to his house. He asked LT whether he was going inland and he said yes. He said that LT looked worried and was walking fast. He then met Tapu and tne Victim and saw that she was crying. Tapu asked him whether he met someone on the way going inland and he told him that he met LT. He noticed that Victim looked worried and scared.
26.	The Victim’s father Manea Letoga said that he went to fetch water and when he came home the Victim was home from taking her younger sister to school and to buy sugar for their cup of tea. He saw that she was crying and her hair was untidy and messy. He asked her why she was crying and she told him that LT lifted her and tried to take her off the main road and he touched her. 
27.	Senior Sergeant Lofia Kuresa took photos as in EXH P2. Constable Popo Tusa interviewed and took the young person’s statement (EXH P1) at Faleolo Police. Constable Asueru Tiumalu witnessed the interview.
28.	Constable Tusa was the investigating officer. He interviewed and took LT’s statement and Constable Tiumalu witnessed the interview. LT’s mother Tautua Tiasasa was present throughout the interview as recorded on pages1 & 4 of the statement. Constable Tusa informed the young person of his rights and then proceeded with the interview which he recorded on the computer.  The whole statement including questions 8 & 14 was read out to LT and his mother and LT wrote “ Ua ou malie atoa ile faatalanoaga” on the last page (page 5) initialed all the pages and signed his name on pages 2 & 5. Ms Wallwork put to Constable Tusa that Constable Tiumalu did not go with him when they went to get LT because in his report he mentioned two other officers that went with him. Constable Tusa said he could not remember his report because when he filed it the whole file was transferred to the main office in Apia in 2013 and from then on the Apia Police handled and took over the case. 
Discussion:
29.	LT said that Victim when she came from her aunty Siainiu’s house caught up with him where they continued to play on the way. LT must have been walking very slow if Victim managed to catch up with him.  Yet he said in the cautioned statement that he went and waited behind some bush: 
Fesili 10: 	Sa e tutu ile auala alo lena?
Tali 10: 	Ia, sa ou alu I tua ile auala lena ma e fetaui lava lou foi ane I luma ae taunuu atu loa (le na aafia)
Fesili 12: Sa faiatu (le na aafia) e te faatali mai tua le auala lena?
Tali 12: 	E le’I faimai ae na ou faalogo I lana tala sa faimai e alu e ave le faatau sau ai o lea sa ou alu ai loa ma faatali I uta ile vaivao.
Fesili 13: 	Aisea ua e fa’atali mai fua ia (le na aafia)
Tali 13: 	Na ou fa’atali mai e ma te o faatasi.
If he had continued walking Victim may not have caught up with him. 
30.	There is evidence by Victim’s mother Aiga Manea who confirmed her birthdate and age. She said that they only moved back to Fasitoo-uta in the beginning of 2013. The Victim’s evidence is that she does not know LT but she knows of him. Her evidence also is that they did not talk (except where LT asked her about her name) or play on the way and this is because she does not know LT at all. LT on the other hand said that he and Victim know each other but if that is so, why did he ask her of her name. If they know each other why did not he called out to the Victim to wait up and they walk together from Toleafoa’s shop going inland? Sulu when she met them said they were not walking together, Victim was walking on the other side of the road from LT who was walking behind her. I also find it hard to accept LT saying that they were playing on the way and then at one point when he touched Victim on the collar she cried and told him she would tell him to her father.   Why would she all of a sudden cry when he touched her on the collar when according to him they had been playing all along on the way home and that they know each other? It just does not make sense. 
31.	The Victim in her evidence in chief said LT tried to or lifted or pulled her twice off the road to the side. When she was asked in cross examination she said it was three times. She may be mistaken as to how many times LT tried to or pulled her or lifted her off the road but that does not mean she was lying. I believe that there was a struggle between LT and Victim and that LT tried to or lifted or pulled her off the main road to the side.   
32.	The evidence which is capable of corroborating Victim’s story are the evidence of Tapu who came across her, Ameto and her father. What she told Tapu and her father shortly after is consistent and what Tapu, Ameto and her father saw of the state she was in all corroborated  or consistent with her evidence of what happened.  What Victim told Tapu and her father of what LT did to her is also evidence of recent complaint.
33.	I don’t believe that LT digitally penetrated Victim with two fingers. I find it hard from Victim’s evidence that LT would be able to easily put two fingers through her shorts and panties into her vagina while she was struggling with him. If indeed it happened then there would have been lacerations or tear found on her vagina when she was medically examined. The medical report did not find any laceration or tear and that her vulva appeared normal.
34.	Ms Wallwork for the young person submitted that the time frame and what Victim said happened do not make sense. Ms Wallwork said that the time frame said by Victim and Tapu means that Tapu would have been able to come across LT with Torise and not 400 meters away.  Ms Wallwork would appreciate the fact that the timing said by Tapu and Victim are estimates of what they think, none of them had any watch on. If we are going by time, then Ameto himself said that he met LT at around 11am and that is three (3) hours from 8am that LT and Victim were first seen on the road walking home. 
35.	I don’t believe that Victim cried from when LT touched her on the collar. From the evidence I think LT did more than that. I believe that he tried to force himself upon her fortunately he heard someone coming and he took off. Tapu came across Victim on the ground with her lavalava next to her and she was crying with her hair messy and untidy. 
36.	 I also accept the whole of the cautioned statement by LT in its entirety (EXH P1). I believe that all the questions in the cautioned statement were asked and answered by LT. I find it implausible that questions 8 & 14 as disputed by the defense will not be asked by the interviewing police when the alleged offence LT was brought in is sexual violation and/or indecent assault. Furthermore, it is the prerogative of the police as to how they asked their questions in an interview and in what sequence they ask it.
Conclusion:
37.	The offence of attempted sexual violation does not need or require penetration. All it needs was an attempt on LT’s part to commit the offence of sexual violation. I find that he had the intention to commit the offence when he lifted or pulled Victim to the side of the road and that he also kissed her on the cheeks and touched her on the breasts.
38.	I am satisfied that the offence of attempted sexual violation has been proven beyond reasonable doubt.
39.	I hereby find the young person LT guilty.

...........................................................................
(judge mata keli tuatagaloa)