Police v FG [2015] WSYC 5 (3 July 2015)

SAMOA YOUTH COURT
Police v FG [2015] WSYC 5

Case name:	Police v FG
Citation:	[2015] WSYC 5
Decision date:	3 July 2015
Parties:	POLICE (informant) and FG (young person) male of Satuimalufilufi
Hearing date(s):	4 June 2015
File number(s):	D707/15; D708/14; D709/15; D710/15
Jurisdiction:	CRIMINAL
Place of delivery:	Youth Court of Samoa, Mulinuu
Judge(s):	Judge Mata Tuagataloa
On appeal from:
Order:	- The charges of sexual connection by way of oral sex and the alternative charge of indecent assault in relation to the 7 year old victim, M.S are hereby dismissed by the court. - I hereby find the young person, F.G guilty of the offence of sexual connection by way of oral sex involving the 6 year old victim, I.S. - There is no need to deal with the alternative charge of indecent assault regarding I.S
Representation:	L Su’a-Mailo for Informant A Su’a for Young Person
Catchwords:	Sexual connection – unlawful sexual connection – sexual violation – maximum penalty – circumstances of indecency – indecent assault – sentence
Words and phrases:	voir dire
Legislation cited:	Crimes Act 2013 s.58(1); s.58(3)
Cases cited:	R v Bain [2009] NZSC 16 Police v Masame [2007] WSSC 66
Summary of decision:

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

F.G male of Satuimalufilufi.
Young Person

Counsels:
L Su’a-Mailo for Informant
A Su’a for Young Person

Hearing: 4 June 2015

Decision: 3 July 2015

DECISION OF DCJ TUATAGALOA

1. This is a case of sexual violation where unlawful sexual connection is the lead offence.
2. The young person F.G is charged with two counts of sexual connection under section 58(1) by way of oral sex and two counts of indecent assault in the alternative under section 58(3) of the Crimes Act 2013 of a child or children under 12 years old.
3. The young person was 13 years old at the time of the alleged incident. The Victims are a brother and sister of 7 and 6 years old.

The Law:

Sexual Connection:

4. The expression “sexual connection” is defined in section 50 of the Crimes Act 2013 to include connection between the mouth or tongue or any part of the body of any person and any part of the genitalia or anus of any other person. Sexual connection is either rape or unlawful sexual connection. Oral sex is unlawful sexual connection.
5. Offences with a child under section 58 of the Act includes: rape, attempted rape or attempted sexual connection and indecent assault. A “child” is defined under s.58(6) of the Act as a person under the age of 12 years old.
6. For this particular offence of sexual connection under section 58, the Prosecution must prove beyond reasonable doubt that:

(a). The young person effected the connection of his mouth or tongue with the anus or a part of the genitalia of the victims; and

(b). The Victims are under 12 years old.

7. Consent is no defence under section 58.

Indecent Assault:

8. The offence of indecent assault is filed as an alternative. The prosecution must prove beyond reasonable doubt:
   • 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 is 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 or act in a sexual sense [the indecency].
     3. Thirdly, the accused knew the touching or act was indecent in that sense.

Voir Dire:

9. The young person challenged the admissibility of the cautioned statement on the common law grounds of voluntariness and improperly obtained evidence. A voir dire was held to determine the young person’s challenge. I found parts of the statement to not have been made voluntarily and those parts were ruled inadmissible.
10. 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)
11. 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] NZCA 110; [1999] 3 NZLR 257).”

The Evidence:

12. The ages of the young victims and the identity of the young person are not disputed. The Prosecution called the two young victims, the victims’ mother, the victims’ older sister and Constable Valmarie Leala.
13. The victims’ mother K.L’s testimony was that her older daughter S.S told her of what she heard her younger brother M.S say to their younger sister I.S when they had a squabble on a Sunday afternoon‘ o oe ga, ga susu e F.G lau pi i lalo ole ulu’ (F.G sucked your vagina under the breadfruit tree). She then told S.S to go get M.S and I.S and bring them to her. S.S was only able to get M.S because I.S ran off. K.L asked M.S about what S.S told her of what she heard him say and M.S basically told her the same thing S.S heard. He also told her that F.G took him down the seawall and sucked his penis after he sucked I.S on the same day. I.S was later brought to her and K.L asked her and I.S told her that it’s true that F.G sucked her vagina: “ ole taimi la lea na toe maua atu ai I.S sa faapea ona ou fesili loa iai ae na ole lue mai ole ulu e le tautala sa ou toe fesili iai pe iai se mea na tupu ia te ia ae tali mai loa e sao na tago le tamaititi lea susu lana pi..” (p.3, transcript) K.L when asked as to when it happened said M.S and I.S said it was the day their father brought a sack of avocados home. That day was a Friday, a week before the Sunday that she questioned M.S and I.S. She reported the matter to Police the next day, Monday, 16 February 2015.
14. The older daughter, S.S basically confirmed what the mother said. That is, it was a Sunday afternoon that she was sitting outside the house while M.S and I.S were playing when they had a squabble and M.S said to I.S “o oe ga, ga susu e F.G lau pi” . She then went and told their mother.
15. The victims, M.S is 7 years old and his sister I.S is 6 years old. Both victims when asked if the day it happened was a day they went to school both said yes. M.S at most times was vague and took a while to answer questions by both the Prosecution and Defense. M.S (which I.S also said) was under the breadfruit tree with her while F.G was performing oral sex. M.S also said that F.G then did the same thing to him after I.S under the breadfruit tree. I.S was very clear and precise with her evidence when asked. She told the court that F.G performed oral sex on her under the breadfruit tree her with M.S also present. She did not say that F.G also did the same to M.S under the breadfruit tree. I.S did not tell anyone or her mother because she was afraid that she will be beaten.
16. Constable Valmarie Leala’s evidence was to the investigation that she carried out when the mother, K.L lodged the matter with the Faleolo Police where she is based.
17. There is no burden on the young person, who is the defendant to prove his innocence because he is presumed innocent until proven guilty. The young person elected not to give evidence.
18. The defense called one witness and this was the father of the young person,
    G.K. His evidence was mainly in relation to the breadfruit tree where the offences allegedly happened as the court was getting a bit confused as to the location of this breadfruit tree as to whether it was beside the young victims’ house, or behind their house or next to the young person’s house. He said the breadfruit tree is next to his house in between the victims’ land and that of someone named Taloto Voi. His evidence as to the location of this breadfruit tree did not help.
19. A site visit was ordered by the Court.

Discussion:

20. The victims’ house is in the front, by the main road. There is vacant land before the victims’ house if you are travelling from the Mulifanua wharf. Before the vacant land is an unsealed road (auala pefu) which goes to the back and where the school is situated and some homes. On this unsealed road is the young person, F.G’s home which, is behind the victims’ home and the vacant land. The breadfruit tree in question is at the back of the victims’ home and also the vacant land. It is roughly about 50 meters from the unsealed road and probably 20 meters from the young person’s home and 30-35 meters from victims’ faleo’o (small Samoan house) situated at the back of their palagi (European) styled house and about 100 meters from the main road.
21. There was a suggestion by the defense that the offence could not have taken place because the vacant land by which the breadfruit tree is located could be seen from the main road where there would be students walking from the school at the back of the unsealed road to go home after school from 3pm on this Friday. This was the time the victims’ said the young person was performing oral sex on them. Furthermore, there was evidence by the victims’ mother that their family usually cleared the vacant land.
22. The site visit was strategically planned on a Friday and to arrive at the site between 3.00pm-3.30pm. During the time of the visit there were only students by the main road at the bus stop waiting for their buses to go home but there were no other students or people using the unsealed road. The vacant land (at the time of the site visit) has medium overgrowth, a couple of banana trees and some other plants on it. Even if it cleared, (i.e. the grass is short) the banana trees and plants on this vacant land will hinder one’s view to what may be happening under the breadfruit tree. The victim M.S said that I.S was sitting under the breadfruit tree while F.G was performing oral sex on her. This will make it harder for anyone to see what was going on under the breadfruit tree and furthermore the victim, I.S is small.
23. The Defense further suggested that the young person never committed these unlawful acts on the victims that, it was fabricated or the victims lied because they never told anyone or their mother about it. The only reason their mother knew was when her older daughter S.S told her of what she heard M.S say to I.S when they had a squabble. The Defense suggested that the victims should have told someone or their mother at the first reasonable opportunity.
24. The question of what is reasonable is dependent on the surrounding circumstances including the state of mind of the complainant or victim. The victim, I.S said in evidence that she did not tell her mother or anyone because she was scared as she will be beaten.
25. Evidence of recent complaint 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 (the Judge) to rebut any suggestion that the victim had made up her story.
26. As I said earlier, I find the young victim, I.S more articulate, clear and precise with her evidence than that of her brother M.S who at times was vague and inconsistent. I accept that M.S would not have said what he did to his younger sister, I.S if he had not seen it happen or done to her? I accept that I.S would have responded back to M.S that, the young person, F.G had also done the same to him if as M.S said F.G did the same to him. The mother said M.S told her F.G took him down the seawall and performed oral sex on him and yet M.S said in evidence that F.G did the same to him under the breadfruit tree on the same day after he had done it to I.S.
27. Before I treat M.S’s evidence as corroborative of that of his younger sister I.S of what the young person did to I.S. 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.
28. I am satisfied beyond reasonable doubt that the young person, F.G performed oral sex on the young victim, I.S.
29. There is really nothing to prevent the Court from convicting the young person solely on the uncorroborated testimony of the victim, M.S if satisfied of the truthfulness of his testimony. But if the Court so convicts it must do so bearing in mind the danger of convicting solely on uncorroborated testimony of this victim.
30. As I said earlier, I am not satisfied as to the truthfulness of the young victim, M.S’s evidence that the young person also performed oral sex on him. There is too much doubt with this young victim’s evidence, the inconsistency of his evidence and that of his mother as to what really happened to him. As such, the young person who is the defendant must have the benefit of the doubt.
31. As to the alternative charge of indecent assault by the young person of the young victim, M.S. There was no evidence of any other unlawful act other than the unreliable evidence of oral sex. I find that the young person, F.G never touched the young victim, M.S in any way. The alternative charge of indecent assault therefore, cannot succeed.

Conclusion:

32. The charges of sexual connection by way of oral sex and the alternative charge of indecent assault in relation to the 7 year old victim, M.S are hereby dismissed by the court.
33. I hereby find the young person, F.G guilty of the offence of sexual connection by way of oral sex involving the 6 year old victim, I.S.
34. There is no need to deal with the alternative charge of indecent assault regarding I.S
    

JUDGE MATA KELI TUATAGALOA