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Police v Seigafo [2002] WSSC 50 (10 September 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

LAFU SEIGAFO,
male of Mulifanua
Defendant

Counsel: F Vaai-Hoglund and A Pasikala-Faasau for prosecution
J Brunt for accused

Judgment: 10 September 2002

JUDGMENT OF SAPOLU CJ

The accused stood trial on five separate informations charging him as follows:

(1) That at Mulifanua on the 20^th day of January 2002 he had sexual intercourse with the complainant who is a girl over the age of 12 years and under the age of 16 years not being his wife;

(2) That at Mulifanua on the 22^nd day of January 2002 he had sexual intercourse with the complainant who is a girl over the age of 12 years and under the age of 16 years not being his wife;

(3) That at Mulifanua on the 24^th day of January 2002 he had sexual intercourse with the complainant who is a girl over the age of 12 years and under the age of 16 years not being his wife;

(4) That at Mulifanua on the 27^th day of January 2002 he had sexual intercourse with the complainant who is a girl over the age of 12 years and under the age of 16 years not being his wife; and

(5) That at Mulifanua on the 31^st day of January 2002 he had sexual intercourse with the complainant who is a girl over the age of 12 years and under the age of 16 years not being his wife.

At the conclusion of the case for the prosecution, counsel for the accused submitted that there was no case to answer in respect of the fifth information as the prosecution had not adduced any evidence on that information. The submission was upheld and the fifth information was therefore dismissed. That left four informations for decision by the Court whether they have been proved beyond reasonable doubt. Before reaching such decision, I will have to deal first with the evidence.

The complainant testified she is now 14 years of age. She was born on the 10^th of February 1988. She is also a student. Her mother who was also called by the prosecution gave evidence which confirmed the age and date of birth of the complainant. She also produced the complainant’s birth certificate as further evidence of her age and date of birth. The complainant also testified that the accused is her brother in law being married to her eldest sister. At the time of the alleged offences the accused was staying with her family at Mulifanua.

According to the complainant’s testimony she usually goes to bed at about 9.30pm at night and the other members of her family at about 10pm. On the night of the 20^th of January this year, she slept in the front bedroom of her family’s European style house at Mulifanua whilst her parents were sleeping in a house at the back. She was shocked to wake up later in the night and found herself in the kitchen of her family’s house with the accused beside her. The accused removed her clothes and she told him to stop but he did not. He then sucked her breasts and inserted his private part inside her private part. Afterwards he told her not to mention what had happened to any member of their family.

The complainant further testified that on the night of the 22^nd of January this year, she was sleeping in the front bedroom of her family’s house when she heard a knock on the door. She estimated the time when that happened to have been between midnight and 1am. When she stood up and opened the door, she saw it was the accused. He said to her to have another sexual intercourse. She replied no and closed the door but the accused opened it. The accused then pulled her out of the bedroom whilst covering her mouth and dragged her to the kitchen of the house where he removed her clothes, sucked her breasts and inserted his private part inside her private part. She said she struggled and tried to push him off as she hated what he was doing but she was unsuccessful. After sexual intercourse had taken place he told her to go and sleep and not to mention what had happened to anyone of their family.

The complainant also gave testimony that on the night of the 24^th of January this year, she was shocked when she woke up in the bedroom of her family’s house where she was sleeping and found the accused sitting beside her. He said to her to have sexual intercourse but she replied no as she did not want it. She then chased the accused out of the room but he cuddled her and pulled her to the kitchen of the house where he again removed her clothes, sucked her breasts and inserted his private part inside her private part. After sexual intercourse had taken place, the accused told the complainant not to tell her parents what had happened otherwise he will kill her if he finds her around Apia. The complainant said she became scared.

Further testimony from the complainant was that on late Sunday afternoon, the 27^th of January this year, when she was sleeping with her eleven year old sister in the sitting room of her family’s house, the accused came and woke her up and asked her to have one more sexual intercourse then it was finished. The complainant said no but again the accused removed her clothes, sucked her breasts, hopped on top of her and inserted his private part inside hers. He told her not to make any noise or wake up anyone. Whilst that was going on, the complainant’s sister woke up and saw what the accused was doing to the complainant. The complainant’s sister told the accused she would tell her parents about what was happening.

When questioned by counsel for the prosecution as to why she did not scream during any of the occasions that she said the accused had sexual intercourse with her, the complainant replied that on each of the first three occasions, the accused covered her mouth; on the fourth occasion the accused told her not to make any noise or wake up anyone.

The complainant’s eleven year old sister was also called by the prosecution. In relation to the alleged incident that occurred on Sunday, this witness testified that sometimes she sleeps with the complainant and their younger siblings in the sitting room of their family’s house. On the Sunday in question she was sleeping with the complainant in the sitting room of their house after their Sunday toonai (lunch) when she woke up and saw the accused on top of the complainant and his body was moving. That was about 12 noon. The complainant at the time was lying on her back facing upwards with her pants below her knees whilst the accused was on top of her without any clothes.

The doctor who medically examined the complainant prepared a report of her findings. She was called as a witness by the prosecution and she produced her report in evidence. In that report, she says that she examined the complainant three days after the sexual intercourse that was alleged to have occurred on Sunday. She also says in her report that she found no hymen and a swab was taken for tests but no spermatozoon was seen. In her oral testimony, the doctor said that spermatozoon live for up to seventy two hours.

In the cross-examination of the complainant by counsel for the accused, she agreed that the first time she had had sexual intercourse with anyone was with the accused. However, she changed her evidence almost immediately after two further questions from counsel and said she had had prior sexual intercourse with another boy who is closely associated with the accused. The cross-examination was also directed at whether the complainant’s parents were sleeping in the same house as the complainant at the material times or at the house at the back as the complainant had testified in her evidence in chief. The complainant’s evidence on this point was that she was closely monitored by her parents after it was discovered she was having a sexual relationship with another boy and her parents slept in the same house as herself. But when the alleged incidents against the accused occurred, her parents were sleeping in the house at the back. The complainant’s mother who was called by the prosecution to testify as to the age of the complainant also stated under cross-examination by counsel for the accused that she and her husband usually sleep in the European style house, but when it is hot they sleep in the house at the back.

The cross-examination of the complainant was also directed at other matters in an attempt to shake her credibility. However, she was quite firm and adamant in her evidence about the accused having sexual intercourses with her and how that happened. Even though the complainant at first agreed that the first time she had sexual intercourse with anyone was with the accused, she almost immediately corrected her evidence and I am of the view she was not being deliberately deceitful but mistaken in her evidence. In any event, I am not swayed that the inconsistency in the complainant’s testimony which has just been referred means that the complainant was not being truthful in her testimony that the accused had sexual intercourse with her as alleged by the prosecution in the remaining charges.

In the cross-examination of the complainant’s sister by counsel for the accused, that witness testified that the incident she was referring to in her evidence in chief about the accused being without clothes and being on top of the complainant on a Sunday and moving his body, occurred in 2001. This witness also testified that her parents instructed her to testify in this way. In re-examination, this witness further stated that she talked to the police last year and the police instructed her to come and testify that she saw the accused moving on top of the complainant.

The accused elected not to give or call any evidence. His counsel conceded the age of the complainant but submitted that the prosecution has not proved beyond reasonable doubt that the accused had sexual intercourse with the complainant on any of the occasions alleged in the remaining charges.

Now in considering the complainant’s testimony and its credibility, I must bear in mind the warning that it can be dangerous to convict the accused solely on the uncorroborated testimony of the complainant. However, I am still able to convict the accused solely on the uncorroborated testimony of the complainant if I am satisfied of the truthfulness of her testimony provided in doing so, I bear in mind the warning I have just mentioned.

That is of course the traditional corroboration warning required in sexual cases. However, I am aware that the law on corroboration in sexual cases has changed in other jurisdictions like New Zealand. As there was no submission in this case for the Court to reconsider the requirement for corroboration in sexual cases in Samoa, I will apply the traditional corroboration warning in this case.

In spite of the able manner in which the cross-examination of the complainant was conducted by counsel for the accused, I am satisfied on the uncorroborated testimony given by the complainant that the accused did have sexual intercourse with her on the nights of the 20^th, 22^nd and 24^th of January this year in the manner and in the circumstances she described in her evidence in chief. The complainant was quite firm and adamant in the witness stand on those parts of her testimony despite her age. The old notion which used to provide the rationale for corroboration in sexual cases that it is easy for a girl to cry rape or make an allegation of a sexual offence but difficult for a man to disprove it, is not only unsupported by evidence but it is perhaps insulting to women. I am not allowing that notion to influence my consideration of the complainant’s testimony in this case. There is also no evidence which contradicts, or is inconsistent with, those parts of her testimony as to make those parts of her testimony incredible. I find the first three charges proved beyond reasonable doubt.

As for the fourth charge relating to the allegation of sexual intercourse on Sunday the 27^th of January, I am not satisfied that charge has been proved beyond reasonable doubt. The evidence relating to that charge is rather unsatisfactory. In the first place the testimony given by the complainant is in conflict with the testimony given by her sister as to the year and the time of the day on which the alleged sexual intercourse occurred. The testimony of the complainant is that this incident occurred on Sunday evening or late afternoon on Sunday, the 27^th of January this year whereas the testimony given by her sister is that it happened about 12 noon Sunday, last year. Secondly, the evidence given by the doctor who medically examined the complainant three days after the said alleged sexual intercourse took place was that she found no hymen and no spermatoz even though spermatozoon live for up to seventy two hours. This does raise a doubt as to whether any sexual intercourse actually did take place on Sunday, the 27^th of January this year. This charge is therefore dismissed.

This case is now adjourned to Monday, 30 September, for a probation report and sentencing.

The name of the complainant is to be suppressed from publication.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
Brunt Keli Law Firm for defendant