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Police v Failava [2003] WSSC 9 (14 May 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

FAGA FAILAVA aka FAGA MOTU
male of Amaile Aleipata.
Defendant

Counsel: L Mulitalo and LS Petaia for prosecution
Accused in person

Hearing: 9 May 2003
Judgment: 14 May 2003

JUDGMENT OF SAPOLU CJ

The accused is a 52 year old male of Amaile, Aleipata. He is charged under s 52(a) of the Crimes Ordinance 1961 that at Amaile on the 24^th day of January 2003 he indecently assaulted the victim, a girl who is under the age of 12 years.

The victim’s testimony was unsworn as she does not understand the meaning of taking an oath on the bible. According to her unsworn testimony, she was asleep at her family’s home at Amaile on Friday night, 24 January this year. Later that night, she woke up in the dark and found herself being carried in the arms of a man. This man laid her down at a grave and touched her private part. She cried and the man ran away. She said it was dark at the time. She described this man as slim and black. She said it was the accused. When asked by the Court as to how she knew that the man was the accused, she replied her father told her it was the accused. However, the father of the victim did not give evidence and it is clear from the evidence that he was not present at the time her daughter was taken to the grave. Thus I do not accept this part of the victim’s evidence that it was the accused who took her to the grave whilst she was asleep and touched her private part. I am also not entirely confident about the victim’s description of the person who took her to the grave given that it was night time and it was dark as there were no lights near the grave. She had also just woke up and she must have been under most distressful and frightening circumstances.

After the man ran away, the victim walked back to her family’s home crying. The first person she met was her grandmother. When her grandmother asked her what had happened, she said a slim, black man had taken her. Even though the accused is slim and black, I am not satisfied from the evidence of the victim’s grandmother that the accused is the only male of the village of Amaile who fits that description. The victim was then taken to her mother who asked her why she was crying. The victim replied a person had taken her. The victim was then taken to the Lalomanu district hospital and later brought to the Tupua Tamasese Meaole hospital at Motootua the same night. The doctor who medically examined the victim upon arrival at the Tupua Tamasese Meaole hospital states in his report which was produced in evidence that he found a large tear to the victim’s hymen and blood was still oozing from the wound.

The natural mother of the victim was called as a witness by the prosecution. She testified that the victim was born on 17 December 1994. She also produced the victim’s birth certificate to confirm her date of birth. Thus the victim was about eight years and five weeks old at the time of this alleged incident. The victim’s physical appearance whilst giving evidence also shows that she is quite young and clearly under the age of twelve years. The victim’s mother also testified that when her daughter was brought to her on the night of this incident, she was crying. When she asked her daughter why she was crying she replied a slim, black man had taken her to the grave and touched her pee (private part). According to the mother, it was after 10pm at night at that time.

It is clear from the evidence given by the mother, grandmother and uncle of the victim that on Friday, 24 January this year, their family were busy making preparations for a family funeral to be held the following day. Many untitled men of their village were present helping out with the preparations for the funeral. Amongst them was the accused. About 6pm in the evening the victim’s uncle told those men to drink some alcohol and then have some food. Two bottles of spirits were then given out. A packet of Greys tobacco was also given to the smokers to roll cigarettes from it. The victim’s uncle said that towards the end of the drinking session the accused asked for some food which he would take to his home and eat there. A plate of food was given to the accused who then left. Soon afterwards the victim’s uncle went and played billiards in a nearby house. About half an hour later the accused came to where the victim’s uncle was playing billiards. The victim’s uncle said that must have been about 10pm “going upwards” but he was not certain as he did not have a watch. The victim’s uncle also said that shortly afterwards he heard the voice of the victim’s grandmother saying that something had happened to the victim. At that time the accused rolled a cigarette from the packet of Greys tobacco he had and gave it to the victim’s uncle. The accused also gave him the packet of Greys. This is the same packet of Greys that the victim’s uncle had earlier given out the same evening when alcohol was consumed.

The victim’s uncle then said that when he heard the victim’s grandmother saying that something had happened to the victim, he looked directly at the accused who was sitting inside the house where he was playing billiards. At that time the accused was looking up and down, up and down. He said that was odd behaviour on the part of the victim. He then went to the kitchen to scrape taros for the umu for the funeral and the accused also came to the kitchen and just sat there saying nothing until he fell asleep. Because of the accused’s behaviour which the victim’s uncle described as odd, he became suspicious of the accused.

On the next day, Saturday, 25 January, the accused was brought into police custody in Apia. Sergeant Latu Latu who was called by the prosecution testified that whilst the accused was in police custody, he was interviewed on three separate occasions. In the first two interviews the accused denied that he had indecently assaulted the victim. On the third occasion which was on 7 February after the accused had been in custody for almost two weeks, the accused was interviewed by sergeant Latu Latu. That interview was recorded in writing and the record of that interview was produced by the prosecution in evidence. It shows that the accused was first administered the usual caution and informed of his constitutional right to counsel. The relevant parts upon which the prosecution relies state in the form of questions and answers as follows:

Q. Do you understand the matter for which you have been brought in?

A. Yes.

Q. What is that matter?

A. A young girl who had been indecently assaulted?

Q. Do you know the name of this young girl?

A. [state name of victim]

Q. Why did this happen?

A. Being misled by feelings of strong desire and temptation by the devil.

Q. Where did this incident happen?

A. Amaile.

Q. What time did this incident happen?

A. I know it was about 10 on Friday night 24/1/03 prior to Saturday 25/1/03.

Q. Do you understand our interview?

A. Yes.

Q. Is it yourself who is mentioned in this matter. Correct?

A. No answer.

Q. Do you understand our interview?

A. That is so.

The record of the interview was then signed by the accused and by sergeant Latu Latu. The police sergeant also testified that this third interview was conducted after further police investigation. He did not say why this further police investigation made it necessary for the police to conduct a third interview of the accused.

The accused who was not represented by counsel elected to give evidence after being warned of his right to silence. He testified that on 24 January this year he was at the house of the victim’s family with other boys of his village. In the evening the victim’s uncle gave out some alcohol for the boys of the village including himself. The victim’s uncle also gave them his packet of Greys tobacco to roll cigarettes from it. He then asked the victim’s uncle for some food which he would take to his home and eat there. After he was given food he went to his home. At his home he discovered that he had in his pocket the packet of Greys which belonged to the victim’s uncle. So he went back to return the packet of Greys. He found the victim’s uncle playing billiards and he gave the packet of Greys back to him. He then stayed at the billiards telling jokes to the boys who were present.

The accused further testified that when he was first brought in by the police, he told them to investigate the matter properly. He was then remanded in custody. During cross-examination the accused was asked by counsel for the prosecution whether he took the victim to the grave and put his hand to her private part and he said no. He further denied this matter saying he told the police to investigate this matter properly.

The onus is on the prosecution to prove the charge beyond reasonable doubt. Without having to refer to the usual corroboration warning which seems to have fallen out of favour in some of the major common law jurisdictions like New Zealand, New South Wales and England, I am satisfied beyond reasonable doubt from the evidence that the victim at the time of the alleged offence was about eight years and five weeks old so that she was under the age of twelve years. I am also satisfied beyond reasonable doubt from the evidence that the victim was indecently assaulted by someone. The real issue in this case is whether the prosecution has proved beyond reasonable doubt that the person who indecently assaulted the victim was the accused.

The victim could not say whether the person who took her to the grave and touched her private part was the accused. I do not accept what she said that her father told her that it was the accused for her father was not present when this incident occurred and he did not give evidence. I would also treat with caution the description given by the victim of the man who took her to the grave and touched her private part as it was dark and she had just woken up. She also saw this person for a very brief time under what must have been very distressful circumstances. I am also not satisfied that the description given by the victim of a slim, black man fits only the accused and no other male of the village of Amaile. The evidence given by the victim’s uncle as the basis for his suspicions that it was the accused who indecently assaulted the victim is not sufficiently convincing to put the issue beyond reasonable doubt. That leaves only the evidence of the interview of the accused by police sergeant Latu Latu. Even though that interview contains an admission by the accused, the evidence shows that in two separate previous interviews by the police the accused had denied it was him who indecently assaulted the victim. Then in his oral testimony he again denied that it was him who indecently assaulted the victim. In those circumstances I am of the view that it is unsafe for the Court to conclude that the prosecution has proved beyond reasonable doubt that it was the accused who committed this offence. In fact I do not feel sufficiently confident that the prosecution has proved this issue to the required criminal standard.

Accordingly the charge is dismissed.

The order already made by the Court for suppression of the victim’s name from any publication in the news media still remains.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
Accused in person