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Police v Sau [2008] WSSC 80 (5 September 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE

Prosecution

AND:

PENI CHAN SAU
male of Vaigaga and Vailuutai
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Sua and Ms Titi for prosecution
Mr Toailoa for defendant

Hearing: 31/7/08 and 1/8/08
Submissions: 1/09/08
Ruling: 5/09/08

RULING OF THE COURT

The accused aged 41 is charged with three counts of having sexual intercourse with a girl under sixteen years of age, not being his wife. All three offences are alleged to have been committed in January and March of 2005 firstly at Mulinuu, secondly in a bedroom at Vaigaga and thirdly under a talie tree at Vaigaga. The accused denied having sexual intercourse with the complainant. It is not disputed the young girl is under 16 years and not the wife of the accused.

I will deal first with the second allegation of unlawful sexual intercourse. The young girl (complainant) then aged 15 years, attending Leifiifi College and a niece of the wife of the accused told the court that she was asleep at night in the bedroom with the infant son of the accused when the accused came in, woke her up, undressed her, then undressed himself and they proceeded to have sexual intercourse. The only other person in the house at the time was the mother in law of the accused who was asleep.

The mother in law was called by the defence to testify. She told the court she remembered the night in question as she was in the sitting room with her mother eating when the accused who was fairly intoxicated came with a tray of food, left it on the table and went to the bedroom where his infant son was asleep and immediately fell asleep with the light on and the bedroom door opened. She later saw the complainant went into the same bedroom and soon after the light was turned off. She then called to the complainant to come out of the bedroom. Her mother (grandmother of the young girl) also called the complainant to come out. But soon after she saw complainant re-entered the same bedroom. In her anger the mother in law as well as her mother again called the complainant to come out. This testimony confirmed the evidence of the accused who told the court only his son was asleep in the bedroom when he entered after leaving a tray of food with his mother in law in the sitting room. When the complainant came out of the bedroom the second time that night, the mother in law said, the complainant went and slept with her grandmother in the other bedroom. The mother in law’s testimony was unshaken under cross-examination and is to be preferred to that of the young girl. The allegation of unlawful sexual intercourse must fail, as the prosecution cannot establish beyond reasonable doubt that there was sexual intercourse.

As to the first allegation, the complainant told the court she went in the accused’s taxi with her older sister Paiana, two men who came with the accused and the accused’s infant son to the town area to get food from the accused’s family restaurant. The complainant went in the taxi because she was told by her aunt (wife of the accused) to accompany the accused and his young son for a ride to town whilst the aunt went to play bingo. The accused drove to seawall by the fish market and dropped off Paiana and another man (Fono) who was sitting in the back seat with the complainant and Paiana whilst the other man (Tavita) who was at the front was dropped off at the bus stop. The accused then drove to Mulinuu with the complainant and the accused’s son who fell asleep on the way and parked at a place near the mangroves. She got out as she was told, went with the accused behind the car where she stood leaning against the boot facing the accused and they had sexual intercourse after the accused removed her lavalava and panty and whilst they were both standing. They then returned to the seawall where the sister and male companion were waiting.

The suggestion or implication by the prosecution evidence is that the accused calculatingly dropped off Paiana and Fono at the seawall and Tavita at the bus stop to create an opportunity for him to take the complainant to Mulinuu for sexual intercourse. But again the evidence is unreliable and lacks credibility which in turn creates a reasonable which must be exercised in favour of the accused. In the first place neither the accused nor any of his two male companions invited or encouraged the complainant and Paiana to get inside the car. I accept from the evidence of Tavita Faiaia an employee of Samoa Ports Authority at the time, a friend of the accused for some 16 years that he rode in the accused’s taxi to come to work. The accused was with his friend Fono who worked at the accused’s family restaurant. They turned in at the accused’s home at Vaigaga to pick up the accused’s infant son when the complainant and Paiana also got inside the taxi. Paiana and Fono were dropped off at the seawall at the request of Paiana; she wanted to be friendly with Fono; she expressed that wish at Vaigaga before she got inside the taxi. Tavita was later dropped off in the middle of town before the car proceeded to the restaurant to pick up the food before heading back to pick up Fono and Paiana. Tavita walked to work and the accused’s car travelled towards the direction of the restaurant.

Even if it is accepted the car travelled to Mulinuu’s peninsula, Mr Toailoa for the defence argued that the act of sexual intercourse as described by the complainant was physically impossible to perform when both the accused and the complainant were both standing firmly on the ground. Considering that the accused was taller than the complainant, Mr Toailoa’s suggestion that the accused’s penis would have to enter the complainant’s vagina from underneath makes good logic, and the suggestion by the prosecution that:

"desperate people can achieve what they would normally be unable to do because in such circumstances their minds and bodies change to adapt what is required of them",

is somewhat unfairly stretching the imagination. Minds and bodies might change to adapt as suggested by the prosecution but I doubt if an erect human penis can adapt despite commands by a desperate male mind and demands by a willing active female to penetrate in a situation posed by the prosecution. The impossibility of penetration as posed by defence counsel has not been eliminated by the prosecution. The evidence clearly forewarned the prosecution that the issue of impossibility would be raised by defence. It is not for the defence to prove that it was physically impossible; the burden rests on the prosecution throughout to prove to the required standard of proof that there was sexual intercourse. Prosecution evidence fall short of the necessary standard and the allegation is dismissed.

As to the third allegation of sexual intercourse the complainant said this sexual intercourse took place on the evening of the 30th March 2005 near the family home at Vaigaga, under a talie tree, at the side of the accused’s car, parked on an access dirt road. She told the court that she was leaning against the side of the car facing the accused who lifted her up and inserted his penis inside her. This act of sexual intercourse was allegedly witnessed by Faimao a 32 year old neighbour who stood about 3 meters away facing the back of the accused who was pining the complainant against the side of the car. She immediately identified the person with his back to her as the accused who was wearing shorts and the complainant wearing a brown lavalava. Both their feet were on the ground during the intercourse. She could see all because the house where the complainant and the accused lived was about 18 meters and light was coming from there; there was also light from her (Faimao’s) own house. Indeed she was in her kitchen about 5 meters away from the talie tree when she heard the calling of the word "Peni" (the accused).

The accused admitted parking his car under the talie tree; he admitted standing with the complainant outside his car, he admitted talking to (interviewing) the complainant as to the whereabouts of his wife and infant son; but he denied having sexual intercourse as described by the complainant and Faimao. He told the court he left to watch the David Tua fight when he heard someone called that the fight was on. He normally parked his car under the talie tree where it can be easily seen by his infant son when he comes home in evening because of the outside light. He reiterated that it was impossible to have sexual intercourse when both he and the complainant were both standing up, especially so when he was much taller than the complainant. In any event it would be unthinkable to have sexual intercourse at a place a few meters away from his own home, on a public access place very close to neighbours.

The incident was reported to the police about 8 days later after Faimao reportedly told the mother of the complainant on the 4th April about the events of the evening of the 30th March. A written statement was given to the police by the complainant on the 8th April where she stated that under the talie tree she was held by the accused who pulled her inside the car, she was then held down to the seat, she was then undressed and he inserted his penis inside.

The inconsistency in her oral testimony and what she told the police was put to her under cross-examination. She did not admit any inconsistency but under re-examination she told the court she went inside the car and the accused pulled her towards him; he hugged her, made her lie on top of him, then they sat up and they went outside and made love standing up by the side of the car. Other than giving two different versions in her evidence in chief and under re-examination of how the sexual intercourse took place she never explained why the story she told the police was different from the one she told the court. Bearing in mind that what she told the police is not evidence, any reasonable jury would nonetheless be left with a reasonable doubt about the credibility of the complainant despite the corroborating evidence of Faimao whose so called corroborating evidence would have been worthless if the complainant had stuck to the story she told the police. As the prosecution summoned Faimao to give evidence it was obvious the prosecution knew that the complainant will be telling a different story in the dock but it never took the trouble to bring out the reasons for the inconsistency in her testimony and her police statement. Her testimony was considerably unconvincing. There is considerable force and good sense in the argument by the defence that right thinking person (or even desperate ones as labelled by the prosecution) would hesitate to make love especially to an under aged niece on an access road, at a conspicuous spot which was easily visible to next door neighbour and to his own family who were close by. This allegation is also dismissed. I find the accused not guilty on all the three informations.

JUSTICE VAAI