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Police v Faasuaga [2009] WSSC 27 (23 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

GAIGA FAASUAGA, male of Matautu-uta & Saanapu
Accused

Counsels: Mr Leslie Petaia for the prosecution
Mr Tasi Patea for the accused

Hearing: 23 March 2009

Ruling: 23 March 2009

ORAL RULING OF NELSON J.

In this case the prosecution seeks to lead evidence of a complaint of sexual assault made by the complainant to her mother six days after the incident is alleged to have occurred. The prosecution argued that such evidence is admissible as evidence of recent complaint.

This is contested by counsel for the accused who says the complaint is not recent or made at the first reasonable opportunity which are essential legal requirements for admissibility of such evidence. He has argued that there were other reasonable opportunities in the six days prior to the making of the complaint and the complainant failed to avail herself of those opportunities.

As this was only formally raised late Friday afternoon 20 March 2009 by the prosecution it has been necessary for me to stand down the assessors and adjourn hearing of these proceedings until tomorrow morning pending resolution of the matter. I have heard submissions this afternoon from both counsel for the prosecution and counsel for the accused, it was my intention to deal with the argument this afternoon.

However after a careful review of the police statements and the submissions of counsel I find myself unable to do so because the arguments advanced by both counsel are based on numerous facts that are not yet the subject of any evidence. They are based on what is contained in the written statements of the parties given to the police investigators and some of the matters raised in counsels submissions do not even form part of those statements but may have been the result of counsels pre-trial briefing with his witnesses. And in respect of one major matter the contents of the complainants police statement is in my mind quite uncertain. I am referring hereto the part in her statement which says that after the rape occurred and while the accused was still sitting on her bed someone opened the bedroom door. Someone that she thought was Neli or Meli, it is not clear from the handwritten police statement of the complainant but whatever the case may be she said she did not know who it was because "oute le’i vaai mai iai" (she did not see who it was). There is no mention of a Neli in any other police statement only a Veli who is a cousin of the complainant and who according to her statement was at the 21st birthday party that evening. Her statement mentions Meli another cousin but goes on to say that after the night clubbing with her cousins and her friends she went back to the Matautu property where she was residing with a female cousin named Fu’a. There is no mention of her male cousin Meli accompanying her back to Matautu.

The point is a determination of who this person was who opened the bedroom door needs to be made as this would appear to be the first opportunity of complaint the complainant may have had. Although it may not have been a reasonable opportunity given the defendants continued presence in the bedroom.

Because of matters such as these it would not in my view be in the interests of justice to make a ruling on the admissibility of this evidence based only on what is contained in the police statements. As the New Zealand Court of Appeal noted in R v Nazif [1987] NZCA 307; [1987] 2 NZLR 122:

"There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken into account will include the age, nature and personality of the prosecutrix, her relations with those to whom she might be expected to complain, the reasons for delay in complaint and all other circumstances the judge regards as relevant."

See also Wilson J in Police v Sale [2000] WSSC 49:

"A complaint must have been made at the first reasonable opportunity. It will be rejected if it is given after a reasonable opportunity for doing so has passed. Matters of place, time and circumstances will be taken into account in deciding what is ‘reasonable’. It is for me as the trial judge to determine whether the complaint has been made with sufficient promptness."

Such matters cannot be determined from the police statements but can only be considered after the hearing of the complainants evidence. The complainants evidence would have to be heard in the presence of the assessors and a ruling can be made after hearing her evidence. And if the ruling is such that the recent complaint evidence is not to be admitted a direction to the assessors to ignore that part of her evidence can be made. This would cure any potential prejudice to the accused in the assessors hearing the evidence in the first place and I am confident the good sense of the assessors will allow them to ignore evidence that the trial judge directs them to ignore.

Since giving this oral ruling I have had the opportunity to read the judgment in R v Nazif which says the proper course to follow is for the trial judge to hold a voir dire in order to ascertain the facts upon which a conclusion can be reached. In my view this would be the preferable course to follow in an assessor trial so that the assessors do not at all hear evidence that may be inadmissible in law.

It must also not be overlooked that the purpose of admitting evidence of a recent complaint is only to show consistency of conduct of a complainant. It is not admissible as corroborative evidence or as proving the truth of the matters complained about.

We will then stand adjourned to tomorrow morning to hear the evidence of the complainant. What I propose to do is hear the evidence and have the examination in chief, cross examination and re-examination done by say lunch time at which time I will then consider whether to admit the recent complaint evidence and I will give you a direction accordingly over the lunch period in the absence of the assessors.

JUSTICE NELSON