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Police v Aetonu [2011] WSSC 155 (3 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

KONELIO AETONU male of Vaiusu-uta.
PENITITO ULUGIA FELISE male of Vaiutu-uta
Defendants

Counsels: Ms R Titi for prosecution
Mr T S Toailoa for defendants

Hearing: 01, 02 & 03 November 2011
Submissions: 03 November 2011
Ruling: 03 November 2011

ORAL RULING OF NELSON J

There are two defendants in this matter. One of them Penitito Ulugia Felise faces two counts of carnal knowledge by information S432/11. He is charged that at Vaiusu on the 09th day of May, he did have sexual intercourse with the complainant a girl between the age of 12 and 16 years not being his wife. The second charge S776/11 is that between the 09th and 10th of May he did have sexual intercourse at Vaiusu with the same complainant.

His co-defendant Konelio Aetonu faces four charges, three counts of carnal knowledge all alleging that at Vaiusu on the 09th day of May he did have sexual intercourse with the complainant relating to that charge, a girl over the age of 12 and under the age of 16 years not being his wife. The fourth charge is that on the 09th day of May he did indecently assault the same complainant at the same time and place.

The two complainants are cousins and are both alleged to be over 12 but under 16 years of age. There is no suggestion that either of them was the wife of the defendants. These matters have been tried together as the offending is alleged to have occurred at the same time and place. Suppression orders have already been issued prohibiting publication of the details concerning each of the complainants. Those orders are to continue.

The facts show that on the night of 09 May 2011 the two complainants for reasons not relevant to these proceedings decided to run away from their respective homes. The girls are not only cousins but friends and live in the same village. They made the very foolish decision that night at around 8 pm to walk from their village situated inland of Apia to the coastal village of Vaiusu some distance away. During the course of their journey they met up with the defendants who stated that they were "eva" or loitering with no specific purpose on the road of their home village of Vaiusu.

The defendants who are older than the girls way-laid the two complainants and engaged them in conversation. There is no suggestion either party knew or had met each other prior to this incident. Or that alcohol was involved in the defendants effort to engage the girls even though I suspect it probably was. The end result was the complainant in Penititos matter agreed to a sexual liaison with him. He went home and fetched some sleeping materials and took the girl to a nearby deserted house or "fale tuufua" belonging to their family. There they spent the night. And had consensual sexual intercourse at least two times although after some prodding the complainant testified it was three times that night.

Meanwhile, Konelio took his complainant down a side road and underneath a tamaligi tree according to him, had consensual sexual intercourse with her once. This complainant too said in her evidence that it was not once but three times that intercourse occurred. After intercourse Konelio took the complainant to where Penitito and the other girl were sleeping and left her there. This was confirmed by Penitito and his complainant in their evidence. The next day the girls returned to their families.

Only the complainant involved in Konelios matter was taken to hospital for a medical examination. This was some days later. There was no evidence from the examining physicians report that the intercourse that occurred between Konelio and that complainant was anything other than consensual. Against that background the charges against the defendants were laid by the police.

I will deal firstly with the prosecution case against the accused Penitito. Prosecution counsel is quite correct, the three elements they need to prove beyond reasonable doubt is firstly the fact of sexual intercourse, secondly the age of the complainant and thirdly the fact that the complainant was not at the time the wife of the defendant. The first and third elements are not disputed by this defendant. He had sex with the girl as alleged and the complainant of this matter is not the defendants wife. In fact she was a stranger to Penitito. It is the second element of the charge, the issue of age that causes significant problems.

The prosecution evidence of age rested on the evidence of this complainants mother. She is from Pu'apu'a in Savaii and said that the complainant was the result of a short liason with an Upolu gentlemen and that after the girl was born she left the child with the mans family and returned to her family in Savaii. She said that subsequently she visited the girl to "faailoa" (reveal) her as her mother but the complainant was brought up by the mans family in Upolu. As a result the complainants birth was not registered by her and she supposes it was someone from the mans family who attended to this and who gave the complainants birth details to the Registry of Births.

A birth certificate from the Births Registry was produced as "Exhibit P-1" for the prosecution. The prosecution rely on this as establishing the age of the complainant. Her birth date is there stated to be 22 June 1998. Thus making the complainant between the ages of 12 and 16 years as at the date of the alleged offending. The problem with that birth certificate is it is clear from the mothers evidence that she did not provide the details thereof to the Birth Registry. Further that as conceded by the prosecution, at least one detail in the certificate namely the mothers place of birth which is "Savaii" and not "Motootua Hospital" as shown in the birth certificate, is in fact recorded incorrectly. There are also details missing from the birth certificate where relevant entries are marked "not recorded". Other details are repeated under different headings for example the mothers surname is recorded as "Vaa" under mothers surname but her maiden surname is also recorded as "Vaa". Similarly with the birth fathers details. His first name and surname are both recorded as "Lamaga".

There is another difficulty with "P-1". It shows the birth date of the complainant to be 22 June 1998 but the complainants biological mother in her testimony gave the court three different dates of birth for the complainant. In examination in chief she initially stated the complainant was born in 1996 but on seeing the birth certificate she agreed that it was in fact 1998. In re-examination when she was questioned by prosecution counsel she said the complainant was born in 1993 when she was living with the complainants birth father. It was apparent to me that she was very unsure in her answers concerning the critical issue of her daughters date of birth.

The court is required to be satisfied beyond reasonable doubt as to the age of the complainant. On this evidence I am left in clear doubt as to the correctness of the complainants date of birth. The complainants own evidence did not assist either as she too was unsure as to her birthday. This ingredient has not been proven beyond reasonable doubt by the prosecution and as it relates to both charges, neither charge against this defendant can succeed.

Even if I were to accept the reliability of the evidence adduced as to the complainants age, I still would have dismissed the charges against this defendant for the following reason. Section 53 (4) of the Crimes Ordinance 1961 provides as follows:

"It is a defence to a charge under this section if the person charged proves that the girl consented, that he was under the age of 21 years at the time of the commission of the act, and that he had reasonable cause to believe and did believe that the girl was of or over the age of 16 years."

This defence was raised by the defendant. As to the age of the defendant the prosecution concedes that at the relevant time he was 18 years of age according to documentary evidence he produced to the court. The defendants evidence was that the complainant told him that she too was 18 years of age. This complainant denied telling him this in her testimony but she admitted in cross examination that she lied as did her co-complainant to the two boys about her age. She also admitted that she gave the defendant a false name and told him she was from the village of Aleisa when she was not.

I have seen and heard the complainant testify. She has the appearance and build of at least a 16 year old. And she said that has not changed since the date of the alleged offending. I am satisfied that those factors coupled with the lies she told this defendant would have given the defendant reasonable cause to believe she was at least 16 if not 18 years old as she claimed to be. One should not overlook either that this all took place at night and the parties were not previously known to each other, being from villages quite some distance apart. I have also seen and heard the defendant testify and formed an impression as to him. I accept his evidence that as a naïve 18 year old he took at face value the age given to him by the girl.

For the reasons that I have given I therefore dismiss the charges against you Penitito. You may stand down.

I come now to the case against the co-defendant Konelio. Like his co-defendant Konelio too raised a defence pursuant to section 53 (4) of honest and reasonable belief that the girl that he had sexual intercourse with was 16 years of age or more. The complainant in this matter had admitted also in her evidence that she lied to this defendant about her name and village and place where she went to school. She said she had also told the defendant when he asked that she was 16 years of age. The defendant in his evidence before the court claimed that he believed all this and he formed the view that the girl was of age. The complainant in her testimony said in cross examination that their aim in lying about their ages to the boys was so that it would not appear to the boys that they were little girls.

I have considered the evidence against Konelio carefully. His matter is not as clear cut as that of his co-defendant. This defendant was according to his birth certificate produced in court some 20½ years of age as at the date of these alleged offences. His 21st birthday was 08 October 2011 and these offences are said to have occurred in May 2011 some five months before that. His cautioned statement to the police indicates that he was employed as a carpenter for the Catholic Church at Siusega but he lives at Vaiusu-uta. He is of a mature age and build and having seen and heard him testify I have no doubt as to his intelligence. He strikes me as an alert type of fellow. Konelio is older, more mature and in my assessment more experienced than his 18 year old co-defendant. He knew enough not to admit to the police what he admitted in court that he had sex with this young girl who at that time according to her birth certificate was 14 years of age.

I have also seen and heard the complainant testify and unlike her co-complainant she is of a smaller and slighter build. There is no evidence that she appears any different now than she appeared at the time of these alleged offences. She is much smaller than the defendant.

There is a further factor to be taken into consideration. I have looked at the defendants cautioned statement which records what he told the police. A statement where he admits to indecently assaulting the complainant by kissing her neck and fondling her breasts. Conspicuous by its absence is the matter being raised by the defendant. On the second page of the statement just above his second signature, he is advised by the interviewing officer in the following terms: "O lea ua faailoa atu ia te oe lou moliaga o le lua faiga aiga ma le teineitiiti lea i lalo ifo ma le 12 tausaga" and then the name of the complainant. The officer then asked him "O le a sau tali i le moliaga lea ua molia ai oe?" His answer was one word "tetee". I have no doubt if there was a real belief on his part that the girl involved was 16 years of age or more he would have raised this in his cautioned statement to the police.

I have come to the conclusion that while this defendant may have had some reasonable cause to believe the girl was 16 years of age, I do not accept that he as a mature and experienced 20 year old genuinely held that belief. I am of the view that he did not necessarily believe what the girl was telling him as to her age. He certainly had the presence of mind to ask her about her age as admitted by him in his evidence because he knew it was against the law to have intercourse with girls under 16 years. I would say his lust overcame his better judgment and I do not accept his belief was honestly or genuinely held as required by section 53 (4).

In respect of Konelio there is no difficulty with her date of birth. The evidence of her birth certificate establishes she was born 07 March 1997. Unlike "P-1" for prosecution this birth certificate contains all the relevant data and I find it reliable and convincing. Certainly no reason to doubt it has been raised. It is also clear the complainant in this matter was not the defendants wife and accordingly the first and third elements of the charge against Konelio have been proven beyond reasonable doubt.

The only question is whether the prosecution have proven beyond all reasonable doubt the three counts against this defendant. The defendant in his testimony admitted to only one instance of sexual intercourse under the tamaligi tree. The complainant on the other hand maintained that they had sex three times but she did not say where or when the other two instances occurred.

I am inclined to believe the defendant on this aspect as opposed to the complainant who has admitted to telling the defendant lies about her age and other matters. It is also unlikely in my view that there were two other instances of intercourse under the same tamaligi tree in the space of the few hours before the defendant took the girl to the house where Penitito and his complainant were sleeping.

For reasons that I have outlined Konelio I am not satisfied beyond reasonable doubt that the evidence establishes any more than the one instance of sex admitted by you in your testimony. Accordingly I find one count of carnal knowledge proven beyond reasonable doubt. I designate this to be information S433/11 which was the information filed first in time by the police. The other two counts of carnal knowledge as well as the alternative charge of indecent assault are accordingly dismissed. It is now a question of addressing a penalty that is appropriate for the one count that has been proven against you.

O lau mataupu Konelio lea o le a tolopo i le aso 05 Tesema mo le lauina o le faaiuga. E tatau ona e oo ile ofisa faanofo vaavaaia o lea ua manaomia se latou lipoti i le mataupu lenei mo lau susuga. Aua le faatamala e taua tele le lipoti lena mo oe. O le tulaga i le tatalaga o oe i tua e faaauau pea e faatalitali ai le faaiuga o le faamasinoga.

............................
JUSTICE NELSON