SUPREME COURT OF SAMOA
Police v Lava [2012] WSSC 103

Case name: Police v Lava
Citation: [2013] WSSC 103
Decision date: 21 March 2012
Parties: POLICE and LEMATUA MALIGI LAVA, male of Vaiusu and Tapatapaō.
Hearing date(s): 11 March 2011, 07, 08 June 2011 & 20 January 2012
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
Ms T Toailoa for prosecution
Ms L Tamati on behalf of Mr H Hoglund for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
R v Osborne [1905] 1 KB 551, 561
R v Nazif [1987] 2 NZAR 122, 125
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

LEMATUA MALIGI LAVA, male of Vaiusu and Tapatapaō.
Defendant

Counsels:   Ms T Toailoa for prosecution
Ms L Tamati on behalf of Mr H Hoglund for defendant

Hearing:   11 March 2011, 07, 08 June 2011 & 20 January 2012

Submissions:   17 February 2012

Decision:   21 March 2012

ORAL DECISION OF NELSON J

[1]	The defendant in this case faces four charges.  The first is that at Vaiusu on 29 January 2010, he did indecently assault the complainant a girl between the age of 12 and 16 years and thereby commit the offence of indecent assault.  The second is that at Vaiusu on the 09th of February 2010, he had sexual intercourse with the same complainant a girl between the age of 12 and 16.  He did thereby commit the offence commonly known as carnal knowledge.  The third is that at Tapatapaō on 15 February 2010 the defendant again had sexual intercourse with the same complainant.  The final charge is that at Tapatapaō on 01 March 2010 he indecently assaulted the complainant.  
[2]	Prosecution evidence comprised the complainant and two of her teachers.  The police also produced a plan and photographs of the two scenes together with the medical evidence of a doctor who examined the complainant some three days after the last alleged offence.  There was quite some pre-occupation by counsel as to a suspected pregnancy of the complainant but this evidence was not particularly helpful in resolving the essential issues of this case.  
[3]	The defendant admitted that the age of the complainant was not in dispute only her evidence as to the sexual assaults alleged to have been carried out.  The birth records of the complainant produced before the court show she was born on the 03 March 1996 in American Samoa where she lived most of her life.  It means that at the relevant time she was not quite 14 years of age, she was still 13.  
The prosecution case:
[4]	The complainants evidence was she was sent from American Samoa to live with her fathers aiga at Vaiusu towards the end of December 2009.   The defendant was her auntys son and he was also at the time living at Vaiusu.  The evidence showed he had a wife and children who lived in Savaii and who visited him in weekends and that the family also had a house and property at Tapatapaō.  The complainant said that on 29 January 2010, she was at home with another of her auntys and the defendant. She grabbed a towel to go for a shower at the familys exterior tap situated behind the defendants faleoo.  As she passed the faleoo the defendant called out to her inviting her to come and watch the movie on his TV.  She complied only to find that the defendant was watching a sex movie of some kind showing naked males and females.  The defendant said to her that they should not only watch the movie but they should try it.  She did not go for a shower but returned back to her room and went to sleep.  
[5]	While asleep the defendant entered her room and told her that he was there to try out what was in the movie.  She said he kissed her on the face and lips, pulled up her T-shirt and sucked her breasts.  She told him to stop.  His reply was do not worry the aunty has gone to the shop and they are the only ones at home.  The defendant then got on top of her and was about to proceed to the next phase when they heard the sound of an incoming vehicle.  The defendant stopped what he was doing, told her not to tell anyone and left the room.  Because she was afraid she did not tell anyone of the incident.  
[6]	Her further evidence was that on the night of 09 February 2010 she went to the outside bathroom and passed by the defendants room.  He called her to come in and light his mosquito coil.  Initially she was reluctant to do so.  When he called again she was told off by the defendants mother who instructed her to go light the defendants mosquito coil.  For this purpose she entered the defendants room.  Obviously the defendant had more in mind because she said that he began talking to her about the previous incident.  This culminated in him lifting his young daughter off the bed and lying her on it and kissing her.  He had her masturbate him and then he got on top of her and had sexual intercourse with her.  This caused her pain and distress and she cried.  The defendant continued until he finished and then got off and told her to get dressed and go to bed.  She left the room went to the tap and washed her face then returned and sat outside on the steps of the house for a little while.  The rest of the household were still asleep.  The next morning she noticed that her underwear not only had blood stains but also whitish stains.  She said she also had difficulty walking post intercourse.  
[7]	As for the 15 February 2010 allegation her evidence was the morning of that day the defendant drove her to school.  But on this occasion the defendant dropped off his daughter first which was unusual.  They went passed her school and the defendant told her they needed to go to the Tapatapaō property to uplift something.  At Tapatapaō the defendant went into the house came back out, stood in the doorway and waved her in.  When she entered the house he locked the door and began kissing her.  She told him if he is going to repeat what he had done to her earlier she will run away from the family.  To which he replied that the only way people would know about it is if she talked.  If I recall correctly the words she used in her testimony were “pe a tautala lou gutu”.  He removed her school uniform and had sexual intercourse with her.  She tried to stop the defendant but she could not and that when he finished he dropped her off to school.  
[8]	At school she was questioned by her Math teacher Ms Iuni Tanuvasa as to why she was late.  She gave the excuse that her vehicle was late.  She did not tell her teacher the real reason because she was new to the school and she did not really know her teachers.  This was confirmed by the evidence of Ms Tanuvasa who said she remembered the complainant well as she was a transfer student from American Samoa.  She said she was not certain as to the dates but recalled the complainant coming late one morning around the third or fourth week of February 2010 and recalled questioning the complainant as to why she was late.  She was told that the vehicle dropping her came late.  The teacher also confirmed that normally the complainants cousin drops her off in a white car as opposed to the defendant who according to his evidence drives a green double cab pickup. 
[9]	In relation to the 01 March 2010 charge the complainants evidence was because of the tsunami warning of 27 February the family moved to the Tapatapaō property.  On the night of 01 March she went for a shower with the defendants sister Linda.  The defendants sister showered first and then left the bathroom.  After she showered she followed to find the defendant sitting in a house nearby the outside of the shower.  He steered her to a nearby spot pulled off her towel and began in her words “eating her breasts”.  She tried to put the towel back but could not.  He also performed oral sex on her private part.  She told the defendant to wait while she goes inside to dress and then she will return.  So he let her go and when she got into the house she stayed and did not come out despite messages from him to come.  
[10]	The complainants final testimony was that these incidents only came to light on the 03 March 2010 when she vomited at school.  Because of that she was questioned by her form teach Ms Taylor as to her last period.  In response she told Ms Taylor about the things that were happening to her.  From there the matter found its way into the hands of the police.   The evidence of Ms Taylor confirmed the complainants evidence.  She said she was the complainants form teacher and recalls her well because she was from American Samoa and always spoke in English.  On the 03 March 2010 she noticed the complainant vomiting outside her room.  She took her to one side and questioned her as to whether she was suffering any aches and pains.  The girl told her that only her back and stomach were sore.  She then asked her if she was hungry and the complainant said she had not eaten anything since Monday the 01st of March.  This aroused her suspicions so she asked her about the time of her last period.  The complainant advised her that she did not have her period the previous month leading to her questioning the complainant as to whether she had had sexual intercourse with anyone.  The complainant then told her yes and named her cousin the defendant.  Whereupon a narrative of the previous incidents came out.  
[11]	The medical evidence of the complainants examination on 04 March 2010 showed that the complainant had love bites on both breasts and that the complainant was a sexually active female.  It recorded an initial pregnancy test came back negative and that the doctor instructed the complainant to return in two weeks time for another test.  No such further test was conducted but according to the complainants evidence she miscarried towards the end of March 2010.  Despite counsels fascination with this issue, whether the complainant became impregnated or not by the defendant is not the central issue of this proceeding.  It  is the allegation that he had sexual intercourse with the complainant and that he indecently assaulted her at the places and on the days in question.  
The defence case:
[12]	The defence evidence consisted of the defendant and members of his family.  The defendant denied all allegations.  He raised the defence of alibi in respect of the 29 January 2010 allegation saying on that day he was at the familys Tapatapaō property doing work with his brother in law.  But when the defendant was questioned as to his recollection of the dates and days of the week he was most unimpressive in his answers.  He only recalled with great clarity that which was in his favour.  His denials were unconvincing and defence counsels argument that they related to the minutiae of the evidence not to the key issues was not persuasive.  The defendant also contradicted himself in several areas of his oral testimony, for example as to his whereabouts on the night of 09 February 2010 a night which is the subject of one of the charges.  And some of the things he said were just not credible.  For example he said he was told that the hospital confirmed the complainant was pregnant but the medical report and the doctors oral evidence was that the pregnancy test came back negative.  He also said he last saw the complainant on 15 February 2010 when all the other evidence including that from his own witnesses indicated she stayed with his family until 03 March 2010 when this matter was drawn to the attention of the complainants teachers.  
[13]	Even though adjournments were allowed for the calling of his alibi witness in particular his brother in law, no one appeared to substantiate the defendants claim of alibi evidence regarding the 29 January 2010 incident.  Or to substantiate the defendants evidence that when he dropped off the complainant at school on 15 February 2010.  He was accompanied by his brother in law and they returned after dropping the girl off to Tapatapaō to continue their work.  
[14]	The people of his family who did testify spent most of their time assassinating the complainants character asserting there was some sinister motive in her being sent from American Samoa to live here in Samoa.  And that the complainant was a problem child dumped on them by a distant if that relative.  One witness testified about the complainants bedroom being an open room into which anyone could see.  These were matters which defence counsel did not put to the complainant in cross examination and which conflicted with the defendants own evidence.  The evidence of these people deserves no credence.  
[15]	The evidence of the defendants sister who was the other defence witness was unhelpful as she was unable to recall the exact date the complainant testified about in relation to the Tapatapaō incident.  She kept no record of the movements of her and the complainant after their bedtime showers. Why would she?  
Decision:
[16]	The defence evidence was unconvincing.  The complainants evidence on the other hand had the ring of authenticity.  It was detailed and the complainants distress in giving it was obvious.  Her evidence was not shaken by cross examination.  Considering the circumstances that she was placed in it is not surprising she made no complaint to obviously hostile older relatives.  She must have felt alone and abandoned in a family that did not except for the defendant want her.  The aunty was clear in her testimony as to her attitude towards this young girl.  The only person the complainant felt close to was the defendants sister who did not impugn the complainants credibility in any way.  
[17]	I accept the complaint evidence as testified to by the complainants teachers.  It was not cajoled and enquiries were directed to the young girls welfare.  They were not leading questions to the extent that her responses should be rendered inadmissible.  As stated by the court in R v Osborne [1905] 1 KB 551, 561.
“The mere fact that a statement is made in answer to a question is not of itself sufficient to make it inadmissible as not being a complaint.”
The responses by the complainant were also “not elicited by questions of a leading and inducing or intimidating character.”
[18]	I am also satisfied the complaint was made at the first reasonable opportunity that presented itself.  The prosecution submission outlined in paragraph 15 of their written memorandum quite correctly identified the relevant factors.
“On the contrary, the circumstances of this case shows that there was no-one to whom the complainant could have talked to in confidence as supported by this evidence:
•	She had only recently moved to Samoa.  Her father had left her in Samoa and he moved back to American Samoa and she could not make contact with him.  Her mother had passed away.  She had no other immediate family living with her.
•	She was living with the defendants family. She depended on them for her livelihood as this was now her home.
•	She was not close to her aunty the defendants mother. As her aunty travelled often and she didn’t see much of her.  This was both the complainant and her auntys Poloa’e evidence.  The complainant also gave evidence that she was often scolded by her aunty who would use ‘bad words’ when she told off the complainant.
•	She had just started school and didn’t know or trust the teaches.
•	The defendants mothers attitude as gleaned from her evidence suggests a resentful attitude towards the complainant whom she most likely saw as a burden to her as she already had so many other obligations.”

	As observed by the New Zealand  Court of Appeal in R v Nazif [1987] 2 NZAR 122, 125:
“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.”
[19]	The complaint evidence comes from independent sources who have not known the complainant for very long but clearly remember her.  These people have no reason or benefit to be gained from misrepresenting what was discussed and what they told the court is consistent with the complainants story.  The medical evidence is also consistent with the complainants story.  
[20]	On balance Lematua I am of the view that the evidence establishes beyond reasonable doubt that sexual intercourses occurred in this matter between you and the complainant.  They were probably consensual as suggested in the complainants statement when she was interviewed by the police.  But for the purposes of this offence consent is irrelevant.  I am also satisfied from the complainants evidence of the indecent assault against you, I find all charges proven to the required standard.  It now remains to set a date for sentence.  
[21]	Tusa ai ma le faaiuga a le faamasinoga Lematua o lau mataupu lea ua tolopō i le aso 16 o Aperila mo se faaiuga.  E tatau ona e oo ile asō i le ofisa faanofo vaavaaia.  E manaomia se latou lipoti, ta’u iai le aso e manaomia ai le latou ripoti, 16 Aperila.  Tulaga o le tatalaga o oe i tua o le a faaauau pea.  A faapea o lena e te saini faaauau pea lau saini e faatalitali ai le faaiuga, ua e malamalama? (Defendant indicated he understood).
…..………………….
JUSTICE NELSON