IN THE SUPREME COURT OF SAMOA
Police v KP [2014] WSSC 134

Case name: 	Police v KP	
		
Citation: 	[2014] WSSC 134	
		
Decision date: 	09 May  2014	
		
Parties: 	Police (Prosecution)
KP (Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S2940/13, S2941/13, S2942/13, S2943/13, S2944/13	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	The matter will accordingly be adjourned to the next available sentencing date for the prosecution to advise if they wish to proceed with the charge of rape.  The defendants sentencing in respect of the remaining charges for unlawful sexual connection in respect of which consent is no defence will also be adjourned pending prosecution advice on the rape.  	
		
Representation: 	F Lagaaia for prosecution
Defendant unrepresented	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	KP
Defendant

Counsel:	F Lagaaia for prosecution
Defendant unrepresented

Ruling:	09 May 2014

ORAL RULING OF NELSON J
1.	For the benefit of the press a suppression order will be issued if one has not been issued to suppress publication of the details of both the complainant and the defendant in this matter.  
2.	The defendant faces five (5) charges.  The primary charge being information S2940/13 a charge of rape.  It alleges that between 01st and 30th of April last year the defendant raped the complainant.  The defendant was then 19 years of age and the complainant 12 years of age.  The defendant is the son of the complainants mothers brother in other words he is the older first cousin of the complainant.  
3.	The offending is alleged to have occurred while the defendant was living with the complainants family as a member of the family.  The complainant was attending the local District High School in Year 6 and the defendant stayed at home helping out with the usual family chores and on the family plantation.  In addition to the rape charge he also faces four charges of sexual conduct with a girl between the ages of 12 and 16.  These are information S2941/13, S2942/13, S2943/13, and S2944/13.  They allege activities during the month of April 2014, once during the month of May 2013 and twice during the month of June 2013.  
4.	There are also other charges against the defendant which appear to be the original information filed as substituted for by the mentioned five charges.  Presumably at some stage the prosecution withdrew those original charges as the summary of facts before the court refers only to the substitute charges.  To all information the defendant on 02 December 2013 entered pleas of not guilty when he was then remanded in custody for trial on 03 February 2014.  
5.	On the 03rd of February the following is noted on the court file “matter was not on callover list - however defendant was brought to court who was in custody and as indicated a change of plea. Further remanded to appear 17/2/14”.  On 17th February 2014 before the Honourable Chief Justice the defendant changed his plea to guilty and was remanded for sentence before me on 10 March 2014.  As he was a young defendant I ordered the probation office to interview members of his family and file a supplementary report.  I did not accept the probation report that had been prepared as it was done on the basis of an interview of the defendant only.  I was conscious also of the seriousness of the charges against the defendant.  
6.	When the matter was recalled for sentence and the summary of facts from the police read to the defendant he disputed those parts that say the complainant did not consent to what he did.  He maintained she was at all times a willing partner to the sexual acts.  The police accordingly sought and were given leave to call the complainant to confirm her version of events. 
7.	I have now heard the evidence of the complainant.   That was the only evidence called by the prosecution.  In my assessment she was a poor witness.  She was very reluctant to testify and contradicted herself several times in her evidence in chief on the issue of consent in respect of the rape allegation.  Having heard her evidence I am satisfied that she consented to the subsequent acts of sexual intercourse that are the subject of the four unlawful sexual connection charges.  
8.	But that the defendant should be given the opportunity to consult legal advice in respect of the rape information S2940/13.  And if the defendant cannot afford legal advice he should be granted legal aid and counsel retained to advise him in relation to that charge.  I would also recommend that the prosecution consider whether they wish to persist with that charge given that the defendant will be facing sentence in respect of the remaining four charges.  
9.	The matter will accordingly be adjourned to the next available sentencing date for the prosecution to advise if they wish to proceed with the charge of rape.  The defendants sentencing in respect of the remaining charges for unlawful sexual connection in respect of which consent is no defence will also be adjourned pending prosecution advice on the rape.  
10.	O lau mataupu lea o le a toe tolopo mo le vaiaso e tasi se’i silasila le ofisa o leoleo pe fa’aauau pea le moliaga lea o le faiaiga fa’amalosi fa’asaga i lau susuga.  Toe valaau i le aso Faraile o le vaiaso lea i le ta o le 10:00 i le taeao.  Toe fa’aauau pea lau nofo taofia fa’atalitali ai le fa’aiuga o mataupu uma nei. 

JUSTICE NELSON