SUPREME COURT OF SAMOA
Police v Mafuto’a [2017] WSSC 103

Case name: 	Police v Mafuto’a	
		
Citation: 	[2017] WSSC 103	
		
Decision date: 	12 July 2017	
		
Parties: 	POLICE (Prosecution) and TO’A MAFUTO’A male of Salepoua’e Saleimoa. (Defendant)	
		
Hearing date(s): 	11 & 12 July 2017	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	I accordingly declined the prosecutions application to produce the complainants statement in substitution for oral testimony which she unfortunately was not in a position to give. 	
		
Representation: 	L Su’a-Mailo for prosecution
I Sapolu for defendant	
		
Catchwords: 	Voire dire – sexual violation by way of sexual connection – severely disabled – admissibility of complainants statement – general rule as to admissibility of hearsay – reasonable assurance –unavailable as a witness – physical or mental condition – reliability of statement – sexual assault – limited education – prudent course – reliable – oral testimony	
		
Words and phrases:		
		
Legislation cited:	Evidence Act 2015	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

	TO’A MAFUTO’A male of Salepoua’e Saleimoa.
Defendant
Counsel:	
L Su’a-Mailo for prosecution
I Sapolu for defendant

Hearing:	11 & 12 July 2017

Reasons:	12 July 2017

REASONS OF NELSON J
(Voire Dire - Admissibility of complainants statement)
1.	Defendant is charged that at Salepoua’e Saleimoa on the 21st day of July 2016 he committed sexual violation by way of sexual connection on the complainant a female of Salepoua’e Saleimoa. Names of the complainant and members of her family withheld from publication as per the usual procedure of the court. 
2.	During the course of the trial, prosecution sought to tender as evidence the written statement of the now severely disabled complainant given to the Police on 22nd July 2016.  Reliance was placed on section 10(1) of the Evidence Act 2015 which relevantly provides:
“10.  General rule as to admissibility of hearsay – (1) Subject to subsections (2) to (4) and section 12 (which have no application here), a hearsay statement is admissible in any proceeding if:
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)   	either –
(i)  the maker of the statement is unavailable as a witness; or 
(ii)   the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.”
Also section 9(2)(c) of the Act which provides:
“9. Definition – (2) for the purpose of this Division, a person is unavailable as a witness in a proceeding if the person:
(c) 	is unfit to be a witness because of age or physical or mental condition.”
3.	Having observed the condition of the complainant who was wheelchair bound and could not speak, but only “grunt” for want of a better word in response to questions, I was satisfied she was in terms of section 9(2)(c) “unavailable as a witness” due to her physical and mental condition. The real issue was whether the requirements of section 10(1)(a) could be met. 
4.	At the voire dire on this issue, the prosecution tendered the statement and called the older sister of the complainant, Constable Kolotita Sanele who took the statement, Constable Titi Pula who was present in the Afega Police Post at the time the complainant and her sister arrived and Doctor George Tuitama the Registrar of the National Hospital Mental Health Unit. The evidence of Dr. Tuitama was only relevant in relation to the complainants current condition as he examined her for the first time on Friday 07th July 2017 in preparation for the hearing.
5.	The evidence of the complainants sister when asked about her sisters condition in July 2016 was as per page 5 of transcript:
“Tali:	o lo’u uso lea e malosi lona tino ae iai ona vaivaiga e tau faaletonu le mafaufau i leisi taimi.  Ae malosi lava lona tino, e malamalama foi  i nisi taimi i feau e fai atu ia te ia, e malamalama lava ma alu fai. Ae pau lava lena o lona itu ma’i e faaletonu, e slow
Fesili:	o a ni uiga poo ni aga e atagia mai ai lau faamatalaga lea e te fai mai ai e tau faaletonu le mafaufau?
Tali:	a e talanoa atu iai ile taimi lea e ok mai ai, e mafai ona ia iloaina le tala lea e fai atu ai.  Ae oute iloaina e iai le taimi e off ai, ta te fiu e fai atu e le taitai ano mai.
Fesili:	o a ona uiga e faaali atu ia oe ile taimi lea e te fai mai e te talanoa atu iai ae lea pei e off, o a ona uiga?
Tali:	e gugu e leai ma se tala e fai mai, e iai foi le taimi e oso ai le ma’i, oso pei se tagata pei e ulufia e se agaga leaga.”
And on page 9 in response to questions from the court:
“Fesili:	sa faamatala atu e (complainants name)  ia oe le mea na tupu, lea e mafua ai le faamasinoga lenei?
Tali:	sa tau pagupagu mai lava (complainants name)  ia te au, sa talanoa ae lei matuai auiliili mai ia te au le faamatalaina o le mea na tupu (emphasis is mine).  Ae ina ua faamatala mai e (complainants name) ia te au ma taua le mea na tupu, sa faapena loa ona ou iloaina.  Aua sa iai foi se tasi o le fanau sa ou toe talanoa ma ou fesili iai, lea na mafua ai ona ou malamalama atili ai ma ou faamaoniaina le tala a (complainants name).
Fesili:	o lona uiga na mafai e (complainants name)  na faamatala atu ia oe le aotelega o le mea na tupu ae lei auiliili atu ia tulaga uma o le sa’o lea o lau molimau?
Tali:	ia, na o lo’u fesili atu lava ma tali mai, fesili atu ma tali mai, pau lava lea o le tulaga na ma fesootai ai.”
6.	The evidence of the interviewing Police Officer Constable Sanele was different. The tenor of her evidence in examination in chief was the complainant was able to narrate her version of events without any difficulty. That there was a free flow of information, a process described by defence counsel as “fluid.”  From page 2 of her evidence:
“Fesili:	faamatala mai pe na faafefea ona faatautaia le faamatalaga?
Tali:	o le taimi faatoa taunuu atu ai le mataupu, sa alu atu ai (complainants name), o a’u sa ma faafesagai ile taimi o le faatalanoaga, sa manino lava le tautala a le tamaitai lea.
Fesili:	o ai sa iai ile ofisa ile aso lea?
Tali:	o le taimi lea na taunuu atu ai o le tamaitai leoleo ia Siki, e masani lelei Siki ma le tamaitai lea o loo aafia i lenei mataupu.  E lei faia la e Siki le faamatalaga o a’u lea sa feagai ma le faiga o le faamatalaga.
Fesili:	e te manatua o anafea sa fai ai le faatalanoaga lea?
Tali:	o le aso 21.07.16
Fesili:	faamatala mai ile faamasinoga le taunuu atu o (complainants name)  ma le faatautaia o le faatalanoaga?
Tali:	sa fai le faamatalaga a le tamaitai o (complainants name), sa faamatala le mea na tupu ia te ia ma sa ia faailoa mai foi le alii o To’a o ia sa faatinoa le solitulafono ia te ia.  Ma sa maea le ma faatalatalanoaga sa lelei mea uma.
Fesili:	o ai sa auai ile faatalanoaga?
Tali:	e na’o a’u ma le tamaitai ia (complainants name).
Fesili:	sa faamauina lea faamatalaga?
Tali:	sa’o lelei
Fesili:	e faafefea ona faamauina?
Tali:	o a’u sa fesiligia (complainants name) sa ou taina ile laau.”
7.	After the statement was taken, the complainant signed it:
“Fesili:	e mafai ona faamatala auiliili mai poo a tala a (complainants name) na faamatala atu ia te oe?
Tali:	sa ou fesili iai ile mea na tupu ma sa ia faapea mai o ia sa ile fale.  Ae oo atu loa ma To’a fai atu ia te ia la te o, o lea sa laua o ai loa.
Fesili:	o a ni foliga vaaia na e maitauina ia (complainants name) ile taimi o le faatalanoaga?
Tali:	e normal lava lana tautala, ma sa lelei mea uma.”
8.	The other Police Officer present when the complainant arrived was also called. She knows the complainant and was able to converse with her. But was not present when the statement was taken or purportedly signed as her shift had come to an end. 
9.	It is also clear from the evidence that despite the complainants sister being present in the Police Post, she was not called upon to take part in the interview or assist in the taking of the statement.
10.	I have grave reservations concerning the reliability of the statement. Firstly the modern methodology adopted by the Police in taking statements involves recording both the question and the answer. There is no evidence of that here. 
11.	Secondly the events recorded in the second paragraph of the statement are contrary to the rest of the prosecution case which is that the sexual assault occurred when the defendant on his way home came upon the complainant and her younger relatives on the road.  The Constable also gave the wrong date. The Police complaint was not made until 22 July 2016. 
12.	Thirdly I have grave doubts that the person described by the older sister is capable of giving the sort of account recorded in the statement. It is a very detailed account but no other witness can corroborate these details. I do not believe the complainant would be more willing and able to talk to a stranger about such events than her older sister. 
13.	I am also puzzled by the so called signature on page 2 of the statement.  Which bears no resemblance to the complainants name. Given her sisters evidence that the complainant had a very limited education and was not able to read or write, I can give little weight to such a “signature.”  
14.	As defence counsel pointed out so effectively in cross examination, the police officer acknowledged at the outset the complainants limitations by noting in the statement preamble that the complainant “E le faigaluega ae nofo i le fale ona e maua i le mai o le mafaufau.”  The prudent course would have been to have her sister in the next room assist the Constable in obtaining a coherent and credible account from the complainant. There was nothing preventing that and there is no impropriety in family members assisting those with special needs making themselves understood.
15.	I was also unimpressed with the Constables candour and at times inability to respond promptly or effectively to probing questions. 
16.	All in all, the conflict in the evidence and these disturbing aspects of the statement gave me no reasonable assurance the statement was reliable.  
17.	I accordingly declined the prosecutions application to produce the complainants statement in substitution for oral testimony which she unfortunately was not in a position to give. 

JUSTICE NELSON