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Police v Mapusaga [2001] WSSC 3 (26 January 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

EFATA MAPUSAGA
male of Maagao, Tulaele and Savaia Lefaga.
Defendant

Counsel: T. Potoi-Vaai and F. Vaai for prosecution
J. Brunt for accused

Hearing: 23 January 2001
Judgment: 26 January 2001

JUDGMENT OF SAPOLU CJ

The accused Efata Mapusaga, a 41 year old male of Maagao and Savaia, Lefaga, has been charged with three counts of indecent assault under section 52(1)(a) of the Crimes Ordinance 1961. Two of those counts relate to the same victim and one relates to a different victim. The count which relates to a different victim has been dismissed as thee was no case to answer in respect of that count as that victim did not appear at the trial. As a consequence, there was no evidence as to the age of that victim but the age of the victim is one of the essential elements of a count preferred under section 52(1)(a) of the Crimes Ordinance 1961. that leaves only the two counts which relate to the same victim.

Each of the two remaining counts charges that at Vaivase-uta between the 1^st and 31^st day of May 2000, the accused did indecently assault the victim who was under the age of 12 years. The two elements of each count which the prosecution must prove beyond reasonable doubt are that:

(a) ҈ < n&##10;& ҈ the vict victim wasm was under the age of 12 years at the material times; and

(b) &##160; < n&##10;& ;҈&160;& the ed indecently assaulted herd her.

In considering the victim’s testimony in this case, the Court has to bear in mind the solemn warthat n be rous to conv convict aict an accn accused solely on the uncorroborated testimony of the victim in a sexual case. There is, however, nothing to prevent the court from convicting the accused solely on the uncorroborated testimony of the victim; if the Court is satisfied of the truth of her testimony. But if the Court so convicts, it must do so bearing in mind the warning I have just referred to. I bear that warning in mind in considering the evidence in this case, including the victim’s own testimony.

I turn now to consider the evidence in relation to each element of the charges. The first element is that the victim must have been under the age of 12 years at the material times. According to the victim’s testimony she is now 7 years old. Her mother also gave evidence that the victim is now 7 years old. This is evidence which corroborates the victim’s testimony about her age. My own observation of the victim in the witness stand is that she is very young, too young to be 12 years of age. She appears very shy and often soft-spoken so that the Court interpreter had to repeat most of her answers so that what she says could be heard by the Court, counsel, and the accused inside the dock. I am satisfied by the victim’s testimony as to her age as corroborated by her mother’s evidence, and from my own observation of the victim’s physical appearance, that the victim is 7 years old and therefore under the age of 12 years. The prosecution has proved the first element of the two counts beyond reasonable doubt. In saying so, I must remind the prosecution that production of the victim’s birth certificate by her mother is the usual method of proving the victim’s age in a sexual case. But the victim in this case appears so young, I am satisfied she is under the age of 12 years.

I turn now to the second element which is that the accused must have indecently assaulted the victim. According to the victim, the accused called her to come into the house where the accused was staying. This was in February last year. She thought it was an errand the accused wanted her to do. When she went inside the house, the accused lay on top of her. He told her not to tell her parents what he was doing or else he would beat her up. In answer to questions from the prosecution, she repeatedly said the bad thing the accused did to her was to lie on her. She also says the accused had his lavalava on and she also had her clothes on. She further says the accused did not touch her. The next day, the victim was beaten up by her mother for she had heard about the accused had done to the victim. The victim did not appear to be very forthcoming with her answers as she was clearly very shy.

According to the testimony of the victim’s four year old brother, he went to the house of the accused for a drink. Then he saw the accused on top of the victim. The accused had his lavalava on while the victim had no clothes on. What they were doing was described by this witness as “mea mea”. Literally, this means sexual intercourse. But as I understand this witness, he was simply describing what appeared to him to be happening as he saw it as a 4 year old from where he was having a drink.

The next relevant evidence is the accused’s cautioned statement and his oral testimony. Constable Aukuso Tofa, the police officer who investigated this case, was called by the prosecution to testify as to the interview he conducted of the accused and to produce the accused’s cautioned statement which consists of two full foolscap pages. It is a detailed statement. According to the police officer it took him about half an hour to interview the accused and typed down his statement which was voluntarily and freely related to him. After the statement was taken, he read it to the accused and then he gave it to the accused to read. He then told the accused to sign his statement and to write down at the end of the statement the words, “I have read my statement and it is correct.” The accused wrote down those words and signed twice on the first page and then twice on the second page of the statement.

As I have said, the cautioned statement is detailed. I need only refer to the relevant parts. The accused there says, the victim came to the house of the pastor of his church where he was staying at Vaivase-uta and asked for plastic bags. This was in the month of May, 2000. He removed the short pants the victim was wearing, laid her down, and rubbed his private part on her private part. After that, he gave plastic bags to the victim and she went home. Later in the afternoon of the same day, the victim returned to the house he was staying in. Again he removed the short pants she was wearing, laid her down, rubbed his part on her private part and between her legs, and kissed her. At the end of May or beginning of June, when gossip and rumours spread amongst members of his church about what he had done to the victim, he went and apologised to the mother of the victim and told her it was correct he did a bad thing to the victim. His apology was accepted and the victim’s mother told him, she would not tell it to anyone else. However, the gossip and rumours continued to spread until the victim’s father knew about it. The accused says, he then went with the pastor of his church to the victim’s father. He lied to the victim’s father and denied the rumours, thinking the matter would not be referred to the police. He also says he did the same to another young girl, but he admitted it to the father of the girl and he was forgiven.

In his oral testimony, in reply to questions from the Court, the accused says that what is in his cautioned statement is what he told the police officer. But it is all wrong and false. He made up this story to the police officer because he wanted to go home and see his wife who was pregnant and was due to give birth in October, the month in which his cautioned statement. However, he did not tell the police officer about his pregnant wife. He also says, the police officer told him if he admitted to the accusation against him the law would save him, and the Court would normally prefer the evidence of young children as opposed to adults. All this was put to Constable Aukuso Tofa, who interviewed and took the accused’s cautioned statement, when he was giving evidence and he denied ever saying such things to the accused.

After considering the accused’s oral testimony, I have decided to reject it as incredible. Given the detailed nature of the cautioned statement, I do not believe that what the accused told the police officer was pure fabrication. It took about half an hour to complete the interview, have the cautioned statement typed, have it read to the accused, and signed by the accused. I do not believe in such a short period of time, when all those things happened, the accused made up a totally false story which in certain respects, is consistent with parts of the oral testimonies of the victim and her brother. I accept that the cautioned statement the accused gave the police contains the truth about his having indecently assaulted the victim. But as the victim in her oral testimony related only one incident of indecent assault, I will accept the accused’s cautioned statement as corroboration of one incident of indecent assault.

The accused also placed some emphasis, in reply to questions from his counsel, on the fact that it was the police officer who told him to sign his name on the cautioned statement, a fact which was admitted by the police officer. I place no weight on this, given the circumstances of the interview and the fact the accused did not object or refuse to sign his name. I would not expect the police officer to let the accused go without signing the statement he had obtained from him. It was only natural, and to be expected, for the police office to tell the accused to sign his statement in order to confirm that the statement is that of the accused. To allow the statement not to be signed, can be a neglect of duty on the part of the police officer. After all the statement was given voluntarily.

It is my function as the Judge of fact to decide what witness or witnesses to believe or disbelieve, and what part or parts of their evidence to accept or reject. I have also seen all the witnesses and their respective demeanours. I have no hesitation in rejecting the accused’s oral testimony that what he told the police officer in detail is false. I accept his confession in his cautioned statement that he did indecently assault the victim. His conflicting stories is also something which undermines his own credibility.

There is also the testimony given by the victim’s mother. She says the accused did not apologise to her. If this is correct, it goes to show that what the accused says in his oral testimony that he did not apologise to the victim’s mother, as stated in his cautioned statement, is correct. However, the victim’s mother, in her evidence in chief, also says she spoke to the accused about the victim and the only thing the accused said to her when he came to her house was that his “tofi” (position) in the Church would be removed. This suggests to my mind that the accused must have done something serious which was likely to result in the removal of his “tofi” (position) in his Church. The only reasonable inference to draw, given the circumstances, is that the reason why the accused’s “tofi” would be removed is because of the indecency he committed upon the victim.

Under cross-examination, the victim’s mother was quite forthcoming in saying that she beat up the victim and even put a knife to her throat before the victim told her what happened. I was particularly observant of this witness as her demeanour in the witness stand made her appear to be favouring the accused and was not telling the truth. She appeared “more cooperative” under cross-examination by counsel for the accused then during examination in chief by counsel for the prosecution. The view I have formed of this witness is that, her evidence is unreliable.

I must also say that the onus on the prosecution is to prove each element of the charge beyond reasonable doubt, and not beyond every shadow of doubt, or a vague or fanciful doubt, or mere suspicion. As long as the Court is satisfied beyond reasonable doubt about the elements of the charge, then the charge is proved.

Coming back to the second element of the remaining two counts of indecent assault, the testimony of the victim that the accused lay on top of her is corroborated by the testimony of her young brother. Both of these evidence, I have scrutinised with care because of the young ages of the witnesses. The accused’s cautioned statement which I accept as the truth of what happened, also corroborates the victim’s testimony. I also accept the testimony of the victim’s brother that the victim had no clothes while the accused was lying on top of her as well as his testimony about what the accused was doing. This is supported by what the accused says in his cautioned statement.

All in all then, I find that the prosecution has proved one of the two remaining counts beyond reasonable doubt. The other count is dismissed as the victim in her testimony related only one incident of indecent assault.

This case is adjourned to 26 February 2001 for a probation report and sentencing.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for informant
Toailoa Law Office for the defendant