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Police v Seigafo [2004] WSSC 37 (7 December 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

TAITUUU LAULU SEIGAFO,
male of Moata'a and Vaivase-tai
Defendant

Counsel: Ms J Stowers and Mr K Koria for the prosecution
Mr S Leung Wai for the defendant

Hearing: 7 December 2004
Sentencing: 7 December 2004

ORAL RULING OF JUSTICE VAAI

Defendant is charged that on between 30^th September and 31^st October 2003, he had sexual intercourse with Paneta Keli, a girl over the age of 12 and under the age of 16 years, not being his wife.

Now it is not disputed that the accused had sexual intercourse with the girl. It is not disputed that the girl is not his wife and the girl had admitted to the court that she did consent to sexual intercourse. It is also not disputed that the accused is under 21 years of age.

The evidence regarding this case is straight forward. On the evening of the 7^th October, you and victim, your brother and another girl Rosita left Matautu by taxi to go to Vaivase-tai where your home is. Rosita was the girl friend of your brother. She had arranged with the victim to come that day for a bus ride, and that is how you and the victim came to meet that day.

I have no difficulty to adduce from the evidence that when Rosita and the victim came to your house at Vaivase that evening they had no intention of leaving the house, they wanted to spend the night with you and your brother. During the course of the evening, you and the victim went to your bedroom. The victim willingly went into your bedroom. Before you left for your bedroom, you had a discussion or conversation with the victim. I accept from the evidence that you had shown your concern about her being away from her parents and that her parents will probably be worried as to her whereabouts. It was then that you asked the victim as to her age and she told you that she was 16. When the victim gave evidence under examination in chief she stated that she told you that she was 15. Under cross examination she admitted that she told you that she was 16. I accept she told you in response to your inquiry that she was 16.

Counsel for the prosecution said that she told the court she was 16 because the victim was intimidated by defence counsel. Aggressive cross examination is not intimidation. I disregard the allegation by the prosecution that the victim, was intimidated in any way. It is a pleasure to have counsel in court who can cross examine. In any event the main issue for me to decide is whether under subsection 4 of section 53, you had reasonable course to believe and that in fact you did believe that the girl was over the age of 16. You asked the girl on the evening in question as to her age and she said she was 16. You also told the police investigating officer when he was taking the statement from you on the 12^th October, and you told him that you asked the girl as to her age and she said she was 16. He told the court he forgot to put it down. But the investigating officer who took your statement did not bother to put down your response when you said you asked her for her age and she said she was 16. But after he had taken the statement from you he added another clause to your statement which stated - I admitted having sexual intercourse with this girl Paneta and I confirm that she is 15 years of age. That last clause, I accept from the evidence of the investigation officer is not your statement but a statement that was made up by him. He admitted that he told you the girl was 15 years of age.

I have observed the victim Paneta and I have also observed her cousin Rosita in the witness box. Rosita is 16 years of age and Rosita and the victim are about the same size. I am satisfied from the evidence that you had reasonable course to believe and you did believe the girl was over 16 years of age. As a result of my finding I find that the charge against you has not been proved beyond reasonable doubt.

The charge is accordingly dismissed. I am of the view that this is a proper case for costs to be awarded against the prosecution so I will call memorandum from counsels to be filed within 7 days.

JUSTICE VAAI