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Police v Palanapa [2011] WSSC 144 (16 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TITI PALANAPA aka MATAIO PALANAPA
male of Samatau.
Defendant

Counsels: Ms T Toailoa for prosecution
Defendant unrepresented

Hearing: 16 December 2011
Ruling: 16 December 2011

ORAL RULING OF NELSON J

The defendant is charged that at Samatau between the 01st and 30th of September 2010 he did indecently assault the complainant in this matter. In case one has not been issued there will issue a suppression order prohibiting publication of the details of the complainant including the place of this offending. Although the information does not specify it, it is clear that the charge against the defendant is indecently assaulting a girl under 12 years of age pursuant to section 52 (1) (a) of the Crimes Ordinance 1961. For the purposes of such an offence subsection (2) of section 52 provides that it is no defence that the girl involved may have consented to the sexual assault.

The defendant has stated that he does not dispute the fact that the girl in question was 7 years of age at the relevant time, her date of birth being 21 May 2003. What he does dispute is the substance of the allegation and he says that he did not do anything to the complainant. The evidence in this matter is that the complainant went to a relatives house at Samatau together with other siblings including a classmate name Iakopo Pati. Iakopo goes to school with her at Samatau Primary School and is in her class. The group were at the relatives house from what I can gather to make small boats out of "launiu" or a coconut palm leaf something that young children are fond of doing in this country.

The defendant was at the relatives house doing a "saka" or cooking. The complainant was sent by the defendant to a room inside the relatives house to fetch salt for his dish. The complainant said that he followed her to the room where he undressed her and instructed her to suck his private part while he did the same to her. The defendant denied this occurred. But the two were seen by the young boy Iakopo who said that he saw what they were doing through a window of the room. He said that when he arrived the couple were already undressed. He saw the defendant perform oral sex on the complainant and likewise the complainant on the defendant. He said they were doing this on a 'fala' or a mat spread out on the concrete floor of the room. He was emphatic in cross examination in answer to the defendants questions as to what he saw.

I have no reason to doubt the truthfulness of what the complainant and Iakopo told the court. I am satisfied from their evidence that what happened was as related to the court by the complainant and the young Iakopo. And that the defendant had sent the young girl to the room specifically for that purpose.

The prosecution have also called as a witness a teacher of the complainant who purported to give evidence as to a complaint made to her by the complainant post incident. The exact date on which the complaint was made was unclear as the teachers evidence was that the complainant was absent from school for about a week at the end of September 2010 and only returned to school in October. Apart from that matter her evidence was she noted a change in the girls behaviour when she returned to school. The complainant was no longer attentive or diligent and appeared frequently pensive and remote. On the young girls second day back she decided to question her as to what was wrong. She asked if anything had happened to her. And whether she had been beaten up at home by her mother. She was shocked to receive the response where the complainant made a complaint of sexual misconduct on the part of the defendant.

I have no difficulty with the teachers evidence in relation to the change of behaviour of the girl. But I am concerned at the evidence of so-call sexual complaint. The rules concerning complaint evidence are clear. Given the conclusions already reached it is not necessary to examine them in any great depth. Complaint evidence is not admissible to prove the truth of the act complained of. It is only admissible as evidence of consistency of conduct on the part of a complainant in a sexual matter. And it is only admissible if not elicited by questions of a leading, inducing or intimidating character. As put in one case it has to have the "hallmarks of spontaneity". Furthermore it must be made at the first reasonable opportunity that presents itself. For there is obviously little evidentiary value in a delayed complaint. What is 'the first reasonable opportunity' is a matter to be considered taking into account all circumstances. Including whether a complaint could have reasonably been made earlier. And if so, to whom. A useful discussion of the principles involved can be found in the Court of Appeal decision in R v N [1994] 3 NZLR 641. The teachers evidence in this case in my view offends both requirements of the rule.

Firstly the complaint was the result of an enquiry by a teacher as to whether anything had happened to the complainant. In particular as to whether the complainant had been assaulted. Secondly the first reasonable opportunity to complain was on the evidence that I have heard to the complainants family. The evidence is that post incident the complainant carried on as if nothing had happened and no complaint was made to the any one of her group of friends or her class mate or a member of her family. Furthermore, if the teachers evidence is correct and the complainant was off school for one week and enquiry was only made of her two days after she returned that must mean the complaint was made at least 7-9 days after the incident occurred as the teacher may have been talking about a school week rather than a calendar week. Considering all circumstances the complaint evidence sought to be tendered by the prosecution has to be rejected. But in any event as noted earlier it is not necessary to rely on it in this matter.

After hearing the evidence of the complainant and the eyewitness Iakopo the court is satisfied beyond reasonable doubt that you committed this offence. In other words that you on the day and at the place in question as alleged in the information indecently assaulted the complainant who was at that time under 12 years of age. You are accordingly found guilty of the charge Titi. It is now a question of ascertaining a suitable penalty for your offence. Before I do that I will require a probation report from the probation office.

A maea le tatou mataupu i le aso e tatau ona e oo ile ofisa faanofo vaavaaia e tapena mai sou lipoti ile mataupu lenei. Aua le faatamala ile lipoti lena e fesoasoani tele ia oe mo le mataupu lenei ua e malamalama? (defendant indicated he understood). Ma logo iai le aso lea o le a tolopo iai le mataupu. O lea ua tolopo ile aso 16 o Ianuari i le tausaga fou mo se faaiuga a le faamasinoga. Tuutuuga lea e tatala ai oe i tua e faaauau pea e faatalitali ai le faaiuga o le mataupu lenei, a'o le aso 16 o Ianuari e lau ai le faaiuga o le mataupu.

The defendant will be remanded on the same bail conditions to the 16 January 2012 for Probation report and for sentence.

............................
JUSTICE NELSON