Judge to decide if victim’s past sex behavior can be used in assault trial

ausage@samoanews.com

Acting Associate Justice Elvis P. Patea has disallowed the government’s last minute move to include on their list of witnesses a local medical expert in the jury trial of a local businessman, who is being charged for allegedly sexually assaulting a 17-year-old girl. The trial is scheduled for Monday.

Prosecuting the case is Assistant Attorney General Woodrow Pengelly, while Joshua Rovelli is representing Chand Mukesh, who is out on a $20,000 surety bond.

Mukesh’s case was called back on the High Court calendar yesterday for a Status Hearing, after the court received two different motions from both parties pertaining to this case.

The government filed 2 motions re: To amend the initial information they filed in Court and to disallow the defense from introducing new information in regards to the victim’s past sexual behavior with other men.

On the defense side, they filed two motions — one to eliminate a medical expert from the government’s witness list, and two, responding to the government’s motion to not allow them to use the victim’s past sexual behavior during the trial.

Ass’t AG Pengelly informed the Court that after speaking with the victim’s father last week, it would appear that the defense’s side is going to use new information they just gathered pertaining to the victim’s past sexual behavior with other men to be a part of their argument during the trial.

He argued that this type of information will mislead the jury and also under the rules of these types of Court proceedings, such information should not be used during a trial, because it’s irrelevant to the case.

Pengelly also asked the Court to disallow the defense’s move to call a medical expert to testify on sexual behavior issues, because that testimony will mislead the jury.

As for the defense, they asked that the new information they received regarding the victim’s past sexual behavior with other men be allowed as it shows the victim lied to the police about what exactly happened on the night of the alleged incident.

Defense claimed that the victim was at the defendant’s house, and she wanted to meet her boyfriend in the middle of the night, but she was scolded and stopped by the defendant.

On their motion to eliminate a medical expert from the government’s witness list, the defense argued that they just found out this week that the government was going to call a medical expert as one of their witnesses, and they feel that this is too last minute — an ambush — as they prepare for trial.

Acting Associate Justice Patea granted the defense’s motion to disallow the government’s move to call a medical expert as one of their witnesses during the trial next week, but has taken under advisement the motion to disallow the defense side from using info regarding to the victim’s past sexual behavior with other men, as part of their argument during the trial.

For the government’s motion to amend the information they have already filed in Court pertaining to this case, Patea granted it under special instructions — that the government should ask for permission from the Court before they file any more amendments in the future.

The Acting Associate Justice noted that the original information the government filed in court, when the defendant’s case was arraigned in the High Court, was the information the defendant’s not guilty plea was based on.

For the jury trial next Monday, Patea instructed both attorneys to file their witness lists and all the exhibits for the case by the close of business, today, and the Court is also expecting to issue its decision by close of business today on the matter that has been taken under advisement.

Mukesh, a 53-year-old businessman, is charged with one count-each of sodomy, a class B felony, punishable by not less than 5 years and not to exceed 15 years imprisonment; deviate sexual assault, a class C felony, punishable by imprisonment of not to exceed 7 years and/or a fine not exceeding $5,000; and first degree sexual abuse a class D felony, punishable by imprisonment of not to exceed 5 years and/or a fine of not exceeding $5,000.

According to court documents, around 10a.m. on Apr. 9, 2017, a police lieutenant walked into the Tafuna police station with a man who wanted to file a police report regarding his daughter, who he alleged was sexually assaulted by the defendant. Forty-five minutes later, the victim and her mother showed up at the police station.

Court documents say the defendant’s daughter is a friend of the 17-year-old female victim and the alleged sexual assault occurred in the early morning hours of Apr. 6, when the victim was at her friend’s house.

The affidavit supporting the arrest warrant details what the victim told police of what the defendant allegedly did to her, including touching her in a sexual manner.

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