Police v Hill [2013] WSDC 3 (15 November 2013)

DISTRICT COURT OF SAMOA

Police v Hill [2013] WSDC 3

Case name: Police v Hill

Citation: [2013] WSDC 3

Decision date: 15 November 2013

Parties: POLICE (Informant) and SEVE ROBERT TONY HILL male of Vaisigano, Apia

Hearing date(s): 6 November 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUDGE MATA KELI TUATAGALOA

On appeal from:

Order:

Representation:
Senior Sergeant Kenneth Komiti for Informant
Mr Patrick Fepulea’i for Defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss.54, 78

Cases cited:
Police v Gese Kuki (1994)
Moeva v Attorney General [2000] WSSC 12

Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Informant

AND

SEVE ROBERT TONY HILL male of Vaisigano, Apia

Defendant

Counsel: Senior Sergeant Kenneth Komiti for Informant

Mr Patrick Fepulea’i for Defendant

Hearing: 6 November 2013

Decision: 15 November 2013

Charges: Indecent Assault and Assault

DECISION OF DCJ TUATAGALOA

Introduction

1. This was a trial on charges of assault and indecent assault before me as a judge sitting alone I was therefore, called upon to perform the functions of both judge and assessors (or judge and jury). I have reminded myself of the presumption of innocence (which is in the accused’s favour), the onus of proof (which is on the prosecution), and the standard of proof (which is beyond reasonable doubt).

The Offence:

2. The accused who was the Commissioner of the Fire and Emergency Services Authority at the time of the alleged offence is charged with indecent assault (section 54 of the Crimes Ordinance 1961) and assault (section 78 of the Crimes Ordinance). The alleged assault is touching and squeezing the complainant’s right breast. The complainant, Sefulu Siaosi who is also the victim is, over the age of 16 years and an employee of the Fire Services.

The Complainant’s Allegation

3. It is alleged that the accused on 6 November 2007 while driving from Tuanaimato to the main office in Apia touched and squeezed the complainant’s right breast.

The Evidence:

4. The accused confirms the victim’s evidence that on 6 November 2007 they together with other male employees went out to BOC Gas at Vaitele for a photo shoot. They left the main office for the photo shoot at 7.52am. The complainant and the accused went in the accused car known as ‘Fire1’ while the others who were all male employees went in the fire truck. After the photo shoot the complainant and the accused left BOC Gas at 8.17am to check up on their office at Tuanaimato or Faleata. They detoured and made a stop at a mechanical shop at Vaitele owned by someone named Steve before they went to the office at Tuanaimato. They left Tuanaimato or the Faleata office at 8.44am and took the in-roads at the Tuanaimato sporting complex behind the Fire Offices and Aquatic Centre past the Golf Course to go back to the main office in Apia. They arrived at the main office at 8.59am. These times are all recorded in the Occurrence Book (Exhibit P2) which records the movements of the office vehicles when they leave and arrive back at the main office.
5. The accused however, vehemently denied touching and squeezing the complainant’s right breast on their way back to the main office from Tuanaimato. The accused was asked by Senior Sergeant Komiti as to why he took the back roads or the ‘in roads’ at Tuanaimato instead of the main road when they left the office at Tuanaimato to go back to the main office in Apia and the accused said they always use those roads to go back to the main office. Senior Sergeant Komiti also asked him whether the reason why he used the back roads or the in-roads was because not many people use it and it provides a great opportunity for him to do what he wanted to do to the complainant by touching and squeezing her right breast. The accused maintained his response that that was the road they always use to go back to the main office and he never touched the complainant on the right breast.
6. The accused also denied that he said any of the things that the complainant said in evidence he allegedly said to her. He gave evidence that he never said the following to the complainant when they saw a pregnant woman on the side of the road at the lights at Vaimoso four corners on their way to Vaitele for the photo shoot:

“You know you can still have sex even if you are pregnant”

7. The accused also denied saying to the complainant on their way from Tuanaimato to the main office in Apia the following:

“You know we can have a relationship without anyone knowing”, and

“I can eat your pussy”

8. The accused evidence is that nothing happened and that it is all a fabrication by the complainant or victim.
9. The Police Prosecution called three witnesses. The victim, Sefulu Siaosi, the current Commissioner of Fire and Emergency Services, Faafouina Mupo who at the time of the alleged incident in 2007 was Assistant Commissioner and Sergeant Viiga Sio the Investigation Officer.
10. The victim gave evidence that she was shocked when the accused said and did what he did because in her mind she did not think that someone of his position should say things like that and do what he did to a female officer. She gave evidence that she pushed the accused hand off her and looked outside the window as she was too shocked.
11. The victim was cross-examined at length as to why she did not file her complaint with the Police in the last 5 years instead of this year 2013. She told the court that the reasons were that her mother is related to the accused wife through Seumanutafa in Apia and the accused never made any more advances towards her until December 2012. She said that the Fire Services officers were allocated to affected areas after Cyclone Evan and she was allocated to the Aleisa area and the accused picked her up and they went to Aleisa. On their way back from Aleisa the accused started saying things to her and asked her what she was doing later on the day and that he will pick her up to go with him to his house for a drink. She said that he asked her what alcohol she drinks and to call him to pick her up. She said she never called him and that she thinks that her turning down his advances made him single her out in the office and embarrass her in front of everyone at work. She said that it was the culmination of these later events that prompted her to write to the accused on 1 May 2013 raising the issues of sexual harassment and victimization by him of her which lead to her filing a complaint with the Police. This lead to the charges before the Court concerning the events that happened in 2007.
12. Faafouina Mupo gave evidence that the complainant on 6 November 2007 came and saw him at the office at around 12noon and told him that on their way back from their ‘training’ at Vaitele the accused touched and squeezed her right breast and asked her if they could have a relationship. He said that the complainant looked troubled when she came to see him. Faafouina told the complainant to go and think about what she wants to do especially in light of the accused wife and her mother being related and then let him know. The next day at work Faafouina went to the complainant and asked her if she had come to a decision and the complainant told him that she had decided not to pursue the matter. Defense Counsel, Mr Fepulea’i asked the witness about his knowledge of where the complainant and the accused with the others of the office had been the morning of 6 November 2007 and the witness answered that he thought that they were at a training. Mr Fepulea’i questioning of this witness seemed to imply that this witness was behind the filing of the charges now before the court and the reasons were politically motivated.
13. Sergeant Viiga Sio who is the Investigation Officer told the court that the complainant filed the complaint on 17 May 2013 and they carried out their investigation and interviewed Faafouina Mupo and they also went to the accused house on 27 May 2013 and informed him of a complaint against him. The accused came to the Police Station and did not want to make a statement.

Evidence of Recent Complaint

14. A statement made by way of complaint by the alleged victim of a sexual offence prior to testimony is admissible and may be used in evaluating the veracity of the complainant’s claim that she was assaulted in the manner charged.
15. The complaint ought to have been made at the first reasonable opportunity, which depends on a variety of reasons and circumstances. The question of what is reasonable is dependent on the surrounding circumstances including the state of mind of the complainant.
16. In this case, the evidence of the complainant that she told Assistant Commissioner Faafouina Mupo her supervisor on the same day of what the accused did amounts to what the law calls ‘recent complaint’.
17. This is not evidence of the truth of what was said; it is not evidence tending to prove what actually had occurred; such evidence goes to show consistency on the complainant’s part between what occurred on the day in question and the story told by her in the witness box. This evidence might be used by me to rebut any suggestion that the victim had made up her story.
18. The accused when asked if he knows of any reason or reasons why the complainant would make such allegations if he is saying that he never touched her on the right breast seemed to imply that it was total fabrication by the complainant. He also seemed to suggest that the complaint was politically motivated so he will not be reappointed back to the position of Commissioner of the Fire Services. Mr Fepuleai for the accused with his line of questioning of the complainant as to why she had waited 5-6 years before filing a complaint suggested that the victim fabricated her complaint.
19. The absence of a complaint with the police in 2007 – 2012 does not affect the evidence of the complainant. There are many and varied reasons why victims of sexual offences do not come forward as soon as possible. What the court must consider is whether it actually happened.

Rule of practice re uncorroborated evidence – the warning.

20. I am required by a rule of practice here in Samoa to give myself a warning that it is unsafe to convict the accused on the uncorroborated evidence of the complainant (see the decision of Sapolu CJ in Police v Gese Kuki (1994) Supreme Court of Western Samoa Decision at p 141).
21. However, there is really nothing to prevent the Court from convicting the accused solely on the uncorroborated testimony of a complainant if satisfied of the truthfulness of her testimony. But if the Court so convicts it must do so bearing in mind the danger of convicting solely on uncorroborated testimony of the complainant.

Meaning of Corroboration.

22. It is some evidence coming from an independent source, some source other than the complainant herself. It is, in short, evidence which renders the complainant’s evidence more probable. Moreover, for the evidence to be corroborative, it must be such as to show not only that the crime under consideration was committed, but also that the accused committed it.
23. Before evidence can be treated as corroborative, I must first be satisfied beyond reasonable doubt that it is true, and, secondly, I must be satisfied beyond reasonable doubt that the proper inference from it is that it tends to confirm the guilt of the accused.
24. The evidence which is capable of corroborating the complainant’s story are:
    • (i) The evidence of Faafouina Mupo whom the complainant told on the same day of the alleged incident. Faafouina Mupo told the court that the complainant came to his office at around 12 noon and told him that the accused touched her on the right breast on their way back from Tuanaimato that morning. Whether the complainant told Faafouina at 12 noon or 4-5pm on the same day does not change the fact that she told this witness who was her supervisor on the same day. She also told him that the accused asked her for them to have a relationship.
    • (ii) The entries made by the complainant in her diary on 6 November 2007 (Exhibit P1) the following:

‘- working on database

When with Com Hill at BOC at Vaitele for photo shoot of our uniform supplied by BOC. After photo shoot went with Tony to Steve’s workshop and to Tuanaimato station. As we make our way to Tuanaimato he asked me if we could make our own relationship between us not to tell anyone. I told him I will think about it, he also touch my upper body which I remove his hand.’

25. The Chief Justice in Moeva v Attorney General [2000] WSSC 12 on corroboration made the following observation:

“I have had serious reservations about the validity of the corroboration warning for a very long time because it implies that victims of sexual cases who are usually females have an inclination to concoct or fabricate sexual allegations. However, there is no solid evidence, at least in Samoa, to support such a rationale for the corroboration warning.”

Indecent Assault – The Elements

26. I now turn to a consideration of the elements of the charge here. The charge was, as I have indicated, one of indecent assault with the charge of assault filed as an alternative. There are four (4) things that the prosecution must prove to the standard of beyond reasonable doubt.
27. Firstly, that there was an assault. An assault is the direct and intentional touching by the accused of the body of another person (the victim) without lawful excuse, so it’s an intentional application of force.
28. Secondly, an assault is indecent if accompanied by circumstances of indecency judged according to the standards of ordinary reasonable members of the community. That is to say, it must be a hostile touching in a sexual sense [the indecency].
29. Thirdly, the accused knew the touching was indecent in that sense.
30. Fourthly, the victim did not consent to such touching.

Discussion:

31. The defense relied on claimed inaccuracies or inconsistencies in the complainant’s evidence as supportive of its case. It is convenient to deal with those specific issues raised and relied upon by the defense.

Entry in diary: (Exhibit P1)

32. Counsel for the accused, Mr Fepulea’i placed emphasis on the entry the complainant made in her diary on 6 November 2007 where she wrote that the accused said to her to have a relationship on the way ‘to’ Tuanaimato but instead her evidence in court was the accused said this to her on their way ‘from’ Tuanaimato to the main office.
33. Whether the accused said those things to the complainant ‘to’ or ‘from’ Tuanaimato does not have any impact on the substance of the offence.

Complaint to Faafouina Mupo:

34. The complainant said in court that she went and told the then Assistant Commissioner Faafouina Mupo at between 4 -5pm of the same day of what happened and what the accused said to her that they can have a relationship without anyone knowing. Faafouina gave evidence that the complainant came to his office at around 12noon of the same day and told him what happened.
35. The difference in times the complainant told this witness is not significant, what is most significant is that the complainant told Faafouina Mupo of what happened on the same day.

Complaint to Police:

36. Mr Fepulea’i extensively questioned the complainant on why she did not file her complaint with the police when it happened or in the last 5 years instead of 2013 suggesting fabrication on the part of the complainant.
37. The charge of indecent assault is not subject to time limitation and while it is undesirable that such charges be brought well after the event there is no statutory prohibition against bringing this charge almost 6 years after the alleged event.
38. The real question is whether the accused touched and squeezed the complainant on her right breast.
39. The essence of the case and the decision will come down to the complainant and the accused and who the court believes. Mr Fepulea’i for the accused is correct when he said in his submissions that what this case comes down to is credibility of who the court believes.
40. I do not think there is any doubt in this case that the elements of indecency, that the accused knowing that touching and squeezing the complainant’s right breast was sexual. If there was touching of the complainant’s right breast then there is no doubt in my mind that, that is indecent. There is also no doubt in my mind that the accused would have known that such actions were indecent in that sense. There is also no doubt that the complainant did not consent to such touching.
41. The court accepts the substance of the complainant’s version and regards her as a reliable and credible witness.

Conclusion:

42. I am satisfied that the prosecution has proven beyond reasonable doubt each of the elements of the crime of indecent assault.
43. For these reasons I found the accused guilty of the charge of indecent assault.
44. I dismiss the charge of assault as it was all part of the act of indecent assault to which I have found the accused guilty.
    

...........................................................................

(JUDGE MATA KELI TUATAGALOA)

JUDGE’S BRIEF OF DECISION

The charges before the court took place in 2007 and the complaint was lodged with the police in May 2013, some 5 years later.

The evidence of the complainant and that of the accused of what allegedly happened are poles apart. The complainant said that the accused touched and squeezed her on the right breast and the accused said that he never touched and/or squeezed the complainant’s right breast.

The essence of this case and decision came down to who the court believe. Mr Fepulea’i for the accused is correct when he said in his submissions that what this case comes down to is credibility of who the court believes.

I do not think there is any doubt in this case that the elements of indecency, that the accused knowing that touching and squeezing the complainant’s right breast was sexual. If there was touching of the complainant’s right breast then there is no doubt in my mind that, that is indecent. There is also no doubt in my mind that the accused would have known that such actions were indecent in that sense. There is also no doubt that the complainant did not consent to such touching.

The court accepts the substance of the complainant’s version and regards her as a reliable and credible witness.

I am satisfied that the prosecution has proven beyond reasonable each of the elements of the crime of indecent assault. For these reasons I found the accused guilty of the charge of indecent assault.

I dismiss the charge of assault as it was all part of the act of indecent assault to which I have found the accused guilty.

The accused is remanded in custody to Friday, 22 November 2013 at 12.30pm for sentencing.

The court orders a presentence report.

The court is adjourned.