Police v Apisala [2015] WSDC 1 (15 June 2015)

DISTRICT COURT OF SAMOA
Police v Apisala [2015] WSDC 1

Case name:	Police v Apisala
Citation:	[2015] WSDC 1
Decision date:	15 June 2015
Parties:	POLICE (prosecution) v SILIVALE APISALA (accused) male of Matatufu, Lotofaga
Hearing date(s):	12-15 May 2015
File number(s):	D2501/14, D2502/14, D2503/14, D2504/14, D2505/14, D2507/14
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata Tuatagaloa
On appeal from:
Order:	- For all of the above reasons I am satisfied beyond reasonable doubt that between 1st May - 30th September 2014 the Defendant indecently assaulted the following Complainants: Levaea Matini (D2505/14); Matalena Tusipepa (D2507/14); Sesilia Magalo (D2501/14); Faanunu Mafoa (D2504/14); Meli Papaletoa (D2502/14); Siuli Vaelaa (D2503/14). - I dismiss the following charges: D2506/14 – indecent assault against Sarai Kuresa. I also do not find that she was assaulted; D2511/14 – insulting words; D2512/14 – insulting words; D2510/14 – insulting words ; D2509/14 – insulting words; D2508/14 – threatening words. - There is no need to deal with the assault charges as they were filed as alternative charges to the indecent assault charges. - I ask for a Probationary Report and Victim Impact Reports before sentencing.
Representation:	Sergeant P Ualesi for Prosecution Ms H Wallwork for Defendant
Catchwords:	indecent assault – insulting words – threatening words
Words and phrases:	breach of peace
Legislation cited:	Crimes Act 2013 s.2 s.60 s.123; Police Offences Ordinance 1961 s.4(g)
Cases cited:	R v Nazif [1987] NZCA 307; [1987] 2 NZLR 122; Anthony Willie v Roger Taro (Unrep. N526(M);19 & 20 November 1985); Marsh v Arscott (1982) 75 Cr. App.R. 211);
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

SILIVALE APISALA male of Matatufu, Lotofaga
Defendant

Counsel:
Sergeant P Ualesi for Prosecution
Ms H Wallwork for Defendant

Hearing: 12^th – 15^th May 2015

Judgment: 15 June 2015

DECISION OF JUDGE TUATAGALOA

Introduction

1. The Defendant, Silivale Apisala (31 years old) faces seven charges of indecent assault under s.60 of the Crimes Act 2013, seven alternative charges of indecent assault under s.123 of the Crimes Act 2013, four charges of insulting words and one charge of threatening words under s.4(g) of the Police Offences Ordinance 1961.
2. The Defendant was the former head chef for the Seabreeze Resort at Aufaga and the seven Complainants or the victims are female employees of the same resort.

Relevant Legal Principles

3. The Defendant is presumed innocent until, and unless, the Prosecution prove all elements of the offence beyond reasonable doubt. If they are unable to cross that high threshold the Defendant must be acquitted. To that end the Prosecution called eleven witnesses.
4. The Defendant elected to give evidence and also called two witnesses.
5. In terms of the elements of the charge, the Prosecution must prove beyond reasonable doubt that the Defendant assaulted the complainants, in a way that was indecent.
6. The term 'assault' is defined in s.2 of the Crimes Act as:
   • '... the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his purpose; and to assault has a corresponding meaning.'
7. 'Indecent' is to be given its usual meaning, i.e., something which is viewed by ordinary, reasonable members of our community to be offensive or unseemly behaviour, with a sexual connotation.
8. On the charges of insulting and threatening words, the Prosecution must prove beyond reasonable doubt that (i) the Defendant said (or uses) the words, (ii) which are insulting or threatening (iii) with intent to provoke the peace or whereby a breach of the peace may be occasioned. Section 4(g) of the Police Offences Ordinance 1961 do not require these offences to take place or happen in or at a public place.

The Evidence

9. The Complainants alleged that between 1^st May – 30^th September 2014, the Defendant indecently assaulted them separately and individually at work at the Seabreeze Resort. Some of the Complainants allege that they are victims of indecent assault and insults or indecent assault and threatens or insults or victims of all three offences.
10. The Complainants evidence of indecent assault was they were either touched on the breast (Faanunu Mafoa, Meli Papaletoa) or on the bum (Meli, Matalena Tusipepa, Sesilia Magalo, Sarai Kuresa) or being kissed (Sarai) or had their lavalava pulled up (Levaea Matini). The Complainants gave evidence as follow:
    • Faanunu Mafoa worked as a waitress at the Resort bar. She said on her second week at work, she was on the night shift and at their fiafia night the Defendant touched her on the breast. She took his hand away and asked him what was wrong with him and, that they are both married.
    • Meli Papaletoa works at housekeeping she said the Defendant came to the laundry to get towels for the kitchen and touched her on the breast.
    • Matalena Tusipepa who works at the bar said the Defendant touched her on the breast while she was writing a receipt at the bar and also on the bum whenever she gets in or out of the car after work at night when the Defendant dropped her and other co-workers home.
    • Sesilia Magalo who works at the bar said the Defendant touched her on the bum when she was writing a receipt at the bar. She said his finger almost went into her vagina.
    • Sarai Kuresa said the Defendant touched her on the breast, on the bum and even kissed her in the cooler room.
    • Levaea Matini said the Defendant pulled her lavalava up exposing her panties while she was standing with three male co-workers looking out to the sea. She said she was so embarrassed and felt like crying.

Insulting/threatening words:

11. The Complainants of insulting words said they were unnecessarily sworn at or that the Defendant used offensive language at them. One of them said she felt threatened. The complainants gave evidence as follow:
    • Meli Papaletoa said that the Defendant asked if he could touch her bum (e mafai ga ou kago i lou muli) after he had touched her breast and again said to her if he could look at her breasts to see if they sag (e mafai ga ou vaai i ou susu pe kaukau);
    • Siuli Vaelaa said the Defendant said to her that he had been wanting for a long time to fuck her (ua leva ga ou fiamea ia oe) and touched her on the breast to which she slapped his hand away ;
    • Faanunu Mafoa said the Defendant said words to the effect you arse, shiteater if a woman knows that she has a big vagina don’t speak or talk too much (ufa, aikae, a faalogo aku le fafige e kele laga mea ga aua lea le kaukala soo) She also said that the Defendant threatened her that if she tells anyone he would beat her up especially her husband (eke pisa loa i se isi ou fasia oe, aemaise lou koalua) after he had touched her on the breast.
12. Sarouna Tagoai who is 18 years old and works at laundry was the first to tell the female owner of the Resort. She told the owner 5 weeks after the Defendant had allegedly asked her for a kiss. The rest of the Complainants were said to have followed and told of what the Defendant had done and/or said to them. They were said to have told when the Defendant was terminated or no longer worked for the Resort.
13. Faulalo Papaletoa and Kiripati Pusila were standing with Levaea looking out to the sea when the Defendant pulled up Levaea’s lavalava. They both said that Levaea was embarrassed of them, the male staff as her panties were exposed to them. They said that Levaea was not laughing but looked liked she wanted to cry and she dropped down as she was embarrassed.
14. Kiripati Pusila testified that Sarai who he is in a de facto relationship only told him of the cooler room incident in February 2015. He did not know of an affair between Sarai and the Defendant at all. He also testified that he had seen the Defendant touched Matalena on the bum about three times in August 2014 when the Defendant took him and Matalena home after the night shift. He said Matalena swore at the Defendant on the third time he touched her on the bum as she was getting out of the car and that from then on Matalena refused to have the Defendant dropped her off and so he walked home with her after their night shifts.

The Defence Evidence:

15. The Defendant denied that he ever touched the Complainants either on the breasts or the bums. He said that it is a norm for the workers to play like they do and say things to each other when they ‘tausua’ but not in any way personal or meant to be insulting. He admitted that he pulled up Levaea’s lavalava because he was being playful and funny ‘o lona fiamalie’ but he never intended it to embarrass her. The Defendant said Levaea laughed and was not embarrassed.
16. The Defendant conceded that he did swear at the staff and especially when they placed wrong orders to the kitchen. Angie Lelinai who gave evidence for the defence said that when she started she was told by Matalena not to mind or be offended when the Defendant swears.
17. All of the complainants said they never reported the Defendant to the owners because they were scared that he might sack them or made reports to the owners that would cost them their jobs. The Defendant gave evidence that he did not have the authority to sack anyone nor has he ever sacked anyone or caused anyone to be sacked by the owners. The Complainants said that it was in the morning of the day after the Defendant was sacked that they then had the courage to tell the owners of what the Defendant did to them.
18. Chris Lua worked for Seabreeze Resort and was terminated together with the Defendant and a female employee named Angie Lelina’i. He said he never saw the Defendant touch any of the Complainants or any other female employee on the breasts or the bum. He said that he was standing with Levaea, Kiripati Pusila and Faulalo Papaletoa when the Defendant pulled up Levaea’s lavalava. He said Levaea was not embarrassed at all but was laughing. He said that Levaea herself always pulls up the lavalava of some of the male employees, especially him and that for six months he had been working at Seabreeze Resort it was every morning that Levaea would pull his lavalava up to see if he was wearing underwear. He said that Levaea always plays like this to the male staff. I find this witness to be exaggerating.
19. Angie Lelinai who gave evidence for the defence said that the Defendant when she worked for Seabreeze Resort tried to kiss her. She also said that she saw the Defendant touch Matalena on the bum but she did not see Matalena being offended by it.

Discussion

20. The crucial issue in this case is whether the Defendant indecently assaulted the Complainants or was it all a fabrication by the complainants.
21. 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.
22. 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. The New Zealand Court of Appeal in R v Nazif [1987] NZCA 307; [1987] 2 NZLR 122, at 125:
    • “There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken into account will include the age, nature and personality of the prosecutrix, her relations with those whom she might be expected to complain, the reasons for delay in complaint, and all other circumstances the Judge regards as relevant.”
23. I accept that even though the Complainants had the opportunity to tell someone what had happened to them, they did not. I find that they were scared of losing their jobs if they tell because the Defendant was most senior employee and quite influential. They cannot be criticised for that.
24. I find the evidence of the Complainants were strikingly similar to each other – the Defendant touched them on the breast or the bum, that he touched them individually when they are alone or when no other person was looking and that they did not tell anyone or even each other. The Defendant from the evidence of the Complainants had touched each of the Complainants once except for the complainant Matalena Tusipepa.
25. I find the similar evidence of the Complainants as suggestive of a pattern of behaviour on the part of the Defendant. There is also the evidence of Faulalo Papaletoa, Kiripati Pusila, Angie Lelinai and Sorouna Tagoai which corroborates the evidence of the Complainants.
26. The Complainants are all employees of the Seabreeze Resort, of lesser positions than that of the Defendant. The female staff tolerated the behaviour of the Defendant may be out of respect that he is most senior out of all of them and is the head chef but that does not mean that they liked it or agreed to it. The Defendant has gotten away with it for so long and seems to be abusing his seniority and position at the Resort with the way he treated the female staff.
27. I find no favour with the suggestion that the Complainants made up or fabricated the allegations because they were told to do so by the owners of the Seabreeze Resort or that there was collusion or collaboration amongst the Complainants or with the owners of the Resort. Speculation is not sufficient Defence must be able to point to evidence which suggests that collusion did occur. I cannot accept that these Complainants would have gone to such extreme measures and exposing themselves to the indignity of a criminal trial.
28. I also find the suggestion by the defence that this is how the workers or employees of the Seabreeze Resort engage in playful antics (tausua) of how they have fun that is not in any way intended to be insulting or otherwise, hard to accept.
29. I am bound to say that I found the Defendants explanations to the complaints by some of the Complainants undignified. I find that he thinks he was being playful and funny and that it was alright to carry on doing it so long as no one complains as arrogant and shows a lack of concern and respect on his part towards the female employees.
30. Sometimes discrepancies in a witnesses’ evidence undermines their credibility to the point where they are found to be unreliable. Other times, the discrepancies are all explicable and do no real harm to the credibility of the witness. I find the latter to be the case here in respect of the Complainant Sesilia Magalo. The Defendant admitted touching her but he said ‘tago eu le puimanava’. I find that he touched her on the bum but implausible that she felt his finger almost going in to her vagina given the amount of clothing she wore on the day.
31. I find the evidence of the complainant Sarai Kuresa not forthcoming and very vague. It was through persistent questioning by Defence Counsel that she admitted an affair with the Defendant. She said that she did not want the kiss that took place sometimes in September 2014 because she had started seeing a male co-worker Kiripati Pusila. The Defendant said their affair did not end until he was terminated from Seabreeze. The Defendant said he asked her about Kiripati and she denied that she was seeing him. The Defendant said they usually go in the cooler room and kiss. I find that the kiss was not indecent but was consensual between Sarai and the Defendant.
32. I accept that the other Complainants were indecently assaulted in the manner they described.

Insulting/Threatening Words:

33. Counsel for the Defendant, Ms Hellene Wallwork submitted that the charges of insulting and threatening words are to be dismissed upon the following grounds (as I understand it):
    • The words complaint of may be morally wrong or culturally inappropriate but are not threatening or insulting. That the words must be put in the legal context before they are to be found insulting or threatening.
    • There was no intent to breach the peace or there was no breach of the peace in the context or circumstances they were uttered.
34. I thank Counsel for the authorities she provided to assist the court given that there are no local authorities on the legal issues raised concerning these offences.
35. The legislation does not define ‘insulting or threatening words’. The Collins English Dictionary (1997) defines “Insult” to treat or speak to rudely or an offensive remark or action and ‘threat’ to mean a declaration of an intention to inflict harm or a strong possibility of something dangerous or unpleasant happening or a person or thing that is regarded as dangerous and likely to inflict harm. To put it simply ‘insulting’ means rude or offensive and ‘threatening’ means aggressive, frightening or intimidating.
36. To prove ‘intent’ there must be something beyond the mere use of the words complained of. Intention is a state of mind that can only be inferred from facts which are proved.
37. Ms Wallwork provided some authorities from Solomons Islands whose section 178(n) of their Penal Code is almost identical to section 4(g) of the Police Offences Ordinance 1961. In the Solomons case of Anthony Willie v Roger Taro (Unrep. N526(M);19 & 20 November 1985) Amet J, sitting alone held:
    • ‘Mere use and proof of use of threatening, abusive, insulting words, behaviour or gestures is not sufficient, it must be objectively by proper evidence proven that one intended to provoke a breach of peace or whereby a breach of peace was likely to take place. This evidence has to be objective, that is, to others looking on, that the person speaking those words or making gestures or behaviour firstly had the immediate capacity to be able to do an overt act to effect his intention or such as was likely to lead to a breach of the peace;”
38. The term ‘breach of the peace’ is not defined by the Police Offences Ordinance 1961. Justice Miles in the Siwi Kurondo’s case [Unrep. N258; 26 September 1980] referred to in Carter’s Criminal Law of Queensland (5^th ed) at 204 to the meaning of the term ‘breach of the peace’ said:
    • “...a breach of the peace arise where there is an actual assault, or where a public alarm and excitement are caused by a wrongful act. Mere annoyance and disturbance or insult to a person or abusive language or great and fury without personal violence, are not generally sufficient.”
39. Section 5 of the English Public Order Act 1936 (discussed in Marsh v Arscott (1982) 75 Cr. App.R. 211) is similar to section 4(g) of the Samoa Police Offences Ordinance 1961 except that section 5 says:
    • “Any person who in any public place....(a) uses threatening, abusive or insulting words or behaviour.....with intent to provoke a breach of the peace or whereby a breach of the peace is like to be occasioned shall be guilty of an offence..” (my emphasis)

While as section 4(g) does not have to happen in a public place:

• “A person commits an offence and is liable ......who... (g) uses any threatening, abusive, insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.”

40. The English case of Marsh v Arscott (1982) 75 Cr. App.R. 211 said of
    section 5:
    • “This section is describing breaches of the peace which are brought about, or are likely to be brought about, by other words or behaviour occurring earlier, although usually not very long before. The phrase ‘whereby a breach of the peace is likely to be occasioned’ indicates that Parliament was concerned with cause and effect, i.e., with conduct which is likely to bring about a breach of the peace and not with conduct which is itself a breach of the peace and no more.”
41. The Complainants did not retaliate when the Defendant allegedly insulted them nor did they tell anyone. The evidence as to the offences of insulting words are alleged to have been said or uttered by the Defendant either before or after he had touched the Complainants either on the breast or the bum.
42. I do not find that the intention of the Defendant when he allegedly said what he said to the Complainants was to breach any peace but more that it confirmed the contextual narrative of the Complainants evidence of the Defendant touching them in an indecent manner.
43. As to the charge of threatening words I do not believe that the Defendant threatened to beat the complainant Faanunu Mafoa’s husband. I find it far- fetched as to why the Defendant would threaten to beat up her husband if he did not know who he was.

Conclusions

44. For all of the above reasons I am satisfied beyond reasonable doubt that between 1^st May - 30^th September 2014 the Defendant indecently assaulted the following Complainants:
    • Levaea Matini by pulling up her lavalava and exposing her panties (D2505/14);
    • Matalena Tusipepa by touching her on the bum not once but several times (D2507/14);
    • Sesilia Magalo by touching her on the bum (D2501/14);
    • Faanunu Mafoa by touching her on the breast (D2504/14);
    • Meli Papaletoa by touching her on the breast(D2502/14);
    • Siuli Vaelaa by touching her on the breast (2503/14).
45. I dismiss the following charges:
    • D2506/14 – indecent assault against Sarai Kuresa. I also do not find that she was assaulted;
    • D2511/14 – insulting words;
    • D2512/14 – insulting words;
    • D2510/14 – insulting words ;
    • D2509/14 – insulting words
    • D2508/14 – threatening words.
46. There is no need to deal with the assault charges as they were filed as alternative charges to the indecent assault charges.
47. I ask for a Probationary Report and Victim Impact Reports before sentencing.
    

JUDGE MATA KELI TUATAGALOA