Police v Leupolu [2015] WSDC 4 (29 May 2015)

DISTRICT COURT OF SAMOA
Police v Leupolu [2015] WSDC 4

Case name:	Police v Leupolu
Citation:	[2015] WSDC 4
Decision date:	29 May 2015
Parties:	POLICE v TUPUOLA TERRY TEVITA LEUPOLU male of Vaivase tai
Hearing date(s):	25th & 26th March 2015
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	District Court Judge Vaai
On appeal from:
Order:	I find the defendant guilty of all five charges against him
Representation:	Sergeant K. Komiti for informant
	P. A. Fepulea’i for defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TUPUOLA TERRY TEVITA
LEUPOLU male of Vaivase-tai
Defendant

Counsels:
Sergeant K. Komiti for informant
P. A. Fepulea’i for defendant

Hearing: 25^th & 26^th March 2015
Submissions: 1^st April 2015
Decision: 29^th May 2015

DECISION OF THE COURT

Background

1. The defendant is 43 years of age and resides in Vaivase-tai. He is the editor of the government newspaper Savali and has held that position since 2005. The complainant is Maria Livigisitone. She is from the village of Saleapaga and is 20 years old. She is a second year journalism student at the National University of Samoa. At the time relevant to the charges in these proceedings, she was attached for work experience to the Savali newspaper for four weeks in November/December 2014. During the time of her attachment she accompanied the defendant on several occasions to take photographs for news items to be published in the Savali newspaper. The offending is alleged to have occurred on the first two occasions.
2. The first occasion was on the 16^th of December 2014 where the complainant accompanied the defendant to the Green Power solar project at Faleolo. The second occasion was two days later on the 18^th of December 2014 when they went to cover Joseph Parker’s saofai at Aufaga. The third incident which bears little relevance to the issues in these proceedings was on the 19^th of December 2014 when they went to interview Ututa’aloga Charlie Ulia at Aleisa.

Charges

3. There are five charges against the defendant. Two arise from the first trip to Faleolo on the 16^th of December 2014 where the defendant is firstly charged under S.60 Crimes Act 2013 with indecently assaulting the complainant at Aleisa. He is also charged in the alternative with assaulting her at Aleisa the same day under S.123 Crimes Act 2013.
4. The defendant faces a further three charges from the second trip to Aufaga on the 18^th of December 2014. He faces another charge of indecently assaulting the complainant at Lotofaga, and is again charged in the alternative with assaulting her the same day. The fifth charge of insulting words which is brought under S.4 (g) Police Offences Ordinance 1961 also stems from the second trip where the defendant is alleged to have said, “se kefe ia aga ou iloa e le aumaia oe, aga ou iloa foi ou ke sau gao a’u.”

Relevant Facts

The Faleolo Trip

5. It is not disputed that on the 16^th of December the complainant went with the defendant to cover the Green Power project. They drove to and from Faleolo through Aleisa. Both were seated in the front seat of the Office pickup truck with the defendant as driver on the left, and the complainant as passenger on the right. The complainant was wearing a puletasi at the time. The complainant said that on their way to Faleolo the defendant tried to smooth talk her into having sex with him. On the way back, the complainant said the defendant rubbed her left leg and his hand continued moving along her inner thigh almost touching her private part. She said he did this twice. The first time she pushed his hand away before it reached her private part. The second time he did it, his hand reached her panty but she again pushed it away. She said she felt worried and scared at the time. She did not find any of the defendant’s antics funny.
6. According to the defendant, he talked about the job and he was only making jokes to which they both laughed. He admitted playfully poking her on her leg a couple of times on their way back from Faleolo but denied rubbing her thigh. He admitted making casual conversation about the complainant looking good wearing a wrap around or suluaoao but denied making suggestions of a sexual nature.
7. Once back at the office, the complainant said she relayed to senior journalist Mamea Ulafala and some of her co workers at the Savali what the defendant did to her. She also said she told Mamea she did not want to go alone with the defendant again because of the things he did to her on the trip from Faleolo.

The Aufaga trip

8. On the morning of Thursday 18^th December before the complainant and the defendant left for Aufaga to cover Joseph Parker’s saofai, Mamea recalled the complainant telling him that she did not want to go alone with the defendant again. He in turn advised her to be alert.
9. Under cross examination, the complainant said the reason she went to Aufaga with the defendant was because he instructed her to, even in spite of what she said happened to her two days earlier. She also said she asked her friend Measina (who was also on attachment to the Savali newspaper) to come with her to Aufaga that morning. Measina denied this.
10. While making their way to Aufaga the defendant said he stopped the truck near the roadside at Lotofaga-uta where he got out to have a smoke. He also called the Office to check the time of the Prime Minister’s departure from Apia to attend the saofai.
11. According to the complainant, the defendant on their way to Aufaga again tried to talk her into having sex with him. When they reached a spot at Lotofaga uta, the defendant stopped the truck on the side of the road, turned the engine off, opened his door and touched the zipper of her puletasi top. She asked him soia (don’t). He then touched her thigh and she pushed his hand away. He touched her thigh again trying to pry her puletasi lavalava out of the way. This time he reached her panty and nearly touched her private part when she again pushed his hand away. It was at this point that the defendant having realised his advances were rejected slammed the truck door shut and in frustration said “se kefe ia, aga ou iloa lava ou ke le sau ma aumai oe” or words to the effect “oh shit, if I had known I would not have brought you with me”. When prompted about her feelings then towards the defendant, she responded she was disgusted with his behaviour.
12. The defendant strongly denied what the complainant said he did or said to her at Lotofaga on the 18^th of December. He also denied under cross examination taking advantage of the complainant in the circumstances. He said he did nothing wrong. He claimed that the complainant made up what she said about him but did not give a reason or reasons why the complainant did so.
13. Later, at Aufaga where the defendant (who was becoming more and more agitated at being told the saofai which was scheduled for 3.00pm had been delayed to 5.00pm) left the complainant behind to take photographs of the saofai and returned to Apia alone. The complainant took photographs as instructed, and hitched a ride to Apia that evening with two journalists from the Samoa Today newspaper who were also at the saofai.
14. The following day the complainant again accompanied the defendant to Aleisa to do an interview. After, they returned and the defendant dropped the complainant off at the office around mid-day. The complainant confided in another journalist at the Office about what the defendant did to her the previous day. The person she confided in contacted the Samoa Victim Support Group (SVSG) to which the complainant was referred later that day. The complainant said that when the defendant found out, he phoned her on a Saturday asking her about what she had done.
15. On the 31^st of December 2014 an ifoga or traditional apology was presented to the complainant’s family at Saleapaga by the defendant’s relatives. The defendant was not present when the ifoga was presented but the complainant was. Two fine mats (one of which was to seek forgiveness for what the defendant had supposedly done) and cash of about $800.00 were presented and accepted by the complainant’s family.

Law

16. For the prosecution to establish the charge of assault they must prove the defendant intentionally applied or attempted to apply force to another person.
17. For a charge of indecent assault to be established, the prosecution must prove that:
    • (a) There was an assault;
    • (b) The assault was indecent;
    • (c) The accused knew the assault was indecent; and
    • (d) The complainant did not consent;

Corroboration

18. The only direct evidence in relation to all five charges for the prosecution is the evidence of the complainant herself. For the charges of indecent assault, Counsel for the defendant submitted that the Court must warn itself of the danger of convicting the defendant on the uncorroborated evidence of the complainant alone. He concedes however that the Court may still convict the defendant if it is satisfied of the truthfulness of the complainant’s uncorroborated testimony.
19. Corroborative evidence is independent evidence (other than the complainant’s evidence) which supports the complainant’s evidence of what she said happened. It must be such as to show not only that the crime under consideration was committed, but also the accused committed it. It renders the complainant’s evidence more probable.
20. Counsel further submitted that for the evidence to be treated as corroborative the Court must be satisfied beyond a reasonable doubt that first it is true, and secondly, the proper inference from it is that it tends to confirm the guilt of the accused.

Defense

21. Counsel submitted that the complainant’s evidence lacks credibility because of several discrepancies and inconsistencies in her evidence. The defense put forward is the complainant as a witness lacked credibility. Furthermore and with specific regard to the evidence in support of the two charges of indecent assault counsel submitted that the complainant’s evidence being uncorroborated is or ought to be treated as unreliable.

Discussion

Assault on 16th of December 2014 at Aleisa (Information # D194/15)

22. The defendant by his own admission does not deny poking the complainant’s leg twice at Aleisa. It was an intentional application of force by him to the complainant. At the same time there is no evidence the complainant consented to the touching. The touching was non consensual and in the circumstances this charge is I find proven.

Indecent assault at Aleisa on 16th December 2014 (D 198/15):

23. Given the above finding, the only elements which require discussion under the corresponding indecent assault charge of the same date are elements (b) and (c). That is, whether the assault was indecent, and whether the defendant knew it to be so?

Indecent assault at Lotofaga on 18th December 2014 (D197/15)/Corresponding alternative assault charge (D195/15 & Insulting Words (D196/15)

24. For the charge of indecent assault at Lotofaga, the prosecution must prove all four elements because the defendant denied touching the complainant at all. Similarly with the other two charges given the defendant’s denial of any wrong doing.
25. The central issue is whether or not the complainant’s evidence of what she said the defendant did and said to her on both occasions is truthful?
26. Counsel urged me to assess the complainant’s credibility by looking at some of the discrepancies and inconsistencies between the complainant’s evidence and the evidence of other witnesses he referred to. In determining whether what the complainant said happened to her on both trips was truthful, I must say I did not find it helpful looking at the discrepancies as urged by counsel. This is because the discrepancies counsel referred to are circumstantial in nature and not really helpful in determining the credibility of the complainant when assessing the veracity of what she said happened. I do not consider it helpful either in determining the complainant’s credibility looking at the contradictions between her version of what she said the defendant did to her and the defendant’s version of what he said happened or did not happen on both trips.
27. What I find helpful in determining whose version of what actually happened is more probable than otherwise is the unrebutted evidence of the Ifoga which was made after the alleged offending had taken place. As I see it, this evidence is in the nature of corroborative evidence because the inference I draw from it is that it tends to confirm the truthfulness of what the complainant said the defendant did to her.
28. First, it is independent evidence of an apology actually made by the defendant’s family. Second, it supports the inference that the defendant did a wrong to another. Third, the wrong the defendant did was to the complainant whose family received the ifoga. It follows that the complainant’s evidence about what she said happened to her on both trips is more credible than otherwise because it is in my view corroborated by the inference drawn from the Ifoga the defendant’s family made. The proper inference I draw from this evidence is that the defendant on the two separate occasions discussed above not only indecently touched the complainant but also knew on both occasions the touching was indecent.
29. In consequence, I am satisfied that the prosecution has proven to the required standard of proof all the elements of the charges of indecent assault. Given this conclusion it also follows that the alternative charges of common assault are equally proven as well. I am further satisfied from the evidence the defendant uttered the words as in the charge of Insulting Words.

Finding

30. I find the defendant guilty of all five charges against him.

Vaepule Vaemoa Vaai