Police v Panapa [2016] WSDC 36 (22 September 2016)

DISTRICT COURT OF SAMOA
Police v Panapa [2016] WSDC 36

Case name:	Police v Panapa
Citation:	[2016] WSDC 36
Decision date:	22 September 2016
Parties:	POLICE v MASELOTA PANAPA, male of Moataa.
Hearing date(s):	14 September 2016
File number(s):	D1711 /16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	On the evidence and for the foregoing reasons, I am not satisfied beyond a reasonable doubt that the prosecution has proven the charge against the defendant and the charge is therefore dismissed. .
Representation:	Ms I. Atoa for Informant (NPO) Defendant in person
Catchwords:	Indecent Assault
Words and phrases:
Legislation cited:	Crimes Act 2013 s.60
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

MASELOTA PANAPA, male of Moataa
Defendant

Counsel:
Ms I. Atoa for National Prosecution Office
Defendant in person

Decision: 22 September 2016

DECISION OF DCJ CLARKE

The Charge.

1. The defendant is charged with one charge that on the 1^st June 2016, he indecently assaulted Theresa Galuvao, a female of Malie.
2. The charge is brought pursuant to section 60 of the Crimes Act 2013.

The Law:

3. Section 60 of the Crimes Act 2013 provides:

• “60. Indecent assault – A person is liable to a term of imprisonment not exceeding 5 years who indecently assaults another person.”
  4. In order to prove the charge of indecent assault, the prosecution must prove beyond a reasonable doubt that (See Police v Liaina [2015] WSSC 170 (6 October 2015); Police v Hill [2013] WSDC 3; Police v FG [2015] WSYC 5; Police v Leupolu [2015] WSDC 4 (29 May 2015)):
     • (a) There was an assault being the direct and intentional touching by the accused of the body of another person (the victim) without lawful excuse;
     • (b) The assault was indecent;
     • (c) The accused knew the assault was indecent; and
     • (d) The complainant did not consent.

The Evidence:

5. The prosecution called two witnesses, Theresa Galuvao (“the complainant”) and Jerry Ieremia. The defendant also elected to give evidence.
6. The prosecution evidence is that on the afternoon of the 1^st June 2016, the complainant and Jerry Ieremia were at the Independence Day Celebrations at Tuanaimato. After the Pesega School items for the Independence Day Celebrations, they walked to find the complainant’s younger sister who was performing with the Pesega School. The complainant, Jerry and Aipopo Galuvao, the complainant’s older sister were walking together. Aipopo was walking in the front and Jerry to the right of the complainant slightly ahead.
7. In her evidence, the complainant said that she was wearing jeans and a t-shirt. As the complainant and Jerry were walking along the side of the spectator stand, she saw 3 to 4 boys coming from the opposite direction. As she walked with Jerry beside her, the complainant was looking downwards. Two of the boys from the opposite direction walked past her and one walked into and collided with her. The complainant identified the defendant as the person who collided with her that day. She said that the defendant’s left arm struck her left side breast. At the same time, she said the defendant touched her by grabbing her ‘private part’ with his left hand, as she said, ‘because I felt it’ and the touching was ‘strong’ but brief – a second she said. In her evidence, the collision and the defendant touching her private part being her crotch region occurred at the same time. She then swore at the defendant, the complainant saying she was angry. The defendant and Jerry then became involved in an altercation.
8. In describing what had occurred that day, Jerry Ieremia also recounts the events largely as described by the complainant. Importantly however, he describes the defendant colliding with the complainant and then the defendant’s right hand going and touching the complainant’s breast. He said the complainant said that the defendant had touched her private part.
9. In his evidence, the defendant denied the allegations. He said he was with his brother Iese and two other boys, Aleni and Justin. Behind the spectator stand, he was walking with Iese, Aleni and Justin. They were at the front and he was walking from the back. He said he was looking at a car mirror and then as he walked as he was looking right towards the car, he collided with the complainant. He said that he told the complainant to look carefully. An altercation then occurred between the defendant and Jerry. He accepted that when he collided with the complainant, his left hand was down as he walked but he did not grab (eu) at the complainant’s ‘private part’ as alleged.

Discussion:

10. On the afternoon of the 1^st June 2016 after the Pesega School items at the Independence Day Celebration, the complainant and the defendant were at Tuanaimato with their respective group of friends. As the complainant and her friends walked from one direction in the area behind the spectator stand, the defendant and his group of friends walked in the opposite direction at the same time. As they walked in opposite directions, the complainant and the defendant collided with each other.
11. Based on the prosecution’s own evidence, the collision was as expected, brief. In that brief encounter where the defendant collided with the complainant, the complainant said that the defendant grabbed (“eu”) at her crotch or private part as she described it. The defendant however says he was walking along, his left hand was down which is by his left side and they collided with each other. The complainant said nothing about the defendant touching at her breast with his right hand, only that when they collided, the defendant’s arm struck her breast.
12. This was two people walking in opposite directions. As to be expected, the defendant was walking with his left hand down by his side. As they collided, I am left in reasonable doubt that the defendant grabbed at the complainant’s private part or her breast. The first issue is that the two prosecution witnesses give differing accounts of material facts alleged in this matter. The complainant says that the defendant grabbed at her private part. She says nothing about the defendant grabbing at her breast with his right hand. Jerry who said he saw them collide however said that the defendant grabbed at the complainant’s breast with his right hand. He gave no evidence whatsoever about the defendant grabbing at the complainant’s private part. In my view, this discrepancy is material.
13. Secondly, even if the defendant’s left hand did come into contact with the complainant’s private part as they collided, a perfectly plausible explanation for that is simply that his left hand struck that area as they collided and it was inadvertent. It was a brief momentary collision and I do not find the complainant’s evidence that she felt the defendant grab (e’u) that area as reliable or credible. It was momentary and she did not observe the actions alleged, describing that she felt him do this.
14. In all, I am left in reasonable doubt that the defendant indecently assaulted the complainant at all as I am not satisfied to the requisite standard that the defendant either intentionally or directly touched the complainant’s private parts or breast as alleged.

Result:

15. On the evidence and for the foregoing reasons, I am not satisfied beyond a reasonable doubt that the prosecution has proven the charge against the defendant and the charge is therefore dismissed.
    

JUDGE LEIATAUALESÃ D M CLARKE