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Police v Brown [2016] WSFVC 5 (25 August 2016)

FAMILY VIOLENCE COURT OF SAMOA
Police v Brown [2016] WSFVC 5


Case name:
Police v Brown


Citation:


Sentencing:
25 August 2016


Parties:
POLICE v LAKI BROWN, male of Lona Fagaloa and Falefa


Hearing date(s):
12 May, 8 and 9 June 2016


File number(s):
D307/16, D308/16, D309/16. D310/16


Jurisdiction:
Criminal


Place of delivery:
Family Violence Court of Samoa, Mulinuu


Judge(s):
DISTRICT COURT JUDGE CLARKE


On appeal from:


Order:
- Charges dismissed.


Representation:
Ms L Sua and Ms L Sio for National Prosecution Office
Mr D Kerslake for defendant


Catchwords:
Assault,


Words and phrases:


Legislation cited:
Criminal Act 2013 s.123,



Cases cited:
Police v Mapusaga [2001] WSSC 3
Police v AB [2003] WSSC 2004
Police v Wright [2003] WSSC 30
Police v Paulo [2002] WSSC 2
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)


Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU


BETWEEN


POLICE
Informant


A N D


LAKI BROWN, male of Lona Fagaloa and Falefa
Defendant


Counsel:
Ms L Sua and Ms L Sio for National Prosecution Office
Mr D Kerslake for defendant


Decision : 25 August 2016


RESERVED DECISION OF JUDGE CLARKE

The Charges.

  1. The defendant is charged with the following charges:
  2. The charges are brought pursuant to section 60 of the Crimes Act 2013. The defendant pleaded not guilty to the charges and the matter proceeded to hearing that commenced on 12 May 2016.
  3. At the conclusion of the hearing and on making closing submissions, prosecution counsel sought leave to amend information D308/16 to read as “between the 1st of February 2016 and the 31st March 2016”. Leave is granted to amend D308/16 to substitute the relevant dates to read as between the “1st of February 2016 and 31st March 2016”, there being no prejudice to the defendant.

The Law:

  1. Section 60 of the Crimes Act 2013 provides:
  2. Section 60 of the Crimes Act 2013 is identical to section 135 of the Crimes Act 1961 (New Zealand) which provides:
  3. An issue in this matter that has arisen relates to the elements of the offence of indecent assault. According to Prosecution counsel, the elements of the offence of indecent assault are:

(i) That the defendant assaulted the victim, that is the direct and intentional touching by the defendant of another person’s body without lawful excuse;

(ii) That the assault was indecent; and
(iii) The complainant did not consent to the assault.
  1. In defence counsel’s submissions, it was submitted that a fourth element must also be proven beyond a reasonable doubt, namely a subjective test that the defendant knew that the touching or act was indecent.
  2. Various authorities have been cited by both counsels. The Prosecution has referred to Police v Mapusaga [2001] WSSC 3; Police v AB [2003] WSSC 2004; Police v Wright [2003] WSSC 30 and Police v Paulo [2002] WSSC 2. This Court was also referred to the Court of Appeal judgment in Ufiufi v Attorney General [2010] 3 LRC 384. The Prosecution submitted that in the judgments dealing with indecent assault, the element that the defendant knew that the touching or act was indecent was not imported. In Ufiufi v Attorney General, (op. cit), Prosecution relied on this judgment which dealt with a charge of rape on the basis that the Court of Appeal did not import a subjective test that the defendant did not honestly believe that the victim was giving consent to the sexual intercourse.
  3. In Police v Mapusaga (op. cit) brought pursuant to section 52(1)(a) of the Crimes Ordinance 1960 (Repealed) which was a charge of indecent assault against a girl under the age of 12, the Court stated the elements of the offence as follows:
  4. In Police v AB (op. cit), the Supreme Court took a similar approach to Police v Mapusaga, in this case however, the victim being aged between 12 years and 16 years of age. Prosecution submitted that in these judgments together with Police v Wright (op. cit) and Police v Paulo (op. cit), all dealing with indecent assault, the Supreme Court did not import a subjective test that the defendant knew the assault was indecent.
  5. The defence refers to and relies on the judgments in Police v Liaina [2015] WSSC 170 (6 October 2015); Police v Hill [2013] WSDC 3; and Police v FG [2015] WSYC 5. I note that the four stage test was also applied by Police v Leupolu [2015] WSDC 4 (29 May 2015). These ostensibly set out elements of indecent assault as follows:

(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.

  1. The formulation of the elements for indecent assault has been set out, it seems, in differing ways both by the Courts of Samoa and New Zealand. In Garrow and Turkington’s Criminal Law in New Zealand, (online looseleaf ed, LexisNexis) at CRI135.5 dealing with section 135 of the Crimes Act 1961 (New Zealand), it states the elements of indecent assault as follows:
  2. The inclusion of the intention to commit indecent assault is an element of the offence in New Zealand in the sense that the accused intended or appreciated those aspects of the assault, and the surrounding circumstances, which render it indecent (see also for example: Dickens v Police CRI-2011-404-000165 Nov 8, 2011, Woolford J (High Court); and Jason Paparatehiko Wharepapa v R [2015] NZCA 589 (New Zealand Court of Appeal)).
  3. In R v Yong Lei Gao [2015] NZHC 810, the High Court of New Zealand referred to the Court of Appeal judgment in R v Alwyn (op. cit) and stated as follows:

(a) The accassaulted the complaomplainant by the deliberate (intentionpplication of force to the the person of the complainant; and

(b) The assault occurn circumstcumstances of indy in the sense that it w it would be so regarded by right-thinking members of the community generally.

(c) The ed ind or appreciateciated those aspects of the assault, ant, and the surrounding circumstances, which render it indecent.

And, where the issue of consent is raised on the evidence:

(d) The cohe complaidid not cont consent to the assault; and

(e) Thesed did not honestly stly believe she was consenting.


  1. In the unreported High Court judgment of His Honour Gault J in Milne v Police BC9069005, 29 August 1990, His Honour Gault J summarised the elements of the offence of indecent assault in England as follows:
  2. The third element of indecent assault in England refers to and incorporates a subjective element, namely, that the accused intended to commit such an indecent assault.
  3. In my respectful view, the elements of indecent assault in Samoa include the subjective element that the accused knew that the assault was indecent following Police v Liaina (op. cit).
  4. At this juncture, the Courts of Samoa have not gone on to limit in terms of the subjective test that “the accused intended or appreciated those aspects of the assault, and the surrounding circumstances, which render it indecent”. That is a matter for determination no doubt at a later point.

The Prosecution Evidence:

  1. The Prosecution called the complainant, Tagiilima Ailao (‘complainant’). The complainant is 23 years old and married to Teofilo. Teofilo is the defendant’s brother in law. The complainant lives with her husband Teofilo with Teofilo’s family at Faleula. The defendant also lives with the complainant, Teofilo and his wife Tiperia at Faleula. Tiperia and Teofilo are brother and sister. A number of other family members live at Faleula with them includingTeofilo and Tiperia’s parents.
  2. In her evidence, the complainant recounted four instances of alleged indecent assault, the first three incidences she said occurred in the last week of February 2016, each offending occurring on consecutive days. The first incident occurred in the morning at about 8.00am. She was in the kitchen with her child, the defendant and his infant son. She had been seated on a long bench chair with the defendant and she had been feeding her child. She said that after feeding and putting her child down and clearing the dishes, she was shocked when the defendant placed his hand inside her ie lavalava and touched her vagina (D308/16). She said that she was not wearing undergarments. In cross-examination, she said that this occurred whilst she was tidying up the dishes and that she was not bent down when the defendant touched her vagina. Her husband was at work at this time. She said she removed his hand and was scared because people might think she liked what the defendant had done. She said she asked the defendant what he was doing.
  3. The complainant said that the second incident occurred the following morning, again in the kitchen. She says the defendant was touching her bum while her back was faced towards him (D310/16). She said to him “aua le fai sooa lau mea lea” and the defendant responded “O lea le mea e palaai ai.”
  4. The third incident then occurred the next day, also in the kitchen. She was washing dishes that morning and the defendant came to her and touched her breasts through the inside of her t-shirt (D307/16). She says she removed the defendant’s hand from her breast. In her evidence, she said that during this period, it would only be her and the defendant in the kitchen because it was only them doing the meals and dishes in the kitchen.
  5. In her evidence, the fourth incident occurred in the first week of March, around the time of the elections, on the 2nd March 2016 at about 9.00pm. This incident occurred in the bathroom. She described the shower and toilet as being in the same room but separated by a concrete wall. She said the bathroom has one door and through that door, you would first reach the shower and then the toilet. She alleged that whilst she was using the toilet, she heard the shower tap on. After using the toilet, she came to go out but was surprised to be hugged by the defendant in front of the shower. The defendant then kissed her (D309/16), bit her lip and his other hand then went down to her vagina. She was wearing pants (ofua’e). The incident, described by her, went on for about 3 minutes.
  6. In her evidence, she describes resisting the defendant but he was too big. She said “ua ou fiu a la e kekee e le mafai ona ou kekeega oga e lapoa koe umi ia au.” She also said that “ua o’u fiu e uga’i ese” and “ua o’u fiu e kulie kaumafai e kulei ese ae le mafai ona e kele loga kigo au ua makua mau a laga fusi.” The defendant only left after the complainant said the old lady (the mother in law) is coming and he then tried to hide her (o iiga sa faamamulu ai loa au e Laki ma sau i fafo). After he left, she stayed for about a minute and then went out of the bathroom because as she explained:

“ina ua faamamulu e Laki ia au sau i fafo ae ou kuku i kokogu sei faakali sei koeikiki ou sau i fafo oga o la ua ou iloa e faapea gei la ia makua o lou kolua ia ma lou kolua ai se mea ga ma plan ma Laki ae leiloa e leai.”

  1. When she came out of the bathroom, she said the defendant was at the fridge next to the door. This fridge is in the parents’ in laws bedroom. At the fridge, the defendant is alleged to have spoken to the defendant and they had a discussion there. When the fourth incident occurred, she said her husband was in bed and her husband’s parents were in their bed in their bedroom. Asked by Prosecution where the parents in law were when the alleged fourth incident happened, she said “lea ua kaoko foi i o la moega i kua.”
  2. On the Sunday evening the week after the elections, she says that her husband asked her about whether what he had heard about her and the defendant was true. After being questioned by her husband, that following Monday, she said she told her sister-in-law Ofa about what had occurred. She said that when things happened with the defendant, she would usually then go see Ofa.
  3. In her evidence, she did not report the matter because she did not have an opportunity (le avanoa) to go to the Police. She was also worried about the parents-in-law who might get angry. She however gave a statement to Police after there had been a dispute on a Sunday between the defendant and her husband, Teofilo. This dispute arose between the defendant and Teofilo due to an altercation started between her children and the defendant’s children over a golf club. The defendant intervened and a fight occurred between the defendant and Teofilo. In that altercation, words were exchanged between Teofilo and the defendant about the children. No words however were said it seems on the evidence by Teofilo to the defendant about the alleged indecent assaults by the defendant against Tagiilima. The defendant lodged a complaint to Police arising from Teofilo’s alleged assault on the defendant. This was then followed by a complaint against the defendant, being the charges now before this Court.
  4. Ofa Petelo is the complainant’s sister in law. Her evidence was adduced as recent complaint. She said that in the second week of February, the complainant had come to her in the early morning but after the kids had gone to school. She was told by the complainant that she had gone to the shower to make the milk and as she was shaking the milk bottle, she was shocked that the defendant then grabbed her and kissed her. She said her father has a bad leg and stays in bed and confirmed that the distance between the bed and the bathroom is not far. She also said that the bench in the kitchen during February was used at the dining table in the main house (faletele). She said that the dishes were washed by the young girls of the family and Tagiilima and that during the time of the visitors, after they ‘fai ki’, they would stay home and play cards and it was never just the complainant or the defendant at home. Family meals were eaten together at the front faletele.
  5. Tauolo Fretton is the brother in law of the defendant and brother to the defendant’s wife Tiperia. He also resides at Faleula with the defendant and the other family members and is the matai and eldest son to his parents. His evidence was that he would see the defendant play with the complainant in an inappropriate way (“tu ma aga e le tamalii i lau vaai.”). The defendant would touch her body and including slapping her bottom. He spoke to the complainant about what he had observed and confirmed he had told her off about it. He did not tell the defendant off. In cross-examination, he confirmed that when he gave his statement to Police, he stated:

The Defence Evidence:

  1. The defendant elected to give evidence and also called one witness, his mother in law Emi Fretton. The defendant denies the allegations against him and says that they never occurred. In his evidence, he said that his brother in law Aleni, his wife and kids were staying with them in February at Faleula. Aleni arrived on the 5th February and then his wife and 5 children arrived on the 13th February. They stayed with them until the 27th of February. During this period, he said that no one ate in the kitchen, and they all ate together at the front in the fale tele. The long bench from the kitchen was at the front in the faletele as was the table and chairs. He also said that in terms of the cleaning up and meals, there would be many of them involved and in the kitchen helping. At no time was it just he and the complainant in the kitchen or at home. He would also often bring Aleni and his family to Apia. In the last week of February before Aleni and his family returned to Australia, he said they were very busy preparing Aleni’s family for their departure. He said that he would come to Apia with Aleni and that he would often travel to Apia. In his evidence, he said that on the 23rd and 24th of February, he came to Apia with his wife on these days for her medical check-ups at Family Health. On the 25th of February, he came very early with Aleni to fix the car being used by Aleni. He said his father-in-law watches television most nights in the bedroom until late and doesn’t sleep until all the programs on television have finished. He denied each of the four allegations and said they never occurred.
  2. In his evidence, he confirmed that he had an altercation with Teofilo. He said that this occurred on a Sunday. It was caused by a dispute amongst their children resulting in an altercation between them. He lodged a Police complaint against Teofilo, for which he was then charged and brought before the Courts.
  3. The final witness for the defence was Emi Fretton. She is Teofilo and Tiperia’s mother and the defendant’s mother-in-law. She lives at Faleula with the defendant, Teofilo, complainant and other members of their family. She said that during February when Aleni and his family were in Samoa, they all ate together in the main fale at the front, including the children. She said that no one ate in the kitchen, since the complainant came to stay with them, she doesn’t go and wash the dishes, it is her that does it. She confirmed that during this period, she and her husband were at home all the time and the defendant would go with Aleni and his family to Apia because it was the defendant who hired and would drive the car. She confirmed the dispute between the defendant and Teofilo having witnessed it and said that it was her that called the Police.

Discussion:

  1. This case is not one of consent but in which the defendant categorically denies each of the charges against him. He simply says the incidences alleged by the complainant did not happen.
  2. Dealing with the incidences alleged to have occurred in February 2016, the complainant’s evidence was that the 3 incidences alleged in the kitchen occurred on 3 consecutive days. In her evidence, she said that when the family from Australia were visiting, it was only her and the defendant preparing the food and cleaning up and that they were at home during the day. She said:
  3. In cross-examination, she reiterated that “...leai o maua ma Laki e i kua a i le faiga o feau, o a’u a fulufulu ipu o le makou fale.”
  4. This is inconsistent with the evidence of Ofa Petelo who said that it was the complainant and the young girls of the family that would clean up. In her evidence, there were always other people present. I accept on the evidence before the Court that the complainant was involved in the cleaning of the dishes, however, I do not accept the complainant’s evidence that it was only the complainant and defendant cleaning up or that the complainant and defendant were often at home by themselves during this period in February. This is contrary to the other evidence before the Court and I found the complainant’s evidence on this issue as embellished. I prefer the other evidence to that of the complainant.
  5. In describing the first incident, what the complainant told Police was also different to what she told the Court. In her statement of 14 March 2016, the complainant told Police that the first incident occurred as she was feeding her child and as she bent down (out e punou i lalo), she was shocked when the defendant touched her vagina. In her evidence before the Court, she said she was tidying up and she expressly confirmed under cross-examination that she had not bent down when this first alleged incident occurred with the defendant touching her vagina. I am also left in doubt that the bench the complainant claimed she had been seated on that morning was in the kitchen and prefer the evidence of the defendant and Ofa Petelo and the defendant that the bench was in the faletele and used there for the meals.
  6. Relevant also is that during this period in February when these instances are alleged to have occurred, the evidence from the defendant and Emi Fretton also places doubt that the defendant was even present as alleged by the complainant. I prefer the defendant’s evidence as well as that of Emi Fretton that the defendant was involved during this period in bringing Aleni and his family to Apia.
  7. I turn to the fourth alleged incidence on the 2nd of March 2016. In her evidence in chief, the complainant said that there was only one door and she was forthright in giving this evidence. Under cross-examination, she then agreed that in fact there is a second door to the bathroom facing the toilet. Her evidence was inaccurate.
  8. In describing the forth alleged assault, the complainant said that the defendant grabbed and hugged her as she left the bathroom, she was bitten on the lip, the defendant put his hand to her vagina and she described herself as resisting the defendant vigorously, trying to push him away, but unsuccessfully due to his size. This, she said, went on for about 3 minutes, all the while, whilst their father-in-law and mother-in-law was in the immediately adjacent bedroom. She stayed in the bathroom and after a minute, walked out the same door where the parents in law were and had a discussion with the defendant at the fridge in that same bedroom.
  9. The complainant’s evidence about the alleged fourth incident simply lacks in my view any credibility and I am left in real doubt about this allegation. As is very clearly depicted in exhibit D1 photos 1 and 2, the distance from where the alleged incidence took place to the parents-in-law’s bed where they were is very close. The bathroom opens into the bedroom and any such struggle as alleged by the complainant over a 3 minute period where the complainant is allegedly vigorously resisting the defendant would have been heard by the parents in law.
  10. Secondly, having engaged in such a struggle in the bathroom, I do not accept that the complainant then went and quietly spoke with the defendant at the fridge which is in the parents in law’s bedroom whilst the parents in law were in the room in bed. She had just been vigorously resisting the defendant for up to 3 minutes. The side of the fridge can be seen to the right of photo 2 in exhibit D1 and it is in very close proximity to the parents-in-law’s bed. Any such discussion would also have raised suspicions and based on the evidence, likely been heard by the parents-in-law.
  11. Thirdly, the complainant’s evidence was that she was very concerned about her parents in law suspecting something between her and the defendant. She said and as quoted in full at paragraph 24 above “oga o la ua ou iloa e faapea gei la ia makua o lou kolua ia ma lou kolua ai se mea ga ma plan ma Laki ae leiloa e leai.” Despite her worry and angst about being found out and suspicions being raised, the complainant chose to come out of the same bathroom door into the parents’ in law’s bedroom as the defendant had. If she was so worried about suspicions being raised, common sense says she would have gone out of the other door next to the toilet shown in photo 4 of exhibit D1. This would avoid any suspicion by her parent’s in law as to why she had come out of the same bathroom door as the defendant about a minute beforehand. Her evidence and explanation was simply not credible.
  12. Fourthly, her evidence about the fourth incident was also in part inconsistent to what she had told Police on 14 March 2016 when she referred to this fourth incident occurring whilst she was reaching for toilet paper. She also made no mention to Police of any alleged discussion next to the fridge in her first statement to Police, which she gave in evidence before the Court.
  13. Ofa Petelo was called to give evidence of recent complaint. According to Ofa, in the second week of February, she was told by the complainant that she had gone to the bathroom to shake the milk bottle (lulu le fagu susu) and she was shocked when she turned around and the defendant kissed her. What the complainant recounted to Ofa as to what occurred was quite different to the account by the complainant herself. Furthermore, the alleged incident recounted by Ofa was told to Ofa in February 2016 but the incident told by the complainant was alleged to have occurred in March, almost a month later. The evidence of Ofa Ma’a does not support the complaint by the complainant.
  14. Prosecution also relies on the evidence of Taualo Palagi Fretton as similar fact evidence. In Court, he said that the defendant would touch her body including slapping her bottom. However, he was cross-examined on an earlier inconsistent statement to Police and he confirmed that he told Police that “O au ia out e lei vaai tino i se mea na tupu i le va o Laki ma le toalua o lou uso le fafine lea o Tagiilima...” Taualo was evasive and I did not find his evidence reliable or credible.
  15. Finally, I wish to turn to the altercation between the defendant and Teofilo, the complainant’s husband. There is no question that the defendant and Teofilo became involved in a physical altercation. As a result, the defendant lodged a Police complaint against Teofilo. These allegations against the defendant only came up after the Police complaint was lodged against Teofilo. In the altercation between the defendant and Teofilo and the exchange of words, I also note that despite it seems that Teofilo knew about the allegations against the defendant, he never brought these allegations up with the defendant in that dispute. The timing of the allegations against the defendant simply adds to my real doubt relating to the complainant’s evidence. I also do not accept that the complainant did not lodge an earlier complaint because she was ‘le avanoa’. The complainant’s complaint was only lodged after the altercation between the defendant and the complainant’s husband and after the defendant lodged a Police complaint against Teofilo.
  16. In all, I am left in reasonable doubt that the events alleged to have occurred at all and the Prosecution have therefore failed to prove the first element beyond a reasonable doubt. I found the complainant and her evidence unreliable for the above-mentioned reasons.

Result:

  1. On the evidence and for the foregoing reasons, I am not satisfied beyond a reasonable doubt that the Prosecution has proven the charges and the charges against the defendant are therefore dismissed.

JUDGE LEIATAUALESA D.M. CLARKE

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