Police v Liaina [2015] WSSC 170 (6 October 2015)

THE SUPREME COURT OF SAMOA
Police v Liaina [2015] WSSC 170

Case name:	Police v Liaina
Citation:	[2015] WSSC 170
Decision date:	06 October 2015
Parties:	Police (informant) and Sini Ami Liaina, male of Solosolo (defendant)
Hearing date(s):	05 October 2015
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	(i) The offence of attempted sexual violation is not proven beyond reasonable and is therefore dismissed; (ii) I find the alternative charge of indecent assault against the accused proven beyond reasonable doubt. I find the accused Sini Liaina guilty of the offence of indecent assault against Temukisa Satoa.
Representation:	Ms Rexona Titi-Reti for Informant Accused in Person
Catchwords:	Unlawful sexual connection – indecent assault – sexual violation – intentional –
Words and phrases:
Legislation cited:	Crimes Act 2013 ss 39; 49 (1)(b); 49 (1)(b)(3); 50; 50(b); 60;
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

SINI AMI LIAINA (a.k.a. Sini Tauamiti, male of Solosolo.
Defendant

Counsel:
Ms Rexona Titi-Reti for Informant
Accused in Person

Hearing: 5 October 2015.

Decision: 6 October 2015

WRITTEN DECISION OF JUSTICE TUATAGALOA

1. I delivered my decision in oral on 6 October 2015 with the full decision in writing to follow. This is that decision.

The Charge:

2. The accused, Sini Liaina is charged with attempt to have unlawful sexual connection contrary to section 49 (1)(b)(3), section 50(b) and section 39 and indecent assault as an alternative charge contrary to section 60 both under the Crimes Act 2013.
3. The offence of ‘attempted to have unlawful sexual connection’ alleged against the accused is, that he tried to touch the victim’s genitalia. The offence of indecent assault is alleged that the accused kissed the victim and touched her breasts.
4. The penalty for attempted unlawful sexual connection is maximum 7 years imprisonment and maximum 5 years imprisonment for indecent assault.

The Law:

Attempted Unlawful Sexual Connection:

5. Section 39 is a general provision which creates the offence of attempt to commit an offence which would include an attempt to commit unlawful sexual connection on an adult or child.
6. The ingredients for any attempted crime are more complex than one completed.
7. Section 49(1)(b) defines what ‘sexual violation’ is, the accused is charged with a person having unlawful sexual connection with another person. Subsection (3) defines what unlawful sexual connection is in s.49(1)(b) as a person who has unlawful sexual connection with the other person without the consent of that other freely and voluntarily given.
8. Section 50 defines what sexual connection is with section 50(b) providing a further meaning of ‘sexual connection’ as the connection between the mouth or tongue or any part of the body of any person and any part of the genitalia or anus of any other person.
9. For the offence of attempted to have unlawful sexual connection it must be proven beyond reasonable doubt that a person:
   • (i) Intended to commit the offence of unlawful sexual connection of touching the victim’s genitalia;
   • (ii) Does an act immediately or sufficiently proximate to constitute an attempt to commit the intended crime.

Indecent Assault:

10. The offence of indecent assault is filed as an alternative. The prosecution must prove beyond reasonable doubt:
    • (i) 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.
    • (ii) 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].
    • (iii) Thirdly, the accused knew the touching was indecent in that sense.
    • (iv) Fourthly, the victim did not consent to such touching.

The Evidence:

11. The following facts are not disputed:
    • The accused was at the victim’s house trimming the hedge on 26 December 2014;
    • The victim, Temukisa Satoa was at home with her two brothers and mother;
    • Temukisa was hanging curtains inside the house, her mother was working in her garden at the front of the house and her two brothers were sitting around inside the house.
    • The accused came twice to the house.

The Prosecution Witnesses:

1. The Victim, Temukisa Satoa testimony is as follows:

• The accused came while she was in the sitting room hanging curtains and waved at her for her attention or to come (kalo) and the victim sent her younger brother out to the accused;
• When she was at the back room hanging curtains (marked ‘T’ on Photos 6 & 8) the accused came and stood outside the window (marked ‘X’ on Photos 6 & 8) said to her to come so he could give her some coins (siliva). The victim told the accused to leave it on a sewing machine in the extension but the accused insisted that she come to get it.
• The victim went out to the accused, got the coins, put it in her pockets and turned around to go back in when the accused got hold of her shoulders turned her around and kissed her. She tried to push him away but he held her too tight. The accused let her go when she said to him that her older brother was coming.
• She turned around to go in and the accused held her from behind and touched her on the breasts and his hand went to just above her pubic hair when he let go of her after she had said to him that her older brother was coming.
• The victim said that she did not consent to the kiss nor to being touched either on the breasts or anywhere else.
• The victim went into her room and texted her best friend who was in New Zealand for the Christmas holidays and said to her that she needed her.

12. Faustina Slade, the victim’s best friend said that she received a call from the victim in the morning of 26 December 2014 but she could not answer because they were having a youth sports day. She went home later on the day and called the victim who told her that she went to the bathroom (Photos 7 & 8) and the accused was there to get a drink of water and the accused pushed her against the wall, kissed her and touched her on the upper body.
13. The evidence of the victim’s father, Levasa Tanimo Satoa was that the accused knelt and apologized to forgive him for what he had done. The other witnesses, Edward Satoa , the victim’s younger brother who was with the father saw the victim kneeling to his father and the witness Nuafesili Miliona who was talking with the victim’s father also said that the accused knelt in front of the father but he did not hear what the accused said to the victim’s father.
14. The three police officers who gave evidence were:
    • Constable Junior Afereti who took photos of the victim’s house at Siusega and became EXH P1.
    • Constable Peter Fuimaono and Constable Mao Kolio whose evidence was when they went to get the accused from his home at Solosolo on 19 January 2015. Constable Fuimaono’s evidence was to corroborate the evidence of Constable Kolio of what was said in the car between Constable Kolio and the accused. Constable Kolio said that he informed the accused of his rights not to say anything, his right to have a lawyer present in the interview and his right to have a lawyer to represent him in court. He said the accused never gave a response to any of the rights. He then asked the accused why he did what he did to Temukisa Satoa to which he said the accused responded that he went to wish merry Christmas (alu e faamanuia le kerisimasi). Constable Kolio then asked him what sort of wishing merry Christmas to kiss someone on the lips to which the accused responded what other sort of kissing that he wants except to kiss someone right on the lips. Yet when they arrived at the Faleata Police Post the accused was interviewed and cautioned by Constable Kolio and the accused refused to make a statement. The accused said that he was never informed of any of his rights as said by Constable Kolio and Constable Fuimaono. I have grave concerns with such police practice and should be discouraged as it is subject to a lot of legal challenge.
    2. The Accused:
15. The accused who is unrepresented by counsel was informed by the court that he is not obliged to give evidence as he is presumed innocent until proven guilty. Should he decide to give evidence he will be subject to any questions by Counsel for the prosecution. The accused waived his right not to give evidence.
16. The accused does not deny that he kissed the victim and touched her on the breasts but he said that the victim agreed or consented to the kiss and to the touching because she did not try to stop him.
17. The accused also denied that his hand went any further than to the victim’s stomach and belly button and that he stopped when the victim stopped his hand when it got to her stomach.

Discussion:

(i) Attempted Unlawful Sexual Connection:

18. The offence of attempted unlawful sexual connection that the accused is charged with is that he tried to touch the genitalia of the victim. The evidence by the prosecution was that of the victim that the accused hand went inside her shorts just above her pubic hair and the accused only removed his hand when she told him that her brother was coming.
19. The accused said that while they were kissing he touched her breasts and his hand went to her stomach when the victim stopped his hand. He knew then that the victim did not want his hand to go any further and so his hand went back up to her breasts. The victim was asked by the accused to demonstrate where about she said his hand was and she placed her hand on her belly button area.
20. I find this part of the victim’s evidence unclear and doubtful as to where exactly the accused hand was, whether it was just above her pubic hair (her evidence in chief) or on or below her belly button (as she demonstrated when the accused asked her). The lack of clarity in her evidence does make the evidence of the accused that his hand was on her stomach area more plausible. Because there is doubt with this evidence of the victim, the court cannot infer any intention of the accused to touch her on the genitalia without her consent. When there is doubt the accused must have the benefit of that doubt.
21. I also find it far-fetched that the accused intended to touch the victim on her genitalia when he kissed her. The fact that the victim’s mother and brothers were all at home and whom at any time could walk over to that part of the house where the accused and the victim were would have made such an act by the accused more difficult or risky. This is the act of trying to put his hand all the way through or down the victim’s shorts and panties.
    • (ii) Indecent Assault:
22. I will now consider the alternative charge of indecent assault as I am not satisfied that the lead offence of attempted unlawful sexual connection is proven beyond reasonable doubt.
23. As mentioned earlier, the accused does not deny kissing and touching the victim on the breasts. He said that the victim consented to the kissing because when he said to her ‘ e faamanuia le kerisimasi’, they shook hands, he went to kiss the victim on the cheek but the victim turned and gave him her lips. He said that it was their second kiss that he then rubbed the victim’s breasts and stomach and the victim never tried to stop or pull his hands away when he touched her on the breasts. It was only when his hand got to her stomach that the victim stopped his hand and his hand never went any further below her stomach and belly button.
24. The victim said the accused only kissed her once when they wished merry Christmas. When she turned around to go back in the house the accused held her from behind and touched her breasts and put his hand just inside her shorts and when she told him that her brother was coming he removed his hand.
25. Whether or not the accused kissed the victim once or twice does not matter. What matters is whether the victim consented or not.
26. The victim said she tried to push the accused away when he kissed her but could not because he held her too tight. She also said that she tried to take his hands off her breasts but could not because he was too strong. She said she did not consent to any of this.
27. If the victim had consented as the accused said, then why did she call her best friend in New Zealand and say to her that she needed her? The evidence of Faustina Slade that the victim told her that the accused forcefully kissed her and touched her on the breasts shows consistency on the victim’s part of 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. I find that Faustina’s evidence renders the victim’s evidence more probable.
28. Furthermore, the accused confirmed that he knelt and apologized to the victim’s father. Asked why he apologized and he told that the court that this is the cultural way when you know you had done something wrong.
29. I believe the victim’s evidence that she did not consent to the kiss and to being touched on the breasts by the accused. I also find that the accused being a 50 year old male doing this to a 16 year old as indecent in itself.

Conclusion:

30. I find the following:

(iii) The offence of attempted sexual violation is not proven beyond reasonable and is therefore dismissed;
(iv) I find the alternative charge of indecent assault against the accused proven beyond reasonable doubt.

31. I find the accused Sini Liaina guilty of the offence of indecent assault against Temukisa Satoa.
    

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Justice Mata Keli Tuatagaloa