Police v Isaia [2016] WSSC 163 (24 August 2016)

SUPREME COURT OF SAMOA
Police v Isaia [2016] WSSC 163

Case name:	Police v Isaia
Citation:	[2016] WSSC 163
Decision date:	24 August 2016
Parties:	POLICE and FISO ISAIA, male of Tanumapua & Nuu-fou (defendant)
Hearing date(s):	24 August 2016
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	I find the defendant guilty of having sex with the victim who was under 16 years’ old at the time of the offending. The alternative charge of indecent assault is therefore dismissed. I find that the prosecution has failed to prove beyond reasonable doubt that the defendant incited Liu Feaualii to indecently assault Sauleola and I dismiss the charge.
Representation:	L Su’a-Mailo for Prosecution T Patea for the Defendant
Catchwords:	Sexual connection – victim under 16 years of age – indecent assault -
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FISO ISAIA, male of Tanumapua & Nuu-fou
Defendant

Counsel:
L Su’a-Mailo for Prosecution
T Patea for the Defendant

Hearing: 24 August 2016
Decision: 24 August 2016

ORAL JUDGEMENT OF JUSTICE TUATAGALOA

1. The defendant is charged with:
   • Sexual intercourse with Lafoga Ropati a girl under 16 years’ old;
   • Alternative charge of indecent assault; and
   • Inciting Liu Feaualii to indecently assault Sauleola Atina’e a girl under 16 years old.
2. The offences took place on 3 September 2014 at Tanumapua and Aleisa.
3. The prosecution must prove beyond reasonable doubt the following elements of the leading charge of sex with a girl under 16 years old.
   1. The victim was under 16 years’ old;
   2. Defendant had sexual intercourse with the victim.
4. For the alternative charge of indecent assault the prosecution must prove beyond reasonable doubt that the defendant:
   1. did an indecent act; and
   2. recognized that right thinking members of the community would regard his act as indecent.
5. The inciting charge is that the defendant encouraged a male named Liu Feaualii to indecently assault Sauleola Atina’e.
6. The prosecution called three witnesses: the victim Teleise Lafoga; Liu Feaualii and Lafoga’s mother.
7. The mother gave evidence that the victim, Lafoga, was only 13 years’ old at the time of the offending. She is now 15 years’ old and still under 16 years. Her birth certificate confirmed her age at the time of the offending.
8. The only defence advanced by defense counsel is that there was no sexual intercourse and that the victim, Lafoga was lying.
9. The evidence is that no one else was present but only the defendant and victim when they had sex. This is the case with most sexual offending. The victim Lafoga’s evidence was that she went with the defendant, Fiso, and had sex with him under the defendant’s togā esi. Despite defence counsel’s persistent questions to the victim that she was lying that the defendant had sex with her, the victim Lafoga never faltered with her response that she had sex with the defendant. She was consistent with her response throughout, she did not deny consenting to the sex nor did she deny she really liked the defendant. Her consent is not a defence because she is under age.
10. The defendant on the other hand denied having sex with the victim saying that she, the victim, was lying. Asked why he thinks the victim would lie about him having sex with her and his simple answer is, “He does not know.” I find the defendant not a credible witness. He keeps changing his responses and would also play the “I don’t remember,” response.

Caution Statements:

11. The caution statements by the defendant were not challenged and were therefore tendered by consent. As such, the statements were seen to have been made voluntarily by the defendant and that he was fully informed of his rights.
12. Issue of voluntariness and defendant not being informed of his rights go to the admissibility of a caution statement but not to the truth of its content. The defendant in his caution statement 17 July 2015 (EXH P2) admitted to the offences.
13. The admissibility of a caution statement becomes evidence against the defendant to be weighed up together with all the other evidence heard in Court.
14. In this case I find the victim’s evidence very credible and the defendant’s admission in the caution statement that he had sex with her is accepted by the court in light of all the other evidence.
15. The witness Liu Feaualii said to have been encouraged by the defendant to indecently assault Sauleola was that when he and Sauleola kissed inside the room at Sauleola’s house the defendant was not even present. He said the defendant had gone to his house. The witness Lafoga’s evidence was that she and the defendant were on one side of the fale kissing while Liu and Sauleola were inside the room. There is too much doubt with the evidence as to whether the defendant incited or encouraged Liu to indecently assault Sauleola. Where there is doubt, the defendant should have the benefit of that doubt.

Conclusion:

16. I find the defendant guilty of having sex with the victim who was under 16 years’ old at the time of the offending. The alternative charge of indecent assault is therefore dismissed.
17. I find that the prosecution has failed to prove beyond reasonable doubt that the defendant incited Liu Feaualii to indecently assault Sauleola and I dismiss the charge.
18. The defendant is remanded on bail to 23 September 2016 for sentencing.
    

JUSTICE TUATAGALOA