Police v Matai'a [2020] WSSC 24 (18 May 2020)

IN THE SUPREME COURT OF SAMOA
Police v Matai’a [2020] WSSC 24

Case name:	Police v Matai’a
Citation:	[2020] WSSC 24
Decision date:	18 May 2020
Parties:	POLICE (Informant) and ELIFASA MATAI’A, male of Saoluafata (Defendant)
Hearing date(s):	18th & 19th March 2020
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 that the prosecution has proven beyond reasonable doubt that the defendant touched the victim who is his own biological daughter on the genitalia, she was only fifteen years old at the time. The charge of indecent assault filed as an alternative is dismissed.
Representation:	A. Matalasi for the Informant I. Sapolu for Defendant
Catchwords:	sexual connection – indecent assault
Words and phrases:	familial connection (father – biological daughter) – charge proven beyond reasonable doubt
Legislation cited:	Crimes Act 2013, ss. 59(1); 59(5); 59(6);
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ELIFASA MATAI’A, male of Saoluafata, Samoa

Defendant

Counsel: A. Matalasi for the Informant
I. Sapolu for Defendant

Hearing: 18^th & 19^th March 2020

Date: 18^th May 2020

JUDGMENT OF TUATAGALOA J

This is the judgment that was to be delivered on Wednesday, 25^th March 2020 but was not possible due to the closure of Courts because of the coronavirus effective 23^rd March – 2^nd June 2020.

The charges

1. The defendant is charged with the offence of sexual connection for touching his own daughter who was 15 years of age at the time on the genitalia^[1]. There is also the alternative charge of indecent assault^[2] filed against the defendant.

Undisputed facts

2. The following facts are not disputed:
   • (i) The victim is the biological daughter of the defendant;
   • (ii) The defendant was the person who touched the victim.

The Evidence

3. The defendant, his wife and six children (4 girls and two boys) live at Saoluafata-uta. The victim is the fourth child who at the time was 15 years old. The family live in an open house which is divided into a front part, and a back part (faasee). The four girls and two boys sleep in the front part of the house while the defendant and his wife sleep at the back.
4. On the night of the incident sometime in November 2017 the defendant went home and his daughters were watching television^[3]. Leatumauga said that her father came home and smelt of alcohol. The victim said her father watched television with them and that she fell asleep while the Lali program was on. If indeed the Lali program was on then the inference would be that it was a weekday as put by defence counsel because the Lali program is only on television on weekdays. It can be drawn from the evidence that it was a Monday night.^[4]
5. The victim said she fell asleep while her other siblings and her father continued watching television. She woke up during the night when she felt someone pull up her t-shirt and touch her stomach and then her genitalia. She saw that it was her father, the defendant. She turned to her side away from the defendant and tried to wake up her sister Leatumauga but she did not wake up. When she turned back the defendant had gone. Leatumauga said that the defendant on that night fell asleep between her younger sister Kesia and Sualupe (victim). From the evidence, Leatumauga was on the other side of Sualupe.
6. The next day, Sualupe said she told Leatumauga what happened in the morning but according to Leatumauga it was after school that Sualupe said to her that there was something she wanted to talk to her about but she did not say what it was. It was not until the following day after school that she (Leatumauga) then asked Sualupe what she wanted to talk to her about, that Sualupe then told her their father touched her, ‘Na tagotago atu le latou tama ia ia’. Sualupe clarified when asked that he (father/accused) touched her on the stomach and then his hand went inside her shorts and panties to her genitalia. She was firm in her evidence under cross-examination that she was touched on both her stomach and the genitalia. She was also very firm that her father’s hand went inside her shorts and panties and was not touching her on the genitalia from outside her clothing. All this according to Sualupe happened in less than a minute.
7. Both Leatumauga and their mother Hana said they did not believe Sualupe when she told them what the father had done to her. It was hard for both of them to believe her as they did not see it happen. I find their reasoning very weak. I find the relevant parts of their evidence evasive and more colluded and Leatumauga’s evidence not forthcoming. Leatumauga and Ane’s recollection of the time the accused and the mother were talking to Sualupe also contradicts. Leatumauga said she was outside the house with Ane, whereas Ane said they were inside at the faasee^[5]part of the house. The mother said that Ane and Leatumauga were also inside the faasee^[6].
8. The house is not big and it is open.^[7] Where everyone was sitting (even outside in Leatumauga’s evidence) Ane would be able to hear what was said^[8]. Leatumauga, the mother and Ane were all present and obviously heard what was said and yet only Ane heard everything or most of what was said; but when Leatumauga and the mother were questioned about what Ane said she heard they responded that they could not remember or that the defendant did not say such things.
9. I find Ane a credible witness and her evidence more plausible than Leatumauga and the mother. An example is when Leatumauga said that she never told a soul that her father had on a previous occasion touched her on the stomach under the same circumstances in that he came home smelling of alcohol and slept where her and her sisters were sleeping. Ane said that she heard the defendant when talking with the victim and the mother saying to the victim that it happened with Mauga but Mauga never told anyone which he said shows that Mauga loves her father (the defendant). How would Ane know about the defendant having done it to Leatumauga if in the evidence of Leatumauga she said she never told a soul?
10. Sualupe confided in her friend Ane and also her family when they asked her at the time she went to stay with them as it was unusual for her to. A lot of questions arise on the validity of the evidence because why would Sualupe stay with her friend Ana for 2 -3 days when she is not used to? Why would Sualupe resort to staying with Ana and her family if her father (defendant) only pulled up her t-shirt and touched her on the stomach?
11. There is the apology by the father (defendant) who said that he would rather kill himself or go to his family. Why would he go to such great lengths if all he did was pull up the victim’s t-shirt and touch Sualupe on the stomach? In his caution statement^[9] the defendant said that he had suspicions, his daughter (the victim) had a boyfriend and wanted to check her stomach to see if there were any love bites. I find his reasons to justify his actions and behaviour very inappropriate. In the context of Samoan families, it is very inappropriate for a father to need to resort to carrying out such actions when it should be the duty of the mother in relation to issues with daughters. To add to that, evidence is he was under the influence of alcohol, slept where his daughters sleep and the time he decided to do his “check” was when everyone was asleep. If he was genuinely concerned as he said, he should have asked or spoke to the victim about it [or to the mother to deal with it].
12. The evidence of Leatumauga at best confirms that the defendant also touched her on the stomach when everyone was asleep. Leatumauga also said that earlier that night the defendant came home reeking of alcohol and slept where she and her sisters sleep. The evidence shows that the defendant has a tendency to fall asleep where his daughters sleep whilst intoxicated and then touched his daughters on their stomachs and in the present case the touching went further to the genitalia.
13. I also find the apology by the victim to her father the day after his apology was not because she lied about what he did and that nothing happened but because she told Ana and her family instead of talking to him (defendant) and her mother first. I think that Sualupe did the right thing by telling Ana and her family given that when she told her sister Leatumauga and the mother, they did not believe her.
14. There was the issue of three different statements made by the victim, Sualupe. In the first^[10] statement the victim told the police that she was not touched on the genitalia. In the second^[11] statement she recanted the first statement and said that the defendant, her father, touched her on the genitalia inside her clothing. In court, the victim confirmed what she said in the second statement to the police. She accepted that she lied in her first statement to the police but she was very firm under cross-examination that the defendant touched her on the genitalia. Evidence is what is said in Court. She said that she felt her father’s hand inside her shorts and panties touching her. This she also relayed to her friend Ana and her family and the very reason why she stayed at her friend Ana’s house for a couple of days after it happened.

Conclusion:

15. I accept the evidence of Ane of what she heard said by the defendant to the victim when he spoke and apologized to the victim (refer to in paragraphs 7 & 8). I also accept the evidence of the victim, Sualupe that her father (defendant) touched her on the genitalia by placing his hand through her shorts and panties but that such touching was brief because the inference from her evidence was that she turned on to her side away from the defendant when she felt his hand on her genitalia, she turned back and the defendant was gone.
16. I find that the prosecution has proven beyond reasonable doubt that the defendant touched the victim who is his own biological daughter on the genitalia, she was only fifteen years old at the time.
17. The charge of indecent assault filed as an alternative is dismissed.

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, s59(1) & (5)
^[2] Crimes Act 2013, s59(1) & (6)
^[3] Evidence of Sualupe (victim) and Leatumauga (sister)
^[4] Evidence of Ana Heather (victim’s friend) and Leatumauga
^[5] Exhibit 1 – marked “E” on photo 3
^[6] Exhibit 1 – marked “G” on photo 3
^[7] Refer: Exh P1 (Photos), Exh P2 (Plan)
^[8] Refer to Photos 3& 4 (Exh P1)
^[9] Caution Statement – Exh P3
^[10] First statement – dated 4 December 2017
^[11] Second statement – dated 7 December 2017