Police v Sagaga [2021] WSSC 84 (27 August 2021)

IN THE SUPREME COURT OF SAMOA
Police v Sagaga [2021] WSSC 84 (27 August 2021)

Case name:	Police v Sagaga
Citation:	[2021] WSSC 84
Decision date:	27 August 2021
Parties:	POLICE (Prosecution) v FAAFETAI CHARLIE SAGAGA, male of Tafagamanu Lefaga (Accused)
Hearing date(s):	24 August 2021
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	I find that it has not been proved beyond reasonable doubt that the accused indecently assaulted RM and the charge is dismissed.
Representation:	V. Faasii for Prosecution S. Ponifasio for the Accused
Catchwords:	Indecent assault – charge dismissed.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 60.
Cases cited:	Police v Timai [1999] WSSC 49.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

FAAFETAI CHARLIE SAGAGA male of Tafagamanu Lefaga.

Accused

Counsel: V Faasii for Prosecution

S Ponifasio for the Accused

Hearing: 24 August 2021
Decision: 27 August 2021

RESERVED DECISION OF JUSTICE TUALA-WARREN

The Charge

1. The accused is charged with indecent assault pursuant to section 60 of the Crimes Act 2013. Although it is a charge which falls within the jurisdiction of the District Court, I heard this matter because on the day of hearing, Prosecution withdrew more serious charges against the accused.
2. The charge arose out of an incident that the Police allege occurred between 1 September 2020 and 30 September 2020 at the home of the alleged victim, Ruta Muaulu (RM). The accused is alleged to have indecently assaulted RM by way of touching her vaginal area. The accused is alleged to have hugged RM’s stomach and touched her crotch on the outside of her shorts.
3. RM is married to the accused’s first cousin and they live about two houses apart at Tafagamanu Lefaga.

The Law

4. Section 60 of the Crimes Act 2013 states;
   • Indecent Assault. A person is liable to a term of imprisonment not exceeding five (5) years who indecently assaults another person.

Meaning of Indecent Assault

5. In Police v Timai [1999] WSSC 49 (13 May 1999) Justice Wilson stated:
   • Indecent assault as a matter of law ... is the direct and intentional touching by the accused of (and against) the complainant without lawful excuse [the assault]; there must be circumstances of indecency accompanying the touching or handling and offered towards the complainant, that is to say, it must be a hostile touching in a sexual sense [the indecency]...
6. The burden is on the Prosecution to prove each element of the charge beyond reasonable doubt.
7. There is no burden on the Accused to prove his innocence by giving evidence on oath. However, in this case he chose to give evidence.

The Evidence of the Prosecution

8. Prosecution called five witnesses. They were Corporal Ioane Iosefa, Melania Ioane (sister in law of RM), Ruta Ioane (mother in law of RM) Veu Ioane (father in law of RM) and the alleged victim herself.
9. RM is originally from Vailima but at the time lived with her two children, her husband who was working, his parents, and his sister Melania who was visiting, at Tafagamanu, Lefaga.
10. Melania says she was at Faafetai’s house using his phone when Faafetai left, so after she used the phone for quite some time, she left his phone with his sisters and walked home with her niece. When she arrived home she says she heard RM’s baby crying and the accused standing at the fridge getting ice water. The fridge is next to the area where RM, her husband and children sleep.
11. Melania says that she saw RM crying and she looked fefe. RM gave her the phone with her husband on the other end who told her off for leaving RM alone at home. She says Faafetai also spoke to RM’s husband on the phone then sat around for quite a long time before leaving to go home.
12. Ruta Ioane says that before she left home, Faafetai turned up hungry so he ate and then she sent him to get Melania from his house to stay with RM and her child. She had to go somewhere at 12 noon. She says she waited about an hour and then left as Melania was late. She left leaving just RM and her child at home and returned home around 4pm that day. She was told what happened by Melania. She then went to her sister who is the accused’s mother and spoke to her about the accused.
13. Corporal Iosefa took photos of RM’s home and drew the scene plan. Veu was at the plantation that day and returned home later to hear what happened from his children.
14. All these witnesses were not there at the material time. The only people present when the alleged offending occurred was the accused, RM and her child who she says was 1year old.
15. RM says that the accused came when she was alone with her baby under the tainamu. She says he came and sat next to her and hugged her stomach then touched her crotch and pressed it. She had shorts on and was sitting on the floor facing her baby. She says she yelled at him soia and tried to remove his hands but could not. She then got her phone and called her husband and told him lea ua koe sau foi Faafetai. She says she did not consent to what he did.
16. It was put to her that she had been in contact with the accused over Facebook in March and May 2020, which she denied. She did say that any communication with the accused was through her Facebook page and her husband’s page. Defence tendered Facebook messages between the accused and a person named Emosi Justin Alatina Taifau who is RM’s brother, and put to her that she used her brother’s page to communicate with the accused. She denied using her brother’s page to communicate with the accused.

Evidence of the Accused

17. The accused gave evidence that he was alone with RM and her child, but he was just at the fridge getting ice water and did not go near the tainamu and RM. He says as they were speaking RM started to cry and called her husband. He says he does not know why she cried and hung around the house so he could give his side of the story as he did not want to be blamed for something which had happened earlier. This is confirmed by Melania who says the accused sat around for quite a long time after she returned home.
18. He gave evidence about an earlier incident when RM called him to her at the tainamu, he sat beside the tainamu and she hugged him, kissed him and rubbed his body. He says she even touched his private parts. RM’s brother in law Jonathan saw him leaving and he was blamed and told off for that. So he says he did not want to go through that again.
19. The accused says that it was RM that he spoke on Emosi’s Facebook page, through voice call and video chat. He says also that their communications were of a flirtatious nature. He says she confided in him about her husband’s indiscretions with other women and he sees her actions as an attempt to get back at her husband.
20. He says that he spoke to RM’s husband and her husband told him to wait there as he was bringing the police. So he waited but they never came.

Discussion

21. I have to be satisfied beyond reasonable doubt that the accused;
    • (a) assaulted RM by the deliberate (intentional) application of force to her person; and
    • (b) the assault occurred in circumstances of indecency in the sense that it would be so regarded by the right thinking members of the community generally. (see Police v Pu’a)
22. It is my function to decide which witnesses to believe or disbelieve and what part or parts of their evidence to accept or reject.
23. There is no doubt that the alleged touching of the crotch in this case is an indecent act, if it did happen. This case turns on the credibility of the two main witnesses, RM and the accused. All other Prosecution witnesses provided useful background but were not present and their evidence is therefore of limited use.
24. I am inclined to accept the evidence of the accused for several reasons. He was highly credible because he was frank, candid and forthright. He spoke of an earlier incident for which he gave a plausible explanation. In relation to the incident in question, it is alleged to have occurred at a time when the accused knew that Melania would be returning home at any moment and he was in a house where all the pupugi around the sleeping area were tied up. The house is an open Samoan house. I do not accept that he would go into the tainamu uninvited, grab RM and touch her crotch. If that did happen, it would have been consensual given that I accept their communications were playful as seen in exhibit D1. However, I do not accept that happened.
25. RM was unconvincing and unpersuasive. Her denial of the communications with the accused was weak. I believe that she confided in the accused about her marital problems, and although I accept that there was no sexual relationship as such between them, she still attempted to entice him through her communications. She instigated the communication and made forceful comments. I accept that she used her brother’s page because she mentions Vailima and Lefaga and being in both places, whereas she says her brother does not go to Lefaga. She spells the word “snob” the same way as in the communications as “snop”. I also accept what the accused says that their communications were of a flirtatious nature, and not akin to one between family members.
26. I find that RM is being less than truthful. I did not find her credible nor did I find her evidence plausible.
27. Unfortunately the accused has been hauled through Court, and has had to live away from his home as part of his bail conditions because of the allegation against him.

Decision

28. I find that it has not been proved beyond reasonable doubt that the accused indecently assaulted RM and the charge is dismissed.
    

JUSTICE TUALA-WARREN