Police v Tuitamai [2021] WSSC 86 (10 November 2021)

IN THE SUPREME COURT OF SAMOA
Police v Tuitamai [2021] WSSC 86 (10 November 2021)

Case name:	Police v Tuitamai
Citation:	[2021] WSSC 86
Decision date:	10 November 2021
Parties:	POLICE (Prosecution) v TIOMAI TUITAMAI, male of Sataoa (Accused)
Hearing date(s):	04 November 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:	After viewing the evidence in totality, I am satisfied beyond reasonable doubt that the accused attempted to sexually violate Imeleta Toma Fipe by attempting to lie on top of her and putting his penis on her vagina. I am also satisfied beyond reasonable doubt that the accused indecently assaulted Imeleta by touching her vagina, an act which is clearly indecent, and that he intended to commit an assault which is indecent. Accordingly I find him guilty of both charges. The accused will be sentenced on 25 November 2021 at 12.30pm. A pre-sentence Report is ordered. He is remanded in custody until sentencing.
Representation:	F. Ioane for Prosecution T. Toailoa & T. Fonoti for the Accused
Catchwords:	Attempted sexual violation – indecent assault
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 49; 53(1); 60.
Cases cited:	Police v Leleimalefaga [2017] WSSC 121.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TIOMAI TUITAMAI male of Sataoa.
Accused

Counsel:
F Ioane for Prosecution
T Toailoa & T Fonoti for the Accused

Hearing: 4 November 2021
Decision: 10 November 2021

RESERVED DECISION OF JUSTICE TUALA-WARREN

The Charges

1. The accused faces two charges, one of attempted sexual violation of Imeleta Toma Fipe pursuant to section 53(1) of the Crimes Act 2013 (maximum penalty 14 years imprisonment), and one of indecent assault pursuant to section 60 of the Crimes Act 2013 (maximum penalty 5 years imprisonment).
2. He pleaded not guilty to the charges through Counsel on 15 March 2021, and the matter proceeded to trial on 4 November 2021.
3. The offending is alleged to have occurred in the early hours of 27 December 2020.
4. At trial, the Prosecution called five witnesses and the defence called three alibi witnesses.

Relevant Law

5. The onus is on the Prosecution to prove the accused’s guilt through establishing each element, of each offence, beyond reasonable doubt.

Attempted sexual violation

6. Sexual violation is defined in section 49 Crimes Act 2013 as;
   • 49. “Sexual violation” defined – (1) Sexual violation is:
   • (a) the act of a male who rapes a female; or
   • (b) the act of a person having unlawful sexual connection with another person.
   • (2) A male rapes a female if he has sexual intercourse with that female without her consent freely and voluntarily given.
   • (3) A person has unlawful sexual connection with another person if that person has sexual connection with the other person without the consent of that other person freely and voluntarily given.
7. The elements of the offence are;
   • (i) That the accused attempted;
   • (ii) To sexually violate another person;
   • (iii) Without her consent.

Indecent Assault

8. 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.
9. In Police v Timai [1999] WSSC 49 (13 May 2000] 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]...
10. The elements of the offence are;
    • (i) The accused assaulted the victim;

(ii) The assault was indecent according to the standards of right-minded members of the community; and
(iii) The accused intended to commit an assault which is indecent on the victim. (see Police v Leleimalefaga [2017] WSSC 121 (4 September 2017).

11. In Police v Leleimalefaga, CJ Sapolu noted;
    • 3. In the discussion on crimes against morality in Adams on Criminal Law vol 1, Part 7, CA 135.02, the learned authors when referring to the elements which constitute an “indecent assault” said:
    • “ R v Court [1989] AC 28; [1988] 2 A11 ER 221 (HL) suggests the prosecution must prove:
    • “(a) That the defendant assaulted the complainant.
    • “(b) That the assault, or the assault and the circumstances accompanying it, were indecent. ‘Indecent’ means that which is capable of being, and which the tribunal of fact finds would be, considered by right-minded persons as indecent...; and
    • “(c) That the defendant intended to commit an assault that in its nature or because of the circumstances, was indecent. As Lord Griffiths put it at 34, the ‘extra mental element’ required for indecent assault is an intent to do something indecent ... in the sense of an affront to ... sexual modesty or, in other words, an intent to do that which the jury find indecent.’ Evidence of the defendant’s reasons for acting will be admissible to support or negative that the assault was an indecent one and was so intended, even if such reasons were not disclosed at the time of the act. For example, evidence that the defendant’s secret motive was to obtain sexual gratification or to humiliate the victim may show that an act otherwise capable of being regarded as decent was indecent, and evidence that the motive was to punish wrongdoing, or to search the complainant, might show the contrary”.
    • 4. Further on at CA 135.02, the learned authors of Adams on Criminal Law(supra) go on to say:
    • “Where the act complained of is ‘inherently indecent’, the inference will generally be ‘irresistible’ that the intention was to assault the complainant ‘in a manner which right-minded persons would clearly think was indecent’ unless the defendant can suggest some ‘lawful justification’ for the conduct: R v Court, 42 – 43, per Lord Ackner – for example, that the act was done with a view to advice or treatment by a qualified, or even an unqualified, person: R v Hall [1952] 1 KB 302 (CA), at 307. In the absence of any such ‘lawful justification’, the fact that an ‘inherently decent’ act was done for the purpose other than sexual gratification is irrelevant: R v Court, at 35, per Lord Griffiths; R v K HC Whangarei CRI-2008-027-2728, 9 December 2009 (defendant claiming that his displacement of his (unconscious) victim’s clothing was to conceal his offending, not for sexual gratification”).

Discussion

Issue

12. Imeleta Toma Fipe, the alleged victim in this case, gave evidence that she woke up to the accused touching her vagina and getting on top of her with his penis on her vagina. There is no dispute that this happened to Imeleta. It is also undisputed that she did not consent to what happened to her. The issue in this case is whether it was the accused that committed these acts.

Evidence

13. Both Imeleta and her husband Toma Fipe gave evidence. They say that they had a few drinks that night. The accused and Eti Amituanai came to their house looking for cigarettes at about midnight but they did not have any to sell. They both say the accused was wearing a bright green tshirt and black shorts. They then fell asleep in their faleoo. They left a light on for their baby but cover the baby’s mosquito net with a sheet to shield the baby from the light. Imeleta says that as she was sleeping she felt someone touching her vagina as if to make it wet. She then opened her eyes and saw the accused on top of her and she could feel his penis on her vagina. She called her husband and he woke. Toma says when he woke he saw the accused crossing their feet so he kicked him and he fell against their speaker. The speaker fell outside ruining the puipui of their faleoo. Then the accused ran. He ran after him but turned back to put on shorts as he was wearing a sheet.
14. Toma says he ran to the boys still drinking in front of their house. Eti and Albert Afemata were there and he asked about Tiomai. He says Albert said he saw him running beside the church to Sulu’s house. He says he went to Sulu’s house and asked her about Tiomai and Sulu said that he was not there.
15. The alibi evidence was put to him that the accused was sleeping at Ulufale’s house and Talitonu’s at the time. Toma said he saw the accused with his own eyes when he kicked him. It was also put to him that the accused was sleeping at Sulu’s house with her husband and children. Toma said he only saw Sulu’s husband and children sleeping next to her when he went to ask Sulu about the accused.
16. Eti and Albert had been hanging around on the road in front of Toma’s house. Eti says the accused left them when they were hanging around at the maga fa.
17. Eti says the next time he saw Tiomai was when he appeared beside him and said he was cold then ran behind the church. He says about three minutes later, Toma came looking for Tiomai. He told Toma that Tiomai ran behind the church then Toma ran in the same direction.
18. Albert says that Tiomai left their group as well, then he saw him running from Toma’s house towards the church. He says he saw Tiomai as one of the lights from a house he ran past was on. He says about 3-4 minutes later Toma came asking for Tiomai.
19. Both Eti and Albert were adamant that they saw Tiomai. Both gave evidence that they saw him a few minutes before Toma came asking for him. Eti, Albert, Toma and Imeleta all know the accused as they hang around and are from the same village. They all gave evidence that Tiomai was wearing a bright green tshirt that night.
20. The defence called Ulufale Valu, Sulu Kaimo and Talitonu Pauese as alibi witnesses. Ulufale said that when she woke about 3-4am to wake her daughter to attend to her crying child, she saw someone sleeping in their front house. She told her husband and he woke the accused and the accused walked across the road to Talitonu and Sulu’s house. She is certain of the time because when she woke her daughter she asked her daughter for the time and her daughter replied about 3am ish.
21. 21. Sulu gave evidence that she was up all night preparing her cabbage for sale. She says that the accused came to her house and asked for cigarettes and food, so she gave him food, he ate, had a cigarette and then slept. She says this was about 1.30am-2am, although she later admitted that she was not sure about this timing. Sulu says that about half an hour after the accused fell asleep, Toma came looking for the accused. She says she lied to him that the accused was not there because Toma was holding a knife and she was worried about what might happen.
22. Talitonu stays at the house behind Sulu’s. Talitonu and Sulu are related through marriage. They are also related to the accused. She says the accused was home at about 2am-3am. She says after the accused ate, he slept in Sulu’s house just in front of hers. Then she fell asleep. She also admitted to not being sure about the time.

Findings

23. I find Imeleta, Toma, Eti and Albert to be credible witnesses. Their evidence was consistent in that both Imeleta and Toma saw the accused clearly when he was at their faleoo, and so did Eti and Albert when they saw the accused running behind the church a few minutes before Toma appeared looking for him.
24. I accept Imeleta and Toma’s evidence because they had a light on in their faleoo for their baby. The light was hanging from the ceiling next to Toma. They had a put a sheet to block the light over their baby’s mosquito net to allow the baby to sleep. I accept that they saw the accused clearly because their faleoo was lit and both say they woke to see the accused and his bright green tshirt. I accept Toma saw the accused when he kicked him as he was crossing their feet. There is no dispute the accused was wearing a bright green tshirt that night. That is also the evidence of Eti and Albert.
25. I also accept the evidence of Eti and Albert. Both were credible and did not falter under cross examination. Both say the accused left their group during the night, and the next time they saw him was just a few minutes before Toma came looking for him. I do find that this is a coincidence. I accept that the accused was running away after Imeleta and Toma woke up, and Toma kicked him.
26. In terms of the alibi evidence, I accept the evidence of Ulufale. She was certain about the time. I do not doubt that the accused slept at Ulufale’s front house and when woken he went to his family to sleep. I accept this was about 3am. It is possible for this to happen on the same night as he went to Imeleta and Toma’s faleoo. Talitonu’s evidence supports Ulufale’s evidence that the accused did come to their house, ate and slept. She accepted it could have been roughly around 3am.
27. I did not find Sulu particularly credible. I accept she was up all night. However, I do not accept her evidence that she lied to Toma about the accused not being there because she saw Toma with a knife. Her evidence about the time does not correspond to the evidence of Ulufale and Talitonu, neither does her evidence about when Toma came to her house. She says Toma came about half an hour after the accused had fallen asleep. However, I accept that Toma ran after the accused towards Sulu’s house a few minutes after the accused ran in that direction. This is the evidence I accept from Eti and Albert.

Result

28. After viewing the evidence in totality, I am satisfied beyond reasonable doubt that the accused attempted to sexually violate Imeleta Toma Fipe by attempting to lie on top of her and putting his penis on her vagina.
29. I am also satisfied beyond reasonable doubt that the accused indecently assaulted Imeleta by touching her vagina, an act which is clearly indecent, and that he intended to commit an assault which is indecent.
30. Accordingly I find him guilty of both charges.
31. The accused will be sentenced on 25 November 2021 at 12.30pm. A pre-sentence Report is ordered. He is remanded in custody until sentencing.
    

JUSTICE TUALA-WARREN