Police v Vitale [2021] WSSC 90 (22 April 2021)

IN THE SUPREME COURT OF SAMOA
Police v Vitale [2021] WSSC 90 (22 April 2021)

Case name:	Police v Vitale
Citation:	[2021] WSSC 90
Decision date:	22 April 2021
Parties:	POLICE (Informant) v PILI VITALE, male of Vaivase-tai (Defendant)
Hearing date(s):	17th & 18th March 2021
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	I find that the prosecution has proven beyond reasonable doubt that the defendant touched the victim’s bottom and vagina and that he assaulted the victim with the intention to commit sexual violation.
Representation:	L. Sio for the Informant S. Chan Chui for the Defendant
Catchwords:	Assault with intent to commit sexual violation – indecent assault – sexual harassment.
Words and phrases:	“occurred in the workplace”
Legislation cited:	Crimes Act 2013, ss. 53(2); 60.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

PILI VITALE, male of Vaivase-tai, Samoa

Defendant

Counsel: L. Sio for the Informant
S. Chan Chui for Defendant

Hearing: 17^th & 18^th March 2021
Written Decision: 22 April 2021

JUDGMENT OF TUATAGALOA J

This is the written decision with reasons of the decision delivered orally on 23 March 2021.

The charges

1. The defendant is charged with three offences of assault with intent to commit sexual violation^[1] and two counts of indecent assault^[2] by touching the victim on the bottom and her vagina.

The law

2. The prosecution has to prove each of the elements for each offence beyond reasonable doubt:
   • Assault with intent to commit sexual violation –
     • (i) The defendant assaults the victim; and
     • (ii) The defendant intent to commit sexual violation.
   • Indecent Assault (x2)
     • (i) First, the defendant must have committed an assault upon the complainant.
     • (ii) Secondly, the assault must have been indecent. Whether an assault is indecent is to be decided by applying what you consider to be the standards of decency that are commonly accepted in our community.
     • (iii) Thirdly, the defendant intentionally touched the victim on her bottom and vagina.
3. An assault, in law, is the intentional application of force by one person to the body of another person. Thus mere touching of another person’s body is an assault unless it was accidental.

Undisputed facts

4. The following facts are not disputed:
   • (i) Both the victim and the defendant work for the Samoa Water Authority;
   • (ii) The victim was working late on Friday, 8 May 2020;
   • (iii) The defendant and two other male colleagues were also at the office talking and they left at around 6pm;
   • (iv) Defendant later returned to the office;
   • (v) Defendant touched and caressed the victim’s back;
   • (vi) Defendant grabbed the victim’s shirt; and
   • (vii) Defendant touched the victim’s upper left leg.

Disputed facts

5. The victim says that the defendant touched her bottom and vagina by putting his hand through her skirt and panties. The defendant denies having touched the victim’s bottom and vagina.
6. The issue is one of credibility; who of the victim or defendant’s evidence the Court considers as most credible.

The evidence

7. This matter came to light when the victim in the week following the incident reported the matter to the Manager of Finance^[3] and Manager of Human Resources^[4]. Both gave evidence and relayed to the Court that the victim saw them on separate occasion and was visibly upset and her hands were shaking. Both said that the victim told them that the defendant touched and caressed her on her back and also touched her left thigh. They also spoke to the defendant separately who did not deny touching the victim on her back and left leg but put it all down to, “o tausuaga” (playful bantering).
8. The victim was asked why she did not tell Heseti and Ruby that the defendant actually touched her on the bottom and vagina when he put his hand through her skirt and panties; and she told the court that she was embarrassed to tell Heseti and Ruby exactly where he had touched her and also how she would be perceived by her work colleagues. What was clear in Heseti’s evidence was the victim’s reluctance to explain what happened; she had to reassure the victim that in sharing with her, the issue can be addressed. The victim was only able to fully open up and give her account of what actually happened and exactly where the defendant had touched her when she was interviewed by the police at the Police Station (away from the office). She said she felt secure and not so embarrassed to tell because the police officer who interviewed her encouraged her to speak up, understandably it’s not easy to talk about but they (the police) are used to the nature of such cases.
9. She said that she did not like or consent to the defendant touching her. In her evidence she slapped the defendant’s hand from touching and caressing her on the back. Despite attempts to stop the defendant from continuing by slapping his hand away, telling him to stop and even attempts to move away from him, by doing this the defendant pulled her shirt up and put his hand through the back of her skirt and panties and touched her bottom. Later on the defendant boxed her in the tiny work space she sits by leaning towards her from the side with his right hand on her desk, with his left hand he touched her left thigh. She said that the mini skirt she wore hitched up when she sat down and the defendant put his left hand through her legs into her panties and touched her vagina. The victim said she held onto his left hand to stop his hand from moving any further.
10. Prior to the touching, the defendant asked the victim what turns women on or her, to which the victim responded that for her it would be her back. The victim also said in evidence that the defendant kept saying to her words to the effect for them to have sex (‘e a pe a fai se ta mea se tasi...’) and that no one needs to know and that he would never tell. The victim said that she never thought that the defendant would touch her in the way that he did. The defendant himself said that it was the victim that initiated the conversation of a sexual nature which led to him asking her. If there was such a conversation, this does not mean it gives anyone the green light to touch a person in such a way.
11. The defendant denies touching the victim on her bottom and vagina. He insisted in his evidence that he was in a “blind relationship” with the victim to which the victim said never existed and that she does not know what a “blind relationship” is. When questioned, the defendant said he used those words to describe the relationship he had with the victim at the time, a relationship he says no one in the office knew about. Manager of HR and another colleague and close friend of the defendant, Henry Tuala Taimalelagi were asked if they knew of a relationship between the defendant and the victim and both were oblivious that anything was even going on between the two. Henry himself looked surprised when he was asked of a boyfriend-girlfriend relationship between the defendant and victim.

Discussion

12. This case has highlighted inappropriate behaviour existing within working environment, in this case the Samoa Water Authority. It seems that these inappropriate exchanges between colleagues of a sexual nature termed as “tausuaga” makes it ok for male employees to think they can treat female co-workers with such callous behaviour. To accept this as “ok” is problematic because it is a serious issue yet taken light heartedly by those saying the remarks or those on the receiving end.
13. I find that the defendant knew that when he left with the other two male colleagues that the victim was on her own working after hours. The defendant had ample time to leave but he didn’t. He could have left when the victim was answering her phone but instead he went and sat at a desk behind the victim. He should have known that the victim did not like him touching and caressing her on the back when she slapped his hands away and also telling him to stop; instead, he persisted and even tried to pull the victim towards him by her shirt. Is this the behaviour to be displayed by someone with clean intentions? If the defendant and the victim were in fact in a secret relationship despite both being married, why would the victim risk lodging a complaint with Office Management? I find the defendant lied in saying him and the victim were in a relationship.
14. As I’ve said earlier, this case comes down to credibility of whose evidence the court finds credible. I find the defendant’s evidence far from being credible. I find the defendant’s explanations and answers confusing, farfetched and at times did not make any sense at all.
15. I accept the evidence of the victim in its entirety. I find her a credible witness.
16. Even if I did not find that the defendant touched the victim’s bottom and vagina, the defendant by touching and caressing the victim’s back and touching her left thigh is in itself indecent. Accompanying those actions with what he was saying to the victim is a strong inference of his intentions to commit sexual violation.

Conclusion

17. I find that the prosecution has proven beyond reasonable doubt that the defendant touched the victim’s bottom and vagina and that he assaulted the victim with the intention to commit sexual violation.

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, s53(2).
^[2] Crimes Act 2013, s60.
^[3] Mrs. Heseti Sione-Vaai.
^[4] Mrs. Ruby Scheck.