Police v Siafolau [2023] WSSC 18 (5 May 2023)

IN THE SUPREME COURT OF SAMOA
Police v Siafolau [2023] WSSC 18 (05 May 2023)

Case name:	Police v Siafolau
Citation:	[2023] WSSC 18
Decision date:	05 May 2023
Parties:	POLICE (Informant) v MALILI SIAFOLAU, male of Faleatiu (Accused)
Hearing date(s):	01 & 02 May 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	I find the accused guilty of all 3 charges. He is remanded in custody to Wednesday 17 May 2023 at 12pm for a sentencing memorandum by prosecution, a presentence report, the plea in mitigation by counsel and for me to pass sentence.
Representation:	I. Atoa & E. Lam for the Informant L. Sio-Ofoia for Accused
Catchwords:	Unlawful sexual connection – common assault – armed with a dangerous weapon.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 49(1)(b); 50(b); 52(2); 123; Police Offences Ordinance 1961, s. 25.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MALILI SIAFOLAU 42 year old male of Faleatiu.

Accused

Counsel: I. Atoa & E. Lam for the Informant

L. Sio-Ofoia for Accused
Hearing: 1 & 2 May 2023
Decision: 5 May 2023

JUDGMENT

Charges

1. The accused faces the following charges from an incident that occurred inland of Faleatiu on 23 July 2022. The victim is Pepa Pa’uulu, female now 26 years of age from Faleatiu:
   • (i) unlawful sexual connection with the victim by licking her genitalia (s49(1)(b), 50(b) & 52(2), Crimes Act 2013);
   • (ii) common assault (s123, Crimes Act 2013);
   • (iii) being armed with a dangerous weapon, namely a rock, not being armed for a lawful purpose (s25 Police Offences Ordinance 1961).

Evidence for prosecution

2. Prosecution called 4 witnesses namely Constable Eli Junior Wilson who took photos (exhibit P1) of the scene 4 days after the incident, the victim, Henrietta Fifita, a registered nurse who saw the victim after the incident, and Litala Sapati, a first cousin of the accused whom the victim and her son sought help from moments after the incident.

Victim

3. The victim was at home in their shelter with her 2 year old son on the evening of 22 July 2022. Earlier in the day, her father had gone seaward to take his mother’s food, and her husband and their 2 older kids to Fasitootai where his family was preparing for a funeral. By 8pm and her husband had not returned, she started to prepare her bed with her son using a torch as they had no electricity. She saw a torch being shone outside and knew it was the accused because his was the nearest house to their shelter.
4. Not long after they lay in bed, the accused entered the shelter, sat at the corner and placed his machete on the wooden floor. He was intoxicated and smelt of alcohol. He asked for tea and was told to get a cup from outside. He returned to the shelter, poured his cup and told the victim he would leave when he finished his tea. He did not but engaged in a conversation with the victim. He asked for her husband and she lied to him that he was out shooting bats. But he remained in the house insisting the victim and her son were alone and lay across infront of where the victim and her son were about to sleep. The victim sat up and told the accused to leave but he would not, saying that only if they had sex. The victim told him that she loved her husband but he persisted and continued to insist.
5. The accused then stood up, walked outside and shone his light around the shelter. He returned inside and as the victim tried to light her torch, the accused threw at her what appeared to be a rock. It hit her on the back of the head and she fell. She felt sparks and had difficulty moving but tried to get up when she heard her son crying. She also started to scream but the accused held her by the neck and strangled her. She struggled to resist and felt that she could not any longer. She pleaded with the accused to let go and she would do as he wanted. The accused then got off the victim’s stomach. She tried to calm her son who had been crying and put him back to sleep.
6. The accused remained in the house and told her apologetically that he had done much wrong (‘ua telē a la’u agasala’). The victim got up and told the accused she wanted to go to the toilet but the accused thought she was escaping. He pulled the victim towards him, pulled down her panties and proceeded to lick her vagina as she tried to push his head away. She managed to get up and walked outside from where she called the accused to leave. But the accused kept asking her to come back inside. The victim went back inside to put her son to sleep again when the accused begged her for one more. The victim insisted that he leaves but the accused grabbed her legs, pulled her towards him and again proceeded to lick her vagina. This continued for some time before the victim stood up.
7. Before the accused finally left, he raised concern that the victim would tell someone. To make him leave, the victim assured him that she would not and asked for a fine mat for her faalavelave. The accused told her not to worry, he would get a fine mat from his own faalavelave.
8. Later in the evening and fearful for their safety, the victim gathered her son and began walking seaward. They could see a torch being shone behind them. They turned into Litala’s property, which was the only house with lights still on. She called Litala and he responded. He asked what happened and the victim told him that the accused tried to force him (‘na taumafai Malili e faamalosi a’u’). Litala then called his mother on the phone and asked her to bring with her the accused’s mother and his wife. When they arrived, the victim told them what happened before they went to Faleolo police when she made a formal complaint. Thereafter, she was accompanied to Leulumoega District hospital for examination.
9. The victim was unmoved under cross examination. It was put to her that the accused’s visit was pursuant to a plan they made the previous day. It was strongly suggested by counsel that what happened was consensual. The victim had enticed the accused by flashing him her private part; and the victim wanted a fine mat for her faalavelave from the accused in return. The victim maintained however that she made no such plan with the accused. She offered to do what he wanted only so he could stop strangling her and let go. Even then, she struggled to hold the accused’s head off when he pulled her towards him and proceeded to lick her vagina. She strongly denied that the reason why she reported the incident was because the accused had not given her a fine mat.

Henrietta Fifita

10. Registered nurse Henrietta was working at the Leulumoega District Hospital when the victim was brought in. She examined her vitals and found swelling on her head. She found no open wound and no bleeding. She does not remember on which part of the victim’s head she found swelling. It was obvious that her report (Exhibit P2) on her examination and treatment of the victim was wrongly dated 22 July 2022. Following cross examination and in answer to questions from the court, she explained that whilst the report makes no mention of swelling on the head in her findings, it was in fact the subject of the victim’s complaint and she recalls having found swelling during her examination.

Litala Sapati

11. Litala confirms that the victim and her son came to his house around 11pm to midnight on 23 July 2022. He was still up watching his phone when the victim called him from outside. He brought them in and noticed the victim was crying. He asked her 3 times what happened but she did not say anything. He kept asking and the victim told him the accused forced her (‘O Malili na faamalosia a’u’). She further told Litala that the accused was behind them but he never got to the house. Litala confirms that he then called his mother Fati on the phone and asked her to also bring the accused’s mother and his wife because he wanted them to hear the victim’s complaint. Upon arrival, the victim told them what happened. The accused’s wife asked what time it happened and the victim replied it was around 8pm. The accused’s wife then apologised to the victim.

Evidence for the defence

12. The accused elected to testify. He does not dispute visiting the victim’s shelter but says that it was pursuant to a plan he made with the victim the previous day. On that day according to the accused, the victim asked for a fine mat for their contribution for a faalavelave. Their conversation then turned to sex with the victim saying she wanted a baby girl and the accused suggesting that he could help satisfy her desire. The victim then told him that if he could get her a fine mat, she would tell her husband and children to go to Fasitootai the next day so that the accused could pay her a visit later at 7pm.
13. As to the incident, he says that when he got to the victim’s house as they planned, the victim kept finding reason to avoid or delay having sex with him. She told him that they would not do it all because he had not given her a fine mat. She then stood up, opened her lavalava and held his face against her vagina whilst he was still seated. He grabbed the victim by the legs at the same time and this went on for about a minute. The victim did this twice and he complained that it was not what he had come all the way in the dark for. In response the victim told him that she would need to see the fine mat first. Unhappy with the victim’s response, he grabbed a piece of wood and threw it at her. It hit her on the head. The victim then told him that what had just happened between them should remain buried inside the house as it would cause her shame and embarrassment (‘O le mea na tupu ia tanu lava i totonu o le fale lenei ...ona e mā ai’). He left the house and went home. He did not follow the victim and her son later when they left and walked seaward.
14. Under cross examination, he conceded that he was there to have sex with the victim. He expected the victim to also want the same thing as they planned. He further conceded that he was angry because the victim had deceived him when he had come all the way late in the evening, so he threw a piece of wood which hit her on the head.

Discussion

Unlawful sexual connection

15. For the charge of unlawful sexual connection, prosecution must prove:
    • (a) there was a connection being between the accused’s mouth or tongue and the victim’s genitalia; (and)
    • (b) the victim did not freely or voluntarily consent.
16. As to the first element, it is not disputed that there was connection between the accused’s mouth and part of the victim’s genitalia. The only dispute relates to the nature of the act. The victim says that twice, the accused pulled her by the legs towards him and proceeded to lick her vagina while she was lying down. The accused on the other hand says that on both occasions, he was seated whilst the victim was standing. The victim held his face against her vagina. He did not lick but sniff the victim’s private part.
17. I have carefully listened to the accused and observed his demeanour. I found his evidence most incredible and have no difficulty accepting the victim’s testimony as to how the offending occurred. On the victim’s evidence, I am satisfied that on both occasions, the accused did lick her vagina.
18. Likewise, in respect of the second element, I have no difficulty rejecting the accused’s evidence that what happened was with the victim’s consent and pursuant to their plan. I find that the accused got to the victim’s house uninvited and intoxicated when she and her son were preparing to go to sleep. He was after sex with the victim and would not leave until he got what he wanted. By his own admission, he wanted to have sex with the victim and understood the victim to also want the same thing. I accept the victim’s evidence that on both occasions he forcefully grabbed her by the legs, pulled her towards him and proceeded to lick her vagina. I accept further that on the first occasion, the accused attacked the victim and stopped only when she pleaded with him to let go and that she would do what he wanted.
19. Further, there is no sense in the defence’s suggestion that the victim reported the incident the same evening because the accused had not given her the fine mat. The victim’s undisputed evidence is that not long after the accused left and fearful for their safety, she gathered her young son, left their house and walked quite a distance seaward close to midnight, and sought help from the first house they came across with lights on. Reluctantly she told Litala and later Litala’s mother, the accused’s mother and his wife when they arrived. She was taken to police to file a complaint and subsequently the hospital for an examination. In the circumstances of this case, those are not actions of someone who had just had planned and consensual sex. Indeed, they are of someone who had been subjected to unwanted sexual advances and abuse and was desperately seeking help.
20. I am satisfied therefore that the sexual connection was without the victim’s consent freely and voluntarily given.
21. Prosecution has proven both elements of the first charge beyond reasonable doubt.

Common Assault

22. On the second charge, prosecution must prove:
    • (a) there was an intentional application of force by the accused on the victim; (and)
    • (b) the victim did not consent.
23. By his own admission, the accused threw what he claims to be a piece of wood at the victim because he was unhappy at her for not doing what he came for. It is immaterial the difference between wood and a rock as claimed by the victim. The fact is the accused’s act was intentional. It hit the victim on the head and there cannot be any suggestion that she consented.
24. I find that prosecution has proven the second charge beyond reasonable doubt.

Armed with a dangerous weapon

25. On the same evidence I find that prosecution has also proven the third charge beyond reasonable doubt. Clearly his purpose for using the object was to assault the victim and there was no lawful justification for it.

Result

26. For the above reasons I find the accused guilty of all 3 charges.
27. He is remanded in custody to Wednesday 17 May 2023 at 12pm for a sentencing memorandum by prosecution, a presentence report, the plea in mitigation by counsel and for me to pass sentence.
    

JUSTICE ROMA