Police v Tuiloma [2023] WSSC 51 (23 August 2023)

IN THE SUPREME COURT OF SAMOA
Police v Tuiloma [2023] WSSC 51 (23 August 2023)

Case name:	Police v Tuiloma
Citation:	[2023] WSSC 51
Decision date:	23 August 2023
Parties:	POLICE (Prosecution) v OLASA JAMES TITO TUILOMA male of Magiagi, Luatuanuu and Siusega (Defendant).
Hearing date(s):
File number(s):	Charge 1, 2, 3, 4 per Charging Document dated 6/12/22.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	The application to withdraw the charges is accordingly granted. The charges are withdrawn and dismissed. Accordingly, prosecution is directed to refer this matter to police to consider appropriate charges including misleading police against the victim in this case. Given the outcome of these proceedings and in the interests of justice, the order I made suppressing the publication of both the victim and your names, ages, village or other details that may reveal your identities is now lifted.
Representation:	E. Lam for Prosecution T. Leavai for the Defendant
Catchwords:	Application to withdraw charges – incest – sexual connection.
Words and phrases:	“Victim admitted to lying”- “charges withdrawn and dismissed”.
Legislation cited:	Crimes Act 2013, ss. 50; 55; 56; 57.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

OLASA JAMES TITO TUILOMA male of Magiagi, Luatuanuu and Siusega

Defendant

Counsel: E. Lam for Prosecution

T. Leavai for Defendant
Ruling: 7 August 2023

ORAL RULING OF JUSTICE ROMA
(Application to withdraw charges)

1. Defendant as you know this matter was set for hearing last week, commencing on the 2nd August. On that day prosecution sought to withdraw all four (4) under the Crimes Act 2013 - two (2) of incest (s55); and two (2) of sexual connection with a dependent family member under 21 years (ss50, 56 & 57). The ground of the application is that the victim had recanted a detailed statement made to police on the 6th September 2022, which formed the basis of the charges brought by prosecution against you.
2. Prosecution produced a one - page statement dated the 1st August 2023 in which the victim basically says that what she told police on the 6th September 2022 were all lies. She says further that she told police what is contained in her statement of 6th September 2022 so that she could be released from the care of Samoa Victim Support Group. She was not released but escaped from SVSG and went back home days after making that statement.
3. Concerned at the voluntariness of recanting her statement the court called the victim and inquired of the reasons under oath. She maintained that what she told police about the allegations and charges against you were false.
4. I have gone back to this file and noted that the victim did not just make one statement to police. Her first interview on the 6th September 2022 is recorded in an eleven – page document. She made an additional four – page statement on the 16th November 2022 in which again the details of the alleged sexual offending are explicit. I find most incredible that she would go into such detail in respect of the allegations before simply recanting all in a brief statement. But I am not required to decide the victim’s credibility here, the issue is whether there is a proper basis for prosecution to seek to withdraw the charges.
5. Prosecution has now filed a more detailed memorandum dated today the 7th August. It confirms that in their briefings in preparation for trial, the victim has always maintained that there was no truth in the allegations of sexual offending concerning her accused stepfather. In the circumstances, despite the court’s concerns earlier expressed, I am satisfied that prosecution cannot proceed further with the charges.
6. The application to withdraw the charges is accordingly granted. The charges are withdrawn and dismissed.
7. Before you are stood down I express serious concerns in the way this complaint has been laid and how these charges have ended up in court. If the victim is indeed correct, then it is most unfair that you have had to go through the criminal justice system for almost a year now on the basis of false accusations only for the charges to be withdrawn at this late stage. On the other hand, this has been a complete waste of police and prosecution resources as is the court’s time.
8. Accordingly prosecution is directed to refer this matter to police to consider appropriate charges including misleading police against the victim in this case. Given the outcome of these proceedings and in the interests of justice, the order I made suppressing the publication of both the victim and your names, ages, village or other details that may reveal your identities is now lifted.
9. Thank you, you may stand down.

JUSTICE FEPULEA’I A. ROMA