Police v RS [2023] WSSC 64 (18 July 2023)

SUPREME COURT OF SAMOA
Police v RS [2023] WSSC 64 (18 July 2023)

Case name:	Police v RS
Citation:	[2023] WSSC 64
Decision date:	18 July 2023
Parties:	POLICE (Prosecution) AND RS (Defendant)
Hearing date(s):	05 & 06 June 2023
File number(s):	Charging Document dated 06/05/22
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- O le aotelega o le mataupu lenei, o lona uiga mo moliaga nei e ono (6) na faasaga i lau susuga R ua faamaonia e le Fa'amasinoga ia moliaga e tolu (3) a ua faaleaogaina isi moliaga e tolu (3).
Representation:	E. Tiitii for prosecution D. Roma for defendant
Catchwords:	- Unlawful sexual connection, incest, indecent act
Words and phrases:
Legislation cited:	Crimes Act 2013, s.55
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

RS
Defendant

Counsel:
E. Tiitii for the prosecution
D. Roma for the defendant
Hearing: 05 & 06 June 2023
Decision: 18 July 2023

DECISION OF THE COURT

1. There are six (6) charges to which the defendant has pleaded not guilty. The first is that at Levi, Saleimoa on 26 August 2020 the defendant committed an indecent act on his son being a dependent family member under the age of 21 years by putting his penis inside the boy’s mouth.
2. The second charge is that same place between 01 January 2020 and early December 2020 the defendant had sexual connection with his biological daughter by touching her vagina with his fingers and thereby committing the crime of incest.
3. The third charge involves an allegation of an indecent act on another of his children but this was withdrawn at the beginning of the trial.
4. The fourth charge is that at Levi, Saleimoa between 01 January 2020 and 30 December 2022 he committed an indecent act on his daughter being a dependent family member under the age of 21 years by sucking her breasts.
5. The fifth charge repeats the same allegation and seems to be a repetition of the fourth charge.
6. The sixth charge is that at Levi, Saleimoa between 01 January 2020 and 30 December 2020 he did an indecent act on his biological daughter being a dependent family member under 21 years by putting his penis into her mouth.
7. Given the ages of the children, a suppression order permanently prohibiting publication of their names and details will issue and to further protect them this will extend to the defendant. This case will be reported in the law reports as Police v RS.
8. The evidence of the male complainant the defendants son was that on dates that he could not recall in the year 2020 when their family were living at Levi, Saleimoa he saw the defendant sexually assault his sisters. From page 4 of the transcript of evidence is the following:

“Fesili: I le taimi na nofo ai outou i Saleimoa, e iai se mea na tupu i Saleimoa?

Tali I

Fesili: Tago e faamatala mai poo le a le mea na tupu?

Tali Na tago lo’u tamā faamalosi o’u tuafāfine

Fesili: E a?

Tali Gofo lo’u tamā faamalosi o’u tuafāfine

Fesili: O ai le igoa o lou tamā lena?

Tali O R

Fesili: E faafefea na iloa e oe na mea?

Tali O le taimi na ou alu atu ai ou te alu e taele, a’o lae fai mai le mea i kokogu o le falekaele

Fesili: Ga e alaku e kaele, o fea e ku ai ga falekaele?

Tali O totonu o le fale

Fesili: O fea e iai le fale lena?

Tali E a?

Fesili: O fea e iai le fale na e iai le fale taele?

Tali Ku i lalo o le mago

Fesili: Ia na e alu atu o le a le mea lae tupu mai?

Tali Kago lo’u tamā fai le mea valea

Fesili: O le a le mea valea na fai?

Tali Ga kagokago i pi a o’u kuafāfige ma so’a o’u kuafāfige”

9. The boys description of the location tallied with an inspection of the scene by the court. However the room in question containing the “faletaele” was no longer there. It had been pulled down but there was evidence that a bathroom had been part of the room. Members of the family confirmed this and none of this was challenged by the defence.
10. When the male complainant was pressed for more details he confirmed that it was his younger sister whom the defendant had sexually assaulted. But there is no charge involving that younger sister.
11. The boy however went on to describe also being the victim of a sexual assault. When he was 8 years of age and at Primary School. He described an afternoon when his father chased his mother and his sister out of house. He undressed him and jumped on him, he described this as “oso i luga o a’u”. He says his father put his penis into his mouth and instructed him to suck it or be beaten. He also said that they were interrupted by his uncle and he vomited onto his uncles foot. As a result of this incident he was sent to live with his aunty.
12. In cross examination he elaborated that for this assault his father had tied him to a post in the house using a rope, which he later changed under further questioning to it being a white electrical wire. In cross examination he also retracted that part of his testimony about the defendant “oso’ or jumping on him. Neither the uncle nor the aunty was called to collaborate the testimony of this young boy.
13. The evidence of the defendants now 10 year old daughter was that on a date unknown but while she was in Year 1 at the local Primary School at Levi, Saleimoa her father did “a meavalea” to her. He took her to the toilet pulled down her pants and fondled her left breast. He put his penis into her mouth and touched the inside of her “pi” with his hands. She resisted and he also asked her to touch and suck his breast which she refused to do. Her further testimony was he also sucked her right breast twice which was painful. Her evidence also mentioned the defendant putting his pi to her pi but she did not provide any further details.
14. When challenged in cross examination with her father’s denials she twice adamantly and emphatically insisted she was telling the truth.
15. The police also called the mother of these children but her evidence was unhelpful. Apart from confirming the number of children and some date of births she maintained she knew nothing of these happenings. She had a subsequent argument with the defendant and left the family home and has never returned. It was left to her sister to look after the children in conjunction with the defendant.
16. I found her ignorance of these events difficult to accept. Her abandoning of her children is quite inexcusable especially since the evidence established that one of her daughters is physically challenged and partially handicapped. According to the defendant she had an extramarital affair and left the family for another man and has had no further contact with the children.
17. The final prosecution witness called by the police was a lady from Leonē who is unrelated to the parties. It seems the family left Levi, Saleimoa and moved to other places in Saleimoa and elsewhere ending up in August 2020 in Leonē in Apia. She said the family came to her in August 2020 and she felt sorry for them as they had nowhere to live and because the defendant had a number of children one of whom was handicapped.
18. The testimony was they lived with her for two weeks and during this time she noted how strangely the defendant behaved in relation to his children. He would generally keep them locked in their room and would insist on bathing his daughters himself. Even though she volunteered the services of older girls of her family this was declined.
19. One day she was told something had happened to one of the young girls so while the defendant was at work she questioned her. The 10 year old told her of being sexually assaulted and as well the handicapped child also indicated the defendant had sexually assaulted her.
20. As a result her and her husband confronted the defendant when he returned from work that evening. The following is from page 44 of the transcript and relates to his apology:

“Fesili: Na alu atu la R?

Tali Ia na alu atu R fai loa iai le ma tala ma ma fesili iai ma ou otegia. Ae pau a le tala a R na’o le faatoese lava.

Fesili: Faatoese ia ai?

Tali Faatoese atu i a ma’ua ae na ou fai iai, e te le faatoese mai ia maua o le Atua o loo soifua.

Fesili: A’o le a lau tala na fai ia R i le taimi na tou talanoa ai?

Tali Na ou otegia i le faiga o lana fanau, o lea ua ou tali tonu i le mea e alai ona alu e faataele tamaiti ma mea leaga o loo fai iai. O lona le alofa, o lana lava fanau.

Fesili: A’o le a le tala na fai atu ai R ia oe i lea po?

Tali E leai se tala a R na’o le punou lava o R ma faatoese.

Fesili: O le a lana faatoese na fai?

Tali Fai mai malie lo’u loto. Lae fai atu ia ma’ua ma lo’u to’alua fai mai malie ma loto. E leai a ma seisi tala fai mai malie o ma loto o ia e alofa i lana fanau.”

21. She said it was her who reported this matter to Samoa Victim Support Group and to the Police. The complainants in these charges now reside with the Samoa Victim Support Group. When questioned by defence counsel about the reasons for the defendants apology the witness had this to say as recorded in page 48 of the transcript:

“Fesili: Faafetai Mesepa, o lea foi sa e tā’ua sa faatoese atu le tamā lea ia R i le taimi na fai ai le tou talatalanoaga ma le tou aiga. O le tala a R na fai, na ala ona faatoese atu ona o lea e fa’atei’a ia i le avatu o ia fai le tou tala lea, a’o lana mau lava na te lei faia se mea.

Tali E leai se upu na faapea mai ia maua ma lo’u to’alua e leai se mea na faia. Na otegia ma ou fai atu iai o le a ma o i le Toomaga. Ae sau le upu e faatoese mai ma le manatu o R o le faatoesega lena o le a tanu ai lalo na mea. Leai na ou fai atu iai ou te le toe manao e nofo ii, tuu tamaiti – o le po lava lena na fai ai le matou tala o le taeao – Na ou sauni lava o iai R. Tapena e R tamaiti ma la’u tala na fai iai e aua le avea tamaiti ma le teine o lea o le a ou alu ile Toomaga.”

22. This evidence is important because it comes from an independent witness who has no connection to either the complainants or the defendant.
23. The defendant elected to testify. He denied all the allegations from both the complainants and the following is recorded on page 57 of the transcript:

“Fesili: R o lea foi na e faafofoga i le mau a M lea na fai i luma o le Fa’amasinoga, o le a sau fa'amatalaga i tuuaiga ua tuuaia ai oe e lou afafine lea o M?

Tali: Faafetai, pei ona ou fai atu i le taimi ua sole, ou te leiloa poo fea le mea e aumai ai e nei tamaiti le tuuaiga o a’u. Ou te tago faapepe lelei fafaga, ave tupe alu i le taeao momoli i le aoga ma aumai. Ou te le’o faapea foi ua ou alu taele, ua ma o loka le fale, o le fale e tatala faasoloatoa le fale, e tilotilo mai lo’u uncle, tilotilo mai lo’u sister ile fale lea maute nonofo ai. E leai a ma sa’u mea na faia i tamaiti, a’o le mea lea ua iai ua aumai e le fanau fa'amatalaga e le manuia I lenei taeao.

Fesili: R e iai se mafuaaga ua fai fua e tamaiti nei fa'amatalaga?

Tali: Pei ona ou tali atu ou te lei faia, ou te lei faia ia tulaga matavela faapea i lenei taeao.”

24. It was clear from the defendants evidence that the family moved around alot from Levi to other sub villages of Saleimoa. And then to Leonē in Apia where he lived with another family before shifting to the house of the female witness in August 2020.
25. I did not find his explanations for moving around convincing, especially considering as he said in his evidence that their family had five or six houses in Saleimoa. The obvious withdrawal of support of his family reinforces the prosecution case that all was not well in this family.
26. The defendant himself was not a good witness in the witness box. He was asked several times by counsels why the children would make these allegations against him. He had no real answer save to repeat his denials. His demeanour also indicated clearly to me he was uncomfortable answering that particular line of questioning. It also did not help his cause that several times under questioning from the court he changed his evidence, an example of this can be found at pages 69 and 70 of the transcript when questioned on the reasons for the family constant moving from place to place. I also found it odd as admitted to by the defendant on pages 74 and 75 of the transcript that he found it necessary to bath his young female children in the morning when he returned from work as well as in the evening.
27. I do not overlook the fact that at one point in cross examination he also admitted that the reason he apologised to the lady in Leonē and her husband was because “ua lagona lo’u sese”. The following is recorded on page 73 of the transcript:

“Fesili: Ia. Na talanoa atu Mesepa iā oe i le mea lea e tupu i lau fanau teine ae e faatoese iā Mesepa, e sa'o?

Tali: Na fai mai Mesepa iā te a’u poo ua ou iloa lou sesē i mea ia ua tupu ae ou fai atu, “Ou te lē iloa.” O le sa’o na o lo’u tala.

Fesili: Ae e te le’i fai i ai, “Malie lou loto”?

Tali: Na uma na fai la’u tala ou fai atu i ai – fai matou faiga mea, “Malie lua finagalo ua lagona lo’u sese. O le a le mea ua tuuaiina ai a’u o a a’u mea na fai i lo’u fanau?

Fesili: Ua lagona lou sese i le a le tulaga?

Tali: Le tulaga lea sese tusa faapea Mesepa ua ou faia mea leaga i lo’u fanau.

Fesili: O le mea lena na e faatoese ai?

Tali: O le mea tonu na.

Fesili: Ua lagona lou sese?

Tali: Ioe.”

28. In relation to the first charge of committing an indecent act against your son I am not satisfied beyond reasonable doubt on the uncorroborated evidence of the young boy that this indeed happened as he described. There are many strange portions of the young boy’s testimony, for example the wife and children being chased out of the house in the middle of the afternoon and then being kept out by the defendant when this incident supposedly happened at Levi, Saleimoa. Also his evidence about being tied up by a rope which he later changed to a white electric wire. These sorts of matters create in my mind a reasonable doubt. There has also been no explanation why the uncle who supposedly interrupted the offending and who still lives in Saleimoa was not called.
29. The young child’s testimony is far from satisfactory. His demeanour also in testifying left alot to be desired, he seemed to be making light of all this. And he appeared obviously happy to be now living with Samoa Victim Support Group away from your control. That can be a powerful motive to fabricate, that charge is not proven to the required standard it is dismissed.
30. I have no such doubts about the evidence of your 10 year old daughter however in relation to the charges concerning her. Her evidence was cogent forceful and very credible and was only strengthened in cross examination. In relation to the second charge the element of unlawful sexual connection by using his fingers or hand to penetrate or otherwise make contact with her genitalia has been proven beyond reasonable doubt. I am also satisfied beyond reasonable doubt you are the natural father of the young girl you are found guilty of the crime of incest contrary to section 55 of the Crimes Act 2013.
31. Charge number 3 was withdrawn by the prosecution I need not deal with it.
32. But in relation to charge number 4 of committing an indecent act on the young girl by sucking her right breast I also accept her evidence in that regard and find you guilty.
33. Charge number 5 is a repetition of number 4 it is dismissed.
34. In relation to charge number 6 of committing an indecent act on your daughter by putting your penis into her mouth contrary to section 56 (3) of the said Crimes Act 2013 I also accept her evidence in that regard and in preference to yours and find you guilty accordingly.
35. O le aotelega o le mataupu lenei, o lona uiga mo moliaga nei e ono (6) na faasaga i lau susuga R ua faamaonia e le Fa'amasinoga ia moliaga e tolu (3) a ua faaleaogaina isi moliaga e tolu (3).
36. In terms of a sentencing date he will need a pre-sentence report Mrs Roma. O le mataupu lea o le a tolopo i le aso 02 o Aokuso i le ta o le 12:00 i le aoauli R mo se ripoti mai le Ofisa Fa'anofo Va'ava'aia masalo e faailoa atu e le tamaita’i loia le Ofisa Fa'anofo Va'ava'aia. E tatau na tapena mai lau ripoti e fesoasoani le ripoti lena ia oe, aua e te faatamala iai. Tulaga lea e tatala ai oe i tua e fa’aauau pea a’o faatalitali le fa’aiuga o lau mataupu. Ae lelei a lou nofo tapena i se faaiuga laga o mataupu faapenei e ogaoga fa’asalaga o lea e fa’ata’atia mai e le ulafono. A’o le aso 02 o Aokuso ta o le 12:00 i le aoauli o le aso lena e lau ai le fa’aiuga o lau mataupu.
    

JUSTICE NELSON