Police v Hunt [2023] WSSC 92 (13 December 2023)

IN THE SUPREME COURT OF SAMOA
Police v Hunt [2023] WSSC 92 (13 December 2023)

Case name:	Police v Hunt
Citation:	[2023] WSSC 92
Decision date:	Decision: 06 December 2023 Written Reasons: 13 December 2023
Parties:	POLICE (Informant) v PAONO SALEVASA HUNT, male of Saleimoa, Vaitoloa, Lotofaga & Safata (Defendant)
Hearing date(s):	13th & 14th November 2023
File number(s):	Charges 1, 2 & 3 per charging document dated 29/06/20
Jurisdiction:	CRIMNAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	For the above reasons, I find the accused not guilty and acquitted him of all 3 charges.
Representation:	L.Sio for the Prosecution L. Taimalelagi for the Defendant
Catchwords:	Unlawful sexual connection – indecent assault.
Words and phrases:	“Defendant acquitted of charges”.
Legislation cited:	Crimes Act 2013, ss. 49(1)(b); 52(2); 60.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

PAONO SALEVASA HUNT male of Saleimoa, Vaitoloa, Lotofaga and Safata

Counsel: L.Sio for the Prosecution

L. Taimalelagi for the Defendant

Reasons: 13 December 2023

REASONS

Charges

1. The accused is charged that on the 25^th May 2022:
   • (a) he sexually violated Gaumalila Ese (“complainant”) by way of sexual connection by masturbating her vagina (s49(1)(b) & 52(2) Crimes Act 2013);
   • (b) he indecently assaulted the complainant by touching her breasts (s60 Crimes Act 2013);
   • (c) he indecently assaulted the complainant by sucking her breasts (s60 Crimes Act 2013).
2. On 6 December 2023, I found that prosecution had not proven all three charges beyond reasonable doubt. I found the accused not guilty and acquitted him of all three charges.
3. These are my reasons.

Evidence

4. Prosecution called 7 witnesses.

Pio Tautai Pio

5. Pio lives at Levi Saleimoa. He told the court that around 11am on the 25^th May 2022, he drove from Saleimoa to Leauvaa to buy alcohol for his workers. At Leauvaa on his return, he saw the complainant sitting at a three corners. He knew her because she had stayed previously with his family at Saleimoa. He asked where she was headed and the complainant replied, “fia maua se aiga e nofo ai”. He asked her further “pe fia maua sona toalua” and she inquired “se fea lena tama?” He told her “e i uta atu o lo matou fanua, ma e leai se toalua.”
6. The complainant then agreed to go with him. They went back to the family that the complainant had been staying with to pick up her bags before they headed inland of Saleimoa to where the accused’s house was located. On the way they picked up Asofa and his brother Viane who had earlier asked Pio for a lift to the plantation.
7. Pio also told the court that when they arrived at the accused’s house, he gathered the complainant’s bags, they both got out and walked towards the accused who was surprised by their arrival. They spoke with the accused inside the shelter for about 30 minutes. He told the accused about the complainant and the complainant agreed to stay with him saying “mea sili ua oo mai”.
8. Under cross examination, Pio agreed that for the whole time from when he picked up the complainant to when he picked up Asofa and Viane and later continued inland to the accused’s house, the complainant neither objected nor showed any signs that she refused. According to Pio, the complainant wanted to be taken to the accused.

Asofa Iupeli

9. Pio’s evidence is supported by Asofa Iupeli. He confirms being picked up by Pio early afternoon to go to the plantation. A woman he did not know or recognise was inside the car with Pio. He asked Pio and was told “o le teine e ave e faanonofo ma Vili.” When they got to the accused’s house, both Pio and the woman got out and walked to where the accused was. They were seen conversing before Pio returned to the car and they left to buy food and alcohol. They did not go back to the accused’s house.
10. Asofa also agreed under cross examination that the complainant was quiet inside the car and did not show signs that she was being taken or held against her will. She had 2 bags which she took when she jumped out of the car. She was not forced out of the car.

Complainant

11. The complainant is 55 years of age and was not in any relationship. She has 7 children, 5 live overseas and 2 with their father’s family at Leauvaa. She divorced her first husband in 2007 and entered another relationship in 2010 which lasted a month.
12. As to the events of the 25^th May 2022, her evidence is that she had been staying at Leauvaa uta with a family that one of her daughters was married into. She became unhappy with how she was treated. After being chased away by her daughter’s mother in law, she left and sat by the roadside when Pio came in his taxi. Pio told her he could help and that there was a man in his village, a millionaire who lived on his own that she could live with. She told Pio she did not want him. Pio then suggested that she goes with him to his own family.
13. They left Leauvaa in Pio’s car and headed to Saleimoa to pick up Pio’s relatives first. On the way Pio kept talking about Vili (the accused). After picking up Pio’s two relatives, they drove inland of Saleimoa, past where the majority of houses are located and turned into the accused’s property. They stopped near the accused’s house and Pio called out to him. She then told Pio “O a’u ou te le manao ai” but he said “aua ou te popole.” Pio and the boys then left her at the accused’s house. She thought Pio would come back for her.
14. Not long after she was left with the accused at his house, the accused asked her “e fai se ma mea.” She refused but the accused told her not to worry, “o ia ua fia mea.” He also told her “e iai lana vai mo lo’u gutu la e pi’o, e momono lana poti i lo’u gutu ma faapā.” She felt sick in the stomach and began to lie down when she felt the accused slip his hand down to her vagina and began to stick his fingers inside her. At the same time, he grabbed her breasts and proceeded to suck her nipples. He continued to do this and masturbate her until she orgasmed. When asked how she felt, the complainant said “sa ou tetena i le taimi lea, sa ou le’i mana’o ai ae sa faamalosi a’u.”
15. The complainant further told the court that when the accused was done, it suddenly crossed her mind that the only thing the accused would want if she stayed with him “na o le fia mea lava, e le manuia ai se aiga.” She got up, took her bags and went outside and started walking. She saw girls about 20 – 30 meters away and called out “e alolofa mai.” But the accused ran after her and tried to take her back to the house. She got to the girls nevertheless and told them she wanted to go to the police station.
16. Under cross examination, the victim told the court that when they got to the house and she first saw the accused, she felt scared and did not want him as a partner (‘le fia fai toalua ai’). She told Pio that she did not want to live in the accused’s house and that he had told her they were going to his family. (‘Ou te le fia nofo i le fale o Vili – na e fai mai lelei lava ta te o le tou aiga). In the end, she agreed to stay when Pio told her he would be back in no time.
17. She denied that she asked or wanted the accused to massage her stomach. The accused smelt unpleasant (‘u’ü le pa’u’) and she did not want to look at him. She denied telling the accused to suck her breasts and consenting to what he was doing. She denied also that what she told Paula about the accused forcing her against her will was fabrication. But she conceded that the accused masturbated her vagina and sucked her breasts for a while, that it felt good and she had an orgasm. She added that she had not felt like that in a long time.

Paulasurita Peti Key

18. Paulasurita is a 19 year old female of Levi Saleimoa. Her family lives across the main road from the accused’s land. She was picking up rubbish up the hill when her aunt called her to come, and that something was happening. She came down and saw the complainant running towards them and calling for help. The accused was running after her. She and her aunt met the complainant who appeared worried and scared. Her t shirt was torn at the collar. She also told them “na faamalosi ia e Paono.” The accused turned around when the victim reached them. They asked him what he did and he replied to mind their own business.
19. When the accused left, they asked the victim what happened. She told them that the accused had asked her to live with him and told her that when they do, all they would do is have sex. She was crying and shaking. She asked them to get her bags and shoes from the accused’s house which they did, before Paulasurita and some relatives walked her towards the ‘aai’. They turned around when it was getting dark whilst the victim continued seaward.
20. Paulasurita confirmed under cross examination that other than her torn shirt, the complainant showed no signs of any injuries.

Faaa’oa’o Iakopo

21. Faaa’oa’o is a 52 year old mother of 8 children and lives inland of Levi Saleimoa. She was at home watching TV around 6:30 – 7pm when called by one of her children. She responded and saw on the road a woman she did not know or recognise. The woman asked for the pulenuu’s house. She looked sad and concerned. She was wearing working clothes that were torn and appeared she needed help. She wanted a place to live so she took her to Afega police.
22. According to Faaa’oa’o, the victim told her the accused wanted to have sex with him and suck his penis.

Constable Eli Wilson

23. Constable Eli works with the Forensic Division of the Ministry of Police. He took photos of the accused’s house and alleged crime scene on the 8^th June 2022 (Exhibit P2).
24. Admitted by consent as Exhibit P1 are photos of the victim taken at Afega Police the evening of the incident when Faaa’oa’o took her in to file a complaint. They show a tear at the collar of her shirt.

Constable Sefulu Sua

25. Constable Sefulu interviewed the accused under caution and tendered the record of the interview (Exhibit P3). In the statement, the accused says that he was at home when Pio, Asofa and Viane arrived with the complainant whom they said was looking for a husband. He told them to have a rest in his house, asked the victim if she was hungry then sent Pio and the boys to buy food whilst the complainant stayed with him.
26. They engaged in a conversation and he told her he wanted to have sex. She suggested that they wait until night time. The victim then got out oil and asked him to massage her stomach. His statement as to what happened is recorded at p6 as follows:

F: Fa’aauau lau faamatalaga?

T: “O’u tago loa fōfō le magava ma faasolo aku agai i lalo o le oga o le fafige ma alu aku ai lava i lalo ma le ie lavalava o le fafine i la’u fōfō, e le’i koe pisa mai lava le fafige ia ke a’u ua gao le kaokooko ma faalogologo i la’u fofō.

F: Fa’aauau?

T: O la’u fofō lea sa fai ga kau ai ma la’u kago i le mea (tioi) a le fafige, ma fai mai loa ia te a’u ou ke kago e milimili (lokeloke) laga mea ma ou kago e susu (ai) oga susu, ai ua faalogo aku le fafine o le a kekega (pa) ua oioi ai ma ee i luga ma fai mai ou ke kago e makuā ai ona susu, ai ua kekega (pa) le fafige ma kaoko faakafa mai ia te a’u ma koso aku loga ie, o le kaimi lea sa ou kago loa faamakamaka le fafine i la’u mea ua makuā malō a i le fia mea, ou fai atu ai loa i le fafige e kago loa e susu (ai) la’u mea (pi) ae fai mai le fafige se’i oo i le po.

F: Ona a lea?

T: O le kaimi lava ga uma ai le mea lea sa fai ou fai aku ai loa i le fafine lea, ua leva kele ga o le aualii ia e faakau mai se meaai, sei ou alu e valu popo a moa ma kakao le mailei moa e pue ai se moa e fai ai le ka meaai, ou alu loa fai, sa makamaka aku lava le fafige lea i la’u mea lae fai, ou koe foi mai loa i le fale i le mea lea sa ma iai ma le fafine lea i lo’u fale ma ou saofai lava i le mea lea sa ou saofai ai ae o la e kaoko faakafa mai a le fafine lea i le mea lea e kaoko ai i kokogu o le fale.

F: Fa’aauau lau faamatalaga?

T: E le’i umi lava ga ma gofogofo i kokogu o le fale, ae ku loa i luga le fafine ma savali mai i fafo i le piko i kua o loo ku ai le moli saiga ae o’u aukilo loa i luga i le aiga lae faasaga mai i le isi iku o la e fekaloa’i lakou lima o’u masalosalo loa i le fafine o la e fekaloa’i ma kegeiki o le aiga lea ma ke faafesagai, koe sau loa le fafine i le fale kago loa i aga ako sa alu aku ma ia ma savali ese mai loa ma lo’u fale, ae ou fai aku iai foi mai ae fai mai ou ke laku a i luma i o’u koe sau ai, o le kaimi lea sa ou savali ai loa ma koe faauouo mai le fafige i le fale ma ma koe omai i lo’u fale e le’i oo mai i totonu o le fale ae kuu aga ako lavalava i luma o lo’u fale ma koe savali ese mai loa ma alu loa i kegeiki ia sa kalo iai.

F: Ona a lea?

T: O kegeiki ia ga alu iai le fafige lea ga o aku aumai aga ako lavalava sa i luma o loga fale ma o ai lava ou ke le’i koe feiloai ai lava i le fafine lea e oo mai i le kaimi gei.

27. The accused elected not to testify or call evidence.

Elements of the charges

28. For the unlawful sexual connection charge, prosecution must prove beyond reasonable doubt:
    • (a) the accused penetrated the genitalia of the complainant with his finger;
    • (b) the complainant did not consent;
    • (c) the accused did not believe on reasonable grounds that the complainant was consenting.
29. For the first indecent assault charge, prosecution must prove:
    • (a) the accused intentionally touched the complainant’s breasts;
    • (b) the complainant did not consent;
    • (c) the accused knew she was not consenting
    • (d) the touching would be regarded as indecent by right thinking people; and
    • (e) the accused intended or, or appreciated the existence of those facts and circumstances that make the assault indecent.
30. The same elements require proof for the second indecent assault charge except that the act complained of is sucking the complainant’s breasts.

Discussion

Unlawful sexual connection

(i) The accused penetrated the complainant’s genitalia with his fingers

31. The accused does not deny he penetrated the complainant’s vagina with his fingers. The complainant’s evidence is that as she lay down, she felt the accused touch her vagina, insert his fingers inside her vagina and masturbated her until she orgasmed. The accused does not deny that and explains in his cautioned statement that he started massaging the complainant’s stomach, then slipped his hand underneath the complainant’s lavalava and touched her vagina without any objection by the complainant. The complainant then asked him to massage and fondle her vagina which he did, he continued to masturbate the complainant until she moaned in pleasure and orgasm.

The complainant did not consent

32. The complainant claims that she did not consent. The accused had asked her “e fai se ma mea.” She refused but the accused told her not to worry, “e iai lana vai mo lo’u gutu la e pi’o, e momono lana poti i lo’u gutu ma faapā.” She felt sick in the stomach and began to lie down when she felt the accused slip his hand down to her vagina and began to stick his fingers inside her. At the same time, he grabbed her breasts and proceeded to suck her nipples. He continued to do this until she orgasmed. She said “sa ou tetena i le taimi lea, sa ou le’i mana’o ai ae sa faamalosi a’u.”
33. On the other hand the accused in his cautioned statement says that as he was massaging the complainant’s stomach, he managed to slip his hand underneath her lavalava and touch her vagina. She told him to keep touching (lokeloke) and massaging (milimili) her vagina and suck her breasts which he did. She moaned and told him to keep sucking til she had an orgasm.
34. I have carefully considered the evidence and find plausible the accused’s account in his statement to police. From the start, the complainant knew they were headed for the accused’s house and I accept the evidence of Pio and Asofa, both prosecution witnesses that along the way, she never objected to being taken there. From what Pio told her, she would have at least expected to live with the accused. The accused asked to have sex with her which she did not immediately concede to. Eventually in the exchange that followed, the accused ended up massaging her stomach to which she did not object. It led to touching and fondling her vagina and sucking her breasts which again, there is no evidence she rejected. It continued whilst the complainant moaned in orgasm. In those circumstances, I am not satisfied beyond reasonable doubt that the complainant did not consent.
35. I find that whilst the complainant was hesitant at first, the accused did not force her and she eventually consented to what the accused did. She could have rejected the accused, stopped him and took off like she did not long after the encounter. There is no such evidence but that she engaged with the accused sexually and in her own words, orgasmed and felt good in a long time.
36. I accept that not long after, she wanted to leave. She saw Paula and her aunt and walked towards them calling out for help as the accused tried to stop and bring her back to the house. I find that it was during that struggle that the complainant’s shirt was torn. She eventually got to the girls and I accept Paula’s evidence of what the complainant had told them. I do not also doubt the evidence of Fa’aa’oa’o of how the complainant was asking for help and of what she told her. I find that the complainant simply decided that she did not want to live with the accused. In her evidence she says that she realised from conversing with the accused that if they did, he would only be wanting sex, ‘e le manuia ai se aiga’.
37. It does not in my view negate that prior to and during the accused’s act of touching, inserting his fingers inside and masturbating the complainant’s vagina, she did not reject, stop the accused or made known to him anything other than she was consenting.
38. Prosecution has therefore not proven the second element and the charge must fail.

(ii) The accused did not believe on reasonable grounds that the complainant was consenting

39. For the same reasons, I do not also find proven the third element. There is no evidence that the accused forced the complainant. There is also no evidence that the complainant rejected or stopped the accused. In fact, according to the accused’s account to police which I find plausible, when his massage reached the complainant’s vagina, she asked him to ‘milimili’ and ‘lokeloke’ and to suck her breasts. There was reason for him to believe other than that the complainant was consenting.
40. The charge must therefore fail.

Indecent Assaults

41. It is not disputed that the accused’s touching and sucking of the complainant’s breasts was intentional. But for the complainant’s consent, the acts would also be regarded as indecent by right thinking people.
42. For reasons above, I am not satisfied that the complainant did not consent; the accused knew she was not consenting; and that he intended or appreciated the existence of those circumstances that make the assault indecent.
43. The two indecent assault charges must also fail.

Result

44. For the above reasons, I found the accused not guilty and acquitted him of all 3 charges.
    

JUSTICE ROMA