Police v TLF [2024] WSSC 14 (5 April 2024)

IN THE SUPREME COURT OF SAMOA
Police v TLF [2024] WSSC 14 (05 April 2024)

Case name:	Police v TLF
Citation:	[2024] WSSC 14
Decision date:	05 April 2024
Parties:	POLICE (Informant) v TLF (Accused)
Hearing date(s):	27 March 2024
File number(s):	Charge 1, (b) & (c) per Charging Document dated 28/8/2023
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	I find the accused guilty of all 3 charges.
Representation:	H. Apisaloma for Prosecution S. Chan Chui for the Accused
Catchwords:
Words and phrases:	Sexual connection with a young person, Sexual connection to a dependent family member, Incest.
Legislation cited:	Crimes Act 2013, ss.59(1) & 50(b), s.56(1) & s.55(1) & (3)
Cases cited:
Summary of decision:

NOTE: THERE IS A SUPPRESSION ORDER PERMANENTLY SUPPRESSING OR PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND ANY DETAILS THAT MAY IDENTIFY HER

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TLF, male.

Accused

Counsel: H. Apisaloma for Prosecution

S. Chan Chui for the Accused.

Sentence: 5 April 2024

DECISION

Charges

1. The accused is charged that between 31 February 2021 and 1 January 2023:
   • (i) he had sexual connection (namely by licking the genitalia) with MRT, a young person under 16 years (sections 59(1) & 50(b), Crimes Act 2013);
   • (ii) he had sexual connection (namely by licking the genitalia) with MRT, a dependent family member, being his grandchild (section 56(1));
   • (iii) he committed incest with MRT being his grandchild (s55(1) & (3)).
2. The offences are alleged to have occurred in August 2022 at [x-village] on Father’s Day.

Evidence

3. Prosecution called 5 witnesses. The first was V.A. She is the victim’s stepmother and lived together with her husband and their children, and her husband’s family on the same land but different houses at [x-village]. By consent of the defence, she produced the victim’s birth certificate (Exhibit P1) confirming [xx/xx/2009] as her date of birth.
4. She told the Court that MRT always lived in the same house with her grandparents. They cared for and looked after her when her aunt and uncle who lived in the same house went to work. Following her grandmother’s passing in 2020, MRT continued to live in the same house as her grandfather, her aunt and uncle and their children until March 2022 when her uncle came to bring her back for them to look after. They have since been living together with her.
5. EF was the second prosecution witness. He is 16 years of age and currently a Year 11 student at College. His father is AF, his grandfather is the accused, and MRT is his first cousin. They lived on the same land at [x-village] with their grandparents and other family members but in different houses. In November 2022, following an argument between his father and the accused, the accused chased them off the land at [x-village]. They have been living at [xy-village] since.
6. He told the Court that in the evening of father’s day in August 2022, the accused called him and his sister SF to come for a ‘feau’. They went but could not find him. When they looked inside one of the rooms of the accused’s house, they found him naked whilst MRT was lying on the bed. He saw the accused ‘ave ifo lona pi tu’u i le pi a MRT ae soso’a’. After about 2 minutes, the accused then proceeded to lick MRT’s vagina. Asked what MRT was doing at the time, he replied ‘na ou vaaia mata o MRT o maligi ma fapupu’u ona lima’.
7. The accused was alerted by noise they made. He stood up when they ran outside.
8. Under cross-examination EF conceded they were chased from the land by his accused grandfather following an incident where his father AF came home intoxicated and made tyre screeching noise outside their gate which his grandfather had locked. His grandfather came out and stoned the car, and in retaliation AF came to him with a machete and caused damage to the house.
9. EF also conceded he spoke about the incident with his sister SF and their mother. He denied however making up the allegations because of their removal from [x-village].
10. The third witness was SF, EF’s 14-year-old sister. She testified that sometime in the evening on Father’s Day in August 2022, she and EF went to look for MRT to hang out and play games. They went by their grandfather’s house and inside the room through a window and saw MRT lying naked on the bed. The accused was standing and telling her to suck his penis. He sucked her breasts then again told her to suck his tongue. MRT refused then the accused held her mouth and tried to force her. The accused then lifted MRT’s legs on his shoulders and licked her genitalia.
11. Her brother made noise which alerted the accused. They ran down to their aunt’s house. The accused then came and asked who had come to his house. They told him no-one and he said not to come back to his house.
12. Under cross-examination, SF said that what they saw between the accused and MRT occurred whilst there were still people at the house. She and her brother kept quiet about the incident saying ‘na iai ou fa’aeteetega i lo’u tama’ until November 2022 when the incident between their father AF and their accused grandfather occurred. She denied however fabricating the allegations when they were removed from the land.
13. The fourth witness was Constable Mary Tuuaga Polivia. She produced photos of the accused’s home at [x-village] (Exhibit P2) taken on 26 March 2024, but were of no use to the prosecution case as none of its witnesses was referred and asked about them.
14. The last witness was the alleged victim MRT. Despite attempts by counsel, she was clearly unable to speak. A report dated 30 January 2023 by Seiuliali’i Dr. George Tuitama admitted by consent, confirms “she suffers from an intellectual disability that impairs her mental cognition and social skills.” The report adds that she is “for home care requiring special attention from family.”
15. The accused elected not to testify but called evidence from one witness AL who is married to his daughter.
16. AL’s evidence was that MRT was cared for by her biological mother until she passed in 2019. She was then looked after by her late grandmother and accused’s wife IF, who passed away in 2020. He and his wife then took over her care. They had all lived in the same house with his wife, and their children and MRT, as well as his wife’s parents. They continued living with his accused father in law when his wife passed in 2020. The accused also has another house to himself on the same land.
17. In March 2022, he took MRT back to her biological father and stepmother to look after because their own kids had grown, he and his wife were working most of the time and it was getting difficult to look after her.
18. AL also gave evidence about the afternoon of Father’s Day 2022 at their home; none of which was put to prosecution witnesses EF and SF under cross-examination.

Discussion

Sexual connection with a young person (s59(1) & 50(b))

19. For the charge of sexual connection with a young person, prosecution must prove the following elements:
    • (a) the accused
    • (b) had sexual connection
    • (c) with a young person.
20. Under the second element, the sexual connection alleged is between the accused’s mouth or tongue and the victim’s genitalia (s50(b)).
21. As to the third element, prosecution must prove that the victim was “12 years or over and under the age of 16 years” (s59(5)).
22. It is not in dispute that in August 2022 MRT was over 12 and under 16 years. She was born on 23 November 2009 and about 12 years and 9 months at the time of the alleged offending. I find proven therefore the third element of the charge.
23. The dispute however relates to the first and second elements – that there was a connection between the accused’s mouth and victim’s genitalia.
24. Prosecution rely on the evidence of EF and SF that they found the accused in the room with the victim. I am mindful that their accounts of the details do not correspond in some respects. EF testified that he saw the accused ‘tu’u lana pi i le pi a MRT ae soso’a’. SF did not give such evidence. She told the court she heard the accused tell MRT to suck his penis; and suck his tongue, and forced MRT when she refused. EF’s account did not include such detail.
25. But their evidence is consistent regarding the accused licking the victim’s genitalia.
26. The defence points to the differences in the 2 witnesses’ evidence and argues that their testimony was fabricated and motivated by the differences between their father AF and their accused grandfather, which led to their removal from [x-village]. Counsel also highlighted the fact that no evidence could be adduced from the complainant herself.
27. Despite the differences in EF and SF’s accounts, there was consistency in their evidence about the accused licking the victim’s genitalia and they were unmoved under cross examination on what they claim to have seen. That the allegations only surfaced 3 months later after the argument between the accused and AF which resulted in the accused chasing them from [x-village] is not denied. As SF said, ‘na iai o’u faaetetega i lo’u tamā’. They do not also dispute that they discussed the incident with each other and shared with their mother. But they maintained that what they told the court was what happened.
28. However unhappy they became at being ousted from the land, I am not satisfied that it was reason for them to fabricate allegations of serious sexual offending involving their grandfather and first cousin, unless they occurred.
29. I am satisfied on their evidence that the incident involving the accused and victim did occur. I am further satisfied beyond reasonable doubt that there was a connection between the accused’s mouth and part of the victim’s genitalia.
30. The fact that there was no evidence from the victim does not have a bearing on the conclusion I have reached. She suffers from an intellectual disability that impairs her mental cognition and social skills. She was called but clearly unable to give evidence.
31. I find proven the first charge.

Sexual connection with a dependent family member (s56(1))

32. For the charge of sexual connection with a dependent family member, prosecution must prove the following elements:
    • (a) the accused
    • (b) had sexual connection
    • (c) with a dependent family member;
    • (d) under the age of 21 years.
33. Under the third element, prosecution must satisfy that the accused had power or authority over the victim and that the accused was a parent of the victim’s parent (s57(1)(a)(ii)).
34. For the same reasons in respect of the first charge, I find that prosecution has proven the first, second and fourth element of this charge.
35. I am also satisfied beyond reasonable doubt that the accused had power and authority over the victim. She was his granddaughter and always lived in the same home as the accused. She was cared for by the accused and his late wife until she passed in 2020. She continued to live in the same home with the accused, her aunt and uncle AL until March 2022 when she was taken back to her biological father and stepmother. Even then, they all lived on the same land and gathered in the same house that the accused lived in from time to time. I find that the victim was a dependent family member of the accused.
36. The second charge is also proven beyond reasonable doubt.

Incest (s55(1) & (3))

37. For incest, prosecution must prove the following elements:
    • (a) the accused
    • (b) is over 16 years
    • (c) (c)`had sexual connection
    • (d) (d) with his grandchild
    • (e) (e) and knew of the relationship
38. For the same reasons above I have no difficulty finding that the accused was over 16 years, he had sexual connection with the victim who is his granddaughter and very well knew of the relationship.

Conclusion

39. I find the accused guilty of all 3 charges.
40. He is remanded to 25 April 2024 for a memorandum by prosecution and plea by counsel, a pre-sentence report and for sentencing.

JUSTICE ROMA