IN THE SUPREME COURT OF SAMOA
Police v Brown [2024] WSSC 38 (27 June 2024)

Case name: 	Police v Brown	
		
Citation: 	[2024] WSSC 38	
		
Decision date: 	27 June 2024	
		
Parties: 	POLICE (Informant) v NAUMATI MANUELE BROWN (Defendant)	
		
Hearing date(s): 	28-30th November 2023	
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Perese	
		
On appeal from:		
		
Order:	Naumati Manuele Brown, you are found guilty of raping Sanarosa Brown, as set out in the schedule of informations, set out at the beginning of this determination.

You are remanded in custody to await sentencing.	
		
Representation: 	L. Strickland for Prosecution 
S. Ponifasio for the Defendant	
		
Catchwords: 	Rape – incest – unlawful sexual connection	
		
Words and phrases:		
		
Legislation cited:		
		
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:

NAUMATI MANUELE BROWN, male of Puapua, Fasitoo-uta

Defendant

Counsel:	L. Strickland for Prosecution 
		S. Ponifasio for the Defendant

Date:		27 June 2024

RESERVED JUDGMENT OF PERESE CJ
1. 	The prosecution allege Mr Naumati Manuele Brown (“Naumati”) raped, or committed incest, or had unlawful sexual connection, with his biological daughter Sanarosa Manuele (“Sanarosa”).  There are six alleged instances of offending:
Information nos.	Time	Particulars	
Offending 1	
1508/18, 1506/18, 1 504/18.	Between 31 May 2015 – 1 October 2015	Offending in the home, when the defendant came home from work at midnight.  The complainant alleged the defendant choked and raped her while she was sleeping alongside her mother and sister. Alternative charges of incest and sexual violation.	
Offending 2	
1508/18, 1506/18, 1504/18.	Between 31 December 2014 and 1 January 2018	A week after offending 1, the defendant approached the complainant in the morning and he raped her, after the complainant’s mother had gone to work. Alternative charges of incest and sexual violation.	
Offending 3	
1517/18, 1516/18, 1515/18.	Between 31 December 2014 and 1 January 2018	The offending of rape alleged to have taken place in the togavao between June 2015 and October 2015, and after the alleged Offending 1 and 2, above. Alternative charges of incest and rape.	
Offending 4	
1509/18 and 1514/18	Between 31 March 2016 and 1 January 2017	Ongoing incidences of rape and or incest between April 2016 – December 2016 in the togavao on the way to the shops.	
Offending 5	
1510/18 and 1503/18	Between 31 December 2016 and 1 June 2017	Rape and or incest throughout the 2017 period resulting in pregnancy.	
Offending 6	
1511/18 and 1507/18	Between 31 July 2017 and 1 December 2017	Rape and or incest. Resumption of incidences following miscarriage of victim’s pregnancy from Offending 5.	
2. 	Naumati plead not guilty to all charges.  The penalty for rape, the most serious charge, is life imprisonment and because of this Naumati could have been tried before a panel of assessors.  However, he asked to be tried before a Judge alone, without assessors.     
The legal principles
3. 	The prosecution and defendant agree the law requires the prosecution to prove the charges to the standard of proof of beyond reasonable doubt.  These are the questions that must be proved:
Rape
(a) 	The defendant had sexual intercourse with the complainant; and
(b) 	The complainant did not consent.
Incest
(a) 	There was sexual connection between the defendant and the complainant;
(b) 	There is a parent and child relationship between the defendant and complainant;
(c) 	The defendant knew of the relationship.
Sexual connection with a young person under 16 years
(a) 	The defendant had sexual connection with the complainant; and
(b) 	The complainant was at the time of the sexual connection between the ages of 12 years and 16 years.
The issues
4. 	The issues in this case mirror the elements of the offending, and I set them out as follows:
(a) 	Did Naumati and Sanarosa have sexual intercourse? If the answer is no, then the charges of rape and incest must be dismissed.
(b) 	If Naumati and Sanarosa had sexual intercourse, then did Sanarosa consent to the sexual intercourse?
(c) 	If Naumati and Sanarosa had sexual intercourse, to which Sanarosa consented, then did Naumati know of the parent and child relationship with Sanarosa?
(d) 	If Naumati and Sanarosa did not have sexual intercourse did they have a sexual connection as that term is defined in the Crimes Act 2013?
The background facts
5. 	Naumati and his wife Tumua had eight children, their ages range from 13 to 29 years.  Sanarosa was 18 years at the time of her death.  The family were originally from Pu’apu’a, Savaii, and moved to live in Fasitoo-uta in 2009, to be closer to Tumua’s parents.
6. 	The family home in Fasitoo-uta is a modest Samoan fale. It appears well kept. The foundation is built of concrete poured on stones/rocks. The rear of the fale is closed in by loosely secured white plastic sheets draping down from the top plate.  Bathroom facilities are in a separate structure behind the fale. 
7. 	Tumua slept with the girls in the front half of the fale; photos 7 and 10 show the front area, which has a blue floor covering.  Tumua called the covering a carpet and said this is where she slept with her daughters, under a mosquito net.  Tumua slept towards the front of the house, Sanarosa’s sister, Tilomai, slept in the middle, and Sanarosa slept towards the rear.  There is no evidence about the size of the mosquito net, which might have helped determine how close or far apart they slept from each other.  Naumati and the boys slept in the back half of the house.
8. 	Sanarosa lived at home throughout her time at Nuuausala College, but she left during the second term of her Year 13 year in 2018. In the latter half of 2018, Sanarosa moved out of home and lived with her cousin in the greater Apia township village of Vaivase-uta.    
9. 	Naumati and Tumua were both employed, and worked at Ifiele’ele in Fasitoo-uta, an hour’s walk due north of their home. Naumati worked as a lawn mower and groundsman and Tumua a housekeeper.  Naumati said they would normally walk to work together in the morning.  
The prosecution’s case
10. 	The prosecution relied on two statements Sanarosa gave to the Police before she died, on 4 February 2019.  Justice Clarke in a pre-trial ruling considered the statements to be reliable and admissible as Sanarosa was unavailable to give evidence because she was dead. This is permitted under the Evidence Act 2016.  Further, the learned judge considered the probative value of the statements were not outweighed by a risk the evidence would unfairly prejudice the defendant and his right to offer an effective defence. 
11. 	In addition to Sanarosa’s statements, the prosecution led other evidence from neighbours and relatives.  One witness gave evidence of seeing Naumati and Sanarosa showering naked together; another witness saw them locked in passionate kissing, and another witness saw Naumati rubbing Sanarosa’s breasts over her clothes in the early hours of one Saturday morning.  Naumati responded to the allegations by saying the witnesses were lying, or that they were misconceived in what they saw.   
12. 	The prosecution submitted the evidence of these other witnesses corroborated Sanarosa’s allegations.  I am unable to join those dots. That is because the eyewitness evidence, bar one, concerned events that were unrelated to Sanarosa’s specific allegations against her father.  Sanarosa did not refer to kissing her father and having her breasts fondled as was claimed by one witness; nor did she refer to showering naked with her father, and nor did Sanarosa refer to kissing her father in an intimate way, or any way for that matter, when they were out harvesting niu. 
13. 	These other witnesses’ evidence were offered to show Naumati had a propensity to act or think in a particular way: namely, acting in an intimate way with Sanarosa.  The propensity evidence, however, does not support a finding that Naumati had raped Sanarosa, or had committed incest with her. 
14. 	As indicated above, there was one witness whose evidence is relevant and its probative value is not outweighed by any prejudice to Naumati. This witness was a former neighbour, he gave evidence of seeing Naumati on top of Sanarosa and that they were having sexual intercourse.  Usoalii Lealofi, 70 years old and now of Savaii, could not put a date or year on when he first saw Naumati having sex with Sanarosa, but he was sure of what he saw, not once but repeatedly, over a period of about 9 months.  
15. 	He said that the first time he saw Naumati and Sanarosa having sexual intercourse, he initially thought it was Naumati and his wife Tumua having sexual intercourse, but then realised Naumati was not having sex with his wife at all, but with Sanarosa.  It happened one morning when he heard someone yell out auoissss, an expression of pain.  When he went to see what was going on, he saw Naumati on top of Sanarosa and they were having sex at the back of the umukuka (cooking or kitchen area) of the Brown’s home. 
16. 	Naumati rejected the allegation, as I discuss below. 
Sanarosa’s claims
17. 	Sanarosa’s claims she was repeatedly raped and was used by her father as his object of sexual gratification whenever he wanted sex.  Her statement spoke about how Naumati choked and threatened to kill her if she said anything. She spoke about having a miscarriage, at first saying the father was a boyfriend.  She later recanted that, and told her mother she was pregnant, not from a boyfriend, but because she and her father, Naumati, had been having sex (Offending 5). Tumua confirmed that this meeting took place and that Sanarosa told her that her father was having sex with her.  
18. 	The allegations in Sanarosa’s statement in relation to all the alleged offending are clearly expressed and unambiguous. There is a significant level of detail of the initial attacks.  The allegations are made in a matter-of-fact way, absent of any hint of malice or collateral purpose that might show her to be making up the allegations.  Sanarosa’s second statement to the Police is recorded in the form of question and answer. And it records Sanarosa’s allegations concerning her miscarriages which she says both her parents knew about.
19. 	Sanarosa’s allegations against both her parents could not be more serious.  She alleged being raped by her father, and her mother knew that they were having sexual intercourse.  The statements could not be tested in cross examination, and the court was not able to assess her in the witness box.  Having said that, I observe that all of the allegations relating to all the offending including Naumati’s disbelief his daughter would be capable of making the complaints in light of what he thought was their loving and close relationship, could and were answered by the defence.
The defence 
20. 	The only evidence given by the defence was by the defendant; although it could be said that his wife Tumua in giving her evidence for the prosecution was hostile at times. Naumati did not have to give evidence because the burden of proving the charges lay with the prosecution.  But this is a classic case of who to believe, and it is understandable that he elected to give evidence.  In overview, Naumati’s defence is that the allegations of rape or incest made against him are not true.  He did not have sex with his daughter. 
21. 	According to Naumati, he was very close to his daughter, in a father-daughter way.  This may have been true in the early part of her life.  But, if that were the case in 2015, then I am left puzzled as to why Sanarosa would make false allegations, complete with the details given, against her father who said he pampered and spoilt her?
22. 	Apart from his general denials, Naumati raised specific matters in defence.   
(a) 	The first concerns the circumstances of the offending in the fale.  The first offending is alleged to have occurred late at night.  Sanarosa says her father smelt of beer.  The alleged raped occurred where Sanarosa normally slept in their home, under one mosquito net alongside her mother and sister.  
(b) 	The second offending in the fale, a few days after the first alleged rape, related to allegations of sex in the early hours of the morning after Tumua had gone to work.  
(c) 	Both scenarios in a) and b) are subject to the same defence concern.  I am invited to consider the incidences of rape in circumstances where there were others sleeping close by, if not next to, Sanarosa as implausible. 
(d) 	Moreover, Naumati countered Sanarosa’s early morning rape allegation offending by saying that he and his wife worked together, and they left the house together in the morning for Ifiele’ele at Fasitoo-uta, about an hour away by foot. They did this every day and did not take a day off work during 2015-2017. There was no opportunity for Naumati to have sex as Sanarosa claimed. This evidence might have been more persuasive had there been evidence from the employer confirming an exemplary attendance record, and periods of employment. In the absence of that corroboration, I am of the view that the evidence cannot be given much weight. 
23. 	Standing back and assessing his evidence and demeanour, I consider Naumati’s evidence was cynical and self-serving opportunism. 
View of the evidence
24. 	I am satisfied that all the instances of rape offending, as particularised at para [1] of this decision, are proved beyond a reasonable doubt.  
25. 	I am satisfied Sanarosa did not make up the claims in her statements in relation to the first time she was raped and that her allegations are genuine.  The following features support this conclusion:
The statements
Recollection of detail 
(a) 	In relation to offending 1, the first rape, she said she knew it was her father because he was looking straight at her.  
	Sa faapea ona ou pupula ane ai ma ou iloa ai o lo’u Tama o Naumati ona o lea e pupula sa’o atu lava ia te a’u.
The fairness of her narrative
(b) 	Anarosa explained that she initially thought her father had made a mistake and that she says she spoke to him and told him that she was not Tumua, his wife. I cannot understand why someone would even mention something like this, if it were untrue.  
The realism of her account of the rape
(c) 	After Sanarosa tried to reason with her father, she says Naumati told her to shut up.  She was about to scream but Naumati choked her and said to her not to make any noise otherwise he would kill her.  She said she feared her father and his threats.  It was her first experience of sexual intercourse and she felt extreme pain like a tear.  Sanarosa had a level of awareness of her circumstances, recalling seeing her father looking over at her sleeping mother in case her mother woke up.  In these circumstances, it would be an irony for the Court to give any weight to Naumati’s defence of implausibility.  According to Sanarosa, her father knew the risk of being discovered, as he kept an eye on his wife sleeping nearby.  
26. 	In addition to Sanarosa’s statement there is other evidence that I consider helpful to me in coming to the view that I do. 
The propensity evidence of sexual intercourse with Sanarosa
(a) 	I accept Usoalii’s evidence of seeing Naumati having sex with Sanarosa at the back of their house, and that such behaviour carried on for about 9 months.  He had no reason to make up such a serious allegation.  I am persuaded of the genuineness of the disclosure, which having been made calls into question Usoalii’s own ethics; therefore, it is evidence against the witness’ personal interests. Usoalii for nine months did not report these incidences to the Police.
The concession made by Tumua
(b) 	I also consider highly probative that Tumua confirmed an integral part of Sanarosa’s allegations when she admitted that Sanarosa had told her that she and her father had had sexual relations.  That is of course not in and of itself evidence of rape or incest, but it does confirm that the allegations of sexual intercourse were not new and not unknown to the mother Tumua. She also appears to have let Sanarosa down and did nothing to stop Naumati violating their daughter. 
27. 	Having formed the view that the allegations in the statement are accurate as they relate to the first rape, I find the other allegations of rape are also proven.  Once Naumati’s defence that he did not have sexual intercourse with his daughter is found to be untrue, then it remains for me to determine whether the other allegations are credible.  I determine that they are credible.  I am satisfied that for some years Naumati had sex with his daughter.  I see no basis for determining that at some point Sanarosa consented to sexual intercourse.  Had Sanarosa consented then Naumati would be found guilty of incest and not rape.  But that is not the case.
 Decision
28. 	The issues that were set out at paragraph 4 can now be answered as follows:
•	
	a. 	Did Naumati and Sanarosa have sexual intercourse?  
	The Court finds that Naumati and Sanarosa had sexual intercourse as described in the Offending 1, 2, 3, 4, 5, and 6.
	b. 	If Naumati and Sanarosa had sexual intercourse, then did Sanarosa consent to the sexual intercourse?
	The Court finds that Sanarosa did not consent to sexual intercourse as described in Offending 1, 2, 3, 4, 5, and 6.
	c.	If Naumati and Sanarosa had sexual intercourse, to which Sanarosa consented, then did Naumati know of the parent and child relationship with Sanarosa?
	It is unnecessary for the Court to answer this question, but if it did, the Court is satisfied that Naumati knew that Sanarosa was his daughter.
	d.	If Naumati and Sanarosa did not have sexual intercourse, did they have a sexual connection as that term is defined in the Crimes Act 2013? 
	This is an alternative charge and considering the Courts decision in a. and b. above, it is unnecessary to answer this question.
29. 	Naumati Manuele Brown, you are found guilty of raping Sanarosa Brown, as set out in the schedule of informations, set out at the beginning of this determination.
30. 	You are remanded in custody to await sentencing.
CHIEF JUSTICE