Police v Leatioo [2024] WSSC 40 (27 June 2024)

IN THE SUPREME COURT OF SAMOA
Police v Leatioo [2024] WSSC 40 (27 June 2024)

Case name:	Police v Leatioo
Citation:	[2024] WSSC 40
Decision date:	27 June 2024
Parties:	POLICE (Informant) v MATAMUA IEREMIA LEATIOO a.k.a IEREMIA IOSEFA, male of Salelologa (Defendant)
Hearing date(s):	15th April 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:
Representation:	H. Apisaloma for Prosecution A. Lesa for the Defendant
Catchwords:	Attempted sexual violation – assault with intent to commit sexual violation – armed with a dangerous weapon – threatening words.
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:

MATAMUA IEREMIA LEATIOO a.k.a IEREMIA IOSEFA, male of Salelologa

Defendant

Counsel: H. Apisaloma for Prosecution
A. Lesa for the Defendant

Date: 27 June 2024

RESERVED JUDGMENT OF PERESE CJ

The charges

1. Matamua Ieremia Leatioo, also known as Ieremia Iosefa (“Matamua”), is 63 years’ old and lives in Salelologa. He faces four charges pursuant to an amended charging document dated 4 April 2024:

Charge 1
Attempted sexual violation	That at Salelologa, on the 5th June 2023, he attempted to sexually violate Laalaai Tolio, a female of Fogatuli.
Charge 2
Assault with intent to commit sexual violation	That at Salelologa, on 5th June 2023, he assaulted Laalaai Tolio, a female of Fogatuli, with intent to commit sexual violation.
Charge 3
Being armed with a dangerous weapon namely a knife.	That at Salelologa, on 5th June 2023, he was armed with a dangerous weapon namely a “knife”, not being so armed for a lawful purpose.
Charge 4
Threatening words contrary to s.25 Police Offences Ordinance 1961.	That at Salelologa, on 5th June 2023, he used threatening words namely “e ke le faia loa le mea lea ou ke fai aku ai ou kuia loa ma oe” whereby a breach of the peace may occur.

2. The issue for the court to determine is whether the prosecution has made out these charges beyond reasonable doubt. The lead charge is no. 1.

The facts

3. It is common ground the complainant Laalaai Tolio (“Laalaai”) and Matamua, had never met before she hopped into his taxi on 5 June 2023 at the Salelologa wharf Laalaai asked Matamua to take her to the market. Their recollections differ from this point on. The trip from the wharf to the market is relatively short. Matamua gave a statement to the Police, and in it he says Laalaai asked him to drive her to a location where they could talk. So, he says he drove to the Aoga Matātā Eseese of the EFKS Church and parked the car just in front of the school house. Matamua says Laalaai then said to him to drive somewhere else to talk because people could see them.
4. A potentially important part of Matamua’s statement to Police is where he says that when he picked up Laalaai, he was already in the middle of another job for someone else. That other passenger was at the market and needed a ride from the market back to the wharf. Matamua said the other passenger had left some shopping in the back of his taxi. He then said he and Laalaai went to the market and picked up this other passenger and they took that passenger to the wharf.
5. If the existence of the other passenger is true, the suggestion that he and Laalaai took the other passenger to the wharf must be evidence that supports Matamua’s version of events. It means that if Matamua drove from the wharf to the market, then Laalaai could have got out of the taxi at the market, as she says she intended. But if she did not get out, but instead travelled back to the wharf, this tends to support Matamua’s evidence.
6. Matamua told Police that after dropping the passenger to the wharf, he drove to an area behind Toa Gas, and there they talked. He says nothing else happened, and that he said he then went back to the market and parked his car by the bus area. But this is not true, something quite extraordinary happened. He said she propositioned him for sex in return for taking her home in his taxi.
7. He told Police that Laalaai took off her clothes and sat by his taxi. His evidence is that Laalaai said to him that in return for him doing things to her, he would take her to Fogatuli.
8. Laalaai’s recollection of events is a lot different to Matamua’s. She said her son was travelling back to Apia for school and she had just seen him off at the wharf. Laalaai got into Matamua’s taxi and asked him to take her to the maketi. Instead, she says, Matamua took her to a togavao (bush) near Don Bosco School.^[1] Laalaai identified the bush as the area shown in Ex P.1, photo 3. She said it was here that the car stopped,^[2] and reversed along the track shown in Ex P.1, photo 4, into the clearing shown in Exh P.1. photo 5.^[3] Laalaai said the car went kogu or inside the clearing, and Exhibit P1 shows the inside of the clearing.
9. Constable Sitiveni, the officer responsible for taking the photos in Exh P.1, said photos 7 and 8 showed inside the clearing. He described it as a dumping place.^[4] Defence counsel was critical of the photos because they were taken close to 2 months after the event and did not accurately record the state of the environment as it was, on the day of the alleged offending. I am unable to see any substance to the argument. Photos 7 and 8 show plastic and cardboard strewn on the ground and they look as though they had been lying there for some time, unable to compost.
10. Laalaai says that it was inside the clearing that Matamua tried to sexually assault her. She says he got out of the car while she remained seated at the rear passenger’s seat. When he got out of the car, he laid paper on the ground and he said to her to come out. She rejected his request. He then opened the rear passenger’s door and despite her resistance he pulled her out and tied her hands together with rags.
11. Laalaai said Matamua stripped off his lavalava and he stood in front of her, naked. He tried to pull off her clothes, but again she resisted. She was wearing blue trousers and despite Matamua using both hands, he could not pull the trousers down past her knees because she was twisting and turning her body. Laalaai then says Matamua produced a small knife and threatened her with it if she did not do what he wanted.
12. Matamua was correct in one respect. Nothing happened, as in he tried to sexually violate Laalaai, but he did not succeed. After the alleged attack, Matamua drove off.
13. But, before Matamua left the scene, Laalaai was able to take a photo of the rear of the taxi and the licence plate – Exh P2. This exhibit is critical for the following reasons:
    • (a) It supports Laalaaiʻs evidence that the vehicle was driven off the road, contrary to Matamua’s assertions that the taxi did not leave the road at any time.
    • (b) The vehicle had been driven into a clearing, Laalaai claimed to identify in Exh P1 photos 7 and 8.
    • (c) A lot of rubbish is visible in the photo, around the car.
14. Laalaai says that after the incident she walked to the market, which was some distance away, to seek help. When she arrived, she showed the photo of the licence plate and asked around as to whether anyone knew who drove the car. She says that at about the same time she saw the taxi speeding into the market place, but with a different driver. Matamua was no longer driving the taxi. Laalaai could not find Matamua at the market.
15. Laalaai says she eventually caught the bus home to her village and family.
16. It is not clear when the matter was first reported to the Police. But, a week after the incident, Laalaai was asked to attend on a meeting with the owners of the taxi company for whom Matamua drove, and they asked her to withdraw the complaint.

Evaluation of the evidence

17. This is a classic he says/she says case. In this case I consider Laalaai has the only plausible recall of the evidence, backed up by the photo she took of the defendant’s car parked on top of ground strewn with rubbish. The photo showing the defendant’s car on top of the rubbish undermines the defendant’s assertion that his car never left the road. P2 also clearly shows the defendant’s car in an off-road environment, surrounded by rubbish.
18. I have had the benefit of seeing and hearing the complainant give evidence, at times facing confronting cross examination questions. She remained calm and composed, answering appropriately and courteously. I considered her a witness of candour by her evidence that after the incident she walked to the market and tried to find the owner of the car whose licence plate she photographed, evidence, which was in substance confirmed by Taylor Tagaloa. Seeking out the perpetrator in this way, to confront him, are actions which are inconsistent with those of someone who would make false accusations. In other words, if the events happened as Matamua says, then she risked further humiliation by confronting Matamua, who could publicly humiliate her for the lewd behaviour of stripping off and offering herself for sex in return for a ride home.
19. On the other hand, I found Matamua’s evidence to be unconvincing, and fanciful. The allegations he made do not pass the common-sense test. And nothing in his narrative, or the way in which he gave his evidence suggested he was a genuine witness. He had said in his Police statement that he and Laalaai, and another passenger, drove from the market to the wharf. I have referred to this potentially important allegation earlier. But, the allegation was not put to Laalaai, and so I draw the inference that this assertion was untrue.
20. Instead of driving, as he suggested, from the market to the wharf to take the other passenger to the wharf, I am satisfied that during this time he drove his car into the clearing shown in Exh P1, photos 7 and 8. Some of the rubbish shown strewn on the ground in those photos has been captured in Exh P2. I am satisfied he attempted to sexually violate the complainant.

Decision

21. I find that the defendant is guilty beyond reasonable doubt of the lead charge – Charge 1. It is very likely Matamua learned from Laalaai during the trip between the wharf and the market, that she was going to the maketi to catch the bus home, at Fogatuli. The village is some distance away. Matamua decided to prey on the complainant, and knowing the area of Salelologa well he decided to drive to the clearing shown in Exh 1, where he propositioned Laalaai and then attempted to have sex with her, as Laalaai said in her evidence. He tied her up and pulled her out of the car, and he used his knife to threaten her to comply. But she was a strong woman who fought back and resisted him. Eventually giving up, Matamua left leaving Laalaai behind to fend for herself.
22. I am also satisfied Matamua is guilty of assault when he tied Laalaai up with rags; guilty of being armed with a small knife which he used to threaten Laalaai; and he is also guilty of using threatening words to try to compel Laalaai to comply with his demands for sex.
23. On all counts, the defendant is found guilty.

CHIEF JUSTICE

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^[1] NOE p 14, line 20
^[2] NOE p 14, line 33
^[3] NOE p 14, line 34 to NOE p 15 line 1 to 7.
^[4] NOE p 8 line 34 to NOE p 9 line 2