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Police v Niusila [2024] WSSC 78 (6 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v Niusila [2024] WSSC 78 (06 September 2024)


Case name:
Police v Niusila


Citation:


Decision date:
06 September 2024


Parties:
POLICE (Informant) v ATAPANA NIUSILA (Defendant/Applicant)


Hearing date(s):



File number(s):



Jurisdiction:
Supreme Court – CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Niavā Mata K. Tuatagaloa


On appeal from:


Order:
The application pursuant to section 136(4) of Criminal Procedure Act 2016 is dismissed.


Representation:
I. Atoa for Prosecution
I. Sapolu for the Defendant


Catchwords:
Sexual violation – indecent assault – assessor trial -


Words and phrases:
“Application to reverse assessors guilty verdict”


Legislation cited:
Crimes Act 2013, ss. 49(1); 52(2);
Criminal Procedure Act 2016, ss. 21(1); 136; 136(4); 136(4)(a); 180(1)(a).


Cases cited:
Chea v R [2016] NZCA 207;
Police v Niusila [2024] WSSC 71;
Police v TB [2022] WSSC 12;
Samuelu v Attorney General [2020] WSCA 1.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


ATAPANA NIUSILA


Defendant/Applicant


Counsel: I. Atoa for Prosecution
I. Sapolu for the Defendant
Verdict: 28 February 2024
Submissions: 31 July 2024
Ruling: 6 September 2024


RULING ON ASSESSOR’S VERDICT OF GUILTY
(Application by defence counsel pursuant to section 136(4) of Criminal Procedure Act 2016)

Introduction

  1. The defendant was tried before Assessors in a three (3) day trial from 26-28 February 2024 on the following charges:
  2. By consent of both parties, the evidence relating to all charges were heard together.
  3. Pursuant to section 21(1) Criminal Procedure Act 2016, the charge of sexual violation was before the Assessors for determination whilst the two (2) charges of indecent assault are judge alone charges and were before me, the Presiding Judge.
  4. The Assessors unanimously found the defendant guilty of the charge of sexual violation, whilst I found the defendant ‘not guilty’ on the two (2) charges of indecent assault.
  5. The defendant now applies under s.136(4) Criminal Procedure Act 2016 to reverse or veto[1] the Assessors unanimous verdict.
  6. The Prosecution for the Informant opposes the application.

The ground(s) of the application

  1. The application to acquit the defendant after he was found guilty by unanimous verdict of the assessors are:

The relevant principles

  1. Section 136(4) provides:
  2. Section 180(1)(a) Criminal Procedure Act 2016 also refers to the phrase “unreasonable or cannot be supported having regard to the evidence” as one of the possible grounds of appeal against the verdict of assessors. The Court of Appeal in Samuelu v Attorney General [2] refers to this phrase in section 180(1)(a) and stated the following:
  3. The principles set by the Court of Appeal in Samuelu in relation to s180(1)(a) follows the New Zealand Court of Appeal case of Chea v R[3] as follows:
  4. Furthermore, their Honours in Samuelu jointly ruled that the same principles also apply when considering s136(4): (at [22])
  5. I agree with Clarke J’s observation in Police v TB where he refers to the difference between the Supreme Court review function under s136(4) and that of the Court of Appeal under s180 of CPA:

The evidence at trial

Background

  1. The defendant is the husband of the victim’s aunt (father’s sister). The defendant and his wife operate a couple of fishing boats where the catch is usually sold at the fish market.

Prosecution evidence

  1. The allegation of rape before the assessors is that it took place while the victim was living with the defendant and his family in April 2021. The Prosecution called seven (7) prosecution witnesses: Anarosa Siaki (victim), Ela Fualaau (aunty), Tala Popo (Ela’s daughter), Siaki Tavita (victim’s father), Levaula Tavita (victim’s mother), Corporal Hanania Lene (Investigating Officer) and Sergeant Leativalu Neemia (Forensic – Photos).
  2. The victim’s evidence is that in the latter part of 2020, the defendant’s daughter Usuese asked her parents if she (victim) could come and sleep with her at their house to help her with her studies and for company, to have another female at home with her. The victim ended up staying with the defendant and his family for the rest of 2020 until after the first quarter of the school year in 2021. The victim’s mother Levaula Tavita under cross examination maintained that the victim stayed with the defendant and his family in the latter part of 2020 until after the first quarter of the school year in 2021 when she returned back to them.[4] Ela Fualau’s evidence is that Anarosa stayed with the defendant and his family from 2020 until sometime in 2022.[5] The victim’s father, Siaki Tavita, was not sure how long Anarosa stayed with Atapana but said that she stayed with them for a long time and that she finished school in 2021.[6]
  3. The victim said the defendant raped her when her aunt and their older sons had left sometime Saturday night and early Sunday morning to go to the fish market in Apia to sell their fish leaving only her and the defendant at home. Usuese, the defendant’s daughter, said she spent the weekend away at other family and was not at home. The victim said she was sleeping on the bed in Usuese’s bedroom when she woke up to find the defendant touching her right breast inside her t-shirt. She was sleeping in only a t-shirt and panties. The defendant was standing next to the bed wearing a lavalava. The victim told him to stop and asked him what is he doing to her but he told the victim not to make any noise. The victim said that the defendant got on to the bed, she tried to get up but the defendant pushed her down, removed her panties and raped her. [7] She said that she felt pain as if ‘something was torn’ when he inserted his penis into her vagina.[8] The victim told her aunt Ela Fualaau[9], her daughter Tala Popo[10]and her father Siaki Tavita[11].
  4. The victim did a Facebook post on 30 October 2022 referring to something bad the defendant did to her. This resulted in the victim telling her aunt Ela Fualaau[12], her daughter Tala Popo[13]and her father Siaki Tavita[14] that the defendant raped her some eighteen (18) months after it happened. The victim said on the same day she told her father that she went with her father to the Faleolo Police Post and lodged a complaint.[15] The victim’s parents Siaki and Levaula Tavita gave evidence that the defendant and his wife apologised twice for what happened.[16]

Defence evidence

  1. The defence case is that the victim was no longer living with the defendant and his family in 2021; therefore, what the victim alleged to have happened could not have happened. In other words, there was no sexual intercourse between the defendant and the victim, therefore, no sexual violation took place. The defendant elected not to give evidence but two witnesses were called to give evidence – his daughter, Usuese Atapana and Telesia Tiaina (defendant’s niece).
  2. The evidence of Usuese Atapana[17] and Telesia Tiaina[18]was that, the victim was no longer staying with the defendant and his family in 2021. The evidence of Usuese is that the victim stayed with them in 2020 but she returned to her parents’ half way through 2020. Usuese also gave evidence that her and the victim had never slept in the open part of the house, but she and the victim always slept in the bedroom. Usuese also said that she had never spent a night away from home.
  3. The defendant’s niece Telesia said that she stayed with the defendant and his family at the beginning of the school year in 2021 till the end of 2021 when she returned to her parents. Her evidence is that, the victim was no longer staying or living with the defendant and his family at the time. Telesia attended the same District College as the victim in 2021. She was asked about the school year and said that the school has 4 terms and the first term starts from February for 10 weeks till about the second or third week of April.

Discussion

  1. The question is whether the verdict by the Assessors of ‘guilty’ is unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the defendant was guilty.
  2. I remind myself of the following:
  3. I must also remember that the Assessors are the finders of facts. Unlike an appeal, the Assessors had the opportunity to see and hear the witnesses’ evidence and therefore are better placed when they assess the credibility of each witness.[19]
  4. Crucial to the defence raised is whether the victim was staying with the defendant and his family in April 2021 where the allegation of rape is said to have taken place. The defendant’s daughter, Usuese Atapana did not dispute that the victim stayed with their family. What is in dispute is the time frame or period that the victim stayed or lived with the defendant and his family.
  5. There was the evidence of the victim and her mother of the time frame the victim had stayed with the defendant and his family from the latter part of 2020 till after the first quarter of the school year in 2021. The evidence of Telesia Tiaina (defendant’s niece) supports the evidence of the victim that she (victim) left the defendant’s family after the first quarter of the school year in 2021.[20]
  6. There was evidence before the Assessors from which they could draw inferences and make findings of fact, including in relation to findings of fact where there are any inconsistencies in the victim’s evidence.
  7. The law no longer needs corroborative evidence in sexual offending. The Assessors (or Judge alone) can on the evidence of the victim alone find the defendant guilty. In the present matter, it was open to the Assessors to believe the evidence of the victim despite only telling her aunt, cousin and father eighteen (18) months after it happened.
  8. Counsel for the defendant/applicant distinguished the exercise of judicial discretion pursuant to section 136(4) exercised by Clarke J in the case of TB from the present in that TB only the assessors were the finders of facts, that is, there were no lesser charges as opposed to the present case where there were also lesser charges which were to be decided by the Judge. That is, with the present case both the Assessors and the Judge were finders of facts. I agree.
  9. I, as Judge alone was the finder of facts for the lesser charges (x2) of indecent assault of the same victim against the defendant and although I find the charges not proven beyond reasonable doubt, I made the following finding of fact at [14]:[21]

This means that the victim was staying or living with the defendant and his family at the time she was raped.

  1. There is evidence to support each element of the offence that the Assessors returned a guilty verdict on. Having regard to the evidence before the Assessors, the verdict reached by the Assessors were open to them and the verdict therefore reasonable.

Conclusion

  1. The application pursuant to section 136(4) of Criminal Procedure Act 2016 is dismissed.

JUSTICE TUATAGALOA

[1] Samuelu v Attorney General [2020] WSCA 1 referred to in Police v TB [2022] WSSC 12 at [10], [39].
[2] ibid
[3] Chea v R [2016] NZCA 207 followed by Clarke J in Police v TB [2022] WSSC 12
[4] Transcript, pp63-64
[5] Transcript, p41
[6] Transcript, pp46, 47
[7] Transcript, pp6-9
[8] Transcript, p9 lines 10-15
[9] Transcript, p38 lines 25 – 36, p39 line 5
[10] Transcript, p50
[11] Transcript, p43 lines 28- 36, p44 lines 1-8
[12] Transcript, p38 lines 25 – 36, p39 line 5
[13] Transcript, p50
[14] Transcript, p43 lines 28- 36, p44 lines 1-8
[15] Transcript, pp11-13
[16] Transcript, p13 line 14, p14 lines 10-29, p44 lines 20-29, p59 lines 17-29, p60 lines 34-36
[17] Transcript, pp84-95
[18] Transcript, pp99-106
[19] Police v TB [2022] WSSC 12 Clarke J refers to the difference between the Supreme Court review function under s136(4) and that of the Court of Appeal under s180 of CPA 2016.
[20] Transcript, p102 lines 13 -22, p106 lines 12-36
[21] Police v Niusila [2024] WSSC 71

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