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Police v Toese [2025] WSDC 12 (29 September 2025)

IN THE DISTRICT COURT OF SAMOA
Police v Toese [2025] WSDC 12 (29 September 2025)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ASUELU TOESE a.k.a. MALAMA TOESE of Faleula-uta and Salelavalu, Savaii

Defendant

Counsel: Inspector Richard Ah Ching for Prosecution
Ms Vei Faasii for the Defendant

Date of hearing: 19th June 2025

Date of Decision: 29th September 2025

RESERVED DECISION

INTRODUCTION

1. The names of the persons involved in this matter are left out as it would lead to the identity of the young victim. This account is taken from the sworn testimonies of the victim and her mother who will be referred to as “X”.
2. The defendant is charged with an act of unlawful sexual offence pursuant to section 59(3) and (5) of the Crimes Act 2013:
   • 59. Sexual conduct with young person under 16 – (1) A person who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
   • (2) .....
   • (3) A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding 7 years.
   • (4) .....
   • (5) In this section: “young person” means a person who is 12 years or over and under the age of 16 years; “doing an indecent act with or on a young person” includes indecently assaulting the young person
3. The particulars of the charge state:
   • “.... that at Faleula-uta on or between the 1^st day of February 2020 and the 1^st March 2022, the abovenamed defendant of Faleula-uta commit an indecent act namely, touching the genitalia of Sefulu Piula a young female under the age of 16 years.”

FACTS

4. The Victim gave evidence that sometime between March 2021 to 2023, she and her mother were staying with her grandmother at Faleula. At the time she was in Year 8 at Faleula. She recalls it was a Monday. The defendant is her grandmothers second husband.
5. On the evening in question, she was told to sleep with her grandmother and the defendant inside and open space of the grandmother’s house. The victim was wearing a tee-shirt, panty, shorts and a lavalava. Sometime during the night the victim was woken because she felt the defendant touching her vagina. She realized that her pants were removed. She looked up and saw that it was the defendant but he said to her: “Aua ge’i e pisa i seisi”.
6. The victim immediately woke up her mother and the grandmother came to about the same time. The defendant was pretending to sleep. The grandmother woke up the defendant and asked him what happened but he denied knowing anything. The victim asserted that this was not the first time this happened and the defendant served a prison sentence of three (3) years for indecent assault. The prosecution produced the defendant’s previous conviction without objection from defense counsel and I take judicial notice of the official record.
7. “X” gave testimony that she was the mother of the victim born on the 7^th January 2008, the victims birth certificate was not opposed by defense counsel. She recalls the incident having occurred sometime in February 2020 Thursday night going into Friday morning at Faleula at her mother’s family residence. She recalls the victim waking her up early morning and said: “Ua koe kupu fo’i le mea lea ia ia. Ua koe kagokago fo’i Asuelu ia ia”.
8. X woke up her mother that was sleeping on the bed. The grandmother turned to the defendant and asked: “Poo le a le mea ua kupu?”. The defendant said nothing. The grandmother turned to the victim and asked her what happened. The victim said “Sa ia moe ae ua kakala e Asuelu loga ofuvae ma lokeloke loga pi”. That night, X told the grandmother and the defendant: “Ia kagu ai ii i iloa e oga kuagage”.
9. X further recalls that they had a meeting with her older sister “Y”, the grandmother and one of her brothers a few days after the incident. The grandmother asked the defendant if he recalls being woken up by her because of this complaint by the victim. The defendant said he recalls being woken by her and X said: “Ia kagu ai ii le mea lea”.
10. The defendant elected not to give evidence. Instead, he called two witnesses, the grandmother and Y. The grandmother denied that she was made aware about the incident. The evidence for the defense was basically that the incident never happened as the mother and the victim never stayed with them at Faleula during the period the offence is alleged to have taken place.
11. Furthermore, the delay in making the complaint in August 2024 suggests that the whole incident was fabricated by the victim because she was scolded by her mother for disobedience.

DISCUSSION

12. The facts of the case are not complicated and rest solely on which evidence is to be believed having been tested by the principles of the rules of evidence.
13. I have no reason to reject the evidence of the victim despite the assertion from the defendant that she was fabricating the story to get him in trouble again. Eventhough the mother, X, tried to keep the matter hidden, she testified under oath to corroborate the evidence that the victim immediately informing her about the indecent act within minutes of its occurrence.
14. Similarly, there is no reason to reject the evidence of X despite the defendant’s assertion that X and the victim never stayed at Faleula during the time of the allegation. This assertion is not consistent with the nature of family and how a family lives with its members in the Samoan way of life. But even if I were to accept this justification from the defendant, his own witnesses conceded there were occasions that the victim and her mother came over and stayed at Faleula but for very short periods of time. In relation to the period of the charge, it would have been in any of these occasions the incident is alleged to have occurred.
15. The grandmother accepted that there was a meeting in the family days after the incident to discuss the allegation. However, she denied that she was not woken by the victim nor did she wake up the defendant and asked him whether he did do what the victim complained about.
16. The circumstances of the delay in laying the complaint in my view does not cast doubt on the veracity of the victims account. It would have posed a difficult but not impossible task for me to consider if the case was solely between the testimony of the victim and the defendant. That is not the case here where the victims’ mother corroborated the account of the victim within minutes of its occurrence. I find no good reason to doubt or reject the evidence of X.
17. The prosecution offered propensity evidence relating to the previous conviction of the defendant in the act of indecent assault on the same victim of which he was convicted and imprisoned for three (3) years on the 6 May 2015. Ms Faasii did not oppose this evidence.
18. The defense was basically to deny the allegation as fabricated.
19. The law so far as to deal with section 59(3) offences is well settled in Samoa^[1] and will not repeat it here.
20. I reject the evidence of the witnesses for the defendant as merely denial of the unlawful act and premised on dishonesty perhaps out of sympathy or a distorted version of blind love for the defendant.

CONCLUSION

21. I find that the prosecution have proven beyond a reasonable doubt the charge against the defendant.
22. This matter is adjourned to the 7 October 2025 at 10am to set a sentencing date.

JUDGE MATA’UTIA RAYMOND SCHUSTER

^[1] Police v Timai [1999] WSSC 49 (13 May 1999); Police v Sa [2016] WSDC 26