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Police v Auvae [2019] WSFVC 1 (20 March 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Auvae [2019] WSFVC 1

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

NIUTI TUAOIMAALII AUVAE,
male of Fagalii, Malie and Tufulele
Defendant

Counsel:
Afoa for Prosecution
P Tuisa for Defendant

Hearing: 23^rd January 2019, 6^th March 2019
Decision: 20^th March 2019

DECISION OF JUDGE SAAGA

1. Name of the Victim is permanently suppressed.

THE CHARGES.

2. The Defendant was initially charged under Section 53(2) of the Crimes Act 2013 for assault with intent to sexually violate EM but was reduced on an application by Prosecution to a charge under Section 59(3) of the Crimes Act 2013.
3. Section 59(3) of the Crimes Act 2013 stipulates that, “A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding 7 years.”
   1. Section 59(6) further defines, “In this section:
      1. Young person” means a person who is over 12 years or over and under the age of 16 years;
      2. doing an indecent act with or on a young person” includes indecently assaulting the young person.
4. The particulars of the charge are, “That at Faala Palauli on the 22nd of May 2017, the Defendant indecently assaulted EM female of Faala Palauli.”
5. The Defendant is also charged with an alternative charge of Assault under Section 123 of the Crimes Act 2013.
6. The Defendant pleaded not guilty to both charges.
7. The Prosecution bears the burden of proving these charges beyond reasonable doubt.

EVIDENCE

Prosecution Evidence

8. EM is 14 years of age. She lives with her grandparents. EM was instructed by her aunty to buy a soap and washing powder from the shop in the neighbouring village. It was around 5pm when she left their home. On her way to the shop she walked past the house that was rented by the Defendant and his wife. She saw the Defendant and his 18 years old daughter playing tag while his wife sat nearby watching them. She saw the Defendant looking at her.
9. On her way back, she again walked past the Defendant’s place. He was walking towards the road and she met him whilst walking past the hedge in front of his place The hedge extends to the left side of the property. The Defendant’s rental house can be seen at a distance as it is located further back and there are plants in front and at side of the house.
10. He held up his hand and greeted her and she responded by also putting out her hand. He held onto her hand and pulled her towards him telling her if they could kiss. She declined.
11. He asked her if she could help him to pick some papayas. She declined and said her aunty was waiting for her. He then asked her if they could have sexual intercourse. She said no. He then pulled her behind the hedge and hugged her whilst trying to kiss her on her left cheek.
12. She managed to pull her hand away and run onto the main road where she met Asovale. Asovale was riding on his bicycle when he saw her running onto the road crying and visibly upset. He stopped and enquired as to why she was crying. She told him that the man who lived in the house had tried to force her behind the hedge and tried to kiss her.
13. Asovale looked towards the property and fleetingly had a glimpse of the Defendant walking away. He walked towards the Defendant’s house with EM following him. He stood at the gate and called out to the Defendant who was walking towards the house. He turned and walked back to the gate. He asked him as to what he had done to EM. The Defendant denied that he did anything. His wife joined them and he told her also what EM had said and she denied that her husband had done anything to EM. EM was standing next to Asovale whilst Asovale was talking to the Defendant.
14. Asovale left whilst EM walked home. Her aunty concerned that EM has not returned told her brother who had just returned from monitoring the village curfew to walk down the road to see where EM was. It was after 7pm. Before EM’s uncle reached the road, he met EM coming home. She was crying. He asked her what had happened. His sister, EM’s aunty also walked over when she saw EM crying. EM told them that the Defendant had forced her behind the hedge and hugged her whilst he tried to kiss her. Her uncle upon hearing his niece walked over to the Defendant’s house. EM and her aunty followed with Shaun her brother in law tailing behind them. EM’s uncle knocked on the door and the Defendant’s daughter opened the door. He asked for her father. The Defendant called out to him for them to come inside the house. Inside the house, EM again recounted what had happened. The Defendant looked at them nervously. He denied that he did what he has been accused of doing to EM. His wife also denied that the Defendant had committed the act that he has been accused of.
15. EM, her uncle and aunty left the house shortly after. When EM’s grandparents came home the grandmother was told what had happened. A complaint was lodged with the Police.

Defence evidence

16. The Defendant is a missionary for the Jehovah’s Witness Church. He is a 53 years old male and has been working as a missionary for the Jehovah Witness Church for 25 years. In 2002, he married his wife and she joined his missionary work in various parts of Upolu and Savaii. In 2015, they were transferred to Faala Palauli in 2015. They have an adopted daughter who was adopted by the Defendant’s wife prior to her marriage to the Defendant. She lives with her mother’s family in Fagalii but was visiting her parents at the time.
17. On 22nd May 2017, they were doing an outreach in Faala Palauli. After they returned, they had a rest and at 4.30pm, he played tag and other games with his daughter outside whilst his wife was watching. She was unable to participate as she had a sore foot. At around 5.30pm, they finished playing and went to collect some lemons from a neighbour. He then instructed his daughter to prepare a lemon juice whilst he locks the gate.
18. He walked to the gate locked it and walked back to the house. His wife told him to get a papaya so he walked towards the papaya tree but before he got there, he saw that the papaya was not suitable for consumption so he walked back towards the house. He heard someone calling him. He saw a man who he later found out was Asovale standing there with a young girl. Asovale was screaming at him and asking him what he had done to the young girl. His wife was in the sitting room and his daughter who was fixing the lemon juice in the kitchen both heard loud voices from the front. They walked outside to see what was happening. The Defendant was talking to Asovale when they got to the gate. The Defendant denied that he had done anything to the young girl. His wife also joined them. Asovale explained to her what EM had told him. She denied that the Defendant had done anything to EM.
19. Soon after, the young girl, her uncle and aunty came to their house. They were angry and uttered some harsh words towards him. The uncle also hit the door of their house and on their way home, hit their car.
20. The Defendant denied vehemently that he committed the act for which he has been accused. He is a missionary and a servant of God. He cannot commit such a heinous act whilst his wife and daughter were in the house. He also requested if he could talk to their parents.
21. After EM left the house with her relatives, his wife and the Defendant came to the conclusion that the only person that could have committed this offence is a demon impersonating the defendant. He said that the uncle of the victim had said that the land that they were occupying was haunted. None of their beliefs were shared with EM, her uncle and aunty when they confronted them about what had happened immediately after EM reached home. The uncle and aunty also denied that they had shared such beliefs when it was put to the them during the hearing.
22. In support of their belief, both the Defendant and his wife referred to an incident where their daughter disappeared when she was demon possessed. The Defendant recalled that she disappeared until Wednesday but could not recall the exact dates. His wife said she disappeared for two days and came back on a Tuesday. They neither searched, looked or reported her disappearance to the police.
23. Their daughter supported her parents evidence. She could not remember the exact date except it was a Sunday when her parents were at a church service and after preparing their food, she walked outside and found herself walking on the road. Later she came to her senses when she found herself at the beach resort at Tafua tai. She walked back to their house at Faaala Palauli. She was unable to recall the exact dates when she went on her walk about but it was a week before the current incident. The daughter cried before finishing her story. Her mother sitting in the front row also cried whilst listening to her daughter struggling to remember the details of her experience.

DISCUSSION

24. The elements of the offence under Section 59(3) of the Crimes Act 2019 are:
    1. A person
    2. Who does an indecent Act
    100. With or on
    4. A Young Person
25. Further, a young person is a person over the age of 14 years and under the age of 16 years. An indecent act also includes indecently assaulting a young person.
26. What is not in dispute is that an indecent act was committed and it was committed on the person of EM and that EM is a young person.
27. What was in dispute was the identification of the Defendant as the person who had committed the act. The Defendant is adamant that a demon who had impersonated him had committed the crime.
28. There is no dispute that it was the Defendant who was playing with his daughter earlier. It was the Defendant also who had picked lemons with his family and thereafter walked outside to lock the gate whilst his wife was in the sitting room and his daughter was fixing the lemon juice.
29. The victim identified the Defendant as the person who had held her hand and pulled her behind the hedge, hugged her and tried to kiss her. She pointed him out to Asovale immediately after she managed to free herself and Asovale had a fleeting glimpse of him walking away. EM stood next to Asovale and identified the Defendant whilst he was standing opposite them at the gate.
30. The Defendant did not deny that it was him who was outside walking towards the house. He does not deny that he had a conversation with Asovale whilst EM was standing there crying. His wife and his daughter did not deny that it was the Defendant standing at the gate when they walked over and it was the Defendant who walked back with them into the house. Neither did they deny that it was the Defendant who was at the house when EM’s uncle and aunty came to the house with EM shortly after the conversation they had with Asovale and EM at the gate.
31. His wife was sitting in the sitting room nursing a sore foot. The bedroom next to the living room in which the wife was sitting overlooks the left side of the property. She could not have seen the entire movement of her husband and there was no reason for her to monitor his every movement that day. It was only when they heard loud voices from the front that they walked to the gate.
32. The offence also was committed any time before 7pm and after 5.30pm when they finished their games. The only activities that the Defendant was involved after playing games were picking lemons from a neighbour’s land with his family and locking the gate which is 10 metres from his house. Both activities will take no more than 30 minutes.
33. The experience their daughter went through is a fallacy. There is no other word to describe it. I find it difficult to reconcile a dutiful wife who is able to describe with such details her husbands every move and the unconcerned mother who did not search nor report her daughter’s disappearance from their home and from a village she temporarily stays at for two to three days. Her daughter did not cry on the stand because of having to relieve a harrowing experience but from the pressure of having to take the stand to support a fallacy.
34. After hearing the compelling evidence that the Defendant was present before and after the fact, there is only one conclusion that I have reached, that the Defendant was in fact the demon impersonator.

CONCLUSION

35. I hereby find the Defendant guilty of the charge of performing an indecent act on a young person pursuant to Section 59(3) of the Crimes Act 2019.
36. Given that he has been found guilty of the charge, I hereby dismiss the charge of assault.

JUDGE ATOA-SAAGA