SUPREME COURT OF SAMOA
Police v Metu [2013] WSSC 99

Case name:  Police v Metu
Citation: [2013] WSSC 99
Decision date: 26 July 2013
Parties: 
POLICE v RICKY SEUPULE METU male Vaega Satupaitea.
Hearing date(s): 26 June 2013
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
F E Niumata for prosecution
L Tamati for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

RICKY SEUPULE METU male Vaega Satupaitea.
Defendant

Counsel:  F E Niumata for prosecution
L Tamati for defendant

Hearing:   26 June 2013

Judgment:   26 July 2013

ORAL JUDGMENT OF NELSON J
1.	The defendant faces two charges.  Firstly that at Satupaitea on 8 November 2011 he did indecently assault Penia Veaega a female of Satupaitea under the age of 12 years.  The second charge is that at the same place on the same date he did verbally make a threat to do bodily harm to Feiloaiga Vaega a male of Satupaitea by using the words “vaai o lea o le a ou alu atu ma le sapelu.”  There will issue the usual suppression order prohibiting publication of the details of the complainant.    
2.	There is no dispute as to the age of the complainant.  Her birth certificate was submitted by consent of counsels.  It shows her date of birth to be 16 February 2004.  So that as at the time of this alleged offending in November 2011 she was about seven and half (7 ½) years old.  
3.	The prosecution evidence as established by the evidence of the complainant and her 10 year old brother is as follows: the two children were picking nonu in the bush behind their village in an area which contains the defendants plantation.  They came upon the defendant working his plantation.  According to the children the defendant threatened the complainants brother with his sapelu and chased him away.  And then he took the complainant to the back of his property.  Ostensibly to pick some more nonu.  There he undressed her and according to her indecently assaulted her by pinching her neck and around her private parts.  Initially the complainant showed the area around her private parts pinched by the defendant to be her lower stomach.  On further enquiry in cross examination she changed that to an area around the inside of her thighs or what we know as the “auaga”.  
4.	The complainant said the defendant also showed her his private part.  And that this is the first time she has seen such a thing.  She then heard her brother calling out for her. The defendant told her to get dressed which she did and further instructed her not to tell anyone.  And that next time she is to bring her older sister Carol.  
5.	The complainant went to the road where her brother awaited and as they walked home she told her brother about what had happened.  On arrival at home she did not however inform her mother because she was afraid of being beaten and also because of the defendants threat to cut her head off with his sapelu.  Not even when her mother showered her that night did she inform her of what happened.  She only told her the next day after school when she was confronted on the road by the defendant who slapped her and accused her of lying.  Something that he denied.  
6.	The complainants brother generally corroborates the complainants story.  He said the defendant took the complainant and chased him away.  And also confirmed the defendant threatening to cut him with the knife.  The further evidence of Feiloaiga was that while he was on the road a man of their village named Veni came along on his bike.  He questioned what he was doing there and he told him he was waiting for the complainant.  Veni instructed him to call the complainant as it was getting late.  He did so.  And the complainant came out of the land followed by the defendant.  The boy said on their way home the complainant told him about the incident.  Likewise he too did not tell his mother about what the complainant said because he was afraid of being beaten by the mother.  
7.	The evidence of Veni Vilifiti was that he was returning from his plantation on his bike when he found the complainants brother sitting on the roadside with his sack of nonu.  He stopped and questioned him.  The boy told him he was with the complainant.  He instructed him to call the complainant.  On the second call she answered and came out of the bush.  He said he saw her from a distance and she was not accompanied by anyone.  Having seen her he was satisfied she was safe. He remounted his bike and went home.  
8.	The witness was showed photographs of the area taken by police and asked to identify the area he says the complainant emerged from.  It is apparent from photograph 5 that it is a dark and bushy area.  And a close up of it in photograph 6 shows it to be in a dip on the side of the road.  This is consistent with where the witness said he saw the complainant coming from.  
9.	The evidence of the complainants mother was that her children came home late and the sa was on.  When she showered the complainant that evening she notice a red mark on her neck.  Further that the complainant was sensitive to her touch.  She also recalled the complainants panty was dirty.  But she did not think anything of these things because the girl was very young.  Accordingly she did not question the complainant.  But the next day she had a conversation with Veni and after school she questioned the complainant if anything had happened.  The complainant cried and told her about the incident.  She confronted the defendant but he denied any wrong doing.  So she reported the matter to the police.  
10.	The defendant elected to testify and he denied all allegations.    He said he did not threaten the children and he did not assault or touch the complainant.  He felt sorry for them and invited them to get nonu from his land.  Which they did.  After which they left.   He denied he took the complainant to the back area of the land or that the two of them went there.  He also testified that the childrens nonu was all picked by the side of the road.  He disputed Venis evidence that Feiloaiga called out to his sister.  And Venis evidence that Feiloaiga was alone on the road.  And Venis evidence that the complainant came out from the back of his land.  
Decision
11.	I accept there are inconsistencies between the sworn evidence of the complainant and her brother Feiloaiga and the statements to the police post incident.  But the ages of both must be borne in mind.  At the time the complainant was only seven and a half years of age (7½) and Feiloaiga 10.  Feiloaiga said in his testimony that he forgot some of what he had told the police.  It is likely that these two children have had no prior experience with giving statements to police officers.  And it is unlikely the children would have been given their statements to read through after making them.  
12.	There is no inconsistency in their evidence on the major issues.    On the threats by the defendant and on the defendant and the complainant going to the back of the land.  On the calling out by Feiloaiga to his sister and her emerging from the land first followed by the defendant.  There is also corroboration of the complainants account in material particulars not only by Feiloaiga but by the mother.  Also by the independent eye witness Veni.  Furthermore there is the evidence of complaint made by the complainant to her brother and her complaint to her mother.  These are generally consistent with her account of what happened.  
13.	The defendant on the other hand maintains the children are lying and that they are implicating him but for no apparent reason.  He also substantially disputes Venis evidence.  Veni who is an independent witness who just happened to be biking along on the way home from his plantation.  
14.	Counsel for the defendant has submitted Venis evidence contradicts that of Feiloaiga who said that the complainant and defendant came out together.  But that is not so.  Feiloaigas evidence was “O Liki ma Penia la e muamua mai Penia ae savali mai kua Liki”- page 21 of his evidence.  This is not necessarily inconsistent with Venis evidence that he saw the complainant come out and then he left.  Page 30 of Venis evidence: 
“Peita’i ua ou tau mai ia Feiloaiga o nofonofo i le auala ma lana taga nonu, na ou oso foi lea i lalo ma le uila ma ou fesili ia Feiloaiga poo ai laua.  Peita’i ane na fai mai o laua ma sona tei o Penia.  Na ou fai lea ia Feiloaiga e valaau e sau. Ia na valaau loa lea o Feiloaiga oe mai le tamaitai ia ona valaau lea fai iai e sau.  Peita’i ane o lea na ou vaai atu ua savali mai Penia, ia ona ou toe oso lea i luga o la’u uila  ma ou sau loa i tai i le aai.”
15.	Further along on page 30 of Venis evidence:
“Fesili:	poo le a se mamao o le mea lea sa e tu ai mai le mea lea na e vaaia ua agai mai le teineitiiti?
Tali:	masalo ona o le vaega lea o le eleele e iai le omo e nofo ai le vai pe a tetele timuga, ia o le mea lea a maui le vai ona omo, e telē a la le mea lea.…masalo pe tau fai a si mamao laititi, e le mamao tele foi ona o le vaega lea o le eleele e maualuga le auala ona alu loa lea ae  pei e tau mati’e mai foi leisi itu pei ona ou taua.”
16.	This evidence of Veni indicates that he saw the complainant from some distance away.  And in the area that he identified as an “omo” as per the photographs.  Once he saw the complainant he left.  The inference to be drawn being that once he saw the complainant come out from the bushy area as indicated by him, he was satisfied the children were safe so he left.  The defendant only emerged after he had gone.  There is no evidence that the two of them walked out together or that one was immediately behind the other.  
17.	Venis evidence is in the courts assessment cogent and reliable.  He is independent of the parties to this matter.  There is no reason to doubt his veracity.  His evidence supports the childrens version of events.  And goes against the account given by the defendant.  
18.	The court is satisfied beyond reasonable doubt that you lured the complainant to the back of your land.  Where you indecently assaulted her by undressing and pinching her in the vicinity of her private part and by showing her your private part.  
19.	I reject your counsels submissions that pinching does not amount to an indecent assault in the circumstances.  Pinching is touching and touching a naked young female in the vicinity of her private part in a deserted area is in my view indecent assault.  It falls within the legal definition of indecent assault which is touching occurring in circumstance that reasonable and right thinking members of the community would regard as indecent.  
20.	The court is equally satisfied beyond reasonable doubt that you threatened the young boy Feiloaiga with a knife in order to scare him off.  So that you could do whatever it is that you had in mind to do to the young girl.  
21.	Both charges are proven beyond reasonable doubt and you are found guilty accordingly.  

……………………
JUSTICE NELSON