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Police v Mafuto'a [2017] WSSC 104 (21 July 2017)

SUPREME COURT OF SAMOA
Police v Mafuto’a [2017] WSSC 104

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution
AND:

TO’A MAFUTO’A male of Salepoua’e Saleimoa.
Defendant

Counsel:
I Atoa on behalf of L Su’a-Mailo for prosecution
I Sapolu for defendant

Hearing: 11, 12, 13 & 14 July 2017
Decision: 21 July 2017

ORAL DECISION OF NELSON J

1. Originally the defendant was charged that at Salepoua’e Saleimoa on 21 July 2016 he did rape the complainant a female of the same village. Details of the complainant and members of the complainants family who were witnesses suppressed as per normal procedure of the court. A panel of assessors was accordingly convened and trial began before the panel.
2. However as the proceedings progressed it became clear the prosecution were unable to offer evidence to establish penetration, an essential ingredient of the charge. Accordingly they reduced the charge to one of committing sexual violation by way of sexual connection. That is the final charge the defendant now faces and because it is triable by judge alone the assessors were discharged. I heard evidence from the police witnesses and from the accused himself who elected to give evidence.
3. The police evidence consisted of the testimony of T the complainants 7 year old nephew and IP her older sister. The complainant herself has been diagnosed by Dr. Tuitama the Registrar of the Mental Health Unit at the Tupua Tamasese Meaole Hospital as having a “marked intellectual disability” and at trial, was unable to testify or even speak. She is also physically disabled being confined to a wheelchair.
4. The evidence I heard indicated she suffered seizures post the matter before the court and was admitted to Hospital twice for suspected meningitis. Her current physical and mental condition is quite poor but I am satisfied she was not in that state in July 2016 when the sexual assault is alleged to have occurred. She was at the time according to her sisters evidence quoting from page 21 of the transcript:

“Ae lei taofia pe ma’i foi le tamaitai lea o L sa malosi lava le tino, malosi le savali, malosi foi le taumafa ma le inu. Ae sei vagana ai la lana tautala e tau le malamalama ai le toatele o tagata. Ae e malamalama foi o ia pe a fai atu iai se tala, e mafai foi ona talanoa mai ae le atoatoa lana talanoa pei ose talanoaga ma le tamaitiiti laititi.”

5. She had a very limited education and according to the evidence was unable to read and write but could carry out her chores. Her sister referred to this in her evidence at the bottom of page 21 and over on to page 22:

“Fesili: ae a le tulaga ile aoaoga?

Tali: o L la e lei uma ni ana aoaoga, na gata lava le aoga a L o lea oute maitauina poo le vasega tasi po o le lua. O tulaga na a alu ile aoga e le o se tagata foi lele, a loto a L e moe ua moe, e tuu lava e lana faaiuga e moe, pei na gata mai iina le aoga a L e lei toe faauaua lana aoga.

Fesili: ae a le tulaga o lana tusitusi

Tali: e leiloa tusi le igoa poo se mataitusi ae na o le osiosi pe a avatu iai le api ma le peni.

Fesili: ae a le tulaga i le faatinoina o feau?

Tali: e lelei lava pe a faatonu i feau.

Fesili: o a ituaiga feau e fai ia L?

Tali: e alu e ligi mai le iputi, asu mai le meaai, pe alu foi e tunu le ti.

Fesili: ae a le faatinoina o faatau?

Tali: faatau seiloga e alu ma se note i le faleoloa pe o toalua ma seisi ona faatoa mafai lea ona malamalama le faatauoloa i le faatau e alu e aumai, ae e mafai lava ona savali i le faleoloa e aumai le faatau.”

6. Due to her condition she was therefore of not much assistance in relation to the allegation facing the defendant. The alleged sexual assault however was said to have been witnessed by T, who became the primary witness for the prosecution. He said that on the day in question, he went to the store with the complainant and he was at the time “fafa” or carrying a younger sibling on his back. He spoke about encountering the defendant who called the complainant over, took her by the hand and led her into a bushy area. Where the defendant kissed her on the lips and sucked her breasts after undressing her. He said the complainant was crying and tried to push the defendant away. And that the complainant was lying on the ground with the defendant on top of her. He also testified there was a time when the couple were on their sides and he could see only the defendants back.
7. He mentioned several times that what the defendant was doing to the complainant was a “meavalea”. When pressed to explain what he meant by that he said “la e faapipii la pi”. He was at the time standing close to the couple, a distance he estimated at about one and half to two meters. This behaviour did not last long and when they finished they dressed and the defendant said to the complainant “toe fai taeao”. They proceeded home where he reported what happened to his aunt IP. His further testimony was that IP took him to the defendants house which is about three houses away. But the defendant denied doing any “meavalea” to the complainant or doing anything at all to the complainant.
8. In cross examination T generally maintained his story. He agreed it was “tau pogisa” but said it was light enough for him to clearly remember the complainant was wearing a bra. And reiterated that a “meavalea” was done by the defendant to the complainant. He accepted his younger sibling on his back began crying but only after the alleged sexual assault had occurred. Crying and wanting to go home.
9. IP’s evidence supports that of the young boy. She said about 5:00 pm that day, she gave the complainant a note and sent her to go with T to the shop. The note appears to have been what was required from the shop. She further said that as the children had been gone awhile and it was getting late she sent younger siblings of the family to meet them. They came back and reported the incident to her. The complainant then arrived and IP had this to say on page 23 of the transcript about what she observed:

“Sa o atu loa i tua ile umukuka ma sa ou maua le tala ile mea na tupu. Ia ae oo atu loa ma L ma ou vaaia ai foliga pei se tagata sa tagi. Sa ou fesili iai poo le a le mea ua tupu?

Fesili: o le a le uiga o lau faamatalaga pei sa tagi?

Tali: e mu foliga ma mata e mu pei a se tagata sa tagi, ma oute vaai atu lava i ona foliga pei e iai se mea na tupu. Na ou fesiligia loa ma sa ia taua ai le mea sa tupu.”

10. She says that when she questioned the complainant she was told “the defendant kissed her and did a meavalea to her.” She also questioned T who confirmed what had happened. But she said the complainant did not give her specific details as to what had occurred. She immediately grabbed her torch and set out for the defendants house together with T.
11. There, she confronted the defendant who denied doing anything to the complainant. So she told him she was taking the matter to the police. From page 23 of her evidence:

“Ou fai atu loa lea iai e te faafiti o lea e molimau le tamaitiiti. Fai atu a ae faafiti mai a le tamā lea o To’a. Ou fai atu loa iai afai e te faafeiti o le a ta feiloai i luma o le Ofisa o Leoleo, ma ou tago atu uu mai le lima o lo’u atalii ma ma savavali mai. Ae valaau mai le tala a To’a ia te a’u, fai mai IP faamalie atu a, o’u toe liliu atu loa iai ma fai atu la’u tala iai “e le mafai e lau faamalie lea ona aveese au meavalea ia na fai, lea na tilotilo iai lo’u atalii lea.” Ia ma ou savali mai ai i le po lea. Ma omai loa ma si a’u tama ma toe o i uta i le fale.”

The next day she lodged a complaint with the police at the Afega Police Post. In cross examination IP was adamant that the defendants parting words to her were “faamalie atu” and nothing else.

12. The defendant elected to testify and said that on the day of this incident, alot of people were on the road to the shop. Including a boy of the village named Kato that he greeted and said “hello” to and had a conversation with. It is noted neither Kato nor any other village person was called as a witness to support the defendants contentions.
13. His further testimony was he met up with the complainant and the young persons and shook hands with the complainant. He demonstrated in the witness box a vigorous handshake using his right hand. He also said he shook hands with the then 6 year old T but not the infant T was carrying on his back. And after greeting the group he carried on home because he was drunk having consumed three large bottles of Povi, a potent brand of Vailima beer. In the evening he was feeding his pigs when IP arrived. She accused him of molesting the complainant which he denied and he said to her “malie lou loto e leai se mea na tupu” or words to that effect.
14. As to the complainant, the defendant admitted he knew her from previously encountering her on the road. He said initially in cross examination he was not aware of her mental condition.
15. This I found difficult to believe coming from someone living three houses from the complainant. And who had lived in the small sub-village of Salepoua’e all his life. Furthermore, in cross examination there was a certain exchange with counsel which is reported at page 11 of the transcript:

“Fesili: le taimi lea na tou fetaui ai ma L ile afiafi lea, o la e mafai ona tautala L a?

Tali: e le mafai na tautala e gego le ulu.

Fesili: gego le ulu?

Tali: ia.

Fesili: ae le o le taimi lea o la e mafai ona tautala L?

Tali: e leai ma se tala na ou faalogo ai, e le tautala Leū na o le gego o le ulu o L.”

16. When I asked him what he meant by “gego” his answer as recorded on pages 11 and 12 of the transcript was:

“Fesili: o le a le uiga o lau tala e gegogego?

Tali: e le mafai ona tautala

Fesili: e le matala mai ni upu?

Tali: e le matala mai ni upu

Fesili: a’o le gegogego o le a e lue le ulu?

Tali: ia sa’o lava

Fesili: ua leva ona faapena le teine, e sa’o?

Tali: [witness shook his head).

Fesili: Tali mai, ua leva ona faapena le tamaitai lea a?

Tali: ia ua leva”

This is a clear admission he knew of the complainants limited speech capability notwithstanding his earlier testimony. I have no doubt he was well aware of the complainants mental incapacities.

17. I was also unimpressed by some of the defendants answers to questions. Thus for example his evidence concerning shaking hands with the 6 year old T. It is not normal for a Samoan adult even a drunken one to shake hands with a 6 year old boy. At most there would be an oral greeting of “malo!” or “where are you going?” Handshaking is what palagis do, it is not our custom. And when challenged in cross examination about shaking hands with T, when counsel reminded him T was carrying his younger brother using his two hands, the defendant quickly changed his answer. His answer changed from “faatalofa with T” which he had testified to in examination in chief and cross examination to “o’u faatalofa atu ae fai mai laga la e sii si ona tei.”
18. There is also the impact of the words the defendant used to IP. He did not dispute that he used the words “faamalie atu”. If he did nothing, what is he being “faamalie” about?
19. Game set and match I do not believe a word you are saying. I prefer T’s eyewitness evidence even with its inconsistencies. It is more believable and credible and is in accord with the other prosecution evidence. I find you guilty of the charge of committing sexual violation by way of sexual connection on the complainant at Salepoua’e on the 21^st day of July 2016 as alleged by the prosecution.
20. Tulaga o le mataupu lea ua iai To’a o le a tolopo i le aso 31 o Iulai i le ta o le 10:00 i le taeao mo le lauina o le faasalaga. Tulaga lea e tatala ai oe i tua e faaauau pea, ae tatau ona lua agai ma le susuga ile loia i le Ofisa Faanofo Vaavaaia i le aso, e iai le latou lipoti e taua mo oe e tatau ona tapena mo le aso 31 o Iulai. Aua le faaletonu le faiga o le lipoti lena, pei ona ou faiatu e taua mo oe le lipoti lena. O le aso 31 Iulai 2017 e lau ai le faaiuga o le mataupu lenei.
    

JUSTICE NELSON