IN THE SUPREME COURT OF SAMOA
Police v Niusila [2024] WSSC 71 (19 April 2024)

Case name: 	Police v Niusila	
		
Citation: 	[2024] WSSC 71	
		
Decision date: 	19 April 2024	
		
Parties: 	POLICE (Informant) v ATAPANA NIUSILA, male of Satapuala (Defendant)	
		
Hearing date(s): 	26th – 28th June 2024	
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tuatagaloa 	
		
On appeal from:		
		
Order:	The prosecution has a high standard of proof of, beyond reasonable doubt. I find that the two charges of indecent assault fall short of this standard of proof. The two charges of indecent assault are dismissed against the defendant, Atapana Niusila.	
		
Representation: 	I. Atoa for Prosecution 
I Sapolu for the Defendant	
		
Catchwords: 	Indecent assault  	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ATAPANA NIUSILA, male of Satapuala

Defendant

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

Hearing:	26th – 28th February 2024

Decision:	19th April 2024

DECISION OF JUSTICE TUATAGALOA
1. 	The defendant stood trial on 26th – 28th February 2024. On the consent of both counsels, the evidence for the two charges of indecent assault was heard together with the evidence regarding the offending of rape. The charge of rape and indecent assault were alleged to have taken place sometime between the 1st – 30th April 2021. The indecent assault charges were also not filed as alternative to the main charge of rape.
2. 	The rape charge was before the assessors while the indecent assault charges was left to the domain of the presiding judge alone to decide upon. This is that decision.
Background/Setting
3. 	The victim and the defendant, who is an uncle, are neighbours.  The victim’s father is the brother of the defendant’s wife. The victim’s family, the defendant’s family and siblings of the victim’s father and that of the defendant’s wife all live on the same compound each with their own house. The evidence is that there are about eight (houses) on half acre land. 
4. 	The victim was 17 years’ old and the defendant was 56 years’ old at the time of the offending.
The law
5. 	The prosecution must prove beyond reasonable doubt the following:
(a) 	First, the defendant must have committed an assault upon the complainant.  An assault, in law, is the intentional application of force by one person to the body of another person.  Thus, mere touching of another person’s body is an assault unless it was accidental.  
(b) 	Secondly, the assault must have been indecent.  Whether an assault is indecent is to be decided by applying what is considered to be the standards of decency that are commonly accepted in our community.  In other words, if what was done was something that our community generally would regard as indecent, then for the purposes of this trial, it is indecent.  
(c) 	Thirdly, the defendant intentionally touched the victim’s breasts and genitalia.
(d) 	Fourthly, the complainant did not consent to what occurred.  Consent in this context means consent that is freely and voluntarily given.  Submission by a female out of fear or a sense of helplessness is not consent.  
The evidence
(i) The Prosecution evidence
6. 	The prosecution called seven witnesses: Anarosa Siaki (victim), Ella Fualaau (aunty), Tala Popo (Ella’s daughter), Siaki Tavita (victim’s father), Levaula Tavita (victim’s mother), Corporal Hanania Lene (Investigating Officer) and Sergeant Leativalu Neemia (Forensic – Photos).
7. 	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 her 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 when she returned back to her parents. The defendant and his wife paid for the victim to go back to school in 2021. This evidence of the victim is supported by the evidence of her mother Levaula Tavita who 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. Ela Fualau’s evidence is that Anarosa stayed with the defendant and his family from 2020 until sometime in 2022. 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. 
8. 	It was during the time the victim was still staying with the defendant and his family in 2021 that the victim said the defendant touched her on the breast and on her genitalia during one night in April 2021 when they slept in the open area of the house. Atapana, his daughter Upuese and Anarosa slept on the floor while Atapana’s wife slept on the bed. At, some point during the night Anarosa said she ended up sleeping along the heads of Atapana and Usuese. It was then that Anarosa said she felt a hand inside her t-shirt touching her right breast - “Sa ou fiti ai ma ou faalava i ulu o Atapana ma lona afafine. Sa ou faalogoina ai ua tago le lima o le tagata i totonu o lo’u mitiafu ma lotelote o’u susu.”  She said that she woke up and saw it was Atapana who touched her breast – “Ou pupula ane loa ou iloa atu o Atapana lea na tago i totonu o lo’u mitiafu.”  “Lae taoto mai ma tago tuu atu lana lima toe taoto i lana moega”. She turned to the other side and shortly after she felt the defendant’s hand inside her shorts – “O’u faasaga loa i leisi itu ou faagalegale moe ae ou toe faalogoina ai lea ua toe tuu atu le lima o le tagata i totonu o lo’u ofuvae”. Asked where he touched her and she said on the front of her shorts – “O gafea o lou ofuvae na tago ai le lima lea? O luma o lo’u ofuvae. i gafea? Luma tonu lava o lo’u itutinosa”. She said that the touching of her breast was very fleeting and when she was touched on the genitalia, she saw that it was Atapana when she removed his hand. The victim was asked why she did not tell or say anything to the defendant’s wife who was sleeping on the bed but she said that she did not think to tell the wife about it at the time. The defendant’s wife, Aiga, is the victim’s aunty, her father’s sister.
(b) Defence evidence
9. 	The defence case is that the victim was no longer living with the defendant and his family in 2021. As such, what she alleged to have happened could not have happened. 
10. 	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). The evidence of Usuese is that the victim stayed with them in 2020 but she returned to her parents half way through 2020. Her evidence is that the victim was no longer staying with them in 2021. Usuese’s evidence is supported by the evidence of Telesia whose evidence is 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. She said that the defendant and his wife asked her parents for her to come stay with them to go to school with Usuese and help study together with her (Usuese). Telesia’s evidence is that the victim was no longer living with the defendant and his family at the time. 
11. 	Usuese also gave evidence that her and the victim had never slept in the open part of the house, her parents now and then would sleep in the open part of the house but she and the victim always slept in the bedroom.
Discussion
12. 	The victim under cross examination was persistently asked that she could not have stayed with the defendant and his family in 2021 but the victim maintained that she stayed with Atapana and his family until after the school’s first quarter in 2021 when she returned to her parents. Anarosa agreed that Telesia stayed with Atapana and his family in 2021 and attended school but said that Telesia only came after she had left to go back to her parents. Telesia who attended the same District College when asked about the school year 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. The evidence of the victim’s mother Levaula is that the victim left the defendant and his family and returned home around May 2021. 
13. 	The difference between the evidence of the victim (Anarosa) and that of the witnesses for the defendant (Usuese and Telesia) is the period of time that the victim stayed with the defendant and his family. The allegation is that the offending took place sometime in April 2021.
14. 	I find the evidence of the victim consistent as to the period of time she stayed with the defendant and his family. Under persistent questioning by defence counsel there was never a time where she seemed to be shaken or unsure when questioned about the time, or period she stayed with Atapana and his family. Her evidence is supported by or consistent with the evidence of her mother.  A reasonable inference can be drawn from the evidence of Ella and Siaki that the victim stayed with the defendant and his family in 2021 but that she returned home end of April or May 2021 according to the evidence of the victim and her mother. I believe the evidence of the victim that she stayed with the defendant and his family from the latter part of 2020 until after the school’s first quarter in 2021 which according to the evidence of Telesia runs from February for 10 weeks till about the 2nd or 3rd week of April 2021.
Findings
15. 	I find that the victim was staying with the defendant and his family from the latter part of 2020 until about May 2021 when she left and returned to her parents. However, I find the victim’s evidence of the defendant touching her on the right breast and on her genitalia to be vague and doubtful. There is the evidence of Usuese that she and Anarosa had never slept in the open front part of their house, her parents would, now and then but her and the victim always slept in the bedroom.
16. 	The victim never told anyone. What was told 18 months later was the rape but not the indecent touching.
17. 	The prosecution has a high standard of proof of, beyond reasonable doubt. I find that the two charges of indecent assault fall short of this standard of proof. The two charges of indecent assault are dismissed against the defendant, Atapana Niusila.
JUSTICE TUATAGALOA