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Police v RM [2026] WSSC 4 (3 March 2026)

IN THE SUPREME COURT OF SAMOA
Police v RM [2026] WSSC 4 (3 March 2026)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

RM

Defendant

Counsel: F. Kolia and R. Drau for prosecution
V. Afoa for the defendant

Hearing: 10 September 2025
Submissions: 12 December 2025 and 13 February 2026
Decision: 03 March 2026

DECISION OF THE COURT

1. Defendant has pleaded not guilty to the following charges:
   • (i) On or between 22^nd June 2024 and 23^rd June 2024, committed sexual connection namely by licking the genitalia of the complainant, a female child under 12 years.
   • (ii) On or between 22^nd June 2024 and 23^rd June 2024, committed sexual connection namely by licking the genitalia of the complainant, a female child under 12 years.
   • (iii) On or between 22^nd June 2024 and 23^rd June 2024, had sexual connection namely by rubbing the vagina of the complainant, a female child under 12 years.
   • (iv) On or between 22^nd June 2024 and 23^rd June 2024, indecently assaulted the complainant, a female child under 12 years.
   • (v) On or between 22^nd June 2024 and 23^rd June 2024, attempted to sexually violate the female complainant.
2. In support of the charges, the prosecution called three (3) witnesses: Sergeant Leativalu Neemia the police officer who took photos of the alleged crime scene, the now 13 year old complainant and the mother of the complainant. In his defence, the 16 year old defendant waived his right to silence and gave sworn evidence. He also called as a witness his auntie (his father’s sister) TT.
3. Due to the young ages of the parties, their names and any details that may serve to identify them are permanently suppressed from publication. This case to be reported as Police v RM.

Prosecution evidence

4. At the time of the alleged offending, the complainant was 11 years 9 months (date of birth 06 September 2012) of age and attending Year 8 at a local school. The defendant is her older cousin as their fathers are brothers. These facts are not disputed by the defendant who at the time of the alleged offending was 15 years of age (date of birth 12 March 2009).
5. The complainant’s version is that late on the night of Saturday, 22 June 2024 while sleeping in her house together with her siblings under a large mosquito net, she was sexually assaulted by the defendant. She says she awoke to the defendant licking and using two fingers on her genitalia. She then realized she had no shorts on. He also licked her breasts and got on top of her and tried to kiss her. She pushed him away and tried to wake up her older brother who was also asleep in another part of the same mosquito net. This caused the defendant to leave her and move to the other side of the net pretending to be asleep. She was positive it was the defendant because of the moonlight shining through the curtains and because he warned her not to “pisa” (make any noise). She moved to where her older brother was but could not wake him and when she turned around, the defendant was gone.
6. The next day Sunday, in the absence of her mother who was visiting her own family at Aleisa (another village quite some distance away), she told an auntie about the incident. The complainants mother confirmed she was told about the matter on the Sunday and after questioning the complainant on the Monday, the complainant identified the defendant as the perpetrator because of his voice and the moonlight and also because he smelt of cigarettes (“magogi sikaleki”). Significantly the defendant in his evidence in cross examination said he had been expelled from Maluafou College in Apia because of his smoking.

Defence evidence

7. The defendants defence is essentially one of ‘alibi’. He says he was asleep in the house of his auntie TT next door to where the complainant was sleeping and that it was not him who did this to the complainant. He was shocked to be summoned and blamed as he had done nothing. There are no family or other differences between him and the complainant and he does not know why she is lying to the court.
8. The defence also called the defendants auntie TT. She is the sister of the defendant’s father and therefore is also the sister of the complainant’s father. She says she spent the night with the defendant and his brother in her house next door to where the complainant and her siblings were sleeping. Her account was that the defendant and his brother spent the entire night at the house and when she awoke around 4:00 am, they were still asleep. She left the house around 4:30 am and walked down to the main road to catch transportation to work.

Analysis

9. The issue of the below 12 years of age of the complainant can as indicated above be taken to be established beyond reasonable doubt. There is equally no doubt the defendant was at the relevant time under 16 years of age.
10. The dispute is as to whether on the evidence adduced, the prosecution have proven to the required standard that the defendant sexually assaulted and attempted to sexually violate the complainant. In this regard, the following is to be noted:
    • (a) The complainant was firm and unshaken in cross examination as to what allegedly happened. Her evidence was generally consistent and she testified in a clear and confident manner.
    • (b) Only on one aspect do I question the reliability of her evidence and that is identification of the defendant via the moonlight shining through the curtains of the house which she says are always put down when the family sleeps. While I take judicial notice of the fact that the moon was in its fullest phase in Samoa on 22 June 2024, it is clear from the scene photos as confirmed by the courts visit to the scene that the curtains in question are quite thick and that it is unlikely moonlight would penetrate through them. Perhaps only by way of any undrawn parts or through the sides of the curtains.
    • (c) However as a member of the family, she would know her cousins voice and as noted above, she also identified the defendant to her mother because the person smelt of cigarettes. The defendant did not deny that he was a smoker.
    • (d) The defendants demeanour on the witness stand left much to be desired. Acknowledging that court is a traumatic experience for any 16-year-old, this young man did not impress as truthful. Thus he was adamant that there was no full moon on the night in question although clearly there was. He also contradicted himself in cross examination a number of times, in particular when describing his aunties actions. Initially he said TT watched a movie with them on her mobile phone. But later stated that when he and his brother became tired, he woke the sleeping TT to return her phone. When the contradictions were put to him, he failed to offer an explanation or indeed provide any response: transcript bottom of page 41.
    • (e) TT’s own affidavit and oral testimony was that the defendant and his brother accompanied her to her house around 1am and she gave her phone to them to watch a movie. She then fell asleep and was awoken by the defendant returning her phone at 1:55am according to her affidavit and 1:30am according to her testimony. She Face-booked for a while and fell asleep at 2:30am after setting her alarm for 4:00am as she had to work the next day notwithstanding that it was a Sunday. She awoke at 4:00am and left the house at 4:30am. Everyone was still asleep.
    • (f) Meaning that according to her own evidence, she was asleep for at least two-and-a half hours that early morning and cannot therefore vouch for the defendant being asleep at her house at all material times. She acknowledged as much in her evidence at bottom of page 49 of the transcript:
    • “Fesili: A’o le taimi lea na e moe ai i le taimi muamua lea e le’i oo atu le telefoni ma le taimi lea na alu atu ai RM avatu le telefoni, e te le’o iloa po o le a le umi o le taimi na e moe ai a?
    • Tali: O lea lava
    • Fesili: So e te leiloa foi la le mea a RM na fai i lena taimi?
    • Tali: Ia, o lea lava.
    • Fesili: E te leiloa a la?
    • Tali: O lea lava.”
    • (g) She also could not provide a satisfactory explanation to the court why this evidence of ‘alibi’ was not made known to the Police or to the rest of the family when this matter surfaced and was investigated knowing full well that her nephew was being blamed for the incident by her niece.
    • (h) TT’s evidence was also unsatisfactory in other respects. Such as the change in the time that the defendant returned her phone from 1:55am in her affidavit to 1:30am in her evidence: see page 49 of the transcript. Also inconsistencies between her evidence and that of the defendant on who did what and when, which in this case is critical: again refer page 49 of the transcript.

Conclusions:

11. In assessing the evidence for the prosecution and the evidence adduced for the defence, I much prefer and accept the former. I accordingly find in relation to the charges as follows:
    • (i) The prosecution have proven beyond reasonable doubt charge (i) against the defendant.
    • (ii) Charge (ii) is a duplication, it is dismissed.
    • (iii) Charge (iii) proven beyond reasonable doubt.
    • (iv) Charge (iv) also proven beyond reasonable doubt.
    • (v) As the above charges refer to unlawful sexual connection, I assume this charge therefore refers to an attempt to rape the complainant contrary to section 49(1)(a) of the Crimes Act 2013. After considering the entirety of the evidence, the court is not satisfied beyond reasonable doubt that the prosecution have proven an intent on the part of the defendant to rape the complainant. This charge is dismissed.
12. Defendant is remanded to a date for sentence on the 3 charges proven, a Pre-Sentence Report from the Probation Office will be required, Defendant to see the Probation Office forthwith.

SENIOR JUSTICE NELSON