Sex charges dismissed against two sailors

The Supreme Court has dismissed sexual connection charges against two sailors from Savai’i after it was established that there was consent and both accused did try to verify the age of the complainant.

Defendants, Anzac Laupua, was charged with six counts of sexual connection while Nikolao Kalolo faced two counts of the same charges in connection with a girl who was 16 years old at the time of the offending.

The complainant, Tuamaia Kesio, who is now 19 years old and married with one child, gave evidence during the trial.  

Supreme Court Justice,  Tafaoimalo Tologata Tuala-Warren, said in her decision that in relation to the charges linked to the same complainant there was no doubt that sex did occur between the accused and the two complainants at different times at Salelologa wharf. 

“In mid-2016 she started a relationship with Anzac. By that time she says she no longer attended school. Their first sexual encounter was December 2016, and she says Anzac never asked her how old she was. According to her evidence, she and Anzac had sex four times,” stated Justice Tuala-Warren.

“When asked about the times and locations of the sexual encounters, her evidence was disjointed and contradictory. 

“She said she had sex twice and then said once in the room on the wharf. In cross examination she says she did not tell Anzac she was 19 years old, she told him she was in Year 11. She said they had sex six times.”

In relation to Nikolao, the complainant alleged that they had sex twice but was uncertain as to the year and times of those sexual encounters, continued Justice Tuala-Warren.

The complainant was not in a relationship with Nikolao but did tell him, in a response to a question from him about what she does, that she stays home to look after her mother. 

She agreed in cross examination that she had sex once with Nikolao during the day and once at night on the boats berthed at the wharf.

The complainant did say that she frequents the wharf to exercise, to play volleyball and to hang out and says that she has had relationships with other crewmen prior to the accused's appearing before court.  

Justice Tuala-Warren said: “I will discuss each accused separately after establishing some facts which are not in dispute. It is not in dispute that the complainant was a young person and both accused were under 21 years old at the material time. It is also not in dispute that both had sex with the complainant.” 

Justice Tuala Warren also found that the complainant had consented to each sexual encounter with both accused. 

“Both accused had sex with a young person. 

“As both were under the age of  21 years at the time of the commission of the acts, the defence under section 61 of the Crimes Act 2013 is available to them, provided they can prove on a balance of probabilities, that before the time of the act concerned, they had taken reasonable steps to find out whether the complainant was of or over the age of 16 years and at the time of the act concerned, they believed on reasonable grounds that the complainant was of or over the age of 16 years. 

“I must also make findings of facts on the actual steps taken by each accused before I can then assess those steps against the defence.” 

Justice Tuala Warren then ruled that both Anzac and Nikolao have proved on a balance of probabilities that they were both under 21 years when they had sex with the complainant. 

“And before they had sex, both had taken reasonable steps to find out the age of the complainant, both believed on reasonable grounds that the complainant was over 16 when they had sex with her, and the complainant consented to having sex with both of them.

“Therefore the section 61 defence is proven on behalf of both accused, and the six charges of sexual connection with a young person against Anzac Laupua are dismissed. The two charges of sexual connection with a young person against Nikolao Kalolo are also dismissed.”

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