DISTRICT COURT OF SAMOA
Police v Sa [2016] WSDC 26

Case name: 	Police v Sa	
		
Citation: 	[2016] WSDC 26	
		
Decision: 	4 July 2016	
		
Parties: 	POLICE v SAMUELU SA, male of Vaimea, Saipipi Savaii and Tafaigata Prison.	
		
Hearing date(s): 	28 April 2016	
		
File number(s): 	D334/16.	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	DISTRICT COURT JUDGE CLARKE	
		
On appeal from:		
		
Order:	On the evidence and for the foregoing reasons, I am satisfied beyond a reasonable doubt that the Prosecution has proven the charge beyond a reasonable doubt and the defendant is guilty as charged.

	Mr O Tagaloa for National Prosecutions Office 	
Representation: 	Defendant in person	
		
Catchwords: 	Indecent Act	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.77 	
		
Cases cited:	R v Nazif [1987] 2 NZLR 122, 127 – 
Police v Burley [2014] DCR 314, - 
R v Annas [2008] NZCA 534 	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

SAMUELU SA, male of Vaimea, Saipipi Savaii and Tafaigata Prison.
Defendant

Counsel:	
O Tagaloa for National Prosecutions Office 	
Defendant in person

Hearing28 April 2016	
	
Decision:	4 July 2016

RESERVED DECISION OF JUDGE CLARKE
The Charge.
1	The defendant was charged with having committed an indecent act in a public place, namely by showing his penis to Fetoai Faapaia, Kiki Ropati Sio and Sale Toloa at Faleula Uta on the 17th January 2016 in breach of section 76 of the Crimes Act 2013. 
2	The defendant pleaded not guilty to the charge on 23 February 2016 and the matter proceeded to a hearing on 28 April 2016.  Following the hearing and on hearing from counsel following a request from the Court to the prosecution for submissions to address the definition of a ‘public place’, leave was granted to amend the charge on 17 June 2016 to that of breaching section 77 of the Crimes Act 2013, relevantly, that:
•	“…on the 17th day of January 2016, the above-named defendant of Vaimea, Falelauniu, Saipipi Savaii and Tafaigata Prison  does an indecent act by rubbing and showing his penis with intent to insult or offend Sale Toloa, Fetoai Faapaia and Kiki Ropati Sio.”
3	The amendment was granted as it does not cause any prejudice to the defendant nor would it give rise to an injustice as the defendant disputed the allegations on the basis that the act committed by him was one of urinating and not of masturbating.
The Law:
4	Section 77 of the Crimes Act 2013 provides:
•	“77. Indecent act with intent to insult or offend – A person is liable to imprisonment for a term not exceeding 2 years who, with intent to insult or offend any person, does any indecent act in any place.”
5	What is indecent was referred to in the Court of Appeal’s judgment R v Nazif [1987] 2 NZLR 122, 127 as follows:
•	“The word ‘indecent’ is an ordinary word in the English language and it is for the jury to find the facts and decide whether that which they have found amounts to indecency: Cf Cozens v Brutus [1973] AC 584 ‘(insulting ... behaviour)’. That in our experience is the way in which juries have been directed for many years now. It results in juries applying current standards of what is indecent, and thereby reflecting the attitude of the community. This we think is a proper function of the jury and one that it is right that they undertake.”
6	In Police v Burley [2014] DCR 314, Judge O’Driscoll of the New Zealand District Court dealt with the identical New Zealand provision to section 77, which judgment was appealed to the High Court and upheld. Section 126 of the Crimes Act 1961 (New Zealand) provides:
•	“126. Everyone is liable to imprisonment for a term not exceeding 2 years who with intent to insult or offend any person does any indecent act in any place”.
7	Judge O’Driscoll in Burley stated that there are two elements to the offence:
•	“[8] ..The first is the performance of an indecent act. The second is that the act was performed with intent to insult or offend. These elements were accepted by the [New Zealand] Court of Appeal in R v Annas [2008] NZCA 534 at [55].”
8	His Honour Judge O’Driscoll went on to say that:
•	“[t]he distinction between the two elements of the charge is reiterated in Adams on Criminal Law where it is stated at para 1.26.01:
•	‘The offence consists of two distinct elements. “Whether what was performed is an indecent act is an objective question to be answered by what the jury assesses to be the standards of right-thinking members of the community … whether the defendant intended to insult or offend is a distinct subjective question”: R v Annas [2008] NZCA 534, at [56]. Hence, while a defendant’s belief that his or her actions are not indecent will be irrelevant on the first limb, it may well be relevant to the second as tending to show a belief that the actions would not have the potential to insult or cause offence.’
9	The approach in Burley following R v Annas (op. cit) is consistent with the Samoan Supreme Court decision in Police v Siafausa [2012] WSSC 112 (19 July 2012) per Slicer J, also determined in accordance with the identical provision under section 45 of the Crimes Ordinance 1961 (repealed).  In Burley, the defendant did not contest that what he did was an indecent act. What he did contest was that he had no intent to insult or cause offence.  The defendant in his explanation as summarised by the Court was “that the possibility of getting caught excited him and helped him to get off, and he thought that if they did see him they might like it, and that he regretted that his behaviour offended the victim.” (para. 6.) In essence, his case was that he had no intention to offend or insult but that he thought the victims might like it.
10	In dealing with the question of intention, Judge O’Driscoll agreed that intention is a subjective assessment and no element of reasonableness is entitled to be imported into the element.  He further stated that two aspects are to be considered on the question of intent, namely:
•	“[13] First, the defendant’s intention needs to be ascertained at the time he did or performed certain acts. Defendants do not generally go around performing acts and calling out aloud that they are doing something because they are intending to do exactly that. A person’s intention needs to be ascertained by a number of factors….
•	[15] Second, in ascertaining the defendant’s intention when he carried out and performed the acts, these require to be ascertained by the trier of fact drawing inferences from the evidence placed before the Court.”
11	The approach laid down in Police v Siafausa [2012] WSSC 112 (19 July 2012) per Slicer J under the former section 45 of the Crimes Ordinance 1960 and by O’Driscoll J correctly sets out the approach in my view to be adopted in relation to section 77 of the Crimes Act 2013.
The Evidence:
12	The Prosecution called 2 witnesses, Sale Toloa and Kiki Ropati.  Sale is an 11 year old boy currently in year 5 at school.  He lives at Faleula.  He told the Court that at approximately 5.00pm on the 17th January 2016, he was playing tuli or chasing in front of his aunty’s home with other children.  He heard someone calling to get their attention and looked over and saw the defendant.  Sale had a clear unobstructed view.  The defendant had been cutting grass and had a sapelu.  He described the defendant as having pulled his pants down and ‘did bad things with his hands’ touching his penis’.  He described the defendant as some distance away, in his estimate, from the witness box to the exterior balustrade outside the court room and that he saw the defendant’s penis.  The defendant was on the adjacent neighbouring property.  The defendant in cross-examination put it to Sale that in fact he was wearing an ie that day, which the Sale disputed and said that he was wearing black shorts.

13	Kiki Ropati is a 9 year old girl in year 5 at school.  She is also from Faleula. She said that on the evening of the 17th January 2016 at about 4.00pm, she was playing hide and seek with her cousins.  As they were playing, she saw the defendant pull his pants and he showed his penis to her and her cousins including Sale.  She said he was rubbing his penis.  In her evidence, she was very close to the defendant and said the distance was from the witness box to the Registrar’s desk.  In cross-examination, the defendant again put it to Kiki that he was wearing an ie and not pants, which she disputed.  She described the defendant’s pants as black.
14	The defendant elected to give evidence.  He told the Court that he was out from Prison on ‘Sunday leave”.  He had been released from Prison on Saturday, went home to Tapatapao and he had a drinking session that started from about 6.00pm to 7.00pm that Saturday night until the next morning.  He didn’t sleep and the next morning, he went to his friend Ropati’s home at Faleula and took with him a bottle of vodka and drank there.  This house neighbours the children’s house.  He said he was very drunk.  He went to urinate. He had difficulty unzipping his pants.  As he was urinating, he saw the children looking at him so he then put his penis back into his pants. The children were a long distance from him.  He denied the incident as alleged by the prosecution witnesses.
Discussion:
15	There is no dispute by the defendant that he was at Faleula as alleged and that he was seen by the two witnesses. There is also no dispute at the end of all the evidence that the defendant pulled his penis from his pants.  The dispute is that the defendant says that what he did was urinate.  The Prosecution case is that his actions were indecent acts and that he had the intent to offend or insult the victims, in essence, by masturbating before the children.
16	In cross-examination of both Sale and Kiki, the defendant had put to both that their evidence was wrong because he wasn’t wearing pants but an ie. Both witnesses steadfastly maintained their evidence and said that the defendant was wearing black shorts.  When the defendant later elected to give evidence, he then testified that he was wearing pants and referred to having difficulty with the pants zip when he went to urinate.  This was quite different to what he had put in earlier cross-examination that he was wearing an ie, now adding a zip to his pants. 
17	The defendant materially changed his evidence from what he had put to the Prosecution witnesses in cross-examination.  He also never put to the Prosecution witnesses that he had been urinating or that he had difficulty with his zip to explain what they saw as opposed to any act of indecency.  I did not find the defendant’s evidence and explanation credible and I am satisfied that it was a fabricated response to explain away what Sale and Kiki said they saw.  I prefer the evidence of Sale and Kiki and I find that the actions they recounted are objectively and obviously an indecent act of masturbation according to the standards of right-thinking members of our community.  The first element of the offence has therefore been proven beyond a reasonable doubt. 
18	The second element to satisfy is whether the defendant performed the indecent act with intent to insult or offend Sale Toloa, Fetoai Fa’apaia and Kiki Ropati Sio.  This is to be determined by what the defendant actually did as well as from drawing inferences from the evidence before the Court.  I am not satisfied that Fetoai Fa’apaia was present or saw the act of indecency.  I however accept the evidence by Sale that the defendant had called out to them, he then pulled his pants down and ‘did bad things with his hands’ touching his penis’ according to Sale and was ‘rubbing his penis’ according to Kiki Ropati. 

19	As Judge O’Driscoll said, Defendants do not generally go around performing acts and calling out aloud that they are, in a case such as this, intending to offend or insult people.  I find however that the Defendant did intend to offend and insult Sale and Kiki.  He called to them as attested to by Fetolai no doubt to draw their attention to him; he then pulled his pants down and the “‘did bad things with his hands’ touching his penis” according to Fetolai; and was “rubbing his penis” according to Kiki.  The indecent acts were targeted at young children at play by a drunken male. In my view based on the evidence and specifically targeting young children aged 11 and 9, he had the intent to offend or insult them by his actions. The second element is satisfied beyond a reasonable doubt.
Result:
20	On the evidence and for the foregoing reasons, I am satisfied beyond a reasonable doubt that the Prosecution has proven the charge beyond a reasonable doubt and the defendant is guilty as charged.

JUDGE LEIATAUALESA D. M. CLARKE