IN THE DISTRICT COURT OF SAMOA
Police v Harris [2018] WSDC 2

Case name: 	Police v Harris	
		
Citation: 	[2018] WSDC 2	
		
Decision date: 	26 February 2018	
		
Parties: 	POLICE (Informant) and MARK HARRIS, male of Ngaruawahia, New Zealand (Defendant)	
		
Hearing date(s): 	24 January 2018	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Alalatoa Rosella Viane Papalii	
		
On appeal from:		
		
Order:	I find the prosecution has proven all elements of the offence of committing an indecent act beyond a reasonable doubt. Mr Harris is therefore guilty of the offence as charged.	
		
Representation: 	Ms S R Titi for Informant  
T L H Schuster for Defendant	
		
Catchwords: 	Indecent Act  – exposure of private parts in a van carrying  young children  – and done in public place.  	
		
Words and phrases:		
		
Legislation cited:	Act Interpretations Act ss.2; 7;
Crimes Act 2013 ss. 76; 76(2); 
Criminal Procedure Act 2016 s.55;
NZ Crimes Act 1961 s. 125;
Police Offences Ordinance 1961 s.2.	
		
Cases cited:	Adams on Criminal Law Vol 1 (Thomsen Rheuters);
Andrews v Police[1988] 3 CRNZ 692
Higgon v O’dea [1962] WAR 140 
Jones v Police  CA 332/97 dated 22 October 1997
P v Apisala [2015] WSDC 1
P v Eteuati [2005] WSSC 10 
P v Fepuleai [2008] WSSC 110
P v K [2017] WSSC 73 
P v Sa [2016] WSDC 26;
P v Siafausa [2012] WSSC 112;
P v Talataina ( Unreported decision of Justice Calrke delivered on 24/03/17
P O Skilled Migrant [2013] NZIPT 200961
R v Dunn [1973] 2 NZLR 482 (CA
R v Nazif [1987] 122 	
	Walker v Crawshaw [1924] NZLR at 129
	
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

MARK HARRIS male of Ngaruawahia, New Zealand
Defendant

Counsel:
Ms S R Titi for Informant  
T L H Schuster for Defendant

Hearing: 	24 January 2018

Submissions:	29 January 2018 & 02 February 2018

Decision:	26 February 2018 

DECISION 
INTRODUCTION
1. 	On 10/10/17 at about 9am, a van carrying 10 passengers was traveling on the main road from Lalomalava to Salelologa. A young girl of 7 years old was one of the passengers and she witnessed the accused Mark Harris (“Mr Harris”) unzip his pants thereby exposing his private parts. 
2. 	At the conclusion of the evidence, it became apparent that the primary issue for consideration is whether the act complained of is indecent and if it was done in a public place. 
CHARGE 
3. 	As a result of this incident, Mr Harris of Ngaruawahia, New Zealand was charged with one count namely that between Lalomalava and Salelologa on 10/10/17, he wilfully committed an indecent act of showing his private part in a public place namely a van registered number 9778 (“The van”) a licensed public vehicle plying for hire within the view of the public. The charge is brought pursuant to s76 Crimes Act 2013 (“CA”).
4. 	Mr Harris entered a not guilty plea on 17/10/17 and the matter was adjourned for hearing to 24/01/18. At the conclusion of the evidence, time was allowed for counsel to file submissions and supplementary ones (if any). 
5. 	This is my reserved decision. 
LAW
6. 	Section 76 CA provides:
“76. Indecent act in a public place – (1) a person is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any public place or within view of any such place.
(2) It is  a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed”  	
7. 	This provision is similar to the corresponding section 125 of the NZ Crimes Act 1961. The only difference being that the NZ provision at subsection 3 defines “public place” which is missing in our provision. 
8. 	Pursuant to section 76 CA, the elements of the offence Prosecution must prove beyond a reasonable doubt are twofold. Firstly, the actus reus of doing an indecent act in a public place or in view of such a place and secondly, the mens rea element that such act was done wilfully. 
EVIDENCE 
Undisputed facts
9. 	I accept the following facts are undisputed: 
(i)	On the day of the incident, 10/10/17, Mr Harris, his wife and two sons were guests at one of the Hotels in Savaii (“the Hotel’). 
(ii)	The proprietors of the Hotel home school their two daughters. They are taught by their tutor (“the Tutor”) who also home school her two young children. 
(iii)	On the morning of the day in question which is a Tuesday at about after 9am, the van registered number 9778 left the Hotel with the four children for the library at Salelologa. The driver of the van was the husband of the tutor. Sitting at the passenger seat next to him was the Tutor. 
(iv)	At the main road where the signage of the Hotel is stationed, the van stopped to pick up Mr Harris, his wife and two sons. They needed a ride to pick up their rental vehicle from Salelologa. 
(v)	The children sat at the back. The complainant and another child (girl) sat next to the left of the seat Mr Harris occupied in the same row. 
(vi)	It was during this trip, that Mr Harris unzipped his pants exposing his private parts. 
(vii)	At all material times, the van was traveling on a public road from Lalomalava to Salelologa. 
Prosecution Evidence. 
10. 	Prosecution called three witnesses. 
11. 	Constable Telima Tapua’i is employed in the forensics division of the Ministry of Police and he took photographs of the van. This was produced as exhibit P1. 
12. 	Next is the mother of the complainant, a doctor by profession. She confirmed that Mr Harris and his family had a reservation with the Hotel for 5 nights checking in on 9/10/17. She testified that she was troubled and concerned when she learnt about what happened in the van during the trip to the library. She and her husband met with their daughter, the complainant to clarify what occurred and they decided to report it to Police. Mr Harris was arrested the same night of 10/10/17. She confirmed that the van is owned by the Hotel and operated as a transfer to transport hotel guests, also for tours and hirage; the guests pay for these services.  
13. 	The complainant was the last witness for Prosecution. For her protection given her age, I have anonymised in this judgment details of her identity including the Hotel, as well as her mother’s and other children referred to in her evidence. 
14. 	According to the complainant, on Tuesday, she remembered it well as it was a library day. She was in her classroom waiting with her sister and friends for the van to pick them up to go to the library. When it arrived they grabbed their books and hopped in the van.
15. 	She was shown exhibit P1 and confirmed it was the same van they travelled in. In the van, she and her girlfriend (the Tutor’s daughter) whom I will refer to her as A, sat together in the two seater. Her friend sat by the window and she got the aisle seat. She marked where she sat in exhibit P1 photos 3 and 4 as “M” and “A” for her friend. To her right in the same row separated by the aisle is a window single seat where the man she identified as Mr Harris sat. She marked this on photo 4 as “H”.   
16. 	In the two seater in front of her she marked the window seat as “I” as where her other friend sat (boy). Next to him in the one seater on the same row and in front of Mr Harris, she marked as “S1” the seat where one of Mr Harris’ son sat. The three seater in front of her friend “I” she marked on photo 4 as AD the window seat where her sister sat. Next to her in the middle was Mr Harris’ second son which she marked as “S2” and at the isle side, Mr Harris’ wife which she marked as “W”.
17. 	According to the complainant, during the drive to Salelologa, she looked at the man to see what he was doing and saw him unzipped his pants and pulled out his “pi”. In her words, she saw the man “fiddle with his pi” and she demonstrated this to the Court as either rubbing or massaging. She described the man’s pi as being the same colour as his skin and looked like half a sausage. She observed he was wearing dark sunglasses and was looking straight ahead as he was “fiddling with his pi”. She was nervous when she witnessed this as she has never seen anyone done this before. 
Defence evidence
18. 	Mr Harris elected to give evidence and he also called Doctor Isaia Taualapini According to Mr Harris, he and his family had booked for a 10 days stay in Samoa from 4 to 14/10/17. They planned to stay at a Hotel in Apia for 5 days and the remaining 5 in Savaii. His family was excited about this trip and for him it was an opportunity to do some kite surfing. 
19. 	On the second day of their stay in Apia, he did just that. He did not have his proper wet suit so the harness was tied around his hip resulting in an abrasion on his left hip/waist. He decided not to kite surf again during the remainder of their stay in Apia. 
20. 	As planned, they caught the ferry to Savaii on 9/10/17. It was around this time he felt the pain around his groin area especially when he carried his heavy luggage from the ferry to the taxi when they landed at Salelologa. They checked in to the Hotel.
21. 	The next day he still felt the pain which he described as a growing sensation. They had breakfast then spoke to the manager about hiring a taxi. They were referred to a car rental place at Salelologa. Not long after this exchange, they went to the main road to catch the bus to town. But the van pulled up and the driver offered them a ride instead.  
22. 	According to Mr Harris, by the time he got in the van, the pain in his groin area had worsened. He sat down for a moment to let it pass. He saw a seat behind him and decided to move there to examine himself in private. He unzipped his pants halfway and had a quick look but he could not see anything. So he kept pushing on his groin for about 30 seconds but it still felt like the painful sensation he felt “was moving”. So he put his hand in his under pants and pushed his private part to one side but he could still feel the “leaking sensation” like it was going to bleed. When he pushed on it the pain eased. Then he zipped up his pants and waited for the van to arrive at their destination. 
23. 	After they picked up their rental vehicle they went around sightseeing. The pain by then had subsided as he had taken painkillers (neurofen). They returned to the Hotel in the evening and after dinner, his family rested in the room. But at about 9pm Police turned up to arrest him. In the meantime his family checked out and spent the night at another Hotel. The next day they returned to Upolu where he met with Mr Schuster and went to see Dr Taualapini. His prognosis was he had lymph nodes which were linked to the abrasion on his hip. He got antibiotics for this. 
24. 	Dr Taualapini submitted his medical report (D1) stating that Mr Harris had swelling of a lymph node (what we call in Samoan puga”) which he described as a gland that collects infection around the groin area; pain,  swelling and discomfort is usually associated with it. He suspected there was a sore or infection which upon further examination, he found on Mr Harris’ left hip and depicted in the photos produced as D2.  
DISCUSSION
Issue
25. 	As I said above, the issue I must decide here is whether the act performed was indecent and done in a public place. 
Prosecution’s Case
26. 	The essence of the Prosecution case is that the act Mr Harris performed of exposing himself and fiddling with his private part was deliberate and therefore wilful. It was done in the van which is used by the Hotel for tours, hirage and as a transfer to transport guests to and from the wharf. At the time of the offence the vehicle was travelling on a public road. They argue all elements of the offence have been met. 
Defence Case
27. 	The Defence do not contest that Mr Harris did unzip his pants but say the intention was not for sexual gratification but to examine his groin area which was in pain. In that sense there was no criminal intent. It is further raised as a defence that Mr Harris had done his best to inspect his groin area in private in the van so others could not see him.
28. 	Mr Schuster also argued that the van was not a public place as there is no evidence supporting it was a licensed vehicle plied for hire as alleged in the information. As such the charge should be dismissed. 
Analysis
Was the act indecent? 
29. 	Our CA does not define indecent. But the law on what may be deemed as indecent is well established in our jurisdiction and abroad.In R v Dunn the NZ Court of Appeal there held that indecent should be given its ordinary and popular meaning. The main question to ask is:
“…whether the conduct offended against a reasonable and recognized standard of decency which in the opinion of the Court ordinary and reasonable members of the community ought to impose and observe in this day and age on entertainment of this sort of public nature”.
30. 	The Authors of Adams on Criminal Law observed that:
“…The question of indecency must be considered by reference to the time place and circumstances of the conduct and although indecent may describe  something which is not so offensive as would warrant it being called “obscene” the impropriety must be more than trifling and be sufficient to warrant the sanction of the law: R v Dunn (above) at pp482 – 485….
…The offence does not require intention to cause offence, but the Defendant’s purpose and nature of the performance and audience may be relevant to the question of indecency: Philpot v Police 13/7/933; Heron J HC Christchurch…
In Canada the legality of indecent exhibitions or activities is now governed by a test based solely on the question of whether the activity in question threatens, harm or a significant risk of harm incompatible with the proper functioning of society: R v Labaye [2005] 3 SCR 728…” 
31. 	Applying the above including its circumstances, place and time, the charge would be established if the court is satisfied that what Mr Harris was doing was something the public would generally regard as being indecent. I find that by which ever standards or test applied, whether it be R v Dunn or the Canadian approach, Mr Harris did perform an indecent act. I explain this below. 
32. 	Mr Harris does not contest he unzipped his pants half way to inspect his groin area. But he says he was justified in doing so because he was uncomfortable due to the lump on his left groin (described by Dr Taualapini as lymph nodes) causing a throbbing pain which he described in various superlatives as:
“…excruciating pain…like stabbing pain...a slight growing sensation…it felt like it was expanding, getting bigger …a moving sensation and it still felt like it was moving…like a leaking sensation… ”.
33. 	Whatever the excuse, the fact of the matter is, Mr Harris did expose his private part in the van in the course of examining his groin area. The complainant saw this. Whilst I accept Mr Harris’ explanation for his actions, such exposure whatever the intention is indecent. 
34. 	For Samoa, our ingrained Christian values including morality coupled with our cultural values, norms and behavior implicit in our faasamoa and expected of each individual and collectively, means a certain standard of decency is expected. Acts of the nature displayed here goes to the core of those values and attracts sanctioning by the village council and the law as seen here.  
35. 	Ordinary and reasonable members of Samoan society do not condone what happened here and I am sure it is the same for NZ, Mr Harris’ country of origin. Our daughters/sisters are viewed in the faasamoa as the sacred bond. So it is certainly not culturally appropriate for Mr Harris or anyone to perform such an act in the presence of children traveling in a van especially given 6 of the passengers were strangers to him and 3 were young girls. This is not a private outing for Mr Harris’ family only in their own vehicle where Mr Harris can freely do as he wishes so long as it is not within view of the public. There were other audience in the van. They caught a ride. It is someone else’s property. Some sense of responsibility and respect for those Mr Harris caught a ride with is expected. 
36. 	Mr Harris’ inappropriate choice of time and place to check his groin area thereby exposing his private part whilst there were children and others in the van who were highly likely to see what he was doing, aggravates the indecency. 
37. 	The impropriety of the act in my opinion is not trifling. It offended against the reasonable standard of decency in Samoan society. The Complainant testified she felt nervous when she witnessed what Mr Harris was doing as she had never seen this before. The mother of the complainant was understandably  troubled and distraught for her child that she pressed charges.  If any evidence goes to show the indecency of the act, it is this reaction by the Complainant and her mum. 
38. 	Quite plainly then, what Mr Harris was doing seeking relief of whatever form in the manner he did thereby exposing his private part, was indecent. I find this element proven to the required standard. 
Was the indecent act willfully done? 
39. 	In terms of whether the indecent act was done wilfully, I find that it was. 
40. 	Mr Schuster had argued extensively that when Mr Harris examined his groin area it was due mainly to the pain but not because he was a “paedophilic sexual predator who preys on children or gets sexual arousal and/or gratification from exposing himself to children or in public.” In that sense he submits there was no criminal intent.
41. 	With all due respect to Mr Schuster, I cannot accept this argument.  The act complained of in the charge is Mr Harris showing his private part. It is that act from which the mens rea flows. The word used in s76 CA to indicate the mental element is “wilfull”. The requirement that the act be done wilfully in the context of s76 CA and charge simply means it must be done “deliberately and intentionally.” 
42. 	Mr Harris’ actions were not accidental. He knew exactly what he wanted to do as soon as he hopped in the van which was to examine his groin area. He unzipped halfway and pulled his pants forward to do that. He used his hand to push his private parts to the side and he also pushed on it to ease the pain. His private part was exposed in the course of all these movements. This explained what the complainant saw in a fleeting glance which she described as Mr Haris fiddling with his pi. Mr Harris carried out the act complained of without due regard to those around him. As I said, his actions were deliberate and intentional. 
43. 	Whilst I accept that there was no sexual gratification intent given his evidence and that of the Doctor regarding the lymph nodes, I remind myself that indecency does not have to be sexual in nature. The test is as set out above. The act in question must be one that given the time, place and circumstances, would be considered indecent by right thinking members of a community. In other words the indecency needs to reflect contemporary standards of society.  
44. 	I also note that section 76 CA falls under the category of offences in Part 8 (ss69 to 82) which deals with ‘Crimes Against Public Welfare.’ Whereas those that fall under the ‘Sexual Crimes’ category are set out under Part 7 including those under ss 48 to 68. 
45. 	I find this element is proven beyond reasonable doubt.
Defence under ss(2) – Whether Mr Harris had a reasonable belief he would not be observed
46. 	Mr Harris relies in the alternative on the defence in ss (2) that he had a reasonable ground to believe he would not be observed. He argued that he did his best to block his actions from being seen. The test where this is raised is whether there was a reasonable probability of the act being seen? The onus is on Mr Harris to prove this on the balance of probabilities. On the evidence before me, I find that such a belief by Mr Harris cannot be sustained. In fact I have difficulty believing him in that respect.
47. 	Mr Harris under cross examination said that he was not sure if he saw the two girls seated next to him as he was more engrossed with the pain to his groin area. I do not find this credible given the girls were seated right next to Mr Harris and it would be hard to miss them. He said he checked if anyone was looking but saw they were minding their own business and looking out the window. I do not buy this. It does not carry any weight. The fact the Complainant saw what he was doing rebuts this.  
48. 	Mr Harris’ evidence is he was wearing jeans with a buckle. He unzipped it and pulled it forward so he could examine himself better. All these movements would have attracted attention.   The Complainant being a child was naturally curious. She told the Court that she looked over to see what ‘the man” was doing and observed what she described in her evidence. According to the complainant when she looked at Mr Harris he was sitting straight and looking straight ahead with his dark sunglasses on whilst performing the act she described. . 
49. 	I was struck by the complainant’s sincerity and honesty. I have no reason to doubt her evidence of what she saw which she described quite vividly.  Her evidence was in my view highly credible.
50. 	Here Mr Harris was well aware that there were children in the van apart from his own. The possibility of being observed was not minimal it was very real and significant. Mr Harris was seated next to the complainant and her friend. The two seats are separated by the aisle, a space of about 600mm or 2 feet judging by photo 4 of exhibit P1. So it is very close.
51. 	Mr Harris testified he wanted to examine himself in private. But there was nothing private about what he did especially given the setup of the van and seating arrangement. Being 41 years old and a parent he should have known better. The van carried 4 children apart from his own. There were in total 10 passengers including him and his family.
52. 	When asked if he turned to his right side to avoid being seen he said he could not do that because in his words, “No. The way I was sitting it was the best way without feeling the pain.” This tells me Mr Harris was not at all concerned about his surrounding or keeping others from observing him. His focus was on suppressing the pain he claims was absorbing him. 
53. 	This view is further supported by the fact that Mr Harris had told the Court he used his left hand as a barricade. But under cross examination he also said that he used the same hand to push his groin to the side so he could inspect what was down there. How can he use his left hand as a barricade and use the same hand to push his groin aside? As I said above, the risk of being seen was high especially since the seats do not have arms which could have added more blockage. 
54. 	Compare this to the case of the appellant in the Immigration case of P O (Skilled Migrant) held before the NZ Immigration and Protection Tribunal where it summarized the case of the appellant who was on 3/06/2011 convicted in the District Court on an indecent act in a public place under s 125(1) NZ Crimes Act 1961. 
55. 	According to the summary, the Appellant had been sitting in his car in a supermarket car park as he was suffering from itchy fungus adjacent to his genitals and was applying cream for his condition. He had locked the car and made sure he was hidden from the public eye whilst applying his treatment. He had not thought he was visible to other passersby. He had no intention of hurting anyone. But a passerby observed him in the car park and thought he was masturbating. The Court there accepted the Appellant’s explanation that he was not masturbating but applying cream. But he was convicted of the offence as he had exposed himself and applied the cream in such a way and in a place that made it indecent. 
56. 	Obviously, that case is distinguished if one considers the measures the accused there took so as not to be seen. But despite his efforts, he was seen. Here, it is impossible for Mr Harris to expose his private parts and not be seen. 
57. 	I find that Mr Harris did not do enough to ensure he would not be observed. Had he turned his mind to this possibility, he might have been able to neutralize the effect of his actions. But he did not. If his groin area was in pain as he claims, then he should have gone to the back seats where the possibility of being seen was less likely. He could have just rubbed his groin discreetly from the outside of his jeans without having had to unzip his pants exposing his private part which the complainant did see. He could have remained at the Hotel and rest. He did not do any of those things. Clearly, the defence cannot be sustained.    
Was the act done in a public place or in view of such?  
58. 	For public place, a general definition is provided in s2 Act Interpretations Act 2015 as including “any road, highway, market place, square, street bridge or other way used by the public whether by lawful right or by usage. This is not an exhaustive list given the use of the word ‘include’. 
59. 	The Police Offences Ordinance 1961 then exhaustively defines public place as follows:
“Public place means:
Any road; or 
… or
… or 
… or
Or any licensed public vehicle plying for hire; or
… or
….
60. 	Subsection (a) and (e) are at the heart of the charge here. 
61. 	Much has been said by both counsel about this issue. For the defence, it is vigorously argued that the van is not a public place as defined under s2 Police Offences Ordinance 1961. Mr Schuster went through some lengths to provide a literal of the words licensed public vehicle plying for hire within the view of the public. He argues that for such a vehicle to be a public place in line with the definition, the operable word is it must be a licensed public vehicle in accordance with the law. It is the licensing or registration of a vehicle as a public service vehicle that makes it such. But in his view, there is no evidence to support this and this he argues is fatal.  
62. 	The argument reflects a literal interpretation and is at most technical and restricts the definition of public place to those particulars in the information. But with respect to Mr Schuster and his industrious submission on this issue, I disagree. There was in fact evidence led from the mother of the complainant that the vehicle is used by the Hotel to transfer guests, for hotel tours and also for hirage. It infers that these are not free services but for monetary reward. The van is a 12 seater judging from the photos in P1. So it is more a minibus. Its purpose is to generate income from guests staying at the Hotel including hirage.        
63. 	I intend to adopt a liberal and purposive approach here. It is important to give effect to the ordinary and natural meaning of the words used by Parliament. It is my opinion that Mr Schuster’s interpretation above would have had some merit if for example the offence took place in a stationery van parked somewhere and not travelling on the road.  The issue in that scenario would be to determine solely the usage of the vehicle and if it is a public place.  
64. 	Here, the evidence clearly shows the van was not stationery or parked somewhere within view of others. The van was at all material times travelling with passengers on the main road from Lalomalava to Salelologa. This main road is a public place by statutory definition. The indecent exposure in the van by Mr Harris which is in a public place namely the main road from Lalomalava to Salelologa is  done in a public place. .    
65. 	This case is synonymous to the NZ High Court matter of Andrews v Police. There the appellant (Defendant) was driving a railway truck along the state highway. He stopped and offered a ride to a female hitchhiker. During the journey, the Appellant on the pretext that he was having problems with his new undies unzipped his pants and produced an erect penis which he invited the complainant to fondle.  The issue there was whether the interior of the truck which could not be seen by others was a public place. The Court there held that that the interior of a vehicle traveling on a Highway which is a public place is in a public place.   
66. 	Prosecution has proposed that the Court uses the power under s55 Criminal Procedure Act 2016 to amend the charge to bring it in conformity with the evidence adduced during trial.  I called an in chambers meeting with Counsel in 22/02/18 to discuss this further whereby Mr Schuster conveyed his client’s objection to an amendment as it would be prejudicial given Prosecution did not make the application at the close of their submission and the Court is reserving its decision. It was further argued that Prosecution should not be given another opportunity to perfect the charge. I now turn to consider this. 
67. 	Section 55 CPA where relevant here provides as follows: 
“55. Amendment of charges – (1) Subject to subsections (2) to (5), if the defendant appears to answer a charge, the Court may amend the charges in any way at any time during the trial .
(2) At the trial of any person, a Judge may amend the charges pursuant to subsection (1) in a manner that brings the charge into conformity with the evidence offered by the informant or prosecutor.
(3) Amendment under subsection (1) may allow the charges to be amended by:
(a) amending any particulars; or
(b) removing or adding or substituting charges; or
(c) adding or removing the name of any defendant.
…
68. 	The law is settled on when an amendment may be made to a criminal charge as discussed in a number of Supreme Court cases. So I do not wish to traverse to it in full suffice to say that whether an amendment is allowed, will usually involve striking a balance between the interests of the Prosecution and the policy of the section on the one hand, and what, if any prejudice there may be to the defendant on the other. 
69. 	In Police v K Justice Nelson referred to the NZ Court of Appeal decision of Jones v Police where it said that in terms of prejudice, it is a balancing exercise between society’s interest in holding offenders accountable for their actions and the prejudice a late amendment may entail. As the learned Judge observed further, “to this extent the previous authorities on prejudice continue to apply.”
70. 	Section 55(2) (a) applies here and allows this Court to amend any particulars of the charge at any time during the trial to bring it in conformity with the evidence offered by the Prosecution. As to the meaning of the word “any time during the trial” it has been held to include after the trial has closed and “the court reserved its decision as the trial lasts until the Court’s decision is given.” As was said in Jones v Police “…whatever way one looks at the issue, we are satisfied that the hearing does not irretrievably end at the moment the Judge reserves decision.”
71. 	In regards to Mr Schuster’s submission with respect, it has the tendency to suggest that if there is no evidence then despite the van being on the road which is a public place by statutory definition, then it deadlock and cannot be remedied. To dismiss a charge on that basis is in my view an injustice.
72. 	I have considered this carefully and decide there is no prejudice to the Mr Harris if the charge is amended to add the words “or a road from Lalomalava to Salelologa” after the word hirage. The evidence that the van was travelling on a public road is undisputed.  
73. 	 I am satisfied that the indecent act was done in a public place. This element is therefore proven beyond a reasonable doubt. 
CONLCUSION
74. 	I find the prosecution has proven all elements of the offence beyond a reasonable doubt. Mr Harris is therefore guilty of the offence as charged.
75. 	 This matter is adjourned for sentencing to this Wednesday 28/02/18 at 12.30pm  

JUDGE A R VIANE PAPALII