IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

FALETAPU PUNI aka AIFALA PUNI,
male of Sataoa Safata
Defendant

Counsel: Ms M. Betham & Ms L. Mulitalo for prosecution
Mr FP Meredith for the defendant

Hearing: 20, 21, 22 and 23 May 2003.
Verdict: 23 May 2003
Ruling: 28 May 2003.

RULING OF JUSTICE VAAI

At the conclusion of the assessor trial on Friday the 23rd May 2003 the assessors found the accused guilty of Rape and of four counts under section 50(1) Crimes Ordinance of having sexual intercourse with a girl under the age of 21 years who being his stepdaughter is at the time of the intercourse living with him as a member of his family.

Pursuant to section 100 Criminal Procedure Act 1972 the presiding judge can acquit the accused if he is of the opinion that the accused should not be convicted. I adjourned the proceedings to the 26th May to consider and deliver my ruling whether I should concur with the assessors or not. I also invited counsels to make submissions, which they did, and because there was another trial set down for completion on the 26th I adjourned my ruling to the 28th after hearing counsels submissions.

As to the charge of Rape, both counsels referred back to the evidence, the ingredients of the offence, the issue of corroboration and the warning given to the assessors of the danger of convicting the accused on the uncorroborated evidence of the victim. I have given consideration to the submissions of counsels and I agree with counsel for the prosecution that the verdict of guilty of Rape should not be disturbed bearing in mind the nature of the evidence and the function of the assessors as deciders of the facts. I accordingly concur with the guilty verdict on the Rape charge.

In relation to the other 4 charges of having sexual intercourse with a girl who was his stepdaughter counsel for the defence understandably reviewed the evidence called by the prosecution to support each of the 4 charges as well as emphasising the visit to the scene of the alleged offence. The prosecution on the other hand concentrated its submissions on the meaning of the word stepdaughter understandably so because if the assessors accepted my definition of stepdaughter then all the charges should have been dismissed because the mother and father of the victim were not married, and at the time of the alleged offences the mother of the victim and the accused were not married.

I directed the assessors that for the victim to be the stepdaughter of the accused they must be satisfied firstly the victim's biological mother and father were married and secondly that the victims mother and the accused were also married.

But the prosecution submits that the biological parents need not be married and rely on the decision of the NZ Supreme Court in Lineham v Lineham (1974) 1NZLR 686 in which Cooke J (as he then was) said at page 687:

"Whatever may have been the ordinary meaning in 1897, it seems to me that at the present day the term step-parent is the obvious one to describe the relationship of a husband to his wife's child by a previous union, whether or not that union was a marriage. It is hard to think of any other suitable term".

In that case Cooke J was considering section 35 of the New Zealand Domestic Proceedings Act 1968 which reads:

"The court may make a maintenance order for the maintenance of any child:
Against the step-parent of the child on the application of the mother or the father as the case may be: Against the foster-parent of any child on the application of the other foster-parent."

Prosecution also refers to what was said by Street CJ in R v Dawson (1927) S.R. (N.S.W.) 78 at page 79:

"The submission that has been put before us is that the conviction was wrong inasmuch as, on its true construction the section refers only to legitimate daughters and step daughters and therefore the girl upon whom this offence was committed did not come within it.  It is perfectly true that in statutes and in other instruments dealing with the inheritance of property or the disposition of property, the word children is construed as meaning legitimate children, but that is not to say that in all cases in which children are referred to by the legislature, we are to assume that the reference is only to legitimate children. Obviously the object is to protect young girls against offences upon them by persons who are in a position of authority or control over them."

In both the New Zealand and Australian cases referred to the above courts in defining the words step-daughter and step-parent placed emphasis on the purpose and object intended by the relevant enactments rather than on the popular use of the word or etymological propriety of language. In both cases the courts gave an interpretation which they considered to be more consonant with the intention of the enactment.

If I were to adopt the meaning of step-father or step-parent as defined in the two cases I have referred to, there is still the second limb of my summing up as to the meaning of stepdaughter which the prosecution has not addressed in its admissions namely that the accused and the mother of the victim were married. In both R v Dawson and Lineham v Lineham the term step-parent and step-father was attributed to the spouse by a subsequent marriage of the child's parent. In fact in another decision of the NZ Supreme Court in Sample v Sample (1973) 1 NZLR 584 which also considered Section 35 of the New Zealand Domestic Proceedings Act 1968, Mahon J said at page 586 that a step-parent must bear the ordinary meaning of a spouse by a subsequent marriage of the child's parent.

Now it is blatantly clear from the evidence that the mother of the victim and the accused were not married so that the second limb of the definition of stepfather as put to the assessors has not been satisfied. As a result I am obliged not to concur with the verdict of the assessors. The accused is accordingly acquitted of the 4 charges and the 4 information's are dismissed.

On the charge of Rape of which the accused was found guilty, the accused is remanded on the same bail conditions to the 16th June 2003 for probation report and sentence.

JUSTICE VAAI