IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

FRED O'BRIEN
male of Faleula.
Accused

Counsel: R Titi for prosecution
T Leavai for accused

Hearing: 3, 4 February 2011
Judgment: 8 February 2011

JUDGMENT OF SAPOLU CJ

The charges

1.	The accused Fred O'Brien stood trial on two charges. The first charge which was laid under s.83 B (1) (a) of the Crimes Ordinance 1961 alleges that:

"At Faleula on the 3rd day of September 2008 the accused unlawfully took away [the victim], a girl under the age of 16 years, with intent to have sexual intercourse with her."

2.	Section 83 B which provides for the offence of abduction of a child under the age of 16 years provides in so far as relevant:

"(1) Everyone is liable to imprisonment for a term not exceeding 7 years who, …. with intent to have sexual intercourse with any child being a girl under the age [of 16 years], unlawfully – 

(a) Takes or entices away or detains the child; or 
(b) ….

"(2) It is immaterial whether or not the child consents, or is taken or goes at the child's own suggestion, or whether or not the offender believed the child to be of or over the age of 16.

"(3) No one shall be convicted of an offence against this section who gets the possession of any child, claiming in good faith a right to the possession of the child".

3.	The second charge which was laid under s. 52 (1) (b) of the Crimes Ordinance 1961 alleges that:

"At Faleula-uta on the 3rd day of September 2008 the accused did an indecent act upon [the victim], a girl under the age of 12 years".

4.	Section 52 which provides for the offence of indecency with a girl under the age of 12 years provides in so far as relevant:

"(1) Everyone is liable to imprisonment for a term not exceeding 7 years who:

"(a) 	 ….;
"(b)	Being a male, does any indecent act with or upon any girl under the age of 12 years; or
"(c)	….

"(2) It is no defence to a charge under this section that the girl consented, or that the person charged believed that she was of or over the age of 12 years.

"(3) The girl shall not be charged as a party to an offence committed upon or with her against this section".

Elements of the charges

5.	The present charge of abduction of a girl under the age of 16 years consists of three elements which the prosecution must prove beyond reasonable doubt. These three elements are:

"(a) 	That the accused did take a girl (the victim),
"(b) 	With the intent to have sexual intercourse with her, and
"(c) 	 That the girl was under the age of 16 years".

6.	The present charge of committing an indecency upon a girl under the age of 12 years consists of two elements which the prosecution must prove beyond reasonable doubt. These two elements are:

"(a) 	That the accused being a male did an indecent act 	upon a girl (victim),	and
"(b) 	 That the girl is under the age of 12 years".

The relevant evidence

7.	The relevant evidence in this case is quite brief. The prosecution called three witnesses, namely, the mother of the victim, Paulo Telea an eye witness, and senior sergeant Tologata Misieliota Tamaleaoa (senior sergeant Tologata) the police investigating officer in this matter. Only the accused was called as a witness by the defence.

8.	The victim's mother who was called by the prosecution to testify as to the age of the victim produced the birth certificate of the victim which shows the date of birth of the victim as 3 August 2003. The mother confirmed that that is the correct date of birth of the victim. In other words, the victim was 5 years and one month old at the time of the alleged offences. The victim who would now be 7 years old was not called as a witness.

9.	The prosecution witness Paulo Telea (Paulo) who is now 28 years old testified that on 3 September 2008 at Faleula, he saw the accused and the victim walking by along the foot rack near his family's house towards the bushes nearby. Shortly afterwards, he followed to see where the accused and the victim were going to. When he came near the unoccupied hut in the bushes, he saw the accused sitting on a sofa naked while the victim was lying on his laps. The victim was in the hands of the accused. Because of the noise (paō) from Paulo as he was getting close to the hut, the accused stood up and ran away holding his lavalava. The victim immediately followed after accused.

10.	Senior sergeant Tologata testified that he interviewed the accused and obtained a cautioned statement from him. This is a four page statement. At page 3 of the cautioned statement, the accused in reply to questions from senior sergeant Tologata said that at about 9:00am on Wednesday morning, he saw the victim at his family's house. The victim had come by herself to spend time with his sister's daughters. Then at the end of the cautioned statement, in reply to the last question from the police officer, the accused said that he admits to taking the victim to the land of Alo with the intention of having sexual intercourse with her. The accused had challenged the admissibility of the cautioned statement on the ground that he did not say to the police officer those words which appear at the end of the statement. At the conclusion of the voir dire that was held, I decided to accept the evidence of senior sergeant Tologata that the accused did say those words to him and rejected as unbelievable the accused's evidence that he did not say those words.

11.	The accused who was 17 years old at the time of the alleged offence, was called by defence counsel to testify. The accused further denied that he admitted to senior sergeant Tologata that he had taken the victim to the land of Alo with the intention of having sexual intercourse with her. He said that what happened was that he and his brothers were returning from collecting fire woods when they met the victim. He said he asked the victim as to where she was going. The victim replied that she was going to the house of the pastor some distance away. So he accompanied the victim back to her family's home. He also denied the evidence given by the prosecution witness Paulo.

12.	 Obviously, the evidence of the accused is in direct conflict with the evidence given by senior sergeant Tologata and the witness Paulo. After careful consideration, I have decided to believe the evidence of the police officer and the witness Paulo and reject the evidence of the accused as incredible.

Discussion

13.	In relation to the charge of abduction, I asked counsel for the prosecution to provide authorities on the meaning of the word "take" used in s. 83 B (1) (a) of the Crimes Ordinance 1961. Counsel for the prosecution dutifully produced two New Zealand cases. The first of those two cases is R v Lane [1961] NZLR 989 which dealt with the offence of abduction under s. 229 of the New Zealand Crimes Act 1908. In relation to the word "take" as it was used in s. 229 of the 1908 Act, the New Zealand Court of Appeal said at p. 992:

"We do not doubt that the taking requires some active conduct on the part of the man, but it is sufficient if it is done at the girl's suggestion"

In the second case of R v Smith [1970] NZLR 1057 which dealt with the offence of abduction under s. 210 (1) of the New Zealand Crimes Act 1961, the New Zealand Court of Appeal said at p. 1059:

"The substance of this offence in respect of the 'taking' must be a matter of fact and degree".

Section 83B of our Crimes Ordinance 1961 which provides for the offence of abduction is very similar in wording to s. 210 of the New Zealand Crimes Act 1961.

14.	In Hendy-Freegard v R [2007] EWCA 1236, which was concerned with the offence of kidnapping, the English Court of Appeal cited at para 28 a passage from a ruling by the trial Judge where it is said:

"Neither counsel has placed before me any dictionary definition of the word 'take'. It is not without significance in my judgment that the current edition of Websters New English Dictionary and Thesaurus defines the word as including: 'to grasp, or to seize, to gain, to win, to choose or select, to lead, to carry, to swindle, to deceive, to procure, or to escort'. The word 'takes' is in my judgment, wide enough to encompass the allegations made by the Crown within the said Counts".

15.	It is clear from the evidence of the prosecution witness Paulo that he saw the accused and the victim walking along the foot track near the house of his family towards the bushes where there is a hut. From the cautioned statement given by the accused to the police, he said that the victim was at the house of his family to spend time with his sister's daughters. So the accused must have come with the victim from the house of his family, then walked along the foot track where they were seen by the witness Paulo, and then ended up in the unoccupied hut in the nearby bushes.

16.	From the authorities I have cited on the meaning of the word 'take', I am of the opinion that the act of the accused in accompanying the victim from the house of his family, along the foot track, to the hut in the bushes amounted to 'taking' in terms of s. 83 B (1) (a) of the Crimes Ordinance 1961. The definition of the word 'take' in Websters New English Dictionary and Thesaurus includes, inter alia, 'to lead', 'to carry' and 'to escort' but it is an inclusive rather than an exhaustive definition. In my opinion, the word 'take' would include 'to accompany'. This view is also reflected in what the accused said in Samoan in the cautioned statement he made to the police officer that he 'took' the victim to the land of Alo with the intention of having sexual intercourse with her.

17.	Having determined the meaning of the word 'take' in so far as relevant for the purpose of this case, I am satisfied from the evidence that I have decided to accept that the prosecution has proved beyond reasonable doubt the three elements of the offence of abduction, namely, (a) that the accused did take the victim, (b) with the intent to have sexual intercourse with her, and (c) that the victim was under the age of 16 years.

18.	The evidence I have decided to accept in relation to the charge of committing an indecent act upon the victim also shows that inside the hut in the bushes, the accused was sitting naked on a sofa while the victim was lying on his laps being held (si'i) in his hands. I am satisfied beyond reasonable doubt that the prosecution has also proved the two elements of this charge, namely, (a) that the accused did an indecent act upon the victim, and (b) that the victim was under the age of 12 years.

19.	The accused is accordingly found guilty of both charges against him.

CHIEF JUSTICE

Solicitor
Attorney General's Office, for prosecution
Leavai Law for accused