Police v Uarota [2011] WSDC 2 (5 August 2011)

DISTRICT COURT OF SAMOA

Police v Uarota [2011]WSDC 2

Case name: Police v Uarota

Citation: [2011] WSDC 2

Decision date: 5^th August 2011

Parties: Police v AMULIA UAROTA female of Vaoala.

Hearing date(s): 26^th May 2011

File number(s): D310/11, D311/11

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): DCJ Tuatagaloa

On appeal from:

Order:

Representation:
Senior Sergeant Samuelu Afamasaga for Prosecution
Defendant unrepresented

Catchwords: Ill-Treatment and Neglect of Children

Words and phrases:

Legislation cited:
Infants Ordinance 1961, s12

Cases cited:
Thomas J in The Queen v David Frederick Mead [2001]NZCA 227 (1 October 2001
Senior [1899]1 QB 283; 290 [1895-9]All ER Rep 511,514.
Tasmania v M [2008] TASSC 21 (20 May 2008)

Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE

Informant

AND:

AMULIA UAROTA female of Vaoala

Defendant

Counsel: Senior Sergeant Samuelu Afamasaga for Prosecution
Defendant unrepresented.

Hearing: 26^th May 2011

Decision: 5^th August 2011

DECISION OF DCJ TUATAGALOA
The Offences:

1. There are two individual charges of Ill-Treatment and Neglect of Children under section 12 of the Infants Ordinance 1961 against the accused of two children. That is, there is one charge per child. Each charge alleges that the accused ill-treated each child from 28 February 2010 – 15 December 2010. Each charge reads:

“.....that at Tiapapata between 28^th day of February 2010 and 15^th day of December 2010 the above named defendant of Vaoala, being a person having the custody or control of the said child (Mana Petrini and Iosefa Petrini) a child under the age of 14 years who act in a manner likely to cause such unnecessary suffering or injury to his health willfully ill-treated or causes such child to be ill-treated.”

2. Each charge or information alleged ill-treatment for the dates between 28 February 2010 and 15 December 2010 but does not specified the ill-treatments. The Prosecution is relying on an alleged course of conduct in relation to each child. The alleged course of conduct comprises assaults and other acts of ill-treatment. As such, it will be up to me as judge to make the necessary findings as to what ill-treatment that has been proven beyond reasonable doubt.
3. The two children are twin boys name Iosefa and Mana Petrini. They were 18 months old at the time of the alleged ill-treatments by the accused.
4. The children’s parents employed three (3) house girls/nannies. The accused and Vau Malaki work during the day with Vau getting off work when Adel gets in at around 4pm. Adel and the accused then work until the children’s parents get home from work. Sometimes when the parents have functions to go to in the evening the accused and either Adel or Vau will work over time until the parents get back. The accused was the older of the house girls/nanny.
5. The three witnesses for the prosecution were the father of the children, Kevin Petrini and the two house girls/nannies Vau Malaki and Adel Vaa (aka Salote Vaa).

The Law:

6. Section 12 of the Infants Ordinance 1961 says:

“12. Punishment for ill-treatment and neglect of children – Any person having the custody or control of any child under the age or apparent age of 14 years who in a manner likely to cause such child unnecessary suffering or injury to its health willfully ill-treats, neglects abandons or exposes such child or causes or procures such child to be ill-treated, neglected, abandoned or exposed commits an offence and is liable to a fine not exceeding $200 or to imprisonment no exceeding 1 year.”

7. Each charge of ill-treatment under s.12 relates to courses of conduct over the specified period of time of about 7-8 months. The English courts appear to have proceeded for many years on the basis that a course of conduct amounting to ill-treatment [or neglect] over an extended period could properly be the subject of a single charge. This seems to be the case in this matter. The purposes or objects of s.12, in my view, are the prevention and punishment of cruelty to children. These purposes and objects are best promoted whereby a course of conduct involving a number of acts over an extended period of time is being charged as a single crime. This is because ill-treatment [and neglect] can occur over extended periods and can involve a variety of acts. (see Tasmania v M [2008] TASSC 21 (20 May 2008))
8. Because the Prosecution case relies on a continuous course of conduct entailing actions of the same character, it is therefore not necessary for particular incidents to be proved. The treatment must amount to willful ill-treatment and must be of a nature likely to cause unnecessary suffering.
   
9. The elements of the offence are five-fold:
   • The accused must have custody or control of the child;
   • The child must be under the age of 14 years;
   • The accused must have ill-treated the child;
   • The ill-treatment must be willful; and
   • The ill-treatment of the child must be in a manner likely to cause the child unnecessary suffering or injury to his health.
10. The core of the offence lies in the cruelty, not the particular form it may have taken. Ill-treatment for the purposes of the section will comprise a course of conduct on the part of the person in control or in custody of the child. It will be an accumulation of incidents extending over a period of time. Some incidents will be less serious than others and, standing alone not necessarily amount to ill-treatment. The Prosecution must establish beyond reasonable doubt that the course of conduct or accumulation of incidents constitutes willful ill-treatment. (see Thomas J in The Queen v David Frederick Mead [2001]NZCA 227 (1 October 2001))
11. Wilfully means that the act is done deliberately and intentionally, not by accident or inadvertence but so that the mind of the person who does the act goes with it. see Senior [1899]1 QB 283; 290 [1895-9]All ER Rep 511,514.

The Evidence:

12. The witness Adel Vaa (aka Salote Vaa) gave evidence that she witnessed the accused through out this period punching and beating the children, that she pushes the children’s heads down in the bath tub and the pool to the point that the children almost drown. She also saw the accused threw a buttering knife at Iosefa which hit him on the palm of his hand. This witness testified that the accused seemed to be having fun when she did this to the children.
13. Adel Vaa works after school from around 4pm until the parents get home from work. When Adel gets to work Vau Malaki goes home. There was only one incident where all three house girls/nannies were present. The accused and Adel were outside with the children at the pool and Vau was washing the dishes. Adel gave evidence that the child named Mana did not want to get in the pool and the accused grabbed him and threw him in the pool and she then held his head under the water. She told the court that she said to the accused to watch out the child might drown and the accused responded that she did not care if he drowns. The witness Vau said that she heard the children crying and went to see what was happening and was told off by Adel. This incident took place when the mother of the children was said to have gone to Namua on a retreat sometimes in October 2010.
    
14. The witness Vau Malaki testified she saw the accused ill-treated the children when she started work in March 2010 up until November 2010 when she was fired. She saw the accused beat the children by punching them or slapping them. She said the accused when she bathed the children would pushed their heads under the water in the bath tub and held it down and that the children came up gasping for air. This witness also said that the accused would punch the kids on the head (tuma) to get them to sleep when she puts them to bed and they don’t go to sleep. She also testified that the accused swore at the children in Samoan saying ‘Ufa and Kefe’ when she is mad at them and pulled their hair if they did not do what she tells them to do.
15. The father of the children, Kevin Petrini gave evidence that he noticed a change in the children’s behavior as follow:
    • The children no longer like to have a bath as they used to. He said that bathing time was one of the children’s favorite time when him and his wife bathed them;
    • He also noticed that Iosefa is always pulling Mana’s hair, something that he never used to see;
    • He was also surprised that Mana’s first word in Samoan was ‘Ufa’ and he was always saying it. This could have only been from hearing one of the 3 or all of the house girls saying it;
    • He also noticed that when he and his wife put the children to bed they would automatically cover their heads with their hands or the bed sheet.
16. Kevin also gave evidence that sometimes in November 2010 he saw Mana limping and found 3 bruises on his left arm and with a swollen hand. He said that he took his son to see a doctor. Kevin told the court that it took him and his wife 2 months to try and get the kids to enjoy their bathing time that they used to and also for Mana to stop swearing in Samoan when ever he gets angry.
17. It was not until about December 2010 when the accused did not come to work that Adel Vaa told Kevin of how the children was being treated by the accused. Kevin had sort of realized the reason for the changed in his children’s behavior.
18. The accused gave evidence and totally denied that she had ill-treated the children in any form. She said that she treated the children like her own children. She was asked about pushing the children’s heads in the bath tub and she said that she was not trying to drown them but to wash their hair as she has seen the parents done when bathing the children. She denied having sworn at them in Samoan saying that the children heard it from their next door neighbor when they go there for a little visit.
    
19. The accused was asked whether she knew that there is a different of treatment between Samoan children and European children. She responded she knew it very well and she does not treat Mana and Iosefa the way she treats her children. That is, she never beat them but she tells them off. The accused said that she never did any of the things that Vau and Adel had testified about but that it was simply a plot by Vau and Adel to have her fired as they don’t like her.

Conclusion:

20. The court clearly finds the following:
    • The accused was clearly in charge of looking after the children;
    • The children or the twin boys were 18 months old at the time;
    • The accused ill-treated the children by punching (tuma) them on the heads to get them to sleep; pulling the children’s hair when they don’t do what the accused tells them to do; holding the children’s heads longer than necessary under the water when the accused bathed them and swearing at the children in Samoan when the children don’t do what the accused tells them to do;
    • The above were carried out by the accused consistently over the period of time from 28 February 2010 and 15 December 2010 and clearly showed that the accused willfully and deliberately ill-treated the children to get them to do what she wants them to do;
    • The above ill-treatment had clearly cause unnecessary sufferings to the children as noted by the father in that the children no longer enjoys having a bath as they used to, the children automatically cover their heads in a protective way with their hands or pull the sheet over their heads when they are put to bed as the accused punched (tuma) them on the heads if they don’t go to sleep immediately; the child Iosefa develops the habit of pulling Mana’s hair whenever he is angry, Mana says ‘ufa’ every time he is angry and there were bruises found on Mana’s back and he was also limping.
21. There was a suggestion by the accused when asked as to why the other two house girls/nannies, Adel Vaa and Vau Malaki would testified that they saw what she did to the children if she had not done any of those things as she said. The accused said that it was a plot by Adel and Vau to have her terminated. The problem with this suggestion is that Vau was terminated by the children’s parents sometimes in November 2010 and as such this witness could have easily changed her testimony or would not turn up to give evidence but she did and the court found her evidence to be credible.
    
22. The court sadly noted that the ill-treatment by the accused of the children for the period of 7 – 8 months was witnessed by the other house girls/nannies Vau Malaki and Adel Vaa but they never reported it to the parents at an earlier time.
23. The accused is found to have willfully ill-treated the children from 28 February 2010 and 15 December 2010.
    

Judge Mata Keli Tuatagaloa