Police v Pe'e [2001] WSSC 1 (18 January 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TOGA PE’E,
female of Faleatiu.
Defendant

Counsel: Ms S. Vaai & Ms H. Wallwork for the Prosecution
Mr S. Leung Wai for the Defendant

Date of Hearing: 17 January 2001
Date of Ruling: 18 January 2001

RULING OF JUSTICE VAAI

s.77(1) defines legal duty which rests on the accused to supply her new born child with the necessaries of life and imposes on her criminal responsibility for omitting without lawful excuse to perform such duty if death was caused, or life endangered, or health impaired.

s.77(2) prescribes liability to imprisonment in the case of life having been endangered or health impaired.

N.B. The case of death having resulted is not dealt with in s.77(2) for in that case the conduct would amount to culpable homicide under s.61(2)(b) the punishment for which is elsewhere prescribed.

Facts: In the morning of the 6/11/2000 a newly born baby was found in the bush between the villages of Faleatiu and Satapuala.

Taulalo Fareti who found the baby was walking to work the track between Faleatiu and Satapuala when he heard the voice of a baby crying. He stopped to listen. When the baby cried again he went off the back towards the direction of the crying. He searched and saw under a cluster of bush a baby wrapped in blue cloth. It was morning. Taula Fareti returned home and fetched one Mela Utupo (the mother of his defacto wife). Taula and Mela went to where the baby was and took the baby to one Lemalie Faamita, a 73 year old lady of Faleatiu village who cut the umbilicus cord. Mela took the baby to her home where it was bathed, put to sleep and fed. When Taula Fareti returned from work in the afternoon the baby was taken to Leulumoega District Hospital where it was examined by Doctor Robert Thomsen and he prepared a written report produce to the court by the prosecution as exhibit “P1”.

His briefed report reads:

“On examination, a full term male infant, active but weak not making any noises. No congenital anomalies noted. Has good sucking, moro, grasping and rooting reflexes. Chest clear lung fields with normal heart sounds. Examination of his abdomen shows an infected umbilicus cord, foul smelling and covered with maggots. Also some abrasive wounds noted on his right thigh.”

On the 10^th November (i.e. 5 days after the baby was found) the accused went to Leulumoega Hospital and claimed to be the mother of the baby. She told Doctor Thomsen that she was walking to Satapuala to give birth at her sister’s place when the contractions she experienced 1 hour earlier became strong and she eventually gave birth at the side of the road. She returned home to get a cloth to wrap the baby and on her return 20 minutes later the baby was gone. She was then medically examined before she was escorted by Police Sargent Aneteru Tago for questioning. After she was advised of her legal rights and following the caution by the Police Sergeant the accused gave a written statement. The last paragraph of her statement says:

“I was pregnant without the knowledge of my family. I showed this to nobody. I am pregnant from my friend at Faatoia namely Tagaloa. It was sometimes in the beginning of this year that I lived at Faatoia, then Tagaloa and I got together and the result of this friendship ended up with my became pregnant. In the early morning of Monday 6 November I felt labour pains almost to give birth. I then went into the bush border of Faleatiu and Satapuala and gave birth there. I wrapped this baby boy with a blue sheet then left it there in the bush and I left for our home. I did not like the baby due to my being afraid with my family. I am also ashamed if people of the village know this. I never returned to check at where I abandoned him. I heard speculations that he had been found by some people and is now at Leulumeoga hospital now I feel my love for him. So I went to the hospital to return my baby to me. It is about five days now since I abandoned my baby. This is my complete statement about this incident and it has been read to me and it is correct.”

On examination of both written statements, I am of the view that the statement given by the accused to the police contains a true account of events on the morning of the 6^th November 2000. In the first place what she told the Doctor that she gave birth on the side of the road cannot be true because the baby was found some distance away from the track. Secondly she told the Doctor a blatant lie when she said she returned home to get a cloth to wrap the baby with because the baby was wrapped in blue material when it was found; and more importantly she could have carried the baby home where she could be wrapped and taken care of. She did not take the baby with her because she did not want the baby. It confirms what she said in her written statement to the police that:

“I wrapped the baby with a blue sheet and then left it there (in the bush) and I left for our house - - - - - . I never returned to check at where I abandoned him. I heard rumours that he has been found and he is at Leulumoega hospital - - - - - ”.

I therefore have no difficulty in concluding that on the morning of the 6^th November 2000 the accused abandoned her new-born baby boy in the bush without lawful excuse or by doing so she omitted to comply with her legal duty of supplying her new-born child with the necessaries of life.

Counsel for the defence at the conclusion of the case for the prosecution elected to call no evidence and moved to have the charge dismissed on two grounds:

The first ground he says is that the information discloses no offence. My brief answer to the submission is that it is misconceived and out of order. Normally such a submission is made before the commencement of the trial or before the plea to the charge is entered. In any event contrary to his submission the misspelling of words in the information charging the accused does not distort the meaning of the charge. It certainly does not amount to a non-disclosure of an offence. The information clearly states that the accused omitted to provide the necessaries of life for her newborn baby without lawful excuse by7 leaving the baby in the bush. And by leaving him in the bush the life of the child was endangered or his health impaired. Accordingly the accused was well informed and understood the information. The submission accordingly fails.

Secondly it is submitted that the ingredients of the charge have not been satisfied. I understand from the submission that the prosecution has not proved each element of the charge beyond reasonable doubt. In addition counsel also submits that the prosecution should have chosen when filing the information whether leaving the child in the bush as alleged either endangered the life of the child; or whether leaving the child in the bush impaired his health. In other words he says the information should be directed at or specify whether life was endangered; and if the prosecution claims that health was impaired then a separate or alternative information shall be filed to say that health was impaired. Again I am obliged to disagree with counsel and deny the submission as advanced. Whether life was endangered or health impaired is a matter for the jury or a judge sitting alone to decide from the evidence. Counsel has referred to two NZ cases of R v Moore (1954) NZLR. 893; and R v Burney (1958) NZLR. 945. But both NZ cases dealt with situations in which the accuseds were actually caring for the victims under their care but the victims did die. The question for the jury in relation to the charge under the NZ counter past of our s.77 Crimes Ordinance in R v Moore was inter alia whether accuseds omitted to provide for the necessaries of life when immediately before the death of the child his life was endangered by the inattention of the accused to seek medical attention.

The facts and issues decided in the NZ cases are therefore totally different from those under consideration here.

The main issues are whether:

(a) Is the accused the mother of the child? The defence concedes that the accused is the mother.

(b) Is the child under 16?

The defence argues that the age of the child should have been stated in the information. The simple answer is that the child is described as a newly born baby more than adequately describes the age of the child.

(c) Did the mother omit without lawful excuse to provide the necessaries of life for the child?

(d) Did the omission endanger the life or impair the health of the child?

The defence objects to the alternative consequences resulting from the omission. The objection is unfounded and the defence is not prejudiced thereby. The omission did endanger the life of the child.

It was in fact said in R v Burney that the negligence must be of a sufficiently high degree against the accused. The facts before me and which I accept show that the actions of the accused amounted too much more than negligence of a high degree.

The submission fails and I find the accused guilty as charged.

JUSTICE VAAI