Police v Visesio [2005] WSSC 32 (25 November 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TAULUA VISESIO,
male of Moamoa and Samata-i-tai.
Defendant

Counsel: Mr S Petaia for prosecution
Mr S Leung Wai for the defendant

Hearing: 25 November 2005
Ruling: 25 November 2005

ORAL RULING OF VAAI J

Defendant you are charged under section 53(1) Crimes Ordinance 1961 with nine (9) counts of having sexual intercourse with the young girl Galulolo Taualagi, the girl between the age of 12 and under the age of 16 years, not being your wife.

The evidence in this case is fairly simple and straight forward. About two (2) weeks before the commission of these offences, you met this young girl casually at the market after school. After those brief meetings you and this young girl were quite prepared to engage in sexual activities. On Friday afternoon 22^nd April 2005 after school, you and the young girl met at the market and decided to go to your place at Moamoa. There, you spent the afternoon at your friend’s place. Before going to Moamoa you asked the girl as to what class she was in and she said Year 9. You spent the evening at Moamoa and you and the young girl were engaged in consensual sexual relationship. You gave evidence that before you were engaged in the sexual relationship you asked her as to her age and she said 17. The young girl denies that. In any case the next morning which was a Saturday you wanted the young girl to return to her home but I am satisfied from the evidence that it was at her instigation that you and her decided to elope to your village of Samata-i-tai in Savaii. You spent over a week in Savaii and you were engaged in sexual activities in Savaii. In fact, you lived as husband and wife at Savaii. It was only when the police came on Sunday morning of the following week that you and the young girl were returned to Apia.

Upon arrival to Apia, you were interviewed by a police officer at the Apia Police Station. You were subsequently charged with the nine (9) counts of unlawful sexual intercourse. That was so after yourself, the young girl and her parents made statements to the police.

Now for the charge of unlawful sexual intercourse the prosecution has to prove that you had sexual intercourse with this young girl and that the young girl was between 12 and 16 and that the young girl was not your wife. At the commencement of this trial through your counsel, it was conceded that you had sexual intercourse with this young girl. The second element namely that, the young girl was between 12 and 16 and was not contested by yourself in your evidence neither was in contested by your counsel through cross examination and I also take that element to have been proved beyond reasonable doubt. Similarly the third element was not contested either through your evidence or through cross examination by your counsel namely that the young girl was not your wife. The live issue in this trial centers on sub section 4 of s.53 of the Crimes Ordinance which states:

“It is a defence to a charge under the section if the person charged proved that the girl consented that the accused was under the age of 21 at the time of the commission of the act and that he had reasonable course to believe and did believe that the girl was over the age of 16 years.”

As I have earlier stated this girl consented to sexual intercourse. I am also satisfied that you are under the age of 21 years. The crucial question for me to decide is whether you had reasonable course to believe and whether you did believe that the girl was over the age of 16 years at the time of the commission of these offences. In these proceedings I have considered carefully the manner in which both the young accused and the young girl have given their evidence.

After brief meetings at the market area after school both of you were prepared to engage in sexual activities; neither of you needed encouragement. In fact, when you both went to Moamoa on Friday afternoon after school the young girl did not for one moment consider that her relatives with whom she had been living with would be worried sick about her not coming home. The following day after spending the night together at Moamoa it was this young girl who suggested to the accused that they should elope to Savaii. When she was given a bus fare by you to go home that morning she asked you if you have a family in Savaii. As a result of her inquiry you both decided to elope to Savaii. You went to Samata-i-tai and lived there as husband and wife until the police came and brought both of you back to Apia. The fact that this young girl was willing to engage in sexual activities with you is not a defence. More importantly it does not suggest in any way that she was behaving or acting as someone over 16 years neither does it create any reasonable belief in the accused that she was over 16.

I am satisfied that you did not for one moment thought about the age of this young girl. You were in the circumstances willing to have sexual intercourse with this willing but nevertheless under-aged girl. In fact when this young girl told you that she was in year 9 that should have put him on inquiry about her age. I have observed this young girl and contrary to what counsel for the defence say, I am not satisfied that by observing her that she was over 16. There is nothing out of the ordinary in her physical appearance to suggest that she appears older than a 14 year old girl. As a result I am not satisfied on the balance of probabilities that the accused had reasonable course to believe or did believe that this young girl was over 16 years of age and as a result he is convicted of the nine (9) offences.

The defendant is remanded on the same bail conditions to the 5^th December at 9.30 in the morning for a probation report and sentence.

JUSTICE VAAI