Elisara v Police [2005] WSSC 49 (1 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

GAOLO ELISARA,
male of Saoluafata
Defendant

Counsel: Mr K Koria for prosecution
Mr A Roma for the defendant

Hearing: 30 November 2005
Decision: 1 December 2005

ORAL RULING OF VAAI J

By information sworn on the 9^th November 2004 the accused was charged pursuant to section 53 Crimes Ordinance 1961 that at Moataa between the 1^st and 31^st July 2003 he had sexual intercourse with a girl of the same village who was over the age of 12 years and under the age of 16 years. Before the commencement of the defended hearing the prosecution sought to amend the information to change the dates of the alleged sexual intercourse to between the 1^st July and 31^st August 2003; the amendment was granted with the consent of defence counsel. Indeed the evidence led by the prosecution through the complainant is that she met the accused on the bus in July 2003 during the time the Moataa rugby club was hosting an annual rugby tournament called the Moataa 10 rugby tournament. The accused is a prominent member of the club. They talked on the bus and agreed to go to the house of one Fa’amati, a friend of the accused, who was also on the same bus. At the house of Fa’amati the accused and the complainant engaged in sexual intercourse. They had sex on at least two other occasions after. Several other witnesses testified but their testimonies are not relevant for he purpose of this ruling.

At the conclusion of the prosecution case, counsel for the defence submitted a no case to answer on two grounds; but the principal ground advanced by counsel is that the accused was not prosecuted within 12 months as required by subsection 7 of section 53 Crimes Ordinance which states:

“S.53(7): No one shall be prosecuted for any offence against this section except under paragraph (a) of subsection (2) thereof, unless the prosecution is commenced within 12 months from the time when the offence was committed.”

The information against the accused was sworn and filed on the 9^th November 2004, the day after the accused was questioned by the police and 6 days after the complainant’s mother lodged the complaint with the police.

Counsel for the prosecution quite properly conceded that the information was filed out of time and pursuant to section 36 Criminal Procedure Act 1972 sought to amend the information by substituting the offence of unlawful sexual intercourse with one of indecent assault. The amendment sought is simply to avoid the 12 months limitation period and in all circumstances the application lacks substances and cannot be granted. In the first place, to grant the application will deny the accused of the specific defence conferred by section 53 (7), but more importantly it will be a waste of exercise to grant the amendment which is void of any merit. An amendment is sought so that the evidence to be given or already given meets with or has some connection with the information. So far the only evidence produced by the prosecution is an act of consensual sexual intercourse at Moataa in July or August 2003 and on two other subsequent occasions. One of the essential elements of indecent assault is that the complainant did not consent to the touching by the accused; in fact not one of the three elements of the offence of indecent assault has been raised or suggested in the prosecution evidence.

In essence the application by the prosecution to amend the information is without merit and is denied and the strike out application is granted and the information against the accused is dismissed.

JUSTICE VAAI