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Samoa Consolidated Legislation |
CONSOLIDATED ACTS OF SAMOA 2008
Arrangement of Provisions
TITLE
1. Short
title and commencement
2. Interpretation
PART
I
JURISDICTION
3. Application
4. Repealed
5. Repealed
6.
Repealed
7. Offences not to be punishable except under the law of Samoa
8. Offence under more than one enactment
8A &8B. Repealed
PART
II
MATTERS OF
JUSTIFICATION
OR EXCUSE
9. General rule as to justification
10. Ignorance of
law
11. Repealed
12. Repealed
13. Insanity
14. Compulsion
15.
Self defence against unprovoked assault
16. Self defence against provoked
assault
17. Defence of dwellinghouse
18. Defence of land or building
19. Defence of person under protection
20. Excess of force
21.
Consent to death
22. Other enactments not affected
PART
III
PARTIES TO
THE
COMMISSION OF
OFFENCES
23. Parties to offences
24. Husband and wife
conspiring
25. Offence committed other than offence intended
26.
Accessory after the fact
27. Attempts
PART
IV
CRIMES
AGAINST
PUBLIC ORDER
28. Treason
29. Seditious offences
30. Unlawful assembly
31. Riot
32.
Forcible entry
33. Affrays
34. Unlawful intimidation
34A.
Threatening, etc., words or behaviour to member or officer
PART
V
CRIMES AFFECTING ADMINISTRATION OF
LAW AND JUSTICE AND PUBLIC ADMINISTRATION
35. Official corruption
36. Perjury
37. Fabricating
evidence
38. Conspiring to defeat justice
39. Breaking prison
40.
Escape
41. Rescue
PART
VI
CRIMES
AGAINST
RELIGION,
MORALITY
AND PUBLIC
WELFARE
Crime Against Religion
42. Blasphemous libel
Crimes
Against
Morality and
Decency
43. Distribution or exhibition of indecent matter
44.
Indecent act in public place
45. Indecent act with intent to insult or
offend
Sexual Crimes
46. Sexual intercourse defined
47. Rape
48.
Attempt to commit rape
49. Incest
50. Sexual intercourse by man with
young related girl living in his family
51. Sexual intercourse with girl
under 12
52. Indecency with girl under 12
53. Sexual intercourse or
indecency with girl between 12 and 16
54. Indecent assault on woman or girl
55. Conspiracy to induce sexual intercourse
56. Inducing sexual
intercourse under pretence of marriage
57. Sexual intercourse with idiot or
imbecile woman or girl
58. Adultery by married persons
58A. Adultery
with married woman
58B. Indecent act between woman and girl
58C.
Indecency between man and boy
58D. Indecency between males
58E. Sodomy
58F. Bestiality
58G. Attempts to commit sodomy or bestiality
58H.
Indecency with animal.
Crimes Against Public Welfare
58I. Criminal nuisance
58J. Keeping place of resort
for homosexual acts
58K. Brothel-keeping
58L. Living on earnings of
prostitution
58M. Procuring sexual intercourse
58N. Personating a female
58O. Misconduct in respect of human remains
58P. Repealed
PART
VII
CRIMES AGAINST
PERSON
AND REPUTATION
59. Homicide
60. Killing of a child
61. Homicide,
culpable and not culpable
62. Death must be within a year and a day
63.
Murder
64. Further definition of murder
65. Manslaughter
66. Penalty
for murder
67. Penalty for manslaughter
68. Attempted
69. Conspiracy
and inciting to murder
70. Hastening death
71. Indirect cause of death
72. Infanticide
73. Killing unborn child
73A. Procuring abortion
73B. Female procuring her own miscarriage
73C. Supplying means of
procuring abortion
73D. Effectiveness of means used immaterial
74.
Concealing dead body of a child
74A. Bigamy defined
74B. Punishment of
bigamy
74C. Feigned marriage
75. Counselling suicide
76. Duty to
provide the necessaries of life
77. Duty of parent or guardian to provide
necessaries
78. Common assault
79. Grievous bodily harm
80. Actual
bodily harm
81. Acts or omissions causing bodily harm
82. Threats to
kill or do bodily harm
83. Abduction of woman or girl
83A. Kidnapping
83B. Abduction of child under 16
84. Defamatory libel
PART
VIII
CRIMES
AGAINST
RIGHTS OF
PROPERTY
85. Theft
defined
86. Punishment of theft
87. Ineffectual defences to charge of
theft
88. Extended definition of theft
89. Obtaining by false pretence
90. Receiving stolen property
91. Conversion of vehicles or vessels,
etc.
92. Robbery
93. Breach of trust
94. Menaces
95. Witchcraft
96. Obtaining credit by fraud
97. Conspiracy to defraud
98.
Falsifying accounts relating to public funds
99. False accounting by
employee
100. False statement by public officer
101. Accusation of
criminal offences
102. Burglary
103. Unlawful entry of building by night
104. Intimidation by breaking house or discharge of firearms
105. Being
armed with intent to commit a crime
106. Having in possession instruments of
housebreaking, or being disguised to commit a crime
107. Forgery
108.
Uttering forged documents
109. Making counterfeit coin
110. Impairing
coin
111. Uttering counterfeit coin
112. Arson
113. Wilful damage
114. Attempt to commit or procure commission of offence
115. Accessory
after the fact to crime
PART
IX
LEGISLATION
SUPERSEDED
AND SAVINGS
116. Repeals and
Savings
PART
X
PENALTIES AND
ENFORCEMENT
117-124 Repealed
PART
XI
ARRESTS
125-127 Repealed
Schedule
_____________________________
1961 No.13
AN ORDINANCE to consolidate
and amend Part V of the Samoa Act 1921 (NZ) and certain other enactments
relating to crimes and other offences.
(16
December 1961)
(Commencement
date 1 January 1962)
1. Short title and
commencement - (1) This Ordinance may be cited as the Crimes Ordinance
1961.
(2) This Ordinance shall come into force on the 1st day of January
1962.
2. Interpretation - In
this Ordinance, unless the context otherwise requires:
"Building" means any building, erection or structure of any kind, whether permanent or temporary, and includes any dwelling, fale, warehouse, shop, office, store, caravan or other premises of any kind.
"Constable" includes any member of the Police Service.
"Court" includes both the Supreme Court and the District Court of Samoa.
"Crime" means an offence for which anyone can be punished under this Ordinance.
"Day" or "daytime" means the interval between 6 o'clock in the morning of any day and 8 o'clock at night of the same day.
"Enactment" includes the Constitution of Samoa and any Act, Ordinance, Regulation or Order.
"Night" or "night time" means the interval between 8 o'clock at night and 6 o'clock in the following morning.
"Offence" means any act of omission for which anyone can be punished under this Ordinance or under any other enactment.
"Public place" means:
(a) Any road;
(b) Any place of public resort open to or used by the public (whether on payment of money or otherwise);
(c) Any wharf or jetty;
(d) Any passenger ship or boat or vessel plying for hire at a wharf or jetty or within one mile of the shore;
(e) Any licensed public vehicle plying for hire;
(f) Any church or other building where Divine Service is being publicly held;
(g) Any hall or room in which any public entertainment is being held;
(h) Any market place.
"Ship" means every description of vessel used in navigation, however propelled; and includes any schooner, cutter, launch, yacht, boat, barge, lighter, dinghy, paopao, raft or little vessel.
"Territorial waters" in relation to any country other than Samoa means such part of the sea adjacent to the coast of that country as is within the territorial sovereignty of that country.
"Valuable security" means any document which constitutes a title to or is evidence of title to any property or proprietary right of any kind whatever; and includes any negotiable instrument, bill of exchange, cheque or promissory note.
"Samoa" means the islands of Upolu, Savaii, Manono and Apolima in the South Pacific Ocean together with all other islands adjacent thereto and lying between the 13th and 15th degrees of south latitude and the 171st and 173rd degrees of longitude west of Greenwich; Samoa includes all waters within the outer limits of the territorial sea of Samoa (as defined in the Maritime Zones Act 1999) and the exclusive economic zone of Samoa (as defined in the Maritime Zones Act 1999).
PART
I
JURISDICTION
3. Application -
(1) This Ordinance applies to all offences for which the offender may be
proceeded against and tried in Samoa.
(2) This Ordinance applies to any
act or omission or event which occurs in Samoa or any other place.
(3)
The Court of Appeal and the Supreme Court and the District Court shall have
jurisdiction to hear and determine any matter for
which this Ordinance or any
other law provides such Court with jurisdiction irrespective of whether any act
or omission or event
occurs in Samoa or any other place.
4.
Repealed by the Crimes (Extra-Territorial
Jurisdiction) Amendment Act 2003 No.16.
5.
Repealed by the Crimes (Extra-Territorial
Jurisdiction) Amendment Act 2003 No.16.
6.
Jurisdiction in respect of crimes on ships or
aircraft - Repealed by the Crimes
(Extra-Territorial Jurisdiction) Amendment Act 2003 No.16.
7. Offences not to be
punishable except under the law of Samoa - No one shall be convicted of
any offence at common law, or of any offence against any Act of the Parliament
of England or the Parliament
of Great Britain or the Parliament of the United
Kingdom:
PROVIDED THAT nothing
in this section shall limit or affect the power or authority of the Legislative
Assembly or of any Court to punish for contempt.
8. Offence under more than one
enactment - (1) Where an act or omission constitutes an offence under
this Ordinance and under any other Ordinance, the offender may be prosecuted
and
punished either under this Ordinance or under that other Ordinance.
(2)
Where an act or omission constitutes an offence under 2 or more Ordinances other
than this Ordinance, the offender may be prosecuted
and punished under any one
of those Ordinances.
(3) Where an act or omission constitutes an offence
under 2 or more provisions of this Ordinance or of any other Ordinance, the
offender
may be prosecuted under any one of those provisions.
(4) No one
shall be liable to be punished twice in respect of the same offence.
8A
&8B. Inserted by section 2 of the Crimes Amendment Act 1963 and repealed by
section 177 (1) of the Criminal Procedure Act 1972.
PART
II
MATTERS OF JUSTIFICATION OR
EXCUSE
9. General rule as to
justification - All rules and principles of the common law which render
any circumstances a justification or excuse for any act or omission, or
a
defence to any charge, shall remain in force and apply in respect of a charge of
any offence, whether under this Ordinance or under
any other enactment, except
so far as they are altered by or are inconsistent with this Ordinance or any
other enactment.
10. Ignorance of
law - The fact that an offender is ignorant of the law is not an excuse
for any offence committed by that person.
11. Repealed by Section 25 of Young
Offenders Act 2007.
12.
Repealed by Section 25 of Young Offenders Act
2007.
13. Insanity - (1)
Everyone shall be presumed to be sane at the time of doing or omitting any act
until the contrary is proved.
(2) No person shall be convicted of an
offence by reason of an act done or omitted by him or her when labouring under
natural imbecility
or disease of the mind to such an extent as to render the
person incapable:
(a) Of understanding the nature and quality of the act or omission; or
(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
(3) Insanity before or after the time when the person did or omitted the
act, and insane delusions, though only partial, may be evidence
that the
offender was, at the time when the person did or omitted the act, in such a
condition of mind as to render him or her irresponsible
for the act or omission.
(4) The fact that by virtue of this section any person has not been or
is not liable to be convicted of an offence shall not affect
the question
whether any other person who is alleged to be a party to that offence is guilty
of that offence.
14.
Compulsion - (1) Subject to the provisions of this section, a person who
commits an offence under compulsion by threats of immediate death or
grievous
bodily harm from a person who is present when the offence is committed is
protected from criminal responsibility if the
person believes that the threats
will be carried out and if he or she is not a party to any association or
conspiracy whereby the
person is subject to compulsion, except where the offence
committed is treason, murder, attempted murder, aiding or abetting rape,
abduction, robbery, causing grievous bodily harm and arson.
(2) Where a
married woman commits an offence, the fact that her husband was present at the
commission of it shall not of itself raise
the presumption of compulsion.
15. Self defence against unprovoked
assault - (1) Everyone unlawfully assaulted, not having provoked the
assault by any blows, words or gestures, is justified in repelling force,
if the
force he or she uses:
(a) Is not meant to cause death or grievous bodily harm; and
(b) Is no more than is necessary for the purpose of self defence.
(2) Everyone unlawfully assaulted, not
having provoked the assault by any blows, words or gestures, is justified in
repelling force
by force although in so doing he or she causes death or grievous
bodily harm, if:
(a) He or she causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purpose; and
(b) He or she believes, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm.
16. Self
defence against provoked assault - Everyone who has assaulted another
without justification, or has provoked an assault from that other by any blows,
words or gestures,
may nevertheless justify force used after the assault if:
(a) He or she used the force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked and in the belief, on reasonable grounds that it was necessary for his or her own preservation from death or grievous bodily harm; and
(b) He or she did not begin the assault with intent to kill or do grievous bodily harm and did not endeavour, at any time before the necessity for preserving himself or herself arose, to kill or do grievous bodily harm; and
(c) Before the force was used, he or she declined further conflict and quitted or retreated from it as far as was practicable.
17. Defence
of dwellinghouse - Everyone in peaceable possession of a dwellinghouse,
and everyone lawfully assisting that person or acting by his or her authority,
is justified in using such force as is necessary to prevent the forcible
breaking and entering of the dwellinghouse by any person
if the person believes,
on reasonable grounds, that there is no lawful justification for the breaking
and entering.
18. Defence of land or
building - (1) Everyone in peaceable possession of any land or building,
and everyone lawfully assisting him or her or acting by his or her
authority, is
justified in using reasonable force to prevent any person from trespassing on
the land or building or to remove him
or her therefrom.
(2) If the last
mentioned person resists the attempt to prevent his or her entry or to remove
him or her, that person shall be deemed
to commit an assault without
justification.
19. Defence of person
under protection - Everyone is justified in using force, in defence of
the person or any one under that person’s protection, against an assault,
if he or she uses no more force than is necessary to prevent the assault or the
repetition of it:
PROVIDED THAT
this section shall not justify the wilfull infliction of any hurt or mischief
disproportionate to the assault that it was intended
to prevent.
20. Excess of force - Everyone
authorised by law to use force is criminally responsible for any excess,
according to the nature and quality of the act
that constitutes the excess.
21. Consent to death - No one has a
right to consent to the infliction of death upon himself or herself, and, if any
person is killed, the fact that he
or she gave any such consent shall not affect
the criminal responsibility of any person who is a party to the killing.
22. Other enactments not affected -
Nothing in this Ordinance shall take away or diminish any authority given by any
other enactment to arrest, detain, or put any
restraint on any person.
PART
III
PARTIES TO
THE
COMMISSION OF
OFFENCES
23. Parties to
offences - (1) Everyone is a party to and guilty of an offence who:
(a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common
intention to prosecute any on lawful purpose, and to assist each other therein,
each of
them is a party to every offence committed by any one of them in the
prosecution of the common purpose if the commission of that
offence was or ought
to have been known to be a probable consequence of the prosecution of the common
purpose.
24. Husband and wife
conspiring - Where any person is charged with any conspiracy or with
being a party to any conspiracy, the fact that any 2 of the alleged conspirators
or parties to the conspiracy are husband and wife shall not of itself be a
defence to the charge.
25. Offence
committed other than offence intended - (1) Everyone who incites,
counsels, or procures another to be a party to an offence of which that other is
afterwards guilty is a
party to that offence, although it may be committed in a
way different from that which was incited, counselled, or procured.
(2)
Everyone who incites, counsels, or procures another to be a party to an offence
is a party to every offence which that other commits
in consequence of such
inciting, counselling, or procuring, and which the first-mentioned person knows
or ought to have known to
be likely to be committed in consequence thereof.
26. Accessory after the fact - (1)
An accessory after the fact to an offence is one who, knowing any person to have
been a party to the offence, receives, comforts,
or assists that person or
tampers with or actively suppresses any evidence against the person, in order to
enable him or her to escape
after arrest or to avoid arrest or conviction.
(2) No married person whose spouse has been a party to an offence shall
become an accessory after the fact to that offence by doing
any act to which
this section applies in order to enable the spouse, or the spouse and any other
person who has been a party to the
offence, to escape after arrest or to avoid
arrest or conviction.
27.
Attempts - (1) Everyone who, having an intent to commit an offence, does
or omits an act for the purpose of accomplishing the object, is guilty
of an
attempt to commit the offence intended, whether under the circumstances it was
possible to commit the offence or not.
(2) The question whether an act
done or omitted with intent to commit an offence is or is not only preparation
for the commission
of that offence, and too remote to constitute an attempt to
commit it, is a question of law.
(3) An act done or omitted with intent
to commit an offence may constitute an attempt if it is immediately or
proximately connected
with the intended offence, whether or not there was any
act unequivocally showing the intent to commit an offence.
PART
IV
CRIMES AGAINST PUBLIC
ORDER
28. Treason -
Every citizen of Samoa is guilty of treason, and shall upon conviction be
imprisoned for life, who:
(a) Kills, wounds, imprisons, or causes grievous bodily harm to the Head of State; or
(b) Levies war or conspires to levy war against the State of Samoa; or
(c) Uses force for the purpose of overthrowing the Government of Samoa; or
(d) Assists by any means whatever any public enemy at war with the State of Samoa.
29.
Seditious offences - (1) Everyone is liable to imprisonment for a term
not exceeding 2 years who speaks any seditious words or publishes a seditious
libel, or is a party to a seditious conspiracy.
(2) Seditious words are words expressive of a seditious
intention.
(3) A seditious libel is a libel expressive of a seditious
intention.
(4) A seditious conspiracy is an agreement between 2 or more
persons to carry into execution a seditious intention.
(5) A seditious
intention is an intention to excite disaffection against the Parliament or
Government of Samoa, or to excite such
hostility or ill will between different
classes of the inhabitants of Samoa as may be injurious to the public welfare,
or to incite,
encourage, or procure lawlessness, violence, or disorder in Samoa,
or to procure otherwise than by lawful means the alteration of
any matter
affecting the laws, government, or Constitution of Samoa.
30. Unlawful assembly - (1) Every
member of an unlawful assembly is liable to imprisonment for one year.
(2) An unlawful assembly is an assembly of 3 or more persons who, with
intent to carry out any common purpose, assemble in such a
manner, or so conduct
themselves when assembled as to cause persons in the neighbourhood of such an
assembly to fear, on reasonable
grounds, that the persons so assembled will
disturb the peace tumultuously, or will, by such assembly, needlessly and
without any
reasonable occasion provoke other persons to disturb the peace
tumultuously.
(3) Persons lawfully assembled may become an unlawful
assembly if they, with a common purpose, conduct themselves in such a manner
that their assembling would have been unlawful if they had assembled in that
manner for that purpose.
(4) An assembly of 3 or more persons for the
purpose of protecting the house of any one of their number against persons
threatening
to break and enter such house in order to commit any offence therein
is not unlawful.
31. Riot -
(1) Everyone who takes part in a riot is liable to imprisonment for a term not
exceeding 2 years.
(2) A riot is an unlawful assembly that has begun to
disturb the peace tumultuously.
32.
Forcible entry - Everyone is liable to imprisonment for a term not
exceeding 6 months who, by force or threats of force, enters on land then in
the
actual and peaceful possession of another for the purpose of taking possession
thereof, whether the person who so enters is entitled
to the possession thereof
or not.
33. Affrays - (1)
Everyone who, without lawful justification or excuse, takes part in an affray is
liable to imprisonment for a term not exceeding
one year.
(2) An affray
is the act of fighting in a public highway or in any other public place.
34. Unlawful intimidation - Every
person commits an offence and is liable to imprisonment for a term not exceeding
one year or to a fine of 2 penalty units
who:
(a) Imposes or attempts to impose or authorises or directs the imposition or attempted imposition upon any other person (whether in respect of a particular person or generally) of any punishment, fine, or penalty or payment in money or goods for having disobeyed any prohibition imposed by any person or body of persons against the doing or abstaining from doing any act which such other person has a legal right to do or abstain from doing; or
(b) With a view to compel any other person to do or to abstain from doing any act which that person has a legal right to do or abstain from doing.
(i) Uses violence to or by words or acts intimidates such other person or damages or threatens to damage his or her property; or
(ii) Follows such other person about from place to place or in or along any public place; or
(iii) Watches or besets any house, shop, or other place or the approach thereto where such other person or any person whosoever resides or works or carries on business or happens to be.
34A. Threatening, etc., words or behaviour
to Member or officer - (1) Everyone is liable to imprisonment for a term
not exceeding 6 months or to a fine not exceeding 2 penalty units who uses any
threatening, abusive or insulting words or behaviour towards or in respect of
any Member of Parliament.
(2) Everyone is liable to imprisonment for a
term not exceeding 3 months or to a fine not exceeding 1 penalty unit who uses
any threatening,
abusive or insulting words or behaviour towards or in respect
of any officer of the Public Service while he or she is performing
any official
duty or exercising any official power.
PART
V
CRIMES AFFECTING
ADMINISTRATION
OF LAW AND JUSTICE
AND
PUBLIC ADMINISTRATION
35. Official
corruption - Everyone commits the offence of official corruption and is
liable to imprisonment for a term not exceeding 5 years who:
(a) Being the holder of any office, whether judicial or otherwise, in the service of the Independent State of Samoa, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself, herself or any other person any bribe, that is to say, any money or valuable consideration whatever, on account of anything done or to be afterwards done by that person in an official capacity; or
(b) Corruptly gives or offers to any person holding any such office or to any other person any such bribe as aforesaid on account of any such act.
36.
Perjury - (1) Perjury is an assertion as to a matter of fact, opinion,
belief, or knowledge made by a witness in a judicial proceeding as
part of his
or her evidence upon oath or affirmation, whether such evidence is given in open
Court or by affidavit or otherwise,
such assertion being known to the witness to
be false.
(2) Every proceeding is judicial within the meaning of this
section which is held before any Court, or before any judicial officer
or other
person having power to take evidence on oath or affirmation.
(3) No one
shall be convicted of perjury on the evidence of one witness only, unless the
evidence of that witness is corroborated
in some material particularly by
evidence implicating the accused.
(4) Everyone who commits perjury is
liable to imprisonment for a term not exceeding 5 years.
37. Fabricating evidence - Everyone
is liable to imprisonment for a term not exceeding 3 years who, with intent to
mislead any Court of Justice or any judicial
officer in the exercise of his or
her functions as such, fabricates evidence by any means other than perjury.
38. Conspiring to defeat justice -
Everyone is liable to imprisonment for a term not exceeding 3 years who
conspires or attempts to obstruct, prevent, pervert, or
defeat the course of
justice in any cause or matter, civil or criminal.
39. Breaking prison - Everyone is
liable to imprisonment for a term not exceeding 5 years who by force or violence
breaks any prison with intent to set
at liberty himself, herself or any other
person detained therein.
40.
Escape - (1) Everyone is liable to imprisonment for a term not exceeding
2 years who, being in lawful custody, whether in a prison or elsewhere,
escapes
therefrom.
(2) For the purposes of this and the next succeeding section
lawful custody means the detention of a person by due process of law,
whether
the person be under arrest, police or gaol escort, serving a term of
imprisonment or otherwise; custody under an irregular
warrant or other irregular
process shall be deemed to be lawful.
41. Rescue - Everyone is liable to
imprisonment for a term not exceeding 2 years who rescues any person from lawful
custody, whether in a prison
or elsewhere, or who assists any person to escape
from such custody, or who aids, harbours, conceals, or shelters any person who
has escaped from such custody, knowing that person to have so escaped.
PART
VI
CRIMES AGAINST
RELIGION,
MORALITY AND PUBLIC
WELFARE
Crimes Against Religion
42. Blasphemous
libel - (1) Everyone is liable to imprisonment for a term not exceeding
one year who publishes any blasphemous libel.
(2) Whether any
particular published matter is or is not a blasphemous libel is a question of
fact.
(3) It is not an offence against this section to express in good
faith and in decent language, or to attempt to establish by arguments
used in
good faith and conveyed in decent language, any opinion whatever on any
religious subject.
(4) No one shall be prosecuted for an offence
against this section without the leave in writing of the Attorney-General, who
before
giving leave may make such enquiries as the Attorney-General thinks fit.
CRIMES AGAINST MORALITY AND DECENCY
43. Distribution or
exhibition of indecent matter - (1) Everyone is liable to imprisonment
for a term not exceeding 2 years who, without lawful justification or excuse:
(a) Sells, expose for sale, or otherwise distributes to the public any indecent model or object; or
(b) Exhibits or presents in or within view of any place to which the public have or are permitted to have access any indecent model or object or indecent show or performance; or
(c) Exhibits or presents in the presence of any person in consideration or expectation of any payment, or otherwise for gain, any indecent show or performance.
(2) It is a defence to a charge
under this section to prove that the public good was served by the acts alleged
to have been done.
(3) It is a question of law whether the sale,
exposure for sale, distribution, exhibition or presentation might in the
circumstances
serve the public good, and whether there is evidence of excess
beyond what the public good requires; but it is a question of fact
whether or
not the acts complained of did so serve the public good and whether or not there
was such excess.
(4) It is no defence that the person charged did not
know that the model, object, show or performance to which the charge relates
was
indecent, unless that person also satisfies the Court:
(a) That he or she had no reasonable opportunity of knowing it; and
(b) That in the circumstances his or her ignorance was excusable.
(5) No one shall be prosecuted for an
offence against this section without the leave in writing of the
Attorney-General, who before
giving leave may make such inquiries as the
Attorney-General thinks fit.
(6) Nothing in this section shall apply to
any document or matter to which the Indecent Publications Ordinance 1960
relates, whether
the document or matter is indecent within the meaning of that
Ordinance or not.
44. Indecent act in
public place - (1) Everyone is liable to imprisonment for a term not
exceeding 2 years who wilfully does any indecent act in any public place,
or
within view of any such place.
(2) It is a defence to a charge under
this section if the person charged proves that he or she had reasonable grounds
for believing
that he or she would not be observed.
45. Indecent act with intent to insult or
offend - Everyone is liable to imprisonment for a term not exceeding 2
years who, with intent to insult or offend any person, does any indecent
act in
any place.
SEXUAL CRIMES
46. Sexual intercourse
defined - For the purposes of this Part, sexual intercourse is complete
upon penetration; and there shall be no presumption of law that any
person is by
reason of his age incapable of such intercourse.
47. Rape - (1) Rape is the act of a
male person having sexual intercourse with a woman or girl:
(a) Without her consent freely and voluntary given; or
(b) With consent extorted by fear or bodily harm or by threats; or
(c) With consent extorted by fear, on reasonable grounds, that the refusal of consent would result in the death of or grievous bodily injury to a third person; or
(d) With consent obtained by personating her husband; or
(e) With consent obtained by a false and fraudulent representation as to the nature and quality of the act.
(2) Everyone
who commits rape is liable to imprisonment for life.
(3)
Notwithstanding anything in subsection (1) of this section, no man shall be
convicted of rape in respect of his intercourse with
his wife, unless at the
time of the intercourse there was in force in respect of the marriage a decree
of judicial separation or
a separation order.
48. Attempt to commit rape -
Everyone who attempts to commit rape or assaults any person with intent to
commit rape is liable to imprisonment for a term not
exceeding 10 years.
49. Incest - (1) In this section
the term "child" includes an illegitimate child; and "grandchild" has a
corresponding meaning.
(2) Incest is sexual intercourse between:
(a) Parent and child; or
(b) Brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or
(c) Grandparent and grandchild,-
where the
person charged knows of the relationship between the parties.
(3)
Everyone of or over the age of 16 years who commits incest is liable to
imprisonment for a term not exceeding 7 years.
50. Sexual intercourse by man with young
girl living in his family - (1) Everyone is liable to imprisonment for a
term not exceeding 7 years who has or attempts to have sexual intercourse with
any
girl, not being his wife, who is under the age of 21 years and who, being
his stepdaughter, foster daughter or ward, is at the time
of the intercourse or
attempted intercourse living with him as a member of his family.
(2) It
is no defence to a charge under this section that the girl consented.
51. Sexual intercourse with girl under
12 - (1) Everyone who has sexual intercourse with any girl under the age
of 12 years is liable to imprisonment for a term not exceeding
10 years.
(2) Everyone who attempts to have sexual intercourse with any girl under the
age of 12 years is liable to imprisonment for a term
not exceeding 7 years.
(3) 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.
(4) The girl shall not be charged as a party to an offence committed
upon or with her against this section.
52. Indecency with girl under 12 -
(1) Everyone is liable to imprisonment for a term not exceeding 7 years who:
(a) Indecently assaults any girl under the age of 12 years; or
(b) Being a male, does any indecent act with or upon any girl under the age of 12 years; or
(c) Being a male, induces or permits any girl under the age of 12 years to do any indecent act with or upon him.
(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.
53. Sexual intercourse or indecency with
girl between 12 and 16 - (1) Everyone is liable to imprisonment for a
term not exceeding 7 years who has or attempts to have sexual intercourse with
any
girl of or over the age of 12 years and under the age of 16 years, not being
his wife.
(2) Everyone is liable to imprisonment for a term not
exceeding 7 years who:
(a) Indecently assaults any such girl; or
(b) Being a male, does any indecent act with or upon any such girl; or
(c) Being a male, induces or permits any such girl to do any indecent act with or upon him.
(3) It is a defence to a charge
under this section if the person charged proves that the girl consented and that
he is younger than
the girl:
PROVIDED
THAT proof of the said facts shall not be a defence if it is proved that
such consent was obtained by a false and fraudulent representation
as to the
nature and quality of the act.
(4) It is a defence to a charge under this section if the
person charged proves that the girl consented, that he was under the age
of 21
years at the time of the commission of the act, and that he had reasonable cause
to believe, and did believe, that the girl
was of or over the age of 16 years:
PROVIDED THAT proof of the
said facts shall not be a defence if it is proved that the consent was obtained
by a false and fraudulent representation
as to the nature and quality of the
act.
(5) Except as provided in this section, it is no defence to a
charge under this section that the girl consented, or that the person
charged
believed that the girl was of over the age of 16 years.
(6) The girl
shall not be charged as a party to an offence committed upon or with her against
this section.
(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.
54. Indecent assault on
woman or girl - Everyone is liable to imprisonment for a term not
exceeding 5 years who:
(a) Indecently assaults any woman or girl of or over the age of 16 years; or
(b) Does anything to any woman or girl of or over the age of 16 years, with her consent, which but for such consent would have been an indecent assault such consent being obtained by a false and fraudulent representation as to the nature and quality of the act.
55. Conspiracy to induce sexual
intercourse - Everyone is liable to imprisonment for a term not exceeding
5 years who conspires with any other person by a false representation
or by
other fraudulent means to induce any woman or girl to have sexual intercourse
with any male who is not her husband.
56. Inducing sexual intercourse under
pretence of marriage - Everyone is liable to imprisonment for a term not
exceeding 7 years who induces any woman or girl to have sexual intercourse with
him by a wilfully false representation that they are married.
57. Sexual intercourse with idiot or
imbecile woman or girl - Everyone is liable to imprisonment for a term
not exceeding 7 years who has or attempts to have sexual intercourse with any
woman
or girl who is an idiot or an imbecile, if he knows or has good reason to
believe that she is an idiot or imbecile.
58. Adultery by married persons -
Every married person who commits adultery shall be liable to a fine not
exceeding 1 penalty unit.
58A.
Adultery with married woman - Every man who commits adultery with a woman
he knows to be married shall be liable to a fine not exceeding 1 penalty unit.
58B. Indecent act between woman and
girl - (1) Every woman of or over the age of 21 years is liable to
imprisonment for a term not exceeding 5 years who:
(a) Does any indecent act with or upon any girl under the age of 16 years; or
(b) Induces or permits any girl under the age of 16 years to do any indecent act with or upon her.
(2) The girl shall not be
charged as a party of an offence committed with or upon her against this
section.
(3) It is no defence to a charge under this section that the
girl consented.
58C. Indecency between man and boy - (1) Everyone is liable
to imprisonment for a term not exceeding 7 years who, being a male:
(a) Indecently assaults any boy under the age of 16 years; or
(b) Does any indecent act with or upon any boy under the age of 16 years; or
(c) Induces or permits any boy under the age of 16 years to do any indecent act with or upon him.
(2) No person under the age
of 21 years shall be charged with committing or being a party to an offence
against this section.
(3) It is no defence to a charge under this
section that the boy consented.
58D.
Indecency between males - (1) Everyone is liable to imprisonment for a
term not exceeding 5 years who, being a male:
(a) Indecently assaults any other male; or
(b) Does any indecent act with or upon any other male; or
(c) Induces or permits any other male to do any indecent act with or upon him.
(2) No boy under the age of 16 years shall be
charged with committing or being a party to an offence against paragraph (b) or
paragraph
(c) of subsection (1), unless the other male was under the age of 21
years.
(3) It is no defence to a charge under this section that the
other party consented.
58E.
Sodomy - (1) Everyone who commits sodomy is liable:
(a) Where the act of sodomy is committed on a female, to imprisonment for a term not exceeding 7 years.
(b) Where the act of sodomy is committed on a male, and at the time of the act that male is under the age of 16 years and the offender is of or over the age of 21 years, to imprisonment for a term not exceeding 7 years.
(c) In any other case, to imprisonment for a term not exceeding 5 years.
(2) This offence is complete upon
penetration.
(3) Where sodomy is committed on any person under the age
of 16 years he shall not be charged with being a party to that offence,
but he
may be charged with being a party to an offence against section 58D of this Act
in any case to which that section is applicable.
(4) It is no defence
to a charge under this section that the other party consented.
58F. Bestiality - (1) Everyone is
liable to imprisonment for a term not exceeding 7 years who commits bestiality.
(2) This offence is complete upon penetration.
58G. Attempts to commit sodomy or
bestiality - Everyone is liable to imprisonment for a term not exceeding
5 years who:
(a) Attempts to commit sodomy or bestiality; or
(b) Assaults any person with intent to commit sodomy.
58H.
Indecency with animal - Everyone is liable to imprisonment for a term not
exceeding 3 years who commits any act of indecency with an animal.
Crimes against Public Welfare
58I. Criminal
nuisance - (1) Everyone commits criminal nuisance who does any unlawful
act or omits to discharge any legal duty, such act or omission being
one which
he or she knew would endanger the lives, safety, or health of the public, or the
life, safety or health of any individual.
(2) Everyone who commits
criminal nuisance is liable to imprisonment for a term not exceeding one year.
58J. Keeping place of resort for
homosexual acts - Everyone is liable to imprisonment for a term not
exceeding 7 years who:
(a) Keeps or manages, or knowingly acts or assists in the management of, any premises used as a place of resort for the commission of indecent acts between males; or
(b) Being the tenant, lessee or occupier of any premises, knowingly permits the premises or any part thereof to be used as a place of resort for the commission of indecent acts between males; or
(c) Being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part thereof with the knowledge that the premises are to be used as a place of resort for the commission of indecent acts between males, or that some part thereof is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a place of resort for the commission of such acts as aforesaid.
58K.
Brothel keeping - (1) In this section, the term "brothel" means any
house, room, set of rooms, or place of any kind whatever used for the purposes
of prostitution, whether by one woman or more.
(2) Everyone is liable
to imprisonment for a term not exceeding 5 years who:
(a) Keeps or manages, or knowingly acts or assists in the management of, any brothel; or
(b) Being the tenant, lessee or occupier of any premises, knowingly permits the premises or any part thereof to be used as a brothel; or
(c) Being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part thereof with the knowledge that the premises are to be used as a brothel, or that some part thereof is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a brothel.
58L. Living on earnings of
prostitution - Everyone is liable to imprisonment for a term not
exceeding 3 years who knowingly:
(a) Lives wholly or in part on the earnings of the prostitution of another person; or
(b) Solicits for any prostitute, whether or not he receives any payment, reward or valuable consideration for so doing.
58M. Procuring
sexual intercourse - Everyone is liable to imprisonment for a term not
exceeding 3 years who, for gain or reward, procures or agrees or offers to
procure
any woman or girl to have sexual intercourse with any male who is not
her husband.
58N. Personating a
female - Every male person is liable to imprisonment for a term not
exceeding 6 months or to a fine not exceeding 2 penalty units who, in
a public
place and with intent to deceive any other person as to his true sex, has on or
about his person any article intended by
him to represent that he is a female or
in any other way is impersonating or representing himself to be a female.
58O. Misconduct in respect
of human remains - Everyone is liable to imprisonment for a term not
exceeding 2 years who:
(a) Neglects to perform any duty imposed on the person by law or undertaken by the person with reference to the burial or cremation of any dead human body or human remains; or
(b) Improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not.
58P.
Repealed by section 26 (3) of the Gaming Act
1978.
PART
VII
CRIMES AGAINST
THE
PERSON AND REPUTATION
59. Homicide -
Homicide is the killing of a human being by another, directly or indirectly, by
any means whatsoever.
60. Killing of
a child - (1) A child becomes a human being within the meaning of this
Ordinance when it has completely proceeded in a living state from
the body of
its mother, whether it has breathed or not, whether it has an independent
circulation or not, and whether the navel string
is severed or not.
(2)
The killing of such child is homicide if it dies in consequence of injuries
received before, during, or after birth.
61. Homicide, culpable and not
culpable - (1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person
either:
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any legal duty; or
(c) By both combined; or
(d) By causing that person by threats or fear of violence, or by deception, to do an act which causes that person's death; or
(e) By wilfully frightening a child under the age of 14 years or sick person.
(3) Culpable homicide is murder or
manslaughter or infanticide.
(4) Homicide that is not culpable is not
an offence.
62. Death must be within
a year and a day - (1) No one is criminally responsible for the killing
of another unless the death takes place within a year and a day after the
cause
of death.
(2) The period of a year and a day shall be reckoned
inclusive of the day on which the last unlawful act contributing to the cause
of
death took place.
(3) Where the cause of death is an omission to fulfil
a legal duty, the period shall be reckoned inclusive of the day on which such
omission ceased.
(4) Where the death is in part caused by an unlawful
act and in part of an omission, the period shall be reckoned inclusive of the
day on which the last unlawful act took place or the omission ceased, whichever
happened last.
63. Murder -
Subject to the provisions of section 72 (relating to infanticide), culpable
homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed;
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death and is reckless whether death ensues or not;
(c) If the offender means to cause death, or being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed;
(d) If the offender for any unlawful object does an act that he or she knows or ought to have known to be likely to cause death, and thereby kills any person, though he or she may have desired that his or her object should be effected without hurting anyone.
64. Further
definition of murder - (1) Culpable homicide is also murder in each of
the following cases, whether the offender means or does not mean death to ensue,
or knows or does not know that death is likely to ensue:
(a) If he or she means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury;
(b) If he or she administers any stupefying or overpowering thing for either of the purposes aforesaid, and death ensues from the effects thereof;
(c) If he or she by any means wilfully stops the breath of any person for either of the purposes aforesaid, and death ensues from such stopping of the breath.
(2) The following are the offences referred
to in the last preceding subsection: treason, escape or rescue from prison or
lawful custody,
resisting lawful apprehension, murder, rape, forcible abduction,
robbery, burglary, arson.
65.
Manslaughter - Culpable homicide not amounting to murder is manslaughter,
save in the case of infanticide.
66.
Penalty for murder - Everyone who commits murder shall upon conviction be
imprisoned for life.
67. Penalty for
manslaughter - Everyone who commits manslaughter is liable to
imprisonment for life.
68. Attempted
murder - Everyone who attempts to commit murder is liable to imprisonment
for life.
69. Conspiracy and inciting
to murder - Everyone is liable to imprisonment for a term not exceeding
10 years who:
(a) Conspires with any person to murder any person; or
(b) Incites any person to commit murder.
70. Hastening death - Everyone who
hastens the death of any person from any disease or disorder from which that
person is already suffering shall be
deemed to have caused the death of that
person.
71. Indirect cause of
death - Everyone whose act or omission results in the death of any person
shall be deemed to have caused the death of that person, although
the immediate
cause of death is the act or omission of some other person or some other
independent intervening event.
72.
Infanticide - (1) Where a woman causes the death of any child of hers
within 12 months from the date of its birth in a manner that amounts to
culpable
homicide, and where at the time of the offence the balance of her mind was
disturbed by reason of her not having fully recovered
from the effect of
childbirth or by reason of lactation or of any disorder consequent upon
childbirth, to such an extent that she
should not be held fully responsible, she
is guilty of infanticide, and not of murder or manslaughter, and is liable to
imprisonment
for a term not exceeding 3 years.
(2) Upon the trial of a
woman for the murder or manslaughter of any child of hers under the age of 12
months, if there is evidence
to support a verdict of infanticide as above, it
shall be open to the jury to return such a verdict, and the accused shall be
liable
accordingly.
73. Killing
unborn child - (1) Everyone is liable to imprisonment for a term not
exceeding 14 years who causes the death of any child that has not become
a human
being in such a manner that the person would have been guilty of murder if the
child had become a human being.
(2) Everyone is liable to imprisonment
for a term not exceeding 5 years who causes the death of any child that has not
become a human
being in such a manner that he would have been guilty of
manslaughter if the child had become a human being.
(3) No one is
guilty of any crime who before or during the birth of any child causes its death
by means employed in good faith for
the preservation of the life of the mother.
73A. Procuring abortion - (1)
Everyone is liable to imprisonment for a term not exceeding 7 years who, with
intent to procure the miscarriage of any woman
or girl, whether she is with
child or not:
(a) Unlawfully administers to or causes to be taken by her any poison or any drug or any noxious thing; or
(b) Unlawfully uses on her any instrument; or
(c) Unlawfully uses on her any other means whatsoever.
(2) The woman or girl shall not be charged
as a party to an offence against this section.
73B. Female procuring her own
miscarriage - Every woman or girl is liable to imprisonment for a term
not exceeding 7 years who with intent to procure miscarriage, whether
she is
with child or not:
(a) Unlawfully administers to herself, or permits to be administered to her, any poison or any drug or any noxious thing; or
(b) Unlawfully uses on herself, or permits to be used on her, any instrument; or
(c) Unlawfully uses on herself, or permits to be used on her, any other means whatsoever.
73C. Supplying means of procuring
abortion - Everyone is liable to imprisonment for a term not exceeding 7
years who unlawfully supplies or procures any poison or any drug
or any noxious
thing, or any instrument or other thing, whether of a like nature or not,
believing that it is intended to be unlawfully
used to procure miscarriage.
73D. Effectiveness of means used
immaterial - The provisions of sections 73A to 73C of this Act shall
apply whether or not the poison, drug, thing, instrument or means administered,
taken, used supplied or procured was in fact capable of procuring miscarriage.
74. Concealing dead body of
child - Everyone is liable to imprisonment for a term not exceeding 2
years who disposes of the dead body of any child in any manner with
intent to
conceal the fact of its birth, whether the child died before, during, or after
birth.
74A. Bigamy defined -
(1) Bigamy is:
(a) The act of a person who, being married goes through a form of marriage in Samoa with a third person; or
(b) The act of a person who goes through a form of marriage in Samoa with any other person whom he or she knows to be married; or
(c) The act of a Samoa citizen, or a person ordinarily resident in Samoa, who, being married, goes through a form of marriage with a third person anywhere outside Samoa; or
(d) The act of a Samoa citizen, or a person ordinarily resident in Samoa, who goes through a form of marriage anywhere outside Samoa with any other person whom he or she knows to be married.
(2) For
the purposes of this section:
(a) A form of marriage is any form of marriage recognised by the law of Samoa, or by the law of the place where it is solemnised, as a valid form of marriage;
(b) No form of marriage shall be held to be an invalid form of marriage by reason of any act or omission of the person charged with bigamy, if it is otherwise a valid form.
(3) It shall not be a
defence to a charge of bigamy to prove that if the parties were unmarried they
would have been incompetent to
contract marriage.
(4) No person commits
bigamy by going through a form of marriage if that person:
(a) Has been continuously absent from his or her spouse for 7 years then last past; and
(b) Is not proved to have known that his or her spouse was alive at any time during those 7 years.
74B. Punishment of bigamy -
Everyone who commits bigamy is liable to imprisonment for a term not exceeding 5
years:
PROVIDED THAT if the
Judge is satisfied that the person with whom the offender went through the form
of marriage knew, at the time when the offence
was committed, that the marriage
would be void, the offender is liable to imprisonment for a term not exceeding 2
years.
74C. Feigned marriage -
Everyone is liable to imprisonment for a term not exceeding 5 years who goes
through a form of marriage with any other person,
knowing that the marriage will
be void for any reason other than that one of the parties is already married:
PROVIDED THAT if the Judge is
satisfied that that other person knew, at the time when the offence was
committed, that the marriage would be void,
the offender is liable to
imprisonment for a term not exceeding 2 years.
75. Counselling suicide - Everyone
is liable to imprisonment for life who counsels or procures any person to commit
suicide, if that person actually commits
suicide in consequence thereof, or who
aids or abets any person in the commission of suicide.
76. Duty to provide the necessaries of
life - (1) Everyone who has charge of any other person unable, by reason
of age, sickness, insanity, or any other cause, to withdraw himself
or herself
from that charge, and unable to provide himself or herself with the necessaries
of life, is (whether such charge is undertaken
by him or her under any contract
or is imposed upon him or her by law or in accordance with Samoa custom or by
reason of his or her
unlawful act or otherwise howsoever) under a legal duty to
supply that person with the necessaries of life, and is criminally responsible
for omitting without lawful excuse to perform such duty if the death of that
person is caused, or if the person’s life is endangered
or his or her
health impaired by such omission.
(2) Everyone is liable to imprisonment
for a term not exceeding 7 years who, without lawful excuse, neglects the duty
specified in
this section so that the life of the person under his or her charge
is endangered or his or her health impaired by such neglect.
(3) For
the purposes of this and the next succeeding section the term "necessaries of
life" shall include the provision of proper
and adequate care and attention,
food, drink, clothing, shelter and medical treatment.
77. Duty of parent or guardian to provide
necessaries - (1) Everyone who, as a parent or person placed in the
position of a parent in accordance with Samoan custom, is under a legal duty
to
provide the necessaries of life for any child under the age of 16 years, is
criminally responsible for omitting without lawful
excuse to do so, whether the
child is helpless or not, if the death of the child is caused, or if the
child’s life is endangered
or his or her health impaired by such omission.
(2) Everyone is liable to imprisonment for a term not exceeding 7
years who, without lawful excuse, neglects the duty specified in
this section so
that the life of the child is endangered or his or her health impaired by such
neglect.
78. Common assault -
(1) Everyone is liable to imprisonment for a term not exceeding one year who
assaults any other person.
(2) "Assault" means the act of
intentionally applying or attempting to apply force to the person of another,
directly or indirectly,
or threatening by any act or gesture to apply such force
to the person of another, if the person making the threat has, or causes
the
other to believe on reasonable grounds that he or she has, present ability to
effect his or her purpose; and "to assault" has
a corresponding meaning.
79. Grievous bodily harm - Everyone
who wilfully and without lawful justification causes grievous bodily harm to any
person is liable to imprisonment for
a term not exceeding 7 years.
80. Actual bodily
harm - Everyone who wilfully and without lawful justification causes
actual bodily harm to any person is liable to imprisonment for a
term not
exceeding 2 years.
81. Acts or
omissions causing bodily harm - Everyone is liable to imprisonment for a
term not exceeding 2 years who by any act or omission causes bodily harm to any
person
in such circumstances that, if death had been caused, he would have been
guilty of manslaughter.
82. Threats
to kill or do bodily harm - Everyone is liable to imprisonment for a term
not exceeding 3 years who sends or causes to be received, knowing the contents
thereof,
any letter or writing containing threats to kill or do bodily harm to
any person, or who verbally makes a threat to kill or do bodily
harm to any
person.
83. Abduction of woman or
girl - Everyone is liable to imprisonment for a term not exceeding 7
years who takes away or detains any woman or girl, whether she is
married or
not, without her consent, or with her consent obtained by fraud or duress, with
intent:
(a) To marry her or to have sexual intercourse with her; or
(b) To cause her to be married or to have sexual intercourse with any other person.
83A.
Kidnapping - (1) Everyone is liable to imprisonment for a term not
exceeding 10 years who unlawfully carries off or detains any person without
the
person’s consent, or with the person’s consent obtained by fraud or
duress, with intent:
(a) To cause the person to be confined, or imprisoned; or
(b) To cause the person to be sent or taken out of Samoa; or
(c) To hold the person for ransom or to service.
(2) A child under the age of 16 years shall
be deemed to be incapable of consenting to being carried off or detained.
(3) No one shall be convicted of an offence against this section who gets
possession of any child, claiming in good faith a right
to the possession of the
child.
83B. Abduction of child under
16 - (1) Everyone is liable to imprisonment for a term not exceeding 7
years who, with intent to deprive any parent or guardian or other
person having
the lawful care or charge of any child under the age of 16 years of the
possession of the child, or with intent to
have sexual intercourse with any
child being a girl under the age, unlawfully:
(a) Takes or entices away or detains the child; or
(b) Receives the child, knowing that the child has been so taken or enticed away or detained.
(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 possession of any child, claiming in good faith a right
to the possession
of the child.
84. Defamatory
libel - (1) Everyone who publishes a defamatory libel is liable to
imprisonment for a term not exceeding 6 months.
(2) To publish a
defamatory libel means to do any act which confers upon the person defamed a
right of action for damages for libel.
(3) In a prosecution under this
section the burden of proof shall be determined by the same rules as in an
action for damages for
libel.
(4) In a prosecution under this section
it shall be no defence that the libel is true unless the publication thereof was
for the public
benefit.
PART
VIII
CRIMES AGAINST RIGHTS OF
PROPERTY
85. Theft
defined - (1) Theft or stealing is the act of fraudulently or dishonestly
taking, or converting to the use of any person, anything capable
of being
stolen, with intent:
(a) To deprive the owner or any person having any property or interest therein permanently of such thing or of such property or interest; or
(b) To deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking or converting.
(2) Every animate or inanimate thing
whatever that is the property of any person, and is movable, is capable of being
stolen.
(3) Every thing whatever that is the property of any person and
is capable of being made movable is capable of being stolen as soon
as it
becomes movable, although it is made movable in order to steal it.
(4)
Theft is committed when the offender moves the thing, or causes it to be moved
with intent to steal it.
(5) Everyone who kills any living creature
capable of being stolen, with intent to steal its carcass, skin, or plumage, or
any part
of it, commits theft and steals the creature.
86. Punishment of theft - (1)
Everyone who commits theft is liable to imprisonment for a term not exceeding:
(a) 3 months if the value of the property stolen does not exceed $4;
(b) 1 year if the value of the property stolen exceeds $4 but does not exceed $100;
(c) 3 years if the value of the property stolen exceeds $100 but does not exceed $400;
(d) 5 years if the value of the property stolen exceeds $400;
(e) 7 years if the property stolen is a testamentary instrument;
(f) 10 years if the property stolen is a ship or aircraft;
(g) 7 years if the property stolen is anything stolen by a clerk or servant which belongs to or is the possession of his employer;
(h) 7 years if the property stolen is anything in the possession of the offender as a clerk or servant, or as an officer of the Government of Samoa or of any local authority or public body, or as a constable;
(i) 7 years if the theft is one within the extended definition contained in section 88 of this Ordinance.
(2) Repealed by
section 2(2) of the Crimes Amendment Act 1971.
(3) For the purposes of
this section a valuable security shall be deemed to be of the same value as the
property or proprietary right
to which it relates, and postage stamps or revenue
stamps shall be deemed to be of a value equal to the denomination thereof.
87. Ineffectual defences to charge of
theft - Without in any way limiting the generality of the foregoing
definition of theft, a person shall be deemed guilty of theft notwithstanding
the fact:
(a) That at the time of the theft he or she was in lawful possession of the property stolen; or
(b) That he or she had himself or herself a lawful interest in the property stolen, whether as a partner, co-owner, bailee, bailor, mortgagee, mortgagor, or otherwise howsoever; or
(c) That he or she was a trustee of the property stolen; or
(d) That the property stolen was vested in him as an executor or administrator.
88.
Extended definition of theft - Without in any way limiting the generality
of the foregoing definition of theft, every person shall be deemed guilty of
theft who
holds, receives, or obtains any money, valuable security, or other
thing whatsoever capable of being stolen, subject to any obligation
(whether
arising from an express or implied trust, or from an express or implied
contract, or from any other source whatsoever) to
deal with such money, valuable
security, or thing in any manner, and who fraudulently or dishonestly deals with
it in any other manner,
or fails to deal with it in accordance with such
obligation.
89. Obtaining by false
pretence - (1) Everyone is liable to imprisonment for a term not
exceeding 3 years who:
(a) With intent to defraud by any false pretence, either directly or through the medium of any contract obtained by such false pretence, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any person other than himself or herself; or
(b) With intent to defraud or injure any person by any false pretence, causes or induces any person to execute, make, accept, endorse or destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal on any paper in order that it may afterwards be made or converted into or used or dealt with as a valuable security.
(2) A
false pretence is a representation either by words or otherwise of a matter of
fact either present or past, which representation
is known to the person making
it to be false and is made with the fraudulent intent to induce the person to
whom it is made to act
upon it.
90.
Receiving stolen property - (1) Everyone who receives any stolen property
knowing it to have been stolen is liable to imprisonment for a term not
exceeding:
(a) 3 months if the value of the property so received does not exceed $4;
(b) 1 year if the value of the property so received exceeds $4 but does not exceed $100;
(c) 3 years if the value of the property so received exceeds $100 but does not exceed $400;
(d) 5 years if the value of the property so received exceeds $400.
(2) The act of receiving stolen property is
complete as soon as the offender has, either exclusively or jointly with the
thief or
any other person, possession of or control over the stolen property, or
aids in concealing or disposing of it.
91. Conversion of vehicles or vessels,
etc. - Every person who, unlawfully and without colour of right, but not
so as to be guilty of theft thereof, takes or converts to his
or her use or to
the use of any other person, any vehicle, vessel or aircraft, of any
description, or any part thereof, or any horse,
shall be liable to the same
penalty as if he or she had committed theft of the article concerned.
92. Robbery - (1) Robbery is theft
accompanied by violence or threats of violence to any person or property, used
to extort the property stolen
or to prevent or overcome resistance to its being
stolen.
(2) Everyone who commits robbery is liable to imprisonment for
a term not exceeding 10 years.
(3) Everyone who assaults any person
with intent to rob that person is liable to imprisonment for a term not
exceeding 5 years.
93. Breach of
trust - (1) Every trustee who with intent to defraud, and in violation of
his or her trust, converts anything of which he or she is trustee
to any use not
authorised by the trust is guilty of criminal breach of trust, and is liable to
imprisonment for a term not exceeding
5 years.
(2) For the purpose of
this section an executor or administrator shall be deemed to be a trustee of the
property subject to his or
her administration.
(3) Nothing in this
section shall be so construed as in any manner to limit the foregoing definition
of the offence of theft, and
if any act of a trustee is both theft and a
criminal breach of trust may be convicted of either of those offences.
94. Menaces - Everyone is liable to
imprisonment for a term not exceeding 2 years who with menaces demands from any
person, either for himself
or herself, or for any other person, anything capable
of being stolen, with intent to steal it.
95. Witchcraft - Everyone is liable
to imprisonment for a term not exceeding 6 months who pretends to exercise or
use any kind of witchcraft, sorcery,
enchantment, or conjuration, or undertakes
to tell fortunes.
96. Obtaining
credit by fraud - Everyone is liable to imprisonment for a term not
exceeding 6 months who in incurring any debt or liability obtains credit by
means
of any fraud.
97. Conspiracy to
defraud - Everyone is liable to imprisonment for a term not exceeding 3
years who conspires with any other person by deceit or falsehood
or other
fraudulent means to defraud the public or any person ascertained or
unascertained.
98. Falsifying
accounts relating to public funds - Everyone is liable to imprisonment
for a term not exceeding 5 years who, with intent to defraud:
(a) Makes any false entry or any alteration in any accounts kept by any Government Department or public body, or by any bank, being accounts of any public money within the meaning of the Public Finance Management Act 2001, or of any other public fund;
(b) In any manner wilfully falsifies any such accounts as aforesaid; or
(c) Makes any transfer of any interest in any stock, debentures, or debt, in the name of any person other than the owner of that interest.
99. False
accounting by employee - Everyone is liable to imprisonment for a term
not exceeding 5 years who, being or acting in the capacity of an officer or a
clerk
or servant, with intent to defraud:
(a) Destroys, mutilates, alters, or falsifies any book, account, valuable security, or document belonging to or in the possession of his or her employer, or received by him or her for or on behalf of his or her employer, or concurs in so doing; or
(b) Makes or concurs in making any false entry in, or omits or alters, or concurs in omitting or altering, any material particular from or in any such book, account, valuable security, or document.
100. False
statement by public officer - Everyone is liable to imprisonment for a
term not exceeding 2 years who, being an officer, collector, or receiver
entrusted with
the receipt, custody, or management of any public money within
the meaning of the Public Finance Management Act 2001, or part of the revenues
of any local authority or public body, knowingly furnishes any false statement
or return of any sum of money
collected by that person, or entrusted to that
person’s care, or of any balance of money in the person’s hands or
under
his or her control.
101.
Accusation of criminal offences - Everyone is liable to imprisonment for
a term not exceeding 5 years who:
(a) With intent to extort or gain anything from any person, accuses or threatens to accuse either that person or any other person of any criminal offence, whether the person accused or threatened with accusation is guilty of that offence or not; or
(b) With such intent as aforesaid, threatens that any person shall be so accused by any person; or
(c) With such intent as aforesaid, causes any person to receive a document containing such accusation or threat, knowing the contents thereof.
102.
Burglary - (1) Everyone is guilty of burglary and is liable to
imprisonment for a term not exceeding 5 years who, by day or night, breaks
and
enters a building with intent to commit a criminal offence therein.
(2)
"To break" means to break any part, internal or external, of a building, or to
open by any means whatever any door, window, or
other thing intended to cover
any opening to the building or any passage from one part of it to another.
103. Unlawful entry of building by
night - Everyone is liable to imprisonment for a term not exceeding 5
years who unlawfully enters or is in any building by night with intent
to commit
a criminal offence therein, or who is found by night in any building without
lawful justification for his or her presence
there.
104. Intimidation by breaking house or
discharge of firearms - Everyone is liable to imprisonment for a term not
exceeding 5 years who, by night, or to imprisonment for a term not exceeding
2
years who, by day, with intent to intimidate or annoy any person:
(a) Breaks or damages or threatens to break or damage any building; or
(b) By the discharge of firearms or otherwise alarms or attempts to alarm any person in any building.
105. Being armed with intent to commit a
crime - Everyone is liable to imprisonment for a term not exceeding 3
years who is found:
(a) Armed with any dangerous or offensive weapon or instrument whatever by day, with intent to break or enter into any building and to commit any crime therein; or
(b) Armed as aforesaid by night, with intent to break into any building whatsoever and to commit any crime therein.
106. Having in possession instruments of
housebreaking, or being disguised with intent to commit a crime -
Everyone is liable to imprisonment for a term not exceeding 3 years who:
(a) Has in his or her possession by night, without lawful excuse, any instrument being an instrument capable of being used for housebreaking in circumstances that prima facie show an intention to use it for housebreaking; or
(b) Has in his or her possession by day any such instrument as aforesaid with intent to commit any crime; or
(c) Has his or her face masked or blackened or is otherwise disguised by night, without lawful excuse (the proof whereof shall lie on him or her); or
(d) Has his or her face masked or blackened or is otherwise disguised by day, with intent to commit any crime.
107. Forgery - (1) Forgery is
making a false document, knowing it to be false, with the intent that it shall
in any way be used or acted upon
as genuine, whether within Samoa or not, or
that some person shall be induced by the belief that it is genuine to do or
refrain from
doing anything, whether within Samoa or not.
(2) For the
purposes of this section, the expression "making a false document" includes
making any material alteration to a genuine
document, making any material
addition to it, or other alteration whether by addition, insertion,
obliteration, erasure, removal,
or otherwise.
(3) Forgery is complete
as soon as the document is made with such knowledge and intent as aforesaid,
although the offender may not
have intended that any particular person should
use or act upon it as genuine, or should be induced by the belief that it is
genuine
to do or refrain from doing anything.
(4) Forgery is complete
although the false document may be incomplete or may not purport to be such a
document as would be binding
or sufficient in law, if it is so made and is such
as to indicate that it was intended to be acted on as genuine.
(5)
Everyone who commits forgery is liable to imprisonment for a term not exceeding
5 years.
108. Uttering forged
documents - Everyone is liable to imprisonment for a term not exceeding 5
years who, knowing a document to be forged:
(a) Uses, deals with, or acts upon it as if it were genuine; or
(b) Causes any person to use, deal with, or act upon it as if it were genuine.
109. Making
counterfeit coin - Everyone is liable to imprisonment for a term not
exceeding 7 years who makes or begins to make counterfeit coin resembling any
current coin, or who has in his or her possession any dies or other instruments
or material intended to be used in the making of
such counterfeit coin.
110. Impairing coin - Everyone
is liable to imprisonment for a term not exceeding 2 years who impairs,
diminishes or lightens any current coin, with
intent that when so dealt with it
shall pass for current coin.
111.
Uttering counterfeit coin - Everyone who fraudulently utters any
counterfeit coin is liable to imprisonment for a term not exceeding 6 months.
112. Arson - Everyone commits
arson and is liable to imprisonment for a term not exceeding 5 years who
wilfully sets fire to, or damages by
means of any explosive:
(a) Any building, erection, or structure, or any ship or aircraft, or any well of any combustible substance, or any mine, or any bush, forest, or plantation; or
(b) Any property, whether he or she has an interest in it or not, if he or she knows or ought to know that danger to life is likely to ensue.
113. Wilful
damage - (1) Everyone is liable to imprisonment for a term not exceeding
14 years who wilfully destroys or damages:
(a) Any property, whether he or she has an interest in it or not, if he or she knows or ought to know that danger to life is likely to ensue; or
(b) Any road, railway, bridge, tunnel or similar means of communication, or any aerodrome, wharf, quay or jetty, if he knows or ought to know that it is thereby likely to be rendered dangerous, impassable or unusable; or
(c) Any power station, or any building, erection or structure, or any equipment, line, cable or pipe, used for or in connection with the production, transmission or distribution of electricity, if he or she knows or ought to know that the supply of electricity is thereby likely to be affected.
(2) Everyone is liable to imprisonment for a
term not exceeding 7 years who wilfully destroys or damages:
(a) Any stopbank, wall, dam or sluice gate, or any spillway, canal, drain or other waterway, or any pumping station or pumping equipment, or any other works, if the destruction or damage causes danger of flooding; or
(b) Any container, building, erection, structure or pipe line used for the storage of transmission of bulk supplies of gas or liquid fuel; or
(c) Any rare or irreplaceable book manuscript, original painting, etching, engraving, print or other work of art, or any rare or irreplaceable article kept for purposes of art or science.
(3) Everyone
is liable to imprisonment for a term not exceeding 3 years who wilfully destroys
or damages any property in any case
not provided for elsewhere in this
Ordinance.
114. Attempt to commit or
procure commission of offence - (1) Everyone who attempts to commit any
offence in respect of which no punishment for the attempt is expressly
prescribed by this
Ordinance or by some other enactment is liable to
imprisonment for a term not exceeding 10 years if the maximum punishment for
that
offence is imprisonment for life, and in any other case is liable to not
more than half the maximum punishment to which he would
have been liable if he
had committed that offence.
(2) Everyone who incites, counsels, or
attempts to procure any person to commit any offence, when that offence is not
in fact committed,
is liable to the same punishment as if he or she had
attempted to commit that offence.
115. Accessory after the fact to
crime - Everyone who is accessory after the fact to any crime punishable
by imprisonment, being a crime in respect of which no express
provision is made
by this Ordinance or by some other enactment for the punishment of an accessory
after the fact, is liable to imprisonment
for a term not exceeding half the
longest term to which a person committing the crime may be sentenced on a first
conviction.
PART
IX
LEGISLATION SUPERSEDED AND
SAVINGS
116. Repeals and
savings - (1) This Ordinance is declared to be enacted in substitution
for Part V of the Samoa Act 1921 (NZ), as amended by subsequent enactments of
the New Zealand Legislature, and it is hereby declared that the said Part V
shall, from
the date this Ordinance comes into force, no longer form part of the
law of Samoa.
(2) It is hereby declared that the enactment of this
Ordinance shall not affect any document made, proceedings commenced, or anything
whatsoever done under Part V of the Samoa Act 1921 (NZ), or under any
corresponding former provisions, and every such document, proceeding, or thing,
so far as it is subsisting or
in force at the date this enactment comes into
force and could have been made, commenced, or done under this Ordinance, shall
continue
and have effect as if it had been made, commenced or done under the
corresponding provision of this Ordinance, and as if that provision
had been in
force when the document was made or the proceedings were commenced or the thing
was done.
PART
X
PENALTIES AND
ENFORCEMENT
117-124. This
Part was added by section 2 of the Crimes Amendment Act 1965 and repealed by
section 177 of the Criminal Procedure Act 1972.
PART
XI
ARRESTS
125-127. This
Part was added by section 10 of the Crimes Amendment Act 1969 and repealed by
section 177 (1) of the Criminal Procedure Act
1972.
SCHEDULES
The first and second schedules were added by section 4 of
the Crimes Amendment Act 1963 and repealed by section 177 (1) of the Criminal
Procedure Act 1972.
REVISION NOTES 1997
The Crimes Ordinance 1961 appearing in this reprint
comprised that Ordinance as it appears in the 1977 reprint but with the repeal
of section 58P as contained
in the Gaming Act 1978.
REVISION NOTES 2008
This law has been generally edited as provided for by
section 5 of the Revision and Publication of Laws Act 2008. The following
general
revisions have been made –
(a) References to Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.
(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.
(c) All references to the male gender have been made gender neutral.
(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.
(e) Amendments have been made to up-date references to offices, officers and statutes.
(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.
The following
amendments have been made to specific sections of the Act to incorporate
amendments made by Act of Parliament passed
since the publication of the Samoa
Statutes Reprint 1978-1996 –
|
Section 3(2)
|
Repealed and replaced by subsections (2) and (3) in
accordance with the Crimes (Extra-Territorial Jurisdiction) Amendment Act 2003.
|
|
Sections 4, 5 and
6
|
Repealed by the Crimes (Extra-Territorial Jurisdiction)
Amendment Act 2003.
|
|
Section 28
|
Deleted the words "is liable upon conviction thereof to
suffer death" and replaced them with "shall upon conviction be imprisoned
for
life" in accordance with the Crimes (Abolition of Death Penalty) Amendment Act
2004.
|
|
Section 66
|
Deleted the words "thereof be sentenced to death" and
replaced them with " be imprisoned for life" in accordance with the Crimes
(Abolition of Death Penalty) Amendment Act 2004.
|
Revised and consolidated
by Graham Bruce Powell
Under the
supervision of Teleiai Lalotoa Sinaalamaimaleula
Mulitalo
(Parliamentary Counsel)
REVISION NOTES 2008 No. 2
Section 4 (general
powers of the Attorney General) of the
Revision andPublication of Laws Act 2008
is used to insert the commencement date.
|
Sections 11& 12
|
Repealed by section 25 of the
Young Offenders Act 2007
|
Revised and consolidated by
the Legislative Drafting Division under the supervision
of
Teleiai Lalotoa Sinaalamaimaleula
Mulitalo (Parliamentary Counsel)
The
Crimes Ordinance 1961 is
administered
in the Ministry of
Justice and Courts Administration.
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