IN THE DISTRICT COURT OF SAMOA
Police v Wilson [2017] WSDC 27

Case name: 	Police v Wilson	
		
Citation: 	[2017] WSSC	
		
Decision date: 	11 September 2017	
		
Parties: 	POLICE (Informant) and TAGALOA EDDIE WILSON, male of Moataa (Defendant)	
		
Hearing date(s): 	31 July 2017	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Alalatoa Rosella VianePapalii	
		
On appeal from:		
		
Order:	I find that there is no case to answer in respect of the charge of contempt of court.
Even if there is a prima facie case, I am also not satisfied that on the evidence the Prosecution has proven beyond reasonable doubt the offence alleged. 
The charge is accordingly dismissed.	
		
Representation: 	Ms L Sio for Prosecution
Ms H Wallwork for Defendant	
		
Catchwords: 	Contempt of Court – Principles
Distinction between civil and criminal contempt
No case to answer
Amendment to charge 	
		
Words and phrases:		
		
Legislation cited:	Act Interpretations Act 2015 s.2
Crimes Act 2013 s.222
Criminal Procedure Act 2016 s.55 
Evidence Act 2015 ss.122 (1)(b); (2) 
Land and Titles Court Act 1981 ss. 74; 75 (1) (a) 	
		
Sources cited:	AG v Kolio [2008] WSCA 7  
AG v Taioalo [2010] WSCA 
AG v Tavui [2014] WSCA 3 
Attorney General v Leveller Magazine Ltd [1979] AC 440 
Attorney General v Times Newspaper Ltd [1974] AC 273
Auckland City Council v Jenkins [1981] 2 NZLR 363
Australasian Meat Industry Employees Union v Mudginherri Station Pty Ltd [1986] HCA 46;
Duff v Communicado Ltd [1996] 2 NZLR 89
Hargreaves v Smith [2012] NZHC 3316 
Mikitasov v Collins 11 August 2010 161 CLR 98
P v Ah Sui [1999] WSSC 37 para 24
P v Carruthers [2017] WSSC 70. 
P v Malu [2016] WSDC 34
P v Pouvi [2000] WSSC 43
P v Samau [2010 WSSC 106
P v Tevaga [2015] WSDC 10
P v Toamua [2015] WSSC 50
PA Thomas & Co v Mould [1968] 1 All ER 963
Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 45
R v Galbraith (1981) 73 Cr App R 124
RE Bramblevale Ltd [1970] Ch 128 
Re M:M v Home Office[1994]1 AC377
Siemer v Solicitor General [2013] NZSC 68 
Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 229,
Solicitor General v Broadcasting Corporation of NZ [1987] 2 NZLR 100
Solicitor General v Krieger [2014] NZHC 1712
Taylor Bros Ltd v Taylor Groups Ltd [1991] 1 NZLR 91
United Nurses of Alberta v Alberta  [1992] 1 SCR 901
Murphy P (chief ed) Blackstones Criminal Practice (1991: Blackstones Press Ltd, London)
Borrie & Lowe's Law of Contempt (1996: 3rd edn)  
Arlidge, Eady and Smith on Contempt (3rd Ed 2005)
DL Matheson, Cross on Evidence 7th Ed, (2001Butterworths)
New Zealand Law Reform Commission: Reforming the Law of Contempt of Court: A modern Statute ( May 2017, Wellington NZ /Report 140)
Maxton J, “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990)   

Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

TAGALOA EDDIE WILSON, male of Moataa
Defendant

Representation:	
Ms L Sio for Prosecution
Ms H Wallwork for Defendant
Hearing:	31 July 2017
Submission:	9 August 2017
Decision:	11 September 2017

DECISION
THE CHARGE
1. 	The Accused, Tagaloa Eddie Wilson (“Tagaloa”) faces one count alleging that at Moataa between 28 May 2016 to 27 March 2017, he, by an unlawful act of disobeying the Lands and Titles Court Decision LC 1232 P2- P5 of 27 May 2017 (“the LTC Decision”) namely the order at 5.4 that “o le poloaiga le tumau o le aso 05/02/2016 ua faaleaogaina ae tumau pea “ona taofia le galuega vagana se ioega a sa’o o le aiga” did thereby committed the crime of contempt of court. 
2. 	The charge is brought pursuant to s75 (1)(a) Lands and Titles Court Act 1981 (“LTCA”). Tagaloa denied it and a not guilty plea was entered on 25/04/17. The matter was then adjourned to 31/07/17 for hearing. 
3. 	On this date, Prosecution sought an adjournment on the basis its key witness, the complainant, Tofaeono Iupati Fuatai (“Tofaeono Iupati”) resided overseas and unavailable to give evidence. When asked when he would be able to travel the response was arrangements had not been made yet and in the event he is unable to, then his evidence would be by video link. But again no arrangement had been secured to that effect. 
4. 	The Defence was ready to proceed and strongly objected to the application for an adjournment on the basis that justice delayed is justice denied and that Tagaloa was anxious for finality. Ms Wallwork referred to a letter by Tofaeono Iupati to the Court Registrar dated 27/05/17 which indicated he knew of the hearing date being 31/07/17 but did not make himself available for the hearing. 
5. 	I informed the Prosecution that the reason put forth was not convincing enough to grant an adjournment as arrangements should have been in place prior to trial. But it is trial time and this has not been done. If anything it seemed more to me that this case was not listed as a priority for Prosecution’s activities of the day. In the meantime, the defendant Tagaloa has this charge hover over his head. The maxim justice delayed is justice denied speaks for itself.
6. 	I ruled that the matter will proceed to trial as scheduled. But if required then it could be part heard; depending on Prosecution’s assessment of its case at the end of its evidence as to whether it still require Tofaeono Fuatai’s evidence. 
7. 	At the conclusion of the trial on 31/07/17, I then adjourned the matter to the next day, 1/08/17 for Prosecution to advise if it would be calling Tofaeono Iupati. On that day, Prosecution informed that Tofaeono Iupati’s evidence was not required and closed its case. 
8. 	Ms Wallwork then indicated the defence intended to make submission of a no case to answer. I then adjourned the matter to 9/09/17 for that purpose. Prosecution filed submissions but Ms Wallwork presented theirs orally. She also indicated the defence would not be calling any evidence and that they would be relying on the same no case arguments if I find there was a prima facie case.  
9. 	This is my reserved decision. 
LAW
Contempt of Court
10.	Section 222 (3) Crimes Act 2013 cited below preserves the statutory power of any Court to punish for contempt of court in any case not covered in the situations listed in subsections (1) and (2), none of which apply here.  
“222. Contempt of court 
…
(3) Nothing in this section limits or affects any power or authority of the court to punish any person for contempt of court in any case to which this section does not apply.”
11.	The power of this Court to commit for contempt of Court is incidental to its substantive statutory jurisdiction either by express power conferred by statute or implied. Here, it is conferred by statute. 
12.	Section 75 (1) (a) LTCA provides as follows: 
“75. Offences – (1) A person commits an offence and is liable upon conviction to a fine of 5 penalty units or imprisonment for 6 months who:
a)	Disobeys any decision or order of the Court.  
2) Proceedings for an offence under the Act are to be taken in the District Court” 
13.	In Police v Malu Judge Roma dealt with a similar charge brought pursuant to s75(1) (a) LTCA where he noted that proceedings brought under this provision are akin to contempt of court. The learned Judge adopted the elements of civil contempt of Court from the Supreme Court civil case of Polynesian Ltd v Samoa Observer Company Ltd as applicable in contempt proceedings brought under s75 (1) (a) LTCA. 
14.	The elements were identified as whether:
a)	The terms of the decision or order are clear and unambiguous;
b)	The accused had proper notice of it; 
c)	The accused disobeyed it.  
15.	I note neither counsel touched on the elements of the offence. But I intend to adopt here the same ingredients above noting that other judges of this Court also did the same. But for my part, it is crucial to recast our minds to the purpose of the law of contempt to better understand the rationale for applying the same test in Polynesian Limited. The importance of this was recognised by Pankhurst J in Solicitor General v Krieger.
Principles of Contempt of Court 
16.	Much has been said already about the purpose and rationale for contempt of court. The rule of law in Samoa, involves honouring court orders to uphold and protect the administration of justice. With the increase in the number of contempt cases in this Court, it makes it fitting that we be reminded of the principles of contempt of Court. 
17.	The rationale for contempt of Court is as observed by the learned CJ Sapolu in Polynesian Ltd v Samoa Observer Company Ltd where he quoted with approval the following passage from Borrie & Lowe's Law of Contempt: 
	“The rationale of both criminal and civil contempt is therefore essentially the same: upholding the effective administration of justice. If a Court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute”.
18.	The learned Eichelbaum CJ and Greig J described it in Solicitor-General v Radio Avon Ltdas follows:
“... the objective of the law of contempt is not to shield the judiciary or the judicial system from criticism. Least of all is it a matter of protecting the decision of the Judge or the jury in an individual case from appropriate comment. It is justice itself that is flouted by contempt of Court, not the individual Court or Judge attempting to administer it …”
19.	The above principle is also mirrored in the leading NZ case of Siemer v Solicitor General where the learned McGrath J succinctly stated that:
“The law of contempt does not of course exist to protect the dignity of judges but to protect the public interest in the due administration of justice by an impartial court.”
“...No one can question the extreme public importance of preserving an efficient and impartial system of justice in today’s society which appears to be subject to growing dangers of direct action in its various forms. It is to that end, and that end alone, that the law of contempt exists”
20.	Similarly, MacKenzie J in Hargreaves v Smith emphasised that: 
“The purpose of the law of contempt is to preserve the efficient and impartial system of justice and public confidence by dealing with challenges to the fundamental supremacy of the law. It is a process to be used only out of public necessity and must be exercised with the scrupulous care and only when the case is clear and beyond a reasonable doubt” 
Civil and Criminal Contempt 
21.	Contempt of Court is originally a common law offence. Historically it was classified as either criminal or civil. McLachlin J in the Canadian Supreme Court matter of United Nurses of Alberta v Alberta explained the distinction as follows:
“A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.”
22.	According to Arlidge, Eady and Smith in their book Contempt: 
“…A criminal contempt is an act which so threatens the administration of justice that it requires punishment from the public’s point of view; whereas, by contrast, a civil contempt involves disobedience of a court order or undertaking by a person involved in litigation.”
23.	Blackstones Criminal Practice describes criminal contempt as a broadly based offence which can take a number of different forms. At common law it is defined as behaviour “involving an interference with the due administration of justice either in a particular case or more generally as a continuing process” 
24.	Furthermore:  
“Broadly based though it is, criminal contempt can nevertheless be categorised according to whether it is committed in the face of the court or committed indirectly (i.e a constructive contempt such as the publication of a book or article prejudicing a forthcoming trial in a way which may influence potential jurors or witnesses)…criminal contempt has traditionally been distinguished from civil contempt which takes the form of non compliance with a court order (or an undertaking in lieu of an order) favouring another party). 
25.	The same description is mirrored in a number of cases including Hargreaves where the NZ High Court said:
“The first is criminal contempt, which consists of words or acts obstructing or tending to obstruct or interfere with the administration of justice. The second is civil contempt which consists of disobedience to the judgments, orders or other processes of the Court”.
26.	Then in Krieger the Court describes it in a similar vein:
“Historically, contempt of Court was classified as either criminal or civil in nature. The distinction drawn was that criminal contempt concerned acts which so threatened the administration of justice as to require punishment in the public interest; whereas civil contempt involved disobedience of Court orders where intervention by the Court was remedial–for the benefit of the party in whose favour the order was made.”
27.	According to Blackstones, another distinction is that in civil contempt, it is usually up to the opposing party to instigate proceedings and he or she generally retains the right to waive the contempt. Whereas in contrast, cases of criminal contempt are generally prosecuted by the Attorney General or by the court, acting on its own motion.
Is there still a Distinction? 
28.	But does the distinction still survive today? Blackstone observes that the distinction has always been problematic. The leading NZ case of Siemer noted that there is no real distinction between the two contempts. I agree.
29.	The NZ Law Reform Commission (“NZLRC”) carried out a review on the law of contempt and recently released its report in May 2017 (“the Report”). The Report recognises that contempt of court is found in a mix of common law and statutory provisions. This is the same as Samoa. I would encourage whoever wants to be enlightened on this topic to read the Report which provides an excellent summary of the different types of contempt. 
30.	The NZLRC in the report recognised the same distinction discussed above. It stated that:
“…Under the traditional dichotomy, the law conceptualises criminal contempt as punitive and concerned with punishing actions or words that obstruct or interfere with the public interest in the administration of justice. Meanwhile it views civil contempt as primarily remedial or coercive in nature because it is concerned with compelling compliance with the court’sorder through the threat of punitive sanctions
[However]… the traditional distinction overlooks the underlying rationale behind every exercise of the contempt power, namely that of upholding and protecting the administration of justice. Even if civil contempt is coercive, it is also punitive and shares the attributes normally associated with criminal contempt. It is only because the disobedience of the Court’s orders interferes with the fair administration of justice that it is contempt and punishable by imprisonment in the same way as criminal contempt.”
31.	The Report concluded that there is no longer any real dichotomy between the two contempts. This view is also echoed in cases such as Krieger, where Panckhurst J refers to the distinction as ‘illusory’ and stated as follows:
[T]he validity of this distinction has been doubted in many jurisdictions. A true dichotomy does not exist. Civil contempt, in common with criminal contempt, is similarly focused upon the due administration of justice. The remedial punishment for a civil contempt will benefit a litigant, but the Court intervenes in direct response to the disobedience of its order. Hence, civil contempt vindicates both the right of the successful litigant and equally the authority of the Court. As Salmon LJ put it, the two objects are inextricably intermixed.”
Same test? 
32.	For Samoa, there are only a few reported contempt of court cases. The fact that other jurisdictions recognises there is no longer any real dichotomy given the same principles apply whether it be a civil or criminal contempt renders support to the reasoning that the elements for civil contempt for disobeying a court order equally applies to criminal contempt. The law in NZ has moved with changing times. So should we.   
33.	For the instant case, Police as informant brought the charge on behalf of the complainant on instructions of the Court Registrar. The Attorney General prosecutes. In that sense then the proceedings is criminal in nature. 

34.	Section 75 LTCA anticipates the commission of an offence. It is essentially punitive as it seeks to punish the contemnor if the charge is proven for disobedience of any order or decision of the LTC and therefore the administration of justice.  
35.	On a strict application of the traditional classification of the two types of contempt, disobedience of a Court order is classified as a civil contempt. As seen above, a dominant feature of civil contempt is to punish the contemnor for disobedience of a Court order. So for the instant case it is in every other respect, a civil contempt. I bear in mind that the contempt of Court jurisdiction as summarized above exists in the public interest to uphold and protect the administration of justice not just to require compliance with an instrument of state coercion.
36.	Civil contempt proceedings for disobedience of a court order are deemed as quasi criminal. Some of the common features shared with criminal contempt are: 
a)	The onus of proof rests with the Prosecution / Plaintiff;
b)	The contempt must be proven to the criminal standard which is beyond a reasonable doubt;
c)	The penalty is the same; 
d)	It is unnecessary to prove an intention to interfere with the administration of justice.
37.	As seen from the above analysis, there is good sense in saying that the elements of a civil contempt for disobeying a court order similarly applies to a criminal charge of the nature as here. Also bearing in mind the matter originated in the LTC involving private parties.

38.	Given the recognition by the NZ Supreme Court and recently the NZLRC that there is no longer any real dichotomy between civil and criminal in existence today, it makes sense for us to follow suit.     
No case to Answer
39.	On an application of a no case to answer, the applicable law is settled here in Samoa.  Briefly, it derives from the English Court of Appeal case of R v Galbraith echoed in Auckland City Council v Jenkins and adopted in a number of our own cases. These included our Court of Appeal decisions of AG v Kolio, AG v Taioalo, AG v Tavui; Supreme Court cases to name a few such as P v Ah Sui, P v Pouvi,P v Samau, P v Toamua, and P v Carruthers and District Court cases such as  Police v Tevaga. 
40.	In R v Galbraith (1981) 73 Cr App R 124, p. 127 Lord Lane CJ said:
“How then should a Judge approach a submission of no case?
(1) If there is no evidence that the crime alleged has been committed by the accused, there is no difficulty. The Judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence.
(3) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case.
(4) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the accused is guilty, then the Judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge”	
41.	In Toamua, the learned CJ Sapolu dealt with a judge alone application of a no case to answer. He said:
“As this is a Judge alone trial, I would refer to Police v Sione [2001] WSSC 8 where this Court cited Auckland City Council v Jenkins [1981] 2 NZLR 363 which was concerned with committal proceedings in New Zealand before a Judge alone and a submission of  no case to answer. Speight J in that case stated at p.365:
“A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is ‘prima facie’ – a well understood phrase”.
42.	I will adopt CJ Sapolu’s approach in Toamua which I note Justice Tuala - Warren also followed in Carruthers. This is a judge alone trial and the question I must answer is, whether there is prima facie evidence with respect to each element of the offence charged which if accepted, would prove that element?
43.	If I find there is a case to answer, then the next question is whether Prosecution has proven beyond a reasonable doubt, the Defendant Tagaloa disobeyed the LTC order as alleged?
EVIDENCE
Preliminary Issue
44.	A preliminary issue arose regarding the admissibility of the LTC Decision and LT Court of Appeal Decision (“The Appeal Decision”) of 10 February 2017. Defence Counsel sought to have both decisions tendered by consent. Prosecution however informed it would only be relying on the LTC decision but not the Appeal which it deemed irrelevant to its case. 
45.	I must say I was quite concerned with the stance Prosecution took especially the insistence on the appeal decision being irrelevant to its case. Whilst I appreciate Prosecution has a discretion on how to proceed with its case, I must still remind Counsel about the overall interest of justice. I must also remind of the paramount duty of any counsel to the Court to place before it all relevant information whether favourable to their case or not, to assist the Court come to a fair decision on the matter at hand.  
46.	I ruled that the LTC decision could be tendered by consent which became exhibit P1. In regards to the Appeal decision I decided to take judicial notice of it as I am entitled to pursuant to s122 (1) (b) and (2) Evidence Act 2015.
47.	At the close of Prosecution’s case, no move was made to amend the charge to reflect the correct year of the LTC decision on the information which should be 2016, not 2017. I have accordingly amended the information to reflect this. I do so pursuant to s55 Criminal Procedure Act 2016; there being no prejudice to the defence; after all that judgment was tendered by consent and the date is uncontested.  
Undisputed facts
48.	No agreed set of facts was produced. It would have helped if one was done and I would encourage this in criminal contempt proceedings.  In any event, I have identified the undisputed facts as follows:
a)	Tagaloa is part of the Tautaituatasi (“Tautaituatasi”) family and for a number of years, they occupied part of Lelano land at Moataa under the ownership of the title Tofaeono (“The Land”). 
b)	A petition was brought inter alia to evict Tautaituatasi and his family which was successful and the decision for that matter was recorded as LC 5948 P1 & P2 dated 4/02/1986. 
c)	Following that decision, an agreement was reached between Tofaeono Tile (Sa’o of the family then) and other matai of his family to allow Tautaituatasi’s family to remain in occupation of part of the land. This agreement is dated 10/06/1986.  
d)	Tagaloa and his family still occupy part of the land to date. 
e)	A building known as the Wilex building was erected on the land but was burnt down. There was also a leasehold to Wilex Company but this was terminated as conveyed by MNRE in a letter dated 11/01/16 (“The Lease”). 
f)	Reconstruction on the building was carried out sometime in 2015 with the consent of both Tofaeono’s as sa’o of the family. 
g)	However, an interim injunction was later issued on 15/02/16 effectively ceasing the reconstruction of the Wilex building.
h)	A petition in the LTC was brought by Tofaeono Iupati Fuatai (“Tofaeono Iupati”), Filifilia Tamasese and others to terminate the lease and evict Tagaloa and his family from the land. Tagaloa and his family were the first defendants and Tofaeono Vui Leavasa (“Tofaeono Vui”) and his family, second defendants.  
i)	The matter went to hearing on 27 and 28/04/16 and the LTC decision was delivered on 27/05/16. The orders are recorded as follows:
“E tumau pea le mamalu o faaiuga a le Faamasinoga e fesootai ma lenei mataupu pei ona aofia i suesuega.  
5.1	E faamaonia le faamutaina o le Lisi i luga o se vaega o le fanua o Lelano i Moataa, pei ona iai le tusi aso 11 Ianuari 2016 a le Minisita o Faamoetauloa Dr Faale Tumaalii (MNRE).
5.2.	Ua faamaonia le tumau pea ona nofoia e le itu Tetee 1 o se vaega o le fanua o Lelano i Moataa. 	
5.3.	Ua faamaonia le sainigalima pei ona iai i le aso 10/6/1986.
5.4.	O le Poloaiga le Tumau aso 5/2/2016 ua faaleaogaina ae tumau pea ona taofia le galuega vagana se ioega a sa’o o le aiga.
5.5.	Ua poloaina nei i laua o tausia le aiga, Tofaeono Vui Faatali ma Tofaeono Iupati Fuata’i ia feiloai ma toe faalelei vaega o eseese ai finagalo, aua le lumanai manuia o le aiga sa Tofaeono. 
5.6.	O tupe ua faaulu ai talosaga ua avea ma totogi o le Faamasinoga.”
49.	It is the order in 5.4 which forms the basis of the contempt charge in the instant matter. 
50.	The Petitioners in the LTC matter had appealed the orders in 5.2 and 5.3 but leave was not granted. 
Prosecution Evidence
51.	The Prosecution called Tofaeono Vui and four Police witnesses. Defence did not call any evidence. 
Tofaeono Vui
52.	The essence of Tofaeono Vui’s evidence is this. In his view, the gist of the LTC proceedings was the lease. He decided to join as a party to support Tagaloa and his side as they are part of his extended family.  
53.	In terms of the order in 5.1 relating to the termination by the Minister of MNRE of the lease, he said he attended a meeting with Tofaeono Iupati and Tagaloa where it was agreed that the lease could be renewed but there would be an increase on the rental payment. At the same meeting, it was agreed that Wilex could proceed with renovating its damaged building.
54.	However, according to Tofaeono Vui, Tofaeono Iupati later changed his mind as there was pressure from his family. In regards to the lease, he insisted it could be done but only if he and Tofaeono Fuatai both consent. The primary concern was always the lease payment. He consistently said that if Tagaloa was carrying out renovations then he had no problems with this. 
55.	For the orders in 5.2 and 5.3, he confirmed the occupation by Tagaloa and his family of part of the land since 1914 and specifically the area where the Wilex building is located. He confirmed that sometime in 1986, there was an LTC order to evict Tautaituasivi and his family. However, by consent Tofaeono Tineia and other matai agreed in 1986 for them to remain in occupation. He understood this to be the gist of the order in 5.3. 
56.	During cross examination, he conceded that 5.2 meant that Tagaloa and his family could still occupy the land. He interpreted this to mean they could renovate or rebuild. But if the renovation is for a business, then the two Tofaeono’s must be contacted for further discussion as it would concern the lease. 
57.	He clarified what he meant by renovation as follows:
“O le tulaga moni lava i lo’u mafaufau, afai ae o latou e toe faalelei aua a silasila lau afioga i le fale na faaleagaina i le afi, ia ua faapena la ona taatia ai faapea. Ona ou manatu lea o au, afai ae toe mananao latou e toe fai le fale i luga o le mea e nonofo ai le aiga, ia oute ioe a au ia, ae o le upu faapea e toe faia seisi lisi, e le mafai na toe fai se lisi leaga ua uma na aumai le faaiuga o le faamasinoga e soloia le lisi…”
58.	For 5.4, he said he never saw an interim injunction and unsure about its contents but he learnt it was to stop the construction of the Wilex building. According to Tofaeono Vui, he did not actually see Tagaloa carry out a “galuega” but if one was done then he guessed it could be the Wilex building that was burnt down which required renovation. .   
59.	In regards to the LTC application for leave to appeal, he said Tofaeono Iupati and Filifilia Tamasese had argued that the reason Tagaloa and his family occupied the land was because of the lease, but given it was terminated Tagaloa’s family no longer had any occupational rights to the land. According to Tofaeono Vui, he refuted the above argument as in his view, Tautaituatasi’s family have occupied the land for more than a 100 years and it was not because of the lease. He reiterated that only two orders were challenged in the LTC appeal, namely 5.2 and 5.3 and leave to appeal was refused. 
Police Witnesses 
60.	Police called four Police witnesses namely, Corporal Viane Lauofo, Corporal Vaipanoa Malaga, Constable Neemia Auvaa, Constable John Lemisio. Their evidence is similar in that on 23/03/17, they were instructed to investigate if any construction works was carried out on the building (Wilex) at Moataa. They took with them a copy of the LTC decision. 
61.	Constable John Lemisio was the investigating officer. Upon arrival they observed various works being carried out including, glass doors being installed, timber cutting, painting and tile laying. Photos were taken confirming this tendered as exhibit P2. They did not see Tagaloa there but his son.
Prosecution’s Case
62.	Prosecution argue at paragraph 11 of their submission that the order in 5.2 LTC decision only allows Tautaituasivi’s family including Tagaloa, to remain on the land as a response by the Court to the request to remove them from the land. 
63.	But the order in 5.4 they argue is clear “…e tumau pea ona taofia le galuega” and the only galuega under construction is the Wilex building. 
64.	Prosecution further contend there has not been any consent by both Tofaeono as sa’o of the family to continue the galuega. But Police witnesses and photos depicted that construction works continued. This they argue tantamount to disobedience of the order by Tagaloa  in 5.4 and therefore contempt of Court. 
Defence case
65.	The gist of the Defence’s argument is, none of the witnesses physically identified Tagaloa on the site actually carrying out the work. Police witnesses saw there was construction work being carried out but none said Tagaloa was there on 23/03/17. 
66.	Defence further argued that even if work was carried out, under the order in 5.2 Tagaloa and his family were allowed to continue to occupy. On this basis, there was no case to answer. But even if the Court holds there was a case to answer, Prosecution had not proven its case beyond the required standard. 
Discussion
Elements  
67.	As noted in paragraph 14 above, put simply, to sustain a charge for contempt of court arising from s75 (1) (a) LTCA to do with disobedience of an LTC decision or order, Prosecution must prove to the criminal standard three elements:
i)	Firstly, that the terms of the order or decision was clear and unambiguous;
ii)	Secondly, that the Accused, Tagaloa had proper notice of it; and 
iii)	Thirdly, he willfully disobeyed it.
68.	Essentially this matter boils down to the issue of whether all elements of the offence have been proven to the required standard. I analyse this next. 
69.	I must firstly note at this stage that the second element of whether Tagaloa had notice of the order or decision is a non issue as he was a party to the LTC proceedings. So he had notice.
Were the terms of the decision clear and unambiguous?
70.	In Polynesian Limited CJ Sapolu referred to the case of Liberian Trust Ltd v Founders Trust Investment Co where it was said that “if the Court is to punish anyone for not carrying out its order, the order must in unambiguous terms direct what is to be done”.
71.	The learned CJ Sapolu also referred to the English case of PA Thomas & Co v Mould where O’Connor H said that “where parties seek to invoke the power of the Court to commit people to prison and deprive them of their liberty, there has to be quite clear certainty about it”.
72.	I agree with the above principles which in my view equally apply here. Prosecution has brought this charge of contempt of an LTC court order. It is crucial that the terms of the order be clear and certain.
73.	I must say however, I am far from satisfied that the order was clear and unambiguous. The charge is about wilful disobedience with the order in 5.4 LTC decision namely, “O le poloaiga le tumau aso 5/2/2016 ua faaleaogaina, ae tumau pea ona taofia le galuega vagana se ioega a sa’o o le aiga.”
74.	I find that the order in 5.4 is ambiguous or unclear raising a number of questions in my mind. Firstly the order says the interim injunction prohibiting the construction of the building is revoked. Then it proceeded to say “ae tumau pea ona taofia le galuega vagana se ioega o sa’o o le aiga”. But the question I have is was not that the whole purpose of the injunction is to stop the construction of the building? So it allows Tagaloa and his family to remain on the land, revoke the injunction but they cannot build without the consent of the two Tofaeono’s? I had asked prosecution to furnish a copy of the interim injunction. This was not done. But I can infer from the LTC decision the subject of the injunction was to cease the construction of the Wilex building.
75.	But what galuega is it referring to? Is it the Wilex building which is subject to the demised lease or any other? Prosecution say it is the Wilex building as it is the only project under construction as examined in the LTC.  From the evidence of Tofaeono the word galuega in 5.4 suggests it refers to the Wilex building. 
76.	Furthermore, a close analysis of the orders in 5.2 and 5.3 allows the continuous occupation of the land by Tagaloa and his family. This appears to be the dominant theme of those two orders. However, this does not reconcile with the second limb of 5.4 ceasing the construction of the building. In fact it is contradictory and there lies another ambiguity. 
77.	The further question I have is does the second limb of 5.4 forbidding the construction without the consent of the two sa’o take priority over the orders in 5.2 and, 5.3? I ask this because Prosecution seem to think it does as seen in their bringing this contempt charge. 
78.	In my view it does not. The order in 5.4 does not supersede or take precedence over those in 5.2 and 5.3. It cannot be read in isolation but in its full context. They all rank the same. So the order or decision in 5.4 is also ambiguous in that sense.  
79.	 If anything, the language of the orders in 5.2, 5.3 and 5.4 is susceptible of more than one reasonable interpretation. In other words it is open to interpretation. Why else would the Petitioners appeal only the orders in 5.2 and 5.3 but not 5.4?  
80.	In my view, the word “occupy” in 5.2 and 5.3 must be given its ordinary meaning. It is defined in s2 Act Interpretations Act 2015 as including:
“…use, inhabit, be in possession of or enjoy the land or premises to which the word relates, otherwise than as a mere employee or for the mere purpose of the care, custody or control of the land or premises”
81.	Under the orders in 5.2 and 5.3 and adopting the above definition, Tagaloa and his family can occupy the land including using it, inhabiting it, taking possession of it and enjoying it. Tagaloa and his family are entitled to interpret this as meaning they can construct or renovate the building as part of their occupational rights. 
82.	In my view the ambiguities implicit in the LTC decision cannot be cured and this must go to the benefit and favour of Tagaloa. I reiterate that it is not the job of this court to correct the validity or ambiguities of the LTC order or decision. My job is to determine whether there is contempt of Court as alleged. 
83.	As stated above, if the Prosecution is to bring a contempt charge, the terms of the order or decision must be clear. Here, the orders are contradictory and irreconcilable.     
84.	With respect, I have had to go through the onerous task of making some sense of the LTC orders given the absence of clear and specific terms. But I see these issues as crucial in determining the ultimate question of whether Tagaloa did commit the unlawful act alleged.
85.	Tagaloa as a defendant risks losing his right to liberty given the custodial penalty for this offence. As I said above, if an allegation of disobedience is to be brought it must be clear and unequivocal. Here, the orders in 5.2, 5.3 and 5.4 read in their full context are open to other interpretation and therefore ambiguous and unclear. 
Did Tagaloa wilfully disobey the order?   
86.	In regards to the issue of whether Tagaloa wilfully disobeyed the order in 5.4, I am not satisfied on the evidence this has been met. 
87.	Defence argued, there is no evidence at all identifying Tagaloa carrying out the actus reus of disobeying. They contend none of the Police witnesses who attended the land on 23/03/17 pinpointed Tagaloa at the site. 
88.	There is weight in the argument. Proof of contempt through disobedience of court orders requires proof of the alleged contemnor having wilfully done the relevant act.
89.	Yes the evidence says there were workers but whose workers were they? Should I take it that these workers were connected to Tagaloa as his agents and if so are they parties to the offence? If so, where is the evidence? It would have assisted if the workers were interviewed and called to give evidence to confirm this. 
90.	Yes Police might have spoken to a person identified as Tagaloa’s son but so what? Why was the son not called? Tagaloa at the end of the day is personally charged with this offence. Wilex Company is not charged.
91.	I agree with the defence that for Tagaloa to be liable for disobedience of the court order here, he must be identified as the person who carried out the actus reus of disobeying as alleged. Prosecution invited me to draw inferences from the circumstances of the LTC case and evidence in that Court to pinpoint Tagaloa as the culprit. 
92.	With respect, this is a dangerous proposition especially since the evidence adduced in the LTC has not been tested in this Court to determine its reliability. It sounded more to me like a quick fix. But with all due respect, this is not a quick fix Court. This man stands to lose his freedom of liberty from this charge.    
93.	Furthermore, the charge arose from an incident alleged to have been committed by Tagaloa on 23/03/17. The LTC decision and facts pertinent to it was determined on 27 & 28 April 2016. The allegation here arose post decision. Probative and contemporaneous evidence is a valid concern.     
94.	I must remind the Prosecution that in discharging the onus of proof in contempt proceedings, they must still adduce sufficient evidence to prove its case to the required standard. It cannot just rely on the LTC decision to hammer home its case. A contempt charge goes to the integrity of the Court and administration of justice which makes it even more prudent that sufficient evidence be called to support such a charge. 
95.	But I must say, even if I endorse the facts in the LTC decision and references there to Wilex, it still does not clear the doubts I have. If Tagaloa’s connection is to Wilex Company, then evidence should have been adduced of the valid registration of this company and Tagaloa’s personal involvement (if any) in that company either as a shareholder or managing director. A certificate of incorporation from MCIL is one example of such evidence. 
96.	It is common knowledge the Wilex building was burnt down; this is confirmed in the evidence. I accept the building was renovated or reconstructed on the belief that both Tofaeono’s consented to it back in 2015. The meeting Tofaeono Vui mentioned he attended with Tofaeono Iupati and Tagaloa was to discuss the increase in the lease payment and reconstruction of this building. 
97.	I discern from Tofaeono Vui’s evidence the renovation was with the understanding that the Wilex lease would continue.  The only sticky issue was the lease payment.  But Tofaeono Iupati later reneged on his word when he changed his mind. Soon after the injunction was issued ordering that the construction of the building be ceased followed by the termination of the lease.
98.	According to Tofaeono Vui, who was a party to the LTC proceeding, the galuega referred to in 5.4 related to the leased Wilex building. Be that as it may, the fact of the matter is by the time of the LTC hearing on 27 & 28 /04/2016, the lease was already terminated by letter from MNRE dated 16/01/16. The LTC decision endorsed that termination as reflected in the order in 5.1. 
99.	Whether the termination of the lease was done unilaterally or with notice to Tagaloa in consultation with Tofaeono Vui and other custodial beneficiaries of the land as is customary, I do not know. But what I do know, is coincidentally, it was done contemporaneously to the date of the LTC hearing. 
100.	It is obvious that the ultimate objective and reasons behind the Petition in the LTC brought by Tofaeono Iupati and Filifilia Tamasese as noted in paragraph 6 of the LTC decision was:
“O le amataga o lenei finauga ona o le Lisi a le Wilex, ua eseese ai finagalo faaalia o suafa sa’o o le aiga Sa Tofaeono, ae faaopoopo iai ma le faatulaieseina o le itu Tetee 1 poo le aiga o Tautaituatasi.” 
101.	According to Tofaeono Vui, the argument advanced in the LTC by the Petitioners was, as the lease was terminated, Tagaloa and his family therefore no longer had any possessory rights to occupy the land and should be evicted. 
102.	The point is, if I accept that the word galuega in 5.4 referred to the Wilex leased premises then technically speaking, this also fails as that lease was terminated as per the MNRE letter and endorsement by the LTC in its order at 5.1. 
103.	Again this raises more doubts in my mind. If Tagaloa played a role in Wilex Company which no longer had a valid lease to occupy the land, then I find it difficult to accept that he wilfully continued the reconstruction of the galuega knowing the lease to Wilex had been terminated. 
104.	For all I know, Wilex probably does not have any further interests in the construction of the building depicted in the photos in P2 and relayed by Police witnesses This is especially so given there is no valid lease. 
105.	Also I note there were nine other members of Tagaloa’s family he sided with during the LTC proceedings. Maybe someone else in his family has taken over and leased it to a Chinese or someone else. Who knows? I cannot turn my mind against these possibilities given the unsatisfactory and insufficient status of the evidence.  
106.	In any event, with the termination of the Wilex lease, by operation of the orders in 5.2 and 5.3 Tagaloa and his family could still continue to occupy the land. So even if I am mistaken about the above, that he could not be identified as disobeying the order, Tagaloa would still be able to construct the building under 5.2 and 5.3. This is hardly a flagrant disregard of a Court order rather it is more in accordance with it. 
107.	Enjoyment of the space Tagaloa and his family occupy in my view may include constructing a premises they could utilise or even for cultivating crops. After all this is customary land and these are some of the basic customs and norms appurtenant to its usage. Occupation connotes a physical element. It does not mean you are given the right to occupy and you live in the air. It is pure common sense. 
108.	Tofaeono Vui did not see anything wrong with renovating the building. The only common concern was that the Wilex lease could not be renewed without the consent of both Tofaeonos. After the LTC appeal matter Tofaeono Vui attempted to continue dialogue with Tofaeono Fuatai about this but the latter deferred discussions. 
109.	When asked by Ms Wallwork if he considers it appropriate if the building was renovated for the family to reside in he replied, “e talafeaga ia au pe a faapea, aua e leai se aiga e tuuai pea faapela e o’oi le faavavau se latou fale le la e tilotilo ifo tagata i le tulaga la e iai.”
110.	But as I said above, regarding this charge alone, the decision does not say 5.4 takes priority. For me to draw such a finding that it is sufficient to meet the purposes of the charge or even a finding of guilt is in my view not in the interest of justice at all. 
111.	On the evidence whether taken at its highest or the criminal test of beyond a reasonable doubt, I am not satisfied that the terms of the decision was sufficiently clear and unambiguous nor am I satisfied that Tagaloa wilfully disobeyed the order to support a charge of contempt of court.  
CONCLUSION
112.	Applying the law, I find that there is no case to answer in respect of the charge of contempt of court.  
113.	However, if I am mistaken in arriving at this conclusion, defence counsel had indicated at the commencement of her no case to answer submission that the defence will not be calling evidence.  
114.	I am therefore also not satisfied on the evidence that prosecution has proven beyond a reasonable doubt each element of the offence. . 
115.	I find the defendant Tagaloa not guilty of this offence and the charge is accordingly dismissed. 
Observation
116.	It must be borne in mind that the LTC does not have any enforcement proceedings and too often parties resort to contempt of court proceedings where there is allegations of non - compliance. 
117.	There is a procedure under s74 LTCA for enforcement of LTC decisions in the Supreme Court or this Court by sealing for those who might wish to entertain it.  
JUDGE ALALATOA ROSELLA VIANE PAPALII