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Police v Fasio [2017] WSDC 9 (28 July 2017)

IN THE DISTRICT COURT OF SAMOA
Police v Fasio [2017] WSDC 9

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

TAEI FASIO male of Vaiusu
Defendant

Counsel:
Ms I Atoa for Prosecution
Defendant for himself

Hearing: 08 June 2017
Judgment: 28 July 2017

RESERVED DECISION

THE CHARGE

1. The accused, Taei Fasio (“Taei”) faces one information alleging that on 3 February 2017, he intentionally damaged properties belonging to Peato Ulugia of Vaiusu. These were 50 taro plants valued at $15.00 each; five (5) banana plants each valued at $10.00; ten (10) lauvai plants valued at $1.00 each and four (4) sugar cane plants each valued at $20.00; a grand total of $900.
2. The charge is brought pursuant to s.184 (2)(a) Crimes Act 2013 (“CA”). Taei denied it and the matter proceeded to trial on 8 June 2017. The Court then reserved its decision. This is its full reasons.

LAW

3. Section 184 (2) (a) provides that “a person is liable to imprisonment for a term not exceeding 7 years who...intentionally damages any property...”
4. As observed by Justice M Tuatagaloa in the Supreme Court case of P v Kini^[1] our above provision on offences of this nature mirrors that of s.269 NZ Crimes Act 1961.
5. The elements of the offence of intentional damage under s.184(2)(a) that the Prosecution must prove beyond a reasonable doubt are that:^[2]
   1. Firstly, whether Taei destroyed or damaged any property belonging to Peato;
   2. Secondly, whether he did so intentionally or recklessly.
6. As to ‘property’, this is defined in s.2 Crimes Act 2013 as “real or personal property and any estate or interest in any real and personal property, money electricity and debt and anything in action and any other right or interest.”
7. Regarding what constitutes ‘intention and reckless,’ legal authorities are abound on its interpretation. But put simply as Justice Tuatagaloa observed in P v Malaki^[3]:

“Intention is the accused’s actual state of mind. Reckless means that the accused appreciated the substantial risk of damage but carried on regardless. It is accepted that the test for ‘reckless’ in intentional damage cases is subjective.”

UNDISPUTED FACTS

8. It is undisputed that:
   1. Taei and the complainant are part of the Seiuli Tauaumaga extended family and they all reside on the same customary land which is about 1 acre belonging to the title Seiuli. The sa’o of Taei’s family is Feaunati. On the same land is the village cemetery (“the cemetery”);
   2. Taei’s family used to grow their crops on the strip of land adjacent the complainant’s house (“the strip of land”) and just outside the perimeter of the cemetery;
   100. But after a Lands & Titles Court judgment in 2016 (“2016 LTCJ”), Taei’s family was ordered to remove their crops from the strip of land. The complainant removed these not Taei’s family. Some of the crops had since re-grown by 3/02/17;
   4. At the time of the incident, the complainant had a small patch of crops including taro, bananas, taamu and sugar canes on the strip of land directly outside the perimeter of the cemetery adjacent the complainant’s house.
   5. An access road leading to Taei’s house runs in between the complainant’s house and the strip of land.
   6. There is a clear boundary marked by a stone fence between the cemetery and the strip of land where the complainant grew his crops;
   7. The complainant laid a complaint to the Vaiusu village fono (“The Fono”) about Taei’s family growing crops on the cemetery.
   8. The fono investigated and it resolved that Taei’s family must remove their crops from the cemetery within a certain time frame. The decree (to’oto’o) was delivered to Taei’s family (“The Decree”);
   9. On 3/02/17, Taei pursuant to the decree of the fono did clear the crops on the cemetery including those on the strip of land in b), c) & d) above;
   10. The crops Taei cleared included bananas, taro, sugar canes and ta’amu.

PROSECUTION’S CASE

9. Taei was resentful towards the complainant due to the 2016 LTCJ. This resentment escalated when the complainant reported their small plantation on the cemetery to the fono resulting in the decree to remove the crops from there.
10. Taei had no defence and he intentionally damaged the complainant’s crops.

DEFENCE CASE

11. Taei admitted he did slash the crops on the strip of land but argued he had a claim of right to these crops as the same previously belonged to his family but had re-grown. However, the complainant now claimed ownership of this strip of land and that he cultivated the crops on it.

SUMMARY OF EVIDENCE

Prosecution

12. Prosecution called two witnesses; Peato Ulugia (“Peato”) and his wife Lupe Ulugia (“Lupe”).

Peato

13. Peato testified that on the day in question he was shocked when he saw Taei, cut down his taro, taamu, and banana crops. During cross examination, he said Taei was well aware that he had a row of sugar canes along the boundary of the cemetery on the strip of land which he also slashed.
14. He also said that Taei uprooted his own crops on the cemetery but when he got to his ones, he just slashed these thereby damaging them. According to Peato he had cultivated this strip of land since after the 2016 LTCJ.

Lupe

15. Lupe basically corroborated her husband’s evidence. I bear in mind her intimate personal relationship with her husband the complainant in assessing her credibility. I remind myself that Lupe as the spouse of the complainant is nevertheless a competent and compellable witness for the prosecution.^[4]
16. She said she was at home on 3/02/17 when she saw Taei slashing their taro, taamu, sugar canes and bananas.
17. She too said Taei’s crops were grown on the cemetery but theirs was clearly delineated in that these were outside the periphery of the cemetery closer to their home.

Defence

18. Taei was reminded of his right to remain silent and that if he elected not to give evidence then it would not be held against him as the onus of proof rests with the prosecution from the start to the end of the trial.
19. Taei elected not to give evidence but he called instead his brother Inu Lui (“Inu”).

Inu

20. He is married with two children and resides with Taei at their home at Vaiusu.
21. He said the crops Taei damaged that were on the strip of land was by right theirs as they grew these but the complainant had destroyed them after the 2016 LTCJ. He argues the only property belonging to the complainant that Taei damaged on 3/02/17 was the sugar canes.
22. But during questions from the Court, he confirmed the 2016 LTCJ did order his family to remove their plants from the strip of land in question. He also confirmed the plants or crops that previously grew there were banana’s some of which had bear fruits (by the time the complainant removed them), taro and ta’amu. These had re-grown by 3/02/17.
23. He accepted that with the 2016 LTCJ, it meant they could no longer access the strip of land they previously cultivated as the complainant had taken possession of it and growing his crops on it.

DISCUSSION

24. There is no issue whether the crops the subject of the information falls under the term property as they clearly do. But what is at issue is whether the plants on the strip of land was the property of the complainant or Taei’s family.
25. Given the undisputed fact that Taei did slash the crops on the strip of the land, the focus then is on whether the damaged plants is the property of the complainant and the second element of intention.
26. At the outset I must say, it can be inferred from the evidence there is a continuous rift and tension between the complainant and Taei’s family. This was also evident when the witnesses took the stand.
27. It is a known fact that the two families went against each other in the 2015/2016 Land’s & Title’s Court matter. The end result saw the complainant taking it upon himself to remove all of the crops that Taei’s family had cultivated on the strip of land.
28. The complainant also reported to the fono, Taei’s crops being grown on the cemetery and his family was given a time limit to clear these.
29. Understandably, Taei’s family would naturally be feeling resentment and hurt. The Samoan say “e le aoga ona ta mata le laau” comes to mind. But that is exactly what happened here when a day after the delivery of the 2016 LTCJ, the complainant took it upon himself to destroy the crops that Taei’s family had grown on the strip of land. To aggravate matters, the complainant also reported to the fono Taei’s family’s small plantation on the cemetery and they were ordered to remove these as well.
30. Although at first glance one may not see the harm in Taei’s family growing food crops on the cemetery for their sustenance, I appreciate the customary tapu appurtenant to village cemeteries being regarded as akin to a sacred place and normally plants crops would be forbidden from being grown on these.
31. According to the evidence of Peato, a day before the end of the decree to remove the crops, Taei proceeded to slash all the crops that were on the cemetery including those belonging to Peato
32. I accept that the crops on the cemetery belonged to Taei and his family. I also accept Inu’s evidence Taei did not uproot but slash these given the limited time he had to remove them in compliance of the fono’s decree.
33. Taei’s defence as drawn from the evidence is one of a claim of right. Inu argues in his evidence Taei had a lawful justification for slashing the crops as his family originally grew the crops on the strip of land. So in his mind these belonged to them.
34. A claim of right as a common law defence is available under s.11 Crimes Act 2013 which states:

“11- All rules and principles of the common law as are consistent with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court and District Court...”

35. Justice Tuatagaloa in Kini^[5]explained the essence of the defence of a claim of right. I have recited the following passages from her Honour’s judgment as in my view these equally apply here:
    • “The defense of claim of right has its origin in the English common law. By the early 1900s it was firmly established in law by “a long and unbroken chain of authority” that claim of right exists whenever a person honestly believes that they have a lawful claim to property, however unfounded that claim may be.^[6]
    • New Zealand has codified claim of right and is defined in the interpretation section of their Crimes Act 1961. Therefore, the common law principles of the defence of claim of right have been superceded by legislation in New Zealand. As such, claim of right in New Zealand can be used as a defence only where it is an element of an offence. For example, under section 269(2)(a) a person commits intentional damage when he or she - “ intentionally or recklessly, and without claim of right , destroys or damages any property in which that person has no interest” (my emphasis).
    • In Samoa, the claim of right as a common law defence is available pursuant to section 11 of the Crimes Act 2013 which preserves “All rules and principles of the common law as are consistent with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court...” which render any circumstances justification or excuse for any offence unless they have been altered or are inconsistent with any enactment. ^[7]
    • Section 11 has now include the words “..customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court..” which were not part of section 9 of the Crimes Ordinance 1961. This inclusion is consistent with the definition of ‘law’ under Article 111 of the Constitution. This is important as this case involves customary land.
    • Section 74 of Lands and Titles Act 1981 provides that any decision of the LTC is to be taken to be a judgment of the Supreme and District Courts.
    • ‘Custom and usage’ is defined under section 2 of Land and Titles Act 1981 to mean “customs and usages of Samoa accepted as being in force at the relevant time which includes the principles of custom and usage accepted by the Samoan people in general and customs and usages accepted in a particular place or matter”.
    • Customary land is land held in accordance with Samoan custom and usage.^[8] It is held under a matai title of the village the land is situated.
    • The Samoa Court of Appeal accepted that claim of right is a lawful defence in Samoa. It is assessed subjectively. An honest but mistaken belief will suffice even if this belief is unreasonable.^[9]”
36. Having considered the evidence, the surrounding circumstances of the offending, law, my understanding of our customary land tenure system under the faamatai system and our Samoan customs and usages, I am of the view the claim of right must fail.
37. Inu himself, conceded when I questioned him that although his family previously grew the crops on the strip of land, the 2016 LTCJ did ordered the removal of these plants from that portion of the land.
38. I am of the view as well that, from the date of the 2016 LTCJ and more specifically the time they were given to remove the plants on the strip of land, Taei and his family no longer had any rights to the crops on the strip of land which I accept had re-grown.
39. In other words, their right to the crops and use of the strip of land was terminated by operation of the law encompassed in the 2016 LTCJ.
40. It is unfortunate that the complainant took it upon himself to destroy the crops without leaving it to Taei’s family to remove so they may make use of them. It might have alleviated the antagonism they felt from the 2016 LTCJ. This is discerned from cross examining questions by Taei himself.
41. As Inu accepted, by 3/02/17, some of the crops had re-grown naturally. But by this time as well, the complainant had also cultivated his own crops on the strip of land.
42. In light of the above, I therefore accept that the crops which included, taro, sugar cane and banana plants grown on the strip of land on the periphery of the cemetery next to the access road and house of the complainant were the property of the complainant.
43. I am of the view Taei did not have an honest and reasonable belief his family still had a claim to the strip of land especially given the 2016 LTCJ and the fact the complainant had by 3/02/17 cultivated his own crops on the same.
44. There is no evidence either of any stay of execution of the 2016 LTCJ being granted or of an appeal in the LTC to render further support to such a belief. The fact too that Taei’s family have not grown any more plants on the strip of land since the 2016 LTCJ further supports this.
45. Pursuant to the 2016 LTCJ, the strip of land formed part of the customary land occupied by the complainant. As Peato had taken possession of the strip of land, the crops once re-grown effectively became his property.
46. The instant matter is distinguished from the case of Kini^[10] in that, the land there remained under the authority (pule) of the title of Ulu Tapaleao held by Ulu Vao Kini and Ulu Pisimaka Crawley. Justice Tuatagaloa in that case however held that the pule remained but the crops and any other property erected or installed by the occupants remained their property.
47. In the instant matter however, Taei’s family occupied the other side of the land and the complainant the side where the strip of land is. Taei’s family was ordered by the LTC to remove their crops from the strip of land. Had they still had some sort of authority to use the strip of land the LTC would not have ordered the removal of their crops. It does not take much common sense to figure that out.
48. As I said earlier by operation of the law and our customs and usages, once the crops re-grew these became the property of the complainant who occupied and cultivated that part of the land.
49. As I have rejected the claim of right, and taking into consideration the evidence and circumstances of the offending, I find that the mens rea element is also made out.
50. I find that Taei did intentionally damage the crops which by the time of the incident clearly belonged to the complainant.
51. I am of the view that Taei should have had an appreciation of the 2016 LTCJ after all he admitted he knew about it. However, he continued to slash the plants fully conscience of the substantial risk of damage but he carried on regardless. In that sense he was also reckless.
52. Had he stuck with removing their own plants on the cemetery, he would not be facing this charge.

Particulars of property damaged

53. The evidence established that, taro, banana and sugar canes were damaged. I accept lauvai is a type of taro.
54. As to the quantum and value no evidence was adduced to support this.
55. But it can be inferred from the evidence, that given the size of the strip of land, it could reasonably fit or cultivate the number of crops particularized in the charge of 50 taro plants, 20 lauvai, 5 bananas and 4 sugar canes.
56. As to the value, I bear in mind the patch is mainly for self subsistence purposes as opposed to commercial. From my own knowledge of the value of such crops it is nowhere near $900. I therefore fix the value at $400.

OTHER CONCERNS

57. Given my observation of the continuous rift and tension between the parties, it is crucial they resolve any differences they have so they may live in peace and harmony.
58. At the end of the day, they are related and it is important they mend fences to keep the peace.

CONCLUSION

59. I find that the prosecution has proven all elements of the offence.
60. Accordingly I find Taei guilty of the offence.

DCJ ALALATOA ROSELLA VIANE PAPALII

^[1]P v Kini [2016] WSSC 112
^[2] As per Justice Tuatagaloa in P v Kini, Ibid
^[3]P v Malaki [2015] WSSC 95
^[4] See s.61(2) Evidence Act 2016.
^[5] Supra n 1
^[6]R v Bernhard (1938) 2All ER 140 at 144
^[7]Police v Malaitai [1994] WSSC 12 (18 August 1994). It was s.9 under the Crimes Ordinance 1961.
^[8]Art.101(2) of Constitution of Samoa
^[9]Fareed v Police [2012] WSCA 14
^[10] Supra n 1