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Police v MSS [2016] WSFC 2 (19 February 2016)

FAMILY COURT OF SAMOA
Police v M.S.S [2016] WSFC 2

IN THE FAMILY COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

M.S.S, female of Faatoia.
Defendant

Counsel:
A. Tumua for Prosecution
I. Sapolu for defendant

Decision: 19 February 2016

DECISION OF DCJ ROMA

Background

1. M.S.S (“accused”) and T.S (“complainant”) are sisters. Both reside on a piece of land at Faatoia, the use of which has been the subject of dispute and proceedings in this Court between themselves, and sometimes involving their other siblings. As a result of those proceedings, there are existing Protection Orders against the several parties involved.
2. The present proceedings arise from an alleged breach of one of those Protection Orders, specifically where both the complainant and the accused are parties.

Charge

3. The accused faces one information No. FVC 216/15 of a breach of a Protection Order.
4. The information is brought under sections 9(a) and 11(1)(b) of the Family Safety Act 2013, and alleges that the accused enlisted E.F, male of Faatoia to remove a pipeline which was on the complainant’s side of the boundary without the complainant’s permission.

Evidence by the Prosecution

5. The prosecution called the complainant, E.F (“E”), and M.S (“M”) as witnesses. E.F is alleged to have removed the pipeline on instructions by the accused. M.S is a brother of the complainant and the accused.
6. According to the complainant, the disputes amongst herself, the accused and their other siblings, which resulted in several Protection Orders being issued against the respective parties, began in January 2015.
7. On an unknown date later in 2015, in a matter involving only the complainant and the accused, the Court issued a final Protection Order (“Order”) that delineated a boundary between the respective parts of the land that they occupy. The Order further prohibits the accused from coming onto her side of the boundary, and her from that of the accused.
8. A copy of the Order was not tendered in evidence. However, the complainant says that when the Order was delivered in Court, the accused and her counsel in these proceedings, their brother M.S and his girlfriend, and she were all present. She says that as far as she was aware, they all understood the terms of the Order.
9. Since the Order, the complainant claims that the accused continued to come onto her side of the boundary. On one occasion when she was not at her place, the accused, as she found out later, came onto her side and damaged her plants.
10. On another, specifically on 3 August 2015, she learned from her brother M.S that E.F, a neighbour who does work for the accused, had dug up and removed a pipeline that was on her side of the boundary.
11. E.F confirms that he was the one who removed the pipeline. He says however that at the time, he was working for E.S, who is another brother of the complainant and accused, and it was on E.S’s instructions that he removed the pipeline. E.F claims that E.S did not like the idea of himself paying for the water bills whilst others were continuing to use the tap water.
12. Under cross and in re-examination, E.F maintains that it was E.S who instructed him to remove the pipeline. He denies that the accused ever asked him to do anything about the pipeline.
13. On the contrary, M.S, the last of the prosecution witnesses says that not only did he see E.F remove the pipeline, but when he asked him why, E.F replied that the accused instructed him to remove it so that it could be used on the other side of the land. M.S says that he asked E.F twice and he gave the same answer.
14. When E.F’s evidence was put to M.S under cross examination, M.S was adamant that E.F had told him it was the accused that instructed him to remove the pipeline. He suggests that E.F has now told the Court a different story.

Defence Submission of a No case to Answer

15. At the close of the prosecution’s case, Ms Sapolu submitted that there was no case for the defence to answer. Ruling against the defence submission, I also indicated that my reasons will follow in writing. These are those reasons.
16. The test in determining a no case submission as held in numerous decisions of the Supreme Court and Court of Appeal is “whether, taken at its highest, the evidence could have probably led to a conviction by a properly directed panel of assessors, or in the case of a trial by Judge alone, the finder of facts.”(see Attorney General v. Kolio & Others WSSC CA 03/08 which followed R v. Galbraith (1981) 73 Cr. App R124 & Police v. Samau [2010] WSSC 106).
17. It follows that “it is not appropriate for a trial Judge to make credibility choices between conflicting evidence unless the evidence of a witness is so patently obscure that it is beyond belief.”
18. The main grounds advanced in support of the defence submission are:

(i) the Order that the prosecution alleges the accused to have breached, or a copy thereof, was not produced in evidence;

(ii) a significant conflict in the evidence of the 2 prosecution witnesses E.F and M.S, as to whose instructions E.F acted on in removing the pipeline.

19. Applying the test to the first ground of the defence’s submission, I find that even in the absence of the formal Order or a copy, there is still the evidence of the complainant that an Order was handed down in Court; the Order delineated a boundary between the parts occupied by her and the accused respectively; the Order prohibited both the accused and complainant from going onto the other’s side of the boundary, and the accused was present in Court with her Counsel when the Order was delivered.
20. The question is whether or not I accept that evidence, and how much weight, if any I accord to it.
21. As to the second ground, I find that the conflicting evidence of E.F and M.S also requires that I make credibility findings. In my view, the conflict is not insignificant. Nevertheless, it remains open to the Court as finder of fact, to prefer one’s evidence than the other.
22. Ms Sapolu also raised the fact that when M.S gave evidence, he referred to a conversation between him and E.F whereby E.F admitted that he had acted on the accused’s instructions, when E.F himself, who had testified earlier was not asked and therefore did not refer to such a conversation.
23. In my view, that does not render that part of M.S’s evidence inadmissible. It would still be admissible as proof of whether such words were said by E.F, not as to whether the contents of what he said were truthful.
24. Again, the question is how much weight I accord to that relevant part of the evidence by M.S.

Evidence by the Accused

25. Following my ruling on the defence’s no case to answer submission, the accused elected to give evidence. She is the defence’s only witness.
26. She does not dispute that the Court had granted a Protection Order that identified a boundary between the parts of the land occupied by her and the complainant. She denies however that she instructed E.F to remove the pipeline from the complainant’s side, as is the evidence of 2 of the prosecution witnesses.

Law

27. Section 11 of the Family Safety Act 2013 (“the Act”) governs how alleged breaches of protection orders are handled by Police; brought before and determined by the Court, and the penalties imposed when the Court finds a breach.
28. The relevant parts for the purposes of this determination state as follows:

“11. Breach of protection order – (1) Any respondent who breaches a protection order issued under the provisions of this Act shall:

(a) ...
(b) Where the breach involves any other act of violence not mentioned in paragraph (a), such person shall be subject to such punishment as the Court deems appropriate including sanctions available under the Community Justice Act 2008.

(4) Where a Respondent is brought before the Court under this section, the Court may immediately and without further delay, hear such evidence as the Court considers necessary in the circumstances to make a determination as to whether the respondent has breached a protection order, and upon finding:

(a) that there was a breach, shall proceed to sentence the respondent under subsection (1); or

(c) that there was no breach, order the release of the respondent from custody.

(5) Despite any other law, in making a determination under this subsection (4), the Court shall only be required to decide questions of fact on the balance or probabilities.”

29. The charge against the accused also cites section 9, which refers to several acts that a respondent may be prohibited from committing under protection orders issued under the Act. One of such acts which the informant alleges in this case is:

“(a) committing any act of domestic violence or enlisting the help of another to commit such act”

30. As to the meaning of “domestic violence”, section 2 states as follows:

“domestic violence” means:

(a) physical abuse;

(b) sexual abuse;

(c) emotional, verbal and psychological abuse;

(d) intimidation;

(e) harassment;

(f) stalking;

(g) any other controlling or abusive behaviour towards a complainant where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.”

31. Proceedings for breaches of protection orders are akin to contempt proceedings in that they involve non - compliance with, or disobedience of Court Orders. In Polynesian Ltd v. Samoa Observer Company Ltd [1999] WSSC 45 (16 March 1999), a case of civil contempt, the His Honour the Chief Justice says of the ingredients:

“The ingredients which constitute civil contempt are threefold: these are the terms of the injunction must be clear and unambiguous, the defendant had proper notice of the terms of the injunction, and the terms of the injunction have been disobeyed or breached by the defendant.”

Discussion

32. To prove the present charge, the prosecution must satisfy the Court on the balance of probabilities that:

(i) The terms of the Order (are) clear and unambiguous;

(ii) The accused had proper notice of the terms of the Order;

(iii) The accused did not comply with the terms of the Order.

(i) Terms of the Order must be clear and unambiguous

33. There is no dispute that there was a Protection Order issued by the Court. Even in the absence of the Order or a copy, the oral evidence is that a Protection Order was granted by the Court sometime in 2015.
34. As to its terms, the accused concedes that it delineated a boundary between the parts of the land occupied by the complainant and herself respectively, and prohibited both parties from going onto the other’s side of the boundary.
35. I find therefore proven the first ingredient.

(ii) Accused had proper notice of the Order

36. I also find proven the second ingredient, that the accused had proper notice of the terms of the Order.
37. The evidence is that the accused was amongst those present in Court when the Order was delivered. She does not also dispute that she was aware of the terms of the Order.

(iii) Accused did not comply with the terms of the Order

38. As to the third ingredient, the prosecution’s case is that the accused’s non compliance was by instructing E.F to remove the pipeline from the complainant’s side of the boundary.
39. I have difficulty accepting that part of the prosecution’s argument because whilst the Order prohibited the complainant and accused from going onto the other’s side of the boundary, there is no evidence that it also prohibited a third party, E.F from going onto the complainant’s side and removing therefrom the pipeline.
40. The Order does not also prohibit the accused from instructing E.F to go onto the complainant’s side of the boundary, and remove the pipeline from there. For that reason, I can find that the prosecution has not proven this ingredient of the charge.
41. But the prosecution relies on section 9 of the Family Safety Act, under which “enlisting the help of another to commit an act of domestic violence” is identified as one of the acts that a Protection Order may prohibit. They seem to suggest that removing the pipeline from the accused’s side of the boundary is an act of “domestic violence”, and instructing E.F to do so therefore constitute “enlisting the help of another to commit (such) act of domestic violence.”
42. I am also not inclined to accept that part of the prosecution’s case.
43. Firstly, removing a pipeline from one’s side of a land boundary does not constitute an act of domestic violence under the Act. It is neither an abuse of a “physical, sexual, emotional, verbal or psychological” nature, nor is it “intimidation, harassment or stalking.” The prosecution argues that it is caught under (g) of the definition. I do not agree. In my view, it does not amount to “controlling or abusive behavior”, and even if it does, I am not satisfied on the evidence that in this case, it caused any “harm or imminent harm to the complainant’s safety, health or well being.”
44. Secondly, even if I am wrong and the removal of the pipeline does constitute an act of domestic violence, I am still not satisfied on the evidence that the accused, as the prosecution alleges, enlisted or instructed E.F to do so.
45. The conflict in the evidence of M.S and E.F himself, both prosecution witnesses is quite significant, and I cannot be satisfied on M.S’s evidence that E.F acted on the accused’s instructions when E.F himself says that he acted on instructions by E.S, and that he was never approached or instructed by the accused.
46. In any event, E.F is independent of the parties involved and having listened to his testimony and observed his demeanour, I find it more probable than not that his version is the credible account.
47. I therefore find that the prosecution has not proven the third ingredient of the charge.

Decision

48. For the foregoing reasons, I find that the prosecution has not proven the charge on the balance of probabilities. It is accordingly dismissed.

JUDGE ROMA