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Mikaele v Police [2015] WSSC 260 (5 June 2015)

THE SUPREME COURT OF SAMOA
Police v Mikaele [2015] WSSC 260

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER
of an appeal pursuant to Section 138 of the Criminal Procedure Act 1972

BETWEEN:

LUAFALEALO MIKAELE
Appellant

AND:

P O L I C E
Respondent

Counsel:
S Ponifasio for the Appellant
L Sua-Mailo for the Respondent

Hearing: 22 May 2015

Decision: 5 June 2015

DECISION OF THE COURT

1. This is an appeal against a decision of the Faamasinoga Fesoasoani Court (FF Court) on the grounds that the Faamasinoga Fesoasoani (FF) erred in law and in fact in finding the charge proved, thereby causing a miscarriage of justice. Counsel seeks that the conviction be quashed and the matter remitted back to the FF Court for rehearing.
2. The appeal is opposed by the Prosecution which argues that, even if there was an error of law, there has been no miscarriage of justice.

The background

3. The appellant was charged that “...between 31st day of May 2014 to the 1st day of October 2014 [he did] permit his cattle to wander on the land of Auau Fati, male of Luatuanu’u”, an offence pursuant to Police Offences Ordinance 1961, section 3(y).
4. The evidence was heard on 3 February and occupied most of the day. In short, Mr Fati and a number of witnesses gave evidence that the appellant owned a number of cattle. In Cyclone Evan (towards the end of 2012) much of the fencing of his property was damaged and from that time, the cattle have roamed about the area, onto the property of others, including onto the land on which Mr Fati lives and farms. Some of the witnesses had spoken with the appellant, and others, like Mr Fati, had spoken with the appellant's sons, and the man that the appellant used to employ to manage the cattle. They had repeatedly asked that the fences be repaired and the cattle prevented from roaming about the area.
5. The witnesses observed that the appellant has, from time to time, tried to fix the fences and that he, and they, have attempted to move the cattle back into the appellant’s property. However, this has not always been successful as the cattle are now quite ferocious and not amenable to being moved.
6. In particular Mr Fati gave evidence that from May last year, the appellant’s cows began to move seaward and destroyed his plantation. They continue to do so up until the day of hearing. He was given permission by the appellant at some time to destroy some of the cows as they could not be moved back onto the appellant’s property.
7. The appellant gave evidence. He said that there was only minimal damage done to his fences by Cyclone Evan and that that was repaired. However, other people have damaged his fences since then, including tourists who cut fence wires to get access to his coconuts, and a machine that ripped down the fence doing some work for the village to access water. However, that damage too was being repaired. He acknowledged that in July/August last year the cows got out – less than 20 of them – but says they were put back in. In December, he and his children tried on about 10 occasions to make the cows return. They used to be friendly animals, but now they are ferocious, and that is one reason why he has given Mr Fati and others permission to shoot some of them. In general terms, if he finds that the fence is damaged, he repairs it; if he is aware that the cows have escaped from his property, he tries his best to return them.

The charge

8. Section 3(y) of the Police Offences Ordinance 1961 provides:
   • “A person commits an offence and is liable to a fine of up to 2 penalty units who...permits a horse, sheep, pig, goat, or cattle to wander or be at large in a public place or to trespass upon any land.”
9. As a matter of statutory interpretation, this provision creates three separate offences whereby a person commits an offence who permits (inter alia) cattle:
   1. to wander in a public place; or
   2. to be at large in a public place; or
   3. to trespass upon any land.

The decision of the Faamasinoga Fesoasoani

10. This short decision is set out now in full:
    • “Decision of the Court
    • Mitigating factors.
    • Defendant is a first offender.
    • According to the defendant he paid monies to the men some of the witnesses today.
    • He endeavoured to repair the fences numerous times.
    • Mediation between the defendant and plaintiff (twice) appeared that the defendant was trying to sort out their differences.
    • The plaintiff respects the defendant because he is a high chief of their village.
    • Aggravating factors.
    • Taros, food supply and vegetables belonging to the plaintiff and his family have been damaged by the defendants cattle.
    • Loss from earnings from selling the above.
    • Creates a public nuisance and source of danger.
    • Some of the cows are still at large according to the defendant.
    • Police Ordinance 1961.
    • “3. Offences against public cleanliness and convenience – A person commits an offence and is liable to a fine of up to 2 penalty units who:
    • (y) permits a horse, sheep, pig, goat, or cattle to wander or be at large in a public place or to trespass upon any land; or
    • (z) without lawful justification obstructs a public place, or creates a source of danger therein, or otherwise commits a public nuisance therein.”
    • It is the responsibility of the defendant to provide a safe, securely and completely fenced and enclosed as to be a cattle proof enclosure for his cattle.
    • Decision.
    • The court has taken into consideration that the defendant tried to repair his fences and recalled his cattle but unfortunately, he confirmed that some cattle are still at large and are a source of danger and nuisance to the public.
    • I found the defendant guilty and is ordered to pay $100 tala not later than the 6^th of March 2015.”

Jurisdiction on appeal

11. This appeal is lodged pursuant to s138 Criminal Procedure Act 1972 (CPA) which confers on a dissatisfied party a general right of appeal. The appeal is by way of rehearing (s142 CPA). Section 144(2) CPA provides various options to this Court by way of disposition.
12. The broad test on appeal is whether the verdict or finding of guilt was unreasonable. In Elia v Attorney General [2014] WSCA 14, the Court cited with approval the test in Owen v R [2008]2 NZLR 37:
    • “.... a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.”
13. It follows that the test for this Court in this appeal is whether, having regard to all the evidence, the FF could not reasonably have been satisfied beyond reasonable doubt that the appellant was guilty – or, to put it another way, that the charge was proved.

Decision of the Faamasinoga Fesoasoani Judge

14. The decision of the FF is not easy to follow. The charge is not set out, the elements of the offence not identified, and the use of the terms aggravating and mitigating factors raises the possibility that the Judge has confused culpability with sentence.
15. In particular, three significant issues arise.

The incomplete charge

16. The charge as laid and adjudicated upon is clearly incomplete. The appellant was charged that he did permit his cattle ‘to wander on the land of Auau Fati’. This is not one of the three offences created by s3(y). On the face of the charge, no offence is disclosed. Despite this issue not being raised during the hearing or in the Notice of Appeal, it has become, in effect, the primary ground of appeal.
17. This same situation was addressed by the Chief Justice in Tugaga v Police [1997] WSSC 23. In that case His Honour granted the appeal, quashed the conviction and ordered a retrial. Counsel for the appellant urges this Court to do the same.
18. This Court, and the FF Court, have the power to amend an information at any time and in any way during a trial (s36 CPA). Further, no information shall be held defective for want of form or substance (s16(4) CPA). Had any objection been taken to the charge during the hearing, the FF could have amended it, substituted another charge, or quashed the information (s18 CPA).
19. Clearly on the evidence, the information should have charged the appellant with permitting his cattle to trespass. That is, in effect, what both the complainant, and the other neighbours, complained of.
20. While failing to include the relevant words, the information did to some extent state the substance of the crime – that the appellant permitted his cattle to wander onto the complainant’s land.
21. This issue should have been raised and addressed by the FF who had the power to amend the charge. She failed to do so, thereby adjudicating on an incomplete charge which amounts to an error of law.

Taking irrelevant matters into account

22. As is clear from the decision of the FF, she did not identify the elements of the charge. Had she done so, it is likely to have greatly assisted her in identifying the relevant evidence. However, she clearly formed the view (not unreasonably on the evidence) that the cattle “create a public nuisance and source of danger” and that, as some are still at large, they “are a source of danger and nuisance to the public”.
23. However true this might be, these factors are irrelevant in the determination of this particular charge. The confusion is likely to have arisen from her reference to offending pursuant to s3(z), which provides:
    • “Offences against public cleanliness and convenience – A person commits an offence and is liable to a fine of up to 2 penalty units who
    • (z) without lawful justification obstructs a public place, or creates a source of danger therein, or otherwise commits a public nuisance therein.”
24. The FF could have amended the charge to reflect s3(z) at the hearing, ensured no prejudice arose, and continued to hear and determine the case. She did not. By taking into account issues as to dangerousness and public nuisance, she has taken into account irrelevant matters potentially to the prejudice of the defendant. This, too, amounts to an error of law.

Failure to address the mens rea requirement

25. In her decision, the FF refers to the steps taken by the appellant to repair his fences and recall his cattle. One of the ingredients of the charge is that the appellant permitted his cattle to move off his property, and presumably these facts were identified in consideration of whether the Prosecution had proved this essential element.
26. “Permit” is not defined in the Police Offences Ordinance 1961. In the context of this offence, permit means to allow, in the sense of being in a position to control what happened, and either encouraging what happened or, at the very least, not taking steps that the appellant knew were reasonably available to stop what happened.
27. It does not mean, as Counsel for the appellant submits, that the Prosecution have to prove that the appellant ‘pre-planned’ the movement of his cattle off his property, nor that he was trying to leave them on the property of others. Rather, that he was in a position to control their movement and failed to take the steps that he knew were reasonably available to him.
28. The FF’s decision is confusing. She finds the appellant “tried to repair his fences and recalled his cattle” but she does not determine whether, at the material time, this amounted to taking the steps readily available to him such that it could not be said he ‘permitted’ them to move onto Mr Fati’s property. Further, the fact that she then goes on to refer to them as “still at large” suggests she has failed to consider the appellant’s conduct within the relevant timeframe of the charge.

Decision

29. I am satisfied that the FF erred in law when she proceeded on an incomplete charge; wrongly considered matters that were irrelevant; and failed to consider whether the Prosecution had proved the elements of the offence charged. However, despite that, I am not satisfied that there has been a miscarriage of justice such that the conviction should be quashed. That is because, having regard to all the evidence, a finding of guilt could not be said to be unreasonable.
30. The FF had jurisdiction to, and should have, amended the charge. But in any event, it is apparent that the evidence given by both sides did, in fact, address the material elements of the offence. No prejudice can be said to arisen to the defendant.
31. In determining the amended charge, the evidence of all the Prosecution witnesses was compelling: that the defendant’s cattle were often roaming beyond the defendant’s land, because the fences were damaged and not repaired in a timely way. In particular, there is clear and compelling evidence that the defendant’s cattle entered onto the property of Mr Fati on numerous occasions, including around May of last year.
32. Further, on my reading of the defendant's evidence, he does not dispute that. Indeed, he gave Mr Fati (and another witness) permission to shoot some of the cattle. He (the appellant) gave evidence that the cattle have become ferocious and difficult to handle. Both these facts tend strongly to suggest that the appellant had lost control of his cattle. The appellant gave evidence that he regularly repaired the fences, and certainly did so when someone complained about them. That evidence is at odds with the evidence of the Prosecution witnesses, and the FF was entitled to accept the evidence of those witnesses over that of the appellant.
33. Finally, there is the issue of trespass. ‘Trespass’ is not defined in the Ordinance. For the purposes of this section, it could be said to be the unjustified direct interference onto land in occupation by any other persons. While in some jurisdictions, the offence of trespass does not arise until after the putative offender has been warned to leave and/or not enter the property, the Ordinance contains no requirements for such a warning.
34. Further, the Ordinance makes it an offence to willfully trespass “on land or premises in the occupation of any other person”. As the Chief Justice noted in Tugaga v Police, trespass is concerned with possession and not ownership of land.
35. The clear evidence before the FF was that Mr Fati had lived and worked on the land for many years – in other words, he was clearly in possession of it. While in answer to a question from the FF, the appellant claimed all the land in issue was customary land, he produced no documentary or other evidence to challenge Mr Fati’s possession or occupation of the land upon which he established his plantations and onto which the cattle trespassed. In this regard, on appeal, his Counsel responsibly conceded there was no evidence of any competing claims to possession of the land. To this extent, this case is distinguishable from that in Tugaga.

Conclusion

36. The information does not disclose an offence, but does contain particulars that, in effect, amount to a charge that the appellant permitted his cattle to trespass onto the complainant’s land. The FF had the power to amend the charge, as does this Court.
37. On the amended charge, there was a significant amount of evidence from which the FF could reasonably have concluded that:
    1. Despite his efforts from time to time, the appellant failed to control his cattle at the material time, knowing that they were escaping from his property; and
    2. That the cattle trespassed – in other words, unjustifiably directly interfered with the property of Mr Fati by entering onto the land of his plantation and causing damage.
38. There has therefore been no miscarriage of justice and the appeal is dismissed.

....................................
JUSTICE AITKEN