IN THE SUPREME COURT OF SAMOA
Police v Heather & Anor [2024] WSSC 2 (22 January 2024)

Case name: 	Police v Heather & Anor	
		
Citation: 	[2024] WSSC 2	
		
Decision date: 	Conclusions of decision – 20 December 2023
Reasons – 22 January 2024	
		
Parties: 	POLICE (Informant) v NEIL HEATHER & JACK TIMOTHY HEATHER, males of Tufuiopa (Defendants)	
		
Hearing date(s): 	10, 11 & 12 Oct 2023
Submissions: 19 Oct 2023	
		
File number(s): 	Charge 1, 2, 3 per Charging Document dated 29/06/2020	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Fepulea’i A. Roma 	
		
On appeal from:		
		
Order:	For the above reasons, I concluded that prosecution had proven all charges and found both accused guilty of the charges.	
		
Representation: 	L. Sio for Prosecution
K. Kruse for the Defendants	
		
Catchwords: 	Burglary – theft – intentional damage.	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013, ss. 33; 161; 165(b); 174(1)(b); 184(2)(b).	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

NEIL HEATHER and JACK TIMOTHY HEATHER, males of Tufuiopa

Defendants

Counsel:	L. Sio for the Prosecution
K. Kruse for the Defendants

Reasons:	22 January 2024

REASONS
Charge
1. 	The accused are jointly charged that at Tufuiopa on the 29th April 2020:
	 (j) they entered a building namely the dwelling house of May Mary Heather, female of Sinamoga and New Zealand, remained in it without authority and with intent to commit a crime therein, thereby committing burglary (s.174 (1) (b) & 33, Crimes Act 2013)
	(ii) they dishonestly took the house materials - 33 timbers, 38 louvres, 12 aluminium window frames, 1 wooden door and a mirror valued at $5,000 with intent to deprive May Mary Heather, female of Sinamoga and New Zealand permanently of those properties (s.161 & 165 (b) & 33);
	(iii) they intentionally damaged the shower, windows, doors, and walls of the building to be valued at $25,000, the property of May Mary Heather, female of Sinamoga and New Zealand (s84 (2) (b) & 33).
2. 	On 20 December 2023, I concluded that prosecution had proven all allegations and found both accused guilty of all charges.  These are my reasons.
Evidence
3. 	Prosecution called 5 witnesses.
Faapale Peni
4. 	Faapale is a 48 year old female, married to Moe who is a cousin of the late Richard Heather, the complainant’s husband.  Faapale and her husband were given the keys to the complainant’s house to access and clean in case they found tenants.  The house was a 2 storey building, the ground floor previously rented by Filipinos who carried therein a seamstress business.
5. 	Faapale told the court that on the 28th April, Neil spoke to her husband Moe in the morning and left.  The following day, Neil returned and again asked for Moe.  Neil told her to call Moe to come as he was there to dismantle the house (‘lea ua ou sau e tala le fale’).  Shortly after, she saw Neil, Penitila and Jack return with hammers, screwdrivers and other tools.  Neil said “e le toe tele se tala e fai o lea ua omai matou e tala le fale”.  Neil struck the lock of the steps downstairs before they proceeded upstairs and started dismantling inside (amata na tala).  Neil began removing the louvres whilst Jack and Penitila took the louvres, frames and timber to where they live at the back.
6. 	Faapale then called May’s daughter Moelani and told her what happened.
7. 	Faapale was familiar with the house and was referred photos (Exhibit P5).  She confirmed that on the top floor, louvres and frames had been removed; the shower had been damaged with its tiled walls and tap removed; there was a hole on one side of the walls and some tiles were lying on the floor.  The kitchen had missing drawers and the door to one of the rooms had been removed. 
8. 	Under cross examination, Faapale denied that the building was an old house.  She confirmed that the land was occupied by members of the Heather family and that the late Richard Heather (husband of the complainant) had come to her father in law for his and his siblings consent to build on the land.  She told the court further that whilst Richard later lived together with a woman named Leo’o, they occupied another house at the back and not the 2 storey building.
9. 	She maintained that Neil broke the lock and went with Penitila and Jack upstairs, and Jack and Penitila took the materials and items including a mirror to where they live at the back.  She also confirmed that when police arrived, they returned the timber to the 2 storey house.
Jeffrey Peni
10. 	Jeffrey, a 17 year old student of Leififi College is the son of Faapale.  He told the court that he was at his friend’s house around 11am on the day of the incident when his mother sent for him.  He and his mother saw Penitila, Neil and Jack dismantle and remove parts of the house and take them to their house.  He had heard the sound of a hammer and works upstairs; he went up the stairs and saw Penitila and Neil remove louvres and timbers, whilst Jack was taking them from upstairs to the back using a wheelbarrow.
11. 	Under cross examination, he conceded not saying in his statement to police that he went upstairs.  He maintained however that he was there and saw both accused and Penitila remove parts and material from upstairs and took them to the back.  He conceded also that the louvres and timbers were neatly piled on the floor when removed.
Julieta Une Finau
12. 	Julieta is a 51 year old female of Vaimoso.  On the day of the incident, Moelani called and told her that the neighbours had started to dismantle the house (talepe le fale).  Moelani later came to her office.  Together they drove to Tufuiopa and from the road, were able to see Jack and Penitila remove louvres and smash (sasa) the timbers.  They went straight to police and reported the incident.
Inspector Maseiga Lauina
13. 	Inspector Lauina was officer in charge at the Domestic Violence Unit around 11am when Moelani Heather arrived to lay a complaint against the accused and Penitila Heather.  The complaint was that all three had entered the house without permission and removed materials from the building.  They visited the house at Tufuiopa and proceeded upstairs where Neil was holding a hammer and timber were lying on the floor.  Jack was helping him out.
14. 	Neil asked ‘pe iai se mea ua tupu’.  He explained why police were there and Moelani’s complaint that they had forced entry.  In response, Neil told him it was their family land and his brother’s house, and that gave him a right to the property.
15. 	Inspector Lauina asked that they stop the works and come to the office to further discuss the complaint.  The accused agreed and came to the Apia police post where they were both cautioned and gave statements, Jack’s in the presence of his mother.
16. 	Inspector Lauina’s further evidence is that following the interviews, they went back to the house with a female officer and both accused.  They took photos, returned the timbers back to the house in front, counted the timber and prepared a form and property seizure record signed by Neil and tendered as Exhibit P4.
17. 	Under cross examination, Inspector Lauina confirmed that Neil had told him in the beginning he had a right to the house.  Asked whether Neil had told him about his earlier conversation with Moelani about leasing the building, he replied that Neil was of the view that Moelani should authorise him to look after the building but Moelani was adamant it was her father’s, and how she dealt with it was her choice.  He accepted that the materials were removed in a way that they would be used later, but denied that Neil had told him they were being removed and stored to be given to Moelani later.  As to the value of the properties, Inspector Lauina said it was the value given to them by Moelani.
Constable Olita Tusani
18. 	Constable Tusani accompanied Inspector Maseiga back to the house following the 2 accused’s interviews with police and took photos of the house and the materials (Exhibit P5).
May Mary Schuster
19. 	May Schuster, a 61 year old female now lives permanently in New Zealand.  She moved there in 2016, came back for a month in 2018 and returned to New Zealand. She was married to the late Richard Heather with whom she has 8 children.  Moelani is one of her daughters.
20. 	The 2 storey house is one of the 2 houses she had with her late husband.  Both were located on Heather family land and are close by.  The family home they built was at the back and in the front was the 2 storey building that Richard built.  According to May, Richard had asked his uncle in the front and was given permission to build a house there for a business for his children.
21. 	She has been granted letters of administration for her late husband’s estate (Exhibit P6).  She told the court that whilst the land is Heather estate, she does not know where Neil’s right to their house comes from.  The keys to their house were with Moelani and Faapale and there was no agreement for anyone else to enter or use the building.
22. 	She was referred photos of the house (Exhibit P4) and confirmed that louvres upstairs had been removed; the dressing table was damaged; a door to one of the rooms had been removed; the tiled walls to the shower had been damaged with a hole on one side; and kitchen drawers were damaged.
23. 	As to the $5,000 value of items, she said that although timbers had been returned, some were damaged and the value would include labour and new materials to repair.  As to the damaged shower and walls, she says the estimated $25,000 included labour and materials to repair.
24. 	Under cross examination, May conceded that her husband built the house and she did not have any financial contribution.  She confirmed that when they separated between 2013 and 2014, she lived at Faatoia and returned to Tufuiopa in 2015.  She confirmed also that when they separated, her husband entered into another relationship from which he had two children, and they were living in another house on the same land when he passed away in 2016.
25. 	She conceded that when she applied for letters of administration, she did not disclose Richard’s children from his other relationship on advice by her lawyer that they were illegitimate and would not be entitled to his estate.  She was still married to Richard when he died.  She confirmed that between 2016 and 2020, she had not been upstairs inside the house.
Moelani Heather
26. 	Moelani is the 32 year old daughter of May and the late Richard Heather.  Prior to moving to New Zealand in 2021 where she now resides, she was living between her father at Tufuiopa before he passed and her mother at Sinamoga.  Whilst here, she looked after the building and gave permission and keys to her aunts Tina and Faapale to access and look after.  She was closer to her aunts and trusted them.  They were the only ones that she gave the keys to.
27. 	She recalled that in April 2020, her aunt Tina called and informed her that Neil had come around asking for the keys.  Days later, she received another call from Faapale that Neil was taking stuff from the house.  She contacted Julieta and they drove past to check before they went to police and reported the incident.
28. 	She denied having any conversation with Neil about leasing the property, and says that following her father’s passing, they did not have a good relationship with her accused uncles, who were more concerned with their house and the materials.  She was referred photos and confirmed that furniture had been moved around, shelves were taken down, window louvres were removed, shower tiles were removed and the walls damaged, and a bedroom door was removed.
29. 	As to the value of the items stolen and damaged, she told the court that she compared prices from building supplies stores and inquired with some carpenters.
30. 	Under cross examination, she told the court that after her father died, Neil basically wanted to kick them off the land and take over.
Cautioned Statements
31. 	Both accused elected not to testify or call evidence.  But they made statements under caution and both were admitted in evidence through Inspector Lauina.
32. 	Neil in his statement (Exhibit P2) admits that he, Penitila and Jack used hammers, screwdrivers and nail puller bars to dismantle and remove timbers, louvres, window frames, mirrors and the shower upstairs and took them to the back.  He says Penitila struck and damaged the other lock whilst Jack struck the other with a hammer.
33. 	As to why they did it, he explains at pages 4 – 6 of his cautioned statement that he had previously discussed with his niece Moelani lease of the property.  He understood that his late brother had left the property to Moelani and her sister Nua, he therefore suggested to Moelani that he could take over if something happened to her lease.  He became unhappy that Moelani had left the keys instead with Moe and his wife Faapale and thought that Moelani was sharing the lease money with Moe.  According to his statement, he told Moe and his wife: 
	“ … afai ua le toe fesootai mai le tamaitai lea ae o lea ua sau aumai le ki ia outou, ou te iloa ua tatau loa na ou sau e fai se fuafuaga i le fale lea, leaga o lea ua tuu ii i tagata ia le ki, ae le o se latou meatotino, o le meatotino a le uso a a’u.”
34. 	He explains that earlier when raised by his cousins that the house was the complainant’s, he responded “e leai ni tupe a May, o tupe a lo’u uso na fai ai le fale”; and when a cousin named Stanley claimed that he wanted the house, he told him that no one else had a right to the house, it was his brother’s.  (“O le mea lega e leai a ma sesi e iai se feau i le fale lea, o le fale o lo’u uso”).
35. 	He adds that immediately prior to their works commencing, he contacted Moe again and asked about Moelani’s number but told they could not reach her.  He told them “leaga o lea ua ou faalogo lea ua sa’o a le mea ua ese le tagata lea ua tuu iai le fale ona o lea ua ia outou uma ki, o lea la ou te iloa o le a faatino a le matou galuega.  O lea la na savali atu loa lou uso o Penitila ta loa le loka, alu atu ma Jack ta le isi loka.”
36. 	Jack in his statement (Exhibit P3) also admits that he smashed the lock upstairs and Tila broke the lock to the stairs on the ground floor.  He admits that when they went upstairs, his father dismantled the walls to the shower; Tila removed the louvres whilst he removed the window frames.
37. 	As to why they went inside the house, he says that his father had asked Moe for the keys but told that he did not have it.  They did not also give them a number to contact Moelani, so they proceeded to break the locks and enter the property.  
Elements of the charges
38. 	To sustain the burglary charge, prosecution must prove:	
(a) 	the accused entered the building;
(b) 	the accused had no authority to enter the building; and
(c) 	the accused remained inside the building with intention of committing  crime in the building.
39. 	For theft, prosecution must prove: 
(a) 	the accused took (otherwise than with consent of the owner), used or dealt with any property;
(b) 	such taking, use or dealing was dishonest;
(c) 	such taking, use or dealing was without claim of right (ie: they had no belief that their actions in taking the property were lawful); and
(d) 	the accused intended to deprive the owner permanently of the property, or of any interest in it. 
40. 	For the charge of intentional damage, prosecution must prove:
(a) 	the accused destroyed or damaged any property;
(b) 	they did so intentionally or recklessly; and 
(c) 	they did so with intent to obtain a benefit or to cause loss to any person.
Claim of Right
41. 	Claim of right or colour of right is a lawful defence in Samoa to offences relating to property (See Police v. Malaitai [1994] WSSC 12 (18 August 1994); Fareed v Police [2012] WSCA 14 (23 November 2012); and Police v. Kini [2016] WSSC 112 (15 July 2016).  In Malaitai, Sapolu CJ cited from Murphy v Gregory [1959] NZLR 868 how the defence applied in New Zealand:
	“The essence of the defence of colour of right is honesty for purpose.  Where an accused person really believes he has the right asserted, it is a good defence even if he is mistakenly both in fact and in law … it is for the prosecution to prove there was no colour of right.  If a prisoner puts forward, however wrongheadedly, an honest claim of right, he ought to be acquitted.”
42. 	“It is assessed subjectively.  An honest but mistaken belief will suffice.” (Fareed v Police [2012] WSCA 14 (23 November 2012)
Discussion
Claim of right and criminal intent
43. 	The evidence is largely undisputed.  It is not in dispute that both accused and Penitila broke the lock downstairs, proceeded upstairs and broke another lock before they entered and began removing louvres and window frames, a door and mirror; dismantled walls to the shower; and transported the materials to their house at the back.  It is not also disputed that their actions were not permitted by the complainant or her daughter, or their relatives Moe and Faapale who were authorised to look after the house.
44. 	The main dispute is whether the accused had a criminal or dishonest intent.  In other words, whether their use or dealing with the property was without an honest claim of right.  It is the basis of the defence raised by the accused and because of its relevance to all three charges, I will deal first with this issue.
45. 	Prosecution argued that when taking and dealing with the property, the accused did not have an honest belief they were entitled to the property.  Neil knew the property was his late brother Richard’s, and under his daughter Moelani’s control following his passing; the premises were locked, they did not have the keys and were not authorized to enter or use it.  He was unhappy that the keys were left with Moe and Faapale, and suspected that lease payments were shared between them and Moelani.  When Moe did not give him the keys or contact for Moelani, he decided it was time to dismantle the house and on his instructions, Penitila proceeded to break the locks for them to gain entrance.
46. 	Prosecution submitted that in those circumstances, each accused could not have held an honest belief they were entitled to the property.
47. 	The defence on the other hand drew the court’s attention to the fact that the land on which the house is located is Heather family land; that Neil approached Moe and Faapale for the keys and contact for Moelani; and his statement to police that the house was built by his brother and no one else including the complainant had a right thereto.
48. 	The defence submitted that the court should reasonably infer from that evidence a sense of guardianship on the part of the accused Neil, that he did not want others to have any access to his brother’s property.  Even if incorrectly held, counsel submitted that in those circumstances, the accused honestly believed they were entitled to the property.
49. 	I have carefully considered the evidence and submission by counsel.  I bear in mind that the accused’s claim is to be assessed subjectively and an honest but mistaken belief will suffice. Whilst I accept that by their actions, the accused were claiming a right to the property, I am satisfied that such belief was dishonest and not genuinely held.
50. 	Both knew very well the building belonged to Richard.  Neil understood it to have been willed to Richard’s daughters and Moelani was responsible for its care.  They both knew Moelani had entrusted the building to Moe and Faapale to look after.  The property was locked, they did not have the keys and neither did they have permission to enter or use.  Yet in spite of all that, they continued to forcefully assert an entitlement to the building.
51. 	Their actions were not only unreasonable but dishonest.  I accept Moelani’s evidence that following her father’s passing, Neil was more concerned with kicking them off the land and taking over the building.  I find that the accused both knew it was unlawful but deliberately acted on their dishonest belief, and no one was going to stop them until police arrived.  
Burglary
52. 	To come back to the charges, I am satisfied beyond reasonable doubt from the evidence that in respect of burglary, the accused both entered the building; they were not authorised to enter the building; and they remained inside the building with the intent of removing and taking the materials for their use without the owners’ authority.
Theft
53. 	On the theft charge, I am also satisfied that the accused removed from the house and took 33 timbers, 38 louvres, 12 aluminium window frames, 1 wooden door and a mirror; the taking was dishonest and without claim of right; and that they intended to use the materials for themselves and deprive the owners permanently of the properties.
Intentional damage
54. 	On the intentional damage charge, I am also satisfied that the accused damaged and removed the materials; they did so intentionally and with intent to benefit from its use.
55. 	For the above reasons, I concluded that prosecution had proven all charges and found both accused guilty of the charges.

JUSTICE ROMA