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Police v Sapolu [2017] WSDC 10 (31 July 2017)

IN THE DISTRICT COURT OF SAMOA
Police v Sapolu [2017] WSDC 10

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

ETI SAPOLU male of Faatoia and Lalovaea
Defendant

Counsel:
Sergeant K Stanley for Prosecution
U I Sapolu for the Defendant

Hearing: 19 May 2017
Hearing of closing submissions: 09 June 2017
Judgment: 31 July 2017

RESERVED DECISION

THE CHARGE

1. The accused, Eti Sapolu (“Eti”) faces one information alleging that on 8 July 2016, he intentionally damaged properties belonging to Tasalaotele Sapolu of Faatoia (“Tasalaotele”) namely 25 tulsi plants valued at $50.00 each, a total value of ST$1250; five (5) laupele plants each valued at ST$10.00; a total value of $50 and grand total of $1300.
2. The charge is brought pursuant to s.184(2)(a) Crimes Act 2013 (“CA”). Eti through counsel entered a not guilty plea to the charge at the second mention on 3/04/17 and the matter proceeded to trial on 19/05/17.
3. The matter was recalled for hearing submissions on 9/06/17 where the Court was informed the both parties had nothing further to add to their submission.
4. It was then adjourned for the Court’s reserved decision. This is its full reasons.

LAW

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

10. It is undisputed that:
    1. Both Tasalaotele and Eti are biological siblings and they both reside on the same freehold land at Faatoia belonging to their grandfather’s estate which has not been administered (“The Land”).
    2. Tasalaotele has her own small house on the land. Eti and his sister Mae Sapolu (“Mae”) reside at what was once their parents’ house (“Family Home”). Eti at times also resides at Lalovaea where he is a tour guide at Apaula Heights.
    100. Tasalaotele’s house is about 15 metres from the main road leading to Vini Fou.
    4. A driveway shared by all occupants of the land runs from in front of Tasalaotele’s house to the family home. From the start of this driveway to the family home it is about 40 metres.
    5. On 8/07/17, Eti did spray with weed killer the area in question where plants alleged to be damaged in the information are grown.

PROSECUTION’S CASE

11. The Prosecution’s case is that Eti had deliberately sprayed with weed killer plants belonging to Tasalaotele on the area in question as there is a continuous rift between them.

DEFENCE CASE

12. As I deduced from the evidence, Eti admitted he did spray the area in question but he said he was justified in doing so in that he had a claim of right to it as this is the common area shared by all beneficiaries and occupants of the land. Therefore plants on this common area belonged to everyone who stands to benefit from the estate.
13. Also, he denies spraying the laupele plants. But argues that in relation to the tulsis he genuinely thought he was spraying overgrown weed as he had no idea these were tulsis as claimed by Tasalaotele. I have identified this as the mistake of fact defence.

SUMMARY OF EVIDENCE

Prosecution

14. Prosecution called one witness, Tasalaotele. It also relied on the video footages produced as exhibits P1 & 2 Taken by Tasalaotele.

Tasalaotele

15. Tasalaotele gave evidence that she was at home on 8/07/16 and had gone to burn her rubbish at the back of her house when she spotted Eti spraying with weed killer the area in front of her house where she grew her vegetables and plants for medicinal purposes (“the area in question”).
16. She called out to Eti and at the same time ran inside her house to grab her phone to record Eti’s actions. When she came out, Eti was spraying by the driveway on the area in question. She called out to him to stop and warned him about the protection order against him. But Eti continued.
17. After this incident she went to the court registry to obtain a copy of the protection order as she believed Justice Warren had prohibited Eti from the area in question in the protection order. But this was not in the protection order.
18. According to Tasalaotele the plants sprayed by Eti were laupele, tulsis and lemon grass and she had grown these from maybe 1 to two years ago.
19. She maintains that tulsis are rare plants, hard to find and she uses it for medicinal purposes to cure kidney stones, high blood pressure, diabetic and other ailments. She also adds tulsi leaves in organic smoothies and potions for her body lotions for her customers. It took her time to grow and maintained these only to have Eti damaged them.
20. During cross examination, Tasalaotele conceded the area sprayed by Eti was a common area shared by all occupants and beneficiaries although she paved the driveway herself with the assistance of a younger brother Lawrence. She admitted that Eti sometimes cleared the area in question but also said most times she does.
21. She estimated the cost of the damaged laupele to be $10 and tulsis as $50. But she also admitted she did not buy the tulsis as these were given to her by a friend.
22. She conceded that she and Eti did not have a recent altercation or dispute prior to 8/07/16.

Video Footage

23. The video footage taken by Tasalaotele in P1 & P2 shows the following:
    • At the start, Tasalaotele is heard yelling at Eti to get away from her side and to leave her side. She said this at least 6 times;
    • Tasalaotele exclaiming that Eti had ruined her plants;
    • Tasalaotele again saying to Eti to leave her side as he was in breach of the protection order against him;
    • Eti is seen spraying the ground of the area in question;
    • Tasalaotele is again heard screaming at Eti he is spraying her plants and there is a protection order;
    • A footage said to be taken a week later (P2) shows the tulsi plants allegedly damaged by Eti spraying it.
    • No damaged laupele is shown in this footage.

Defence

24. Eti elected to give evidence. He also called his sister Mae.

Eti

25. He is 66 years old. On the day in question, he was at home at Faatoia. He decided it was time to clear the bushes, overgrown weed around the land and creepers on the fence. The latter by then had reached the electricity line.
26. He sprayed on the main road to clear the weed and hedges then the drive way. He also sprayed what he saw as weed under the plants on the area in question. He said he usually does this; clear the land with weed killer. It has been 40 years since he has been doing this.
27. He did not know tulsis (as Tasalaotele calls them) were plants she grew as these were growing widely like weed around the area in question and their land. So he sprayed these thinking they were weed.
28. His only intention was to clear the weed away from the driveway, main road and any other around the area in question that has overgrown. He maintained the area in question was for any of them to use. It also had plants his sister Mae grew.
29. He knew there were laupele there but did not see Tasalaotele grew them. He said laupele had seedlings and can grow on its own.

Mae

30. She is 67 years old and resides with Eti in the family home at Faatoia. I found her evidence entertaining for want of a better word.
31. She was at home on the day in question doing her chores further east of the family home. She saw Eti that day clearing the land with the weed spray. Not long after she heard the altercation.
32. She was asked about the tulsis and answered until two days earlier; she did not know what a tulsi was. She shared Eti’s view that this was a weed like plant growing widely around their land. She referred to it as la’au sauga that propagates and has seedlings. She said she could understand if Eti was mistaken in spraying it as even her always thought it was weed.
33. She corroborates Eti’s evidence about the both of them clearing the area in question until she was banned from doing so. But Eti continued to.

DISCUSSION

34. There is no issue whether the plants the subject of the information falls under the term property as they clearly do.
35. It is undisputed the area in question is shared by all occupants and that the land has not been properly subdivided, given the estate remained unadministered. But it is also accepted that Tasalaotele occupied her side and Eti and Mae the family home.
36. But having heard the evidence, its circumstances and visiting the site, I am left in a reasonable doubt as to Eti’s true intention.
37. I accept that Mae used to grow plants on the area in question, but there is a protection order against her. It seemed from the evidence; some plants Mae might have grown on the area in question have been replaced by Tasalaotele.
38. Judging from the height of the laupele seen from the video footage, it would have taken less than a year to grow. I bear in mind laupele (also known as abelmoschus manihot) are easy to grow and can go as high as 3 metres. You can also propagate it by cutting and it requires very little cultivation.
39. Given Mae’s own evidence that she has not set foot on the area in question since the protection order, and Eti’s evidence he did not see Tasalaotele grow plants there nor know who planted other than Mae’s plants, the only plausible explanation is Tasalaotele did. Her reaction on the video to the plants being sprayed also renders support to this.
40. The evidence established that tulsi plants and some laupele leaves were damaged from the spraying. As to the quantum and value no evidence was adduced to support this other than Tasalaotele’s testimony estimating the value of the tulsis as $50 each and laupele at $10 each.
41. Be that as it may, the fact of the matter is, the area in question remains a common area for all occupants to share in the absence of proper administration of the estate and delineation of physical boundaries for the beneficiaries.
42. In the video footage, Tasalaotele is heard firstly chasing off Eti from her side. She kept yelling at Eti to leave her side. She said this at least 6 times before she noted the plants then reacted by saying Eti has ruined her plants. Towards the end of the P1 footage she again yelled at Eti to leave her side as he was in breach of the protection order.
43. This suggests that Tasalaotele’s main concern was Eti trespassing on her side of the land and the area in question and his allegedly breaching the protection order. She also went to the court registry to obtain a copy of the protection order which did not confirm such an order being made by Justice Warren. Again this confirms Tasalaotele’s main concern as depicted from the footage P1 being Eti allegedly trespassing on her side and breaching the protection order.
44. Tasalaotele’s concern about the plants only came after. But as I said her main concern was Eti being on her side and alleged breach of the protection order.
45. From Eti’s evidence, he conceded he knew what a laupele was but maintained he only sprayed the overgrown weeds around the plants. This is also evident from the video footage P1 where Eti is seen walking and spraying weed on the ground. He did not stop when he reached the laupele plants to directly spray them so the chemical reached the roots.
46. There is also unrebuttable evidence from Eti that on the day in question, he proceeded to spray around the main road to clear the overgrown weed there, then the creepers on the fence which he saw as unsafe as by that time had reached the electricity line.
47. Had Eti intended to deliberately antagonize Tasalaotele, he would not have sprayed other parts of the land and along the main road. He would have focused on the area where Tasalaotele grew her plants and ensured all laupele, lemon grass and any other plant was damaged with the weed killer.
48. The video footage does show the land is bushy with overgrown weed and creepers evident. I accept it was a sight for sore eyes. It gave the impression the land was unoccupied. If it was occupied the occupants did not place much value on clearing it so it is decent and presentable. The plants required trimming with creepers on the road frontage fence. The family property is after all on the road frontage and easily catches the eye.
49. I accept Eti saw this and took it upon himself to clear it. His evidence is when he reached the creepers he spent time spraying the roots to stop it from growing. He did not think it was safe to cut these with a machete as it had reached the electrical line. But he had contacted EPC to clear it but they did not turn up.
50. As deduced from the evidence, although not specifically pinpointed by defence counsel, the defence is one of a claim of right to the area in question and mistake of fact in regards to the tulsis.
51. 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...”
52. Justice Tuatagaloa in Kini^[4] explained the essence of the defence of a claim of right. I adopted her observations in my unreported judgment of P v Taei Fasio^[5]. I have recited the following passages from her Honour’s judgment as in my view this equally applies here:
    • “The defence 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 superseded 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]
    • 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.^[8]”
53. Mistake of fact is a common law defence under claim of right. Justice Slicer in P v Toluono Feti^[9] explained it as follows:
    • “The text Criminal Law in Newand&#160 by Garrow and Caldwell , st., states the legal ingredient in the following terms at 52 – 53, namely
    • [1975] UKHL 3; [1976] AC 182, [1975] 2 All ER 347. It is thought that the following statement represents the law in New Zealand. 'Except where an offence is so defined that proof of intention or foresight is unnecessary, mistake ct&#1160 is a is a defence provided that on the facts as the defendant believed them to be he did not have the mens rea required to constitute the offence charged. Where, owing to a mistake ot, thendefendant dant did ntend to do the prohibited ated act the defence is made out if the mistake was honestly made by him; but where the defendant intended rohibact and assets that he was mistaken to facts whic which, hah, had they existed, would afford justification or excuse, the general rule is that his mistake affords a defence only if it was honestly made and there were reasonable grounds for making it.': 11 ury's Laws of England, 4nd, 4th Ed, para 21 and authorities there cited.
    • The basis for the rule is well stated in the following passage from the jthe judgment of Dixon J in Thomas&#16>[1937] HCA 830;[1937] HCA 83; (1938) 59 CLR 279, 299: 'Whenever a legal standard of liability includes some exercise or expression of the will, some subsidiary rules of law must be adopted with respect to mistake. States of volition are necessarily dependent upon states of fact, and a mistaken belief in the existence of circumstances cannot be separated from the manifestation of the will which it prompts. Whether consent, intention, or motive is the element which a legal criterion of liability includes, it is undeniable that a misapprehension of fact may produce a state of mind which though apparently of the required description is yet really of an entitled different quality.'
    • A mistake as to the existence of a compound event consisting of law and fact is in general a mistake of fact0;Eaglesfielsfield v Marquis of Londonderry [1876] UKLawRpCh 343; (1875) 4 Ch D 693, 702, 760 per Sir George Jessel MR, and;T160;Thomas;ef="http://www.paclii.org/cgi-bin/LawCite?cit=%5b1937%5d%20HCA%2083" title="View View LawCiLawCite Record">[1937] HCA 83;&#160(1938) [1937] HCA 83; 59 CLR 279, 306, 307, per;Dixon J."
54. Adams on Criminal Law[10] had this to say asay about mistake of fact:
    • “It is well established that if an ingredient of an offence include, expressly or by implication a requirement of intention, knowledge or subjective recklessness, the accused is entitled to be acquitted if such a state of mind is absent at the time of the conduct constituting or resulting in the actus reus, even if this results from a mistake of fact which may not have been reasonable or based on reasonable grounds: R v Wood [1982] 2 NZLR 233 (CA) at 237, R v Metuariki [1986] NZCA 45; [1986] 1 NZLR 488; (1986) 2 CRNZ 116 (CA); Millar v MOT [1986] 1 NZLR 660; (1986) 88 CRNZ 216 (CA)...this is so even though the accused may have thought the risk, but honestly concluded that it would not eventuate: R v Hay [1987] NZHC 294; (1987) 3 CRNZ 419; although the conscious taking of a risk which is unreasonable will remain reckless even though the offender mistakenly believed that the degree of risk had been reduced: Jefferson v MAF 12/8/86, Barker J, HC Rotorua M286/85.
    • ...In all cases, the reasonableness or otherwise of a supposed mistake, or ignorance, will be relevant to the credibility of the claim, but reasonableness is not essential: R v Metuariki [1986] NZCA 45; [1986] 1 NZLR 488...
    • Absence of any required state of mind due to a mistake, ignorance or inadvertence will only need to be considered by the triar of fact if there is some “material either from the prosecution case or called by the defence to raise the issue: Millar v MOT [1986] 1 NZLR 660; (1986) 2 CRNZ 216 (CA) at 667 – 668; 224; see further...discussion in Simester & Brookbanks Principles of Criminal Law (3^rd ed Brookers, Wellington 2007) at 435 to 436. However where there is evidence of some circumstance giving the possibility of mistake “an air of reality”, the onus on the Crown is to negate it: R v Livermore (1995) 43 CR (4^th)_ 1; 102 CCC (3^rd) 212 (SCC)”.
55. Justice Slicer in Feti^[11] also affirms this that if the evidence raises the issue of misof fact, it remains the the responsibility of the prosecution to establish to the requisite degree that there was no mista fact>
56. As in Feti^[12], here the two intertwined questions for me to consider arer are:
    • (1) Did Eti have an honest belief he had a claim of right to the area in question?

(2) Did he act under a mistaken but reasonable belief?