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Police v Sapolu [2017] WSFVC 1 (5 May 2017)

FAMILY VIOLENCE COURT OF SAMOA
Police v Sapolu [2017] WSFC 2

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

IUNI SAPOLU, female of Lalovaea
Defendant

Counsel:
L Sio and I Atoa for National Prosecution
E F Sapolu for defendant

Decision 5 May 2017

DECISION OF JUDGE ATOA SAAGA

1. On Friday 5^th May 2017, I delivered my decision. I found the Defendant guilty of uttering the word “Bitch” whereby a breach of peace may be occasioned. These are the reasons for my decision.

THE CHARGES.

2. The Defendant was charged with insulting words pursuant to Section 4(g) of the Police Offences Ordinance 1961. The particulars of the charge are as follows:
   • “That on the 13^th November 2015, the above named Defendant of Lalovaea used an insulting word Bitch whereby a breach of peace may be occasioned.”
   • During the trial, Prosecution amended the charge to also include “or with intent to provoke a breach of the peace.”
3. The Defendant pleaded Not Guilty to the Charge.
4. Both the Prosecution and Defendant requested and were provided with the opportunity to file written submissions. Defence Counsel filed written submissions on 15^th February 2017. Whilst the normal practice is for the parties to serve copies of their submissions to the opposing party, I gave a direction that a copy of the Defendant’s submission be made available only to the Prosecution upon the receipt by the Court of the Prosecution’s submission. The Court has not received any submissions from the Prosecution to date.
5. The Defendant through Defence Counsel objects to the charge on 3 grounds:
   • (i) (The uttering of the word “Bitch”
   • (ii) The charge refers to “words” as opposed to a “word”. The Prosecution alleges that the word used by the Defendant is “Bitch” towards the complainant. It is the Defence’s submission based on Statutory interpretation, that the offence is committed where words not a word is expressed. The word bitch does not satisfy the plural element of the charge.
   • (iii) Even if the Court should find that the Defendant did utter an insulting word, there was no intention to provoke a breach of peace nor was a breach of peace caused as a result of the alleged offence by the Defendant.
   • (iv) It was the Complainant that uttered the word, “Bitch.”

THE RELEVANT LAW:

Section 4(g) of the Police Ordinance 1961

6. Section 4(g) of the Police Offences Ordinance 1961 provides that, ‘’A person commits an offence and is liable to imprisonment for a term not exceeding 3 months or a fine of 2 penalty units who uses any threatening abusive, insulting words or behavior with intent to provoke a breach of the peace OR whereby a breach of the peace may be occasioned.
7. The elements of the offence are:
   • (a) Uses insulting words
   • (b) With intent to provoke a breach of peace OR whereby a breach of peace was occasioned.

Insulting words

8. In the absence of a definition of insulting words, the Court has applied a literal meaning of the word. In Police v Apisala (2015) WSDC 1 at page 35, Judge Tuatagaloa prior to her elevation to the Supreme Court stated,
   • “The Collins Dictionary (1997) defines “insult” to treat or speak rudely or an offensive remark or action.....To put it simply “insulting” means rude or offensive.”
     

Whereby a breach of peace OR Intention to provoke a breach of the peace

9. Section 4(g) of the Police Offences Ordinance is similar in wording to Section 5 of the Public Order Act 1936 (UK) except for the element of public place in the latter Section which is contrary to Section 4(g) which does not require the commission of the offence in a public place. In discussion of Section 5 of the Public Order Act 1936 (UK) McCullogh J in Marsch v Arscott (1982)75 Cr AppR 211 at page 216 stated that,
   • “This section is describing breaches of peace which are brought about or are likely to be brought about by other words or behavior occurring earlier, although not usually long before. The phrase, “whereby a breach of the peace is likely to be occasioned” indicates that Parliament was concerned with cause and effect, ie with conduct which is likely to bring about a breach of the peace and not with conduct itself a breach of the peace and no more.”
10. Intention has to be inferred from the facts.
11. Section 178(n) of the Penal Code of Solomon Islands replicates Section 5 of the Public Order Act 1951. In Anthony Willie and Roger Taro (Unrep. N526 (M), 19 & 20 November 1985, Amet J sitting alone held,
    • “ Mere use and proof of use of threatening, abusive, insulting words, behavior or gestures is not sufficient, it must be objectively by proper evidence proven that one intended to provoke a breach of peace or whereby a preach of peace was likely to take place.”

Case law in Samoa

12. There are numerous authorities in Samoa on the utterance of insulting words in public places Police v Schuster [2013] WSDC 1,Police v Pili (2017) WSDC 1 and in private places Police v Hunt (2016) WSDC 1,Police v Brown [2015] WSFVC 1, Police v Toamua (2015) WSSC 50 Police v Toeaana [2016] WSFC 1, Police v Malaki (2015) WSSC 95,Police v Paselio (2016) WSDC 25. In all these cases, the court not only considered the circumstances surrounding the utterance of the insulting words but have further held that the utterance of insulting words against the police officers during a road blockage (Police v Schuster (supra), on the seawall (Police v Pili(supra) during a private conversation (Police v Leupolu (2015) WSDC 1) and in a heated argument (Police v Brown[2015] WSFVC 1), in an altercation during an extended family gathering, (Police v Toeaana [2016] WSFC 1) briefly in passing (Police v Paselio (2016) WSDC 25) whilst parked outside a home (Police v Toamua (supra) amounted to a breach of peace. Further, in Police v Toamua (supra), the Court was satisfied that in the utterance of one insulting word a breach of peace was occasioned.
13. Notwithstanding, in Police v Apisala [2015] WSDC 1 (15 June 2015) the Court held that the words uttered by the Defendant of sexual impropriety were insulting but not in breach of the peace nor was there an intention by the Defendant to breach the peace. The reason for the decision was because the Complainants did not retaliate when the Defendant allegedly insulted them nor did they tell anyone.
14. The wording of Section 4(g) of the Police Offences Ordinance 1961 is similar to the provisions of earlier legislation in New Zealand^[1] Australia^[2] and England^[3] because of the inclusion of the elements of a breach of peace and intent to provoke a breach of peace. In 1927 however the New Zealand legislation was amended by omitting any reference to a breach of peace. Australia also followed suit in 1931 with the removal of this element in the Queensland legislation and the Victorian legislation^[4]. In England Section 5 of the Public Order Act 1936 was amended by the Public Order Act 1986 with that latter Act amended by section 57 of the Crime and Courts Act 2013 with the element of insulting now removed from English legislation. The amendments to those countries legislations is palpable of the difference in the current case law in those jurisdictions and Samoa and I must be cautious in my application of the case law from those jurisdictions other than those based on the earlier legislations.

Pluralism of Words

15. Section 5 of the Acts Interpretation Act 2015 provides that in an Act a word in singular includes plural, and plural includes singular. An Act is also interpreted as including any Act or Ordinance or subsidiary legislation.

(C) THE EVIDENCE:

16. The Prosecution called 3 witnesses. The Complainant Tasa Sapolu (“Tasa”), her brother Mio Sapolu (“Mio”) and Constable Failautusi Ioane (“Constable”) who was present at the time the alleged offence occurred. Defendant called 4 witnesses. The Defendant Iuni Sapolu (“Iuni”) who elected to give evidence, Josefina Fuimaono (“Josefina”) Saina Leota (“Saina”) and Mae Sapolu(“Mae”). Constable Michelle Arasi was also called as a Defence witness but after an application in chambers, the Defendant opted not to recall her as a witness. For that purpose, I have disregarded the evidence of this witness.
17. The incident occurred on the 13^th November 2015 outside the court room where there were at least 20-50 people including 5-10 police officers after a matter concerning a breach of protection order against Mae Sapolu filed by Tasa was called before Judge Roma. I gather that there was an application by Iuni who was representing Mae to dismiss the charges but the matter was adjourned by Judge Roma to another day. Tasa was accompanied by Mio whilst Iuni and Mae were accompanied by Josefina.
18. Immediately after they had exited the courthouse, Tasa went after the Police Prosecutor to ask him some questions. All the witnesses except for Constable and Saina saw Tasa talking to the Police Prosecutor. It was put to Tasa that she was agitated and visibly upset. After talking to the Police Prosecutor and whilst she was walking away from the Prosecutor, Iuni called out to Tasa “Faamagalo”. (Forgive) It is from this point onwards, that there is a difference in the evidence of the Prosecution and the Defence.

Prosecution Evidence

19. According to Tasa and Mio, Tasa response to Iuni was “ No” after which Iuni called out to her ,”Why did you tell my son that he is not a Sapolu?” and followed after Tasa. Constable Failautusi had just come out of another court room and saw Tasa pass by followed by Iuni who was calling out, “ O lea lau mea ga fai I lau kama.” (What did you say to my child) He said he heard Iuni call out, “You bitch” then before she reached out and grabbed Tasa’s hand. Tasa was holding in her hand a phone. There was a brief struggle before Iuni uttered the insulting words, “you Bitch”.
20. Constable Failautusi intervened by telling Tasa and Iuni,” Vaai onosai ia lava pea le onosai ma le faapalepale, o le nofoaiga faitele nei e le tatau ona tupu ai se mea faapea.” ( You have to be patient and tolerant as this is a public place and something like this should not be happening here) Mio led Tasa away whilst she was calling out to the Police, “ Police do your job. Arrest her” undoubtedly referring to the Defendant. Tasa overheard somebody saying “Onosai.” (Be patient)
21. During Cross examination, it was put to Tasa several times that she had said insulting words against Iuni’s children including calling them illegitimate or fanau o le po. It was also put to Tasa that Iuni did not grab her hand and had only shielded herself from the camera whilst telling her calmly that she had no right to take her picture.
22. Mio’s credibility was questioned by the Defence during cross examination when he said that he will not lie in court. Instances of dishonest dealings including renting out the Defendant children’s properties and the witness previous convictions for burglary and possession of narcotics were put to the witness. Whilst I did find the evidence of Mio as incoherent, exaggerated and at most times misdirected at his brother Eti Sapolu, I am convinced that he was not lying about seeing a brief struggle between Tasa and Iuni and hearing and seeing the Defendant saying, “You bitch” before he led Tasa away.
23. Constable Failautusi was questioned on his ability to remember the events during cross examination. He could not recall specific dates questioned at random by the Defence of 9^th May or June 2016. Defence submits that I should discredit his evidence on that basis and the fact that he did not have a notebook nor recorded the event at the time it had happened. This was submitted as a normal practice in other jurisdiction like New Zealand.

Defence Evidence

24. Tasa walked past Iuni, Mae and Josefina and said “Tama o le Po Bitch”. The word, “Bitch” was uttered under her breath. These words were not specifically put to the Complainant during cross examination and general questions about the Complainant saying insulting words and calling Iuni’s children illegimate and fanau o le po on previous occasion is insufficient to discharge the duty of Defendant to put these essential matters to the Complainant in cross examination pursuant to Section 76 of the Evidence Act. I have therefore excluded this part of the Defence’s evidence.
25. The Defence presented different versions of what was said afterwards and by whom. Iuni and Mae both said that Tasa had called out,” Eliota is not a Sapolu. He is a Malifa.” Mae heard her say loudly for everyone to hear, “He should take Tasi Malifa’s name. Police do your job arrest her.”Josefina said that it was Iuni who said, “Don’t you dare say that about my son. He is a Sapolu”.
26. Afterwards, Tasa pulled her phone out whilst calling out, “Here is the lawyer Iuni Sapolu..” Without touching her, Iuni held her hand to shield herself from the camera. Tasa remained silent whilst she was dodging around trying to take the photo whilst calling out to the Police, “Police do your job, Arrest her.” The Police did not react nor did they arrest the Defendant. Both Josefina and. Saina heard the Police officer say “Onosai” (Be patient)
27. Frustrated, Tasa walked off and just before she reached the stairs she turned out and yelled out, “Two million fraud front page New Zealand Herald.”
28. During the whole incident, the Defendant remained calm and collected.

DISCUSSION

Was the word insulting:

29. Defence submits that it was the Complainant who had uttered the insulting word “Bitch” and was responsible for the breach of the peace. This was an essential matter and should have been put specifically to the Complainant. I have excluded this part of the Defence’s evidence. Even if I was to include that part of the Defence’s evidence, I remind myself, that the Complainant is not on trial and neither was she charged for the utterance of insulting words.
30. Bitch is a female dog. It is undoubtedly an insulting word as it likens a human being to an animal. I am in no doubt that the word uttered is an insulting word. Similarly in the interpretation of any Act or Ordinance, a word expressed in the plural such as “words” is also interpreted to mean a “word” and vice versa. I have also referred to Police v Toamua (supra) where the Court has held that a breach of peace was occasioned in the utterance of one insulting word “kefe”

Did the Defendant utter the insulting word

31. In assessing whether the Defendant uttered the insulting word, I have to consider the circumstances surrounding the utterance of the insulting word.
32. The Defendant saw the Complainant talking to the Police Prosecutor. She was visibly upset and agitated. After that conversation, the Defendant called out “Faamagalo” after which there are different versions presented by both the Prosecution and the Defence of what happened up to when Tasa pulled her phone out. Irrespective of which of these accounts I accept, both of these accounts indicate that the responses from either the Defendant or the Complainant had aggravated further the tension between the Defendant and the Complainant. They had just come out of the courtroom in which an application to dismiss a charge of a breach of protection order against Mae Sapolu was made by the Defendant. Both accounts culminated in Tasa taking her phone out and saying,” Here is the lawyer Iuni Sapolu....”
33. I find implausible that the Defendant would have just stood there calmly with her left hand held up whilst telling the Complainant, “You have no right to take my photo”. I am inclined to accept Prosecution’s evidence that there was a brief struggle after which the Defendant said “You bitch” and after which Tasa called out to the Police to arrest the Defendant. I am persuaded also that Constable heard the words but was mistaken as to the time in which the Defendant said the words. I am satisfied however that he was at the scene as Tasa, Josefina and Saina all heard the word “Onosai” which was part of what he said to the Defendant and the Complainant.
34. Whilst it is the practice of overseas jurisdiction including New Zealand also to equip all their police officers with notebooks and task them to record on a daily basis every matter that is of a criminal nature, I find it unlikely that all the Police Officers in Samoa will equally be equipped with a notebook because of the limited resources available. I also have to consider that all the witnesses including Constable are in Court to testify about what had happened a year ago and if Constable’s memory is affected by time then there is no exception for anyone else who is not a Police Officer.
35. I also accept the Defence evidence that Tasa called out to Police afterwards “Police do you job, Arrest her”. Mae gave evidence that Tasa said these words before she pulled out her phone. I have no doubt that Mae heard Tasa say those words but that she was mistaken of the time in which she heard Tasa say those words. According to Mae, Tasa called out to the Police to arrest the Defendant prior to her taking out her phone. However, there was no reason why Tasa would have called out to the Police prior to her taking out the phone to arrest the Defendant when the only word that the Defendant had spoken then was “Faamagalo”
36. The fact that the Police did not arrest the Defendant then is not an indication that the Defendant had not uttered the word “bitch.”

Was a breach of peace occasioned or an intention to provoke a breach of peace.

37. In assessing whether a breach of peace was occasioned or whether there was an intention to provoke a breach of the peace, I have to consider the surrounding circumstances in which the word, “Bitch” was uttered. I remind myself also that these are not two separate elements and that the Prosecution is only required to prove one to establish that the Defendant is guilty of the commission of the offence.
38. I accept the Prosecution’s evidence as more consistent and logical than the Defence’s evidence of what had happened prior to the utterance of the insulting word. I am convinced that there was no breach of peace occasioned prior to when Tasa pulled out her phone in response to the Defendant calling out
    • “Why did you tell my son that he is not a Sapolu.”
39. I am satisfied however that the breach of peace was occasioned after the Defendant had said, “You bitch” which resulted in Tasa yelling out to the Police, “Police do your job arrest her” and a few minutes later in the sight and hearing of people outside the courtroom that day including all the witnesses, “Two million fraud, front page, New Zealand Herald.” In my view, the word “bitch” was the catalyst of the breach of peace occasioned afterwards.
40. In finding that a breach of peace was occasioned by the utterance of the insulting word, “bitch”, I need not consider whether the Defendant intended to provoke a breach of the peace when she uttered the insulting word.

CONCLUSION

41. I am satisfied beyond reasonable doubt that the Defendant is guilty of the charge of uttering the insulting word, “Bitch” whereby a breach of peace was occasioned.
    

Judge Atoa Saaga

^[1] Section 3(29) of Police Offences 1884 and Section 3(ee) and 42 of the Police Offences 1908
^[2] Section 59 Police Act 1892 (WA) Section 6 of Vagrants Act 1851(Qld), Section 26 and 27 of the Police Offences Act 1958 (Vic)
^[3] Section 5 of the Public Orders Act
Section 17 of the Summary Offences Act 1966 (Vic) replaced Section 26 and 27 of the Police Offences 1958 (Vic)