Police v Sione [2016] WSDC 10 (14 March 2016)

DISTRICT COURT OF SAMOA
Police v Sione [2016] WSDC 10

Case name:	Police v Sione
Citation:	[2016] WSDC 10
Decision date:	14 March 2016
Parties:	POLICE v TUIPALUSAMI SIONE male of Saina Faleata
Hearing date(s):	25 February 2016
File number(s):	D504/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	- I am therefore not satisfied beyond a reasonable doubt that the defendant was driving the bus in a manner dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road. - The charge against the defendant is accordingly dismissed.
Representation:	R Titi for Prosecution Defendant in person
Catchwords:
Words and phrases:
Legislation cited:	Police Offence Ordinance 1961 s.4(g)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TUIPALUSAMI SIONE male of Saina Faleata
Defendant

Counsel:
Ms R Titi for National Prosecution Office
Defendant in person

Decision : 14 March 2016

DECISION OF DCJ CLARKE

The Charge.

1. The defendant is charged with a single charge that between the 1^st and 10^th day of October 2015, he used threatening words at Saina Faleata namely “a o’o na fai le tou fale o le mea o le a motusi ai ulu ma papa ai fana” whereby a breach of the peace maybe occasioned.
2. The defendant pleaded not guilty to the charge and the matter proceeded to a defended hearing on 25 February 2016.

The Law:

3. The charge against the defendant is brought pursuant to section 4(g) of the Police Offences Ordinance 1961. Section 4(g) provides:
   • (a) 4. Offences relating to public order and interest – A person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine of 2 penalty units who:
   • (b) (g) uses any threatening, abusive, insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned;”

The Prosecution Evidence:

4. The Prosecution called 1 witness, Tuipalusami Ainea Uiese. Tuipalusami Ainea is a serving Police Officer and who has been with the service for approximately 7 years. He is from Saina Faleata and holds a matai title from that village and is part of the defendant’s family. He told the Court that the defendant is his uncle and that the defendant’s house is about 20 metres from his house. He said that on Friday the 2^nd of October 2015, he was doing work at his home and had some men working at his home with him. At the end of the day in the evening, they finished their work on his house and they then drank ava in a small group at the front of his house, this being the Tuipalusami Ainea, his uncle Malama Faamolemole, a worker named Lupe and another matai from his family.
5. Close to 8pm, the defendant came to his house while they were drinking ava. The defendant was offered but declined the ava. The defendant then told the group and Tuipalusami Ainea that he was unhappy about the Land and Titles Court matter involving a family dispute. Tuipalusami Ainea said that the Land and Titles Court matter involved a dispute between the defendant and his brother Tuipalusami Tualagi. The dispute was about Tuipalusami Tualagi wanting to build on customary land where the defendant lives at Saina. Tuipalusami Ainea said that the defendant raised his voice at them and said “A fa’auina le faiga a le galuega, o le a papa ai fana” and “e motusi ai ulu I le sapelu”. He said that he felt ‘loto tina’ and that it may cause a ‘fa’afitauli’. The witness said he sat there and did not want to break the law, he is a Police Officer, and was saddened by the statements made. His evidence was that these statements were made during the ongoing Land and Titles Court case.
6. The defendant was given the opportunity to cross-examine this witness. The defendant was informed both at the beginning of the hearing and at the end of examination in-chief of Tuipalusami Ainea that he needs to cross-examine the witness on any matters contrary to his case or as to the witness’ evidence that he disputes. The defendant did not cross-examine the witness.

The Defence Evidence:

7. The defendant elected to give evidence. He is a 74 year old from Saina Faleata and also lives in Australia. He is a married pensioner with 6 children. In his evidence, the defendant largely confirmed the prosecution evidence given by Tuipalusami Ainea. In his evidence, he principally disputed the charge on the basis that the complaint lodged with Police was by his brother Tuipalusami Tualagi yet the witness giving evidence was not his brother. He also disputed having uttered the words alleged by Tuipalusami Ainea.
8. Under cross-examination, the defendant confirmed the evidence of Tuipalusami Ainea relating to the discussion at Tuipalusami Ainea’s home whilst Tuipalusami Ainea and others were drinking ava. He also confirmed that this discussion occurred whilst there was a Land and Titles Court proceeding between the defendant and his brother concerning the defendant’s brother building on the land at Saina occupied by the defendant. He also confirmed that the Land and Titles Court proceeding was scheduled to be recalled on 9 October 2015, the alleged discussion on 2 October 2015 therefore having occurred a week beforehand whilst it was still ongoing.
9. In his evidence, the defendant said that when he went to Tuipalusami Ainea’s house where they were drinking ava, he said he went there feeling hurt by his family. He said he was angry (‘ita”). In essence, the defendant’s evidence was that he was angry and upset by the Land and Titles Court proceedings and his family supporting his brother over him in those proceedings. He said that what he said to Tuipalusami Ainea was ‘why do you go and support Tuipalusami Tualagi yet he doesn’t stay with the family, does not carry out his tautua inside the village and it is him (the defendant) that has bestowed the matai titles on them (his family), it is him that has performed service to the village yet they go and support his brother in the Court case.” He said that many other words were spoken that evening and also said that if this happens, in reference to the brother’s building, ‘Tau le po, e tau le ao’ and he said this because he was angry. He said he was upset with his family but he however disputes saying the words alleged by Tuipalusami Ainea. In clarifying his evidence, the defendant spoke further about his deep hurt that after all he had done for his family, “they left me by myself” in the Land and Titles Court proceeding and supported his brother who had been no use to the family.

Discussion:

10. The first issue to determine is whether or not the defendant spoke the words alleged, “A fa’auina le faiga a le galuega, o le a papa ai fana” and “e motusi ai ulu I le sapelu”. In his evidence, Tuipalusami Ainea said that the defendant said those words. Whilst it comes down to the uncorroborated evidence of Tuipalusami Ainea against that of the defendant, I am satisfied beyond a reasonable doubt that the words alleged by Tuipalusami Ainea to have been spoken were spoken by the defendant. The defendant never put to the witness the words he claimed to have said and furthermore, the defendant never challenged any aspect of the evidence of Tuipalusami Ainea, despite having been informed when given the opportunity to question Tuipalusami Ainea that he must question the witness on evidence he (the defendant) disputes. No cross-examination was undertaken. In giving his evidence, Tuipalusami Ainea was clear about the words he alleged were spoken by the defendant and came across as a credible witness.
11. In giving his evidence, the defendant freely admitted that he was angry about the Land and Titles Court case and that when he spoke with Tuipalusami Ainea, he said “E tele o’u famatalaga sa fai’ and that he was angry with his family. The defendant was by his own evidence very upset at what he perceived to be the wrong committed by his family against him despite all he had done for his family. That emotion came across strongly in his evidence. He also freely admitted that if this happens, namely the building of his brother’s house, “e tau le ao, e tau le po.” Much was said on that evening of 2 October 2015 and I am satisfied beyond a reasonable that he spoke the words alleged by Tuipalusami Ainea.
12. The next question then is whether the words spoken fall within section 4(g) of the Police Offences Ordinance 1961, namely that the words spoken:

(c) constitute threatening words; and

(d) were intended to provoke a breach of the peace; or
(e) may cause a breach of the peace to be occasioned.

13. I am also satisfied beyond a reasonable doubt that the words spoken by the defendant were threatening. He said that if the work is carried out in reference to the building of his brother’s house, guns will be fired and heads will be cut-off with a bush knife. In any context, let alone the context of what is clearly a very bitter and divisive family dispute over the building of a house on land between two brothers, the words were threatening words and were not said in jest. As the defendant said in his evidence, he was angry.
14. I am also satisfied beyond a reasonable doubt that the words spoken may have caused a breach of the peace to have been occasioned. The defendant spoke about his unhappiness to Ainea, a member of the defendant’s family about his anger at his family for supporting his brother over him despite all he had done for the family. The threatening words were spoken by the defendant in anger and with a raised voice. This was done whilst Tuipalusami Ainea was with members of his family and others drinking ava. Tuipalusami Ainea said that he felt very hurt by what was said and that what was said may cause a ‘fa’a fitauli’. He reminded himself he could not act on his emotion. These words in these circumstances I find beyond a reasonable doubt may have caused a breach of the peace. That a breach of the peace did not occur was much due to Tuipalusami Ainea not rising to the occasion and to what was said by the defendant.

Decision:

15. I am satisfied beyond a reasonable doubt that the Prosecution has proven the offence charged beyond a reasonable doubt.
16. This matter is adjourned to 21 March 2016 at 12.30pm for a Victim Impact Report and sentencing.

JUDGE D M CLARKE