Police v Hunt [2016] WSDC 55 (14 October 2016)

DISTRICT COURT OF SAMOA
Police v Hunt [2016] WSDC 55

Case name:	Police v Hunt
Citation:	[2016] WSDC 55
Decision date:	14 October 2016
Parties:	POLICE v ESAU HUNT and FELISE HUNT, both males of Vaitoloa.
Hearing date(s):	6 October 2016
File number(s):	D2589/15, D2590/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:
Representation:	I Atoa for National Prosecution Defendant in person
Catchwords:	Willful trespass & insulting words – breach of the peace
Words and phrases:
Legislation cited:	Police Offence Act 2008 s.7 & 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

ESAU HUNT and FELISE HUNT, both males of Vaitoloa
Defendants

Counsel:
I Atoa for National Prosecution
Defendant in person

Decision 14 October 2016

DECISION OF JUDGE ATOA SAAGA

A. CHARGES

1. The First and Second Defendants appear before the Family Violence Court on charges of Willful Trespass which they are individually charge with and one count of Insulting words against the First Defendant.
2. The particular of the charges are as follow:
   • (a) On the 1^st and 3^rd September 2015, the above named Defendant Felise Wulf of Vaitoloa willfully trespassed on land in occupation of David Joseph Parker male of Vaitoloa.
   • (b) On the 1^st and 3^rd September 2015, the above named Defendant Esau Hunt of Vaitoloa willfully trespassed on land in occupation of David Joseph Parker male of Vaitoloa.
   • (c) On 3^rd day of October 2015, the above named Defendant Esau Hunt of Vaitoloa used insulting words namely “Kefe, Ufa, Pukio, Komo” whereby the breach of peace may be occasioned.

B. WILFUL TRESPASS

3. Section 7 of the Police Offences Ordinance 1961 provides that, “ A person is liable to a fine not exceeding 20 penalty units or a term of imprisonment not exceeding 6 months, or both who willfully trespasses on land or premises in occupation of any other person.”
4. The Prosecution has a duty to prove beyond reasonable doubt that the Defendants
   • (i) Willfully trespassed on the land or premises
   • (ii) The land or premises is in occupation of any other person.
5. The Defendants dispute the first element of the offence. Their defence is that they were not willful trespassers because they had a legal right to be on the property because the land in dispute is part of the 14 acres property of the late Edwin Hunt who is the First Defendant’s grandfather and the Second Defendant’s Great Grandfather. Edwin Hunt is also the Complainant’s great grandfather.
6. Both Defendants do not dispute the second element. They concede that the land in dispute is currently occupied by David Joseph Parker and his family. David Joseph Parker is the First Defendant’s nephew and the Second Defendant’s cousin.
7. The land that is currently occupied by David Joseph Parker and his family is also occupied by Maria who the Defendants and the Complainant refer to as their Aunty Maria. On this land is the Complainant’s grandmother grave and it was on that grave that the Defendants were drinking on the night of 3^rd October 2015.
8. David Joseph has a history of mental illness of schizophrenia.

THE LAW

9. Criminal Trespass protects the rights of occupation rather than ownership just as Trespass in Torts is concerned with the vindication of the violation of possession. In Barber v Police [2013] NZHC 1808, Mr Barber’s conviction was quashed by the High Court of New Zealand on Appeal when the High Court found that the land that Mr Barber had trespassed on was owned but not occupied by the Council at the time of the trespass. At the time of the trespass, the Council had leased the property to nine social clubs and the Court found that nine social clubs were in occupation of the property at the time of the offence and not the Council.
10. Justice Speight in Police v Cunnard [1975] 1 NZLR 511 at page 515 stipulated that,

“The inclusion of the word willful indicates to me that mens rea is an ingredient of the offence not only as to the failure to remove himself but also as being a trespasser. In a case of a person who was willfully authorized to be on the premises the obligation to remove himself only arises with a person who has not only breached his license but knows that he has breached his license. If the offence arose when and if the circumstances justifying his revocations has arisen and the request to remove has been ignored then the word “willful” would not appear in the section. Willfulness is a subjective matter. Therefore in my view if a person bona fide believes that his license is being improperly revoked, he will be, if he is mistaken, a trespasser but he will not be a willful trespasser. “

11. Police v Cunnard premised on Section 3 of the New Zealand Trespass Act 1968. The 1968 Act has since been repealed by the New Zealand Trespass Act 1980 with the word “willfully” removed from 1980 Act. Notwithstanding the removal of the word “willfully” the High Court of New Zealand in Hanna V Police [2012] NZHC 218 held that the offence still requires mens rea to be established and the Prosecution must prove beyond reasonable doubt that the appellants intentionally trespassed and that the mens rea is not an intention to trespass but rather the person who is already trespassing knowingly and willfully refuses or neglects to leave when requested to do.
12. I must also draw attention to the differences in New Zealand Trespass Act 1968 and Section 3 of the Trespass Act 1980 and Section 7 of the Police Offences Ordinances 1961 The Samoan legislation unlike the New Zealand Acts does not specifically require proof that the person charged was warned to leave that place by an occupier but the trespasser neglected or refused to do so. Notwithstanding the absence of a specific provision to that effect, the fact that the person was warned to leave but refused to and knowingly remained on the premises can assist the Court in determining the issue of whether the person is a willful trespasser within the meaning of Section 7 of the Police Offences Ordinance 1961.
13. The Court of Appeal in England also discussed the meaning of a trespasser although within the context of the Theft Act 1968^[1]. I find it useful to consider the extent to which the English Courts have considered what constitutes a trespasser. In R v Collins [1972] EWCA Crim 1; [1972] 2 All ER 1105, Justice Edmund Davies who delivered the decision of the Court of Appeal at page 1110 that,

“ In the judgment of this court, there cannot be a conviction for entering premises as a trespasser within the meaning of Section 9 of the Theft Act 1968 unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or at the very least, is reckless whether or not he is entering the premises of another without the party’s consent”

14. Honest belief in the existence of fact is can be a defence in itself. In R v Thomas [1991] NZCA 10; [1991] 3 NZLR 141 at page 143, Justice Casey who delivered the decision of Court of Appeal of New Zealand stated that,
    • “It is now settled law in New Zealand that in the ordinary class of case where the prosecution must prove mens rea “an honest belief in the state of affairs or as to the existence of a fact, which if true would make the act innocent, will provide a defence itself.”
15. Similarly, if the Defendant enters a land in which he trespassed it is no defense that he mistakenly thought that it was his own land. Mistake is no defense in trespass.^[2]
16. The Supreme Court of New Zealand in Police v Shadbolt [1976]2 NZLR 409 also made an important distinction between a genuine mistake as to the facts and a genuine mistake as to his legal rights. Justice Wilson who delivered the decision of the Supreme Court stated at page 410,

“The sole issue was whether he had become a willful trespasser and I shall now endeavour to show why I came to the conclusion that he had. In Police v Cunard, Speight J quashed a conviction under Section 3 because the evidence showed that Cunard genuinely believed that his degree of intoxication was not sufficiently great to warrant the hotel manager’s revocation of his license to remain in the hotel and therefore, although he became a trespasser when his license was revoked, he did not become a willful trespasser. In so concluding the learned judge adopted the view of willful trespass taken by the Court of Appeal in England in R v Collins [1972] EWCA Crim 1; [1972] 2 All ER 1105, but he made the important distinction between a bona fide belief in legal rights which do not exist, no matter what view of the factual situation is held by the trespasser. After considering the dicta of Salmond J in Greenaway v Hunt [1922] NZLR 52, he said, “ Again I point to the fact that this was a belief as to a question of law and not to what I describe as a developing fact situation.” ([1975] 1 NZLR 511, 517. In the instant case, the appellant believed that he had a legal right to remain in the association’s office until he had been given the information that had been denied him. He was under no genuine mistake about the factual situation, only about his legal rights in that situation. His trespass was therefore, willful, and he was rightly convicted.”

EVIDENCE

17. Both the Complainant David Joseph Parker and his wife Pisila testified that on 1^st October 2016 at around 11 pm they saw the Defendants on the land talking to Aunty Maria. The Defendants left immediately after they talked to Aunty Maria. Prosecution did not call Aunty Maria to give evidence.
18. On 3^rd October 2015 at around 3 am, Defendants came onto the land currently occupied by David and his family. The Defendants were intoxicated and had just returned from a night out in town. The Complainant and his wife were asleep and were woken up by the noise outside their house. They both saw the First Defendant removing the barbed wire before coming onto the land with the Second Defendant. David called out to the Defendants as to why they were on the property. Esau responded by saying that David had no right to question him as to his right to be on the land. The Defendants continued onto the land ignoring David and sat on David’s grandmother’s grave drinking alcohol. They left sometime after when David continued to yell at them to get off the land. David’s voice was very loud and was heard by Delilah Hunt, the first Defendant’s wife from across the road. She came quickly from across the road as she was concerned about the Defendants safety. She found the Defendants eating at the side of the road outside the property. She could however see David and hear him yelling at the Defendants to keep off the land.
19. David and the Defendants also gave evidence that the land in dispute is part of the 14 acre property of Edwin Hunt and that subdivision has already commenced since 2007 but has yet to be completed. The boundaries of each property however has been defined although not formally registered. The Subdivision plan is in accordance with the allocation of the land to Edwin Hunt’s children which includes David’ grandmother who is also Aunty Maria’s mother, Esau’s father and also the Second Defendant’s grandfather.
20. The Defendants have also not lived nor occupied the land in dispute. Their properties are on a different part of the 14 acre property. They had the liberty however in the past to access the mangroves through this property. Since the occupation by David and his family of the land in dispute two years previously, the Defendants and their children have been prohibited by David from coming onto the property. This has caused a lot of discontentment between David and the Defendants.
21. There has also been an earlier incident in which a complaint had been filed by David against the First Defendant for allegedly winking at his wife. The earlier incident caused the First Defendant distress.

DISCUSSION

22. The First and Second Defendants were on the land in dispute on the 1^st October 2016 at 11pm talking to Aunty Maria. There is no evidence before the court to suggest that they were prohibited by Aunty Maria to be on the land. There was no altercation between the Defendants and Aunty Maria nor the Defendants and the Complainant. They were already on the property talking to Aunty Maria when the Complainant saw them and they left immediately after he saw them.
23. On the 3^rd October 2016 at 3 am however, the Defendants deliberately removed the barbed wire fence and continued onto the premises despite the Complainant telling them to leave. The act of removing the barbed wire and telling the Complainant that he had no right to question their presence on the land indicated that the Defendants knew that they were trespassing. It was also at 3 am when the occupants of the land were all asleep. Their continual presence on the land after David had asked them and yelled at them to leave the premises purports that they were willfully trespassing on the property.
24. The Defendants also cannot raise a defence of honest but mistaken belief as their honest but mistaken belief is in respect of their legal rights and not of the facts. The facts are the Defendants knew that the Informant is the occupier of the land and that Informant’s grandmother’s descendants have always occupied this land. The Informant’s grandmother is also buried on this land.
25. Secondly, the Defendants knew that they were not permitted by the Informant to be on the land. Not only did the Informant erect the barbed wire fence at the side of the property but he yelled at them to get off the land after the First Defendant purposely removed the barbed wire. The Defendants also stayed awhile on the property to agitate the Informant but left eventually when the Informant continued to yell at them to get off the land.

INSULTING WORDS

26. Section 4(g) of the Police Offences Ordinance 1961 provides that, “A person commits an offence and liable to imprisonment for a term not exceeding 3 months or to 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 peace may be occasioned. “
27. Prosecution has a duty to prove beyond reasonable doubt that the First Defendant
    • (a) uttered insulting words (b) with intent to provoke a breach of peace or (c) where a breach of peace was occasioned.

Evidence

28. There are two versions presented in Court of what had transpired at around 3 am on 3^rd October 2016. The first version is that of the Complainant and his wife. Their version is that the First Defendant had uttered the insulting words, “Ufa, kefe, Pukio e ke le pule I le fagua,” in response to the Complainant questioning the Defendants as why they were coming onto the property after a court ruling that prohibited them from coming onto the land.
29. The First Defendant version is they had come onto property without having to remove any barbed wire fence and it was for the purpose of asking their Aunty Maria for food. He said the Complainant yelled at them and chased them off the land and that he had responded quietly by asking the Complainant to calm down and to discuss the matter in an amicable manner.

Discussion

30. I do not accept that particular part of the First Defendant’s evidence. The First and Second Defendant had been drinking all night and by that fact alone diminishes the likelihood of the First Defendant responding to the Complainant’s barrage of questions quietly. Rather the Complainant by questioning the Defendants right to be on the land, the First Defendant would have perceived the questioning as a sign of disrespect on the part of the Complainant who is of younger generation. Secondly the First Defendant would still be upset over the prior incident where he was charged on a complaint by the Informant for winking at his wife.
31. I found both the Complainant and his wife credible witnesses.

CONCLUSION

32. For the foregoing reasons, I find that the Prosecution have proven beyond reasonable doubt the following: ,
    • (a) The charge of willful trespass against the First Defendant.
    • (b) The charge of wilfull trespass against the Second Defendant.
    • (c) The charge of Insulting Words, against the First Defendant.
      

Judge Atoa Saaga

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^[1] Section 9 of the Theft Act 1968
Burglary.
(1)A person is guilty of burglary if—
(a)he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
(b)having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm F2... therein, and of doing unlawful damage to the building or anything therein.

^[2] Halsbury, 4^th Edition, Volume 84, Para 1393