- The power of this Court to commit for contempt of Court is incidental to its substantive statutory jurisdiction either by express
power conferred by statute or implied. Here, it is conferred by statute.
- Section 75 (1) (a) LTCA provides as follows:
“75. Offences – (1) A person commits an offence and is liable upon conviction to a fine of 5 penalty units or imprisonment
for 6 months who:
- Disobeys any decision or order of the Court.
2) Proceedings for an offence under the Act are to be taken in the District Court”
- In Police v Malu[1] Judge Roma dealt with a similar charge brought pursuant to s75(1) (a) LTCA where he noted that proceedings brought under this provision
are akin to contempt of court. The learned Judge adopted the elements of civil contempt of Court from the Supreme Court civil case
of Polynesian Ltd v Samoa Observer Company Ltd[2] as applicable in contempt proceedings brought under s75 (1) (a) LTCA.
- The elements were identified as whether:
- The terms of the decision or order are clear and unambiguous;
- The accused had proper notice of it;
- The accused disobeyed it.
- I note neither counsel touched on the elements of the offence. But I intend to adopt here the same ingredients above noting that other
judges of this Court also did the same. But for my part, it is crucial to recast our minds to the purpose of the law of contempt
to better understand the rationale for applying the same test in Polynesian Limited.[3] The importance of this was recognised by Pankhurst J in Solicitor General v Krieger.[4]
Principles of Contempt of Court
- Much has been said already about the purpose and rationale for contempt of court. The rule of law in Samoa, involves honouring court
orders to uphold and protect the administration of justice. With the increase in the number of contempt cases in this Court, it makes
it fitting that we be reminded of the principles of contempt of Court.
- The rationale for contempt of Court is as observed by the learned CJ Sapolu in Polynesian Ltd v Samoa Observer Company Ltd[5] where he quoted with approval the following passage from Borrie & Lowe's Law of Contempt[6]:
- “The rationale of both criminal and civil contempt is therefore essentially the same: upholding the effective administration
of justice. If a Court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual
litigants suffer, the whole administration of justice would be brought into disrepute”.
- The learned Eichelbaum CJ and Greig J described it in Solicitor-General v Radio Avon Ltd[7]as follows:
“... the objective of the law of contempt is not to shield the judiciary or the judicial system from criticism. Least of all
is it a matter of protecting the decision of the Judge or the jury in an individual case from appropriate comment. It is justice
itself that is flouted by contempt of Court, not the individual Court or Judge attempting to administer it ...”
- The above principle is also mirrored in the leading NZ case of Siemer v Solicitor General[8] where the learned McGrath J succinctly stated that:
“The law of contempt does not of course exist to protect the dignity of judges but to protect the public interest in the due
administration of justice by an impartial court.”
“...No one can question the extreme public importance of preserving an efficient and impartial system of justice in today’s
society which appears to be subject to growing dangers of direct action in its various forms. It is to that end, and that end alone,
that the law of contempt exists”
- Similarly, MacKenzie J in Hargreaves v Smith[9] emphasised that:
“The purpose of the law of contempt is to preserve the efficient and impartial system of justice and public confidence by dealing
with challenges to the fundamental supremacy of the law. It is a process to be used only out of public necessity and must be exercised
with the scrupulous care and only when the case is clear and beyond a reasonable doubt”
Civil and Criminal Contempt
- Contempt of Court is originally a common law offence. Historically it was classified as either criminal or civil. McLachlin J in the
Canadian Supreme Court matter of United Nurses of Alberta v Alberta explained the distinction as follows:[10]
“A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of
public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach,
it becomes criminal.”
- According to Arlidge, Eady and Smith in their book Contempt[11]:
“...A criminal contempt is an act which so threatens the administration of justice that it requires punishment from the public’s
point of view; whereas, by contrast, a civil contempt involves disobedience of a court order or undertaking by a person involved
in litigation.”
- Blackstones Criminal Practice[12] describes criminal contempt as a broadly based offence which can take a number of different forms. At common law it is defined as
behaviour “involving an interference with the due administration of justice either in a particular case or more generally as a continuing process”[13]
- Furthermore:
“Broadly based though it is, criminal contempt can nevertheless be categorised according to whether it is committed in the face
of the court or committed indirectly (i.e a constructive contempt such as the publication of a book or article prejudicing a forthcoming
trial in a way which may influence potential jurors or witnesses)...criminal contempt has traditionally been distinguished from civil
contempt which takes the form of non compliance with a court order (or an undertaking in lieu of an order) favouring another party).
- The same description is mirrored in a number of cases including Hargreaves where the NZ High Court said:[14]
“The first is criminal contempt, which consists of words or acts obstructing or tending to obstruct or interfere with the administration
of justice. The second is civil contempt which consists of disobedience to the judgments, orders or other processes of the Court”.
- Then in Krieger the Court describes it in a similar vein:[15]
“Historically, contempt of Court was classified as either criminal or civil in nature. The distinction drawn was that criminal
contempt concerned acts which so threatened the administration of justice as to require punishment in the public interest; whereas
civil contempt involved disobedience of Court orders where intervention by the Court was remedial–for the benefit of the party
in whose favour the order was made.”
- According to Blackstones, another distinction is that in civil contempt, it is usually up to the opposing party to instigate proceedings and he or she generally
retains the right to waive the contempt. Whereas in contrast, cases of criminal contempt are generally prosecuted by the Attorney
General or by the court, acting on its own motion.[16]
Is there still a Distinction?
- But does the distinction still survive today? Blackstone observes that the distinction has always been problematic. The leading NZ case of Siemer[17] noted that there is no real distinction between the two contempts. I agree.
- The NZ Law Reform Commission (“NZLRC”) carried out a review on the law of contempt and recently released its report in
May 2017[18] (“the Report”). The Report recognises that contempt of court is found in a mix of common law and statutory provisions.
This is the same as Samoa. I would encourage whoever wants to be enlightened on this topic to read the Report which provides an excellent
summary of the different types of contempt.
- The NZLRC in the report recognised the same distinction discussed above. It stated that:
“...Under the traditional dichotomy, the law conceptualises criminal contempt as punitive and concerned with punishing actions
or words that obstruct or interfere with the public interest in the administration of justice. Meanwhile it views civil contempt
as primarily remedial or coercive in nature because it is concerned with compelling compliance with the court’sorder through
the threat of punitive sanctions[19]
[However]... the traditional distinction overlooks the underlying rationale behind every exercise of the contempt power, namely that
of upholding and protecting the administration of justice. Even if civil contempt is coercive, it is also punitive and shares the
attributes normally associated with criminal contempt. It is only because the disobedience of the Court’s orders interferes
with the fair administration of justice that it is contempt and punishable by imprisonment in the same way as criminal contempt.”
- The Report concluded that there is no longer any real dichotomy between the two contempts. This view is also echoed in cases such
as Krieger,[20] where Panckhurst J refers to the distinction as ‘illusory’ and stated as follows:
[T]he validity of this distinction has been doubted in many jurisdictions. A true dichotomy does not exist. Civil contempt, in common
with criminal contempt, is similarly focused upon the due administration of justice. The remedial punishment for a civil contempt
will benefit a litigant, but the Court intervenes in direct response to the disobedience of its order. Hence, civil contempt vindicates
both the right of the successful litigant and equally the authority of the Court. As Salmon LJ put it, the two objects are inextricably
intermixed.”
Same test?
- For Samoa, there are only a few reported contempt of court cases. The fact that other jurisdictions recognises there is no longer
any real dichotomy given the same principles apply whether it be a civil or criminal contempt renders support to the reasoning that
the elements for civil contempt for disobeying a court order equally applies to criminal contempt. The law in NZ has moved with changing
times. So should we.
- For the instant case, Police as informant brought the charge on behalf of the complainant on instructions of the Court Registrar.
The Attorney General prosecutes. In that sense then the proceedings is criminal in nature.
- Section 75 LTCA anticipates the commission of an offence. It is essentially punitive as it seeks to punish the contemnor if the charge
is proven for disobedience of any order or decision of the LTC and therefore the administration of justice.
- On a strict application of the traditional classification of the two types of contempt, disobedience of a Court order is classified
as a civil contempt. As seen above, a dominant feature of civil contempt is to punish the contemnor for disobedience of a Court order.
So for the instant case it is in every other respect, a civil contempt. I bear in mind that the contempt of Court jurisdiction as
summarized above exists in the public interest to uphold and protect the administration of justice not just to require compliance
with an instrument of state coercion.[21]
- Civil contempt proceedings for disobedience of a court order are deemed as quasi criminal.[22] Some of the common features shared with criminal contempt are:[23]
- The onus of proof rests with the Prosecution / Plaintiff;
- The contempt must be proven to the criminal standard which is beyond a reasonable doubt;
- The penalty is the same;
- It is unnecessary to prove an intention to interfere with the administration of justice.[24]
- As seen from the above analysis, there is good sense in saying that the elements of a civil contempt for disobeying a court order
similarly applies to a criminal charge of the nature as here. Also bearing in mind the matter originated in the LTC involving private
parties.
- Given the recognition by the NZ Supreme Court and recently the NZLRC that there is no longer any real dichotomy between civil and
criminal in existence today, it makes sense for us to follow suit.
No case to Answer
- On an application of a no case to answer, the applicable law is settled here in Samoa. Briefly, it derives from the English Court
of Appeal case of R v Galbraith[25] echoed in Auckland City Council v Jenkins[26] and adopted in a number of our own cases. These included our Court of Appeal decisions of AG v Kolio,[27] AG v Taioalo,[28] AG v Tavui[29]; Supreme Court cases to name a few such as P v Ah Sui[30], P v Pouvi,[31]P v Samau[32], P v Toamua,[33] and P v Carruthers[34] and District Court cases such as Police v Tevaga[35].
- In R v Galbraith (1981) 73 Cr App R 124, p. 127 Lord Lane CJ said:
“How then should a Judge approach a submission of no case?
(1) If there is no evidence that the crime alleged has been committed by the accused, there is no difficulty. The Judge will of course
stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses
or vagueness or because it is inconsistent with other evidence.
(3) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest is such that a jury properly directed could
not properly convict on it, it is his duty on a submission being made, to stop the case.
(4) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s
reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the
facts there is evidence on which a jury could properly come to the conclusion that the accused is guilty, then the Judge should allow
the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely
be left to the discretion of the Judge”
- In Toamua, the learned CJ Sapolu dealt with a judge alone application of a no case to answer. He said:[36]
“As this is a Judge alone trial, I would refer to Police v Sione [2001] WSSC 8 where this Court A;Auckland Coun Jenkins  ;[1d">[1981] 2 NZLR 363 which wash was concerned coth committal proceedings in New Zealand before a Judge alone and a submission of
“A tribunal deciding whether or not there iere is a case to answer must decide whether a finding of guilt could&be ma a reble
jure jure jury or y or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact er it
is ‘prima facie’ – a well understood phrase”.
- I will adopt CJ Sapolu’s approach in Toamua which I note Justice Tuala - Warren also followed in Carruthers.[37] This is a judge alone trial and the question I must answer is, whether there is prima facie evidence with respect to each element
of the offence charged which if accepted, would prove that element?[38]
- If I find there is a case to answer, then the next question is whether Prosecution has proven beyond a reasonable doubt, the Defendant
Tagaloa disobeyed the LTC order as alleged?
EVIDENCE
Preliminary Issue
- A preliminary issue arose regarding the admissibility of the LTC Decision and LT Court of Appeal Decision (“The Appeal Decision”)
of 10 February 2017. Defence Counsel sought to have both decisions tendered by consent. Prosecution however informed it would only
be relying on the LTC decision but not the Appeal which it deemed irrelevant to its case.
- I must say I was quite concerned with the stance Prosecution took especially the insistence on the appeal decision being irrelevant
to its case. Whilst I appreciate Prosecution has a discretion on how to proceed with its case, I must still remind Counsel about
the overall interest of justice. I must also remind of the paramount duty of any counsel to the Court to place before it all relevant
information whether favourable to their case or not, to assist the Court come to a fair decision on the matter at hand.
- I ruled that the LTC decision could be tendered by consent which became exhibit P1. In regards to the Appeal decision I decided to
take judicial notice of it as I am entitled to pursuant to s122 (1) (b) and (2) Evidence Act 2015.
- At the close of Prosecution’s case, no move was made to amend the charge to reflect the correct year of the LTC decision on
the information which should be 2016, not 2017. I have accordingly amended the information to reflect this. I do so pursuant to s55
Criminal Procedure Act 2016; there being no prejudice to the defence; after all that judgment was tendered by consent and the date is uncontested.
Undisputed facts
- No agreed set of facts was produced. It would have helped if one was done and I would encourage this in criminal contempt proceedings.
In any event, I have identified the undisputed facts as follows:
- Tagaloa is part of the Tautaituatasi (“Tautaituatasi”) family and for a number of years, they occupied part of Lelano
land at Moataa under the ownership of the title Tofaeono (“The Land”).
- A petition was brought inter alia to evict Tautaituatasi and his family which was successful and the decision for that matter was
recorded as LC 5948 P1 & P2 dated 4/02/1986.
- Following that decision, an agreement was reached between Tofaeono Tile (Sa’o of the family then) and other matai of his family
to allow Tautaituatasi’s family to remain in occupation of part of the land. This agreement is dated 10/06/1986.
- Tagaloa and his family still occupy part of the land to date.
- A building known as the Wilex building was erected on the land but was burnt down. There was also a leasehold to Wilex Company but
this was terminated as conveyed by MNRE in a letter dated 11/01/16 (“The Lease”).
- Reconstruction on the building was carried out sometime in 2015 with the consent of both Tofaeono’s as sa’o of the family.
- However, an interim injunction was later issued on 15/02/16 effectively ceasing the reconstruction of the Wilex building.
- A petition in the LTC was brought by Tofaeono Iupati Fuatai (“Tofaeono Iupati”), Filifilia Tamasese and others to terminate
the lease and evict Tagaloa and his family from the land. Tagaloa and his family were the first defendants and Tofaeono Vui Leavasa
(“Tofaeono Vui”) and his family, second defendants.
- The matter went to hearing on 27 and 28/04/16 and the LTC decision was delivered on 27/05/16. The orders are recorded as follows:
“E tumau pea le mamalu o faaiuga a le Faamasinoga e fesootai ma lenei mataupu pei ona aofia i suesuega.
5.1 E faamaonia le faamutaina o le Lisi i luga o se vaega o le fanua o Lelano i Moataa, pei ona iai le tusi aso 11 Ianuari 2016 a
le Minisita o Faamoetauloa Dr Faale Tumaalii (MNRE).
5.2. Ua faamaonia le tumau pea ona nofoia e le itu Tetee 1 o se vaega o le fanua o Lelano i Moataa.
5.3. Ua faamaonia le sainigalima pei ona iai i le aso 10/6/1986.
5.4. O le Poloaiga le Tumau aso 5/2/2016 ua faaleaogaina ae tumau pea ona taofia le galuega vagana se ioega a sa’o o le aiga.
5.5. Ua poloaina nei i laua o tausia le aiga, Tofaeono Vui Faatali ma Tofaeono Iupati Fuata’i ia feiloai ma toe faalelei vaega
o eseese ai finagalo, aua le lumanai manuia o le aiga sa Tofaeono.
5.6. O tupe ua faaulu ai talosaga ua avea ma totogi o le Faamasinoga.”
- It is the order in 5.4 which forms the basis of the contempt charge in the instant matter.
- The Petitioners in the LTC matter had appealed the orders in 5.2 and 5.3 but leave was not granted.
Prosecution Evidence
- The Prosecution called Tofaeono Vui and four Police witnesses. Defence did not call any evidence.
Tofaeono Vui
- The essence of Tofaeono Vui’s evidence is this. In his view, the gist of the LTC proceedings was the lease. He decided to join
as a party to support Tagaloa and his side as they are part of his extended family.
- In terms of the order in 5.1 relating to the termination by the Minister of MNRE of the lease, he said he attended a meeting with
Tofaeono Iupati and Tagaloa where it was agreed that the lease could be renewed but there would be an increase on the rental payment.
At the same meeting, it was agreed that Wilex could proceed with renovating its damaged building.
- However, according to Tofaeono Vui, Tofaeono Iupati later changed his mind as there was pressure from his family. In regards to the
lease, he insisted it could be done but only if he and Tofaeono Fuatai both consent. The primary concern was always the lease payment.
He consistently said that if Tagaloa was carrying out renovations then he had no problems with this.
- For the orders in 5.2 and 5.3, he confirmed the occupation by Tagaloa and his family of part of the land since 1914 and specifically
the area where the Wilex building is located. He confirmed that sometime in 1986, there was an LTC order to evict Tautaituasivi and
his family. However, by consent Tofaeono Tineia and other matai agreed in 1986 for them to remain in occupation. He understood this
to be the gist of the order in 5.3.
- During cross examination, he conceded that 5.2 meant that Tagaloa and his family could still occupy the land. He interpreted this
to mean they could renovate or rebuild. But if the renovation is for a business, then the two Tofaeono’s must be contacted
for further discussion as it would concern the lease.
- He clarified what he meant by renovation as follows:
“O le tulaga moni lava i lo’u mafaufau, afai ae o latou e toe faalelei aua a silasila lau afioga i le fale na faaleagaina
i le afi, ia ua faapena la ona taatia ai faapea. Ona ou manatu lea o au, afai ae toe mananao latou e toe fai le fale i luga o le
mea e nonofo ai le aiga, ia oute ioe a au ia, ae o le upu faapea e toe faia seisi lisi, e le mafai na toe fai se lisi leaga ua uma
na aumai le faaiuga o le faamasinoga e soloia le lisi...”[39]
- For 5.4, he said he never saw an interim injunction and unsure about its contents but he learnt it was to stop the construction of
the Wilex building. According to Tofaeono Vui, he did not actually see Tagaloa carry out a “galuega” but if one was done
then he guessed it could be the Wilex building that was burnt down which required renovation. .
- In regards to the LTC application for leave to appeal, he said Tofaeono Iupati and Filifilia Tamasese had argued that the reason Tagaloa
and his family occupied the land was because of the lease, but given it was terminated Tagaloa’s family no longer had any occupational
rights to the land. According to Tofaeono Vui, he refuted the above argument as in his view, Tautaituatasi’s family have occupied the land for more than a 100
years and it was not because of the lease. He reiterated that only two orders were challenged in the LTC appeal, namely 5.2 and 5.3
and leave to appeal was refused.
Police Witnesses
- Police called four Police witnesses namely, Corporal Viane Lauofo, Corporal Vaipanoa Malaga, Constable Neemia Auvaa, Constable John
Lemisio. Their evidence is similar in that on 23/03/17, they were instructed to investigate if any construction works was carried
out on the building (Wilex) at Moataa. They took with them a copy of the LTC decision.
- Constable John Lemisio was the investigating officer. Upon arrival they observed various works being carried out including, glass
doors being installed, timber cutting, painting and tile laying. Photos were taken confirming this tendered as exhibit P2. They did
not see Tagaloa there but his son.
Prosecution’s Case
- Prosecution argue at paragraph 11 of their submission that the order in 5.2 LTC decision only allows Tautaituasivi’s family
including Tagaloa, to remain on the land as a response by the Court to the request to remove them from the land.
- But the order in 5.4 they argue is clear “...e tumau pea ona taofia le galuega” and the only galuega under construction is the Wilex building.
- Prosecution further contend there has not been any consent by both Tofaeono as sa’o of the family to continue the galuega. But Police witnesses and photos depicted that construction works continued. This they argue tantamount to disobedience of the order
by Tagaloa in 5.4 and therefore contempt of Court.
Defence case
- The gist of the Defence’s argument is, none of the witnesses physically identified Tagaloa on the site actually carrying out
the work. Police witnesses saw there was construction work being carried out but none said Tagaloa was there on 23/03/17.
- Defence further argued that even if work was carried out, under the order in 5.2 Tagaloa and his family were allowed to continue to
occupy. On this basis, there was no case to answer. But even if the Court holds there was a case to answer, Prosecution had not proven
its case beyond the required standard.
Discussion
Elements
- As noted in paragraph 14 above, put simply, to sustain a charge for contempt of court arising from s75 (1) (a) LTCA to do with disobedience
of an LTC decision or order, Prosecution must prove to the criminal standard three elements:
- Firstly, that the terms of the order or decision was clear and unambiguous;
- Secondly, that the Accused, Tagaloa had proper notice of it; and
- Thirdly, he willfully disobeyed it.[40]
- Essentially this matter boils down to the issue of whether all elements of the offence have been proven to the required standard.
I analyse this next.
- I must firstly note at this stage that the second element of whether Tagaloa had notice of the order or decision is a non issue as he was a party to the LTC proceedings. So he had notice.
Were the terms of the decision clear and unambiguous?
- In Polynesian Limited CJ Sapolu referred to the case of Liberian Trust Ltd v Founders Trust Investment Co[41] where it was said that “if the Court is to punish anyone for not carrying out its order, the order must in unambiguous terms direct what is to be done”.
- The learned CJ Sapolu also referred to the English case of PA Thomas & Co v Mould[42] where O’Connor H said that “where parties seek to invoke the power of the Court to commit people to prison and deprive them of their liberty, there has to be
quite clear certainty about it”.
- I agree with the above principles which in my view equally apply here. Prosecution has brought this charge of contempt of an LTC court
order. It is crucial that the terms of the order be clear and certain.
- I must say however, I am far from satisfied that the order was clear and unambiguous. The charge is about wilful disobedience with
the order in 5.4 LTC decision namely, “O le poloaiga le tumau aso 5/2/2016 ua faaleaogaina, ae tumau pea ona taofia le galuega vagana se ioega a sa’o o le aiga.”
- I find that the order in 5.4 is ambiguous or unclear raising a number of questions in my mind. Firstly the order says the interim
injunction prohibiting the construction of the building is revoked. Then it proceeded to say “ae tumau pea ona taofia le galuega vagana se ioega o sa’o o le aiga”. But the question I have is was not that the whole purpose of the injunction is to stop the construction of the building? So it allows
Tagaloa and his family to remain on the land, revoke the injunction but they cannot build without the consent of the two Tofaeono’s?
I had asked prosecution to furnish a copy of the interim injunction. This was not done. But I can infer from the LTC decision the
subject of the injunction was to cease the construction of the Wilex building.
- But what galuega is it referring to? Is it the Wilex building which is subject to the demised lease or any other? Prosecution say it is the Wilex
building as it is the only project under construction as examined in the LTC. From the evidence of Tofaeono the word galuega in 5.4 suggests it refers to the Wilex building.
- Furthermore, a close analysis of the orders in 5.2 and 5.3 allows the continuous occupation of the land by Tagaloa and his family.
This appears to be the dominant theme of those two orders. However, this does not reconcile with the second limb of 5.4 ceasing the
construction of the building. In fact it is contradictory and there lies another ambiguity.
- The further question I have is does the second limb of 5.4 forbidding the construction without the consent of the two sa’o take
priority over the orders in 5.2 and, 5.3? I ask this because Prosecution seem to think it does as seen in their bringing this contempt
charge.
- In my view it does not. The order in 5.4 does not supersede or take precedence over those in 5.2 and 5.3. It cannot be read in isolation
but in its full context. They all rank the same. So the order or decision in 5.4 is also ambiguous in that sense.
- If anything, the language of the orders in 5.2, 5.3 and 5.4 is susceptible of more than one reasonable interpretation. In other words
it is open to interpretation. Why else would the Petitioners appeal only the orders in 5.2 and 5.3 but not 5.4?
- In my view, the word “occupy” in 5.2 and 5.3 must be given its ordinary meaning. It is defined in s2 Act Interpretations
Act 2015 as including:
“...use, inhabit, be in possession of or enjoy the land or premises to which the word relates, otherwise than as a mere employee
or for the mere purpose of the care, custody or control of the land or premises”
- Under the orders in 5.2 and 5.3 and adopting the above definition, Tagaloa and his family can occupy the land including using it,
inhabiting it, taking possession of it and enjoying it. Tagaloa and his family are entitled to interpret this as meaning they can
construct or renovate the building as part of their occupational rights.
- In my view the ambiguities implicit in the LTC decision cannot be cured and this must go to the benefit and favour of Tagaloa. I reiterate
that it is not the job of this court to correct the validity or ambiguities of the LTC order or decision. My job is to determine
whether there is contempt of Court as alleged.
- As stated above, if the Prosecution is to bring a contempt charge, the terms of the order or decision must be clear. Here, the orders
are contradictory and irreconcilable.
- With respect, I have had to go through the onerous task of making some sense of the LTC orders given the absence of clear and specific
terms. But I see these issues as crucial in determining the ultimate question of whether Tagaloa did commit the unlawful act alleged.
- Tagaloa as a defendant risks losing his right to liberty given the custodial penalty for this offence. As I said above, if an allegation
of disobedience is to be brought it must be clear and unequivocal. Here, the orders in 5.2, 5.3 and 5.4 read in their full context
are open to other interpretation and therefore ambiguous and unclear.
Did Tagaloa wilfully disobey the order?
- In regards to the issue of whether Tagaloa wilfully disobeyed the order in 5.4, I am not satisfied on the evidence this has been met.
- Defence argued, there is no evidence at all identifying Tagaloa carrying out the actus reus of disobeying. They contend none of the
Police witnesses who attended the land on 23/03/17 pinpointed Tagaloa at the site.
- There is weight in the argument. Proof of contempt through disobedience of court orders requires proof of the alleged contemnor having
wilfully done the relevant act.[43]
- Yes the evidence says there were workers but whose workers were they? Should I take it that these workers were connected to Tagaloa
as his agents and if so are they parties to the offence? If so, where is the evidence? It would have assisted if the workers were
interviewed and called to give evidence to confirm this.
- Yes Police might have spoken to a person identified as Tagaloa’s son but so what? Why was the son not called? Tagaloa at the
end of the day is personally charged with this offence. Wilex Company is not charged.
- I agree with the defence that for Tagaloa to be liable for disobedience of the court order here, he must be identified as the person
who carried out the actus reus of disobeying as alleged. Prosecution invited me to draw inferences from the circumstances of the
LTC case and evidence in that Court to pinpoint Tagaloa as the culprit.
- With respect, this is a dangerous proposition especially since the evidence adduced in the LTC has not been tested in this Court to
determine its reliability. It sounded more to me like a quick fix. But with all due respect, this is not a quick fix Court. This
man stands to lose his freedom of liberty from this charge.
- Furthermore, the charge arose from an incident alleged to have been committed by Tagaloa on 23/03/17. The LTC decision and facts pertinent
to it was determined on 27 & 28 April 2016. The allegation here arose post decision. Probative and contemporaneous evidence is
a valid concern.
- I must remind the Prosecution that in discharging the onus of proof in contempt proceedings, they must still adduce sufficient evidence
to prove its case to the required standard. It cannot just rely on the LTC decision to hammer home its case. A contempt charge goes
to the integrity of the Court and administration of justice which makes it even more prudent that sufficient evidence be called to
support such a charge.
- But I must say, even if I endorse the facts in the LTC decision and references there to Wilex, it still does not clear the doubts
I have. If Tagaloa’s connection is to Wilex Company, then evidence should have been adduced of the valid registration of this
company and Tagaloa’s personal involvement (if any) in that company either as a shareholder or managing director. A certificate
of incorporation from MCIL is one example of such evidence.
- It is common knowledge the Wilex building was burnt down; this is confirmed in the evidence. I accept the building was renovated or
reconstructed on the belief that both Tofaeono’s consented to it back in 2015. The meeting Tofaeono Vui mentioned he attended
with Tofaeono Iupati and Tagaloa was to discuss the increase in the lease payment and reconstruction of this building.
- I discern from Tofaeono Vui’s evidence the renovation was with the understanding that the Wilex lease would continue. The only
sticky issue was the lease payment. But Tofaeono Iupati later reneged on his word when he changed his mind. Soon after the injunction
was issued ordering that the construction of the building be ceased followed by the termination of the lease.
- According to Tofaeono Vui, who was a party to the LTC proceeding, the galuega referred to in 5.4 related to the leased Wilex building. Be that as it may, the fact of the matter is by the time of the LTC hearing
on 27 & 28 /04/2016, the lease was already terminated by letter from MNRE dated 16/01/16. The LTC decision endorsed that termination
as reflected in the order in 5.1.
- Whether the termination of the lease was done unilaterally or with notice to Tagaloa in consultation with Tofaeono Vui and other custodial
beneficiaries of the land as is customary, I do not know. But what I do know, is coincidentally, it was done contemporaneously to
the date of the LTC hearing.
- It is obvious that the ultimate objective and reasons behind the Petition in the LTC brought by Tofaeono Iupati and Filifilia Tamasese
as noted in paragraph 6 of the LTC decision was:
“O le amataga o lenei finauga ona o le Lisi a le Wilex, ua eseese ai finagalo faaalia o suafa sa’o o le aiga Sa Tofaeono, ae
faaopoopo iai ma le faatulaieseina o le itu Tetee 1 poo le aiga o Tautaituatasi.”
- According to Tofaeono Vui, the argument advanced in the LTC by the Petitioners was, as the lease was terminated, Tagaloa and his family
therefore no longer had any possessory rights to occupy the land and should be evicted.
- The point is, if I accept that the word galuega in 5.4 referred to the Wilex leased premises then technically speaking, this also fails as that lease was terminated as per the MNRE
letter and endorsement by the LTC in its order at 5.1.
- Again this raises more doubts in my mind. If Tagaloa played a role in Wilex Company which no longer had a valid lease to occupy the
land, then I find it difficult to accept that he wilfully continued the reconstruction of the galuega knowing the lease to Wilex had been terminated.
- For all I know, Wilex probably does not have any further interests in the construction of the building depicted in the photos in P2
and relayed by Police witnesses This is especially so given there is no valid lease.
- Also I note there were nine other members of Tagaloa’s family he sided with during the LTC proceedings. Maybe someone else in
his family has taken over and leased it to a Chinese or someone else. Who knows? I cannot turn my mind against these possibilities
given the unsatisfactory and insufficient status of the evidence.
- In any event, with the termination of the Wilex lease, by operation of the orders in 5.2 and 5.3 Tagaloa and his family could still
continue to occupy the land. So even if I am mistaken about the above, that he could not be identified as disobeying the order, Tagaloa
would still be able to construct the building under 5.2 and 5.3. This is hardly a flagrant disregard of a Court order rather it is
more in accordance with it.
- Enjoyment of the space Tagaloa and his family occupy in my view may include constructing a premises they could utilise or even for
cultivating crops. After all this is customary land and these are some of the basic customs and norms appurtenant to its usage. Occupation
connotes a physical element. It does not mean you are given the right to occupy and you live in the air. It is pure common sense.
- Tofaeono Vui did not see anything wrong with renovating the building. The only common concern was that the Wilex lease could not be
renewed without the consent of both Tofaeonos. After the LTC appeal matter Tofaeono Vui attempted to continue dialogue with Tofaeono
Fuatai about this but the latter deferred discussions.
- When asked by Ms Wallwork if he considers it appropriate if the building was renovated for the family to reside in he replied, “e talafeaga ia au pe a faapea, aua e leai se aiga e tuuai pea faapela e o’oi le faavavau se latou fale le la e tilotilo
ifo tagata i le tulaga la e iai.”[44]
- But as I said above, regarding this charge alone, the decision does not say 5.4 takes priority. For me to draw such a finding that
it is sufficient to meet the purposes of the charge or even a finding of guilt is in my view not in the interest of justice at all.
- On the evidence whether taken at its highest or the criminal test of beyond a reasonable doubt, I am not satisfied that the terms
of the decision was sufficiently clear and unambiguous nor am I satisfied that Tagaloa wilfully disobeyed the order to support a
charge of contempt of court.
CONCLUSION
- Applying the law, I find that there is no case to answer in respect of the charge of contempt of court.
- However, if I am mistaken in arriving at this conclusion, defence counsel had indicated at the commencement of her no case to answer
submission that the defence will not be calling evidence.
- I am therefore also not satisfied on the evidence that prosecution has proven beyond a reasonable doubt each element of the offence.
.
- I find the defendant Tagaloa not guilty of this offence and the charge is accordingly dismissed.
Observation
- It must be borne in mind that the LTC does not have any enforcement proceedings and too often parties resort to contempt of court
proceedings where there is allegations of non - compliance.
- There is a procedure under s74 LTCA for enforcement of LTC decisions in the Supreme Court or this Court by sealing for those who might
wish to entertain it.
JUDGE ALALATOA ROSELLA VIANE PAPALII
[1]P v Malu [2016] WSDC 34
[2]Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 45
[3]Ibid
[4]Solicitor General v Krieger [2014] NZHC 1712
[5]Supra n 2
[6]Borrie& Lowe's Law of Contempt (1996: 3rd edn) cited with approval in Australasian Meat Industry Employees Union v Mudginherri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at p.1r>[7]Soli>Solicitor General v Radio Avon Limited[1978] 1 NZLR 225 (CA)
[8]Siemer v Solicitor General [2013] NZSC 68; also slso see AG v Times Newspaper Limited [1974] AC 273.
[9]Hargreaves v Smith [2012] NZHC 3316 at 2 wherethe view of the NZ CA in Radio Avon was also adopted.
[10]United Nurses of Alberta v Alberta (Attorney-General) [1992] 1 SCR 901 at 931.
[11]Arlidge, Eady and Smith on Contempt (3rd Ed 2005) referred to by the Court of Appeal in Mikitasov v Collins HCWHACIV-2008-488-000053 11August2010
[12] Murphy P (chief ed) Blackstones Criminal Practice (1991: Blackstones Press Ltd, London)
[13]Attorney General v Leveller Magazine Ltd [1979] AC 440 per Lord Diplock at p 449
[14] Supra n 9 at 2
[15]Supra n 4
[16] Supra n 12 at B14.57 p588.
[17]Supra n 8
[18]NZ Law Reform Commission Reforming the Law of Contempt of Court: Modern Statute (May 2017, Wellington, New Zealand | REPORT 140)
[19] Referenced from Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 435.
[20] Supra n 4 at 398
[21]Taylor Bros Ltd v Taylors Group Limited [1990] NZCA 178; [1991] 1 NZLR 91 and 93. Also see Zhang v King David Investment Ltd & Young & Fen Ying [2016] NZHC 3018.
[22]See Polynesia Limited, supra n 2
[23] Solicitor General v Broadcasting Corporation of NZ [1987] 2 NZLR 100; also Zhang supra n 22
[24] See Duff v Communicado Ltd [1996] 2 NZLR 89 at 98=99 per Blanchard J also NZLRC Report supra n 1.
[25]R v Galbraith (1981) 73 Cr App R 124
[26]Auckland City Council v Jenkins [1981] 2 NZLR 363, p.365
[27]AG v Kolio [2008} WSCA 7 at paras 24 & 25
[28]AG v Taioalo [2010] WSCA 3 at para 4;
[29]AG v Tavui [2014] WSCA 3, para 24.
[30]P v Ah Sui [1999] WSSC 37 para 24
[31]P v Pouvi [2000] WSSC 43
[32]P v Samau [2010 WSSC 106
[33]P v Toamua [2015] WSSC 50
[34]P v Carruthers [2017] WSSC 70.
[35]P v Tevaga [2015] WSDC 10
[36] Supra n 33
[37] Supra n 34
[38]Supra n 26 quoted in DL Matheson, Cross on Evidence (7thEd,Butterworths)
[39] Transcript at pg 15.
[40]Supra n 2. Also see Krieger supra n 4 at paras 24 to 26
[41]Liberian Trust Ltd v Founders Trust Investment Co [1932] 2 KB 87 at p 95
[42]PA Thomas & Co v Mould [1968] 1 All ER 963
[43]Attorney-General v Times Newspapers Limited [1992]1 AC191at217 adopted in Re M:M v HomeOffice[1994]1 AC377
[44] Transcript, 21
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