Police v Sapolu [2020] WSDC 15 (9 December 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Sapolu [2020] WSDC 15 (09 December 2020)

Case name:	Police v Sapolu
Citation:	[2020] WSDC 15
Decision date:	09 December 2020
Parties:	POLICE v TASALAOTELE SAPOLU female of Faatoia
Hearing date(s):	24 June 2020
File number(s):	D1364/20, D1365/20
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Matautia Raymond Schuster
On appeal from:
Order:	The defendant is hereby acquitted of the charge of insulting words. As to the indecent act charge, the defendant is acquitted.
Representation:	Ms. P. Betham-Tauaa for Prosecution Defendant Unrepresented
Catchwords:
Words and phrases:
Legislation cited:	Police Offences Ordinance 1961 s4(g) (j)
	Crimes Act 2013 s77 Criminal Procedure Act 2016 s88 Samoa Act 1921 s183, s184 [NZ 12 GEO. V. 1921, No. 16] Vagrants Act Gaming and Other Offences Act 1931 of Queensland s7(1)(d) Summary Offences Act 1981 s4(1)(a) Public Order Act 1936 (UK) s5
Cases cited:	R v The Justices of Clifton; Ex parte McGovern (1903) St R Qd 177 Messiter v Police [1980] 1 NZLR 586, Hardie Boys J O’Connor v Police [1972] NZLR 379 Melser v Police [1967] NZLR 437, 444: [1980] 1 NZLR 586 at 591 Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166 (1 September 2004) Police v Apisala [2015] WSDC 1 (15 June 2015) Kurondo v Dabiri [1980] PGNC 32; N258 (26 September 1980). Ball v McIntyre (1966) 9 FLR 237 Marsh v Arscott (1982) 75 Cr.App.R.211 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TASALAOTELE SAPOLU, female of Faatoia, Apia
Defendant

Counsels: Ms P. Betham-Tauaa for the Infirmant.

Defendant unrepresented
Hearing: 24^th June 2020
Decision: 9^th December 2020

RESERVED DECISION OF JUDGE SCHUSTER

Charges

1. The defendant is charged with insulting words pursuant to section 4(g) of the Police Offences Ordinance 1961 (hereinafter referred as “POO1961”) and indecent act pursuant to section 77 of the Crimes Act 2013 (hereinafter referred to as “CA2013”) of which the defendant pleaded not guilty.
2. The first charge states “... that at Faatoia on the 17^th day of July 2019, the above named defendant of Faatoia, used insulting words namely, “aikae ese ma le fale a ou makua” whereby a breach of the peace may be occasioned”.
3. Section 4(g) of the POO1961 stipulates:
   • 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.
4. The second charge states “... that at Faatoia on the 17^th day of July 2019, the above named defendant of Faatoia, with intent to insult Jacob Hafoka, John Sione and Rosalina Leiataua, did an indecent act namely, “open her lavalava and shown front private part, as well as she pulled her lavalava, and shown her ass to the same persons”.
5. In order to establish insulting words, the prosecution must prove:
   1. That the defendant spoke the words complained of
   2. That the words complained of were insulting and
   3. That it was done so with the defendant’s intention to breach the peace or that a breach of the peace may be occasioned
6. Section 77 of the CA2013 stipulates:
   • A person is liable to imprisonment for a term not exceeding 2 years who, with intent to insult or offend any person, does any indecent act in any place.
7. The elements for a charge of indecent act to be established are:
   1. That the defendant did the act complained of
   2. That the act complained of was indecent and
   3. That it was done with the intention to insult Jacob Hafoka, John Sione and Rosalina Leiataua

Judges role

8. Before I begin my consideration of the evidence and the law, it is important that I set out my role in a Judge Alone Trial. I am required to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt.
9. This is a criminal prosecution. The onus is on the police to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charge.
10. In this case the defendant has given evidence after being cautioned pursuant to section 88 of the Criminal Procedure Act 2016 given that she opted to represent herself. The fact the defendant gave evidence does not change the onus or standard of proof.
11. I have considered all of the evidence that has been placed before me in this case. This includes the evidence given on oath, the evidence displayed on video without objection, and the exhibits.
12. The evidence that I heard in this case featured various conflicts, and therefore it cannot all be correct. The divergence in the evidence simply does not allow for that to occur. I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.
13. It has been necessary for me to consider the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject anything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence.
14. I also emphasize that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt. In doing that, however, it is necessary for me to resolve some primary disputes over the facts.

Facts: Rosalina Leiataua

15. The prosecution called two witnesses. Rosalina Leiataua is a 15 years old girl whose family rent a house from the defendants’ brother “Eti” located in close proximity within the same piece of land shared by the defendant and Eti. Rosalina testified that at about 7am, she went out to watch the defendant burning rubbish next to her own house. She observed the defendant did not look happy but angry. Without cause, the defendant said to Rosalina and her little siblings but not in a loud voice “aikae i fafo mai le fale a o makou makua”. Rosalina then turned and went back to doing their chores but felt sad that the defendant swore to them without cause.
16. The next time Rosalina saw the defendant was in the afternoon around 12pm when they were cleaning the property. Rosalina testified she was with her two boy cousins when the defendant walked over, broke off a dried coconut leaf stem (lapalapa) and started hitting “Mati’s” tap which Eti was using. She then went back to her house while they continued mowing the lawn and burning rubbish.
17. They then rested under the mango tree in front of the defendant’s house. However, as they rested, the defendant from inside her house motioned towards their direction and opened the towel she was wearing to them saying [page 6 Transcript]:
    • Wit: na o lona solo la e sulu aoao sau a valaau mai, fai mai Eki o le mea lea e ke magao ai, kago loa lea susu’e mai loga solo inaudible
    • Pros: what did you see
    • Wit: makou vaaia aku e leai gi aga ofu o faia, uma loa la ia koe savali loa i kua koe faliu mai koe susue mai le piko i kua o laga solo inaudible
    • ...................
    • Pros: and how did you feel when she inaudible
    • Wit: faanoanoa
    • Pros: and that was the first action and then what happened after she did that
    • Wit: uma loa laia koe laa loa ia, faapea makou ai a alu, ae kei a i le kago o gaia koe susue le piko i kua o laga solo ae sigo mai ia makou
18. Rosalina continued that they just left for home after the defendant showed her backend.
19. Under cross examination, the defendant asked Rosalina that they were throwing rocks and that she has it on video. Rosalina denied this. The defendant put to Rosalina that they were verbally taunting her that she was a crazy witch and burning rubbish right next to her house recorded on video. Rosalina responded they were burning rubbish next to the defendants’ house but they did not throw any rocks.
20. The defendant further put to the witness that it did not make sense that she was doing her own work and then suddenly for no reason she swore at them. Rosalina responded that they were not doing anything but just stood and watched the defendant burn her rubbish because the defendant hates it if they come and watch what she is doing.
21. Rosalina confirmed that the defendant was wearing an ie lavalava and a tank top when she was burning her rubbish. The defendant put to Rosalina whether it was correct that when she came back out of her house after the alleged opening of her towel incident, she was wearing the same tank top and ie lavalava. Rosalina accepted that the defendant had changed back to her tank top and ie lavalava. The defendant further asked Rosalina who encouraged them to throw rocks at her house and taunt her with coarse language. Rosalina denied that they did any of that [Transcript page 12].
22. Under re-examination, Rosalina clarified that she had a clear view to where the defendant was standing from inside her house as she opened her towel to them. The defendant wore her ie lavalava and tank top in the morning and changed to a white towel in the afternoon.

Jacob Hafoka

23. Jacob is a 15 year old boy who lives in the compound that the defendant shares with her siblings. Jacob testified that on the morning of the 17 July 2019, he was playing with his siblings and Eki in front of Eki’s house when the defendant called out to leave her parents home. Later, he and John started mowing the lawn at about 12pm when the defendant called them to again to leave. The defendant was wearing grey shorts and a pink short-sleeve shirt.
24. When Jacob first saw the defendant in the afternoon, he testified that she was inside her house taking photos on her phone and calling out to them “aikae ese mai le fale a oga Makua” and to “o ese ma le vao la e moa” [Transcript page 17]. She was about five (5) metres from Jacob. As they reached mowing to the front of the defendant’s house, she then walked out with a stick and damaged the water pipe as well as striking at the rubbish shelf. She then went back into her house.
25. “Eki” then came and told Jacob to continue mowing the lawn. At that time, Jacob saw the defendant change into a grey ie lavalava tied in the front of her chest and walking around insider her house. Eki was going to start burning the rubbish whilst Jacob and John were mowing the lawn and Rosalina was collecting the cut grass and taking to the fire. Jacob testified that the defendant was at that time walking around inside her house with her phone and arguing with Eki.
26. Jacob testified that it was then that the defendant suddenly opened up her “ie” and he saw her breasts, stomach and she was not wearing any panties. She then turned and walked inside but lifted up her “ie” and showed us her backside [Transcript page 21]. They carried on mowing the lawn.
27. Under cross examination, the defendant put to Jacob that it was in front of her house that they were cutting grass and burning rubbish. Jacob denied this. The defendant further put to Jacob that they were on the morning of the 17^th throwing rocks at her house and uttering harsh words at her. Jacob denied this.

Defendants case

28. The defendant elected to give evidence after being given the caution under section 88 of the Criminal Procedure Act 2016. The defendant is a 58 years old businesswoman of Faatoia, single with no children.
29. The defendant testified that in the morning of the 17^th July 2019, she was encountering the taunting of these young children sticking their faces up against her security wire surrounding her house and throwing rocks at her house. She became angry and swore at them to stop them. The defendant disputes the allegation of indecent act as fabrication to trump up more serious charges against her [Transcript page 32].
30. The defendant relies on a video taken from her mobile phone between 1 – 2pm of the 17^th July 2019 as evidence in support of her defense. The prosecution did not object to the production of the video as well as its contents as Exhibit D1.
31. In the first video clip labelled 20190717_142802, shows the defendant taking a video of a male whom she calls “Eki” throwing a handful of dirt and rocks towards and inside the building the defendant is located. The defendant is heard verbally protesting the actions of “Eki” and the children present. “Eki” is also observed responding angrily at the defendant and cutting down sugar cane and medicinal plants the defendant claims as her property and grown right outside the defendants home. Jacob is observed in a yellow shirt and laufala hat helping “Eki” cutting down the plants.
32. In the next continuing clip 20190717_143147, despite the verbal protests of the defendant, “Eki” is seen using a petrol operated weed cutter and frenziedly going through the defendants’ medicinal plants and cutting them down coming within touching distance of the defendant but separated only by the defendants’ home chain link security wire.
33. The next continuing clip 20190717_143510 shows “Eki” and Rosalina in a red t-shirt burning rubbish where the defendants’ medicinal plants are located and less than 5 metres from defendants’ structure using petrol in a yellow bottle to ignite the fire despite the defendants’ verbal protests. Rosalina is heard, although not audible, making taunting remarks and putting up her middle finger towards the defendant. Jacob in a yellow shirt and laufala hat is observed making taunting gestures towards the defendant from behind the burning rubbish.
34. The next clip 20190717_143710 shows “Eki” continuing to place rubbish on the fire whilst a little girl (the defendant claims as “Eki’s” daughter) and a young boy were throwing stones on to the roof top of the defendants’ house which can be heard on audio. Rosalina is standing close to these children are throwing stones from and Jacob is calling to the children from the other side “ei, ua lava ga!”.
35. The next clip 20190717_144056 shows “Eki” and Rosalina (now with a red hat) continuing to place rubbish on the fire closest to the defendants’ home despite the defendants’ verbal protests. Smoke is seen coming into the defendants’ home.
36. The final clip 20190717_152407 shows “Eki” continuing to place rubbish on the fire ignoring the defendants verbal protests. Eki’s young daughter is heard screaming at the defendant and Jacob standing right up to the defendants’ security chain link wire making a smiling smirking face and hand gestures to the defendant. Eki’s young daughter is observed throwing stones on the defendants’ roof top and Jacob is shouting, doing a “chee hoo”, and taunting the defendant by pretending to cry and ask for forgiveness whilst Eki looks on. Meanwhile, a person perhaps John continues to cut the grass between the defendants’ house and the road.
37. The defendant gave evidence that the time of the video was consistent with the time of Rosalina and Jacobs’ evidence. This was not disputed by the prosecution.
38. Under cross examination, the defendant accepted that she was angry but she was provoked by the children who called her names and throwing rocks. This was the first time she retaliated and swore at these people [Transcript page 35].
    • Tasa: I just keep to myself, I do my own thing its just when they come and start calling names and throwing rocks, then I get angry and my case is now gone I’ve been told by a Judge that I’m a trouble maker and that she will make sure that my court cases don’t go to- it’s not going to be heard. So it’s the first time I’ve retaliated and swear at these people.
39. The prosecution put to the defendant that “they” were not doing anything unlawful. The defendant responded that it was unlawful cutting down her medicinal and food plants and throwing rocks. She made a complaint to police but was surprised that they filed their complaint against her after she filed her complaint and yet their charge against her was now on trial and she is still waiting for her complaint to be heard.
40. The prosecution put to the defendant that her swearing may have invited what the defendant termed as “violent” actions of “Eki” and the children as well as her responding to their clearing of the land, yelling out and making comments and swearing. The defendant disagreed [Transcript page 36]:
    • Pros: so I put it to you that that day, you saw that they were all outside clearing the land, correct?
    • Tasa: it’s that type of clearing, my sugar canes were cut down, my lemon grass- that’s not clearing the land that’s violence.
    • Pros: that’s what you interpret as violence?
    • Tasa: yes that’s violence.
    • Pros: and in response you yelled out and started making comments?
    • Tasa: yes I made comments.
    • Pros: including the swear words that you mentioned?
    • Tasa: that was earlier on when they were outside I was doing work outside. They were throwing rocks and calling names so that’s when I decided to go inside and try and capture some of this violence.
    • Pros: throughout the video we see that you’re filming and calling out to them and nobody is responding, nobody is saying anything. Do you accept that?
    • Tasa: yes they are responding there’s some kids there standing with some hand signal, you see Eti’s daughter she’s about 6 years old, twice throwing rocks on to my place.
41. The defendant denied she exposed herself to the children at the time she was taking a video of what “Eki” and the children were doing nor did she change her clothes at any time from shorts and tank top to an ie.
42. The prosecution did not contest any of the video footage except to suggest that the complainants may have been justified given that the defendant swore at the children earlier in the day and fanned the already charged emotional circumstance by continuing to yell out and making comments to them as they were doing their work.
43. In closing, the prosecution accepted based on the video evidence that there were children throwing stones towards the defendants’ house though not Rosalina and Jacob. The prosecution further accepted that although Rosalina and Jacob denied knowledge of any rock throwing, taunting or name calling of the defendant, the video showed otherwise. Rosalina and Jacob saw the other children throw stones and must have heard them landing on the roof of the defendants’ home given the close proximity of the persons involved with each other as noted from the video. Rosalina and Jacob themselves were observed verbally and actively taunting the defendant.
44. As to the defendants’ using insulting words an intention whereby a breach of the peace may be occasioned, the prosecution submitted that if it were not for the defendant telling off the children to stop and disrupt what they were doing clearing the land, this matter would not have escalated. Her intention was for the children to stop what they were asked to do [Transcript page 40]:
    • HH: when she said the words she said, which I have to find they were insulting, if I find they were insulting and then move on to the next part- whether the words were said with intention to provoke a breach of the peace. What’s the evidence that her intention was to provoke a breach of the peace?
    • Pros: your Honour, the facts are, is that, as I said, the children were out there just doing what they were told to do, gardening, clearing the land- she tried to disrupt that and provoke, I think she was aimed at the children to stop doing what they were asked to do.
45. The prosecution further submitted that for the charge of insulting words, the fact that the words were said was sufficient given the circumstance [Transcript page 40]:
    • Pros: your Honour I think perhaps, for inference the fact that those words were said, I can’t sort of see why else she would say that those words, they’re insulting- they’re calling them something that’s unacceptable. Her intention is obviously to-
    • HH: provoke a breach of the peace?
    • Pros: yes, just by the fact that those words were being used- she had options to use other words that weren’t so insulting- she’s the adult, they’re the children, there’s no reason to use such language- that’s the kind of message prosecution is trying to give out to the community that those kind of words aren’t acceptable in the community, especially to young children.
46. Furthermore, prosecution did not dispute the defendants’ assertion that there exists a long unpleasant history relating to this land. The inference seems to be from the evidence that any work on the land by either the defendant or “Eki” would appear as provocation to the other. The evidence is that the defendant was burning her rubbish sometime in the morning of the 17^th July 2019. Rosalina, Jacob and other young children went to watch. For what was interesting about the defendant burning rubbish for these children is amiss.
47. The prosecution further assert that it was not necessary to show that a breach of the peace had happened but the defendants use of the words spoken was likely to breach the peace. The defendant said the words with intention to insult and Rosalina testified she felt sad when the defendant said “aikae fafo mai le fale o makou makua”. The prosecution say this was intended to stop them from what they were doing and make them feel that they were not wanted there.
48. As to the charge of indecent act, the prosecution assert that sometime when the defendant was taking the video in the afternoon whilst “Eki”, Rosalina, Jacob, John (mowing the lawn), Eki’s little daughter and another unidentified boy were working just outside the defendants home, the defendant went in her house, changed from her grey shorts or ie lavalava and pink tank top shirt into a “white towel” (Rosalina) or “grey ie” (Jacob), came back out but still inside her house behind the security chain link wire and exposed her nakedness to Rosalina and Jacob. The defendant then turned around and exposed her naked backside to Rosalina and Jacob.
49. The defendant submitted in closing that the children threw rocks on her house first and taunted her while she was burning her rubbish next to her home. They were saying that she was a bad crazy woman. That was the reason she swore at them. She further reminded that the actions of Eki and the children were done right next to her home. At no point did she do anything next to or near their homes.

The Law on insulting words – historical developments

50. The League of Nations formally allocated New Zealand the Class C mandate of Western Samoa in December 1920. Legislation was already in place to support the mandate. On 1 May 1920, the Samoa Constitution Order had replaced the military occupation with a civil administration. The Samoa Act 1921 [NZ 12 GEO. V. 1921, No. 16] provided the foundations of government until Samoa became an independent nation in 1962. The Samoa Act established the British colonial model as the basis for civil administration.
51. New Zealand's Governor-General appointed an Administrator to be based in Apia to hold executive power. The Administrator reported to the Minister of External Affairs in Wellington. Law-making power was held by the Administrator and a local Legislative Council, although Wellington had final authority.
52. In effect, criminal offences were prescribed under Part V of the Samoa Act. Relevant to this case, threatening, abusive, or insulting words as well as disorderly conduct were offences under sections 183 and 184 respectively:
    • 183. Every one is liable to a fine of five pounds who uses any threatening, abusive, or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.
    • 184. Every one is liable to a fine of five pounds who is guilty of any disorderly conduct in any public place to the annoyance of persons there present.
53. The General Provisions under Part XV section 349(1) of the Samoa Act made the Law of England as existing on the fourteenth day of January 1840 (being the year which the Colony of New Zealand was established) to be in force in Samoa.
54. Subsequent section 351 provided that the statute law of New Zealand, whether enacted before or after the commencement of the Samoa Act, shall not have force in Samoa.
55. The Samoa Police Offences Ordinance 1961 (hereinafter referred to as “POO1961”) section 4(g) and (j) respectively replaced sections 183 and 184 of the Samoa Act 1921:
    • “(g) 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.
    • ..........
    • (j) commits an offence of disorderly conduct in a public place.”
56. In Messiter v Police [1980] 1 NZLR 586, Hardie Boys J at the outset held that offences brought under section 3D of the Police Offences Act 1927 (the equivalent of sections 4(g) and (j) of the POO1961):
    • “... lies a field of great constitutional importance. For here is laid out one part of the frontier between individual liberty and public right, between the individual’s freedom of speech and expression and the State’s right to intervene to protect the wider interests of the community. In obtaining and maintaining definition of this frontier, Courts and academicians have labored and the blood of martyrs has been spilt.
    • ....
    • ... it was necessary to interpret s3D so as to determine the limits of the individual’s right to act or to speak according to his whim or his conscience, having regard to the rights of others in the vicinity whose wims or consciences might be differently inclined.”

The Appellant was convicted in the Magistrates Court for uttering insulting words “fucking whore” to a Police woman in plain clothes inside the women’s toilet at a city bar. Hardie Boys J held in the High Court that although the words were insulting, “it was not an intrusion upon the complainants right of use of the public place that would warrant the intervention of the criminal law”. The appeal was allowed and the conviction set aside.

57. Although Messiter was in relation to threatening, abusive or insulting words in a “public place” the latter requirement absent from section 4(g) of the POO1961, the approach is in my view applicable to the question at what circumstance is conduct or behavior under section 4(g) an offence. Hardie Boys J was of the opinion:
    • “... there is to be discerned in almost all the cases on s 3D, certainly in the more recent ones, a common thread, namely that the behaviour or language must amount to an interference with the rights of others, sufficiently serious to warrant the intervention of the criminal law. It need not be an interference with the rights of persons generally. It may be an interference with those of only one person as it was in Police v Christie and as it might have been in O'Connor v Police. But to be an interference of sufficient seriousness, it must, in my opinion, be something in the nature of an intrusion, something uninvited, something imposed upon another member of the public.
    • Here I think is to be found the distinction between the private and the public nature of particular words. Offensive or insulting words will constitute an offence if they are spoken in a way that can be heard by other persons as well as those to whom they are addressed, or if they are addressed to an individual in circumstances that amount to an intrusion upon his rights as a user of a public place. Whether such circumstances exist will be a matter of degree according to the individual case. A whispered word to an intimate friend cannot be an offence. A whispered word to a complete stranger may well be.
58. Hardie Boys J approved of O’Connor v Police [1972] NZLR 379, a case of insulting language. Richmond J stated that the court has to apply an objective test to the conduct in question in a situation as to determine the recipient or target of the speakers remarks and that a conviction should not be held:
    • “... without proof that in the circumstances as known to him at the time he should have appreciated that there was at least a likelihood that his remarks would be overheard by the one and only person to whom they could be both a serious insult and source of annoyance" (ibid, 381).”
59. However, Hardie Boys J did not believe that Richmond J intended to mean that every serious insult causing annoyance would constitute an offence. The degree and circumstance of the conduct or words complained of must also be taken into account:
    • “What the law will regard as sufficient annoyance for this purpose depends on the circumstances of each case. As Turner J said in Melser v Police [1967] NZLR 437, 444: [1980] 1 NZLR 586 at 591
      • "To insult a woman, for instance, though it must always be reprehensible, is not always criminal - it is a matter of degree whether such conduct is in any case sufficiently grave to bring it within the ambit of some particular section of a criminal statute. . . . Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more - it must, in my opinion, tend to annoy or insult such persons as are faced with it - and sufficiently deeply or seriously to warrant the interference of the criminal law."
60. Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166 (1 September 2004) was an appeal from the Supreme Court of Australia by the Appellant against his conviction in the Magistrate Court of the offence of using insulting words in a public place pursuant to section 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 of Queensland. The primary issue in the appeal is whether he was rightly convicted. The appellant contends that the legislation creating the offence was invalid, as an unconstitutional restriction on freedom of speech. Part 2 of the Vagrants Act, as originally enacted, was derived from the Vagrant Act 1851 of Queensland. The 1851 Queensland Act, in turn, evidently drew on the Vagrancy Act 1824 (UK) (5 Geo IV c 83).
61. Gummow and Hayne JJ allowing the appeal discussed the legislative history of the offence in Australia and the elements that required proof in paragraph 163:
    • “Section 6 of the 1851 Queensland Act provided that "any person who shall use any threatening abusive or insulting words or behavior in any public street thoroughfare or place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned" was liable to punishment. Three features of that section must be noted. First, it dealt with words and behaviour. Secondly, it forbade certain conduct in any public street, thoroughfare, or place. Thirdly, it required that either there be an intent to provoke a breach of the peace, or that a breach of the peace "may be occasioned".
62. Section 6 of the 1851 Queensland Act was modelled on s 54(13) of the Metropolitan Police Act 1839 (UK). The construction of the words “whereby a breach of the peace may be occasioned” was discussed in R v The Justices of Clifton; Ex parte McGovern (1903) St R Qd 177. Gummow and Hayne JJ summarized as follows:
    • “.. that an offence was committed if the defendant intended to provoke a breach of the peace or if, without that intention, the defendant's words led to such a breach. It rejected a construction that would result in a person being convicted for using threatening, abusive, or insulting language (in a public place) which might possibly, under some circumstances, occasion a breach of the peace. Of that latter construction Griffith CJ said:
      • "That, in effect, would mean that any person making use of oral defamation to another in a public place would be guilty of an offence, and would practically make it an offence punishable on summary conviction, to defame a man to his face in the street, even though a breach of the peace was not intended and none, in fact, occurred; and the duty would be cast upon the Bench of deciding whether the particular words might have occasioned a breach of the peace. That would be a very serious responsibility to place upon the magistrates, and we ought not lightly to hold that the Legislature has imposed it in the absence of clear or unambiguous words, apart from the creation of a new form of criminal responsibility."
63. Section 7(1)(d) of the Vagrants Act Gaming and Other Offences Act 1931 of Queensland of which the Appellant was charged in Coleman v Power removed the reference to “breach of the peace” and dealt with the use of threatening, abusive or insulting words separately from behaving in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner.
64. The question then in Coleman and Power was whether, after removing “breach of the peace”, the offence of using insulting words required the likelihood of an intention formulated under the omitted “breach of the peace”. The High Court answered this question in the affirmative. Gummow and Hayne JJ concluded:
    • “183. Those four factors are first, that the section creates an offence; secondly, the description of the words as "insulting"; thirdly, the requirement that the words are used to a person; and fourthly, the requirement that the words are used in, or within the hearing of, a public place. Those factors, standing alone, suggest that the "insulting" words that are proscribed are those which are directed to hurting an identified person and are words which, in the circumstances in which they are used, are provocative[145], in the sense that either they are intended to provoke unlawful physical retaliation, or they are reasonably likely to provoke unlawful physical retaliation from either the person to whom they are directed or some other who hears the words uttered. That is, the removal of the references to breach of the peace found in the 1851 Queensland Act took the law substantially to the point which Griffith CJ considered but rejected in Ex parte McGovern. Whether words are insulting would turn on the assessment of whether, in the circumstances in which they were used, they were either intended to provoke unlawful physical retaliation, or were reasonably likely to do so.”
65. In Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91, the Appellant was convicted in the District Court of disorderly behavior for making a public protest in the street outside the house of a police constable pursuant to section 4(1)(a) of the Summary Offences Act 1981. The appellant believed that he was the victim of an abuse of police power who turned up late on a Saturday evening with a search warrant for a vehicle that was not even on the appellants property. The Summary Offences Act replaced section 3D of the Police Offences Act 1927 upon which Messiter was decided.
66. Elias CJ reviewed the history of the legislation and decided cases as to determine the meaning of “behaves in a disorderly manner” under section 4(1)(a) of the Summary Offences Act 1981 and the implication of Article 14 of the New Zealand Bill of Rights:
    • “... if an enactment can be given a meaning consistent with the right to freedom of expression, that meaning is to be preferred to any other. Other aids to interpretation include the wider legislative and common law context and any relevant legislative history. ..... disorderly behaviour under s 4(1)(a) means behaviour seriously disruptive of public order. Simply causing annoyance to someone else, even serious annoyance, is insufficient if public order is not affected.”
67. In arriving at a foundation that the structure and language of the Summary Offences Act that the offences of disorderly behavior protects public order, Elias CJ stated in paragraph 35:
    • “I do not think disorderly behaviour under s 4(1)(a) can consist solely of words directed at any person without the identified intent or recklessness, even if their effect is to “threaten, alarm, insult, or offend” or even if the words themselves can be properly characterised as “threatening or insulting”... But unless there is something additionally disruptive of order about the manner of expression, words which are predictably annoying to the person to whom they are directed would otherwise amount to disorderly behaviour on a lower standard than is provided for in s 4(1)(b) or (c). [my emphasis]
68. Elias CJ was of the opinion that the overriding factor of whether any behavior is disorderly is not to be measured as to the reactions or emotions of those whom it was directed but its objective tendency to disrupt public order. In paragraph 41, Elias CJ finds:
    • “It is consistent with the right of freedom of expression that restrictions on that right may be imposed where necessary to protect interests such as privacy or residential quiet, as art 19 of the International Covenant permits. But s 4(1)(a) is not designed for that end. It exists for the purpose of preservation of public order, not to protect privacy or personal sensitivities alone. Other criminal provisions protect these values to the extent that the legislature has considered necessary. Section 4(1)(a) of the Summary Offences Act cannot be used as a grab-bag to scoop up any behaviour thought to be deserving of condemnation through criminal law, unless the behaviour is disruptive of public order. To constitute disorderly behaviour under s 4(1)(a) there must be an objective tendency to disrupt public order, by behaviour or because of the effect of words used. Whether behaviour is disorderly is not to be assessed against the sensibilities of individuals to whom the behaviour is directed or who are present to see and hear it, but against its tendency to disrupt public order.”
69. Section 4(1)(b) of the New Zealand Summary Offences Act 1981 states “... in any public place, addresses any words to any person intending to threaten, alarm, insult or offend”. This is the equivalent of section 4(g) of the POO1961. Elias CJ states:
    • In each of these provisions [section 4(1)(a) and (b)], the word “insult” is associated with “alarm” and “threat” and must comprehend comparably serious effect. The effects of alarm or apprehension of threat therefore provide some measure for what behaviour is disorderly, given that the penalty for the three offences under s 4(1) is the same. The culpability provided for would not be comparable if the effect produced by disorderly behaviour is simply annoyance or embarrassment.”
70. In considering what construction to be given to “insulting words”, Her Honour DCJ Tuatagaloa (as she then was) in Police v Apisala [2015] WSDC 1 (15 June 2015) referred to a Papua New Guinea case Kurondo v Dabiri [1980] PGNC 32; N258 (26 September 1980). Justice Miles presided over Kurondo’s appeal from the District Court to the National Court of Justice relating to a conviction of the Appellant to a charge of insulting words with intent to provoke a breach of the peace. As to whether the words were insulting, Justice Miles applied an objective test:
    • “The question is not whether the recipient was insulted but whether such person as he would tend to be insulted. In this respect one does not look at the actual reaction of the person to whom the words were directed but to the reaction which one might reasonably expect. There may be cases of course when words are addressed to a person one knows to be easily hurt or particularly susceptible. In the present case, the words were directed towards someone the speaker did not know in particular. The test is whether the speaker as a reasonable person should in all the circumstances expect that the recipient would be insulted, and not merely hurt as to his feelings but insulted to the extent that he was deeply offended or outraged.”
71. Justice Miles further relied on Ball v McIntyre (1966) 9 FLR 237 at 241 a decision of Kerr, J in the Supreme Court of the Australian Capital Territory which stated that mere words which appear hurtful, improper and not in accordance with generally accepted norms does not automatically follow that such words are offensive within the meaning of the section:
    • “... conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to the commonly accepted social rules may well be ill-advised, hurtful, not proper conduct, but it may well not be offensive conduct within the meaning of that section ... different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions...”.
72. As to the meaning of the term “breach of the peace”, Justice Miles affirmed the definition applied by the magistrate:
    • “The magistrate correctly perceived the meaning of the term “breach of the peace”, quoting Carter’s Criminal Law of Queensland (5th edition) at p. 204:
      • “... a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a wrongful act. Mere annoyance, and disturbance or insult to a person or abusive language or great heat and fury without personal violence, are not generally sufficient.”
    • The magistrate also correctly perceived that the use of the insulting words above was insufficient to show that the appellant had the intention to provoke a breach of the peace”.
73. Her Honour Tuatagaloa in Police v Apisala referred to the English case of Marsh v Arscott (1982) 75 Cr.App.R.211 as to determine the meaning of the term “breaches of the peace”. Section 5 of the Public Order Act 1936 (UK) which is similar to the Samoan provision except for the reference to “public place”, McCullogh J stated:
    • “This section is describing breaches of the peace which are brought about, or are likely to be brought about, by other words or behaviour occurring earlier, although usually not very long before. The phrase ‘whereby a breach of the peace is likely to be occasioned’ indicates that Parliament was concerned with cause and effect, i.e., with conduct which is likely to bring about a breach of the peace and not with conduct which is itself a breach of the peace and no more.”
74. The Australian (Coleman v Power) and New Zealand (Brooker v Police) authorities must be distinguished on the grounds that their current provisions dealing with offences related to “insulting words” and “disorderly behavior” require proof of the elements of: (i) a “public place”, (ii) the omission of the term “breaches of the peace”, and (iii) that it involved the expression of political views. In saying that, I am of the view that the approach they have taken is relevant in principle as a guide to “insulting words” and “disorderly behavior” offences in this jurisdiction.
75. I must add that although this case does not involve the issue of freedom of expression in a private or public place which required the question as to whether the criminal law should intervene as are the circumstances in Coleman v Power and Brooker v Police, Samoa in its own Constitution enacted in 1960 Article 13 provides for rights regarding freedom of speech, assembly, association, movement and residence. In my opinion, the same cautious approach adopted by the High Courts in New Zealand and Australia should also apply that the legislation was not intended to be used as a grab-bag to scoop up any behaviour thought to be deserving of condemnation through criminal law.
76. As to the charge of insulting words, the defendant conceded that she did say “aikae ese ma le fale a ou makua”. As a matter of law and in the cultural context of a Samoan environment, I find that the words and context spoken of by the defendant were insulting in nature. I also find that the words were clearly directed at the children specifically Rosalina, Jacob, their younger siblings and “Eki’s” young daughter. Rosalina testified that this happened when they were watching the defendant burn her rubbish at about 7am. Jacob’s evidence was not determinative of when the insulting words were said as well as to who else was present. At first he testified it was when he, Rosalina, their young siblings, Eki’s young daughter and Eki were playing outside Eki’s house. Then he said it was when he and John were mowing the lawn in the afternoon. As to this part, I am inclined to accept Rosalina’s evidence over Jacob as more credible.
77. It follows, therefore, that it is not necessary to consider the first limb of the objective test in the circumstances as known to her at the time she should have appreciated that there was at least a likelihood that her remarks would be overheard by the one and only person it was directed as enunciated in O’Connor v Police and approved by Hardie Boys J in Messiter v Police.
78. However, the second limb in relation to intention is problematic so far as the prosecution’s evidence is concerned. Firstly, were the remarks intended to be both a serious insult and a source of annoyance to Rosalina and Jacob as proposed in Melser v Police:
    • “Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more - it must, in my opinion, tend to annoy or insult such persons as are faced with it - and sufficiently deeply or seriously to warrant the interference of the criminal law."
79. Kerr J stated in Ball v McIntyre that
    • “different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions...”.
80. Elias CJ in Brooker v Police went a step further after a historical review of the New Zealand case laws and held that any serious insult and annoyance on their own would not constitute an offence if there is no behavior that seriously disrupts public order to warrant the intervention of the criminal law. It would not be sufficient if -
    • “The culpability provided for would not be comparable if the effect produced by disorderly behaviour is simply annoyance or embarrassment.”
81. Elias CJ held that the New Zealand historical cases that dealt with section 4(1)(a) have misconstrued the purpose as being protective of the privacy and feelings of the individual who is the subject of the expressive conduct even if the conduct is not disruptive of public order. However, the structure and language of the Summary Offences Act is that the offence of disorderly behaviour protects public order. Notwithstanding that the New Zealand legislation requires that the conduct in question must be in a public place or within hearing distance of a public place, I believe it relevant for this jurisdiction as the intent of breach of the peace requires evidence of retaliation or that retaliation was likely whether in a public or a private place as pronounced in Coleman and Power.

Discussion

82. The New Zealand and Australian cases acknowledge that alleged disorderly conduct in a private environment is not an offence under their current legislative structure. In Samoa, it need not matter where the conduct occurs. In saying that, it is important to bear in mind that in private premises, a person is recognized by law to exercise their own rights and entitled to protection in the proper exercise of them particularly where there is an intrusion in the exercise of that right. As Elias J correctly put it, the purpose of the law is that it protects public order. In Samoa’s case, it applies both to public and private premises.
83. There is no doubt in my view that children of the age of Rosalina and Jacob, both 15 years, are not devoid of feelings and emotions. However, children are perhaps resilient and may be unconcerned and ignorant in any serious manner in relation to any compilation and meaning of insulting words compared to adults. I accept that the use of the word “aikae” is common in nature and part of the Samoan vernacular in social gathering not associated with insult. However, where used with emphasis in a heated exchange would bring it within its demeaning and insulting description.
84. There was no evidence that the insult was considered serious nor a source of significant annoyance to the recipients. In fact, Rosalina and Jacob went about their daily chores as if nothing happened. I have not come across of a case on point where children were involved as targets of insulting words directed to them by an adult. The case laws in New Zealand, Australia and United Kingdom generally are in agreement that well conducted and reasonable men and women would not be easily moved unless the insult were seriously and sufficiently deeply to provoke a response or reasonably likely to provoke unlawful physical retaliation.
85. In saying that, Elias CJ in Brooker stated that the behaviour or words used is not to be assessed against the sensibilities of the individuals to whom the behaviour is directed or who are present to see and hear it, but against its tendencies to disrupt public order. In Coleman v Power, the High Court held that “Whether words are insulting would turn on the assessment of whether, in the circumstances in which they were used, they were either intended to provoke unlawful physical retaliation, or were reasonably likely to do so.” Each of these two cases, though worded differently, refer to the consequence arising from the alleged intention of the speaker to breach the peace or occasion the likelihood of a breach of the peace arising from the use of insulting words.
86. The prosecution submit that the defendant chose the words she used and used them in the circumstance was sufficient to prove her intention to breach the peace. This would not be in line with the authorities discussed above where simple or even serious annoyance and embarrassment would not suffice if public or private order is not affected. The evidence is that the insulting words were made in the morning after 7am. It was not until the afternoon that “Eki”, the defendants brother, Rosalina, Jacob, Eki’s daughter and other persons evident from the video were seen destroying the defendant’s medicinal plants, throwing stones and rubbish towards the defendants dwelling place and verbally taunting her. Prosecution invites the court to infer that the actions of Eki” and others towards the defendant was a direct consequence of the defendant’s insult some five (5) hours earlier.
87. In Marsh v Arscott, McCullogh J suggested that breaches of the peace must follow not very long after by words or behaviour occurring earlier. The test then as Elias CJ put it in Brooker is whether there was serious insult and annoyance that seriously disrupted public order and warrant the intervention of the criminal law. I would answer the question in the negative. There is no direct or circumstantial evidence that would enable me to draw the only inference that the reaction of Rosalina, Jacob and others at least five (5) hours after the insulting words were spoken were a consequence of the defendants insulting words.
88. There is also no evidence that the words spoken, though insulting if used in a context of a heated discussion, were intended by the defendant to provoke a breach of the peace or where a breach of the peace may be likely. There is no evidence whether direct or circumstantial that the defendant intended to assert alarm or violence immediately following her remarks or that it was intended to provoke violence or retaliation.
89. I find that some of the conduct observed from the video of “Eki”, Rosalina, Jacob and others specifically towards the defendant were independent from the conduct of which the defendant is charged of insulting words. I am not of the view that the defendant expected the recipients to be insulted to the extent that they would be deeply offended or outraged.
90. Moreover, the defendant was clearly annoyed due to the intrusion upon her privacy and property by children whom were not part of her family but brought by her brother Eki to live on the land and in one of the buildings that the defendant claims was once occupied by her parents. The defendants conduct may very well offend against the standards of good taste or good manners, a breach of the rules of courtesy or runs contrary to the commonly accepted social rules and may well be ill-advised, hurtful, and not proper conduct. But it may well not be offensive conduct within the meaning of the section (Ball v McIntyre).
91. It could very well be argued that the defendant was within her rights to express her opinion as she did to the manner the family private property was being used by other siblings notwithstanding the fact that she may annoy, disturb or insult someone or use abusive language but without personal violence (Police v Apisala).
92. I therefore find that the defendants conduct was not in all the circumstances such as to warrant the interference of the criminal law.
93. The defendant is hereby acquitted of the charge of insulting words.

Indecent act

94. I turn now to the charge of indecent act with the intent to insult or offend. Rosalina and Jacob are the prosecutions main witnesses as to this charge. I consider the evidence of Rosalina and Jacob with much concern given their denial under cross examination that they did not throw stones unto the defendant’s home nor were they involved in behavior that was annoying and insulting to the defendant. Exhibit D1, i.e., the video taken by mobile phone by the defendant which was not disputed by the prosecution, showed Rosalina and Jacob being part of a number of people seen, over a significant period of time, destroying, burning, verbally taunting and throwing stones on to the home of the defendant.
95. Furthermore, it did not follow that the defendant was recording the actions of Eki and others but at the same time changed into a towel or ie lavalava from her shorts and t-shirt which she had worn earlier. Rosalina agreed under cross examination that when the defendant came out of her house after the alleged indecent act she was again wearing her shorts and tank top.
96. I find the evidence of Rosalina and Jacob not believable given their tendency to deny or lie under oath as to their own conduct as accused by the defendant. Upon viewing the video, I was of the view that Rosalina and Jacobs conduct measured against their own testimony far more alarming than inappropriate and unacceptable. I find that the prosecution have not proven beyond a reasonable doubt that the defendant did an act that was indecent in the form described by the prosecution witnesses.
97. As to the indecent act charge, the defendant is acquitted.
    

JUDGE MATAUTIA RAYMOND SCHUSTER