Police v Phillips [2024] WSDC 5 (11 October 2024)

IN THE DISTRICT COURT OF SAMOA
Police v Phillips [2024] 5 (11 October 2024)

Case name:	Police v Phillips
Citation:	[2024] WSDC 5
Decision date:	11 October 2024
Parties:	POLICE (Plaintiff) v PAUL JOSEPH PHILLIPS (Defendant)
Hearing date(s):	26 & 27 June 2024
File number(s):
Jurisdiction:	District Court - CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	The prosecution have proven the two charges of assault beyond a reasonable doubt and have negated the defence of property proposed by the defendant. This matter is adjourned for sentence.
Representation:	Sergeant Solofa for Prosecution Mr P. Fepuleai for the Defendant
Catchwords:	Preliminary issues, background, the facts, the law, discussion, conclusion
Words and phrases:
Legislation cited:	Crimes Act 2013, s123, s184(2)
Cases cited:	Meredith v Philips [2015] WSSC 54 (19 May 2015); Police v Kini [2016] WSSC 112 (15 July 2016); Police v Phillips [2017] WSSC 125 (4 August 2017); R v Archer [2009] NZCA 543; Sapolu v Attorney General [2009] WSSC 110 (24 November 2009).
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

AND

PAUL JOSEPH PHILLIPS, male of Levili and Vaimoso

Defendant

Counsel: Sergeant Solofa for Prosecution

Mr P Fepulea’i for the Defendant

Hearing: 26^th & 27^th June 2024

Decision: 11^th October 2024

RESERVED DECISION

1. The defendant is charged with three counts of assault pursuant to section 123 and one of intentional damage pursuant to section 184(2) of the Crimes Act 2013 (the Act).

Preliminary issue

2. The parties were disclosed my professional relationship in relation to the complainant Mr Richard Meredith being a former client before my elevation to the bench. Furthermore, I aso know the defendant and his wife very well from youthful years in college days. To date, there continues to be a general and cordial acknowledgement of and with both parties given the social and business nature of Apia’s community. The parties were invited to indicate whether they oppose or not as to my presiding over the matter.
3. The prosecution applied for my recusal given I was not impartial and incompetent due to bias grounded on the following:
   1. the complainant was my former client;
   2. that I had sat on a separate and earlier complaint of which I dismissed the charge against the same defendant following a defended hearing; and
   100. I may have been biased in that decision leading to my incompetence.
4. The prosecution were given the opportunity to provide evidence of non-impartiality and incompetence due to bias in relation to a previous case between Mr Meredith and the defendant. No evidence was forthcoming and the prosecution withdrew their application. Mr Fepulea’i for the defendant did not seek for my recusal.

Background

5. Mr Meredith asserted that following a Supreme Court case in May 2015^[1] (Exhibit P4), he and his sister (Mrs Cook who is the defendant’s mother-in-law) entered into a vehicle space parking agreement^[2]. This agreement stipulated:
   1. All easements adjoining parcels 797, 798 and 593 can be used for car park except for existing sheltered car park areas and direct access ways into buildings;
   2. Parking may be allowed in front of direct access ways into building by permission;
   100. Existing marked Pacific Jewel parking shall not be used by tenants of 797 and 593 during working hours unless permission is given;
   4. All public parking space are free to all after hours, non-working days or public holidays; and
   5. Parking lines and signs can be done on all easements for the ordering (identification) of parking.
6. The agreement, on the other hand, was contrary to the court ruling:
   1. Paragraph 6 affirmed “... the balance of the land on each parcel (797, 798 & 593) not occupied by the buildings was turned into an easement for the benefit of each other.”
   2. Paragraph 32 “... the marked parking lots to the north and to the east of the easement on parcel 798 ought to be removed so that the two parking lots next to and adjoining the Sunshine Biscuit building to the north and east shall remain.”
   100. Paragraph 40 “The rest of the car parking lots shall be removed within 7 days.”
7. Justice Lesa’s decision meant that the only car park areas that should be allowed are to the east and north of the Sunshine Biscuit Building part of Parcel 800 and 593. This was premised on His Honour’s finding of fact and law that any other space for parking would significantly hinder and/or completely block reasonable access in or out of parcels 797, 798 and 593. This was also to be consistent with the parties agreed common understanding that the easements were for the benefit of each other^[3].
8. In effect, the parking agreement made all easements available for parking inclusive of the area east and north of the Sunshine Biscuit building contained in Justice Lesa’s ruling except for sheltered car park areas and direct access ways into buildings. It appears the intent of the agreement brought relief for a while but much discontent has arisen in terms of the mutual use of the easement to date. Such is the matter now before the court.

The facts

9. Mr Meredith testified that on the morning of the 29^th December 2023, the defendant intentionally drove his vehicle over his orange plastic parking cones that were placed on the easement north of the Sunshine Biscuit Building or directly in front of Parcel 800. This allegedly caused damage to the cones. Mr Meredith’s testimony is secondary information relying on what was relayed to him by someone and a viewing of his security video that had direct line of the area in question.
10. The defendant, Mr Meredith asserted, subsequently assaulted him when Mr Meredith tried to confront the defendant about this particular parking space. Mr Meredith alleges that the defendant intentionally used his vehicle to hit him as he was trying to stop the defendant from parking in “his (Mr Meredith’s) space”.
11. Ms Utumalama Nikolao is a supervisor of a company that leases that Sunshine Biscuit building. She testified that she observed Mr Meredith on the morning of 29^th December 2023 put out the cones in front of their office. As she was sorting out her delivery, she observed the defendant in his pickup drive over the cones on his way out at about 10am. She noticed the defendant returning and parked his truck just before the main access door to their building. He picked up one of the cones and threw it over the roof of their building.
12. At about 11am, she observed Mr Meredith and the defendant arguing outside her building where the cones were placed.
13. Ms Nikolao witnessed the defendant get in his vehicle and tried to maneuver his vehicle to park where the cones were but Mr Meredith tried to stop him by placing himself in front of the vehicle. Every time the vehicle etched forward, Mr Meredith would put his body in front of the vehicle. She further testified that prior to this incident, she earlier saw the defendant with his vehicle facing the premises exit and was trying to reverse but Mr Meredith ran to the back and used his body to block the vehicle from reversing.
14. Ms Nikolao does not know who put the cones back after the defendant ran over it and threw one away. She testified that no car was parked in front of their main door that morning as they use that as their main entrance and delivery. The small door closest to the video camera and west of the main entrance door is always locked.
15. The defendant elected to give evidence and did not deny that he ran over the cones but that they were a barricade to his rightful access according to Justice Lesa’s court ruling. He testified that the cones were not damaged being durable material. He further testified that Mr Meredith was physically trying to prevent him from parking in the area where the cones were by throwing himself in front of his vehicle. Mr Meredith again threw himself at the back of his truck to prevent him from backing into the same parking area.
16. Photographic documentation^[4] and a video^[5] of the area was produced by the prosecution and consented by the defendant. This showed the defendant whilst driving out and returning to the same place drove over the orange cones. The video was not clear as to the specific conditions of the cones prior to the defendant running over them. Photograph P1(a) & (b) close-up shows damage to the tips of the cones but leaves open two questions: firstly, of the cones condition prior to the defendant driving over them, and secondly, whether these were the specific cones that the defendant drove over given the defendant did not drive over all the cones.

The Law

17. Section 184(2) states:
    • (2) A person is liable to imprisonment for a term not exceeding 7 years who:
    • (a) intentionally or recklessly, destroys or damages any property; or
    • (b) intentionally or recklessly, destroys or damages any property with intent to obtain any benefit, or with intent to cause loss to any other person
18. Prosecution had not stipulated which of part (a) or (b) they rely to prosecute the charge. In any event, the judicial application and interpretation of section 184(2) is settled in this jurisdiction^[6] and need not be repeated here. Suffice to say that the prosecution must prove (1) the defendant destroyed or damaged any property and (2) he did so intentionally or recklessly.

Discussion

19. Having heard from the witnesses, the issue is whether the defendant destroyed or damaged the parking cones. Having observed the photos and the videos, it is clear that the defendant intentionally drove over the cones. He did so with reckless disregard given the nature of the area being a private access way to parcel 797, 798 and 593. In saying that, he is not being charged with a driving offence. It shows nevertheless that the defendant was annoyed with the parking cones placed there earlier that morning by Mr Meredith in violation of the court ruling and their parking agreement.
20. But even with the defendants actions, it is questionable whether the parking cones were damaged despite the clear act of driving over some of the cones, kicking and throwing one over the roof of the Sunshine Biscuit Building. The video shows about 2 or 3 cones that the defendant drove over as he was going out. Someone put the cones back up and the defendant drove over them as he came back. Someone put the cones back up again. The defendant parked his car on the side of the Sunshine Biscuit building, got out, kicked and threw one over the roof.
21. There was no evidence that the cones were not damaged at their apex before the defendant drove over them and there is no evidence that these were the same 2 or 3 cones that the defendant drove over of the seven cones shown in the video and photos. The facts are open for me make two inferences: (1) that the 2 or 3 cones shown in the photo were the ones that the defendant drove over and were not damaged prior to that morning, or (2) that the said cones already were subjected to wear and tear due to use but not due to the actions of the defendant.
22. Where I am unable to resolve this question as to which inference is more plausible and consistent with the facts, I should find in favour of the defendant. Given the speed the defendant drove over the cones, I am inclined to believe that it would not have been sufficient to damage the apex of these durable parking cones. A closer inspection appears to show that the apexes have been chipped. It would require a heavy equipment or vehicle slowly pressing over, not speeding over, these cones unto a hard and coarse surface over a period of time to produce such a result.
23. The term damage to property referred in Police v Kini^[7] and citing R v Archer^[8] describe the term ‘damage’ as “not only temporary or permanent physical harm but also permanent or temporary impairment of value or usefulness”.
24. If there is no finding of or reasonable doubt of physical damage whether temporary or permanent resulting from the actions of the defendant, and there is also no permanent or temporary impairment of value of usefulness of the property given its nature and purpose, I should find in favour of the defendant. Despite the actions of the defendant, someone made the effort to put the cones back to where they were placed affirming the notion that the cones were not impaired and were still useful for its purpose.
25. The defendant was justified being discontent with the actions of Mr Meredith given Justice Lesa’s ruling and the parking agreement. However, he was not justified in taking matters into his own hands on the notion of right to property when clearly the easement between parcels 797 and 798 are for the benefit of each other.

Conclusion

26. Given the reasoning outlined above, the defendant is acquitted of the charge for the fact that the first element could not be proven by the prosecution beyond a reasonable doubt.

Assault

27. Mr Meredith seemed surprised when advised that there was a charge of assault following the same parking incident. He resorted that if police had filed a charge then let it be so.
28. It seemed that what Mr Meredith was most concerned about was the verification of his exclusive right to the parking space north of the Sunshine Biscuit building. However, this was not consistent with Justice Lesa’s ruling and the parking agreement. The alleged assault clearly was not of crucial importance, if any, so far as the complainant and the defendant were concerned.
29. Having considered the two independent sources of evidence, i.e., the video and the testimony of Ms Nikolao, it showed Mr Meredith placing himself in harms way as opposed to the defendant in the alleged act of assault using his vehicle. Assault is the intentional application of force from one person to another. The facts of this case do not show that to be the case particularly when Mr Meredith was witnessed by Ms Nikolao stepping in front of the defendants vehicle not once but several times. Ms Nikolao was the prosecution witness and her evidence was consistent with the evidence of the defendant and the video footage.

Conclusion

30. I am not satisfied that the prosecution have proven this charge beyond a reasonable doubt and I therefore acquit the defendant of the charge.

The incident of 10th February 2024

31. Albina Meredith is the 54 years old wife of Mr Meredith and the complainant in this matter. She testified that her husband told her to go and take a video and photos^[9] of what the defendant and his wife were doing with the easement between Parcel 798 and 801 where the Samoa Meat building is located. This was for the purpose of presenting evidence in their pending Supreme Court civil case relating to the same land. She was accompanied by her 16 years old son Alexander Richard Meredith.
32. There were vehicles parked in this space allegedly belonging to the defendants workers. Mrs Meredith claimed that the defendant and his wife were blocking their main access into the second floor of the Samoa Meat building. Mrs Meredith testified that as she was filming the area, the defendant angrily confronted and physically forced her away from the area by gestures, using his hands and body. He also assaulted her son by grabbing his arm, placing his hand on his chest and shoving him away from the area.
33. Alexander testified that he saw and took a video of the defendant pushing and shoving his mother which caused her to almost fall down. He also grabbed his arms and shoved his chest forcing him back.
34. Mr Meredith testified as to the historical construction of the subdivision^[10] which was helpful but did not witness the alleged assault.
35. The hostility between the complainant and the defendant is well known and premised on their own individual belief as to who owned this space between Parcel 798 and 801. The defendant claimed that Mrs Meredith and her son were trespassing. Mrs Meredith equally believed that she had a right to access this part of the land by virtue of Justice Lesa’s ruling in 2015.

Discussion

36. Having considered the videos 1-4, I have no difficulty in finding that the defendant approached the victims. In doing so, the defendant applied physical force and angry gestures directly to Mrs Meredith and Alexander which forced them to retreat from the area of the confrontation.
37. The question which remains is whether the defendant’s actions were justified on the claim that he honestly believed that he was protecting or acting in defence of his property.
38. In Sapolu v Attorney General^[11], Justice Vaai held that no self defence or defence of property to assault can arise where the circumstances show that the defendant was clearly angry and approached the victim. The facts of the Sapolu case show that the victim was part of a group doing the village clean-up. They were cleaning and burning rubbish adjoining the land of the defendant. The defendant Sapolu could have kept his distance but chose to escalate the situation by angrily kicking the fire and approached the victim with the logical conclusion to assault him.
39. The historical relationship of the defendant, the complainant and her husband as to the land is well known. This history and knowledge goes against the defence of the defendant. The Supreme Court decision in 2015 stipulated this part of the land as an easement. However, the subsequent subjective interpretations of the parties as to that ruling in their own favour continued to cause confrontations.
40. To avoid any doubt, I am not making any determination as to the legal status of the property upon which the incident occurred. Suffice to say only that if the defendant was genuinely acting in defence of this property believing it to be his, the circumstances of the case would negate such a defense even if the property was the defendants legally.
41. The defendant, having been angered due to the actions of Mrs Meredith and her son coming unto the property, approached them and physically forced them off the premises.
42. The defendant was clearly provoked and this is the only distinction with the Sapolu v Attorney General case. However, it is not a defence to assault but will be taken into consideration for sentencing purposes.
43. But a word of notice to the complainants. It appears Mrs Meredith and her son did not appreciate that a more serious consequence of injury or death could have resulted by taking such a risk to provoke the defendant just to prove a point. It is a dangerous challenge to test the tolerance limits of a Samoan man especially when land is concerned. It is best to let the law takes its course.

Conclusion

44. The prosecution have proven the two charges of assault beyond a reasonable doubt and have negated the defence of property proposed by the defendant.
45. This matter is adjourned for sentence.

JUDGE MATA’UTIA RAYMOND SCHUSTER

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^[1] Meredith v Philips [2015] WSSC 54 (19 May 2015)
^[2] Exhibit D1
^[3] Meredith v Philips [2015] WSSC 54 (19 May 2015) paragraph 6
^[4] Exhibit P1(a), (b) & (c)
^[5] Exhibit P2
^[6] Police v Kini [2016] WSSC 112 (15 July 2016); Police v Phillips [2017] WSSC 125 (4 August 2017)
^[7] Police v Kini [2016] WSSC 112 (15 July 2016) paragraph 31
^[8] [2009] NZCA 543
^[9] Exhibit P1(c) and P2 videos 1-4
^[10] Exhibit P4
^[11] [2009] WSSC 110 (24 November 2009)