Police v Metotisi [2015] WSSC 68 (28 July 2015)

SUPREME COURT OF SAMOA
Police v Metotisi and Misiuepa [2015] WSSC 68

Case name:	Police v Metotisi and Misiuepa
Citation:	[2015] WSSC 68
Decision date:	28 July 2015
Parties:	POLICE (prosecution) v FUAIAVAILILI METOTISI and NANAI MISIUEPA both males of Sasina, Savaii.
Hearing date(s):
File number(s):	S1845/15, S1920/15-S1922/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Both accused are discharged without conviction in respect of the charge of theft of an animal. - Accused Fui is convicted of the charge of being in possession of an unlicensed firearm and fined $200.
	L Sua-Mailo for prosecution
Representation:	Accused in person
Catchwords:	Theft of animal – possession of unlawful firearm – maximum penalties – sentence – first offenders –good characters – discharged without conviction – convicted and fined
Words and phrases:	Cattle trespass
Legislation cited: Law Text Books	Crimes Act 2013s.163 Arms Ordinance 1960,s.9 The Law of Torts in New Zealand (2009) 5th ed by Todd et al
Cases cited:	Police v Faaiufono [2015] WSSC 59, para 3, Police v Salamo [2015] WSSC160 Police v Salesa [2015] WSSC 64 Police v Tavu’i [2013] WSSC 6, para 29; Police v Tugaga [2010] WSSC 3 para 24
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S1845/15, S1920/15-S1922/15

BETWEEN

P O L I C E
Prosecution

A N D

FUIAVAILILI METOTISI and NANAI MISIUEPA both males of Sasina, Savaii.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 28 July 2015

S E N T E N C E

The charges

1. The accused Fuiavailili Metotisi (Fui) and Nanai Misiuepa (Nanai) both of Sasina in Savaii appear for sentence on one charge of theft of an animal, namely, a cattle beast, contrary to s.163 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. The accused Fui also appears for sentence on one charge of possession of an unlawful firearm, namely, a 12 gauge gun, contrary to s.9 of the Arms Ordinance 1960, which carries a maximum penalty of 2 years imprisonment or 50 penalty units. To the charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. The prosecution’s summary of facts shows that on Thursday night, 7 May 2015, while the accused Fui was at home, he heard a cow walking around his land. He grabbed his 12 gauge gun from his house, lit a bunch of coconut leaves (aulama) to lighten his way, and walked to where the sound of the cow’s movements was coming from. He saw a black female cow on his land and shot it with his 12 gauge gun. The bullet from his gun hit the cow on the chest and the cow died as a result. Fui noted that the cow was not marked anywhere on its body.
3. Also according to the prosecution’s summary of facts, Fui then went and got the accused Nanai who is the pulenuu of the village and another matai of the village. They gathered at Fui’s house and butchered the cow and distributed it amongst themselves and the other matais of the village. The value of the cow is estimated at $2,000.
4. As it appears from the pre-sentence report on the accused Fui, he told the probation service that his village had made a resolution that straying cattle which trespass on to the properties of the people of the village and damage or destroy their properties may be slaughtered. That was why after he had shot and killed the cow he went and reported this matter to the accused Nanai who is the pulenuu of the village. The cow was then cut up and distributed amongst the people of the village. Fui also told the probation service that he had no idea who owns the cow as it had no mark on its body.
5. The pre-sentence report on the accused Nanai shows that Nanai told the probation service that in a matter like this where a straying cow is shot and killed on another villager’s land, the matter is reported to him as the pulenuu of the village in accordance with the usual village procedure. The cow would then be distributed amongst the people of the village. This was the same procedure that had been followed in similar previous cases of this kind. That was why when Fui shot and killed the straying cow in this case, he reported the matter to him. He and a representative of the village council then attended to the house of Fui to see the dead cow. There was no mark on the cow so that it was not possible to identify its owner. In accordance with the usual village procedure, the cow shot by Fui was distributed amongst the people of the village.
6. Two weeks after the cow was killed, the police arrived and arrested both accused.
7. I have to say that I find what both accused told the probation service plausible. It is common knowledge in Samoa that cattle often stray from their owners’ properties and trespass on to other people’s properties causing damage to the plantations and crops of those people. In this case, Fui told the probation service, that he was upset when he saw the cow that he shot destroying most of his crops in his plantation behind his house.
8. Even though both accused have pleaded guilty to the charge of theft of an animal, namely, a cow, I have to say that I am doubtful that their taking of the cow and distributing it amongst the villagers was dishonest. The taking must be dishonest in order for it to amount to theft: Police v Faaiufono [2015] WSSC 59, para 3, Police v Tavu’i [2013] WSSC 6, para 29; Police v Tugaga [2010] WSSC 3, para 24. The actions of both accused, in the context of the usual village procedure which applies in the case of a straying cattle causing damage to the plantation of a villager, cannot be described as dishonest; at least there is a reasonable doubt about the matter.
9. Fui told the probation service that he shot the cow on his land at night time because it was destroying most of his crops behind his house. He then reported the matter to the accused Nanai who is the pulenuu of the village in accordance with the usual village procedure in a matter like this. Nanai and a representative of the village then came to the house of Fui and the decision was made to distribute the carcass amongst the people of the village; again this was in accordance with the usual village procedure in a matter like this.

Cattle trespass

10. This case is similar to Police v Salesa [2015] WSSC 64 and Police v Salamo [2015] WSSC 160 which involved the killing by plantation owners of straying cattle that had been damaging their plantations and crops. No doubt there are many instances around Samoa of plantations and corps being damaged by straying cattle because the cattle owners do not keep their cattle within a secure fence or other enclosure. As a consequence, the plantation owners whose plantations and crops are damaged resort to harming or killing the animals. The real victims in this situation are the plantation owners whose crops have been damaged or destroyed and the poor animals that are harmed or killed.
11. There is a general lack of awareness in Samoa of the tort of cattle trespass which provides civil remedies in damages or for an injunction or both to plantation owners whose plantations or crops are damaged by straying cattle. Damages compensate a plantation owner for the damage done by straying cattle to his plantation and crops. An injunction may be issued against a cattle owner to keep his animals within a secure fence or other enclosure or otherwise keep them secure from wandering around causing damage to other people’s properties. An interim injunction may be sought against a cattle owner to secure his animals pending the outcome of the claim for damages. These remedies can be sought from the Court at the same time without having to harm the animals.
12. Cattle trespass is a tort of strict liability. The plaintiff does not have to show fault on the part of the defendant who is the cattle owner. It is sufficient that the cattle are found straying on the plaintiff’s land. In The Law of Torts in New Zealand (2009) 5th ed by Todd et al, the learned authors state at p.453, para 9.4.01:
    • “Cattle trespass is an ancient common law action which imposes strict liability where cattle or other livestock stray on to a person’s land and cause damage. Cattle trespass is distinguished from the tort of trespass to land by the fact that it is not necessary to show that the intrusion by the animals on to the plaintiff’s land resulted directly from a conscious positive act on the part of the defendant; it is sufficient that the animal strayed on to the plaintiff’s land of its own volition”.

The accused Fuiavailili Metotisi (Fui)

13. From the pre-sentence report on the accused Fui, he would now be 40 years. He is married with two children. He finished school at Year 12 and found manual employment in two government departments before staying home and work on his own plantation.
14. Fui is also a first offender and the character testimonials from his wife and the pastor of his church show that he had been a person of good character. A letter produced to the Court from the owner of the slaughtered cow shows that this matter has been settled in accordance with Samoan custom and Fui has replaced the slaughtered cow with a live cow.

The accused Nanai Misiuepa (Nanai)

15. The accused Nanai is 53 years. He is married and has six children. He finished school at Year 11. He has his own plantation and is the pulenuu of his village of Sasina. Nanai is a first offender and the character testimonials from his wife, the pastor of his church, and a representative of his village all show that he is a person of good character.

Discussion

16. As earlier pointed out, in order to establish the crime of theft of an animal, there must be a dishonest taking of an animal. Without a dishonest taking, there is no theft of an animal. There is a reasonable doubt whether the actions of both accused were dishonest as they were done in accordance with the usual procedure laid down in a village resolution to be followed in a situation of the kind that arose in this case. It would therefore not be proper to convict the accused of the charge of theft of an animal in spite of their guilty pleas to the charge.
17. However, I must emphasise to the accused, especially the accused Fui, that the law provides remedies to a person whose plantation or crops are damaged by cattle straying on to his land. This is in the form of damages against the cattle owner to compensate for any damage, or an injunction against the cattle owner to secure his animals, or both. Harming or killing the poor animals is not a remedy provided under the law.
18. For the charge of being in possession of an unlicensed firearm against the accused Fui, there is no reasonable doubt about that charge.

Result

19. Both accused are discharged without conviction in respect of the charge of theft of an animal.
20. The accused Fui is convicted of the charge of being in possession of an unlicensed firearm and fined $200.
    

CHIEF JUSTICE SAPOLU