Police v Malaki [2015] WSSC 95 (10 September 2015)

THE SUPREME COURT OF SAMOA
Police v Malaki Malaki & Silamana’i Malaki [2015] WSSC 95

Case name:	Police v Malaki Malaki & Silamana’i Malaki
Citation:	[2015] WSSC 95
Decision date:	10 September 2015
Parties:	POLICE (informant) v MALAKI MALAKI & SILAMANA’I MALAKI (defendants) both males of Malie.
Hearing date(s):	7 September 2015
File number(s):	S2601/15, S2091/15, S2092/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:
Representation:	Mr O Tagaloa and Ms L Tavita for the Informant Defendants appears in Person
Catchwords:	intentional damage – insulting words – reckless
Words and phrases:	damage to personal property
Legislation cited:	Crimes Act 2013 s.184(2)(a). Police Offences Ordinance 1961 s 4(g). [NZ] Crimes Act 1961 s 269.
Cases cited:
Summary of decision:	I am satisfied that the Prosecution has proven beyond reasonable doubt that the defendant, Silamana’i Malaki swore at the plaintiff, Taliaoa Sini; and the defendant, Malaki Malaki with intention damaged 20 taro plants.

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs S2601/15, S2091/15, S2092/15

BETWEEN:

P O L I C E
Informant

A N D:

MALAKI MALAKI and SILAMANA’I MALAKI,
both males of Malie.
Defendants

Counsel:
Mr O Tagaloa and Ms L Tavita for the Informant
Defendants appear in Person

Hearing: 7 September 2015

Decision: 10 September 2015

DECISION OF JUSTICE TUATAGALOA

The Charges:

1. The Defendant, Malaki Malaki is charged with intentionally damaging 20 taro plants on 27 May 2015 valued at $2.00 each to the total value of $40.00, the properties of Taliaoa Sini contrary to s.184(2)(a) of the Crimes Act 2013.
2. The Defendant, Silamana’i Malaki is charged with insulting words for saying the following words “ kefe ese ma le fagua lou mea aivalea” on 27 May 2015 contrary to s. 4(g) of the Police Offences Ordinance 1961.
3. I reserved judgment at the end of the evidence and this is that judgment in writing.

The Evidence:

4. The defendants and the victim’s lands are next to each other. On Wednesday, 27 May 2015 the defendant, Silamana’i Malaki went with three (3) sons, Malaki Malaki, Emosi Malaki and Fa’afetai Malaki to their plantation. When they got to their plantation, they saw that someone had destroyed taro plants, 3 coconuts and some ta’amu (yams) plants of their plantation. Not long after, the Victim, Taliaoa Sini drove up to his plantation next to theirs and this is what they said in evidence:
   • Silamana’i called out to the Victim, Taliaoa Sini whether it was him who destroyed their plantation and he said that Taliao Sini responded to him ‘I ‘(yes). He further said that, the Victim swore at him three (3) times while they were having an exchange of words. He said he never swore at the Victim and he told his sons not to mind an idiot. He also said his son Malaki Malaki never destroyed or damaged any taro plants of the Victim while they were there.
   • The defendant son, Malaki Malaki and his two brothers Emosi and Faafetai Malaki, their evidence were the same as that of their father.
   • The two defendants and their two witnesses (Emosi and Faafetai) said in evidence that the Prosecution witnesses of Atonio Samoa and Sini Sini were not present when their father and the Victim were having an exchange of words. They only came 30 minutes after the Victim had left.
   • Malaki Malaki and the two (2) witnesses Emosi and Fa’afetai Malaki testified that they were angry when they saw that their taro, ta’amu and coconuts have been destroyed and were also not happy when the Victim swore at their father. They said their father never swore at the Victim. Silamana’i, Emosi and Faafetai said that Malaki Malaki did not destroy any taro of the Victim. They said that the part of the Victim’s land next to where they were standing was not even planted and the defendant, Malaki Malaki or any of them never went on to the Victim’s land but stood on their land while their father and the Victim were having an argument.
   • Malaki Malaki said he never destroyed or damaged any taro of the Victim as he claimed.
5. The Plaintiff, Taliaoa Sini said he and Atonio Samoa were planting taro at his plantation on this day, 27 May 2015. He went in his truck to pick up the rest of the taro plants to be planted and when he got back to the plantation, Silamana’i and his sons, Malaki, Emosi and Fa’afetai were walking around on his plantation land. This is what the Prosecution witnesses said:
   • Taliaoa Sini testified that defendant, Silamana’i swore at him ‘kefe ese ma le fagua’ and one of his sons threw a piece of wood at him. He said that the defendant, Malaki pulled out taro from the ground and slashed them with a machete. He then left to report the matter to the Police Post at Afega.
   • Atonio Samoa testified that he was walking with the Plaintiff’s young son, Sini Sini to the plantation when he heard the defendant, Silamana’i swearing at the Plaintiff and saw Silamana’i and his sons throwing at Taliaoa. At the same time, the defendant Malaki Malaki walked over and destroyed their taro plants by pulling them out of the ground and slashing them. Afterwards, the Plaintiff went to the Police Post at Afega and he kept on planting taro. Sini Sini also left after his father. He said that he counted 20 taro plants that were destroyed.
   • Sini Sini said they were walking from a stream when Malaki Senior (i.e. Silamana’i) swore at his father “ e kefe ese” and Silamana’i’s son Emosi threw a stick at his father. He said that the defendant, Malaki Malaki pulled taro out of the ground and slashed it while they were all there with his father. His father left after to go to the Police Post at Afega and he and Atonio continued planting taro.

The Law:

6. The New Zealand ‘intentional damage’, section 269 of their Crimes Act 1961 is similar to s.184. The Prosecution m ust prove the following elements of the offence of intentional damage under s.184(2)(a) beyond reasonable doubt:
   • (i) The defendant destroyed or damaged any property;
   • (ii) He did so intentionally or recklessly
7. ‘Property’ is defined in s.2 of the Crimes Act 2013 to mean “real and personal property, and any estate or interest in any real and personal property, money, electricity and any debt, and anything in action, and any other right or interest.”
8. Intention is the accused actual state of mind. ‘Reckless’ means that the accused appreciated the substantial risk of damage but carried on regardless. It is accepted that, the test for ‘reckless’ in intentional damage is subjective.
9. On the charge of insulting words under section 4(g) of the Police Offences Ordinance 1961, the Prosecution must prove beyond reasonable doubt that:
   • (i) The Defendant said (or uses) the words,

(ii) that are insulting;

(iii) with the intent to provoke the peace or whereby a breach of the peace may be occasioned.

10. Section 4(g) of the Police Offences Ordinance 1961 do not require the offence to take place or happen in or at a public place.

Discussion:

11. The main factual issues for intentional damage are:

(i) Whether the defendant, Malaki Malaki damaged or destroyed the 20 taro plants;

(iv) Whether he did so intentionally or recklessly.

12. The main factual issues for insulting words is whether the defendant, Silamana’i Malaki swore at the plaintiff, Taliaoa Sini? If he did, did he have the intention when he said those words to breach the peace or the words said by him may cause a breach of the peace?
13. It came out in the evidence of the Plaintiff, Taliaoa Sini and the defendant, Silamana’i Malaki that there is tension between the two families over the land where their plantations are. Silamana’i told the court that he and Taliaoa are closely related and Taliaoa did not dispute this. It was clear from their evidence that this is not the first time that this tension over the land has blown up between these two families.
14. The evidence by the Plaintiff and his two witnesses and those of the defendants and their two witnesses are poles apart. This is the tale of two stories. Both sides are clearly aligned to their own versions.
15. The prosecution evidence are that the Defendant, Silamana’i swore at the Plaintiff, Taliaoa and the defendant Malaki Malaki damaged the Plaintiff’s taro plants by pulling them out of the ground and slashing them. The defense evidence is, none of that happened. The prosecution witnesses said they were all present, heard and saw what happened. The defense witnesses in their evidence suggested to the court that the prosecution witnesses Atonio Samoa and Sini Sini were not present during the exchange between Taliaoa and Silamana’i. They came after the exchange.
16. The Prosecution witness, Atonio Samoa said he and Sini Sini were walking from a river to go up to where the plantation is when he heard Silamana’i Malaki swearing at Taliaoa. Sini Sini also said that they were walking from a river when he heard Silamana’i Malaki swearing at his father. These two witnesses therefore were not present when Silamana’i allegedly swore at Taliaoa but they were present shortly thereafter.
17. Even if the prosecution witnesses, Atonio Samoa and Sini Sini were not present as claimed by the defense witnesses, there is still the evidence of the Plaintiff, Taliaoa Sini and whether the court would believe his evidence beyond reasonable doubt that the defendant, Silamana’i swore at him.
18. Did the defendant, Silamana’i Malaki swear at the plaintiff, Taliaoa Sini? If he did, did he have the intention to breach the peace or may cause a breach of the peace?
19. When one person swears at another the intention is inferred from the swear words used and the circumstances in which it is uttered or said.
    • Given the two families history over the land I find it implausible to accept the evidence of the defendants and their two witnesses that the defendant, Silamana’i never swore at the plaintiff, Taliaoa and that the defendant, Malaki Malaki never damaged or destroyed the taro plants.
    • I accept the following evidence:
    • There was a heated exchange of words between the Plaintiff, Taliaoa Sini and the Defendant, Silamana’i Malaki arising from the defendant’s plantation being damaged;
    • The heated exchange involved swearing by both men;
    • The prosecution witnesses, Atonio Samoa and Sini Sini were not present when the defendant, Silamana’i allegedly swore at the plaintiff, Taliaoa Sini;
    • I believe the evidence of the plaintiff, Taliaoa Sini that the defendant, Silamana’i swore at him;
    • The Prosecution witnesses, Atonio Samoa and Sini Sini were present and saw the defendant, Malaki Malaki damaged the taro plants.
    • 20 taro plants were damaged.
    • From all the evidence, this is what the court accepts as to what happened. Silamana’i and his three sons, Malaki, Emosi and Faafetai on Wednesday, 27 May 2015 in the afternoon went to check on their plantation next door to the plaintiff, Taliaoa’s plantation. They got to their plantation and saw that taro, 3 coconuts and yams of their plantation have been destroyed by someone. While there, Taliaoa drove up to his plantation and Silamana’i called out to him whether it was him who destroyed their plantation and Taliao responded. A heated exchange then took place between Taliaoa and Silamana’i and Silamana’i swore at Taliaoa. Malaki Malaki because of the damage to their plantation and the heated exchange between his father and the plaintiff, retaliated or reacted by destroying the taro plants belonging to the plaintiff, Taliaoa Sini.

Conclusion:

• I am satisfied that the Prosecution has proven beyond reasonable doubt that:
• The defendant, Silamana’i Malaki swore at the plaintiff, Taliaoa Sini; and
• The defendant, Malaki Malaki with intention damaged 20 taro plants.
  

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Justice Mata Keli Tuatagaloa