SUPREME COURT OF SAMOA
Police v Kini & Ors [2016] WSSC 113

Case name: 	Police v Kini & Ors 	
		
Citation: 	[2016] WSSC 113	
		
Decision date: 	15 July 2016	
		
Parties: 	Police and Ulu Vaomalo Ulu Kini, Matuaaileala Faaolaina Ulu Kini, Lancelot Ulu Kini of Puipaa, Paápaá Aliivaa, Tofiga Tasi of Toamua and Ulu Vaomalo Ulu Kini, Lancelot Ulu Kini, Matuaileala Faaolaina Ulu Kini of Puipaa (Defendants)	
		
Hearing date(s): 	26-27 May 2016	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	•	The application to amend information relating intentional damage under section 184(1) is denied.
•	The charge of intentional damage under section 184(1) was not proven beyond reasonable doubt by the prosecution and is therefore dismissed, against the defendants.
•	The charge of intentional damage under section 184(2)(a) is dismissed against the defendants, Paapaa Aliivaa and Tofiga Tasi.
•	The charge of intentional damage under section 184(2)(a) is proven beyond reasonable doubt against the defendants, Ulu Vao Malo, Lance Ulu Kini and Matuaileala Faaolaina Ulu Kini to the following extent:
a)	There were banana trees and other plants on the land marked ‘A’ but not anywhere near the amount or quantity alleged by the complainant, Maotaalii Kaioneta. 
b)	I only accept the amount for a small and big banana tree as estimated by the complainant, Maotaalii.
c)	For a roll of barbed wire fence I give a value of not more than $30 per roll.
•	The defence of claim of right did not succeed.	
		
Representation: 	O Tagaloa for Prosecution
G Latu for Defendants	
		
Catchwords: 	Intentional damage – Land and Titles Court decision – customary land – Sa ‘Ulu family land – Puipa’a –heirs – tautua – damaged property – ownership – disputed quantity of property alleged damaged – claim of right	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 ss. 184(1); 33(1); 33(2); 184(2)(a); 33(1)(d); 33(d); 11;
New Zealand Crimes Act 1961 s. 269; 269(2)(a)
Criminal Procedure Act 1972 s. 36
The Crimes Ordinance 1961 s. 9
The Constitution of the Independent State of Samoa 1960 articles 111; 101(2);
Lands and Titles Act 1981 ss. 74; 2	
		
Cases cited:	Dive and Fly Samoa Ltd v Schmidt [2005] WSSC 40 (22 December 2005)	
	R v Archer [2009] NZCA 543
R v Johnston [1974] 2 NZLR at 660
Police v Eteuati [2005] WSSC10
R v Arthur [1968] NZCA 505 referred to at [CA267.03]
R v Bernhard (1938) 2All ER 140 at 144
Police v Malaitai [1994] WSSC 12 (18 August 1994). 	
Summary of decision:		

SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

ULU VAOMALO ULU KINI, MATUAAILEALA FAAOLAINA ULU KINI, LANCELOT ULU KINI, of Puipaa, PAÁPAÁ ALIIVAA, TOFIGA TASI of Toamua
Defendants

AND:

ULU VAOMALO ULU KINI, LANCELOT ULU KINI, MATUAILEALA FAAOLAINA ULU KINI, of Puipaa.
Defendants

Counsel:
O Tagaloa for Informant
G Latu for Defendants

Hearing:	26 -27 May 2016

Decision:	15 July 2016

DECISION OF JUSTICE TUATAGALOA
1.	I reserved judgment at the end of the evidence and this is that judgment in writing. 
The Charges:
2.	The defendants, Ulu Vaomalo Ulu Kini, Lancelot Ulu Kini and Matuaileala Faaolaina Ulu Kini are jointly charged that on 27 September 2014 intentionally damaged properties belonging to Soamamala Maselino Gabriel of Puipaa contrary to section 184(1) and section 33 of the Crimes Act 2013.
3.	The defendants are generally charged as parties under section 33 which means they could either be found guilty on sub-section (1) or sub-section (2).
4.	The defendants, Ulu Vaomalo Ulu Kini, Matuaileala Faaolaina Ulu Kini, Lancelot Ulu Kini, Paápaá Aliivaa and Tofiga Tasi are jointly charged  on between 27 September and 10 December 2014 intentionally damaged properties belonging to Maotaalii Kaioneta Kitiona of Puipaa contrary to s.184(2)(a) and section 33(1)(d) of the Crimes Act 2013.
5.	The defendants as parties under section 33(d) is that, they incite counsel or procure any person to commit the crime.
The background facts:
6.	The charges of intentional damage are not unusual but what is unique with this case is the relevance (if any) of the Land and Titles Court decision.
7.	The complainants Maotaalii Kaioneta and Soamamala Gabriel and their families have been living on land about 10 or so acres at Puipaa for more than 10 years. This land was declared by the Land Commission in 2013 as customary land. Subsequent to the Land Commission’s decision petitions were filed in the Lands and Titles Court as to which title this customary land belongs to. 
8.	The Lands and Titles Court (LTC) on 26 September 2014 delivered their decision (LC 5482 P1-P7) amongst others that the land (12acres) belongs to two families to the ‘Ulu’ title – Ulu Tapaleao and Ulu Mafoa. This land is to be split equally to the two ‘Ulu’ families. The complainants and their families living on the land will continue to live on the land, serve the title ‘Ulu’ and not to do anymore thing on the land without the owner’s consent.
9.	The defendants are heirs of Ulu Tapaleao.  The defendant Ulu Vao Malo is currently one of the holders of the title ‘Ulu’, two of the defendants are his sons and the other two are his relatives. The part of the land that the complainants are to remain living on belongs to the defendant Ulu Vao Malo and his family.
The Prosecution Case:
10.	The prosecution case is that, the defendants on 27 September 2014 the day after the Land and Titles Court decision hired an excavator and started clearing the land. The excavation work was carried out up to December 2014. As a result, there was damage to properties of the complainants.
11.	The complainant accepts that the defendant, Ulu Vao Malo owns the land but the plants and crops they planted and any building and fence they erected belong to them. In other words, there are two issues of ownership – ownership of the land and ownership of the plants, trees and crops.
The Defence case:
12.	The defendants do not dispute:
•	there was excavation work; and
•	plants, trees and crops on the area excavated were damaged but not to the amount alleged by the complainants.
13.	The gist of the evidence for the defense is that as owner of the land pursuant to the Lands and Titles Court decision on 26 September 2014 they also own everything on the land. 
The agreed facts:
14.	There is no dispute that:
i)	On 26 September 2014 the Land and Titles Court ruled that the title ‘Ulu’ which defendant UluVao Malo holds own the part of the land upon which the complainants live.
ii)	On 27 September 2014 the defendants on instructions of defendant Ulu Vao Malo engaged a digger to clear or excavate the land.
iii)	The excavation or clearance of the land damaged trees, plants, crops and fences.
iv)	The complainants Maotaalii Kaioneta and Soamamala Gabriel and their families have been living on the land for many years.
The evidence for the prosecution:
15.	The Prosecution called three witnesses, the complainants (Maotaalii Kaioneta and Soamamala Gabriel), and Constable Toa who drew the Plan of the site (EXH P1). 
16.	The site plan (EXH P1) tendered through Constable Toa Tafuna’i showed that the area excavated is mainly occupied by Maotaalii and his family. The site plan only showed the complainant Soamamala’s ‘faleoo’ but not his house. Constable Toa marked with ‘B’ on the site plan the position of Soamamala’s house as being in front of the faleoo and about 15-20 meters from the from the boundary with complainant, Maotaalii. Constable said the area marked ‘A’ on the plan was all cleared when he went on site. He does not know what was on the area or of how many (if any) of any crops and plants were damaged.
17.	The complainant, Soamamala Gabriel gave evidence that there were not many plants on his side that was damaged but for his driveway. He said he hired machines to excavate a driveway towards the sea. The only evidence as to any damage to properties of Soamamala Gabriel was that of Soamamala himself. His evidence as to the extent of any damage to his property was:
•	plants he grew as a hedge alongside the boundary with Maotaalii and his driveway, 
•	His driveway to the sea which cost him about $10,000;
•	His barbed wire fence estimated to 2 rolls @$50-$60each; 
•	tasi le pupu fai ($100), 3 koko trees ($100@tree), 2 niu, 2 poumuli tree and 2 lime trees. 
18.	Maotaalii Kaioneta’s evidence is the area marked ‘A’ (a little bit over an acre) was grown with diferent variety of banana trees, cocoa trees, papaya, breadfruit trees, coconuts and other plants. He estimated about 1000 banana trees of different varieties were damaged which he valued at $10 for a small banana plant and $20 for big banana plant. The land his family occupies has a barbed wire fence running along the front parallel to the main road and along the boundary with Soamamala Gabriel. The barbed wire fence that was also damaged he estimated it to be about 30 rolls at about $200 a roll.
The evidence for the defense:
19.	The defendants do not have to give evidence but in this case the defendants Ulu Vao Malo, and his son Lance Ulu Kini waived this right and opted to give evidence. The defense called one witness, the driver of excavator Taulauniu Leilua. 
20.	The defendant Ulu Vao Malo gave the order to excavate the land the very next day after the decision of the LTC. He said the excavation work was to level the land to create a building platform and his intention was never to cause any damage. Ulu Vao Malo pursuant to the LTC decision believed that as owner, the land and everything growing on it belongs to him including any fences but the houses belong to the complainants.
21.	Lancelot Ulu Kini’s evidence was to the excavation works carried out and what was said to have been damaged. Lancelot took some photos before the excavation (EXH P5) as to the area marked ‘A’ on the Plan (EXH P1) and said there was never a banana plantation on the area as claimed by the complainant Maotaalii Kaioneta. The area was mainly bush with very few bananas about ten(10) at the most.
22.	Taulauniu Leilua carried out the excavation works on the first day, 27 September 2014. His evidence is that he only excavated alongside the main road and about 20 meters from the main road starting from the pou moli (street light) marked ‘C’ (EXH P1) next to land occupied by complainant Soamamala Gabriel towards land occupied by Maotaalii Kaioneta. He said if there was any property damaged it was only one pupu fai, some plants and barbed wire fence. Taulauniu said he was not the only one who did the excavation because when he went back after a month or two the area marked ‘A’ had already been cleared.   
The Law as to intentional damage:
23.	The Samoa Crimes Act 2013 is mirrored off the New Zealand Crimes Act 1961. The sections or provisions relating to offences are almost identical. The ‘intentional damage’, section 184 of the Samoa Crimes Act 2013 is similar to section 269 of the New Zealand Crimes Act 1961. 
24.	The defendants are jointly charged as parties with intentional damage:
i)	Section 184 of the Crimes Act 2013 creates two types of intentional damage.
“184(1) A person is liable to imprisonment for a term not exceeding 14 years who intentionally or recklessly destroys or damages any property if the person knows or ought to know that danger to life is likely to result.
184(2)(a) A person is liable to imprisonment for a term of not exceeding 7 years who intentionally or recklessly, destroys or damages any property”
25.	Under s.184(1) the prosecution must prove the following elements beyond reasonable doubt:
a)	The defendants destroyed or damaged any property; and
b)	The defendants did so intentionally or recklessly (which means the defendants appreciated the substantial risk of damage but carried on regardless); and
c)	The defendants knew or ought to have known that danger to life (human life other than the defendants) was likely to ensue.
26.	For intentional damage under s.184(2)(a) the Prosecution must prove the following elements beyond reasonable doubt:
a)	The defendants destroyed or damaged any property;   
b)	The defendants did so intentionally or recklessly (which means the defendants appreciated the substantial risk of damage but carried on regardless)
27.	 Under section 33 a person is a party to and guilty of an offence who:
Commits the offence; or
Does or omits an act for the purpose of aiding any person to commit the offence; or
Abets any person in the commission of the offence; or
Incites, counsels, or procures any person to commit the offence.
(2)   Where two or more persons form a common intention to carry into effect any unlawful purpose and to assist each other in that object, each of them is a party to every offence committed by any one of them in carrying into effect that unlawful purpose if the commission of that offence was or ought to have been known to be a probable consequence of carrying into effect that common purpose.
(3) Nothing in this section prevents the charging of a person as a party to any offence under both subsections (1) and (2) or in the alternative.
28.	‘Property’ is defined in s.2 of the Crimes Act 2013 to mean “real (immovable) and personal (movable) 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.”
29.	At [CA267.03-04] the learned authors on ‘property’ made the following commentaries:
“Although the term ‘property’ is defined in s.2, there is no specific definition of what amounts to ‘immovable’ property. However, this term is commonly applied in the context of property law to include land (including minerals and plants growing in the soil until such item as they are severed from the land) as well as buildings on the land. It is suggested this is the appropriate meaning to be given to ‘immovable property’. The key issue may well be whether the property is currently fixed in place and unable to be moved.”
30.	The Chief Justice in Dive and Fly Samoa Ltd v Schmidt  discuss the issue of ‘fixtures’ and said that the law of fixtures do not apply to customary land because the law of fixtures ‘was borne out of very different circumstances to customary land in Samoa’. As such, the buildings do not form part of the land and are personal items of the complainants. 
31.	The case of R v Archer provides for what constitute ‘damage’ as “not only temporary or permanent physical harm but also permanent or temporary impairment of value or usefulness”.
The application to amend Information S2933/15 under section 184(1):   
32.	Counsel for the prosecution, Mr Tagaloa made the application to amend information S2933/15 from section 184(1) to section 184(2)(a). I informed both counsels that I will rule on this application and included it in the written decision. 
33.	Mr Tagaloa never raised in his final submissions nor made application before his submissions to have this information amended. He did so only after Mr Latu argued in his final submissions that the prosecution failed to prove the element of s.184(1) that the defendants ‘know or ought to know that danger to life is likely to result’.  It was only then Mr Tagaloa asked the court to exercise its discretion to have the charge amended to s.184(2)(a) where there is no element of specific intent. Mr Tagaloa submitted that the court has a wide discretion to amend the charge at any time during the trial and that the amendment sought will not cause any prejudice to the defendants.
34.	Counsel for the prosecution did not ask any of the witnesses any questions that the defendants knew or ought to have known of the likelihood that such work would endanger the lives of the complainant Soamamala and/or to his family. The only case he put to the witnesses (especially to the complainant Soamamala) was of damage to property. 
35.	Section 36 of the Criminal Procedure Act 1972 confers on the court a wide discretion to amend any information at any time during the trial. The exercise of the court’s discretion must be based on principles of fairness to the defendants and in the interests of justice generally. This discretion can even be made after the prosecution and defence have closed their respective cases.
36.	This matter has been before the court since June 2015 and the prosecution has been making various applications to amend the charges up to and including the morning of the trial. Those amendments on 5 October 2015, 8 December 2015 and 26 May 2016 were granted by the court because there was no prejudice to the defendants and the amendments clarified the alleged offending in terms of the dates and properties damaged.
37.	Although the offence under s.184(2)(a) is subsumed under s.184(1) the fact that the prosecution never sought to have it amended at any time as with their other amendments go to show that they never turned their minds to it even after the prosecution evidence or the evidence for the defence . The court may have a wide discretion but the discretion must be exercised on principles of fairness to the defendants and in the interests of justice. 
38.	It is my view that it is unprincipled to allow the amendment as it is unfair, unjust and therefore prejudicial to the defendants. In the interest of justice, the amendment sought by the prosecution is therefore denied.
Discussion on intentional damage charges: 
a)	Intentional damage under s.184(1)
b)	Intentional damage under s.184(2)(a):
39.	The defendant Ulu Vao Malo Ulu Kini and his two sons Lancelot Ulu Kini and Matuaileala Faaolaina Ulu Kini are charged with intentionally damaged properties of Soamamala Gabriel under s.184(1).
40.	The defendants, Ulu Vao Malo Ulu Kini, Matuaileala Faaolaina Ulu Kini, Lance Ulu Kini, Paapaa Aliivaa and Tofiga Tasi are charged for damaging or destroying properties belonging to Maotaalii Kaioneta.
41.	For intentional damage under s.184(1) the prosecution must prove the following elements beyond reasonable doubt:
(a) The defendants destroyed or damaged any property; and
(b) The defendants did so intentionally or recklessly (which means the defendants appreciated the substantial risk of damage but carried on regardless); and
(c) The defendants knew or ought to have known that danger to life (human life other than the defendants) was likely to ensue. There must be proof that the defendants knew or ought to have known that life is likely to be endangered. 
42.	At [CA267.03] the ‘life’ referred to is ‘human life’ and ‘danger to life’ is danger to the life of someone other than the defendant.
43.	For intentional damage under s.184(2)(a) the Prosecution must prove the following elements beyond reasonable doubt:
a)	The defendants destroyed or damaged any property;   
b)	The defendants did so intentionally or recklessly (which means the defendants appreciated the substantial risk of damage but carried on regardless)
44.	The defendants do not dispute:
•	there was excavation work; and
•	plants, trees and crops on the area excavated were damaged.
45.	The defendants however disputed the amount or the quantity of properties alleged by the complainants, Soamamala Gabriel and Maotaalii Kaioneta to have been damaged.
46.	The defendants’ argued that the decision of Land and Titles Court meant, as a matter of law everything growing on the land go with the land and is therefore owned by Ulu Vao Malo’s title. He, therefore cannot be guilty of damaging his own property.
47.	The LTC decision did not define what it meant by ‘land’ nor did it make any specific reference to the plants, trees and crops growing on the land or to any fixtures (buildings, fences).
48.	The Chief Justice in Dive and Fly Samoa Ltd v Schmidt  discuss the issue of ‘fixtures’ and said that the law of fixtures do not apply to customary land because the law of fixtures ‘was borne out of very different circumstances to customary land in Samoa’. As such, the buildings do not form part of the land and are personal items of the complainants. 
49.	As for any crops planted on the land, the key issue may well be whether the property is currently fixed in place and unable to be moved. The crops are harvested and could be moved from one place to another and as such they are movable property and are therefore not fixtures. If they are not fixtures they do not become part of the land. In any way, given the Chief Justice decision on the law of fixtures to customary land the crops planted by the complainants remain the property of the complainants. 
50.	The excavation work was carried out on 27 September 2014 the day after the Land and Titles Court delivered its decision in favor of the defendant, Ulu Vao Malo who ordered the excavation. 
51.	The evidence for the defense is that the excavation work was not intended to damage any property - crops, plants and trees but only to level the land. The defendant Ulu Vao Malo was asked why he did not let the complainants know of his intention to excavate to level the land and the gist of his response was he was not obliged to inform the complainants prior to excavation because he, as owner of the land can do whatever he wants with the land. If the defendants intention was not to cause damage. It raises the question of why they did not inform the complainants of their intention to excavate to build.
52.	Both complainants hold the same view that the land belongs to the defendant, Ulu Vao Malo as per Lands and Titles decision LC 5482 P1-P5 but the plants and crops planted by him and his family and anything they erected on the land (buildings and fences) are his property. Both complainants said that their families have been living on the said land for 20 years or so. 
53.	The evidence for the defense by Taulauniu Leilua and Lance Ulu Kini was that the area marked ‘A’ was mainly bush. The land was ‘derelict and unkempt’. As to any damage, Taulauniu said if there was any property damaged on the day he excavated it would be only one pupu fai, some plants and the barbed wire fence. He said he was nowhere near the area marked ‘A’. Taulauniu said when he turned up the second time, after two months, to again excavate he saw that the land (marked ‘A’) had already been cleared. 
54.	Lance Ulu Kini took photos (EXH P5) of the area marked ‘A’ from different angles before excavation. The problem with the photos taken is that it does not cover the whole area marked ‘A’ but only some parts which show mainly bush with very few plants. He said if there were banana trees there were only a few and they did not seem to have been planted but was wildly grown and was not well kept as a plantation should be.
55.	The complainant, Soamamala said there was not many of any of his plants and crops that were damaged. This is because a lot of the excavation was on the complainant Maotaalii’s side. The most damage to his property is his driveway to the sea. 
56.	Maotaalii’s evidence is the area marked ‘A’ (a little over an acre) was grown with different variety of banana trees, cocoa trees, papaya, breadfruit trees, coconuts and other plants. He estimated about 1000 banana trees of different varieties were damaged which he valued at $10 for a small banana plant and $20 for big banana plant. The land his family occupies has a barbed wire fence running along the front parallel to the main road and along the boundary with Soamamala Gabriel. The barbed wire fence that was also damaged he estimated it to be about 30 rolls at about $200 a roll.
57.	No other evidence was called or provided by the prosecution as to the quantity and extent of damage apart from the complainants. Lance Ulu Kini’s evidence is there were at most 10 banana trees on the area cleared and it was not a banana plantation as claimed by Maotaalii. Soamamala said there were bananas, breadfruit, coconut ,cocoa trees and plants on the area marked ‘A’ (on EXH P1) on Maotaalii’s side but he does not know how many. It is clear that there were crops, plants and trees on the area cleared. It is noticeable that the complainant, Soamamala did not say there was a banana plantation just that there were bananas, breadfruit etc.
58.	Both complainants said if the reason was to level the land and not to damage any of their properties as in the evidence of Ulu Vao Malo then why did not Ulu Vao Malo let them know of his intention to level the land so as to allow them time to take their properties down. Instead they were not warned and that the work started the very next morning after the Lands and Titles Court (LTC) delivered its decision. 
59.	Soamamala did not say or alluded to any danger from the works to him or any of his family. The evidence is that the excavation work was away, from the house and land Soamamala and his family lives.
60.	I find that the defendant, Ulu Vao Malo by ordering the excavation the very next day after the LTC’s decision without informing the complainants prior to and carrying out the excavation knowing full well that the complainants have been living on the land for years and that they would also have crops on the land was reckless. I find that he did not care if any of the complainants’ crops or properties were damaged in the process. 
61.	However, there was no evidence to say, suggest or imply that the work done on the property did in fact present any risk of danger to the life of any person, or that such a risk was even likely. The prosecution, have therefore, failed to prove beyond reasonable doubt the third element of intentional damage under s.184(1).
62.	 I accept the following evidence:
•	The plants and crops damaged were planted on the land by the complainants. Those plants and crops belong to them.
•	There were banana trees, cocoa trees and plants on the land cleared marked ‘A’ (EXH P1).  
•	The number of any banana trees and/or quantity of damage would be far less than alleged by the complainant Maotaalii Kaioneta. 
•	The estimated cost given for a small ($10) and big ($20) banana tree as reasonable. 
•	I do not accept the estimated cost given for a roll of barbed wire given that the barbed wire was not new and have been there for a long time. I fix the cost per roll as not more than $30. 
63.	I find that the prosecution has proven the charge of intentional damage under section 184(2)(a) and section 33(1)(d) as parties against the defendants, Ulu Vao Malo Ulu Kini , Lance Ulu Kini and Matuaileala Faaolaina Ulu Kini.
64.	However, there is no evidence by the prosecution identifying the presence of the defendants Paapaa Aliivaa and Tofiga Tasi when the work was carried out or any evidence that the two defendants incited counseled or procured any person to commit the offence of intentional damage.  The charge is dismissed against the two defendants.
65.	The defendants Ulu Vao Malo, Lance Ulu Kini and Matauaileala Ulu Kini invoked the defence of claim of right that they have a lawful justification of a genuine belief at the time that they had a legal right to do what they did.
Claim of Right:
66.	The essence of the defence is that there must be a genuine belief that the act is lawful and while the belief that the act is lawful and while the belief does not have to be reasonable, reasonableness will be relevant in determining whether that belief is credible. That is, whether you can believe that belief
The law as to claim of right:
67.	The defense of claim of right has its origin in the English common law. By the early 1900s it was firmly established in law by “a long and unbroken chain of authority” that claim of right exists whenever a person honestly believes that they have a lawful claim to property, however unfounded that claim may be.
68.	 New Zealand has codified claim of right and is defined in the interpretation section of their Crimes Act 1961. Therefore, the common law principles of the defence of claim of right have been superceded by legislation in New Zealand. As such, claim of right in New Zealand can be used as a defence only where it is an element of an offence. For example, under section 269(2)(a) a person commits intentional damage when he or she  -         “ intentionally or recklessly, and without claim of right , destroys or damages any property in which that person has no interest” (my emphasis).
69.	In Samoa, the claim of right as a common law defence is available pursuant to section 11 of the Crimes Act 2013 which preserves “All rules and principles of the common law as are consistent with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court…” which render any circumstances justification or excuse for any offence unless they have been altered or are inconsistent with any enactment.  
70.	Section 11 has now include the words “..customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court..” which were not part of section 9 of the Crimes Ordinance 1961. This inclusion is consistent with the definition of ‘law’ under Article 111 of the Constitution. This is important as this case involves customary land.
71.	Section 74 of Lands and Titles Act 1981 provides that any decision of the LTC is to be taken to be a judgment of the Supreme and District Courts.  
72.	‘Custom and usage’ is defined under section 2 of Land and Titles Act 1981 to mean “customs and usages of Samoa accepted as being in force at the relevant time which includes the principles of custom and usage accepted by the Samoan people in general and customs and usages accepted in a particular place or matter”.
73.	Customary land is land held in accordance with Samoan custom and usage. It is held under a matai title of the village the land is situated.
74.	The Samoa Court of Appeal accepted that claim of right is a lawful defence in Samoa. It is assessed subjectively. An honest but mistaken belief will suffice even if this belief is unreasonable.
75.	To establish a claim of right:
i)	The defendants believe that they were entitle to do the act, i.e a belief as to the right to property
ii)	The belief must have been held at the time of the act,
iii)	The belief must be genuinely or honestly held, though it need not be a reasonable belief. The reasonableness of the belief will be of evidential significance on the issue of whether it was genuine.
iv)	It is for the Crown to negative a claim of right.
The evidence related to claim of right and discussion:
76.	The main and sole evidence to the defence of claim of right is the defendant, Ulu Vao Malo. 
77.	Ulu Vao Malo said as owner of the land he also owns everything on it. Asked if he also owns plants and crops planted by the complainant and his family he said yes. Asked if he also owns houses built by the defendants and any fence put on the on the land and he said the houses belong to the complainants but any fence go with the land that he owns. 
78.	Ulu Vao Malo’s belief that as owner of the land he owns everything growing on the land regardless of whether it was planted by the complainants and including any fences they put on the land but not the houses built by the complainants does not make sense. If he believes that as owner of the land, everything on the land go with the land then that should include buildings. 
79.	Ulu Vao Malo was shifty with his responses when asked by Counsel for the prosecution (p.74 of transcript) he agreed that any bananas planted by the complainants belong to them. That was consistent when he said (p.79 of transcript) that his family had also planted coconut trees and cocoa trees on the land and those belong to his family. Yet when he was asked later on in his evidence whether he agrees then, that the plants, trees including any bananas planted by the complainants belong to the complainants he did not agree.  
80.	It is common knowledge that Land and Titles Court decisions where the court on eviction would order the people to remove or dismantle their buildings erected on the land and harvest or take with them crops they have planted on the land. The inference that can be drawn from such decisions is that buildings built by the people and plants, trees and crops they planted belong to them.   The defendant Ulu Vao Malo who is 74 years old was a former member of parliament and holds one of the chiefly oratorial matai title was asked whether he was aware of such Land and Titles Court decisions. Ulu Vao Malo responded that it had never happened to him and all he is aware of is LTC orders to dismantle buildings but never to anything planted on the land including crops. 
81.	Of what I’ve heard and from observing the defendant, Ulu Vao Malo in court I doubt the honesty of his belief. I therefore reject the defence of claim of right.
Conclusion:
82.	The application to amend information relating intentional damage under section 184(1) is denied.
83.	The charge of intentional damage under section 184(1) was not proven beyond reasonable doubt by the prosecution and is therefore dismissed, against the defendants.
84.	The charge of intentional damage under section 184(2)(a) is dismissed against the defendants, Paapaa Aliivaa and Tofiga Tasi.
85.	The charge of intentional damage under section 184(2)(a) is proven beyond reasonable doubt against the defendants, Ulu Vao Malo, Lance Ulu Kini and Matuaileala Faaolaina Ulu Kini to the following extent:
i)	There were banana trees and other plants on the land marked ‘A’ but not anywhere near the amount or quantity alleged by the complainant, Maotaalii Kaioneta. 
ii)	I only accept the amount for a small and big banana tree as estimated by the complainant, Maotaalii.
iii)	For a roll of barbed wire fence I give a value of not more than $30 per roll.
86.	The defence of claim of right did not succeed.

JUSTICE TUATAGALOA