Home | Databases | WorldLII | Search | Feedback District Court of Samoa

New Zealand Crown Law Office v Leiataua [2020] WSDC 8 (18 March 2020)

IN THE DISTRICT COURT OF SAMOA
New Zealand Crown Law Office v Leiataua [2020] WSDC 8

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

TULISI LEIATAUA
Applicant

AND:

NEW ZEALAND CROWN LAW OFFICE for and on behalf of the GOVERNMENT OF NEW ZEALAND
Respondent

Counsels:
T Peniamina for Applicant
L K Koria for Respondent

Hearing: 18 March 2020
Decision: 18 March 2020

DECISION OF JUDGE SAAGA

1. The Defendant was arrested pursuant to a warrant issued by this Court pursuant to an Application under Section 8 of the Extradition Act 1974 (hereinafter referred to as the ‘Act’”).
2. The Defendant is alleged to have committed an extradition offence which is defined under Section 2 of the Act as an, “Offence (including an offence of a purely fiscal character) against the law of that extradition country that-
   • (i) an offence for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; and
   • (ii) is constituted by an act or omission that would constitute an offence against the law of Samoa if it took place within Samoa.”
3. The extradition country is New Zealand. Extradition country is defined under Section 2 of the Act as,
   • (i) “a Commonwealth country that is designated by Order under section 3, together with the dependencies (if any) of that country; or
   • (ii) a foreign country with which an extradition treaty is in force.”

The Western Samoa Extradition (Designated Commonwealth Countries) Order 1981 designated New Zealand as a Commonwealth Country for the purposes of Extradition Act 1974.

4. The Defendant has been charged in New Zealand with:
   • (i) Nine (9) counts of sexual violation by rape pursuant to Section 128 (1)(a) and 128B of the Crimes Act 1961. Maximum penalty is twenty years (20) imprisonment for each count.
   • (ii) Three counts of indecent act on a young person pursuant to s.134(3) of the Crimes Act 1961. The maximum penalty is seven years (7) imprisonment for each count.
   • (iii) One count of indecent assault pursuant to Section 135 of the Crimes Act 1961. Maximum penalty is seven (7) years imprisonment.
   • (iv) One count of assault on a child pursuant to Section 194(a) of the Crimes Act 1961. Maximum penalty is two (2) years imprisonment.
   • (v) Twelve (12) counts of sexual violation by unlawful sexual connection pursuant to Sections 128(1) (b) and 128B of the Crimes Act 1961; Maximum penalty is twenty (20) years imprisonment.
   • (vi) Six (6) counts of indecent act on a child pursuant to Section 132(3) of the Crimes Act 1961. Maximum penalty is ten (10) years imprisonment.
5. An authority to proceed was issued by the Minster of Justice and Courts Administration on the 18^th February 2020 pursuant to Section 7(1) of the Act. The request made on behalf of the New Zealand Government was accompanied by:
   • (i) A Warrant of Arrest of the Respondent.
   • (ii) Particulars of the Respondent.
   • (iii) Particulars of the facts upon which, and the law under which, the Respondent was charged;
   • (iv) Evidence for the purposes of Section 9(4)(a) of the Act.
6. The evidence adduced from the sworn affidavits of the victims Monalisa Punimata and Gwenneth Valeri Petana-Punimata and the Police Officers Peiter Serfontein, Stephen Grahame Anderson and David Jonathan Taylor who conducted the investigation and interviewed the victims support the extradition of the Respondent.
7. The evidence adduced from the Affidavit of Joana Maree Bond, the in house counsel for the Ministry of Police provide the particulars of each offence in respect of which extradition is sought, the date and place of commission, the relevant provisions of the law of New Zealand and a warrant of arrest for the Respondent.
8. The Affidavits and documents tendered in evidence have been duly authenticated and have been certified on oath by relevant authorities. These documents are admissible as evidence in this matter.^[1]
9. I am satisfied after hearing the evidence that the offences for which the Defendant has been charged of are extradition offences of which the maximum penalties are not less than 12 months for each offence.
10. Further, there is compelling evidence before the Court to warrant a trial before the Supreme Court of Samoa if the offences were committed within the jurisdiction of the Courts of Samoa.
11. There are general restrictions on extradition whereby a person shall not be extradited to an extradition country or committed to or kept in custody for the purposes of extradition if it appears to the Minister, or this Court or the Supreme Court when reviewing an order of committal.^[2] None of these restrictions apply in this matter.

CONCLUSION:

12. After being satisfied that an authority has been issued in respect of the person arrested and that the offence to which an authority relates is an extradition offence and that there is sufficient evidence to warrant the Respondent’s trial if he had been committed within the jurisdiction of the Courts in Samoa, I hereby order the committal of the Respondent to custody to await the extradition of the Respondent to New Zealand.
13. The Defendant shall not be extradited until after the expiration of 15 days commencing from the date of the order for his committal^[3].
14. The Court is obligated also under Section 10(1) of the Act, to inform the person in ordinary language of the person’s right of action in the Supreme Court for redress of a contravention of the person’s right to personal liberty or a review of the order of committal and shall forthwith give notice of committal to the Minister.
15. I will now explain to the Respondent in the Samoan language which is his language of preference, his rights of actions to the Supreme Court for redress or review of the order of committal.
16. The Registrar of the Court will also advise the Minister of Justice and Courts Administration of the Court’s order of Committal.

JUDGE ATOA - SAAGA

^[1] Section 13 of the Extradition Act 1974
^[2]6. General restrictions on extradition – (1) A person shall not be extradited under this Act to an extradition country or committed to or kept in custody for the purposes of such extradition if it appears to the Minister, or to the Court of committal or the Supreme Court on an application for habeas corpus or for review of the order of committal:
(a) that the offence of which that person is accused or was convicted is an offence of a political character;
(aa) that the offence of which the person is accused or was convicted is an offence under the military law, but not under the ordinary criminal law, of the requesting country;
(b) that the request for extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing the person on account of his or her race, religion, ethnic identity, nationality, or political opinions; or
(c) that the person might, if extradited, be prejudiced at trial or punished, detained or restricted in his or her personal liberty by reason of his or her race, religion, ethnic identity, nationality or political opinions.

^[3] Section 10(2) of the Extradition Act 1974