[1980-1993] WSLR 495

SUPREME COURT OF SAMOA

POLICE

v

FAATOAFE (AKI TAUILIILI.) (No. 2)

Supreme Court Apia
Ryan CJ
8 April 1992

CRIMINAL PROCEDURE - Re-hearing application pursuant to S108 Criminal Procedure Act 1972.

Application for new trial on grounds of evidence available which was not available at the time of trial, dismissed.

Edwards for Prosecution
Fepulea'i for Defence

RYAN W. The Defendant applies for a re-hearing on the grounds that there is evidence available now which was not available at the time of the Trial which would go to show that the evidence of the prosecution witnesses was perjured, and that the Defendant was innocent.

The evidence referred to is (a) evidence from the Defendant's wife and (h) from the Defendant.

The trial took place on 19th February. On 8 January the trial documents required pursuant to S.89 of the Criminal Procedure Act 1972 were forwarded to the Court. I must assume in the absence of any submissions or evidence to the contrary that the Defendant received his copies of same well before the trial date. Those trial documents contained statements made by the girl concerned and her mother but did not contain a statement from a witness by the name of Netini Stowers who was also called. The statement of the girl in particular should certainly have alerted the Defendant to exactly what case the prosecution would attempt to prove.

The Defendant's wife was available as a witness had he made even the most minimal effort to locate her and it certainly cannot be said that her evidence is new and was not available at the time.

As to the evidence of the witness Stowers as I said in my decision she was cross examined as to whether she was ever at the scene. I went on to say "I reached the conclusion that she was the least convincing witness with some of the evidence that she. gave  and I reached a further conclusion with my of her the other 2 witnesses that none of them was part particularly bright intellectually".

It can be seen therefore that I placed no great reliance on Stowers evidence that I placed no great reliance on that she was not at the scene is of little significance. In any event even if she had given birth to a child in Upolu on 14th May 1991 that date is not crucial of itself. This was a case where the incident was alleged to have occurred between the 1st and 31st May and while there was clearly a doubt in my mind at the trial as to the value of Stowers' evidence and the truthfulness or otherwise thereof, the evidence of the mother and child was quite convincing as to an incident as described by them having taken place in May.

I am accordingly not satisfied that any of the evidence now set out in the affidavit is sufficient to warrant the ordering of a new trial and the application is dismissed.