IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

Crim. Nos: S.310-S.311/93;
S.314-S 315/93;
S 312-S 313/93;
S 319-S 320/93;
S 324-S 325/93;
S 326/93; S 321-323/93;
S 327; S 316/93;
S 328; S 317; S 331/93;
S 318/93

BETWEEN

THE POLICE
Applicant

AND

1. DANNY FIATAGATA
2. TIPASA MAISA
3. HARRY CAIN
Defendants

Counsels: Ms Aikman for applicant
Mr Puni for first defendant
Mr Toailoa for second and third defendants

Hearing (Submissions): 19 April 1993
Judgment: 27 April 1993

ADDENDUM

As I said in my judgment delivered on 27 April 1993 in respect of the defendants Danny Fiatagata and Tipasa Maisa, the Court has not dealt with the case relating to the defendant Harry Cain as the Magistrates Court file on that defendant was not available to this Court. However if the Police still requires a judgment in respect of the defendant Harry Cain then an addendum will be added to my judgment delivered on 27 April 1993 in respect of that defendant when the Magistrates Court file comes to hand.

It must be made clear that the Court is here dealing with the charge of grievous bodily harm against Harry Cain which was filed on 2 April 1993. I say this because the objection taken by counsel for the defendant was that the defendant was originally charged in the Magistrates Court on 2 March 1992 with having wilfully and without lawful justification caused actual bodily harm to one faleata Maselusi of Tuanaimato. However, in April this year, the prosecution sought to file in the Court the more serious charge against the defendant of having wilfully and without lawful justification caused grievous bodily harm to Faleata Maselusi. Counsel for the defendant says this infringes Article 9(4) of the Constitution already discussed in my judgment of 27 April 1993.

It appears to me from the Magistrates Court file that the original charge of actual bodily harm was first called for mention on 15 April 1992 and a plea of not guilty was entered by the defendant to the charge. The matter was then adjourned to 28 May 1992 for hearing and the defendant was required, as a term of his bail conditions, to report to the Apia CIB on every Monday before 4.00pm. It appears that the case was adjourned again to 9 June 1992 for hearing and then again to 11 September 1992 for hearing with his bail reporting condition still continuing. On 10 September 1992 the case was further adjourned to 12 November 1992 for hearing and a separate trial was ordered for this defendant from the defendants Danny Fiatagata and Tipasa Maisa already dealt with in my judgment of 27 April 1993. It appears that the question whether the Police should make available copies of their witnesses written statements to the defendant also arose at that time and the Court ruled that the question he raised by way of case stated in the Supreme Court or Court of Appeal, or alternatively, the matter he referred to the Attorney-General's Office for an opinion. On 12 November 1992, the case was further adjourned to 24 November 1992 when the reporting condition of the defendant's bail was dispensed with. The case was again adjourned from 24 November 1992 to 9 February 1995 and then again to 23 February 1993. On 23 February 1993 the case was again adjourned to 6 April 1993, and from 6 April it was further adjourned to 20 April 1993 when this matter was finally adjourned to 27 April 1993 for mention in this Court. At this time the new charge of grievous bodily harm sworn on 2 April 1993 was filed by the Police. It is because of the grievous bodily harm charge that this matter came before this Court as that is a charge within the jurisdiction of this Court.

The Police say that the delay in filing the grievous bodily harm charge was because of the delay in receiving the medical report from the Health Department. I find it unusual that in case like this where the nature of the injury whether it is actual bodily harm or grievous bodily harm the Police should file the charge of actual bodily harm before first ascertaining the true nature of the injury. Surely the Police must have had some information on which they decided to file the actual bodily harm charge in the first place. It is not clear when the Police actually received the medical report, but even if there was a delay in that regard, it was clearly due to no fault of the defendant. I find it difficult to accept that it took about 13 months before the Police finally received the medical report in this case.

For the reasons relating to the law given in my judgment of 27 April 1993, I am of the opinion that it will be contrary to article 9(4)(a) of the Constitution to accept this fresh and more serious charge of grievous bodily harm 13 months after the defendant was first charged. My conclusion in respect of this defendant is the same as my decision in respect of the defendants Danny Fiatagata and Tipasa Maisa.

I say nothing about the other charge the Police attempted to file in this Court as the objection by defence counsel was directed only to the charge of grievous bodily harm. But as the other charges against the present defendant appear to me to be matters within the jurisdiction of the Magistrates Court, those charges are remitted back to that Court to deal with.

DATED this 9th day of August 1993.

CHIEF JUSTICE