IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Judicature Ordinance 1961.

AND

IN THE MATTER of an appeal pursuant to Section 164L
of the Criminal Procedure Act 1972.

BETWEEN

THE POLICE
(Appellant)

AND

LAINE LEOFO, FRANCIS MAIAVA, TIFAGA PRITCHARD,
PATI FAUPO, MALEKO FAASOLO
(Respondents)

Counsel: RJ Schuster for appellant
S Leung Wai for respondent Pati Faupo
JJ Brunt for respondents Laine Leofo and Francis Maiava
AP Petaia for respondents Tifaga Pritchard and Maleko Faasolo

Hearing: 19 October 2001
Ruling: 22 October 2001

RULING OF SAPOLU CJ

On Thursday, 18 October 2001, during the call over to find out which appeals to the Court of Appeal are still proceeding for the sitting of the Court of Appeal in the week commencing on 19 November, Mr Leung Wai for the respondent Pati Faupo pointed out he had filed a motion to strike out the appeal against the acquittal of his client on 13 October 2000 on charges of theft as a servant during a trial held before Vaai J. His motion was then adjourned to 8.30am the following morning for the Court to deal with it.

On the same day, 18 October 2001, Mr Brunt for the respondents Laine Leofo and Francis Maiava who had also been acquitted on 13 October 2000 of charges of theft as a servant during the same trial before Vaai J, also filed a motion to strike out the appeal against the acquittal of his clients. This motion was not known to the Court until the following morning.

By motion dated 18 October 2001, Mr Petaia for the respondents Tifaga Pritchard and Maleko Faasolo sought to be joined in the motion by other counsel to strike out the appeal. The respondents Tifaga Pritchard and Maleko Faasolo had also been acquitted of charges of theft as a servant on 13 October 2000 during the same trial before Vaai J. I decided to grant Mr Petaia’s motion to be joined in the motion to strike out during the short hearing on 19 October but reserved my ruling on the motions to strike out.

After consideration of the motions by counsel to strike out the appeal, I have decided to leave these motions to be dealt with by the Court of Appeal for these reasons. The motions to strike out the appeal are actually filed with the Court of Appeal. This is evidenced by the fact that the intitulements to all three motions by counsel for the respondents are headed “IN THE COURT OF APPEAL OF SAMOA”. In the context of the strike out motions, the references in the motions that counsel “will move this Honourable Court…….. to strike out the appeal against acquittal” are clearly references to the Court of Appeal and not to this Court.

The second reason is that the principal motion which was that filed by Mr Leung Wai is based on r.35 of the Court of Appeal Rules 1961. Rule 35 provides:

“If upon the expiration of 6 weeks from the date of filing notice of appeal or the order granting leave to appeal, as the case may be, the appellant shall have failed to prepare and lodge the record as provided in clause 32 hereof then the appeal shall be determined to have been abandoned”.

Mr Leung Wai submitted that as the appellant had not filed a record of the appeal within the six weeks allowed under r.35 the appeal should be determined as abandoned. He further submitted that r.38 which empowers the Court of Appeal or the President to waive, remedy or otherwise deal with a non-compliance with the rules by an appellant does not apply to assist the appellant in this instance as the appellant, if it had wanted to seek extension of time to prepare and file the appeal record, should have done so before the expiry of the six weeks period allowed under r.35. Mr Leung Wai also submitted a copy of the New Zealand Court of Appeal decision in Airwork (NZ) Ltd v Vertical Flight Management Ltd (1998) (CA 293/97; reasons for judgment delivered on 23 July 1998 by Blanchard J) which dealt with r.10(2) Court of Appeal (Civil) Rules 1997 (NZ) which relates to the abandonment of appeals not pursued. Clearly the motions to strike out the appeal is based on the Court of Appeal Rules 1961 and relates to an important issue concerning appeals to the Court of Appeal as well as to the construction to be given to rules 35 and 38 of the Court of Appeal Rules 1961.

For these reasons, I have decided to refer this matter to the Court of Appeal, which is the Court the motions have been filed with, for that Court to decide on the proper construction of its own rules. It may not be prudent for this Court to decide on the construction to be given to rules 35 and 38. My decision to grant Mr Petaia’s motion to be joined in the strike out motion is also referred to the Court of Appeal for its consideration.

As a matter of prudence, counsel for the appellant should still take every step to complete the appeal record which he advised this Court was filed on 16 October just in case. It should be noted in this connexion that the Judges of the Court of Appeal will be in Samoa for about one week.

I make no order as to costs.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for appellant
Leung Wai Law Firm for respondent Pati Faupo
Toailoa & Associates for respondents Laine Leofo and Francis Maiava
Richard’s Law Firm for respondents Tifaga Pritchard & Maleko Faasolo