IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MILOVALE MILOVALE,
male of Tuanai
Defendant

Counsel: Mr R Schuster for the Informant
Mr TMPRS Toailoa for the Defendant

Memorandum filed: Defendant: 25 March 2002
Informant: 10 April 2002
Date of Decision: 12 February 2003

REASONS FOR A DECISION AS TO COSTS BY VAAI J

1.	At the conclusion of the trial on the 21st March 2002 after the assessors delivered their verdict of not guilty on the charge of murder, I asked counsel for the defence whether the accused was on legal aid. Counsel affirmed the accused was on legal aid. Counsel also wished to be heard on costs and I ordered counsels to file memorandum for costs within 5 days.

2.	Both counsels did file memorandums and I do recall receiving the memorandums after I have shifted chambers as I was then presiding in the Lands and Titles Court and a judge from New Zealand was using my chamber.

3.	In the absence of the trial file I did write a memorandum granting costs sought by Mr Toailoa. As the matter was still fresh in my mind then I did not need to refer back to the trial file.

4.	By letter dated 11th February 2003 Mr Toailoa informs me that my decision on his costs application is still pending.

5.	Briefly these are my reasons for granting costs sought; bearing in mind the decisions of Wilson J in Police v Liu Lota (unreported) 17 June 1999; the Samoa Court of Appeal decision in Police v Maiava Safune Tito & Others (unreported) 15 August 2000; and the circumstances surrounding the information filed against the accused:

i.	The accused is from the village of Tuanai and the deceased is from the village of Leauvaa.

ii.	The day after the incident the police obtained statements from witnesses and as a result a Leauvaa youth (Konesage) was arrested and charged with murder. He was released on bail pending the hearing and he chose to remain silent and gave no statement to the police.

iii.	While on bail Konesage decided to talk to the police and put the blame on the accused. He gave the police a written statement on the 1st March 2002. Another Leauvaa youth who told the police in a written statement on the 14th October 2001 (the day after the incident) that he saw Konesage stabbed the deceased, also decided to give another written statement which differed substantially from his statement of the 14th October 2001. In his statement of the 6th March 2002 this youth (Sanele Atonio) shifted the blame on to the accused.

iv.	The sister of Sanele Atonio also gave the police a written statement on the day after the incident. In that statement she said she saw a man stabbed the deceased and the man was Konesage. But on the 6th march 2002 she gave a different version in another written statement. However in her testimony she decided to adhere to her original statement.

v.	In any event the written statement by Konesage and the revised statement by Sanele and his sister would not only be questionable in the circumstances but compared to the written statements of the other witnesses they could not reasonably be relied upon to support the charge against the accused. The relatively very short period of time the assessors took consider their verdict is an indication that the evidence relied upon by the prosecution is flimsy, unreliable and incredible.

vi.	I allow the costs claimed less the following disbursements claimed:

a)	Witnesses fees paid of		=		$238.00
b)	Allowances paid of		=		$ 70.00
c)	Travelling expenses		=		$ 60.00
$368.00

The informant is ordered to pay defendant’s costs of $2,424.00.

JUSTICE VAAI