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Police v Faigalotu [2004] WSSC 38 (1 January 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

POLICE

v

NAVY MATAGISA FAIGALOTU

AND

KARENE TAGALOA ULISESE

JUDGMENT OF JUSTICE DJ CARRUTHERS

There are two applications presently before the Court. The first is an application by the Prosecution for joinder of the two Defendants in this case, so that both Defendants, Karene and Navy, can be heard at the same time. Karene is charged with murder, and Navy is charged with inciting him to commit murder.

In addition, Counsel for the Prosecution, Mr Petaia, seeks an amendment to the Information laid against Navy under section 36 of the Criminal Procedure Act 1972. The original charge is that of being a party to the offence, in that he incited, counselled or procured Karene to commit the crime of murder.

The Application for Amendment sought by the Crown as Prosecution is made under s 23(1) (b) of the Crimes Ordinance 1961, and the amendment sought is to change the allegation so that he is charged as a party to the offence of murder, in that he did or omitted an act for the purpose of aiding Karene to commit the offence.

I simply record my appreciation to Counsel because it appeared to me to be necessary and fair that Counsel for Karene also be heard on this matter since the outcome may very well affect his defence for Karene.

The Application for Amendment to the Information is to be dealt with by me first. The application is made under s 36 of the Criminal Procedure Act. It is, of course, an application to be considered by the Court in its discretion, and that discretion must be based on principles of fairness to the Defendant and to any others involved, and in the interests of justice generally. Mr Faiwaso objects on the basis that this is a late application, and that all the months which have preceded today he has been preparing the defence for Navy based on the original charge.

I am informed by the Registrar that dates of hearing have been arranged in respect of both matters separately for the week beginning the 8^th of November.

This is, unfortunately, in one sense, some time away, but in another sense it is fortunate since there is, in my view, ample time for Counsel to adequately prepare for trial on the charge as amended. I see no prejudice to the Defendant if I grant the amendment. In a sense it is the same as the Information already laid charging him as a party, and is not substantially altered, although I accept that there may be a different emphasis.

There being no prejudice to the Defendant in the amendment to the Information it is now granted.

I now turn to the Application of Joinder. I comment that, originally, separate trials were ordered by consent of all parties and the matter was not argued. The Honourable Mr Justice Va'ai granted the order for separate trials, but the matter was not argued, it was done by consent and has not been previously considered by the Court. The matter could not return to Justice Va'ai because he has disqualified himself from hearing any further applications in respect of this matter.

I record also my gratitude for the presence, at short notice, of Counsel for the Defendant in the murder charge Karene. Mr Ainuu clearly has an interest in this application and has gone to some trouble to obtain instructions and appear in respect of the matter.

The Application for Joinder is defended by Mr Faiwaso for Navy, who says that, although the matter alleged against his client may arise out of the same circumstances, there are three matters of difference which need to be considered by the Court in exercising its discretion.

He says first, that it needs to be considered carefully that there is a different penalty in respect of the two charges. Secondly, he says the ingredients of the two charges are different and that, therefore, the complication which will arise in proving the different ingredients point to the need for separate trials. And, finally, he points to s 87 of the Criminal Procedure Act and to the possibility of differently structured Tribunals hearing the charges. In the case of the murder charge that must under the law be heard by assessors, in the case of the original charge against his client that may have been elected to be heard by Judge alone, and it was his intention to elect a Judge alone trial.

This last objection is now, of course, overcome by my allowing the Application for Amendment of the Information. In accordance with the law both matters now must be dealt with by assessors.

I turn to the broad facts which appear on the papers which have been filed and which, of course, have yet to be tested before the Court in the usual way, that as a result of some difficulties between members of the family of the two accused and the deceased, the two accused went to accost the deceased. It is alleged that Karene took with him a gun and that he shot the deceased in the back, thereby killing him.

The grounds of the Application for Joinder, as set out in the notice given to the Court about this, are that:

"Not only will the same witnesses give evidence pertaining to this matter but also they will give evidence relating to the charges against Karene of murder."

I turn to the principles which would guide the Court's discretion in this matter. There have been various different expressions of principle in dealing with such applications. The Courts have used phrases such as whether it is "conducive to the ends of justice" to order such joinder, whether to not order such joinder is "an affront to common sense", or "needlessly artificial and contrary to the requirements of justice to deny the Court the advantage of the full picture".

In New Zealand at the Court of Appeal in a case called Fenton said this:

"There is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime. The reasons are principally to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent the duplication of time and effort for witnesses and the Court system generally."

I have considered the statements of the principles against the submissions made by Counsel for each Defendant.

It seems to me that this is a case where joinder of the two Defendants and the charges against them ought to be ordered by this Court. It seems to me that it would indeed be "an affront" to common sense, or would be "needlessly artificial"...to deny the Courts the advantage of a full picture by ordering separate trials. The factual circumstances from which the two charges arose are the same, and the witnesses who, I am told, have to travel from a distance to be here for the trial ought not to be put through the hardship of having to give the same evidence in each trial which is relevant to the charges against both Defendants.

There is, in short, a risk of inconsistent verdicts, and a duplication of time and effort for both witnesses and the Court system generally by having separate trials in a case such as this.

As to the objection made by Mr Faiwaso that the ingredients are different and need to be considered separately and differently, that of course can be the subject of well-focused submissions by Counsel on the day and, of course, the advantage of the Judge presiding making sure that clear directions are given to the assessors about the ingredients of each charge.

Finally, Mr Ainuu for Karene objects to the joinder on the basis of prejudice and problems of admissibility of evidence against each accused.

I have given some thought to that particular objection. I do not think it has any foundation.

There are two aspects of that submission which do not attract me.

First, I do think that in an ordinary way, very clear directions will and can be given by the Judge about what evidence is admissible against each accused and what is not, and that the assessors can be clearly directed both by the Judge and, no doubt, by Counsel in their own submissions about what evidence they are to consider in assessing the evidence, and what evidence should be put out of their minds. I do think that clear directions will overcome the objection which Mr Ainuu raises on behalf of his client.

Secondly, when one looks at both of the statements which are already on the file it seems to me that the statement of the co-accused adds very little in any real sense to the statement made by Mr Ulisese himself. I do not discount the fact that one may be the subject of an admissibility attack, and for all I know that might be successful. However, I think in combination, there is nothing which cannot be overcome by clear directions to the assessors, and I do think that such an objection is still not sufficient for those reasons to overcome the overwhelming arguments of common sense in having these two accuseds tried together where the evidence is so comm.

In short, it seems to me that the case for joinder is overwhelming and I intend making the order accordingly.

Order for Joinder made accordingly. Both matters are now therefore adjourned to the week beginning the 8^th of November for a joint trial. Bail is to continue.

CARRUTHERS J