IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ULOFU SAIFOLOI and JACINTA AFUALO
of Lotopa.
Appellants

AND:

POLICE
Respondent

Counsel:		T Atoa for appellants
P Chang for respondent

Hearing:		13 May 2009
Judgment:	 	28 May 2009 

JUDGMENT BY SAPOLU CJ

Proceedings

1.	These are two appeals brought under s.138(2) of the Criminal Procedure Act 1972 against conviction and sentence in the District Court.

Background

2.	The appellants are husband and wife. They were jointly charged with four counts of obtaining by false pretence under s.89 of the Crimes Ordinance 1961. They were not charged with obtaining credit by fraud as it appears from the notices of appeal. Obtaining credit by fraud is a crime under s.96 of the Ordinance.

3.	When the charges were called for mention, the appellants appeared without counsel and pleaded guilty to the charges. The case was then adjourned to 22 January 2009 for a summary of facts, pre-sentence reports and sentencing.

4.	On 22 January 2009, the District Court Judge ordered the appellants to make restitution in the sum of $13,600 to the complainant plus payments of Court costs of $400 by 4pm on 23 February 2009 in default 3 years imprisonment.

5.	It would appear that the appellants failed to comply with the order of the District Court for they are now in prison. However, it is not clear when the appellants were imprisoned.

6.	In any event, on 21 February 2009 the appellants approached counsel about this matter. Counsel then filed two separate motions for leave to appeal and for stay of execution of sentence. Each motion was dated 23 February 2009 and was filed on behalf of each of the appellants. A brief supporting affidavit from each of the appellants accompanied each motion.

7.	That was followed by two separate notices of motion to appeal against conviction and sentence dated 17 and 25 March 2009 respectively. Each motion was filed on behalf of each appellant. The grounds of appeal in both appeals are the same.

8.	The grounds of appeal against conviction are: (a) the appellants were not represented by counsel and were not properly advised of their rights to trial, (b) the police had insufficient grounds to bring the changes of false pretence against the appellants, and (c) the police misled the appellants into pleading to the charged by representing to the appellants that it was a simple matter of repaying the complainant’s money.

9.	The grounds of appeal against sentence are: (a) the sentence is excessive, and (b) the order for restitution does not satisfy the requirements of s.117(4) of the Criminal Procedure Act 1972. I should also mention here that in the motions for leave to appeal and for stay of execution against sentence, the appellants’ claim that the order for restitution was contrary to s.166 of the Criminal Procedure Act 1972.

10.	This appeal finally came on for hearing on 13 May 2009 after several adjournments for reasons known to counsel. At that time, it was still not possible to determine on the material placed before the Court and the submissions on behalf of the appellants whether a stay of execution of the sentence imposed in the District Court should be granted.

Submissions by counsel for the appellants at hearing of appeal

11.	The three grounds advanced by counsel for the appellants in support of the appeal against conviction are: (a) that the conduct of the police in relation to the appellants amounted to a violation of the appellants’ right to a fair trial provided in Article 9 of the Constitution, (b) the conviction that was entered against the appellants was in violation of Article 10(2) of the Constitution as the actions of the appellants did not amount to false pretence in terms of s.89 of the Crimes Ordinance 1961, and (c) the appellants were not informed of their rights to counsel provided in Article 6(3) of the Constitution at the time of the police interviews.

12.	The problem with the submissions by counsel for the appellants is that those submissions are made substantially in reliance on factual assertions made by counsel herself in her submissions. Counsel cannot act as counsel and give evidence at the same time from the bar. The factual assertions in the submissions should have been provided in sworn affidavits by the appellants themselves before they can be relied upon in the submissions. The appellants may then be cross-examined on their affidavits by counsel for the respondent if that is necessary.

13.	The respondent may also file affidavits in reply if that is necessary and counsel for the appellants may cross-examine on those affidavits if necessary. Given the seriousness of some of the factual assertions against the police in the submissions for the appellants, it is not only fair that the police should be given the opportunity to reply but it will also greatly assist the Court to come to a decision in this matter if it has had the opportunity to hear what both sides have to say. I cannot come to a decision at present on the basis of the factual assertions in the submissions by counsel for the appellants alone, even if those assertions subsequently turn out to be factually correct.

14.	These proceedings will therefore have to be further adjourned for the appellants to file sworn affidavits in support of the factual assertions in their counsel’s submissions.

15.	As to the grounds in support of the appeal against sentence, counsel for the appellants has made some strong points in her written and oral submissions. It was submitted that s.166(1) and (21) of the Criminal Procedural Act 1972 provide:

"(1) Where any one is convicted of any offence, any property found in his possession, or in the possession of any other person for him, may be ordered by the Court to be delivered to the person who appears to the Court to be entitled thereto.

"(2) Where an order is made under subsection (1) of this section, and it appears to the Court that a purchaser has bought the property in good faith and without knowledge that it was dishonestly obtained, the Court may order that on the restitution of the property the offender shall pay to the purchaser a sum not exceeding the amount paid by him. The provisions of subsections (2) to (4) of section 165 of this Act shall apply to any such order".

16.	 It is not clear from the material before this Court whether the District Court Judge took into consideration s.166 when he ordered the appellants to make restitution in the sum of $13,600 to the complainant by 4pm on 23 February 2009 plus $400 Court costs in default 3 years imprisonment. Counsel for the appellants seems to assume that His Honour did since there is no other provision in the Criminal Procedure Act 1972 which would give power to the District Court to make an order for restitution of property.

17.	The problem here is that s.166 (1) speaks of "any property found in [the convicted person’s] possession or in the possession of any other person for him". The appellants, however, had deposed in their affidavits that by the time they were charged by the police with obtaining by false pretence, they had spent all the money they had obtained from the complainant. In other words, in terms of s.166(1) the appellants had none of the money with which they have been charged in their possession or in the possession of any other person for them by the time they were sentenced. It follows s.166(1) does not apply. Furthermore as s.166(2) relates back to an order made under s.166(1), it must follow that s.166(2) also does not apply.

18.	The second strong point made by counsel for the appellant in support of the appeal against sentence is that the maximum penalty provided for obtaining by false pretence under s.89 of the Crimes Ordinance 1961 is 3 years imprisonment. This point was actually raised by counsel for the respondent and was endorsed by counsel for the appellant. Given that both appellants were first offenders and had pleaded guilty to the charges, counsel for the appellants submitted that imposing the maximum penalty even by way of a default penalty is excessive. I agree with counsel for the respondent here that there must have been an oversight on the part of the learned Judge.

19.	The question then is whether this Court should now review the sentence and pass an appropriate sentence in view of the submissions by counsel. Given that the appeal against conviction still remains unresolved at this stage, I do not propose to review the sentence as yet until the appeal against conviction has been determined.

Submissions by counsel for the respondent at hearing of appeal

20.	Counsel for the respondent presented some helpful submissions. No discourtesy is intended if I do not refer to all those submissions.

21.	What has happened in this case is that the appellants who were not represented by counsel had pleaded guilty in the District Court to four counts of obtaining by false pretence and had been convicted and sentenced. Effectively, what the appellants are now saying is that they had made a mistake in pleading guilty to the charges and that they have valid defences to the charges.

22.	Counsel for the respondent referred this Court to the New Zealand case of R v Stretch [1982] 1 NZLR 225 where the appellant had pleaded guilty to a charge of murder in the High Court and was sentenced to life imprisonment. Subsequently, the appellants applied for leave to appeal against his conviction on the ground that he had made a mistake in pleading guilty as he had a good defence to the charge. In dismissing the application for leave to appeal, Cooke P who delivered the judgment of the Court said at p.229:

" As to the law, in very exceptional cases, and only in such cases, an appeal against conviction can succeed after a plea of guilty. The authorities were collected in an article by Alec Samuels in [1962] Crim LR 806 (which includes the statement ‘a defendant who was represented is virtually precluded from advancing such a contention’) and by T.A. Gresson J in Udy v Police [1964] NZLR 235. More recent English authorities will be found in 11 Halsbury’s Laws of England (4th ed) para 611, note 5 and the supplement"

23.	Further on in p.229, Cooke P went on to say:

"[If] the conviction has followed a plea of guilty, and if it cannot be sufficiently linked with a wrong decision of the Court on a question of law (see R v Barrie [1978] 2 NZLR 78), the appellant cannot succeed unless he can show… ‘That on any ground there was a miscarriage of justice’"

24.	Cooke P then continued in p.229 to say:

" A dictum often quoted is that of Avory J delivering the judgment of the Court of Criminal Appeal in R v Forde [1923] 2 KB 400, 403:

" ‘A plea of guilty having been recorded, this Court can only entertain an appeal against if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged’"

25.	The above principles have been applied by the Samoan Courts when dealing with an application by an accused to withdraw a plea of guilty before sentence. As it appears from R v Stretch [1982] 1 NZLR 225, the same principles apply to an application for leave to appeal against conviction after an accused had pleaded guilty to a charge and sentenced.

26.	I have decided to treat these proceedings as an appeal hearing against conviction. That is not only because some of the issues are novel, but they also touch on the Constitution and the right to counsel (Article 6), right to a fair trial (Article 9), and rights concerning the criminal law (Article 10). It will also be more convenient to deal with both appeals against conviction and sentence together.

27.	The principles in paragraph 22, 23 and 24 above are to be treated as applicable to these proceedings.

Additional comments

28.	It would appear that the defences raised on behalf of the appellants have potential merit provided they can be supported by proper evidence. These proceedings should therefore be adjourned for the appellants to file and serve on counsel for the respondent appropriate affidavits deposing, if possible, to the relevant facts in support of those defences.

29.	The respondent may then file and serve affidavits in reply if necessary.

30.	A new hearing date will then be set for any cross-examination on the affidavits and further submissions by counsel.

31.	In the circumstances, I have also decided to stay execution of the sentence until both appeals against conviction and sentence have been determined.

Orders

32.	The appeals are further adjourned to 22 June 2009 at 9:30am for setting a new hearing date for any cross-examination on the affidavits to be filed and for hearing any further submissions by counsel.

33.	The appellants are to file and serve on counsel for the respondent by Friday, 5 June 2009 affidavits in support of the factual assertions made in their counsel’s submissions.

34.	The respondent will then have until Friday, 19 June 2009 to file and serve affidavits in reply on counsel for the appellants.

35.	I have also decided to grant a stay of execution of sentence until further order. The appellants will be remanded on bail on these conditions:

(a)	surrender any travel documents they have to the Registrar,
(b)	report to the Apia CID every Tuesday and Friday before 4pm.

CHIEF JUSTICE

Solicitors
Atoa Law Firm for appellants
Attorney General’s Office, Apia, for respondent