SUPREME COURT OF SAMOA
Police v Sauaga [2015] WSSC 177

Case name: 	Police v Sauaga	
		
Citation: 	[2015] WSSC 177	
		
Decision date: 	23 October 2015	
		
Parties: 	POLICE v FAILO KOLONE SAUAGA of Aele-fou, Samoa

Hearing date(s): 	20 October 2015	
		
File numbers: 	S2304/13, S2407/13, S2334/13, S2408/13

Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	1. 	(a)   The accused is allowed to withdraw his guilty plea to the charge of causing grievous bodily harm with intent to cause grievous bodily harm and to enter a not guilty plea.
(b)   The accused’s application for change of plea insofar as it relates to the charge of being armed with a dangerous weapon not being so armed for a sufficient and lawful purpose isdismissed.
2. 	The accused is remanded to Monday 26 October 2015 at 2.00pm for setting a hearing date.

Representation: 	R Titi and L Tavita for prosecution
D Kerslake for accused

Catchwords: 	Ruling on application to withdraw guilty plea- intent to cause grievous bodily harm disfigured - caused grievous bodily harm to his wife – being armed with a dangerous weapon – grounds of application for change of plea	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.118(1) and (b)
Criminal Procedure Act 1972 s.54 
Police Offences Ordinance 1961s.26	
		
Cases cited:	Kereti Tulitoa v Police [2006] WSSC 13, Onosai 
Nofoaiga v Police [2007] WSSC 3.
Police v Mafuao Gaia [2000] WSSC 13, 
Police v Maina Sio [2000] WSSC 5; 
Police v Reopoamo Ekalesia [2003] WSSC 13;  
Police v Viliamu [2008] WSSC 74 

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs:  S2304/13, S2407/13,
S2334/13, S2408/13

BETWEEN

P  O  L  I  C  E

Prosecution

A  N  D

FAILO KOLONE SAUAGA of Aele-fou, Samoa

Accused

Counsel:	
R Titi and L Tavita for prosecution
D Kerslake for accused

Hearing:	20 October 2015

Ruling:	23 October 2015

RULING ON APPLICATION TO WITHDRAW GUITY PLEA 

Proceedings
3. 	The Court is concerned in these proceedings with an application on behalf of the accused under s.54 of the Criminal Procedure Act 1972 to withdraw the plea of guilty the accused had entered to the charges of (a) with intent to cause grievous bodily harm disfigured or caused grievous bodily harm to his wife, the victim, contrary to s.118(1) of the Crimes Act 2013 and (b) being armed with a dangerous weapon, namely a machete not being so armed for a sufficient and lawful purpose, contrary to s.26 of the Police Offences Ordinance 1961.
Background 
4. 	On 18 November 2013 when this matter was called for mention before the Court, the accused who was then unrepresented by counsel pleaded not guilty to the charges against him.
5. 	The practice of the Court when a criminal charge is called for mention and the accused appears without counsel is to ask the accused first if he wants to engage counsel.  If the accused says yes, the charge will then be adjourned without plea, usually for two weeks, to give him the opportunity to engage counsel.  If the accused says he does not want to engage counsel, he will then be asked if he is in a position to enter a plea to the charge.  If he says yes, the charge will then be read out to him in Samoan unless he does not understand Samoan.  The accused will then be asked as to how he pleads.  If the accused pleads guilty, the charge will then be adjourned for a presentence report from the probation service and a summary of facts from the prosecution for sentencing.  If the plea is one of not guilty, a hearing date will be set.  There is no dispute that that practice was followed in this case.
6. 	In these proceedings, the accused was called to give evidence.  Under cross-examination by counsel for the prosecution, he said that the charges which the police served on him were in English.  He had finished secondary school at Year 13 and spent two years at the University of the South Pacific at Alafua.  So he understands English and he understood the charges that were served on him.  He further said that the reason why he had initially pleaded not guilty to the charges was because he had no intention to cause grievous bodily harm to the victim as alleged against him.
7. 	After the accused had pleaded not guilty and a hearing date was set, this matter became the subject of a number of adjournments.  When it was called again before the Court on 20 March 2015, the accused who was still unrepresented by counsel vacated his not guilty plea to the charges and entered a guilty plea.  The accused was then remanded for sentence.
8. 	On 26 March 2015 when the accused was recalled for sentence before Vaai J, it was further adjourned for the accused to engage counsel on legal aid.  This was because, as counsel for the accused told the Court, the presentence report shows that the accused had told the probation service that he did not intend to cause grievous bodily harm to the victim who is his wife.  He said that what he wanted to do was to scare and shut up his wife.  So he swung the machete over her head and he was shocked when she immediately put up her hand and the machete accidently cut two of her fingers.
9. 	In the caution statement given by the accused to the police on 9 October 2013, he told the police that on the night prior to the incident with which he is being charged he slept away from home as he was angry with his wife because he was tired of telling her to go to her family but she would not.  The reason for that was because his wife would not go to work but only creates a lot of talk while he does all the chores at home.
10. 	The accused also told the police that when he returned home the following morning his wife scolded him for sleeping away from home.  He became angry when his wife said to him that she had gone out with her boyfriend.  His wife also said she had sexual relations with her boyfriend three times. He then picked up the machete and walked straight to his wife who was lying down on the floor of their house. The accused said he then swung the machete downwards with the intent to miss his wife. In his oral testimony, the accused said his intention when he swung the machete downwards was to scare and silence his wife as she was making too much noise in a loud voice which could be heard by their neighbours but he had no intention to cause her harm. He intended to miss his wife. However, his wife put up her hand and it was accidentally hit by the machete. 
11. 	In the written statement made by the victim to the police and upon which the prosecution relied, the victim told the police that when the accused  returned home on the morning in question she scolded him. At that time the accused was simply listening to his mobile phone and dancing.  She then laid down on a lavalava on the floor of their house.  She was shocked when she looked up and saw the accused striking at her towards her head with the machete.  She then put up her right hand to block the machete and two of her fingers were injured. She then stood up and ran to a neighbour’s house for help.
Grounds of application for change of plea
12. 	There are three grounds in support of the application for change of plea. These are: (a) the accused did not have the benefit of counsel to explain to him the charges against him before he pleaded guilty, (b) the accused was mistaken in his understanding of the charges, and (c) the accused has a clear defence.
The relevant principles to the exercise of the Court’s discretion in an application for change of plea 
13. 	The principles which guide the exercise of the Court’s discretion in an application to withdraw a guilty plea before sentence and to substitute it with a not guilty plea has been stated in several decisions of this Court. The most recent is Police v Viliamu [2008] WSSC 74 where this Court said at para [33]. 
	“[33] The principles which are applicable to the exercise of the Court’s discretion whether to allow an accused who has pleaded guilty to a charge to withdraw his plea of guilty before sentence and substitute it with a not guilty plea are now well established: see Police v Mafuao Gaia [2000] WSSC 13, Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13;  Kereti Tulitoa v Police [2006] WSSC 13, Onosai Nofoaiga v Police [2007] WSSC 3. The guiding principle is whether the interests of justice require that an accused who has pleaded guilty to a charge should be granted leave to withdraw his plea of guilty and substitute it with a plea of not guilty. Situations where such leave may be granted include where an accused has not really pleaded guilty, where the accused was under a mistake or misunderstanding as to what he was pleading guilty to, where there is a clear defence, or where considerable pressure was put on the accused to plead guilty contrary to his wishes. These are only examples of the interests of justice test: Onosai Nofoaiga v Police [2007] WSCA 3”.
Application of the relevant principles to the grounds of the application for change of plea
(a)	The accused did not have the benefit of counsel to explain the charges to him before he pleaded guilty.
14. 	As to the first ground of the accused’s application, namely, that the accused did not have the benefit of counsel to explain the charges to him before he changed his plea from not guilty to of guilty, it is to be noted that the absence of legal representation is not  an independent ground to justify allowing an accused to withdraw a guilty plea and to substitute it with a not guilty plea. Absence of legal representation may in some cases go to explain why an accused who has pleaded guilty was mistaken as to his understanding of the charge against him. But on its own absence of legal representation is not a sufficient ground for reversing a guilty plea.
15. 	In the cases of Police v Reopoamo Ekalesia [2003] WSSC 13 and Kereti Tulitoa v Police [2006] WSSC 13, the accused was not represented by counsel at the time he pleaded guilty to the charges against him. One of the grounds advanced in the subsequent application  to reverse the accused’s  guilty plea was that the accused was not represented by counsel at the time he pleaded guilty. The application in both cases was dismissed. It was the same result in the New Zealand cases of  R v Le Comte [1952] NZLR 564 and R v Jack Taylor [1967] NZLR 577 where the accused was not represented by counsel at the time he pleaded guilty to the charges.  In both those cases, the subsequent application  by the accused to reverse his guilty plea was refused.
16. 	The first ground of the application in this case is therefore not a proper ground for reversing the accused’s guilty plea.
(b)	The accused was mistaken in his understanding of the charges
17. 	The second ground of the application that the accused was mistaken in his understanding of the charges is not supported by the evidence. The two elements of the present charge of causing grievous bodily harm with intent to cause grievous bodily harm is, firstly, that the accused had an intention to cause grievous bodily harm to the victim and, secondly, that the accused did disfigure or cause grievous bodily harm to the victim.
18. 	In his oral testimony, the accused said that the charges which were served on him were in English and he understood what the charges meant. He also understood the charges when they were read out in Samoan to him in Court. He had therefore initially pleaded not guilty to the charges as he had no intention to cause grievous bodily harm to the victim. He also acknowledged that the victim was injured from his use of the machete. It is therefore clear that the accused was aware of the elements of the charge of causing grievous bodily harm with intent which was put to him in Court and he decided to plead not guilty.
19. 	The reason given by the accused for  subsequently changing his plea from not guilty to guilty was because a police officer had advised him that if he pleads guilty that would expedite matters and he would probably not be given a custodial sentence. That police officer was called by the prosecution and she denied having given such advice to the accused. 
20. 	In the circumstances, I find the second ground of the application to be without substance.
(c)	The accused has a clear defence
21. 	Counsel for the accused submitted that one of the elements of the charge of causing grievous bodily harm with intent is that the accused must have had the intention to cause grievous bodily harm to the victim at the material time. As the accused says he did not have such an intention he therefore has a clear defence to the charge.
22. 	Essentially what the accused said to the police in his caution statement was that he was repeatedly provoked by the victim. As a result, he  picked up the machete and walked straight to the victim who was lying on the floor of their house. He then swung the machete downwards but his intention was to miss the victim. However, the victim put up her hand and her fingers were cut. The victim then stood up and ran to a neighbour’s house.
23. 	In his oral testimony, the accused said that the victim was scolding him and making a lot of noise in a loud voice which could be heard by their neighbours. To scare and silence the victim, he picked up the machete and swung it downwards but the victim unexpectedly put up her hand. The accused also said he had no intention to cause bodily harm to the victim. His intention was to scare and silence the victim who was making a lot of noise which could be heard by their neighbours. He then swung the machete downwards with the intention of missing her. This is consistent with what the accused related to the probation service as shown from the presentence report. 
24. 	The prosecution, on the other hand, relied on the statement given by the victim to the police in which she told the police that while lying on the floor of her family’s house she was shocked to see the accused swung the machete at her. From what she saw, the machete was aimed at her head. She then put up her right hand to block the machete and two of her fingers were cut. The victim did not give oral testimony even though the prosecution was given the opportunity to call her. 
25. 	On the basis of what the accused says in his caution statement and what he said in his oral testimony, the accused has a clear defence to the charge of causing grievous bodily harm with the intent to cause grievous bodily harm. What the victim told the police in her police statement is different and she did not give oral testimony. It is therefore difficult to determine with the necessary degree of confidence whether what the accused said to the police in his caution statement and in his oral testimony is true or what the victim said to the police in her police statement is true or correct. I am conscious that it is not my function in these proceedings to decide whether there is sufficient evidence for a conviction. What I have to decide is whether the accused has a clear defence.
26. 	In all the circumstances, I am of the view that the accused has a potentially clear defence to the charge of causing grievous bodily harm with intent to cause grievous bodily harm. I am also of the view that in the circumstances it will be in the overall interests of justice to allow the accused to withdraw his guilty plea to that charge and to proceed to trial on a not guilty plea. 
The charge of being armed with a dangerous weapon not being so armed for a sufficient and lawful purpose
27. 	The accused’s plea of guilty to the charge of being armed with a dangerous weapon, namely, a machete not being so armed for a sufficient and lawful purpose was not addressed by counsel for the accused. His submissions were focused exclusively on the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm. The application for change of plea insofar as it relates to the charge of being armed with a dangerous weapon is therefore dismissed.
Conclusions 
28. 	(a)   The accused is allowed to withdraw his guilty plea to the charge of causing grievous bodily harm with intent to cause grievous bodily harm and to enter a not guilty plea.
(b)   The accused’s application for change of plea insofar as it relates to the charge of being armed with a dangerous weapon not being so armed for a sufficient and lawful purpose is dismissed.
29. 	The accused is remanded to Monday 26 October 2015 at 2.00pm for setting a hearing date.

CHIEF JUSTICE