SUPREME COURT OF SAMOA
Police v Alaovae [2015] WSSC 182

Case name: 	Police v Alaovae	
		
Citation: 	[2015] WSSC 182	
		
Decision/Ruling date

Conclusion	27 October 2015

26 October 2015	
		
Parties: 	POLICE v SEMUA TAUTAI ALAOVAE of Lepa, Aleipata.

Hearing date(s): 	19 October 2015	
		
File number(s): 	S2864/15, S2867/15	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	The accused’s application for withdrawal of his guilty plea to the attempted murder charge is dismissed.

Representation: 	R Titi for prosecution
R T Faaiuaso for accused

Catchwords: 	Application for withdrawal of guilty plea – attempted murder	
		
Words and phrases:	 relevant principles to exercise of the Court’s discretion in an application for withdrawal of guilty plea - prosecution’s affidavit evidence- accused was under a misunderstanding as to what he was pleading guilty to - relevant principles to the grounds of application for withdrawal of guilty plea

Legislation cited:	Criminal Procedure Act 1972 s.54, s.119 (1)	
		
Cases cited:	Kereti Tulitoa v Police [2006] WSSC 13; 
Onosai Nofoaiga v Police [2007] WSCA 3.  
Police v Mafuao Gaia [2000] WSSC 3; 
Police v Maina Sio [2000] WSSC 5; 
Police v Reopoamo Ekalesia [2003] WSSC 13; 
Police v Viliamu [2008] WSSC 74 
Police v Failo Kolone Sauaga (2015) (ruling delivered on 23 October 2015)	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs:  S2864/15, S2867/15

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

SEMUA TAUTAI ALAOVAE of Lepa, Aleipata.
Defendant

Counsel:	
R Titi for prosecution
R T Faaiuaso for accused

Hearing:	19 October 2015

Conclusion:	26 October 2015

Ruling:	27 October 2015

RULING ON APPLICATION TO WITHDRAW GUILTY PLEA
Proceedings
1. 	In these proceedings the Court is concerned with an application by the accused Semua Tautai Alaovae pursuant to s.54 of the Criminal Procedure Act 1972 to withdraw his guilty plea to the charge of attempted murder and to substitute it with a not guilty plea.  Section 54 gives the Court discretionary power to grant leave to an accused to withdraw a guilty plea he has entered to a charge against him before he is sentenced or otherwise dealt with.
Background 
2. 	The accused was charged with attempted murder of Saunoagamaalii Siokame Alaovae under s.104 of the Crimes Act 2013, causing actual bodily harm to Aotoa Siaosi with intent to cause actual bodily harm under s.119 (1), and being armed with a dangerous weapon, namely, a bushknife not being so armed for a lawful purpose under s.25 of the Police Offences Ordinance 1961.
3. 	When the charges were called for mention on 14 September 2015 before Vaai J, the accused who was then unrepresented by counsel pleaded guilty to attempted murder and not guilty to causing actual bodily harm with intent to cause actual bodily harm and being armed with a dangerous weapon without a lawful purpose.  The matter was then adjourned to 21 September to set a hearing date for the charges to which the accused had pleaded not guilty.  On that day, the accused appeared with counsel who applied for bail.  The matter was then further adjourned to 1 October for hearing the bail application.  On 1 October, counsel for the accused informed the Court that the accused wanted to apply to withdraw his guilty plea to the charge of attempted murder.  The matter was then further adjourned to 5 October for the accused to file a proper application for withdrawal of his guilty plea to the attempted murder charge. That was done and it is that application that was heard before this Court on 19 October.
4. 	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 wish 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 he pleads guilty, the charge will then be adjourned for a presentence report, summary of facts, and sentencing.  If the plea is not guilty, a hearing date will be set.  There is no dispute that that practice was followed in this case.
The accused’s affidavit evidence 
5. 	The accused in his affidavit filed in support of his application says that he pleaded guilty to the charge of attempted murder because he understood the charge to mean causing grievous bodily harm to the victim Saunoagamaalii Siokame Siaosi.  He also says that he struck the victim twice from behind with a bushknife causing injuries to the back of the victim’s head.  He further says that the reason why he did this was to stop the victim and his son from continuing to assault his (accused’s) son in law.  He was also angry with the victim because as a matai and a relative he should have come and discuss matters with him instead of assaulting his son in law.  
6. 	The accused also says in his affidavit that he was injured during this incident which occurred on Saturday 29 August 2015 because he was hit on the head by a rock thrown by someone.  He fell down unconscious and was taken to the Lalomanu district hospital where he was admitted for treatment.  The accused then says that the police came and interviewed him at the hospital despite his request to defer the interview to the following day which was Sunday 1 October as he was still feeling sore from his injury.
7. 	Finally, the accused says in his affidavit that if the charges of attempted murder and causing actual bodily harm are withdrawn, he will plead guilty to causing grievous bodily harm and being armed with a dangerous weapon without any lawful purpose.
The prosecution’s affidavit evidence
8. 	In opposing the accused’s application for withdrawal of his guilty plea to the attempted murder charge, the prosecution filed affidavits from corporal Leagai Manu who interviewed the accused and constable Fagasa Aumua who witnessed the interview.  A copy of the caution statement given by the accused to the police during that interview was also produced by the prosecution.
9. 	It is clear from the affidavits of the two police officers and the caution statement that the police interviewed the accused on Monday 31 August 2015 at the Lalomanu  police post and not at the Lalomanu district hospital on Saturday 29 August 2015 as the accused says in his affidavit in support of his application.  According to constable Fagasa Aumua in his affidavit, he asked the accused at the hospital about his full name and age and not about anything else as the accused was not at the time in a condition to be interviewed.  He also did not have anything with him at the hospital to type an interview with the accused and therefore did not type any interview notes at the hospital.  He also says that the accused was interviewed at the Lalomanu police post on Monday 31 August after he was discharged from the hospital on Sunday 30 August.
10. 	It appears from the affidavits of the police officers and the caution statement that at the beginning of the interview corporal Leagai Manu informed the accused that the reason for the interview was in relation to his alleged use of a bushknife to inflict injuries on Saunoagamaalii Siokame Siaosi with the intention to cause death to him.  The following question from the police officer and answer from the accused are then recorded in the caution statement:
	Q.	Do you understand?
	A.	Yes
11. 	When the accused was then  informed of his right not to make a statement unless he wished to do so and that anything he says will be taken down in writing and may be given in evidence, the accused replied that he wanted to make a statement.  When the accused was then informed of his right to have counsel present at the time of the interview, he replied that he did not want to have counsel at the interview.  In the course of the interview that followed, the following question from corporal Leagai Manu and answer from the accused are recorded in the caution statement:
	Q.	What was your intention for inflicting these serious injuries on Saunoagamaalii?
	A.	I struck him with the bushknife, if it kills him, so be it (Na ou sogia lava a oki ai lava ua pau lava). 
12. 	The accused was then informed by corporal Leagai Manu that he will be charged with the attempted murder of Saunoagamaalii, causing actual bodily harm to Aotoa Siaosi, and being armed with a dangerous weapon without any lawful excuse.
13. 	Both police officers who were at the interview also depose in their affidavits that at no time before, during, or after the interview did the accused indicate that he did not understand the allegations or charges against him or why he was being interviewed.
Grounds of the application for withdrawal of guilty plea
14. 	There are three grounds in support of the application for withdrawal of the accused’s guilty plea.  These are (a) seriousness of the charge of attempted murder, (b) the accused was under a misunderstanding as to what he was pleading guilty to, and (c) it is in the interests of justice that the accused should be granted leave to withdraw his guilty plea to the attempted murder charge.
Relevant principles to exercise of the Court’s discretion in an application for withdrawal of guilty plea
15. 	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 decision of this Court.  In Police v Viliamu [2008] WSSC 74 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 to substitute it with a not guilty plea are now well established: see Police v Mafuao Gaia [2000] WSSC 3; 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] WSCA 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”.
16.	The above statement of principles was also applied by this Court to an application for withdrawal of a guilty plea before sentence in Police v Failo Kolone Sauaga (2015) (ruling delivered on 23 October 2015).
Application of relevant principles to the grounds of application for withdrawal of guilty plea
(a)	Seriousness of the charge
17.	As to the first ground of the accused’s application, the seriousness of a criminal charge is not a ground to justify granting leave to an accused to withdraw a guilty plea.  Even if the accused was advised by the presiding Judge to seek legal advice, that does not make the seriousness of a charge a ground which justifies the withdrawal of a guilty plea.  The first ground of the application is therefore dismissed.
(b)	The accused was under a misunderstanding as to what he was pleading guilty to
18.	The second ground of the application that the accused was under a misunderstanding as to what he was pleading guilty to is not supported by the evidence.  It is clear from the affidavit evidence of the two police officers who were present at the interview of the accused at the Lalomanu police post on Monday 31 August and the accused’s caution statement that at the beginning of the interview, corporal Leagai Manu informed the accused that he was going to be interviewed in relation to his alleged use of a bushknife to inflict injuries on the victim with the intention to cause death to him.  The accused was then asked whether he understands.  He replied yes.  When the accused was subsequently asked during the interview about his intention for inflicting the serious injuries on the victim, he replied that he struck the accused with the bushknife and if it killed him so be it.  At the end of the interview the accused was informed of the three charges to be laid against him one of which was attempted murder.
19.	Both police officers who were present at the interview also say in their affidavits that at no time during the interview did the accused indicate that he did not understand the allegations or charges against him or why he was being interviewed.
20.	What the accused says in his affidavit that he was interviewed by the police at the Lalomanu district hospital while he was being admitted and was feeling sore from his injury cannot be true.  It s clear from the evidence of the police officers and the caution statement signed by the accused that the accused was interviewed at the Lalomanu police post the day after he was discharged from the hospital.
21.	In any event, on 14 September, when this matter was called for mention, the charges were read out in Samoan to the accused and he pleaded guilty to the attempted murder charge and not guilty to the charges of causing actual bodily harm and being armed with a dangerous weapon.  This was two weeks after the accused had been discharged from the hospital.
22.	I do not accept what the accused says that when he pleaded guilty to the attempted murder charge he thought he was pleading guilty to causing grievous bodily harm.  The accused was informed at the interview by corporal Leagai Manu that he was being interviewed in relation to his alleged use of a bushknife to inflict injuries on the victim with the intention to cause death to him.  At the end of the interview the accused was informed that one of the charges to be laid against him was for attempted murder.  The accused must therefore have been aware of the charges against him before he came to Court on 14 September and pleaded guilty to attempted murder.  He must also have been served with the charges before 14 September and had the opportunity to peruse the charges before he came to Court on 14 September.  He therefore had ample opportunity to become aware of the attempted murder charge when it was read out in Samoan to him in Court and he pleaded guilty to it. The Samoan translation of “attempted murder” which was read out to the accused is also quite different from the Samoan translation of “causing grievous bodily harm” which was not read out to him.
23.	 The second ground of the application is therefore also dismissed.
It is in the interests of justice that the accused should be granted leave to withdraw his guilty plea to the attempted murder charge
24.	The third ground of the accused’s application that it is in the interests of justice that the accused should be granted leave to withdraw his guilty plea to the attempted murder charge relies on the general principle which guides the exercise of the Court’s discretion but without reference to any of the specific grounds which justifies granting leave to an accused to withdraw his guilty plea in the interests of justice.  All I have to say in relation to this ground of the application is that it has not been shown that it is in the interests of justice to grant this application.  This ground is therefore also dismissed.
Conclusion 
25.	The accused’s application for withdrawal of his guilty plea to the attempted murder charge is dismissed.
CHIEF JUSTICE