SURPEME COURT OF SAMOA
Police v Tauveve [2017] WSSC 37

Case name: 	Police v Tauveve	
		
Citation: 	[2017] WSSC 37	
		
Decision date: 	11 May 2017	
		
Parties: 	POLICE v FIA FALEAO TAUVEVE male of Siusega and Satupaitea	
		
Hearing date(s): 		
		
File number(s): 	S2066/16	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE SAPOLU	
		
On appeal from:		
		
Order:	-	The accused’s plea of guilty to the charge of attempted sexual violation is vacated and substituted with a plea of not guilty.  This matter is adjourned to 16 May 2017 for remention to set a new hearing date.

Representation: 	O Tagaloa for prosecution
A Sua for accused

Catchwords: 	Approach to a motion to withdraw a guilty plea – attempted sexual violation – motion to withdraw plea of guilty -  	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.53(1) 	
		
Cases cited:	Police v Viliamu [2008] WSSC 74	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D:

	FIA FALEAO TAUVEVE male of Siusega and Satupaitea.
Accused

Counsel:	
O Tagaloa for prosecution
A Sua for accused

Hearing:	10 May 2017

Judgment:	11 May 2017

JUDGMENT OF SAPOLU CJ
Proceedings
1. 	There proceedings are about a motion on behalf of the accused filed pursuant to s.53(1) of the Crimes Act 2013 to withdraw his plea of guilty to the charge of attempted sexual violation and to substitute it with a plea of not guilty.
Background 
2. 	At the mentions on 28 November 2016, the accused pleaded not guilty to the charges of attempted sexual violation and assault with intent to commit sexual violation.  He was not represented by counsel.  The mater was then set down for trial.
3. 	Before the date of trial, the accused engaged counsel to act for him.  That counsel is different from counsel appearing for the accused in these proceedings.  When previous counsel was served by the prosecution with the trial documents, he discussed the trial documents with the accused who objected to the accusations against him.
4. 	In his affidavit sworn on 27 April 2017 and filed in support of his motion to vacate his plea of not guilty, the accused states that when he was interviewed by previous counsel, he told him that he has no witnesses and he does not wish to give evidence as he does not understand the law.  In his oral testimony, the accused says that after further discussions with counsel he was advised that if he pleaded guilty it will expedite matters and the Court is likely to be lenient with him as a guilty plea will save the Court time.  At that time he was also under pressure from his wife to get this matter over and done with as soon as possible as it was embarrassing for her.  So he decided to plead guilty.
5. 	Subsequently, counsel for the accused contacted the prosecution.  It was agreed that the prosecution would withdraw the charge of assault with intent to commit sexual violation and the accused would plead guilty to the remaining charge of attempted sexual violation.  When this matter was called for hearing before Clarke J on 20 February 2017, the prosecution withdrew the charge of assault with intent to commit sexual violation and the accused vacated the not guilty plea had already entered and pleaded guilty to the remaining charge of attempted sexual violation.  The case was then adjourned to 15 March 2017 for a pre-sentence report, a summary of facts from the prosecution, and sentencing.
6. 	The accused says that on 15 March 2017, he was strongly opposed to the summary of facts after it was read out to him because he did not do to the complainant many of the things alleged in the summary of facts.  More importantly, the complainant had consented.  In effect, the accused was denying the charge of attempted sexual violation which appears from the summary of facts to be for attempted rape and not for some other form of sexual violation.
7. 	So the situation we have here is that the accused pleaded not guilty to the charge of attempted sexual violation at the mentions whilst he was not represented by counsel and the case was set down for trial.  When he subsequently engaged counsel and the trial documents were discussed with him, his initial reaction was to object and he did make his objection known to counsel.  After further discussion with counsel, he accepted counsel’s advice to plead guilty.  At that time, the accused was under pressure from his wife to get this matter over and done with as soon as possible as it was embarrassing for her.  The accused then agreed to plead guilty and the case was adjourned for sentencing.  When the prosecution’s summary of facts was read out to the accused, he opposed many things alleged in the summary of facts to have been done by him against the complainant.  He also said that the complainant had consented.  
Motion to vacate plea of guilty
8. 	The accused’s motion to vacate his plea of guilty is based on three grounds, namely, that: (a) the accused has not really pleaded guilty, (b) the accused was under a mistake or misunderstanding as to what he was pleading guilty to, and (c) he has a clear defence.
9. 	The approach the Samoan Courts have adopted to a motion to vacate a guilty plea to a charge and to substitute it with a not guilty plea is well established and was restated in Police v Viliamu [2008] WSSC 74,  para [33], where the Court said:
	“[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 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 substituted 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.  Those are only examples of the interests of justice test:  Onosai Nofoaiga v Police [2007] WSCA 3.”
10. 	The new s.72 of the Criminal Procedure Act 2016 provides for the withdrawal of a plea of guilty by leave of the Court before the accused has been sentenced or otherwise dealt with.  In my opinion, s.72 does not remove the guiding principle in a bail application of what is required to be done in the interests of justice in given circumstances.  Such a fundamental principle is not to be lightly taken away except by clear and express words in a statute. It is  not to be overlooked that personal  liberty is at stake. And a guilty plea entered under undue or considerable pressure on the accused contrary to his wishes may violate the principle of what the interests of justice require on the ground that it is an abuse of process as it is likely to bring the administration of criminal justice into disrepute.  
Discussion 
11. 	In respect of the first ground of the accused’s motion, namely, that he did not really plead guilty to the charge, it is clear that the accused actually pleaded guilty to the charge though on advice of previous counsel.  There is nothing to suggest that he did not really plead guilty to the charge.  There is therefore no substance in the first ground.
12. 	In respect of the second ground of the accused’s motion, namely, that he was under a mistake or misunderstanding as to what he was pleading guilty to, the material before the Court shows that the accused knew the charge he was pleading guilty to because he was advised about it by counsel.  Even though the accused explained why he agreed to act on the advice of counsel, that does not mean that he was mistaken as to what he was pleading guilty to.  There is also no substance in the second ground of the motion.
13. 	As to the third ground of the motion, namely, that the accused has a clear defence, the accused had pleaded not guilty when the charges against him were first called for mention.  At that time he was unrepresented by counsel.  When he later engaged counsel and the trial documents were discussed with him, he objected.  After further discussion with counsel, he agreed to plead guilty to the charge of attempted sexual violation.  However, at sentencing, after the summary of facts was read out to him, he objected to many things alleged against him in the summary of facts and said that the complainant consented.  In his oral evidence, the accused again asserted that the complainant consented.  This means that the accused is denying the charge of attempted sexual violation or attempted rape explained in the summary of facts.  So from the beginning of this matter and at the end of it, the accused has been denying the charge except for the time when he acted on the advice of counsel. But he quickly reasserted his denial when he heard the summary of facts.
14. 	There was no evidence called by the prosecution to contradict the evidence of the accused.  On that evidence of the accused, has a clear defence.  Furthermore, in the circumstances of what occurred, I am of the view that it is in the interests of justice that the accused should be granted leave to vacate his plea of guilty and to substitute it with a plea of not guilty.
Conclusion 
15. 	The accused’s plea of guilty to the charge of attempted sexual violation is vacated and substituted with a plea of not guilty.  This matter is adjourned to 16 May 2017 for remention to set a new hearing date.
CHIEF JUSTICE