THE SUPREME COURT OF SAMOA
Police v TALATAINA [2017] WSSC 76

Case name: 	Police v Talataina	
		
Citation: 	[2017] WSSC 76 	
		
Sentence date: 	24 March 2017	
		
Parties: 	POLICE (Prosecution) v LOTOTASI SUSUGA TALATAINA male of Foaluga and Samata Savaii
Accused

Hearing date(s): 	24 March 2017	
		
File number(s): 	S2959/16, S2960/16, S2961/16, S2962/16, S1963/16, S2964/16, S2965/16, S2966/16, S2967/16, S2968/16, S2969/16, S2970/16, S2971/16, S2972/16, S2973/16, S2976/16, S2977/16, S2978/16, S2979/16, S2980/16, S2981/16, S2982/16, S2983/16, S2984/16, S2985/16, S2986/16, S2987/16, S2988/16, S2989/16, S2990/16, S2991/16, S2958/16	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Leiataualesa Daryl Clarke	
		
On appeal from:		
		
Order:	1	Leave is granted for all 32 remaining charges before the Court to be amended to be brought pursuant to section 161 and 165(e) of the Crimes Act 2013.	
		
Representation: 	L. Sio and F. Ioane for Prosecution
Defendant self-represented

Catchwords: 		
		
Words and phrases:	Theft as a servant	
		
Legislation cited:	165(b), 165(c) and 165(d) of the Crimes Act 2013, 55 of the Criminal Procedure Act 2016, Criminal Procedure Act 1972 (Repealed), New Zealand Summary Proceedings Act 1957, section 11, Sentencing Act 2016) and the Justices of the Peace Act 1927 

Cases cited:	 Court of Appeal decision in Saolele v Attorney General [2007] WSCA 4, Police v Eteuati WSSC 10 (10 June 2005) by Sapolu CJ, Police v Fepuleai [2008] WSSC 110 (28 July 2008) by Nelson J, Higgon v O’Dea [1962] WAR 140 cited in Jones v Police, Hale J in the Supreme Court of Western Australia said at p.144, Blakemore v Waitakere District Court [2004] NZAR 115, Collector of Customs v Woolley [1980] 1 NZLR 417, 419 (CA) by Cooke J, Pritchard v Police [2014] NZAR 149) and
Collector of Customs v Woolley [1980] 1 NZLR 417)

	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LOTOTASI SUSUGA TALATAINA male of Foaluga and Samata Savaii
Accused

Counsel:
L. Sio and F. Ioane for Prosecution
Defendant self-represented

Sentence: 24 March 2017

R U L I N G [LEAVE TO AMEND]
2	The accused is charged with 12 charges of theft pursuant to sub-section 165(b), 11 charges pursuant to subsection 165(c) and 9 charges pursuant to subsection 165(d) of the Crimes Act 2013 (“the Act”).   
3	The particulars of all charges state as is relevant “the above-named defendant of Fuailuga and Samata dishonestly take cash… property of his employer namely Tradepac Marketing Samoa.”
4	The defendant pleaded guilty to all charges. At sentencing, Prosecution in the Summary of Facts stated that “The defendant is charged with thirty two (32) charges of theft as a servant pursuant to section 161 and 165(e) of the Act.” Similarly, the Summary of Facts stated “Police v Lototasi Susuga Talatino Theft as a Servant (x 32)”.
5	In the Prosecution’s Sentencing Memorandum, Prosecution confusingly states that “the defendants appear for sentence on five (5) joint charges of theft as a servant pursuant to section 161, 165(e)…of the Crimes Act 2013…[t]he total value of monies stolen by the defendant is $SAT32,912.35.” Later in the Prosecution’s Sentencing Submissions, Prosecution refers to 32 charges of theft. All cases referred to by Prosecution in their Sentencing Memorandum are theft as a servant cases. On the 20th February 2017, Prosecution also made oral submissions on the basis that the charges are for theft as a servant.
6	The obvious difficulty with the Prosecution’s submissions is that none of the charges against the defendant are for theft as a servant pursuant to section 165(e) of the Act. When raised with Prosecution by the Court on 1 March 2017, Prosecution applied to amend the charges to be brought pursuant to section 165(e) of the Act. The application was adjourned to 15 March 2017 for hearing. The application was formally made on the 15th March 2017 and Prosecution relied on 55 of the Criminal Procedure Act 2016 (“the CPA”) to ground its application. In its written submissions for amendment, Prosecution however again incorrectly submitted that the accused appears for sentence on “five (5) joint charges of theft as a servant…” The amount of the charges is also incorrectly stated as $SAT32,912.35. The correct amount based on the theft charges before the Court to which the accused pleaded guilty was $34,693.35.  I will address these errors at the end of my Ruling. 
7	This is my reserved decision on the application to amend the charges.
The Statute:
8	Section 55 of the of the CPA relevantly provides as follows:
“Amendment of Charges – (1) Subject to subsections (2) to (5), if the defendant appears to answer a charge, the Court may amend the charges in any way at any time during the trial.  
(2) At the trial of any person, a Judge may amend the charges pursuant to subsection (1) in a manner that brings the charge into conformity with the evidence offered by the informant or prosecutor. 
(3) Amendment under subsection (1) may allow the charges to be amended by: 
(a) amending any particulars; or 
(b) removing or adding or substituting charges; or 
(c) adding or removing the name of any defendant.
(4) If an amendment is by way of substituting another offence for that charged, then: 
(a) before the trial is continued, the substituted charge is to be read to the defendant who must be asked to plead to it;
(b) the trial is to proceed as if the defendant had been charged with the substituted offence subject to any order of the Court as to the rehearing of any evidence given in relation to the original charge.
(5) If a charge is amended under subsection (1) and subsection (2) does not apply, the trial is to proceed as if the defendant had been charged on the information or charging document as amended.
(6) In any case, the Court may on the application of the defendant adjourn the hearing if satisfied that an adjournment is required to allow the defendant to meet the charge as amended.”
9	Pursuant to sub-section 55(1) of the CPA, a “Court may amend the charges in any way at any time during the trial.” In this matter, the accused entered a guilty plea to the charges of theft at mention. The matter was then adjourned for sentencing. The question is whether, in these circumstances, can the application to amend made by Prosecution pursuant to section 55 made after a guilty plea has been entered be said to be “during the trial”. If it is “during the trial”, what process should be followed on the amendment being made.
The Case Law and Discussion:
10	Prosecution says in its submissions that the Court has the “power to amend the charge at any time if the Court is of the view that an amendment should be made in a manner that brings the charge into conformity with evidence offered by the Prosecution.” Prosecution relies specifically on subsection 55(2) of the CPA and the Court of Appeal decision in Saolele v Attorney General [2007] WSCA 4 where the Court of Appeal stated:
“[18]	This court has the power to ‘make such… order as justice requires’: s164N(4) of The Criminal Procedure Act 1972. The Supreme Court has power to amend an information by substituting one offence for another: s36(2), of The Criminal Procedure Act 1972. There is no restriction on when this substitution may be made. In this Court’s view there is no reason why this Court cannot, if it is satisfied that the Judge’s findings are such that Ms Saolele is guilty of another charge, substitute that other charge. We find nothing in s9 of the Constitution which leads us to a different view.”
11	The amendment to the charge in Saolele v Attorney General was made by the Court of Appeal pursuant to section 164N(4) of the Criminal Procedure Act 1972 (Repealed). The Prosecution however relies on the obiter dicta statement that “[t]here is no restriction on when this substitution may be made...” to support its application. Whether an amendment can be made after the entering of a guilty plea was not in my respectful view expressly dealt with by the Court of Appeal in Saolele v Attorney General (op. cit). In any event, I note that the relevant provision for amendment to an information by the Supreme Court under the Criminal Procedure Act 1972 (Repealed) was section 36. Sub-section 36(1) was on identical terms to section 55 of the CPA, section 36 having stated as follows:
“36. Amendment of Information – (1) Subject to the provisions of this section, where the defendant appears to answer a charge, the Court may amend the information in any way at any time during the trial.” (emphasis added)
(2)Without limiting subsection (1), the Court may amend an information by substituting one offence for another.”
12	Whilst not referred to by Prosecution, the issue of amendment “during the trial” has been addressed in a number of cases in the Supreme Court including Police v Eteuati WSSC 10 (10 June 2005), a judgment of His Honour Sapolu CJ and Police v Fepuleai [2008] WSSC 110 (28 July 2008), a judgment of His Honour Nelson J. It is clear that an amendment to the information can be made after the evidence has completed and the trial Judge reserves his or her decision. In Police v Eteuati (op. cit), Sapolu CJ stated:
“In support of his submissions that it is still open to the Court under s.36 of the Criminal Procedure Act 1972 to entertain an application from the prosecution to amend an information even though the evidenced had been completed in a criminal trial, counsel for the prosecution referred to the decision of the New Zealand Court of Appeal in the case of Jones v Police [1998] 1 NZLR 447. In that case, the accused was charged with extortion under s.238(3) of the Crimes Act 1961 (NZ). After the evidence was completed and the trial Judge reserved his decision, it occurred to the Judge while reviewing the evidence that the facts as he found them would more properly support a charge of extortion in a slightly different form from that alleged in the information. The Judge then decided that, subject to hearing submissions from counsel, he would amend the information relying on s.43 of the Summary Proceedings Act 1957 (NZ) which is very similar in wording to s.36 of the Samoa Criminal Procedure Act 1972. After hearing submissions from counsel, the Judge amended the information. The accused appealed the decision by the trial Judge to amend the information. In dismissing the appeal, the New Zealand Court of Appeal said at p.451:
“Whatever way one looks at the issue, we are satisfied that the hearing does not irretrievably end at the moment the Judge reserves decision. Mr Zindel’s submission to that effect cannot succeed.
The policy behind s.43 is that amendments should be allowed when appropriate and subject to the procedural safeguards contained in the section. Whether to allow an amendment will usually involve striking a balance between the interests of the prosecution and the policy of the section on the one hand, and what, if any, prejudice there may be to the defendant on the other.”
Further on at p.452, the Court said:
“We are satisfied, both as a matter of construction and as a reflection of the policy of s.43, that the hearing for the purposes of s.43(1) runs beyond the point when the Judge reserves decision and lasts until that decision is given.....To treat the hearing as continuing until the point of decision does not unnaturally strain the word ‘hearing.’”
In the case of Higgon v O’Dea [1962] WAR 140, cited in Jones v Police, Hale J in the Supreme Court of Western Australia said at p.144:
“[The] hearing does not end when the last witness leaves the box or when the last address has been made nor even when the reasons for judgment have been given but it extends up to the time when judgment is pronounced.”
On the basis of these authorities cited by counsel for the prosecution, I have decided that in terms of s.36 of the Criminal Procedure Act 1972, the Court has jurisdiction to entertain an application made by the prosecution to amend an information even though the evidence at the trial has closed and the Court has reserved its decision as the trial lasts until the Court’s decision is given.”
13	In Jones v Police — [1998] 1 NZLR 44, the New Zealand Court of Appeal in a similar vein to what the Samoan Court of Appeal said in Saolele v Attorney General, also stated:
“Under s 335 of the Crimes Act 1961, in an environment which is likely to involve more serious offending, the Court of trial, and even this Court on appeal, may amend the indictment or any count in it to make it coincide with the proof. Indeed, if the accused has not been misled or prejudiced, the Court is required to make the necessary amendment.
The same power of amendment applies when the High Court is sitting on appeal from a summary conviction in the District Court. In such a case s 121(2)(c) of the Summary Proceedings Act gives the High Court the power to amend the conviction. It is thus apparent in the summary jurisdiction that even on appeal convictions can be amended. This, of course, is at a much later stage of the proceedings than a point between the time when judgment is reserved and it is delivered. When a conviction already entered can be amended on appeal it would be odd if an information could not be amended when the Judge is considering whether to enter a conviction.” (emphasis added)
14	More recently, the New Zealand Court of Appeal also addressed the question of when a hearing comes to an end for the purposes of section 43 of the Summary Proceedings Act 1957. In Blakemore v Waitakere District Court [2004] NZAR 115, the New Zealand Court of Appeal said:
“[1] When does a “hearing” under s 43 of the Summary Proceedings Act 1957 come to an end? This question arises because a District Court Judge exercised his power under that provision to amend informations (from summary to indictable) after the appellant had pleaded guilty in summary proceedings but before a conviction had been entered or a sentence imposed. That power of amendment may be exercised “in any way at any time during the hearing”.
...
15	The New Zealand Court of Appeal went on to state (reiterating the reasoning in Jones v Police):
“When a conviction already entered can be amended on appeal it would be odd if an information could not be amended when the Judge is considering whether to enter a conviction.” Subject to a possible argument considered next, it follows from Jones that the Judge in this case did have power to amend the information at the time he did.
[9] Mr McAnally, in his careful argument for the appellant, emphasised a passage in Jones in which the Court [in Jones] said: 
The structure and scheme of the relevant provisions of the Summary Proceedings Act lead us to the view that the concept of “the hearing” is designed to cover the whole process of inquiring into and determining the guilt or otherwise of persons brought before the District Court summarily on information. (Emphasis added)
[10] Here, the argument ran, the “guilt” was “determined” by the making of a guilty plea. But that passage is to be related to particular facts before the Court where guilt remained to be determined by the Judge. The entry of a guilty plea by the defendant cannot in principle be equated with the entry of a conviction or the imposing of another decision by the Court. Nor does the legislation make such an equation. Section 67 of the Summary Proceedings Act provides that if defendants plead guilty the Court “may” convict them or deal with them in any other manner authorised by law. In Collector of Customs v Woolley [1980] 1 NZLR 417, 419 (CA), Cooke J said that in this provision Parliament treats a plea of guilty in summary proceedings as distinct from a conviction and Richardson J, to the same effect and recalling that the predecessor provision in the Justices of the Peace Act 1927 used the word “shall”, held that the Court is not obliged to enter a conviction either immediately or[2004] NZAR 115 at 119 ultimately. Its discretion is not fettered in that way and the statutory language is wide enough to allow the Court to exercise the power of adjournment under s 45 and, in the context of that particular case, so postpone a final determination of the information until other charges against the defendant had been dealt with (p 425; see also McMullin J at pp 429-430). 
[11] We accordingly conclude that the District Court Judge did have power to amend the informations at the time that he did.”
16	This decision of the New Zealand Court of Appeal deals with facts similar to those in this matter, albeit in the New Zealand District Court. The application for amendment to the charge was made after a guilty plea had been entered but before conviction and sentence. Similar to the New Zealand Summary Proceedings Act 1957, this Court must consider whether to discharge the accused without conviction or convict and discharge the accused (section 11, Sentencing Act 2016). Even after a plea of guilty has been entered, the Court may choose not to convict an accused bearing in mind the factors set out in the Sentencing Act 2016. The entry of a guilty plea therefore is not final determination of the matter (see also: Pritchard v Police [2014] NZAR 149). As the charge has not been determined, section 55 of the CPA permits in my respectful view this application to be made and for the information to be amended including after a guilty plea has been entered.
17	The particulars of all the charges to which the accused pleaded guilty relate to theft from his employer. The amendment of the charge from theft to theft as a servant simply brings the charges in conformity with the particulars of each charge to which he has pleaded guilty and the Summary of Facts that has also been accepted by the accused. 
18	On amendment of a charge where one charge is substituted for another, the appropriate course of action is for the accused to re-plead to the charge as amended (see: subsection 55(4)(a) of the CPA; Collector of Customs v Woolley [1980] 1 NZLR 417).
19	This matter is unfortunately not an isolated matter in which Prosecution documents filed with the Court contain basic and avoidable errors. The error in the Information as to the correct charge for example should have been identified by Prosecution at the outset and again during the many different occasions this matter came through the Court process. Even at the very late stage of preparing Prosecution’s Sentencing Memorandum and at Sentencing, Prosecution failed to identify that the accused was charged for theft and not theft as a servant. I have identified various other errors in the Prosecution documents. Greater care must be exercised by Prosecution in the material brought before the Court and which proper due diligence and supervision should have identified. 
ORDER:
20	Leave is granted for all 32 remaining charges before the Court to be amended to be brought pursuant to section 161 and 165(e) of the Crimes Act 2013.

JUSTICE LEIATAUALESA DARYL CLARKE