IN THE SUPREME COURT OF SAMOA
Police v Maiava & Anor [2023] WSSC 38 (05 April 2023)

Case name: 	Police v Maiava & Anor	
		
Citation: 	[2023] WSSC 38	
		
Decision date: 	05 April 2023	
		
Parties: 	POLICE (Prosecution) v MIKAELE MAIAVA, male of Moamoa (First Defendant) & TALOSAGATUUFAATASI FAATAGI, male of Leulumoega (Second Defendant)	
		
Hearing date(s): 	24 November 2022	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Leiataualesa Daryl Michael Clarke	
		
On appeal from:		
		
Order:	-	For the reasons that I have set out, leave to withdraw the charges against Mr Faatagi is refused. The application to withdraw the charges against him is accordingly dismissed.
-	This matter is now adjourned to Monday, 17th April 2023 to set a hearing date. Both Defendants are remanded on the same bail conditions to re-appear on the 17th April at 10.00am.
-	As the trial of this matter is to proceed before assessors, if the Defendants do not elect a judge alone trial, I also hereby issue prohibition orders prohibiting the publication of this Ruling in news media or internet or any other publicly accessible database until final disposition of the charges. Media however may report that prosecution applied for leave of the Court to withdraw charges against the Second Defendant but leave was declined and the prosecution application was consequently dismissed.	
		
Representation: 	I Tanielu for Prosecution
M Lui for the First Defendant
L Sio for the Second Defendant  	
		
Catchwords: 	Negligent driving causing death – negligent driving causing injury – dangerous driving – motor manslaughter.	
		
Words and phrases:	“Application to withdraw charges” - “insufficient evidence to prove charges”.	
		
Legislation cited:	
Acts Interpretation Act 2015, s. 7(4);
Criminal Procedure Act 2016 s. 154(2); 
New Zealand Criminal Procedure Act 2011, s. 146(1).	
		
Cases cited:	Canterbury Regional Council v Bathurst Coal Ltd [2019] NZDC 14416;
Fox v AG [2022] 3 NZLR 62;
Police v Taimalie [2022] WSSC 4 (25 February 2022);
R v Dronsfield & Ors [2021] NZHC 2561;
R v Morgan (HC Auckland CRI-2005-057-000675, 10 February 2006);
R v Morgan [2006] NZHC 627 (2 June 2006).	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

MIKAELE MAIAVA male of Moamoa & TALOSAGATUUFAATASI FAATAGI male of Leulumoega.

Defendants

Counsel:	I Tanielu for Prosecution
M Lui for the First Defendant
L Sio for the Second Defendant  

Hearing:	24 November 2022
Ruling:	5 April 2023

RULING ON APPLICATION BY PROSECUTION TO WITHDRAW CHARGES (SECOND DEFENDANT)
INTRODUCTION
1. 	First, I wish to extend my apologies to counsel and parties for the delay in delivering this ruling. Regrettably, the delay this year is attributable to IT problems within the Ministry that has impacted this decision.
2. 	The two Defendants are charged with motor manslaughter, negligent driving causing death, dangerous driving and negligent driving causing injury laid out in Charging Document dated 16th March 2020.
3. 	By Memorandum of Counsel for the prosecution to withdraw charges dated 12th October 2022, prosecution advised the Court that it would be seeking leave to withdraw charges against Talosagatuufaatasi Faatagi, the Second Defendant. 
4. 	On the 14th November 2022, a formal application for leave to withdraw charges was filed. The grounds submitted in the application for leave to withdraw charges against Mr Faatagi is that there is insufficient evidence to prove the charges against him beyond a reasonable doubt. The application to withdraw charges is supported by counsel for Mr Faatagi but opposed by counsel for Mr Maiava, the First Defendant.
5. 	Counsel are in agreement that in determining the question whether to grant leave to withdraw charges against Mr Faatagi, I am to have regard to the trial documents.
BACKGROUND
6. 	The charges stem from an alleged two car accident at Leulumoega Tuai on the afternoon of the 9th November 2019 around 3pm or later. Mr Maiava was returning from Savaii on his way to Apia in a red double cab Ford Ranger. He was travelling on the Leulumoega inland road to Apia. In his vehicle were Pu’eata Aimainu in the front passenger seat, Aniseko Sagato (the deceased) on the window seat behind the First Defendant and Mikaele Matulino also in the back seat.
7. 	Mr Faatagi was the driver and sole occupant of a white Toyota Hilux. Mr Faatagi was also driving on the Leulumoega Road the afternoon of 9th November 2019. Pueata says that as they were travelling on the Leulumoega Road, they were overtaken by the white Hilux. When they reached the speed hump at Leulumoega, they then overtook the Hilux. 
8. 	Moresby Okesene who was also driving on the Leulumoega Road that day describes being overtaken by a Red Ford Ranger followed by a Hilux about 15 metres before a road bend. Once they passed, he could not then see the two cars because of the bend. His observation though was that the cars were racing, describing mown grass on the roadside flying around as the vehicles went along. 
9. 	When Moresby’s vehicle passed the corner and entered the long straight on the Leulumoega Road, he could not see the two cars that had passed him. He however then saw an old man wandering on the roadside ahead and as he got closer, realized it was the driver of the Hilux. He then saw that the 2 cars that had passed him had crashed. 
10. 	Maselino Alai was walking seawards that afternoon on the Leulumoega Road and witnessed the accident. He also described the Hilux and Ranger appearing as if they were racing. He described what he saw as:
	“...Sa ou savalivali lava ma ou autilo i tai ma ou vaai ai loa ni taavale se lua pei o loo fai mai ni miliga. 
	5. Sa ou vaai o muamua mai luma le piki-apu lanu mumu ae mulimuli mai tua le pikiapu lanu paepae. Sa ou vaaia loa ua taumafai le pikiapu paepae e tipi le pikiapu lanu mumu, a ua amata ona tau ae ae mai luga o le aega laititi.
	6. Sa taumafai lava le pikiapu paepae e tipi le pikiap mumu, peitai na agai i totonu le pikiapu mumu ma faasasa le pikiapu paepae ma ou vaaia ai loa ua tifa i tua le piki apu paepae i le itu i Sisifo. Sa faapea foi i tifa ane le pikiapu lanu mumu i le itu auala i Sisifo ma lavea…”
11. 	Petelo Samuelu who was also at home at Leulumoega that afternoon gave a similar account of speed and the observation that the two cars were racing. He stated:
	“E mafai ona ou faamatalaina lenei faalavelave matautia o se miliga taavale ona ou te manatuaina lelei o le aso lea male taimi sa tupu ai le faalavelave, e mulimuli tupu ae sa iai lava le mafaufau e tupu ona sa uia mau autafa o le matou fale i Leulumoega e matuai saoasao lava le agai nei o taavale nei e lua o lau vaai ina ua pasi mai taavale nei e lua i luma o le matou fale. E fai si saoasaoa tele ona sa matuai o matou faalogoina lava le u’u tetele o afi o taavale nei le sau o loo agai mai ai i Leulumoega tai agai uta…”
12. 	Samuelu said that as the cars passed his house, the red car was on the left side of the road and the white car on the right side as they were going together.
13. 	Soloi Petelo was at the front of his house at Leulumoega. He said that when the cars reached the front of his house:
	“E fai a si saoasaoa tele le agai mai i la’u vaai ona sa ui tonu mai lava i luma i le mea sa ou tutu ai i lea afiafi. 
	O le taavale lea pikiapu paepae Hilux a le matou pulenu’u faatasi ai ma le taavale lanu mumu o le pikiapu foi sa omai faatasi lava mai i gatai na tipi i tua e le taavale lea pikiapu lanu mumu le taavale pikiapu lanu paepae lea a le matou pulenuu i luga tonu lava o le patupatu o loo i luma o le matou fale.”
14. 	In the moments before the accident, Mr Maiava says in his caution statement that he saw the Hilux that he had overtaken in his rear vision mirror. Coming very fast from behind them, he suspected the car was going to overtake them so he tried to avoid an accident and tried to speed up but were then struck and the accident occurred. Mikaele Matulino similarly describes the high speed of Mr Fa’atagi’s car approaching from behind them and he then said to their driver (Mr Maiava) that they were being chased by the Hilux. As the white pick-up overtook them, he says he clearly saw that it struck the front of their truck but can’t recall if their truck then again struck the white truck.
15. 	The evidence is that Mr Maiava and passengers had bought and consumed alcohol.
THE STATUTORY FRAMEWORK AND AUTHORITIES
16. 	The application by prosecution to withdraw charges is pursuant to section 154(2) of the Criminal Procedure Act 2016 (“CPA”). Section 154(2) of the CPA provides that:
	“(2) Any information or charging document laid in the Supreme Court may be withdrawn by the prosecutor with the leave of a Judge at any time during the hearing.”
17. 	Section 154(2) of the CPA is similar to section 146(1) of the New Zealand Criminal Procedure Act 2011. As Dunningham J stated in R v Dronsfield & Ors [2021] NZHC 2561 at para [13] in the New Zealand context, the power to withdraw charges is not unfettered. Leave of the Court is required to withdraw charges. That applies equally in Samoa, as a prosecutor’s power to withdraw charges is subject to leave of the Court. 
18. 	In Fox v AG [2002] 3 NZLR 62 at 69, the New Zealand Court of Appeal stated that in the New Zealand system of government, “the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of Executive Government rather than the Courts.” The New Zealand Court of Appeal added at pages 69 – 70:
	“The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court’s own function of responsibility for conduct of criminal trials. This reluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions…”
19. 	While the discretion to prosecute and determine charges that a defendant is to face is a function of the executive arm of government, prosecution’s discretion to withdraw criminal charges is, as I have said, not unfettered. Such an approach would render the requirement for leave of the Court to withdraw charges in accordance with section 54(2) of the CPA meaningless. 
20. 	In Police v Taimalie [2022] WSSC 4 (25 February 2022), Nelson J stated at paragraph 9 that in determining whether to exercise the discretion under section 54(2) of the CPA to withdraw charges, “the court … should be satisfied the application rests on proper grounds.” In Canterbury Regional Council v Bathurst Coal Ltd [2019] NZDC 14416, Borthwicke J expressed the role of the Court in determining applications by prosecution to withdraw charges in similar terms:
	“[25] The court exercises oversight of a prosecutorial decision seeking leave to withdraw to ensure that the prosecutor has followed a principled and robust process. Bringing judicial oversight to the prosecutor’s decision, the court may weigh the relevant considerations differently than to the prosecutor. However, as the amicus submits, oversight does not require the court to confirm or reverse the prosecutor’s decision. Rather the court is to bring an independent mind to the application: per Timbun v The District Court at Auckland. While Timbun concerns an application to dismiss charges pursuant to s 347 of the Crimes Act 1961, I accept the principle extends to an application seeking leave to withdraw charges.
	[26] The amicus further submits, and I agree, the granting of leave is highly fact — specific, with the interests of justice being the guiding principle. Any application to withdraw must be made in good faith and the power conferred to grant leave must be equally exercised in good faith: Police v Blomejield cited by Smellie J in Attorney — General v New Plymouth District Court. Further, where the application to grant leave follows the completion of a diversion or restorative justice process, the court will ordinarily be focused on first, whether a proper process — meaning the process under the Solicitor-General’s Prosecution Guidelines — has been followed and second, whether a principled decision was reached.”
21. 	Counsel for Mr Faatagi has referred me to excerpts of Blackstone’s Criminal Practice 2017 (27th Ed.), pages 1316 and 1348. The excerpt at D2.21 page 1316 seems to refer to circumstances where the prosecutor does not prosecute, not to where the prosecutor seeks withdrawal of charges. At page 1348, it also appears that the English provisions for the discontinuation of charges against a Defendant is different to section 54(2) of the CPA.
22. 	As Nelson J has earlier stated, the role of the Court in determining an application to withdraw charges requires the Court to be satisfied that the application to withdraw charges rests on proper grounds.  In my view, this means being satisfied that (a) a robust and proper process has been followed by prosecution, and which may include compliance with the Attorney General’s Prosecutorial Guidelines, if any; and (b) whether a principled decision has been reached. The guiding principle is whether granting leave to withdraw the charges would be in the interests of justice.
DISCUSSION
23. 	The Prosecution application to withdraw charges is set out in:
(a) 	“Memorandum of Counsel for the Prosecution to Withdraw Charges” dated 12th October 2022;
(b) 	“Application to Withdraw Charges” dated 25th October 2022, more submissions than an application; and
(c) 	“Application for Leave of Court to Withdraw Charges” dated 14th November 2022.
24. 	The application to withdraw all charges against Mr Faatagi is advanced on the basis “that there is insufficient evidence to prove beyond reasonable doubt the charges of Motor Manslaughter, Negligent Driving Causing Death, Negligent Driving Causing Injury and Dangerous Driving…”  Prosecution’s assessment of the evidence leading to this conclusion is laid out in their written and oral submissions to the Court.
25. 	The difficulty for prosecution is that (a) I am not satisfied that a robust and proper process has been followed; nor am I satisfied that (b) a principled decision has been reached. First, prosecution submissions fail to address what process prosecution has followed to decide to withdraw the charges, except to undertake in their submissions a narrow and superficial assessment of the evidence disclosed from the police witness statements. Prosecution’s written submissions set out the elements of each charge. Submissions then goes on to make blanket statements, in terms of negligent driving causing death for example that “there is no disputing the first element marked ‘a’. However, there is no sufficient evidence to prove the last two elements marked “b” and ‘c’” without any actual assessment of the evidence or explanation for the conclusion reached. This unsatisfactory approach in assessing the evidence is also applied to the charges of manslaughter, negligent driving causing death and dangerous driving leaving out entirely any written submissions addressing the charge of negligent driving causing injury. Simply asserting that “there is no sufficient evidence to prove” elements of an offence does not make it so, and belies the role the Court has in determining whether or not to grant leave to withdraw charges against a Defendant. I also simply do not find prosecution’s conclusions reached on the evidence as disclosed from the witness statements to be principled. I will return to this further.
26. 	Second, the Second Defendant refers to and provided a copy of “Office of the Attorney-General Criminal Prosecution Division Prosecution Guidelines 2020” (“prosecutorial guidelines”). Counsel for Mr Faatagi submitted the prosecutorial guidelines had guided prosecution’s application to withdraw the charges, making clear and able submissions on the prosecution process for prosecution to withdraw charges.  The central flaw to this submission is that there is no reference to any prosecutorial guidelines whatsoever in prosecution’s applications before the Court or in their written submissions. Further, prosecutorial guidelines did not form part of any material filed by prosecution, despite whether such guidelines existed being expressly raised with prosecution. Prosecution’s oral submissions touching on the prosecutorial guidelines were also far from clear and convincing, and only addressed by counsel when the issue of whether prosecutorial guidelines existed were raised by the Court. 
27. 	Whilst I am not sure whether the prosecutorial guidelines referred to by counsel for Mr Faatagi have been given any legal recognition by virtue of section 18 of the Attorney General’s Office Act 2013, the prosecutorial guidelines set out the commonly accepted test for prosecution in many common law countries. At 5.2, the prosecutorial guidelines set out the test as follows:
	“The three criteria of the Test for Prosecution are:
	The admissible evidence available is sufficient to enable the offence to be proved: the Prima Facie Case Test;
	The evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction: the Reasonable Prospects Test; and
	Prosecution is required in the public interest: the Public Interest Test.”
28. 	If these guidelines have legal status, I am far from satisfied that the prosecutor has followed it. As I have said, prosecution counsel did not file a copy, refer to any guidelines in his written submission nor did he take me through these criteria or show that prosecution had applied the test in determining to withdraw charges against Mr Faatagi. Prosecution counsel himself acknowledged that he was “ill prepared” to address the last two limbs of the test at the hearing of this application, evidently appearing in Court without bringing a copy. Further, and as counsel for Mr Maiava emphasized, it is to be remembered that the prosecution grounds for the application to withdraw charges is due to insufficient evidence to prove the charges beyond a reasonable doubt – nothing more.  
29. 	Prosecution submissions place significant weight on whether the two Defendants were engaged in a race, ultimately submitting that it is “not the case at all.”  The Defendants however are not charged with a racing offence. The relevance of the opinion by witnesses that the defendants were allegedly racing is in my view, an opinion reached from the observed manner and speed at which they were allegedly driving. Whether they were in fact racing is not determinative of the charges against Mr Faatagi.
30. 	Prosecution has referred me to the judgement of Asher J in R v Morgan (HC Auckland CRI-2005-057-000675, 10 February 2006). That case involved a charge of motor manslaughter and an application on behalf of the accused for an order pursuant to now repealed section 347 of the Crimes Act 1961 (New Zealand) to discharge the accused of the charge pre-trial. Although the application in those proceedings were different to that which is before me, Asher J stated, in what fundamentally amounts to the reasonable prospects of success test that:
	“[14] The question that I must address is whether a properly directed jury could reasonably convict Mr Morgan on these charges. Unless this issue can be clearly determined in favour of the accused, it should be left for the jury to decide on guilt.” 
31. 	When reviewing the police witness statements, I am satisfied that not only is there a prima facie case against Mr Faatagi but that properly directed assessors could reasonably convict him on all charges based on the witness statements. There is evidence that on the 9th of November 2019, the two Defendants were engaged in passing and re-passing each-other. They did so including at speed, with a number of witnesses opining that they were racing. In the immediate lead-up to the crash, Mr Maiava and Mr Faatagi’s pick-ups overtook Moresby’s vehicle 15 metres from a road bend. Moresby described the two cars as racing. When the two cars then reached the straight where the accident occurred, Maselino Alai was walking seawards and described seeing the two cars engaged in what he also described as appearing to be a race. The white pick-up then tried to overtake the red pick-up on the hill but it was then struck by the red pick up as it did so. According to Mr Maiava and Maselino Matulino, they say it was the Hilux driven by Mr Faatagi that approached them from behind very fast and in the course of overtaking them, it was the Hilux that struck their vehicle causing the accident.
32. 	Based on the witness statements, there is in my view sufficient evidence to conclude that a judge or properly directed assessors could reasonably convict Mr Faatagi of manslaughter. In this context, that Mr Faatagi:
•	was in charge of, controlled and operated a Hilux which in the absence of precaution or care may endanger human life;
•	he therefore had a legal duty to take reasonable precautions against and use reasonable care to avoid the danger;
•	That by operating the Hilux at the speed and in the manner that he did, and by executing the overtake in the circumstances (including the evidence that it was Mr Faatagi whose vehicle struck Mr Maiava’s vehicle), he breached that legal duty to take reasonable precautions against and use reasonable care to avoid the danger to human life. The breach constituted a major departure from the standard of care expected of a reasonable person to whom the duty applies; and
•	His omission or neglect to take reasonable precautions against and use reasonable care to avoid the danger caused the death of the deceased, Aniseko Sagato. 
33. 	I am also satisfied on the material before me that there is sufficient evidence to conclude that a judge or properly directed assessors could reasonably convict Mr Faatagi of negligent driving causing death (Aniseko Sagato) and negligent driving causing injury to Pue’ata Aimainu. I am at a loss as to how, given the witness statements that I have traversed that prosecution would suggest that there is “insufficient evidence” for the charge of dangerous driving against Mr Faatagi to proceed. This simply adds to my serious reservations with the process prosecution has adopted to now apply to withdraw the charges against Mr Faatagi, and that the decision by prosecution to do so is a principled one. 
34. 	In all, I am not satisfied that prosecution has followed a robust and proper process nor reached a principled decision to withdraw the charges against Mr Faatagi. The grant of leave to withdraw the charges against Mr Faatagi would not in those circumstances and for the reasons I have set out be in the interests of justice.
35. 	There seems to be some reservation on the part of prosecution to proceed against both Defendants, perhaps with the view that culpability for the accident must rest on one or the other of the Defendants. As R v Morgan (supra) however shows, it may well be the case that both Defendants may be found guilty of the charges. Morgan involved two vehicles that, like this case, were engaged in passing and re-passing, including at allegedly high speed. As that case demonstrates, it is possible for two drivers in different cars to both be convicted of manslaughter where the deceased is in only one of the vehicles.
WHEN TO APPLY FOR WITHDRAWAL OF CHARGES AND FINAL COMMENTS
36. 	During the course of this application, I had raised with counsel whether an application to withdraw the charges against the Defendant could be made pre-trial given the wording of section 54(2) of the CPA that provided that charges “may be withdrawn by the prosecutor with the leave of a Judge at any time during the hearing.” (emphasis added) I am grateful to counsel for their research and submissions on this question. 
37. 	In my respectful view, applications to withdraw charges pursuant to section 54(2) of the CPA 2016 is not restricted to during the hearing at trial but includes any hearing before or after the trial or during a trial itself. A limitation of section 54(2) of the CPA 2016 to withdrawal of charges only at the trial could not “reasonably be supposed to correspond with the intention of Parliament.”  Such an approach would render very difficult the ability of the Court to properly and efficiently manage criminal proceedings before it. This would also be inconsistent with the practice of the Court during criminal mention for example to deal with charges, withdraw and dismiss charges and finalize charges in preparation for trial so that by the trial date, all parties are clear on the matters that will proceed to trial. 
38. 	The final point I wish to make concerns applications by prosecution to withdraw charges on the date of trial. Prosecutors have developed a practice where they appear at trial and seek to withdraw all charges against a Defendant on the basis of a Memorandum to Court and without setting out any grounds for their application. Whilst this may be permitted by a trial judge where applications to withdraw charges are house-keeping matters in order for guilty pleas to be entered on a negotiated plea or to finalize the charges that prosecution will proceed with, that should not be the case where all charges are sought to be withdrawn against a Defendant. This approach is haphazard and fails to address the Court’s role in determining whether to grant or refuse leave to withdraw charges. Where an application is to be made to withdraw charges, a formal written application should be filed with the Court and served on all parties laying out the grounds for the application.
Result
39. 	For the reasons that I have set out, leave to withdraw the charges against Mr Faatagi is refused. The application to withdraw the charges against him is accordingly dismissed.
40. 	This matter is now adjourned to Monday, 17th April 2023 to set a hearing date. Both Defendants are remanded on the same bail conditions to re-appear on the 17th April at 10.00am.
41. 	As the trial of this matter is to proceed before assessors, if the Defendants do not elect a judge alone trial, I also hereby issue prohibition orders prohibiting the publication of this Ruling in news media or internet or any other publicly accessible database until final disposition of the charges. Media however may report that prosecution applied for leave of the Court to withdraw charges against the Second Defendant but leave was declined and the prosecution application was consequently dismissed.
JUSTICE CLARKE
Addendum: The trial has proceeded before a Judge alone. Accordingly, the suppression order at paragraph 41 is discharged.