IN THE SUPREME COURT OF SAMOA
Sione v Police [2023] WSSC 40 (07 June 2023)

Case name: 	Sione v Police	
		
Citation: 	[2023] WSSC 40	
		
Decision date: 	07 June 2023	
		
Parties: 	LEMAI FAIOSO SIONE a.k.a SIMANU FAIOSO SIONE, male of Nuu and Tuasivi Savaii (Applicant) v POLICE (Respondent)	
		
Hearing date(s): 	30 May 2023	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	There is no legal basis or merit in the application, it is dismissed.

Defendant continues to be remanded on bail to 12:00 noon Friday, 16 June 2023 for sentence.	
		
Representation: 	I. Sapolu for Applicant/Defendant
I. Atoa for Respondent/Prosecution 	
		
Catchwords: 	Guilty of conspiracy to murder – application to defer sentencing 	
		
Words and phrases:	“issue of warrant pending appeal” – “reserving question of law” – “no stay of execution unless Court orders” – “How determination of appeal affects outcome of trial” – “Stay of execution of sentence pending determination of appeal” -  “Trial with or without assessors” – “Defendant’s notice to be tried with Judge alone” 	
		
Legislation cited:	Crimes (Appeal and Review) Act 2001 of New South Wales, ss. 63; 63(2)(a); 
Criminal Procedure Act 2016, ss. 6; 125; 136; 136(4); 158; 173; 173(1); 173(5)(a); 173(5)(b); 
Criminal Procedure Act 2011 (NZ), s. 302; 
Judicature Act 2020, ss. 15; 302(2).	
		
Cases cited:	Morgan v R [2002] NZCA 112.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

LEMAI FAIOSO SIONE also known as SIMANU FAIOSO SIONE male of Nuu and Tuasivi Savaii.

Applicant

A N D:

P O L I C E

Respondent
				
Counsel:		I Sapolu for applicant/defendant 
			 I Atoa for respondent/prosecution

Hearing:		30 May 2023

Decision:		07 June 2023

DECISION OF THE COURT
(Application to defer sentencing)
Background
1. 	By unanimous verdict of a panel of Assessors on 24 March 2023 following a lengthy trial, the defendant and a co-defendant were found guilty of conspiring in July/August of 2019 to murder Tuilaepa Sailele Malielegaoi the then Prime Minister of Samoa.
2. 	On 27 March 2023 defence counsel filed together with a number of other documents an Application to Acquit the defendant pursuant to section 136 of the Criminal Procedure Act 2016 (“CPA”) which says:
	“136. Concurrence of assessors - (1) On a trial before a Judge and assessors, a defendant is not to be convicted of any offence unless the conviction is concurred by at least 4 assessors. 
	(2) 	If the assessors cannot reach a verdict on a matter charged within what is in the opinion of the trial Judge a reasonable time (which may not be less than 5 hours) the Judge must enquire of the assessors as to the likelihood of their reaching a verdict. 
	(3) 	If the Judge is of the opinion that there is no reasonable prospect of a verdict, the assessors must be discharged upon which the Judge may order a new trial. 
	(4) 	If the presiding Judge is of the opinion that the assessors verdict is unreasonable or cannot be supported having regard to the evidence, the presiding Judge may: 
	(a) 	acquit the defendant if the verdict is guilty; or 
	(b) 	order a new trial if the verdict is not guilty.”
3. 	The documents filed included a statement from a person present throughout but not called as a witness at the trial and a statement from the defendant direct to the court.  
4. 	After being given these documents by the Registrar I issued on 14 April 2023 a Memorandum to counsel (a copy of which is appended to this judgment) stating inter alia:
	“In relation to the Application to Acquit, I believe counsel has misinterpreted the purpose and scope of section 136 of the Criminal Procedure Act 2016.  That provision requires the intervention of the Trial Judge only if he has formed the necessary opinion as to the prospects of a verdict (ss. (3)) or as to the unreasonableness of the verdict (ss. (4)).  He is not required by section 136 to otherwise opine. 
	None of the authorities cited by counsel including Attorney General v Otto [2009] WSCA 6 require him to do so.
	For the record, I did not find the Assessors verdict unreasonable or unsupported by the evidence. And counsel for the first defendant did not invite me at the time to consider the matter. The Application is dismissed.
	The points and correspondence now submitted by the first defendant seem to be more properly the subject of an appeal.”
5. 	On 21 April 2023 the defendant filed an appeal against the decision of the Assessors as well as an application to admit fresh evidence.  The latter is direct to the Court of Appeal so I need say no more about it.  
6. 	The defendant also filed an application to defer his sentencing until the appeal has been dealt with by the Court of Appeal. 
The defendants application 
7. 	The defendant in submissions relies on sections 158 and 173 of the CPA which respectively provide:
	“158. Issue of warrant pending appeal - If, under a decision against which the defendant appeals, the defendant has been sentenced to imprisonment, the warrant of commitment to execute the sentence must be issued, even though the notice of appeal has been given.”
	“173. 	Reserving question of law - (1) The Court before which a defendant is tried may, during or after the trial, reserve pursuant to this section for the opinion of the Court of Appeal a question of law arising either on or incidental to the trial. 
	(2) 	If the decision of the question may in the opinion of the Supreme Court depend on any questions of fact, the Judge may when the Judge is sitting with assessors, ask the assessors questions as to the facts separately, and the Supreme Court must make a note of those questions and the findings on those questions. 
	(3) 	The Attorney-General or the defendant may during the trial apply to the Court to reserve the question of law, and the Court, if it refuses to reserve it, must nevertheless take a note of the application, unless it considers the application to be frivolous. 
	(4) 	If the result of the trial is acquittal, the defendant must be discharged, subject to being again arrested if the Court of Appeal orders a new trial. 
	(5) 	If the result of the trial is conviction, the Supreme Court: 
	(a) 	may respite the execution of the sentence until the question reserved has been decided; and 
	(b) 	must either commit the defendant to prison, or grant the defendant bail on any terms and conditions as the Supreme Court thinks fit. 
	(6) 	If the question is reserved, a case must be stated for the opinion of the Court of Appeal, to be approved and signed by the Judge who presided at the trial. 
	(7) 	If the question is reserved on application, the case must be stated by the party who applied for the question to be reserved, and if the question is reserved by the Judge on own initiative, the case must be stated by that Judge.”
8. 	The application is opposed by the Respondent who say the application is procedurally flawed and no reasonable grounds have been provided justifying a stay of sentence.  It further notes an appeal does not operate as a stay citing section 15 of the Judicature Act 2020 which provides:
	“15. No stay of execution unless Court orders: 
	The appeal shall not operate as a stay of execution or of proceedings under the decision appealed from except in so far as the Supreme Court or the Court of Appeal may order, and no intermediate act or proceedings shall be invalidated except so far as the Supreme Court may direct.”
9. 	Unless the application is for deferral of sentence for up to three (3) months on humanitarian grounds pursuant to section 63 of the Sentencing Act 2016, which it is not. 
Criminal Procedure Act, section 158
10. 	It is difficult to see how this assists the defendant as clearly the provision only applies where “the defendant has been sentenced to imprisonment” (my emphasis).  Furthermore, the section relates to the issuance of the required “warrant of commitment to execute the sentence” irrespective of the notice of appeal. In this instance, the defendant has not been sentenced to imprisonment or otherwise and as I understand the application, it is to defer the defendants sentencing. 
11. 	Section 158 in my view does not apply and I do not understand counsels submission that “it is the issuance of a warrant of commitment to execute which is mandatory, not the actual execution of the sentence itself.” With respect the submission seems to confuse “execution” and “sentence.”’
Criminal Procedure Act, section 173
12. 	The defendant here argues that my comments in paragraph 6 of the Memorandum to Counsel referred to above “can be interpreted as a question of law that ought to be reserved for the opinion of the Court of Appeal.” There is no doubting that pursuant to section 173(1) the court may “during or after the trial, reserve pursuant to this section for the opinion of the Court of Appeal a question of law arising either on or incidental to the trial.”  Further that if the result of the trial is a conviction then section 173(5)(a) allows the court to “respite the execution of the sentence until the question reserved has been decided.”  The defendant maintains these criteria have been met.  
13. 	There are several difficulties with the defendants argument. Firstly counsel is reading into paragraph 6 words and an intent that are simply not there.  To suggest that the matters raised are “more properly the subject of an appeal” is quite different to saying such matters are reserved as “a question of law” or questions of law for the Court of Appeal. And there is no indication of any sort that they are therefore reserved as such pursuant to section 173 of the CPA which is the specific requirement of section 173(1). Counsel is misconstruing clear and plain English. 
14. 	Secondly, even if such an interpretation were available, it is apparent from section 173(5)(a) that the best attainable result for the defendant is a “respite” or deferral of “execution of the sentence”.  The natural and ordinary meaning of this is there must first be a “sentence” that can be respited/deferred.  Which is why section 173(5)(b) goes on to provide for “committing” the defendant to imprisonment or granting him bail on conditions. 
15. 	Counsel has cited a number of New Zealand and Australian authorities in support of her application.  For New Zealand, section 302 of the CPA 2011 (NZ) which provides:
	“302 How determination of appeal affects outcome of trial
	(1) This section applies if, before a first appeal is determined, the trial to which a first appeal relates proceedings and the outcome is an acquittal, a conviction, a dismissal under section 147, or a stay of prosecution.
	(2) The trial court may, if the person is convicted, postpone sentencing the person or defer the commencement of any sentence imposed until –
	(a) The first appeal court determines the application for leave to appeal or determines the question law; or
	(b) An application for leave to make a further appeal or (if leave is given) the further appeal has been determined.
	(3) If the outcome of the trial is an acquittal or a dismissal, or the prosecution is stayed, a person is subject to being rearrested or summoned to appear if the first appeal court orders a new trial.” 
16. 	It is clear from section 302(2) that in New Zealand in the case of a conviction, express power is conferred on the court to “postpone sentencing the person or defer the commencement of any sentence imposed.”  Further that such power is discretionary (“the trial court may ….”) meaning it is a power to be exercised as the New Zealand cases show only in appropriate cases “for good reason with the determinant being whether an adjournment is in the interests of justice”:  Morgan v R [2002] NZCA 112. No express power to postpone or defer a sentencing pending the outcome of an appeal on a question of law arising at or from a trial is to be found in our legislation. In the normal course of events a stay of the sentence or bail in the case of imprisonment is sought pending hearing of such appeals.  There is no apparent reason why in this case this would be problematic for the defendant.
17. 	In respect of Australia, counsel refers to the laws of several States such as the Crimes (Appeal and Review) Act 2001 of New South Wales section 63 which relevantly provides:
	“63 Stay of execution of sentence pending determination of appeal
	(1) This section applies to –
	(a) Any sentence, and
	(b) Any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arise under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act.
	(2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed –
	(a) Except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or
	(b) In the case of an appellant whose appeal is the subject of any application for leave, when leave to appeal is granted, or
	(c) In the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act. 
	(2A) Subsection (2) does not operate to stay a suspension or disqualification of a driver licence that arose as the consequence of a conviction if, immediately before the proceedings giving rise to the conviction, a suspension was in force under Division 4 of Part 7.4 of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act) for the offence to which the conviction relates.
	(2B) However, an appeal court may order that a suspension or disqualification referred to in subsection (2A), subsection (2) operates to stay the operation of a disqualification of a driver licence that arises under an ACT as a consequence of a conviction, whether the relevant appeal is against the conviction or the sentence imposes as a consequence of the conviction.”
18. 	Again reliance on such a provision is misplaced.  Firstly the New South Wales statute expressly provides in section 63(2)(a) that the execution of any sentence under the Act “is stayed….when the notice of appeal is duly lodged.”  i.e. the sentence is by operation of law automatically stayed once appealed.  In contra-distinction is our section 15 of the Judicature Act 2020 referred to earlier which expressly provides the contrary.  Secondly the provision refers to staying “the execution of any such sentence”.  Which presupposes the imposition of a sentence not the deferral thereof. 
19. 	As stated by the courts of this country on numerous occasions in the past, counsels should be wary of citing authorities from jurisdictions which do not have legislation similar to our own.  Such referrals do nothing to assist their cause.
20. 	There is another issue for consideration and it concerns the defendants argument that in fact legitimate questions of law requiring consideration by the Court of Appeal have arisen.  The defendants written submission in paragraph 4.1 claims errors of law in relation to the court refusing to allow a judge alone trial, an imbalanced summing up, a refusal to admit evidence for the defence, a refusal to allow questioning of the Police Investigating Officer, et al.  However a review of the basis for such assertions reveals such arguments have no foundation.  
21. 	Thus in relation to the court refusing a judge alone trial, the record and other counsels will confirm that the defendant never sought a judge alone trial. This was an application made in writing by his co-defendant which the defendant orally joined in a Chambers directions meeting held pre-trial on Thursday 09 March 2023. An application which the prosecution objected to because it failed to comply with the time limits set by sections 6 and 125 of the CPA which relevantly provide: 
	“6. Trial with or without assessors - (1) All trials in the Supreme Court are to be tried by a Judge alone. 
	(2) As an exception to subsection (1), a defendant charged with an offence punishable by life imprisonment is to be tried by a Judge sitting with 5 assessors. 
	(3) However, a defendant under subsection (2) may apply pursuant to section 125 to be tried before a Judge alone.”
	“125. Defendant’s notice to be tried with Judge alone - (1) For the purposes of section 6(2), the defendant may, within 28 days before the date on which the defendant is to be tried, give written notice to the Registrar of the Supreme Court of the defendant’s wish to be tried before a Judge sitting alone. 
	(2) When the Registrar receives the notice under subsection (1), the Registrar must forthwith give a copy of the notice to the prosecutor. 
	(3) If the defendant, within the period under subsection (1), gives notice under that subsection of the defendant’s desire to be tried before a Judge sitting alone, the Registrar must refer the matter to a Judge of the Supreme Court (who may or may not be the Judge before whom the trial is to be held). 
	(4) The Judge to whom any matter is referred under subsection (3) must order that the defendant be tried before a Judge sitting alone unless, having regard to the interests of justice, the Judge considers that the defendant should be tried before a Judge with assessors, in which case the Judge must make the order accordingly. 
	(5) If two or more defendants are to be tried together, they are to be tried before a Judge with assessors unless all of them apply to be tried by a Judge alone.”
22. 	It was pointed out to counsels at the meeting that the earliest this last minute application could be heard would be on Monday 13 March when trial was scheduled to commence and the trial would therefore have to be aborted until the issue was disposed of.  Entailing further delays to an already long delayed proceeding something which the defendants have consistently been complaining about.  Noting that the defendants were Australian residents who have been kept in-country by the court until these proceedings could be resolved. 
23. 	After discussing the matter with counsels and the court indicating the contents of its usual directions to the Assessors pre and post-hearing of the evidence, as well as reminding counsels of the courts inherent power to over-rule pursuant to section 136(4) of the CPA any perverse or unreasonable verdict of the Assessors, and the court acceding to the unusual step of allowing defence counsels to open after the prosecution opening in order to ensure balance and a fair trial at all times for the defendants, defence counsels retired to obtain instructions.
24. 	The court was subsequently advised the defendants were in the circumstances withdrawing their applications.  The only objections raised were in relation to certain assessors which was dealt with and trial proceeded without further objection from defence counsel or any request to note on the record an objection from the defendant or his counsel to proceeding with an Assessor trial.
25. 	There is accordingly no factual basis for claiming an error of law in this regard and any assertion by defence counsel contrary to the above would be a blatant and calculated untruth.  When I put this to counsel in the course of hearing submissions her curious response was “I remained neutral I had nothing to say”. Even giving counsel the benefit of erroneous recollection, counsel should be well aware a failure to act in such circumstances is in fact an act of itself carrying attendant consequences. 
26. 	As to an imbalanced Summing-up I accept this could give rise to errors of law but counsel was unable despite it being advanced in her submissions to provide any details.  Similarly in relation to the alleged refusal to admit defence evidence and admission of hearsay statements which counsel said in submissions were contrary to the provisions of the Evidence Act 2015, counsel was unable to refer to specific parts of the trial transcript where these occurred and where her objections to admissibility were noted or otherwise overruled.  This despite the fact that at the Chambers directions meeting referenced earlier, counsels agreed that objections based on hearsay would be dealt with as they occurred on a witness by witness basis.  Again the point to be made is these were not reserved at trial or subsequently as questions of law for the Court of Appeal pursuant to section 173 of the CPA or any other applicable legislation.
Decision
27. 	There is no legal basis or merit in the application, it is dismissed.
28. 	Defendant continues to be remanded on bail to 12:00 noon Friday, 16 June 2023 for sentence.

JUSTICE NELSON
•	
“APPENDIX”

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

LEMAI FAIOSO SIONE also known as SIMANU FAIOSO SIONE male of Nuu and Tuasivi Savaii.

First Defendant

A N D:

MALELE PAULO also known as KING FAIPOPO of Vailoa Aleipata and Australia.

Second Defendant

A N D:

TALALELEI PAUGA male of Salua Manono and Australia.

Third Defendant

Counsel:	I Atoa for prosecution 
		I Sapolu for first defendant
		Q Sauaga for second defendant
		F Tufuga for third defendant 

AND to:	Registrar, Supreme Court

Memo:		14 April 2023

Memorandum to Counsel
1. 	I have just received the Application to Acquit dated 27 March 2023 from counsel for the first defendant.
2. 	I have also been given correspondences from the first defendant and one of his supporters. This should have been given to the Registrar.
3. 	In relation to the Application to Acquit, I believe counsel has misinterpreted the purpose and scope of section 136 of the Criminal Procedure Act 2016.  That provision requires the intervention of the Trial Judge only if he has formed the necessary opinion as to the prospects of a verdict (ss. (3)) or as to the unreasonableness of the verdict (ss. (4)).  He is not required by section 136 to otherwise opine. 
4. 	None of the authorities cited by counsel including Attorney General v Otto [2009] WSCA 6 require him to do so.
5. 	For the record, I did not find the Assessors verdict unreasonable or unsupported by the evidence. And counsel for the first defendant did not invite me at the time to consider the matter. The Application is dismissed.
6. 	The points and correspondence now submitted by the first defendant seem to be more properly the subject of an appeal.
7. 	What is of concern is I have been advised some of this correspondence has been published on Facebook in breach of the courts order prohibiting publication issued on 13 March 2023.
“ORDER OF THE COURT
(Prohibiting Publication)

(1)	As we are all aware there is a third person charged in this matter. And there have been well publicised efforts underway to extradite him from Australia to Samoa to answer to the charge made against him. It is alleged that he was part of this conspiracy to murder the victim. At this stage it is not known if and when he will be able to be extradited to Samoa to face the charge. 
(2)	While the court always endeavours to keep its processes transparent and media friendly, in this particular matter, in the interests of securing a fair trial to the missing defendant who is likely to be also tried by assessors, I make the following Orders;
(i)	There will issue an order prohibiting publication of any and all details/matters in this proceeding especially in relation to the evidence to be heard and the testimony of witnesses;
(ii)	Media are free to publicise the fact that this trial is beginning today before a panel of assessors convened according to the laws of the Independent State of Samoa and that the trial is expected to take the rest of this week. Other than that all other matters are prohibited to be reported upon. 
(3)	This Order is issued pursuant to article 9(1) of the Constitution which allows the court “to the extent strictly necessary in special circumstances” to do this “where the interests of justice” so require. 
(4)	Our media friends are of course welcome to attend and listen but no reporting please. And this order extends to reporting on all social media platforms including Facebook, Twitter, and so forth, and extends to recording by audio or audio visual means of what is happening in this court room.”
8. 	The Registrar is directed to investigate this matter further and take any further action he considers appropriate. 

JUSTICE NELSON