SUPREME COURT OF SAMOA
Police v M [2023] WSSC 47

Case name: 	Police v M	
		
Citation: 	[2023] WSSC 47	
		
Decision date: 	23 August 2023	
		
Parties: 	POLICE v M	
		
Hearing date(s): 	7 and 23 August 2023	
		
File number(s): 	S425/20

Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE PERESE	
		
On appeal from:		
		
Order:	-	For the purposes of s. 76(2)(c) CPA, I find on the balance of probabilities the defendant is unfit to stand trial.  
-	I also find the defendant was unfit to plead.  The defendant’s “statement” is inadmissible against him in any legal context whether civil or criminal. Nor is he able to be compelled to give evidence as to what he is attributed with saying in the statement. 
-		
		
Representation: 		
		
Catchwords: 	 balance of probability – mental impairment – intellectual disability – unfit to stand trial	
		
Words and phrases:		
	-	 high level of irrational and illogical behaviour
-	Stanford-Binet intelligence scales, 5th edition, which therefore placed the defendant in a classification of “impaired or delayed”
	
Legislation cited:	Criminal Procedure Act 2016, s. 76, s. 76(2) s. 56(1)(b) &s.73
Criminal Procedure (Mentally Impaired Persons) Act 2003	
	Constitution of the Independent State of Samoa per articles 9(1) and 9(4) 
Evidence Act 2015, s.16
	
Cases cited:	Nonu v R [2017] NZCA 170
Police v Poloite [2021] WSSC 50

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:
section 76 of the Criminal Procedure Act 2016.

BETWEEN:

P O L I C E
Plaintiff/Respondent

A N D

M
Defendant/Applicant

Counsel:	T S Sasagi for Plaintiff/Respondent 
		K Kruse for Defendant/Applicant
Hearing:	7 and 23 August 2023
Decision:	23 August 2023

RESERVED DECISION OF PERESE CJ

Given the nature of the issues in this matter, I make an order in the interests of justice under s. 56(1)(b) of the Criminal Procedure Act 2016 (“CPA”), suppressing the name of the defendant applicant.  This reserved decision can be reported and cited as Police v M.
1. 	The defendant/applicant has been jointly charged, with two others, of the commission of three offences under the Crimes Act 2013. 
	- That on 29 April 2020, the defendants entered a building namely a dwelling house, remained in it without authority and with intent to commit a crime in the building, thereby committing the crime of burglary.
	- That on 29 April 2020, the defendants dishonestly took the house materials namely valued at SAT$5000, with intent to deprive the owner permanently of those properties.
	- That on 29 April 2020, the defendants intentionally damaged the shower, windows, doors and walls of the building to be valued at SAT$25,000.
2. 	The defendant makes an application concerning his fitness to stand trial. He seeks the making of two orders:
1.	He is not fit to stand trial; 
2.	Staying and/or dismissing the charges against the defendant.
3. 	There is a process the court is required to follow to determine this application, which is set out in s. 76 of the Criminal Procedure Act 2016 (“the CPA”).
4. 	The first part of that inquiry is to consider whether there is medical evidence with supports a finding that the defendant is not fit to stand trial.  In this respect, the defendant relied on the evidence of two medical practitioners, (1) Dr George Leao Tuitama, a psychiatrist and the acting head of department – mental health services for the Ministry of Health and, (2) Dr Chandler Faafetai Tuilagi a general practitioner.  
5. 	Both medical witnesses depose that in their experience and expertise the defendant is unfit to plead and unfit to stand trial. They also say that in their respective meetings with the defendant that he exhibited a high level of irrational and illogical behaviour, that defendant had very poor understanding and judgement. Both referred to the defendant’s very low level of IQ, with Dr Tuilagi deposing that he conducted an IQ test and the defendant scored 42 on the Stanford-Binet intelligence scales, 5th edition, which therefore placed the defendant in a classification of “impaired or delayed”.  Finally, both witnesses considered that the defendant had an intellectual disability due to his low IQ score.
6. 	Ms Sasagi submits in reply that only one specialist medical practitioner gave evidence – Dr Tuitama. She submits Dr Tuilagi is not a mental health expert of the same standing.  This means the defendant is unable to satisfy s.76(1), which requires the opinions of 2 medical practitioners or 1 medical practitioner and 1 specialist nurse.  Ms Sasagi submits that the need for specialisation in the area of mental health arises from s.76(1) which refers to a specialist nurse – defined as someone who specialises in the field of mental health.  Ms Sasagi’s submits medical practitioners should similarly be qualified in the area of mental health.  The law provides otherwise.  Had Parliament intended for medical practitioners providing opinions to the court to be specialists in the field of mental health, then it would have expressly said so, as it has for nurses providing reports. A medical practitioner qualified and registered in accordance with the Medical Practitioners Act 2007 and the Healthcare Professions Registration and Standards Act 2007 can provide his or her opinion to the court, and such a report, subject to the terms of s.16 Evidence Act 2015, would satisfy the requirements of s. 76(1).  
7. 	In this case, I am satisfied the defendant is mentally impaired on the evidence of Doctors Tuitama and Tuilagi.  
8. 	The hearing of the Police opposition to the application commenced on 7 August 2023.  The evidence is that during the defendant’s police interview, held on 6 May 2020, the defendant received assistance from a third person, who is not identified in this judgment to preserve the integrity of the order for the suppression of the defendant’s name.  The interview notes record that the third person took part because the defendant could not read.  This assistance extended to helping to prompt the defendant, such as with answering questions concerning the defendant’s age and birthdate. The police officer who conducted the interview, Senior Sergeant Lauina, now Inspector, produced the interview notes.  
9. 	Senior Sergeant Lauina impressed me as a candid witness who told the Court that the third person also provided the defendant with assistance during his giving of the cautions, but he said that there was no prompting from this person when the defendant proceeded to make his statement, following the caution that the defendant did not have to make a statement.  The third person read the card which recorded the caution statements to the defendant, before Senior Sergeant Lauina explained the caution to the defendant. 
10. 	I have concerns about the accuracy and reliability of the interview notes of the statements attributed to the defendant.  The need for a third person’s attendance suggests that this was not a typical police interview.  Further, the lack of a word for word record means the involvement of the third person to interpret, explain or prompt the defendant’s answers makes it impossible for the court to assess what the defendant actually said.      
Is the defendant unfit to stand trial?
11. 	It is important to note two of the statutory definitions contained in s.73 CPA.  The first definition is that of the term intellectual disability.  This is defined as:
“intellectual disability” A person has an intellectual disability if
the person has a permanent impairment of the mind to an
extent that results:
(a) in a significantly low general intelligence; and
(b) a demonstrable inability to lead an independent life.
 
12. 	The second definition is the meaning under the CPA of the phrase – unfit to stand trial.
	“unfit to stand trial”, for a defendant:
(a)	means a defendant who is unable, due to mental impairment or        intellectual disability, to conduct a defence, or to instruct a lawyer to do so; and
(b)	includes a defendant who, due to mental impairment, is unable -
a.	to plead; and
b.	to understand the nature, purposes or possible consequences of the proceedings to the extent necessary to conduct a defence or instruct a lawyer for that purpose.
(my emphasis)
13. 	The definition of the term intellectual disability requires the applicant to show that the intellectual disability is a permanent impairment to the extent that the defendant has a significantly low general intelligence and that he is unable to lead an independent life.  Dr Tuitama told the court that the defendant had no history with the mental health service, but that this was not unusual in Samoa because the existence and work of the mental health service was not well known in the community. This may be so, however, respectfully, there is no evidence that the defendant’s intellectual disability is permanent to the extent that there is a demonstrable inability to lead an independent life.  
14. 	It follows from an analysis of the statutory definitions cited above that a person who does not suffer from an intellectual disability, as defined in the CPA, must rely on having a mental impairment as the basis for his or her inability to conduct a defence or to instruct a lawyer.  Such mental impairment may also mean that the defendant is unable to plead and understand the nature, purposes or possible consequences of the proceedings to enable them to conduct a defence or instruct a lawyer for that purpose.  In such cases those defendants are considered to be unfit to stand trial.  
15. 	Both medical witnesses accepted in cross examination that the defendant whilst slow to understand does eventually understand.  Dr Tuitama suggested that there may be some matters which the defendant may never understand, because of his low level of intelligence.  That is true of most witnesses, even of average intelligence.   
16. 	The applicant relies on the decision I gave in Police v Poloite [2021] WSSC 50, in which it was held:
	18	…. I consider the term mental impairment is used in the [CPA] in the expansive sense which the Court in Tully referred - that it is not a term which is confined to mental disorder, intellectual disability or insanity or some similar prognosis, but that it refers to a mental state or condition generally, which might be considered an impairment to a person's capacity to participate adequately by way of making rational decisions.
17. 	In my respectful view, the expansive approach is the appropriate approach in Samoa where limited mental health services, militate against a search for binary diagnostic outcomes.  Indeed, respectfully, the New Zealand Court of Appeal in Nonu v R [2017] NZCA 170, summarised what I consider to be the nature and scope of the fitness to stand trial inquiry cited above, as follows:
	[26] There are three key principles underpinning the fitness to stand trial requirements of the CPMIP Act.  First, the requirements promote fairness to a defendant by protecting his or her rights to a fair trial and to present a defence. Second, the requirements also promote the integrity and legitimacy of the criminal justice system by only holding defendants accountable if they understand the reasons why they have been prosecuted, convicted and punished.  Third, the requirements enhance society’s interest in having a reliable criminal justice system by not placing on trial defendants who, through lack of fitness, are unable to advance an available defence.
	…
	[29] An inquiry into a defendant’s fitness to stand trial, however, involves more than an assessment of whether or not the defendant can participate in his or her trial by simply performing relevant trial functions.  A defendant must also have the capacity to participate effectively in his or her trial. This involves an assessment of the defendant’s intellectual capacity to carry out relevant trial functions. The reason for the need to inquire into the defendant’s capacity to participate effectively in his or her trial is that the principles we have explained above are not honoured in cases where, for example, a defendant superficially appears to participate in his or her trial but in reality is, because of intellectual disability, nothing more than a bystander.
18. 	It is of course the case that we do not have a Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”), but the requirements of that Act have their counterparts or equivalents in Samoan law: (1) the right to a fair trial and the right to be informed in language which the person understands and in detail the nature and cause of the accusation against him, and the right to present a defence - per articles 9(1) and 9(4) of the Constitution of the Independent State of Samoa; (2) the Supreme Court has the inherent power to preserve and protect the integrity and legitimacy of its process in Samoa’s criminal justice system; and (3) the court recognises the public interest in a criminal justice system that should not place on trial defendants who through a lack of fitness are unable to advance an available defence.
19. 	What is sought to be avoided is the spectacle that because of the person’s mental impairment, he or she is nothing more than a bystander.
20. 	I have had the benefit of seeing and hearing the defendant, and I am satisfied that for the reasons given by and findings of the medical witnesses, and my seeing his demeanor in the witness stand and body of the court, the defendant does not have the capacity to stand trial and is therefore unfit to stand trial.  For much of the hearing whilst in the body of the court, the defendant appeared unresponsive to the issues being discussed in the court. During his evidence he was conversational in cross examination and questions from the court, and whilst this showed that he understood the simple propositions being put to him, his candour demonstrated he was not trying to mislead the court about the effect of mental impairment on him.  In other words, he was not trying to put it on.  
21. 	Earlier in this judgment I expressed my concern about the police interview notes.  The defendant’s mental impairment means there is serious doubt in my mind of whether he understood that his right to not make a statement has as its fundamental premise the right of suspects and defendants, to put the Police to the proof.  Such a cognitive connection would have presented a challenge to a person with a very low IQ.   In Samoa, a person’s presumption of innocence is preserved in article 9(3) of the Constitution, and the right to silence is preserved by s. 23 of the Evidence Act 2015.  The evidence suggests the defendant’s very low IQ likely means that the cautions were simply words.  It is not enough to counter a lack of comprehension by saying that the defendant eventually understands, and that is because of the sequence of events.  The interview notes suggest that straight after the cautions were given the defendant proceeded to make a statement.  There was no discernible pause in the process to give the defendant time to process what he had just been told and what that might have meant for him.
22. 	Finding of whether the defendant is fit to stand trial
23. 	For the purposes of s. 76(2)(c) CPA, I find on the balance of probabilities the defendant is unfit to stand trial.  
24. 	I also find the defendant was unfit to plead.  The defendant’s “statement” is inadmissible against him in any legal context whether civil or criminal. Nor is he able to be compelled to give evidence as to what he is attributed with saying in the statement. 
CHIEF JUSTICE