SUPREME COURT OF SAMOA
Police v Sione & Ors [2023] WSSC 6 (28 February 2023)

Case name: 	Police v Sione & Ors	
		
Citation: 	[2023] WSSC 6	
		
Decision date: 	28 February 2023	
		
Parties: 	POLICE (Prosecution) AND LEMAI FAIOSO SIONE also known as SIMANU FAIOSO SIONE male of Nuu and Tuasivi Savaii (First Defendant) AND MALELE PAULO also known as KING FAIPOPO of Vailoa Aleipata and Australia (Second Defendant) AND TALALELEI PAUGA male of Salua Manono and Australia. (Third Defendant)	
		
Hearing date(s): 	27 February 2023	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:	 	
		
Order:	-	The prosecution application will be dismissed, separate trials are hereby ordered.

-	I will however allow some latitude to the prosecution who are not ready to proceed this week and adjourn the case against the two of you defendants to commence the week of 13 March 2023 a date accepted by all counsel as suitable.  That is a final adjournment and this case is a priority special fixture for hearing. 

-	The case as against the third defendant will remain adjourned to a date yet to be set, dependent upon when the prosecution or the third defendant voluntarily can appear or otherwise be brought before the court.	
		
Representation: 	I Atoa for prosecution
I Sapolu for first defendant
Q Sauaga for Second defendant
F Tufuga for third defendant	
		
Catchwords: 	-	Application for joint trial – interests of justice – within a reasonable time	
		
Words and phrases:		
		
Legislation cited:	 Criminal Procedure Act 2016, section 23(2)	
		
Cases cited:	Police v Faigalotu [2004] WSSC 38 	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

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

AND:

TALALELEI PAUGA male of Salua Manono and Australia
Second Defendant

AND:

TALALELEI PAUGA male of Salua Manono and Australia.
Third Defendant

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

Hearing:	27 February 2023
Decision:	28 February 2023

DECISION OF THE COURT
(Application for joint trial)
1.	In August 2019 the Police by information S1531/19 and S1551/19 charged the first and second defendants with conspiring with Talalelei Pauga of Manono and Australia and Taualai Leiloa of Magiagi and Laulii, to murder the then Prime Minister Tuilaepa Sailele Malielegaoi. Pleas of not guilty were entered by both defendants to the charges.
2.	By charging document dated 11 October 2019 prosecution then added as a third defendant the conspirator Taualai Leiloa, alleging that all three defendants conspired with Talalelei Pauga to commit the murder.  Taualai has since pleaded guilty to the charge and has been dealt with by the court. 
3.	Alot of time was then consumed in dealing with pre-trial applications for bail and for the courts permission for the second defendant who is normally a resident of Australia to return there pending trial.  Permission which the court refused.  These issues were all eventually resolved but the next development was on 21 February 2020 when the prosecution by information S163/20 charged Talalelei Pauga with conspiring with the other defendants to murder Tuilaepa. 
4.	Because Talalelei is resident in Australia efforts were thus begun to extradite him to Samoa for trial.  It is not clear whether this information S163/20 or a summons to answer it was personally served on Talalelei.  But I am advised by counsel a warrant of arrest was issued for his non-appearance in Samoa.  And all this has formed the basis of applications before the Australian authorities and courts to extradite him to Samoa. Those efforts have been and are continuing to be strongly resisted by Talalelei Pauga and his Australian lawyers.  And have resulted in numerous proceedings and challenges before the courts in Australia. 
5.	There has also been a challenge filed in this court to the validity of the warrant of arrest issued and a decision upon that matter is yet to be delivered.
6.	At this point in time it is not therefore known exactly when or possibly if Talalelei can be extradited to Samoa to stand trial.  Prosecution is optimistic this will happen this year but the fact of the matter is various court proceedings in Australia and in Samoa have been ongoing now for the last three years.  All that can be safely said at this point is there is no guarantee when or indeed if Talalelei will appear before this court. 
7.	On the eve of trial last week prosecution by charging document dated 23 February 2023 jointly charged Talalelei as a co-conspirator to the conspiracy charge against the first and second defendants. They are now seeking an adjournment of the first and second defendants trial in order to jointly try them with Talalelei if and when he appears. On the grounds inter alia that the same evidence, allegations, witnesses etc. will be made and presented against all three defendants.  
8.	Their application is based on section 23(2) of the Criminal Procedure Act 2016 which allows the court to try the defendants together where:
“(a) 	the allegations against the defendants are linked sufficiently by time, place, circumstances or other factors giving rise to significant commonality of evidence; or
(b)	the court thinks it is desirable or expedient in the interests of justice to do so.”
9.	Conversely, section 23(4) preserves to the court the power to order separate trials if the court “thinks it is in the interests of justice to do so.”
10.	The courts approach to applications of this nature for joinder received some consideration by Justice Carruthers in Police v Faigalotu [2004] WSSC 38 where he said:
“I turn to the principles which would guide the Courts discretion in this matter.  There have been various different expressions of principle in dealing with such applications.  The Courts have used phrases such as whether it is “conducive to the ends of justice” to order such joinder, whether to not order such joinder is “an affront to common sense”, or “needlessly artificial and contrary to the requirements of justice to deny the Court the advantage of the full picture”. 
In New Zealand at the Court of Appeal in a case called Fenton said this:
“There is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime.  The reasons are principally to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent the duplication of time and effort for witnesses and the Court system generally.”
11.	As expressed to counsel yesterday I have some doubts as to whether the defendant Talalelei Pauga has been properly “charged” or summoned to appear before this court given his absence overseas. A warrant of arrest is normally issued only if a person disobeys a summons issued under section 15 of the Criminal Procedure Act. Alternatively a person may be arrested without a warrant pursuant to section 14.  The subsequent conduct of proceedings is then governed by the charging document and the procedure provided for under section 17 et seq of the Criminal Procedure Act. Hopefully the challenge to the validity of the warrant issued will resolve that matter. 
12.	In any event this was not fully addressed by counsel in their submissions yesterday. And this application can be conveniently disposed of on other grounds.  Namely whether it is in the interests of justice to adjourn hearing of the charges against the first and second defendants until such time as the presence of the now added third defendant can be secured and they can be tried together.
13.	I accept at the outset without reservation the prosecution submission that the offending alleged against all defendants arises out of the same incident and involves the same evidence, witnesses, etc. And that a joint trial is more convenient than having to adduce all the same evidence twice.  But an unusual situation exists in the present case.  Here, there is no guarantee the third defendant will appear on whatever date the court selects for hearing.  To the contrary the indications are that the ongoing extradition and other proceedings may continue in the many myriad forms it has taken to date. All of which are subject to appeal which will entail further uncertainty and delay.  
14.	Furthermore, the court is mindful of the fact that the second defendant is not a normal resident of Samoa, and he is here because the court kept him here to await trial.
15.	The interests of justice require that serious criminal allegations of this nature be expeditiously brought to a conclusion. Indeed, the hallowed principles of the Constitution guarantee to “every person a fair and public hearing within a reasonable time” emphasis here being on the phrase “within a reasonable time”: see the Constitution, article 9(1).
16.	To allow the prosecution application would in my view in the circumstances prevailing in this matter not be in the interests of justice and would be a breach of the defendants constitutional rights under article 9(1).
17.	One conspirator has already been dealt with by the court separately. So as for the danger of inconsistent verdicts, the court can safeguard against such and parity can be easily achieved when dealing with the co-conspirators.
18.	The prosecution application will be dismissed, separate trials are hereby ordered.
19.	I will however allow some latitude to the prosecution who are not ready to proceed this week and adjourn the case against the two of you defendants to commence the week of 13 March 2023 a date accepted by all counsel as suitable.  That is a final adjournment and this case is a priority special fixture for hearing. 
20.	The case as against the third defendant will remain adjourned to a date yet to be set, dependent upon when the prosecution or the third defendant voluntarily can appear or otherwise be brought before the court.
21.	O le tulaga o le tatalaga o oulua i tua e fa’aauau pea mo le taimi nei. A’o le aso 13 o Mati ua tolopo iai le tatou mataupu. 

JUSTICE NELSON