IN THE SUPREME COURT OF SAMOA
Police v SF [2023] WSSC 63 (06 September 2023)

Case name: 	Police v S.F	
		
Citation: 	[2023] WSSC 63	
		
Decision date: 	Oral: 22 August 2023
Written with reasons: 06 September 2023	
		
Parties: 	POLICE (Informant) v SF (Accused)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Fepulea’i Ameperosa Roma	
		
On appeal from:		
		
Order:	On 22 August 2023 I granted the accused’s application to vacate his guilty pleas and made orders that:
(a) the accused is allowed to withdraw his guilty pleas to charges no. 1 (sexual violation of V1) and no. 3 (sexual violation of V2) on charging document dated 1 March 2021;
(b) charges nos. 2, 4, 5 and 6 on charging document dated 1 March 2021 withdrawn on basis of the accused’s guilty pleas to charges no. 1 and 3 are now reinstated;
(c) the matter is adjourned to 28 August 2023 to set a hearing date.	
		
Representation: 	A. Uele for Prosecution
J. Brunt for the Accused	
		
Catchwords: 	Application to vacate plea – charged of rape – incest – sexual connection – application granted.	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013, ss. 49(1)(a) & 52(1), ss.56, ss.55. ss.56(1) & 57(a);
Criminal Procedure Act 1972, s. 54;
Criminal Procedure Act 2016, s. 72.	
		
Cases cited:	Onosai Nofoaiga v Police [2007] WSCA 3;
Police v Viliamu [2008] WSSC 74.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

S.F 

Accused

Counsel:	A. Uele for the Prosecution
J. Brunt for the Accused

Reasons:	06 September 2023

REASONS
(Application to vacate the accused’s guilty pleas)
Introduction
1. 	On 22 August 2023 I granted the accused’s application to vacate his guilty pleas and made orders that:
(a) 	the accused is allowed to withdraw his guilty pleas to charges no. 1 (sexual violation of V1) and no. 3 (sexual violation of V2) on charging document dated 1 March 2021;
(b) 	charges nos. 2, 4, 5 and 6 on charging document dated 1 March 2021 withdrawn on basis of the accused’s guilty pleas to charges no. 1 and 3 are now reinstated;
(c) 	the matter is adjourned to 28 August 2023 to set a hearing date.
2. 	These are my reasons.
Background
3. 	The accused faced two counts of sexual violation by rape, two counts of incest and two counts of sexual connection.  The alleged victims are his daughters.
4. 	On 22 March 2021 through Mr Koria who was appointed counsel under legal aid, he entered not guilty pleas to all charges, was granted bail and remanded to the week commencing 6 February 2021 for hearing.  The hearing was vacated on 7 December 2021 on application by prosecution.
5. 	A second hearing date was set in the week commencing 20 June 2022.  On 29 June 2022 before the Chief Justice, prosecution withdrew four charges and through counsel, the accused vacated his not guilty pleas and entered guilty pleas to the two remaining counts of sexual violation by rape.  Given the seriousness of the charges and likelihood of an imprisonment term being imposed, the accused was remanded in custody by the Chief Justice to 9 September 2022 for sentencing.
6. 	For some unexplained reason, his matter was not recalled for 8 months until 27 February 2023 when sentencing was rescheduled before the Chief Justice on 7 March 2023.  Sentencing however did not proceed that day because a presentence report had not been prepared.  It was further adjourned to 6 April 2023.
7. 	On 28 March 2023 however, Mr Koria sought and was granted leave to withdraw as counsel. Further the Chief Justice directed the Registrar to appoint new legal aid counsel.  Mr Brunt is that new counsel.
8. 	He filed an application dated 19 June 2023 to vacate the accused’s guilty plea relying on s54 of the long repealed Criminal Procedure Act 1972.  The application was opposed by prosecution and following the hearing on 18 July 2023 and discussion with both counsel on 21 July 2023, leave was granted to the accused to file an amended application and supplementary affidavit in support.
9. 	That amended application is dated 26 July 2023. The accused’s supplementary affidavit in support was sworn the same day.
Accused’s Application
10. 	The grounds of the accused’s amended application are:
(a) 	he was under a mistaken belief or misunderstanding that he would be released from custody if he changes his not guilty plea to a guilty plea;
(b) 	he might have been under considerable pressure to vacate his not guilty plea and enter a guilty plea;
(c) 	he maintained his innocence in the presentence report suggesting that he never vacated his guilty plea;
(d) 	the charges are the result of false accusations by his wife who is having an extra marital affair with her sister’s husband;
(e) 	the accused be given the opportunity to defend the charges.  
11. 	In his affidavit, the accused deposed that he was under considerable pressure to change his not guilty plea and was assured that if he changed pleas to guilty, he would be released from custody.  Further he says that the allegations are false and fabricated by his wife and the husband of her sister who are having an extra marital affair. As to admissions he made under caution, he explains that he was admitting to being brought and charged under a complaint by his wife and children (‘ioe o lea ua aumai ma molia a’u e lo’u toalua ma la’u fanau i le tulafono’) but not the allegations.  He adds that his wife and children have visited him in custody, had apologised for the false accusations and told him they would be seeking his release from custody.
Prosecution’s Opposition
12. 	Prosecution opposes the accused’s amended application on the same grounds in its original notice of opposition dated 26 June 2023:
(a) 	the accused pleaded guilty to the charge;
(b) 	the accused made no mistake when pleading guilty to the charge;
(c) 	there is no defence;
(d) 	it is not in the interests of justice to vacate his guilty plea. 
13. 	Prosecution filed affidavits from four deponents – the accused’s wife D1; their son D2; the accused’s wife’s younger sister D3; and her husband D4.
14. 	D1 and D2 deny that they visited the accused in custody together. They confirm however visiting the accused at [village] whilst on bail on request by D2 because he wanted his parents to apologise to each other and remain on good terms whatever the outcome of the charges against the accused. D1 denies that she visited the accused at Tanumalala and further denies telling him that the accusations against him are false.  She also denies anything had happened between her and her sister’s husband.
15. 	D3 and D4’s affidavits essentially deny there was any extra marital affair between D4 and the accused’s wife D1.
Relevant Law
16. 	Section 72 Criminal Procedure Act 2016 relevantly provides:
	“(1) A plea of guilty may, by leave of the Court, be vacated at any time before the defendant has been sentenced or otherwise dealt with
	(2) No guilty plea may be vacated unless the Court is satisfied that:
	(a) the defendant has not really pleaded guilty; or
	(b) there has been some mistake; or
	(c) there was a clear defence.
	(3) Subsection (2) is subject to the overriding discretion of the Court to act in the interests of justice.”
17. 	In Police v Viliamu [2008] WSSC 74 (8 September 2008), Sapolu CJ said of the principles applicable to the exercise of the Court’s discretion to allow an accused who has pleaded guilty to a charge to withdraw his guilty plea before sentence and substitute it with a not guilty plea as follows:
	“ … The guiding principle is whether the interests of justice require that an accused who has pleaded guilty to a charge should be granted leave to withdraw his plea of guilty and substitute it with a plea of not guilty.  Situations where such leave may be granted include where the accused has not really pleaded guilty, where the accused was under a mistake or misunderstanding as to what he was pleading to, where there is a clear defence, or where considerable pressure was put on the accused to plead guilty contrary to his wishes.  These are only examples of the interests of justice test: Onosai Nofoaiga v Police [2007] WSCA 3.”
	(see also Police v Mafuao Gaia [2000] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13; Kereti Tulitoa v Police [2006] WSSC 13)
Discussion
18. 	Under grounds (a) and (b), the accused claims that he was under a mistaken belief/misunderstanding that he would be released if he pleaded guilty; and he was pressured to do so.  He does not explain in his affidavit what considerable pressure he was under and from whom, but simply mentions being told by counsel that if he admitted the charges he would be released from custody.  I find that claim difficult to accept because the record clearly shows that he had always been out on bail and was remanded in custody only upon vacating his not guilty pleas and entering guilty pleas to the two charges of sexual violation by rape.
19. 	On the other hand, prosecution argues that the accused had the benefit of being represented and advised by senior counsel, he was present when the application was made on 29 June 2022, and the charges were translated again to him to confirm his change of pleas.
20. 	Whilst easy to understand the force of prosecution submission and not be satisfied that the accused has not really pleaded guilty, I consider significant that despite the lack of detail in the accused’s claims of being pressured and offered assurances upon changing pleas, prosecution have not provided any affidavit evidence to dispute them.  
21. 	The accused further claims under grounds (c) (d) and (e) that the accusations resulting to the charges are false, he denies the allegations and should be given the opportunity to defend the charges.
22. 	The accused was never denied the opportunity to defend the charges.  The opportunity was waived on his own application.  His suggestion that the motive behind the false accusations is an extra marital affair between his wife and her sister’s husband is also denied by the affidavit evidence of D1, D3 and D4. As to his defence, prosecution argues that the accused is simply now denying the allegations and has not made out a positive defence. His cautioned statement also contains several admissions.
23. 	Despite the admission by the accused I find in view of the explanation in his affidavit, his subsequent denial in the presentence report, and his claims of being under pressure to change pleas which prosecution have not provided evidence to refute, that it would be in the interests of justice that leave be granted to withdraw his guilty pleas.  	 
 Result
24. 	For the above reasons, I decided to grant the application by the accused and made orders referred to above. 
JUSTICE ROMA