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Police v Lemuelu [2026] WSSC 2 (20 February 2026)

IN THE SUPREME COURT OF SAMOA
Police v Lemuelu [2026] WSSC 1 (20 February 2026)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FAASAU ELIKI LEMUELU a.k.a PESA LEMUELU

Defendant

Counsel: R Fong for Prosecution

Q Sauaga for Defendant

Hearing: 26 November 2025
Ruling: 20 February 2026

RULING OF TUATAGALOA J
(Application for Judge Alone – Section 125)

The Proceedings

1. By consent of counsels, rather than adjourning to await the Court’s ruling on the application for a judge-alone trial, the hearing proceeded on a judge-alone basis while the Court reserved its ruling. This is that ruling.

The Application for Judge-Alone

2. The Prosecution opposes the application on the grounds that:
   • (i) the notice was outside section 125(1) timeframe;
   • (ii) no application was given for the delay; and
   • (iii) no prejudice from an assessor trial was identified.

The Prosecution submits “within 28 days before” requires lodgment no later than 28 days prior to the trial date.

3. The defense submits the application was within time because computation should be performed by counting backward from the trial date; that no delay needing explanation arises; and that s 125 does not require the defendant to provide reasons why an assessor trial would be prejudicial.

Background

4. The defendant is charged with one count of sexual connection under section 58(1) of the Crimes Act 2013 with penalty of maximum life imprisonment. He was 13 years old at the time of the alleged offending and is a young person under section 2 of the Young Offenders Act 2007. His matter was first called in the Youth Court on 26 February 2025; he entered a ‘not guilty’ plea on 19 March 2025 and was referred to the Supreme Court on 16 April 2025 pursuant to section 5(3) of the Young Offenders Act 2007.
5. On 9 June 2025, the young person appeared in the Supreme Court, maintained his not guilty plea, and the matter was set for hearing to the 14 October 2025. Under section 6 (2) of the Criminal Procedure Act 2016, an offence punishable by life imprisonment is to be tried by a Judge sitting with 5 assessors.
6. Due to electoral petitions, all Supreme Court hearings from September to mid-November 2025 were vacated to allow the Supreme Court to sit as an Electoral Court in accordance with section 115(8) of the Electoral Act 2019.^[1] At call-overs on 20 November 2025, this matter originally set for 14 October was reset for hearing on 24 November 2025 and then 1^{st &} 2^nd December 2025. On the same day, 20 November 2025, defense counsel filed an application for trial by Judge alone.
7. It is sufficient to say that no application/notice for judge-alone was filed between 16 April 2025 and 19 November 2025.

The Issues

8. The primary issue for determination is the proper computation of time under section 125 (1) of the Criminal Procedure Act 2016 The Court must decide what is required by the words “.... within 28 days before the date on which the defendant is to be tried...” in relation to the timing of a defendant’s notice electing trial by Judge alone.
9. A secondary issue arises from the statutory exception in section 125(7), which permits notice to be filed “before or immediately after” the defendant is committed for trial. The Court must consider the scope of this exception, including whether “being committed for trial” refers to the stage of referral and committal in the lower court, or to the fixing of the trial date in the Supreme Court. This inquiry sits alongside the broader discretion under section 125(4) to refuse an application where it would not serve the interests of justice.
10. The Court addresses these issues as follows:
    • (i) The Statutory Framework;
    • (ii) The computation of time in section 125(1);
    • (iii) The interests of justice in section 125(4); and
    • (iv) The scope of the exception in section 125(7).

Statutory Framework

11. Section 6 of the Criminal Procedure Act 2016 provides that trials in the Supreme Court are to be by Judge alone, except that a defendant charged with an offence punishable by life imprisonment is to be tried by a Judge sitting with five assessors. Such a defendant may, however, under section 6(3) apply under s 125 to be tried before a Judge alone.
    • 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.
    • (4) Subsection (2) does not apply if the defendant is charged under the Narcotics Act 1967.
12. Section 125 provides the procedure for a defendant to elect trial before a Judge sitting alone rather than before a Judge with assessors. The defendant must submit a written notice to the Registrar of the Supreme Court within 28 days before the trial date or, as an exception, before or immediately after being committed for trial. The Registrar must then forward the notice to the prosecutor and refer the matter to a Judge. The Judge will decide whether the trial will proceed before a Judge sitting alone or with assessors, based on the interests of justice. If multiple defendants are involved, they will be tried with assessors unless all defendants request a Judge-alone trial.
    • 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 2 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.
    • (6) A notice purporting to be given under this section on behalf of the defendant by the defendant’s lawyer is, unless the contrary is proved, to be treated to be given with the authority of the defendant.
    • (7) As an exception to subsection (1), a defendant may give notice under that subsection before or immediately after the person is committed for trial.
13. Section 46^[2] of the Acts Interpretation Act 2015 governs computation of time, including that a period described as ending before a stated day excludes the stated day (s 46(5)), and a reference to a number of days between two events excludes the days when the events happen (s 46(6)).
    • 46. Determining time - (1) This section applies to:
    • (a) a period of time mentioned in an Act; and
    • (b) things required or allowed to be done on a particular day or within a particular period of time under an Act.
    • (2) A period of time described as beginning at, on or with a stated day; act or event includes the stated day or the day of the stated act or event.
    • (3) A period of time described as beginning from or after a stated day, act or event excludes the stated day or the day of the stated act or event.
    • (4) A period of time described as ending at, by, on or with, or as continuing to or until, a stated day; act or event includes the stated day or the day of the stated act or event.
    • (5) A period of time described as ending before a stated day; act or event excludes the stated day or the day of the stated act or event.
    • (6) A reference to a number of days between 2 events excludes the days when the events happen.
    • (7) If something must or may be done on a particular day or within a particular period of time and the day, or the last day of the period, is not a working day, the thing must or may be done on the next day that is a working day.

Computation of Time Under s125(1)

14. The general rule for computing statutory time periods is that the calculation excludes the specific day on which the relevant act or event occurs. This principle is reflected in both case law and section 46 of the Acts Interpretation Act 2015. For example, Davison J in Body Corporate 166208 v Temple 88 Ltd [2016] NZHC 848; [2016] NZAR 928 (HC) observed that statutory wording often operates to exclude the day of the triggering event when counting time:
    • “... the concept of providing a number of clear days can be met by employing the language referred in is s 35(5) and stipulating that seven days (or at least seven days) notice must be given between the giving of the notice and the event to which it relates ... Moreover, I consider that s 35(5) should not be found to apply simply because there are two identifiable dates, being the day upon which an action is taken and a day upon which an event is to occur. Whilst different possible interpretations are in theory available, the provisions of the Interpretation Act operate to create a statutory regime that specifically excludes counting the day of the event...”
    • (s35(5) equivalent is s46(6) - A reference to a number of days between 2 events excludes the days when the events happen.)
15. Section 46 of the Acts Interpretation Act 2015 distinguishes between periods beginning “at, on or with” a specified day (which includes that day) and those beginning “from or after” a specified day (which excludes that day). In the present context, the phrase “within 28 days before the date on which the defendant is to be tried” describes a period that ends before a stated day (the trial date). Section 46(5) therefore excludes the trial date from the computation.
16. Applied to section 125(1), the 28-day period is therefore counted forward from the date the trial is set, and it must expire before the actual trial date. The notice must therefore be filed no later than 28 days prior to the trial. Filing an application closer to the trial date falls outside the statutory timeframe.
17. The defense submits an alternative method of computation: to count backwards from the trial date so that any application filed within 28 days prior to trial would be valid. However, this interpretation would render the 28-day requirement meaningless, as virtually any application filed before the trial date—even on the eve of trial—would fall “within 28 days” when counted backwards. Such construction is inconsistent with the statutory purpose.

Purpose of Section 125

18. The purpose of section 125(1) 28-day requirement is to ensure orderly trial management, procedural fairness, and adequate notice to the prosecution and the Court. The Registrar must notify the prosecutor immediately upon filing and refer the matter to a Judge. These steps presuppose that the notice is filed sufficiently early for the process to operate effectively. A backwards-counting approach undermines the scheme of the Act.

What is considered to be “in the interests of justice”? - s125(4)

19. Pursuant to section 125 there is a presumption in favor of a trial by judge-alone, but such a presumption may be rebutted where the interests of justice so require. This balances the defendant’s right to elect with the Court’s duty to safeguard fairness and public confidence.
20. Section 125(4) presupposes that a valid notice has been lodged under section 125(1) or (7). If the notice is out of time and not saved by section 125 (7), section 125(4) is never triggered.^[3] Once a valid notice is referred, the Judge must order a judge-alone trial unless the interests of justice require trial with assessors.
21. Although s 125 does not list factors, the phrase “interests of justice” is a well-established judicial standard. It is context-specific, flexible, and aimed at ensuring fairness, integrity of proceedings, and public confidence.

Section 125(7) Exception: “Before or Immediately After”

22. While section 125 (1) establishes the timing requirement (notice within 28 days before trial), section 125 (7) provides a limited exception, allowing the defendant to give notice either before or immediately after being committed for trial. The words “Immediately after” must be interpreted narrowly; it does not encompass a delay of several months. ^[4]
23. It is necessary to distinguish between committal and being committed for trial. Committal is the formal stage in criminal procedure where the lower court—typically the District Court or Magistrate’s Court—commits the defendant to stand trial in the Supreme Court. It is not the point at which a plea of not guilty is entered. In the context of section 125(7), the words “being committed for trial” are best understood as referring to the stage when the defendant first appears in the Supreme Court and a trial date is formally fixed.
24. The statutory language “before or immediately after the person is committed for trial”, is designed to ensure that defendants are not barred by the strict 28-day rule if they act promptly at the committal stage in the lower court or when the trial is fixed. It does not permit indefinite delay or filings months later.
25. In this case, trial dates were reset due to electoral petitions with fixtures set for 24 November 2025 and 2 December 2025. A notice filed on 20 November 2025 was, respectively, four or twelve days before trial. In either scenario, the notice was outside the 28-day period required by s 125(1) and did not fall within the narrow exception contemplated by section 125(7).

Conclusion

26. The Court has considered the statutory framework of section 125 of the Criminal Procedure Act 2016, the principles of time computation under the Acts Interpretation Act 2015, the purpose of the 28-day requirement, the discretion under section 125(4), and the narrow exception in section 125(7).
27. The computation of time under section 125(1) according to section 46(5) of the Acts Interpretation Act 2015 requires the notice to be filed no later than 28 days before the trial date, calculated forward and excluding the trial date itself. A backwards-counting approach would undermine the statutory purpose and cannot be adopted.
28. The exception in section 125(7), permitting notice “before or immediately after” committal, is to be interpreted strictly. It does not encompass delays of several months. In this case, the notice filed on 20 November 2025 was neither within the 28-day period prescribed by section 125(1) nor within the narrow exception contemplated by section 125(7).
29. Section 125(4) is only engaged once a valid notice has been filed. As the present notice was out of time and not saved by section 125(7), the discretion under section 125(4) does not arise.
30. Section 125 does not impose any obligation on the defendant to demonstrate that trial before assessors would be prejudicial. The statutory framework is confined to the criteria of timeliness under subsection (1) and the overarching interests of justice under subsection (4). The application is therefore to be assessed solely against those statutory requirements.
31. Overall, an application for trial by judge alone may fail in two principal respects:
    • (i) Late Filing (s125(1))

Where the notice of application is lodged outside the prescribed 28-day period following the defendant’s first appearance, the application is invalid unless the court grants leave to extend time.

(ii) Interests of Justice (s125(4))

Even if filed within time, the Court retains discretion to refuse the application if granting it would not be consistent with the interests of justice.

JUSTICE LEUTELE M TUATAGALOA

^[1] Section 115(8) of the Electoral Act 2019 – the Court shall give priority to electoral petitions over all matters which are not petitions.

^[2] Section 46 mirrors section 35 of the New Zealand Interpretation Act 1999

^[3] Section 125(4) only comes into play after a valid notice has been given under subsection (1) or (7).
^[4] There is difference in the words used in s125(1) - within 28 days before the date on which the defendant is to be tried; s125(7) it is - before or immediately after the person is committed for trial.