Nofoaiga v Police [2007] WSCA 3; CA 07 OF 2007 (14 September 2007)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN:

ONOSAI NOFOAIGA
of Tafaigata, Prison.
Appellant

AND

THE POLICE
Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Salmon
The Honourable Justice Paterson

Hearing: 11, 13, 14 September 2007

Counsel: P Chang and K Koria for Respondent
TRS Toailoa for Appellant

Judgment: 14 September 2007

JUDGMENT OF THE COURT

[1] This is an appeal against conviction and sentence on 95 counts of theft as a servant and 65 counts of falsifying accounts. The appellant was sentenced by the Chief Justice to imprisonment for 4 ½ years. The appellant originally pleaded guilty to these charges but subsequently made two unsuccessful applications to vacate the guilty plea and replace it with a not guilty plea. In reality this appeal is against the denial of the change of plea applications.

Background

[2] During the period covered by the charges the Appellant was employed by Polynesian Airlines Ltd as a supervisor/senior accounts clerk in the accounts receivable section of its finance division. His employment was terminated on the 31st July 2002. In November 2002 he was charged with a total of 193 counts of theft as a servant and of falsifying accounts. He pleaded not guilty to those charges. When the matter came up for hearing the respondent withdrew 33 of the charges. After consultation with his counsel and on his counsel’s advice the appellant then changed his plea and pleaded guilty to the remaining charges. The summary of facts prepared for the sentencing showed the total amount involved to be $183,604.63 covering a period commencing in December 1998.

[3] When the appellant appeared for sentencing his counsel informed the Court that the appellant wished to withdraw his pleas of guilty and re-enter pleas of not guilty to the remaining charges. The matter was adjourned to enable a formal application to be made supported by affidavits. That application was filed on 6th May 2004. The grounds of the application were that the appellant was following the instructions of his supervisor; that he had no intention to steal from or defraud his employers; that he did not take or use the monies in question and that he had defences to the charges. His affidavit alleged that the accounts had been audited by another employee, that his supervisor was responsible for checking the annual financial report and that no discrepancies had been found in those procedures. The affidavits in reply alleged that the audits were based on the information supplied by the appellant. Other allegations were made by the appellant and denied by deponents called on behalf of the prosecution.

[4] Further affidavits were filed on behalf of the appellant and the respondent and because of the conflicts arising in the evidence the parties were required to call the deponents for cross-examination. There was a hearing before the Chief Justice on 6th September and 18th October 2004 followed by written submissions. The Chief Justice gave judgment on the 8th November and dismissed the application. The Chief Justice concluded that he could see no clear defence to any of the charges against the appellant. Where there was a conflict in the evidence he preferred that of the witnesses for the prosecution. The matter was adjourned to the 15th November 2004 for sentencing.

[5] Sentencing did not proceed on the 15th November and on the 29th of that month a further application for change of plea was made. This application added two further grounds. They were an allegation that the prosecution had insufficient evidence to prove its case and that pursuant to Article 9 of the Constitution Act 1960 it was in the interests of justice that the appellant be allowed a defended hearing. Again affidavits were filed by both sides. It seems that the application was not heard until February 2007. On the 10th April 2007 the Chief Justice gave a brief ruling to the effect that he was still not satisfied that the accused had not really pleaded guilty or that there had been a mistake or that there was a clear defence. He dismissed the application. The appellant was sentenced on the 15th June 2007 and this appeal followed.

[6] It should be noted that Mr Toailoa who appears for the appellant did not act for him until he filed this appeal. The appellant was represented by Mr T.V. Eti at all other stages of these proceedings.

[7] Two further events have occurred on which the appellant places reliance. On the 17th December 2004 this Court upheld an appeal by Nile Malote a senior accounts receivable clerk with Polynesian Airlines. Mr Malote was charged with offences of making wrong postings with intent to defraud and was convicted after a hearing. The present appellant was his supervisor. On appeal various criticisms were made by counsel and accepted by the Court relating to inadequacies in the prosecution evidence. On the 26th April 2006 this Court upheld an appeal by Fa’afetai Eteuati another clerk in the present appellant’s division at Polynesian Airlines. She too had been convicted after trial. Again criticisms were made of the chain of proof which were accepted by the Court. Mr Toailoa acted for the successful appellants in each of those cases.

The Submissions in this Court

[8] Mr Toailoa submitted, and we accept that the proper test to apply on an application for change of plea before conviction is that set out in the New Zealand Court of Appeal decision of R v Ripia [1985] 1 NZLR 122. This test has been adopted in Samoa – see Police v Gaia and Police v Maina Sio, both decisions of the Chief Justices given on the 11th February 2000 and 16th May 2000 respectively. The approach approved in Ripia is accurately recorded in the headnote of the report:

"An accused who has pleaded guilty on arraignment may withdraw his guilty plea at any time before sentence with permission granted at the discretion of the Judge. The grounds on which a Judge may allow a change of plea before an accused has been sentenced are not so restricted as the grounds on which a change of plea will be allowed after an accused has been sentenced. An application for a change of plea at the pre-sentence stage of proceedings should be decided on the broad principle of whether it is required in the interests of justice, because of a mistake or misunderstanding, or for some other reason. In such a case no question of appeal against conviction arises."

[9] The appellant’s first ground of appeal was that the Chief Justice had applied the wrong test. This submission was based on the fact that in his first judgment the Chief Justice set out the test from Ripia but then followed it with a more limited test which the authorities suggest is appropriate in cases of applications for change of plea made after conviction. The restricted test gives three grounds on which the Courts discretion will be exercised. They are, where the Court is satisfied that:

(1) the accused has not really pleaded guilty,
(2) there had been a mistake, or
(3) there is a clear defence.

[10] It is important to note that the Chief Justice immediately went on to record (accurately) that the grounds in the application amounted to a claim that the appellant had a clear defence. We do not think that the Chief Justice in fact applied the wrong test. The three examples he set out included the one on which the appellant relied. It was an example of the interests of justice test. The second application added two further grounds which are the subject of other submissions.

[11] The second and third grounds of appeal claim that the refusal to grant leave violated article 9 of the constitution in particular:

(1) The defendant’s right to have the charges against him heard (Article 9(1) )
(2) The presumption of innocence (Article 9(3) )
(3) To examine or have examined witnesses against him (Article 9 (4)(d) )

Mr Toailoa, referred to Article 2 which provides that the constitution is the Supreme law of Samoa. Clearly the appellant has the rights referred to. He also has the right to waive those rights which he did by pleading guilty. We do not accept the submission that once a person who has pleaded guilty changes his or her mind the Constitution requires that the Court must automatically grant leave for him to do so. Unsurprisingly Mr Toailoa was unable to refer to authority in support of his submission.

[12] The fourth ground of appeal claims that the Chief Justice failed to take judicial notice of the two Court of Appeal decisions referred to earlier in this judgment: Mr Toailoa submitted that the evidence which the prosecution would have relied on would have been essentially the same as that tendered in those cases. This is an extraordinary submission. It has nothing to do with the issue of whether the appellant is innocent of the charges. In any case the respondent makes two points: first that the deficiencies of evidence in those cases would be met and secondly that it was the appellant’s obligation as supervisor to ensure that some of those deficiencies did not occur. The respondent submitted that the appellant was responsible for reconciliation of the accounts and should have picked up the errors which were occurring. Indeed his failure to do so created a strong inference that he knew what was going on. Furthermore the respondent points to evidence of confessions made by the respondent to other senior members of the staff of Polynesian Airlines.

[13] The final ground of appeal is that no prejudice would be caused to the prosecution by the granting of the appellant’s application. This may be so but that does not provide justification for doing so.

[14] We have carefully considered the affidavits filed by the appellant in support of his applications together with those filed on behalf of the respondent. Counsel for the appellant made no analysis of the affidavits to establish that evidence existed which indicated the appellant had a defence to any one or more of the charges. We have undertaken a degree of analysis and so far as we can tell, with one exception, the points raised by the appellant have been satisfactorily answered by the affidavits and submissions of the respondent. The exception relates to two charges which are said to relate to offences on a date after the appellant had been dismissed and had left the company. No satisfactory explanation was given by the respondent as to how the appellant could be guilty of these charges. Referring to the statement of facts they are no. 94 of the theft charges and no. 64 of the falsifying accounts charges. With this exception we are not persuaded that the Chief Justice was wrong in declining the application.

[15] At a late stage of the hearing Mr Toailoa applied for leave to amend his grounds of appeal and to file a further affidavit by the appellant. He wishes to add the following ground:

"That the Appellant’s guilty plea was involuntary or based on a mistaken belief."

The new evidence relates to advice given by previous counsel. We set out paragraphs 2, 3, 4 and 5 of his affidavit:

"2. THAT I am now being questioned by my present counsel regarding the circumstances of when my not guilty plea was withdrawn and substituted with a guilty plea. I had not disclosed these material matters to my present counsel because of the respect that I have for the dignity of office and traditional status of my previous counsel (as the holder of the Tuimalealiifano title one of the paramount chiefly title of Samoa, and as well as a current member of the Council of Deputies). However, after being present in Court today and hearing what had transpired between the Court and my present counsel, I now feel that I should now disclose the true facts.

3. THAT leading up to the withdrawal of my not guilty plea, I have been told by my then Counsel that he has been negotiating with Counsels for the prosecution and that the prosecution have identified a number of charges (totalling about $380,000) that they were prepared to withdraw, provided that I pleaded guilty to the remaining charges. When I sought his advice as to what we should do, my Counsel advised that I do not plead guilty.
   
4. THE day that my not guilty plea was withdrawn, was the day that the hearing was set to commence, before Mr Justice Vaai. I saw my counsel at his office that morning before we came to Court, and we came with the understanding that I would maintain my not guilty pleas. However, as we were sitting outside the Court Room (and about 10 more minutes before the Court commenced), my counsel suddenly suggested to me that I should plead guilty in order to make his task become less burdensome. He told me that if I were to plead guilty then the prosecution will withdraw the charges as they had indicated (totalling about $380,000). When that is achieved, then a subsequent application can then be made to have my guilty plea withdrawn and to re-substitute my earlier not guilty pleas.
   
5. I enquired of my counsel as to whether that was possible and my counsel advised me that we can always apply later to withdraw my guilty plea as there were sufficient evidence to support our defence. As he was my lawyer, I then accepted his advice."
   

[16] In the interests of justice we decided to accept this affidavit on condition that the appellant signed a waiver of privilege so that previous counsel could respond to it. A waiver was duly signed. We adjourned the proceedings to give counsel time to respond.

[17] Previous counsel Mr Eti has provided the Court with an affidavit. After referring to the history of this matter Mr Eti said:

12. WE entered into negotiations with the Prosecution prior to the next mention date at the initiative of the Prosecution through Counsel Helen Hunter-Betham, effectively plea bargaining. The Prosecution indicated they would withdraw 34 charges amounting to $278,000 provided we plead guilty to the rest of the charges, namely, 95 charges of Theft as a Servant and 64 Wilfully Falsifying Accounts – 159 charges. I mentioned this to the Appellant in the course of one of our conferences prior to 1 March 2004.
    
13. I recall that I explained to the Appellant at my office on the morning of 1 March 2004, prior to us coming to Court, that the withdrawal of 34 charges amounting to $278,000.00 (and not $380,000.00 as stated by the Appellant in his supplementary affidavit) would help reduce his alleged culpability and what he is being blamed for. I explained to him that it was, however, a condition that he should plead guilty to the rest of the charges. He mentioned that he still objects but if that is what needs to be done then let us do it. I advised him that we can make application to vacate the plea of guilty to the remaining charges, prior to sentencing. I recall he asked if that was possible and I advised him an application can be made later to change plea provided we have sufficient evidence to defend the matter. He agreed with that. We then proceeded to Court.
    
14. I deny the allegation by the Appellant that I only advised him the Prosecution will withdraw 34 charges total value of $380,000.00 and to plead guilty to the remaining charges outside the Court Room ten minutes before Court was about to start. As stated above, this all took place in my Office before we walked to Court together as my Office is only about 2-3 minutes walk to the Court.
    
15. I further deny his statement that I told him "we can always apply later to withdraw my guilty plea as there were sufficient evidence to support our defense". What I told him was we can apply to change our plea if we have sufficient evidence to defend the matter. At the time my assessment of the evidence especially what the Appellant had told me and perhaps what he had not told me, was insufficient to run a good defense.
    

[18] Both the appellant and Mr Eti were cross examined. The appellant was questioned as to why the explanation now given for his plea of guilty had not been mentioned in his affidavits in support of his change of plea application. His response was that he relied on his counsel for advice. He was also questioned about admissions he reportedly made to the Probation Officer. He maintained that the Probation Report was incorrect. He was asked by the Court whether previous counsel explained to him that a guilty plea was an admission of theft and could be used as an objection to a later application to change plea. The appellant said this had not been explained to him. He was asked what he meant by the statement in counsel’s affidavit at para 13 that "he still objects". His response was that there was a lot of hard evidence that could be provided in defence and that he was hoping the matter would go to trial.

[19] Mr Eti said in cross-examination that counsel for the Attorney General imposed the condition of a plea of guilty on the offer to withdraw some of the charges. In answer to a question from the Bench he said in relation to the comment in para 13 of his affidavit "that he (the appellant) still objects" that the appellant maintained his position that he did not commit the offences.

Mr Eti was asked whether he gave any warning of the consequences of a plea of guilty. He said that he pointed out that it would be difficult to vacate the plea after pleading guilty.

[20] On the basis of this new evidence Mr Toailoa submitted that the difference between the two affidavits was marginal and that it was clear that pressure was brought to bear on the applicant despite his maintaining his innocence.

[21] The major difference between the evidence of the appellant and that of Mr Eti regarding the events leading up to the guilty plea concerns the question of whether the appellant was warned of the consequences of a change of plea. We note that no reference to this vital issue appears in Mr Eti’s affidavit. Neither he nor Mr Toailoa are aware of any note made of this advice. We are left in a position of uncertainty as to whether this advice was given or, if it was, whether the appellant understood it.

[22] We conclude on the basis of this new evidence that there was considerable pressure on the appellant to change his plea. If he did so the prosecution would withdraw charges to a value of $278,000 leaving a balance involved in the remaining charges of around $180,000. Despite this offer his immediate reaction was reluctance to change his plea because he maintained his position that he did not commit the offences. He was advised that if he pleaded guilty he could later make an application to change his plea. We are uncertain as to whether he was warned of or at least properly understood the consequences of a guilty plea upon a later application for change. It is of crucial importance to the administration of justice that changes of plea as a result of a "plea bargain" be made by an accused with a full understanding of the consequences. There must be particular care to make it clear that an admission of guilt will create a major impediment to any later application to change plea. Counsel should record the advice given in such matters and have that record signed by the client. In this case we are concerned that an accused who exhibited an ongoing desire to maintain a plea of not guilty was persuaded to change his plea without full knowledge of the consequences.

Conclusion

[23] The evidence contained in the two affidavits referred to above and in cross-examination today has satisfied us that it is in the interests of justice that the appeal should be allowed and that the appellant should be permitted to plead not guilty to the charges against him. The convictions are set aside and the case is remitted to the Supreme Court for trial.

Honourable Justice Baragwanath

Honourable Justice Salmon

Honourable Justice Paterson