Viliamu v Police [2009] WSCA 5 (1 May 2009)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN:

SAWEJ VILIAMU
aka SAUESI VILIAMU
Appellant

AND:

POLICE
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Hansen

Hearing: 28, 29 April 2009

Counsel: L T Malifa for appellant
P Chang and for respondent

Judgment: 1 May 2009

JUDGMENT OF THE COURT

This appeal was listed for Tuesday 28 April 2009. It was appeal against the Chief Justice’s refusal of the appellant’s application to change his plea.

At the commencement of the appeal we brought to the parties’ attention an endorsement on the Court file which read:

"ODCA – guilty plea vacated N/G remanded to 8/5/08. Callover to set new date FH.

Vaai J

5/5/08"

We are told that the process adopted in Court is for the associate to take down the Judges actual words which are later transcribed. They are then entered into a document and records the days activities and is ultimately singed by the Judge. In this case the record reflects the above notation but is not signed by the Judge.

Given that the Attorney opposed the application such an endorsement struck us as unusual. However Mr Malifa asserted in Court that these were the words used by the Judge. Accordingly, we adjourned the matter to Wednesday 29 October for the matter to be further investigated. By the time the Court reconvened we had received an affidavit of Ms. Leone Su’a-Mailo. She was the senior staff solicitor who appeared before Vaai J on the 5th of May. In brief she states that on 5 May both parties had filed their submissions and the matter was adjourned to the 8th of May to fix a hearing date. Essentially her position was that the record was in error.

However, Mr Malifa persisted in his position that he asked Vaai J to grant the appellant’s application and the Judge made the order sought. We have had the proceeding in front of us transcribed. At page 3 of the transcript the Court put to Mr Malifa:-

"... you have told us Mr Malifa, and you were there, you made this application, Vaai J granted your application. Correct?"

Mr Malifa replied::-

"That was my understanding and I mentioned that to the Chief Justice when the case was to be called at callovers to set a hearing date"

The matter was then adjourned to 29 October. By that time the officer court staff had located the relevant tape. We received the tape and had it transcribed. Where ............states:-

Malifa	Your Hon I act for Mr Viliamu Sawej in this matter. Your Hon I filed the notice of motion and affidavit to vacate the guilty plea so the office of the Attorney General filed an opposition and request a date for the hearing of the application
Vaai J	Ms Su’a do you confirm that?
Ms Su’a	yes yr Hon, prosecution have already filed an affidavit as well as the submission towards the application filed by my learned friend
Vaai J	this is a half day matter right? I’m available on Friday next week
Malifa	yr Hon I have a land and titles court matter
Vaai J	right, well can we adj it to this Thursday to call overs to set the date
Malifa	thank you your Hon
Ms Su’a	as Yr Hon pleases
Vaai J	the defendant is then remanded towards this Thursday to set a hearing date.
Malifa	as yr Hon pleases
Vaai J	yes thank you
Ms Su’a	as the Court pleases
Vaai J	thank you

It is common ground that the voices on the tape are those of Vaai J, Mr Malifa and Ms Su’a. That transcript makes it plain truth Mr Malifa did not seek an order on the appellant’s application from Vaai J and nor did the Judge grant it.

Mr Malifa persisted in making this misleading allegation to the Court. This is a grave matter and strike at the administration of justice. We therefore direct the registrar to forward a copy of this judgment to the President of the Samoa Law Society. We have annexed to this judgment the relevant transcript.

JUSTICE BARAGWANATH
JUSTICE FISHER
JUSTICE HANSEN