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Pauga v Police (CA07_24) [2025] WSCA 2 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Pauga v Police (CA07_24) [2025] WSCA 2 (19 June 2025)


Case name:
Pauga v Police (CA07_24)


Citation:


Decision date:
19 June 2025


Parties:
TALALELEI PAUGA (Appellant) v POLICE (Respondent)


Hearing date(s):
9 June 2025


File number(s):
CA07/24


Jurisdiction:
Court of Appeal – CRIMINAL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young
Hon. Justice Roma


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
We are satisfied for these reasons that Mr Pauga’s substantive grounds of appeal had no merit.


Representation:
Ms. J. Fuimaono-Sapolu & I. Sapolu for the Appellant
Mr. M. Alai for the Respondent


Catchwords:
Conspiracy to murder – pre-trial appeal


Words and phrases:
“application by appellant for presiding judge to recuse from conducting proceedings”


Legislation cited:
Criminal Procedure Act 2016, s. 172;
Constitution of the Independent State of Samoa 1960, Art. 9.


Cases cited:
Craig v Banks [2012] WSSC 49;
Reupena v Senara [2017] WSCA 1;
Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35 (Saxmere (No 1)).


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


TALALELEI PAUGA


Appellant


AND:


P O L I C E


Respondent


Hearing: 9 June 2025


Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young

Hon. Justice Roma


Appearances: Ms. J. Fuimaono-Sapolu for the Appellant

Mr. M. Alai for the Respondent


Judgment: 9 June 2025


Reasons: 19 June 2025


JUDGMENT OF THE COURT

Introduction

  1. We dismissed this application for leave to appeal brought by the appellant, Talalelei Pauga, against a pre-trial ruling of Tuatagaloa J when it was called in open Court on 9 June 2025. We were satisfied that this Court has no jurisdiction to hear an appeal against a decision by a Judge declining to recuse herself from presiding over the subject criminal proceedings. Our brief reasons for that decision follow, and should be read in conjunction with our reasons for judgment given contemporaneously in a separate appeal brought by Mr Pauga in CA 18/23.
  2. Mr Pauga is charged that with three others he conspired to murder a prominent Samoan political figure. Mr Pauga was first charged in early 2020 and in his absence from Samoa in Australia a warrant for his arrest was issued shortly afterwards. However, it was not until September 2023 that he was extradited from Australia to Samoa and formally charged. Mr Pauga has pleaded not guilty and is now on bail awaiting trial before a judge and assessors.
  3. Mr Pauga is the sole defendant awaiting trial. One of his alleged co-conspirators has pleaded guilty and was sentenced to a term of imprisonment. The two other alleged co-conspirators were found guilty at trial, convicted and also sentenced to terms of imprisonment.
  4. In December 2023 Justice Tuatagaloa was assigned to conduct Mr Pauga’s criminal proceedings in the Supreme Court including trial and all associated interlocutory issues. In January 2024 Mr Pauga applied for the Judge to recuse herself from any further participation in his proceedings on the ground of apparent or apprehended bias. As a result, the special fixture allocated for Mr Pauga’s trial to commence on 18 March 2024 was vacated and has since been indefinitely adjourned. The Judge dismissed Mr Pauga’s recusal application. Mr Pauga appealed to this Court.

Jurisdiction

  1. Section 172 of the Criminal Procedure Act 2016 governs the right of appeal from the Supreme Court to this Court against a pretrial order or refusal to make an order as follows:
  2. This provision strictly proscribes Mr Pauga’s rights of pre-trial appeal. His counsel, Ms Fuimaono-Sapolu, did not argue that this appeal falls within any of the five discrete categories provided by s 172 (1) on which an appeal exists as of right. Instead she submitted that Mr Pauga’s appeal comes within s 172 (2) as being against “a refusal to make an order for further particulars of any matter which is the subject of any information”.
  3. Ms Fuimaono-Sapolu’s submission violates the plain meaning of s 172 (2). A Judge’s refusal to recuse herself could not possibly be described as a refusal to make an order for further particulars of an information. They are two very unrelated subjects. We confirm our refusal to grant leave to appeal in this case.
  4. In any event we are satisfied that the substantive grounds of appeal were without merit for these brief reasons.

Legal Principles

  1. Mr Pauga’s application for recusal in the Supreme Court proceeded on a number of grounds. In addressing those grounds, Tuatagaloa J correctly adopted what she described as well settled legal principles for determining an assertion of apparent bias. The Judge was required to apply the objective standard of the fair minded and informed observer fully conversant with all the relevant circumstances: the question is whether that reasonable observer would have perceived a real (not remote) possibility of bias such as required the Judge to recuse herself.[1] The answer involved this two-step inquiry[2]:

Grounds for Recusal

  1. Tuatagaloa J dismissed each of the five grounds of apparent bias argued before her. We shall discuss only those which featured in argument before us. Ms Fuimaono-Sapolu wisely did not pursue what she identified as Mr Pauga’s primary ground of appeal that five alleged factual errors in the judgment themselves gave rise to an apprehension of bias. Those errors, if they were made, were individually and collectively trivial and irrelevant to the issue of apprehended bias.
  2. First, it was submitted that Tuatagaloa J was privy to information held in confidence which may be prejudicial to Mr Pauga’s defence. That information was said to have been derived from the Judge’s determination of a bail application made by two of the co-conspirators, Lema’i Faioso and Malele Paulo. Tuatagaloa J dismissed this submission because the information related solely to a bail application made by the two other co-conspirators. The Judge explained that the prosecution provided the information in confidence due to an ongoing police investigation which was considered sensitive at the time and its disclosure in Court may have caused cause harm to others and hindered the police investigation[2]. The protection of confidentiality was lifted once the police had completed their investigations. Moreover, the Judge noted that the two co-conspirators had been convicted and sentenced in March 2023, whereas Mr Pauga was not formally charged until 1 September 2023 on extradition to Samoa
  3. Ms Fuimaono-Sapolu advanced a variation on this argument in the Supreme Court by submitting that Tuatagaloa J showed apparent bias by failing to disclose until delivery of her judgment[3] the reason why she held this information in confidence. The complaint is made that the Judge should have disclosed this reason at the hearing to give counsel an opportunity to make submissions. It is submitted that this reason was known only to the Judge and not the fair minded observer.
  4. This submission confused two distinctly different states of mind and is misconceived. Moreover, the Judge’s explanation was of an historical event and not one on which submissions were required on a recusal application. And the information acquired by the Judge could not possibly give rise to a perception of bias given that it related to a distinctly different issue from the substance of the conspiracy charge.
  5. Second, it was submitted that the Judge’s earlier dismissal of applications to disclose certain documents gave rise to a perceived risk to Mr Pauga’s right to a fair trial.[4] The applications were for the sentencing notes of one of his alleged co-conspirators and the transcript of evidence at trial of the other two alleged co-conspirators. Tuatagaloa J had declined those applications on the ground that they were not relevant to Mr Pauga’s separate trial. The Judge was not satisfied that there was any causal relationship between these decisions and her ability to bring an impartial mind to the substantive hearing.
  6. While we agree with Tuatagaloa J that this ground could not give rise to an arguable perception of bias, we are satisfied that in the interests of justice Mr Pauga should be entitled to access to the evidential transcripts of his alleged co-conspirators trial to enable him to prepare an effective defence for trial. We understand while his counsel has copy, Mr Alai has undertaken to make the transcript formally available.
  7. We are satisfied for these reasons that Mr Pauga’s substantive grounds of appeal had no merit.

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE ROMA

[1] See Judgment at [11], following Nelson J in Craig v Banks [2012] WSSC 49 (11May 2012), and citing Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35 (Saxmere (No 1)). We note that while the Judge correctly articulated the risk of a perception of a real (not remote) possibility of bias, the passage cited from Craig v Banks used the language of a real danger of bias. This Court in Reupena v Senara [2017] WSCA 1 has since the decision in Craig v Banks confirmed that the required perception is of a perceived real (not remote) possibility, not a real danger.
[2] see Reupena v Senara at fn1 above at [6] and [7]
[2] At [16] and [17].
[3] At [17]
[4] Article 9 of the Constitution.

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