Sio v Police [2000] WSSC 5 (16 May 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

MAINA SIO
of Malotau, Manono.
Applicant

AND:

POLICE
Respondent

Counsel: T K Enari for applicant
T Potoi-Vaai for respondent

Hearing: 16 May 2000
Judgment: 16 May 2000

JUDGMENT OF SAPOLU CJ

In these proceedings the Court has to deal with an application for leave under section 54 of the Criminal Procedure Act 1972 to withdraw the plea of guilty the applicant had entered to the 51 charges of theft as a servant against him. The application was made after the applicant pleaded guilty but before sentence was passed.

The relevant facts may be stated as follows. The applicant together with four fellow-employees were jointly charged with 51 counts of theft as a servant. Only one of the accused was represented by counsel. The other four accused including the applicant did not want to be represented by counsel. On 31 January all accused pleaded guilty to the charges against them. Their case was then adjourned to 14 February for probation reports and sentencing. On that day the applicant and another accused with whom we are not concerned in these proceedings disputed receiving the total amounts with which they have been charged but they could not tell the Court how much each of them actually received. The case was then further adjourned for the prosecution to provide summaries of facts showing the actual total amount or an approximate estimate of the total amount each of the two accused received from their fraudulent activities as that may go to mitigation of penalty. The new summaries of facts do not provide the required information but state that the stolen monies were shared amongst the accused. The applicant continued to maintain that he did not receive the total amount with which he had been charged but much less. He also said that he wished to engage counsel. He was granted leave to engage counsel. Perhaps it was unfortunate that the accused could not give an estimate of how much he received to assist the Court for sentencing purposes but simply said he received much less.

Anyhow, after the applicant engaged counsel an application was filed to have the applicant’s plea of guilty withdrawn. The broad basis of the application is that it is in the interests of justice that leave be granted to the applicant to withdraw his plea of guilty and substitute a plea of not guilty to the charges. The specific ground of the application as I understand it from the submissions by counsel for the applicant is that it was not the accused but a co-accused who actually took the monies that were stolen from their employer. According to counsel for the applicant, all that the applicant did was to prepare false slips for empty bottles supposed to have been returned by customers which facilitated the actual stealing of the monies by the co-accused from their employer. The applicant would then be given only small portion of the stolen monies by his co-accused. The applicant also told the Court after he pleaded guilty but before he engaged counsel that he was involved in the alleged thefts but received only small portions of the stolen monies from his co-accused. In his sworn affidavits filed in these proceedings the applicant also says he often received monies from his co-accused after he had prepared fake empties slips and he suspected the monies were stolen from their employer. He also says in his affidavits that the false slips he prepared facilitated the thefts committed by his co-accused.

Now the 51 acts of thefts with which the applicant and his co-accused were charged took place over a period of 14 months from May 1998 to July 1999. The applicant over that period of time prepared false empties slips to facilitate the thefts of monies committed by his co-accused. His co-accused would give him monies from the monies that he (the co-accused) fraudulently took from their employer. These unlawful activities continued until the applicant and his co-accused were caught.

Counsel for the respondent in her well-prepared written submissions referred to a number of authorities which apply to the exercise of the Court’s discretion in an application for leave to withdraw a plea of guilty at the pre-sentence stage of proceedings. She also referred to a recent judgment of this Court in Police v Mafuao Gaia [2000] WSSC 3 (unreported judgment delivered on 11 February 2000) where this Court accepted that an application for leave to withdraw a plea of guilty at the pre-sentence of proceedings should be decided on the broad principle of whether it is required in the interests of justice because of some mistake, misunderstanding or for some other reason.

In considering the circumstances of this application, it is clear that the applicant was a party to the acts of thefts with which he was charged. He was preparing false empties slips to facilitate his co-accused’s acts of dishonestly and fraudulently taking monies from their employer. He was therefore actually assisting in the commission of these acts of theft. In terms of section 23 of the Crimes Ordinance 1961 he was aiding the commission of the thefts and therefore was a party to these thefts. Even though the applicant says he received only relatively small amounts from the monies that were stolen, he is still guilty as a party to the thefts that were committed.

In my view no reason has been established to show that the interests of justice require that the present application should be granted. It is therefore dismissed.

This matter is now adjourned to 22 May 2000 for sentence.

CHIEF JUSTICE