Police v Elia [2003] WSSC 31 (14 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TAMATI ALATINA MEI ELIA,
of Fasito’o-tai.
Defendant

Counsel: Ms A. Faasau for prosecution
Mr JS Brunt for the defendant

Hearing: 14 October 2003
Decision: 14 October 2003

DECISION OF VAAI J

The applicant in these proceedings is jointly charged with three (3) other accuseds of the offence of robbery on the 23^rd November 2002 pursuant to section 92 Crimes Ordinance 1961. After several adjournments the accused pleaded guilty on the 20^th January 2003 and was remanded to the 2^nd February 2003 for a probation report and sentence. It is not clear from the file notes why sentence was not imposed on the 2^nd February 2003 but counsel for the police in her written submissions states that the applicant did not appear and a warrant was issued for his arrest. He was brought before the court for sentencing and as a consequence of his denial of part of the police summary of facts he was assigned counsel on legal aid. Counsel assigned filed this application seeking leave of the court under section 54 Criminal Procedure Act 1972 to withdraw the guilty plea entered on the 23^rd January 2003 and substitute with a not guilty plea. I shall deal with each of grounds advanced by the applicant.

The first ground is that the applicant at the time he entered the guilty plea was unrepresented by counsel. In his affidavit in support the applicant says at paragraph 4:

"I was unrepresented at the time this matter was called before this honourable court and when I entered my pea of guilty which I now wish to withdraw."

During the course of hearing submissions I was informed by counsel for the prosecution that when the charge against the applicant was first called counsel appeared and told the court he was counsel for the accused and the matter was further adjourned to the 23^rd December 2002 but on that date the applicant advised the court that he has instructed another counsel and the proceedings further adjourned to the 20^th January 2003 for his new counsel to appear. However on the 20^th January 2003 the accused appeared without counsel and told the court he was ready to plead; he pleaded guilty and was remanded on bail to the 17^th March for a probation report and sentence; but he failed to appear although his then counsel did appear and withdrew as counsel. A warrant was issued for his arrest. He was later apprehended and remanded in custody to the 5^th August for sentence.

Counsel for the applicant does not deny that the applicant did instruct two counsels before he entered the guilty plea on the 20^th January 2003 but no explanation was offered why the applicant’s affidavit made no reference to the two counsels. Common sense will dictate that if the applicant wishes the courts discretion to be exercised in his favour he ought to be a little more frank with the court. He is not and I am not satisfied that he did not have the benefit of legal advise before he entered the guilty plea. The first ground accordingly fails.

The remaining four grounds can be dealt with together as they all amount to saying that the applicant has an arguable defence and that the applicant has been falsely implicated by his co-defendants.

Before dealing with the remaining four grounds I shall deal first with the law relevant to applications seeking leave to withdraw a guilty plea. Both counsels agree that the principles governing the approach to be adopted when considering such applications were canvassed by Sapolu CJ in Police v Mafuao Gaia (unreported 11/2/2000 Supreme Court of Samoa) where he cited with approval from the headnote of the NZ ?Court of Appeal decision in R v Ripia (1985)1 NZLR 122:

"An accused who has pleaded guilty on arraignment may withdraw his plea of guilty 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."

I shall now return to consider the remaining four grounds of the application. On the 5^th August 2003 when the police summary of facts was read out the applicant objected to part of the summary. He does not specify which part he objected to. For clarity however I will set out the summary of facts in full:

Summary of Facts:

1. THE Defendants are:

(i) Tamati Alatina, a 20 year old single male who lives in Fasitoo-tai and employed on a fishing boat owned by Pele at Savalalo.
(ii) Mei Elia, a 24 year old male from Satapuala, living in de facto relationship with one child and currently employed by Yazaki Samoa; and
(iii) Poloie Alatina Soma, a single 19-year-old male, currently unemployed and residing at Fasitoo-tai.

2. THE Victim in this matter is Isaako Patolo of Siusega and Tafitoala, a 29 year old male, married with two children and currently employed as a taxi driver.

3. THAT on the 23^rd of November 2002, the above Defendants conspired with others to rob the Victim of his lawful earnings.

4. ON 23 November 2002, the defendants Tamati Alatina, Mei Elia and another while catching a taxi home from the RSA were left by the taxi driver at Vailoa.

5. THE two defendants and another then stopped the victim’s taxi at Vaiusu and instructed him to take them to Satapuala.

6. ON their way to Satapuala, they stopped at a house at Fasitoo-tai belonging to Tamati Alatina and picked up his brother Poloie Alatina Soma and a knife about one foot in length.

7. THE four men then instructed the victim to take them to Faleatiu.

8. THAT after arriving at Faleatiu, the defendant Tamati Alatina pulled out a knife and put it to the victim’s throat.

9. THE defendant Tamati Alatina then exited the car and went around to the driver’s side where he gave the driver a series of punches.

10. DURING this time, the four men then proceeded to rob the victim of $60.00 of his earnings.

11. THE defendants were later questioned by police and were informed of their legal rights to counsel.

12. THAT during this questioning the defendants admitted that they had all conspired to rob the victim of his money.

13. THE defendants are charged with robbery pursuant to section 92(1)(2) of the Crimes Ordinance Act 1961, which carries a maximum penalty of imprisonment of term not exceeding 10 years.

14. THE defendants are first offenders.

From perusing the applicants affidavit he denies paragraphs 3 of the summary of facts which says that he conspired with his co-accused’s to rob the victim. He also denies part of paragraph 7 which says that he got a knife from his home at Fasitoo. He also denies part of paragraph 8 which says that at Faleatiu he pulled out a knife and put it to the victim’s throat. He also denies paragraph 10 which says that he and his co-defendants robbed the victim of $60.00 because he only received $11 from one of the co-defendants.

According to the affidavit of the accused, he and his co-defendants were travelling towards Faleatiu village in the victim’s taxi after drinking at the RSA club. At Fasitoo he stopped the taxi, went into his home and got some money ($8) as his share of his taxi fare and then continued on to Faleatiu. At Faleatiu he gave the victim $8 and told the victim to collect the balance of the fare the following morning from the fishing boat docked by the fish market whereupon the victim remarked that passengers like the applicant are mostly shot at near the groin. At the same time the applicant saw the victim reaching under the seat and the applicant saw a box like object which he believed was a gun and it was then his co-defendants started punching the victim.

This statement of facts is remarkably in contrast to the written cautioned statement he gave to the police on the 26^th November 2002, some three days after the alleged incident when he was questioned concerning the assault and taking of monies from the victim at Faleatiu. He told the police that on their way to Faleatiu he stopped the taxi at his home at Fasitoo. He went inside his house woke up his brother and returned to the taxi with a knife, sat in the front seat and the taxi proceeded to Faleatiu. At Faleatiu one of the co-defendants punched the driver and the applicant put the knife to the victim’s neck. The taxi then stopped and the applicant told the victim to get out. The victim got out and ran to a nearby home and the applicant tried to drive the taxi away as one of the co-defendant got into the passenger's seat. It was there and then that the co-defendant gave the applicant $11. He admitted being a party to the assault and taking the victim’s money.

The applicant in his affidavit makes no reference whatsoever to the cautioned statement he gave to the police. Neither did his counsel in his submissions except for the reference by counsel to the absence of evidence to any cut to the neck of the victim and the absence of any reference in the trial documents to any knife. But the points raised are so trivial and irrelevant they need no addressing by the court except to say that the applicant did not stab or cut the victim so as to cause any cut to the neck of the victim.

Similarly there is no basis for a defence of self defence. There is no evidence the victim reached for a gun. The prosecution says that the two accused who have pleaded guilty and sentenced gave written statements confirming at large the written statement of the applicant namely that at Fasitoo the applicant came to the car with the knife which he held to the victim’s neck at Faleatiu. Neither is there any suggestion in their statements that the victim uttered the words alleged by the applicant, or that the victim reached underneath his seat or grabbed a gun.

For the reasons given the application is refused.

JUSTICE VAAI