Police v Viliamu [2008] WSSC 74 (8 September 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SAWEJ VILIAMU
male of Aleisa.
Accused

Counsel: L Su’a-Mailo for prosecution
L T Malifa for accused

Conclusion: 5 September 2008
Judgment: 8 September 2008

JUDGMENT OF SAPOLU CJ

Proceeding

[1] This proceeding is concerned with an application by the accused Sawej Viliamu under s.54 of the Criminal Procedure Act 1972 to withdraw the plea of guilty he had entered to six charges of theft as a servant and one charge of false pretence and to substitute it with a not guilty plea.

Background

[2] As it appears from the material before the Court, the accused is a 28 year old male who holds a degree in commerce and a certificate in management from the National University of Samoa.

[3] At the material times, the accused was employed as an assistant manager of assets and management accounting by the Electric Power Corporation (the EPC).

[4] On 14 December 2007, the EPC lodged a complaint with the police requesting a police investigation into transformers alleged to have been stolen from the EPC premises. In the course of the police investigation that was carried out, the accused was interviewed on 20 December 2007 by senior sergeant Paipai Paipai who led the investigation.

[5] Following the police investigation, the accused was charged on various dates from 20 December 2007 to 18 January 2008 with six counts of theft as a servant and one count of false pretence.

[6] When the charges were called for first mention before Vaai J on 3 March 2008, the accused who was not represented by counsel at that time pleaded guilty to all charges. The case was then adjourned to 21 April 2008 for a probation report and sentence. A probation report dated 6 March 2008 was duly prepared and presented to the Court.

[7] On 21 April 2008 when the case was called again for sentence, Mr Malifa appeared for the first time as counsel for the accused. He indicated that he wished to withdraw the accused’s plea of guilty to the charges and to substitute it with a not guilty plea. An application to that effect with a supporting affidavit by the accused had been filed on 18 April 2008, setting out the grounds in support of the application. The case was then further adjourned to 28 April 2008 for the prosecution to file a response to the application to withdraw the accused’s plea of guilty.

[8] A notice of opposition was duly filed by counsel for the prosecution setting out the grounds of the prosecution’s opposition together with a supporting affidavit by senior sergeant Paipai Paipai who had led the police investigation and interviewed the accused.

[9] This matter then became the subject of several adjournments until it was heard.

Application to withdraw plea of guilty and supporting affidavit.

[10] The application to withdraw the accused’s plea of guilty is based on three grounds, namely,:

1. When the accused appeared at first mention of the charges against him on 3 March 2008, he understood that the complaint and the charges against him were to be withdrawn. He did not understand he would be asked to enter a plea as at all material and relevant times the complaint was to be withdrawn;
   
2. In these circumstances, the presence and advice of counsel under Article 6 of the Constitution would have ensured a plea of guilty would not have been entered; and
   

100. The accused’s right to a fair trial under Article 9 of the Constitution had been violated because:
     
     1. the accused was not aware and did not understand what rights if any, he had as an accused person, as those are guaranteed under the Constitution;
        
     2. as a first offender and appearing for the first time in a Court of law, the accused did not know he had a right to counsel and what that right is, and what help if any it can give and provide for him;
        
     3. at all times, the accused was advised by the police officer who was investigating the case against him that following specific and clear instructions from the chief executive officer of the EPC and its lawyer, the case against him shall be withdrawn; and
        
     4. at no time was the accused advised, and he did not know, he was to enter a plea to the various charges read out in Court on 3 March 2008.
        

[11] The affidavit sworn by the accused in support of the application signed by Mr Malifa is vague and inconsistent in certain respects. In paragraph 3 of the affidavit, it is said that the accused had understood at all times and also from advice given by the police senior sergeant who was investigating the case against him, that the EPC was withdrawing its complaint. The accused therefore thought that all the charges would be withdrawn. The accused did not understand he was required to enter a plea. He did not even know what a plea entails.

[12] What paragraph 3 appears to be saying is that the accused was advised by the police investigating officer that the EPC was withdrawing its complaint and the accused took that to mean that the charges against him were to be withdrawn. I have to say that a complaint lodged by a complainant with the police is quite a different thing from a charge filed in Court by the police. For a complainant to withdraw a complaint lodged with the police is also quite a different thing from the withdrawal of a charge filed in Court. The former usually requires only a request by the complainant to the police to withdraw his complaint; the latter involves an application by the police prosecution to the Court for leave to withdraw a charge and a decision by the Court whether to grant leave to withdraw.

[13] Paragraph 3 also states that the withdrawal by the EPC of its complaint against the accused was understood by the accused to mean that the charges against him were to be withdrawn. Paragraph 3 does not say that the police investigating officer informed the accused that the charges would be withdrawn.

[14] However, paragraph 4 of the affidavit, says that the accused was shocked when on 3 March 2008 the charges were read out to him and he was asked as to how he pleads. In a panic the accused merely said ‘guilty’ even though he was wondering in his mind what had happened to the withdrawal of the charges he was expressly advised about. There is no mention of who gave such advice to the accused.

[15] Reading paragraphs 3 and 4 together, it is clear that paragraph 3 is saying that the police investigating officer told the accused that the complainant, the EPC, was withdrawing its complaint against the accused. However, there is nothing there about the police investigating officer advising the accused that the charges would be withdrawn. It is the accused himself who says that he understood the withdrawal by the EPC of its complaint to mean that the charges would also be withdrawn.

[16] However, paragraph 4 seems to suggest that the accused was advised that the charges would be withdrawn. But it is not specified who gave such an advice to the accused. It is the accused wondering in his own mind to himself. There is a clear shift from the accused’s understanding in paragraph 3 to the accused’s wondering in his own mind in paragraph 4.

[17] A further shift takes place in what was going on in the accused’s mind in paragraph 5 of the affidavit. The only difference is that what appears to have been mental thinking in paragraphs 3 and 4, suddenly assumes the appearance of fact in paragraph 5. This occurs where it is said:

"I (the accused) say with all honesty that while I have reached and achieved university education, I appeared that March 3, 2008 in Court only with the understanding that the charges against me were to be withdrawn and nothing else. To be asked then to enter a plea, as I have said, was a shock. Not really knowing and not really understanding what was truly at issue and in respect of my own liberty as a free person, I merely uttered ‘guilty’. But my mind was still asking, were not these charges to be withdrawn? What happened to the assurances of the senior police officer who interviewed me and investigated the case that the charges were to be withdrawn?"

[18] So according to paragraph 3 of the accused’s affidavit, when the police investigating officer advised the accused that the EPC was withdrawing its complaint, the accused says he understood that to mean that all charges against him would be withdrawn. Then in paragraph 4 it says that when the accused appeared in Court on 3 March 2008 and the charges were read out to him and he was asked to plead and he replied ‘guilty’, he was wondering what had happened to the withdrawal of all charges he had been advised about. Then in paragraph 5 the accused goes further and says that he was in his mind thinking that he had been assured and advised by the police investigating officer and the EPC lawyer that the case and charges against him would be withdrawn. So after the shift in the accused’s understanding stated in paragraph 3 to what the accused was wondering about in his mind in paragraph 4, the accused then says in paragraph 5 that the police investigating officer and the EPC assured and advised him that the charges against him would be withdrawn. This is unsatisfactory evidence which does not inspire any confidence.

[19] As it will appear in more detail later, senior sergeant Paipai Paipai, the police investigating officer in this case, emphatically denies in his affidavit that he advised the accused when he interviewed him that the charges against him would be withdrawn or that the police were willing to withdraw their case. There is also nothing in the two letters from the EPC to be referred to shortly to show that the EPC assured or advised the accused that the charges against him would be withdrawn.

[20] Annexed to the affidavit sworn by the accused are two letters. The first is a letter dated 4 January 2008 from the lawyer for the EPC to the commissioner of police requesting a withdrawal of its complaint against members of its staff who were involved in the unauthorised taking of transformers. This letter commends the police investigating team led by senior sergeant Paipai Paipai for having successfully recovered the stolen transformers. It also says that the staff members concerned have apologised for their actions and their apology has been accepted by the EPC considering that the stolen properties have been recovered. It further says that the same staff members have had their employment terminated. The commissioner of police is then requested to allow the EPC’s complaint to be withdrawn.

[21] The second letter annexed to the accused’s affidavit is dated 4 March 2008 and was from the general manager of the EPC to Vaai J requesting leniency on the accused who was then awaiting sentence. This letter states that the EPC has withdrawn its complaint by latter dated 4 January 2008. It also says that the matter has been resolved between the EPC and the accused. It then says that the accused has confessed to his misdeed and has been dismissed from his job. EPC has also recovered its assets that were taken.

[22] So it appears from the said letters that the EPC has withdrawn its complaint to the police partly because its stolen properties had been recovered by the police and partly because the staff members concerned, including the accused, have apologised. It also appears from the letter dated 4 March 2008 that the accused confessed his misdeed to the EPC. However, all of this did not bind the police to withdraw the charges.

Opposition to accused’s application, supporting affidavits and probation report.

[23] The application for the accused’s plea of guilty to the charges to be withdrawn and substituted with a plea of not guilty is strongly opposed by the prosecution. The prosecution’s opposition is based on four grounds, namely,;

(a) The accused pleaded guilty to the charges;

(b) There was no mistake or misunderstanding when the accused pleaded guilty to the charges;

(c) The accused has not put forward a clear defence to the charges; and

(d) It is not in the interests of justice that the accused’s plea of guilty should be allowed to be withdrawn.

[24] An affidavit from senior sergeant Paipai Paipai was also filed with the prosecution’s notice of opposition. In that affidavit the police senior sergeant says that he interviewed and cautioned the accused on 20 December 2007. He also informed the accused of his constitutional right to consult counsel and to have counsel present at the time of the interview and of his constitutional right to engage counsel to represent him in Court. The accused was then asked whether he understood those rights and he answered in the affirmative but he might engage counsel in the future.

[25] The police senior sergeant then says that during the interview the charges against the accused were read out in full to him and he was asked whether he understood them. The accused replied yes. The accused was also asked before the interview concluded whether there was any matter on which he needed clarification and he replied no.

[26] The police senior sergeant then states that at no time did he advise the accused that the charges against him would be withdrawn. He further states that he might have informed the accused that the EPC wanted to withdraw its complaint but he never advised the accused that the police were willing to withdraw their case.

[27] A report dated 16 January 2008 to the commissioner of police is annexed to the senior sergeant’s affidavit. In that report the senior sergeant strongly advised the commissioner of police against having this matter withdrawn given the time spent and the resources used by the police in investigating it. It is clear from this report that it is consistent with what the senior sergeant says that at no time did he advise the accused that the charges against him would be withdrawn.

[28] An affidavit was also produced from the deputy registrar who was present in Court when the charges against the accused were called for first mention on 3 March 2008.

[29] The deputy registrar states that he can recall that he read out the charges to the accused and the accused pleaded guilty to all the charges. However, he cannot remember whether the accused was asked if he wanted to engage counsel to act for him. The accused has told this Court that he was not asked whether he wanted to engage counsel to act for him before he was asked to plead to the charges.

[30] After the accused pleaded guilty to the charges on 3 March 2008, the case was then adjourned to 21 April 2008 for a probation report and sentence. In the report dated 6 March 2008 that was prepared by the probation service and presented to the Court, the probation service says at p.2:

"Sawej stated that the offending took place on several occasions from the 4th – 12th December 2007. Sawej still maintains his guilty plea throughout the interview and says he regrets every action because it has ruined his reputation especially that of his parents."

[31] Further on at p.2, the report by the probation service says:

"Sawej has accepted full responsibility for his actions and stated during the interview that he is indeed sorry and kindly requested another chance to rebuild his reputation and renew his future from his past mistakes."

[32] Then at p.3, the report by the probation service states:

"During the interview with Sawej and his parents, Sawej told the probation service that he has already apologised to his former employer the EPC."

Applicable principles

[33] The principles which are applicable to the exercise of the Court’s discretion whether to allow an accused who has pleaded guilty to a charge to withdraw his plea of guilty before sentence and to substitute it with a not guilty plea are now well established: see Police v Mafuao Gaia [2000] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13; Kereti Tulitoa v Police [2006] WSSC 13; Onosai Nofoaiga v Police [2007] WSCA 3. The guiding principle is whether the interests of justice require that an accused who has pleaded guilty to a charge should be granted leave to withdraw his plea of guilty and substitute it with a plea of not guilty. Situations where such leave may be granted include where an accused has not really pleaded guilty, where the accused was under a mistake or misunderstanding as to what he was pleading guilty to, where there is a clear defence, or where considerable pressure was put on the accused to plead guilty contrary to his wishes. These are only examples of the interests of justice test: Onosai Nofoaiga v Police [2007] WSCA3.

Submissions by counsel for the accused

[34] Despite the length of the written submissions by counsel for the accused, they come down to essentially two points. The first is that the procedure which was followed when the accused was required to plead to the charges and he pleaded guilty was in violation of the accused’s right to counsel provided under Article 6 (3) of the Constitution. The second point is that the same procedure was in violation of the accused’s minimum right to legal representation provided under Article 9 (4) of the Constitution.

[35] Article 6 (3) has been the subject of several decisions of this Court and the Court of Appeal. The leading case is the decision of the Court of Appeal in Attorney General v Semi Tupa’i Ueti [1994] WSCA 19. See also Police v Tagaloa Runi Masame [2007] WSSC 66 where the approach by the Court of Appeal was explained by this Court.

[36] Article 6 (3) provides:

"Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay."

[37] It is clear from the words of Article 6 (3) that the right to counsel it provides relates to a person under arrest. So an accused who claims that his right to counsel under Article 6 (3) has been violated must first establish that he was under arrest at the relevant time. Without an arrest in terms of Article 6 (3), the right to counsel it provides cannot come into operation: Police v Lepopoi Schwenke (1996) (unreported); Police v Tagaloa Runi Masame [2007] WSSC 66.

[38] However, there is no evidence provided on behalf of the accused to show that the accused was under arrest at the time he appeared before the Court and pleaded guilty to the charges after they were read out to him. This is the point made by counsel for the prosecution when she says in her written submissions that there was no evidence to show that the right to counsel under Article 6 (3) had come into operation when the accused pleaded guilty to the charges. In fact when the accused appeared in Court when the charges were called for first mention, he was on bail; he was neither in custody nor under any form of arrest.

[39] I therefore conclude that the right to counsel provided in Article 6 (3) did not apply to the accused at the time he appeared in Court and pleaded guilty to the charges after they were read out to him.

[40] Perhaps I should add here that the previous Samoan cases where the Article 6 (3) right to counsel was raised and discussed had been in relation to alleged breaches of the right at the time the accused was under arrest and interviewed by the police and a damaging statement was obtained from him. Article 6 (3) has never before been raised in relation to the entering of a plea.

[41] In relation to the alleged violation of the right to legal representation provided under Article 9 (4) of the Constitution for the purpose of a fair trial, it became clear during the argument on the submissions of counsel that the accused was not asked whether he wanted to engage counsel to act for him before he was asked to plead. It is normal practice for the Court to ask an unrepresented accused whether he wants to engage counsel to act for him before he is asked to plead. If the unrepresented accused says that he wants to engage counsel then the case is adjourned without plea for the accused to engage counsel. But if the accused says that he does not wish to engage counsel, he is then asked whether he is in a position to plead to the charge. If he says yes, the charge is then read out to him (usually in Samoan) and he is asked as to how he pleads.

[42] The question which arises in this proceeding is whether, given the absence of a question to the accused whether he wants to engage counsel before he was asked to plead, the accused should be granted leave to withdraw his plea of guilty and substitute it with a not guilty plea.

Submissions by counsel for the prosecution

[43] Counsel for the prosecution in her written submissions says that it would not be in the interests of justice that leave be granted to the accused to have his plea of guilty withdrawn and to substitute it with a not guilty plea. Counsel for the prosecution points out that having regard to the types of situation which have been noted in the relevant Samoan cases where the interests of justice require that an accused should be granted leave to withdraw his plea of guilty, the accused in this case has not provided any evidence to show that any of the said types of situation existed in this case.

[44] The types of situation that counsel for the prosecution was referring to were: (a) where an accused has not really pleaded guilty, (b) where the accused was mistaken as to what he was pleading guilty to, (c) where the accused has a clear defence to the charge, or (d) where considerable pressure was put on the accused to plead guilty contrary to his wishes. Counsel for the prosecution says that no evidence was provided by or for the accused to show that he did not really plead guilty to the charges against him, or to show that he was under some mistake or misunderstanding as to the charges he was pleading guilty to, or to show that he has a clear defence to the charges against him, or to show that pressure was put on him to plead guilty contrary to his wishes.

[45] Counsel for the prosecution further submits that the only evidence that was given by the accused in his affidavit which may be acceptable, is where he says that he thought the charges against him would be withdrawn because of specific instructions from the complainant, the EPC, that it was withdrawing its complaint to the police. However, as counsel for the prosecution says, that does not mean that the accused did not really plead guilty to the charges, or that the accused was under some mistake or misunderstanding as to the charges he was pleading guilty to, or that the accused had a clear defence to the charges, or that pressure was exerted on the accused to plead guilty to the charges contrary to his wishes. Counsel also submits that the evidence clearly suggests that the accused was well aware of what he was appearing for in Court and what he was pleading guilty to.

[46] Counsel for the prosecution further submits that whether or not the accused was asked if he wanted to engage counsel before he was asked to plead to the charges is not conclusive. The principle which the Samoan Courts have adopted for determining whether leave should be granted to an accused to withdraw his plea of guilty is what the interests of justice require in the circumstances.

[47] In response to a point raised by counsel for the accused that no trial documents have been produced by the prosecution to the accused or his counsel, counsel for the prosecution submits that there is no requirement on the prosecution to supply an accused with copies of statements by potential police witnesses for the purpose of deciding on a plea, at least where no trial documents were requested before the plea was taken.

[48] In relation to the ground of the accused’s application based on Article 6 of the Constitution and the submissions by the accused’s counsel which on this part of the proceeding relate exclusively to Article 6 (3), counsel for the prosecution submits that Article 6 provides for the right to liberty of a person who is detained or arrested. Article 6 (3) refers specifically to the right to counsel of an arrested person.

[49] Counsel for the prosecution then submits that there is no evidence before the Court to show that the right to counsel provided under Article 6 (3) was violated. Obviously there is no evidence that the accused was under arrest when he pleaded guilty to the charges in order to trigger the operation of the right to counsel under Article 6 (3).

[50] It is also correctly pointed out by counsel for the prosecution that the cases, including Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260 and Attorney General v Semi Tupai Ueti [1994] WSCA 19, which were cited by counsel for the accused, were all concerned with alleged breaches of the Article 6 (3) right to counsel at the time the accused were interviewed by the police and the admissibility of statements obtained from the accused during such police interviews. So those cases are clearly distinguishable from the present case which is concerned with the guilty plea entered by the accused in Court to the charges against him.

[51] In relation to the right to a fair trial provided under Article 9 of the Constitution and more specifically the minimum right provided under Article 9 (4) of a person charged with an offence to defend himself in person or through legal representation, counsel for the prosecution submits that there was no breach of the right to legal representation under Article 9 (4). However, if there was a breach of the Article 9 (4) right, that is not conclusive. Under the principles established in Police v Mafuao Gaia [2000] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13; Tulitoa v Police [2006] WSSC 13; Onosai Nofoaiga v Police [2007] WSCA 3; the question of whether leave should be granted to the accused to withdraw a guilty plea and substitute it with a not guilty plea is to be determined on the basis of what the interests of justice require in the circumstances. There is no automatic rule that if there is a breach of Article 9 (4) then the accused must be allowed to withdraw his guilty plea. Counsel for the prosecution also says that counsel for the accused did not provide any authority to show that a breach of Article 9 (4) automatically entitles an accused to vacate a guilty plea.

[52] In support of her submissions that there was no breach of the accused’s rights, including the right to legal representation under Article 9 (4), counsel for the prosecution refers to the affidavit by senior sergeant Paipai Paipai, the police investigating officer.

[53] Senior sergeant Paipai says in his affidavit that when he interviewed the accused on 20 December 2007, he cautioned the accused. This means the police senior sergeant informed the accused that he was not obliged to say anything unless he wishes to do so. The police senior sergeant then informed the accused of his right to have counsel present at the time of the interview and of his right to engage counsel to represent him in Court. The accused was then asked whether he understood those rights and his reply was in the affirmative. He also said he might engage counsel in the future. The police senior sergeant also asked the accused before the interview concluded whether there was any matter on which he needed further clarification and the accused replied no.

[54] Counsel for the prosecution therefore submits that the police had informed the accused on 20 December 2007 of his constitutional right under Article 9 (4) to engage counsel to represent him in Court. So when the charges were called for first mention on 3 March 2008, the accused has had more than two months, which was ample opportunity, to engage counsel to appear for him in Court if he had wanted to do so.

[55] It is therefore submitted by counsel for the prosecution that in the circumstances of this case, the interests of justice do not require that the accused should be allowed to reverse his guilty plea and to substitute it with a not guilty plea.

Discussion

[56] There is no doubt in my mind that the right to counsel provided under Article 6 (3) of the Constitution did not apply when the charges against the accused were called in Court on 3 March 2008 and the accused was asked by the deputy registrar as to show he pleads and he pleaded guilty. The right under Article 6 (3) is a right given by the Constitution to a person who is arrested. The accused was not under arrest at the time he appeared in Court and pleaded guilty to the charges after they were read out to him in Samoan. In fact the accused was on bail at the time.

[57] Counsel for the prosecution also correctly pointed out, that all the cases cited by counsel for the accused in relation to this part of the case were concerned with alleged breaches of the right to counsel under Article 6 (3) at the time of police interviews and the admissibility of statements obtained by the police from the accused during such interviews. None of the cases cited by counsel for the accused relates to the situation where an accused appears in Court and pleads guilty to the charges against him. Those cases are therefore clearly distinguishable and irrelevant.

[58] The first ground of the accused’s application to reverse his guilty pea is without merit.

[59] With regard to the alleged breach of Article 9, more specifically the alleged breach of the minimum right to legal representation under Article 9 (4), it is to be remembered that the right under Article 9 (4) is the right of a person charged to defend himself in person or through legal assistance of his own choice and, if he cannot afford legal representation, to be given it free when the interests of justice so require. The emphasis of the challenge by counsel for the accused is that the accused was not aware of this right and was not informed about it. It was not submitted that the accused could not afford legal representation and that the interests of justice required that he should be provided with legal representation free.

[60] What should be noted is that there is no law, and none was cited by counsel for the accused, which says that a breach of Article 9 (4) automatically leads to a reversal of a plea of guilty and its substitution with a plea of not guilty. In fact there is nothing in Article 9 itself which says that a breach of Article 9 (4) would necessarily lead to that result. The approach which the Samoan Courts have adopted to an application to withdraw a plea of guilty and to substitute it with a plea of not guilty is what does the interests of justice require in the circumstances. This approach involves the exercise of judicial discretion.

[61] In the New Zealand case of R v Shaheed [2002] 2 NZLR 337, which was concerned with an alleged breach of the right against unreasonable search and seizure under s21 of the New Zealand Bill of Rights Act 1990, the approach the Court of Appeal applied involved a balancing exercise to determine the admissibility of evidence obtained pursuant to alleged breaches of rights under the Bill of Rights Act 1990. This approach is similar to the approach which the Samoan Courts have adopted in deciding whether to grant leave to reverse a guilty plea in that it involves the exercise of judicial discretion.

[62] The sequence of relevant events shows that on 20 December 2007 when the accused, who is a well educated man, was interviewed by senior sergeant Paipai, he was informed of his rights including the right to engage counsel to represent him in Court. When the police officer asked the accused whether he understood his rights he replied in the affirmative. By letter dated 4 January 2008 to the commissioner of police, the EPC lawyer commends the police investigating team led by senior sergeant Paipai for having recovered the EPC stolen transformers. The same letter then says that the EPC staff members concerned have apologised for their actions and the EPC requests its complaint to be withdrawn.

[63] On 3 March 2008, the charges against the accused were called in Court for first mention and the accused appeared in person without counsel even though he had been advised by the police senior sergeant on 20 December 2007 that he had a right to engage counsel to appear for him in Court. The charges were read out to the accused by the deputy registrar and the accused was asked as to how he pleads. The accused replied guilty. The case was then adjourned to 21 April 2008 for a probation report and sentence.

[64] Then by letter dated 4 March 2008 from the general manager of the EPC to Vaai J, it is there said that the matter has been resolved between the EPC and the accused and the EPC has withdrawn its complaint. The letter then says that the accused has confessed to his misdeed and has been dismissed from his job. The EPC assets that were taken have also been recovered.

[65] In the probation report dated 6 March 2008 which was submitted to the Court, it is there stated that the accused maintains his guilty plea throughout the interview and he said that he regrets his every action because it has ruined his reputation especially that of his parents. The probation report also says that the accused accepts full responsibility for his actions and said that he is indeed sorry. Further on in the probation report, it is said that the accused told the probation service that he has already apologised to his former employer the EPC.

[66] From what has just been set out, it is clear that the accused was informed by the police senior sergeant on 20 December 2007 of his right to engage counsel to appear for him in Court. The accused who is a well educated man understood that right. The fact that the accused appeared in Court on 3 March 2008 without counsel implies that the accused knowingly chose not to have counsel with him on that day. If the accused had wanted counsel, he had ample time between 20 December 2007 and 3 March 2008 to engage counsel. I do not accept that the accused forgot or that he was not aware he could engage counsel.

[67] It is also clear from what has been set out that the accused was truly sorry and accepted full responsibility for his actions. He apparently wanted to come out clear on what he did. He was therefore willing to plead guilty to the charges.

[68] I do not accept what is implicit in the submissions by counsel for the accused that the accused was not aware or informed of his rights. The accused was in fact informed by the police senior sergeant of his rights, including the right to engage counsel to appear for him in
Court which includes the time when the accused pleaded guilty to the charges. However, the accused obviously wanted to plead guilty as shown by his guilty plea and the fact that subsequently he maintained his guilty plea throughout his interview with the probation service. The accused also apologised and confessed his misdeed to the EPC and told the probation service he was indeed sorry and accepted full responsibility for his actions. It was not until 21 April 2008 when the case was called again for sentence that counsel appeared for the first time and told the Court that the accused was applying to reverse his guilty plea.

[69] The application to withdraw the accused’s guilty plea is based on Article 6 (3), which is irrelevant to this proceeding, and Article 9 (4). The essence of the argument for the accused based on Article 9 (4) is that the accused was not advised of his right to legal representation. Other parts of Article 9 (4) relating to the means of the accused and what the interests of justice require were not the subject of any argument.

[70] According to the accused he was not asked before he pleaded guilty whether he wanted to engage counsel to act for him. But even if that is accepted, there is no law that an omission to ask an accused whether he wanted to engage counsel before he pleads would necessarily lead to the reversal of a guilty plea. There is no automatic rule. The test to be applied is whether it is in interests of justice to grant leave to the accused to withdraw his guilty plea and substitute it with a not guilty plea: Police v Mafuao Gaia [2000] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13; Kereti Tulitoa v Police [2006] WSSC 13; Onosai Nofoaiga v Police [2007] WSCA 3. The interests of justice test involves the exercise of judicial discretion having regard to all the relevant circumstances.

[71] Applying the interests of justice test to the circumstances of this case, I am of the clear view that the application by the accused should not be granted.

[72] Perhaps I should also note that no evidence or submission was put forward to show that the accused did not really plead guilty to the charges, or that the accused was mistaken as to what he was pleading to, or that the accused has a clear defence, or that considerable pressure was put on the accused to plead guilty contrary to his wishes.

Conclusion

[73] For the foregoing reasons, the accused’s application is dismissed.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Sogi Law for accused