Police v Faiva [2011] WSSC 108 (5 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SILA LEILUA FAIVA
male of Matautu Falelatai.
Defendant

Counsels: Ms T.Toailoa for prosecution
Mr J Brunt for defendant

Ruling: 05 July 2011

ORAL RULING OF NELSON J

On the 20th of September last year I sentenced the present defendants co-defendant in Police v Leasi 2010 WSSC 152 to a term of 4½ years in prison in respect of 42 counts of theft as a servant and 149 counts of false accounting committed while Mr Leasi was employed by Yazaki Samoa Ltd. That was a sentence in respect of substantially the same 42 theft as a servant charges that the defendant is charged with and has pleaded not guilty to. The only difference being the dates of the offences have been amended by the prosecution this morning pursuant to their memorandum dated 05 July 2011. I also sentenced the defendants co-defendant Mr Leasi in respect of 149 false accounting charges many of which are probably similar if not identical to the 52 false accounting charges that the present defendant has been charged with and has pleaded not guilty to.

In the course of sentencing Mr Leasi I made certain findings of fact in relation to what is alleged to be joint offending by the defendant and Mr Leasi. Both were then employed as payroll officers by the complainant company and both were alleged to have used their position to embezzle substantial amounts from the complainant by manipulating the financial systems and controls of the complainant company.

I therefore have much prior knowledge of the circumstances of this matter and it would not be appropriate that I preside at a trial where an accused has pleaded not guilty to the charges against him and where the court will be required to hear evidence on these matters and draw conclusions of fact as to what happened and how these embezzlements were alleged to have occurred. I am sure it would also be discomforting to the accused to know as his counsel has just been advised this morning that the trial judge in this matter has already sentenced a co-defendant to a substantial term of imprisonment in respect of similar offending.

It is not appropriate that I preside at this trial and accordingly I disqualify myself from hearing this matter and refer it to another judge for determination.

............................
JUSTICE NELSON