Police v Taulapapa [2015] WSSC 235 (5 August 2015)

IN THE SUPREME COURT OF SAMOA
Police v Taulapapa [2015] WSSC 235

Case name:	Police v Taulapapa
Citation:	[2015] WSSC 235
Decision date:	05 August 2015
Parties:	POLICE (Prosecution) FAIMATA TAULAPAPA, male of Mulifanua, Ululoloa and Magiagi. (Defendant)
Hearing date(s):	05 August 2015
File number(s):	S1993/14, S2115/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- Your application to reverse back to not guilty pleas is denied. Your guilty plea will remain in place, you are remanded in custody to the 17 of August for sentence.
Representation:	R Titi and L Tavita for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAIMATA TAULAPAPA, male of Mulifanua, Ululoloa and Magiagi.
Defendant

Counsel: R Titi and L Tavita for prosecution
Defendant unrepresented

Hearing: 05 August 2015

Decision: 05 August 2015

ORAL DECISION OF NELSON J
(Change of plea application)

1. Two charges remain against the defendant: S2115/14 alleging that at Ululoloa on the 13 June 2014 with intent to have sexual connection with a child under 16 years of age he did take that child. Second charge S1993/14 is that same date and place he did sexually assault the complainant with intent to commit sexual violation.
2. Defendant originally pleaded not guilty to these and other charges. At the time he was represented by Mr Faolesa Katopau Ainuu. On 20 October 2014 the other charges were on police application withdrawn and dismissed. And the defendant through his counsel then entered pleas of guilty to the remaining two. He was then remanded for probation office pre-sentence report and for sentence.
3. Prior to sentencing an associate for Ainuus Law Firm filed an application to vacate the defendants guilty pleas and substitute with the original not guilty pleas. According to Mr Ainuu who is the principal of that law firm the associate was not authorized to do that. Because the defendant refused to accept Mr Ainuus advice leave was granted to Ainuu to withdraw from acting as counsel for the defendant. The defendant has since then opted to act for himself and has not required the appointment of a substitute counsel.
4. The grounds for his application to change his plea to not guilty is that he did not understand the nature of the charges and therefore mistakenly pleaded guilty. Secondly that he has a clear defence to the charges. He filed an affidavit in support of his application outlining the reasons why he denies the allegations and at paragraph 10 thereof asserts that he did not understand “uiga o nei moliaga.” Further in paragraph 11 now that he does understand he strongly denies the allegations. But the affidavit does not say how or why he went from not understanding the charges to understanding the charges.
5. It appears from his oral testimony which he chose to give to the court this morning that happened when he was interviewed by the probation office for the purposes of his pre-sentence report. According to the evidence adduced the defendant did not assert his innocence to the police when they investigated the allegations. Or claim them in the written record of his police interview under caution which has been produced for the purposes of these proceedings. That record of interview shows on page 1 the following:

“O le tataou faatalatalanoaga e faasaga i le tagi na faaulu mai a se tina o Ululoloa e uiga i ni faiga faasolitulafono e faapea ona e faatinoina i lana tama teine i le taeao o le Aso Faraile 13 Iuni 2014 i le te’a o le 8 i le 9:00am i Ululoloa. O lenei solitulafono o lou taumafai lea e fai se faigaaiga fai faamalosi i le teineitiiti e i lalo ifo o le 14 tausaga le matua e pei ona taua atu i luga.

Fesili: ua e malamalama?

Tali: ua ou malamalama faafetai.

Fesili: ae lei faaauauina le tatou talanoaga i lenei taeao e iai ma fesili e fesiligia ai oe ina ia matou malamalama i lou tagata ma e moomia lou tali mai iai. Ua e malamalama?

Tali: ia sa’o lelei.”

6. At the end of that passage is the signature of the defendant. A signature which is repeated on each of the other four pages of the document. The police record of interview then goes on to record various questions to the defendant concerning personal details. The defendant received the usual caution against saying anything unless he wished to do so. The indication from the defendant was that he did not want to make a statement. On page 3 he says “leai ou te le manao e faia sau faamatalaga i le taimi nei.”
7. Indications are from that statement to the police was he understood what was going on. In particular he understood the allegation against him namely “uiga faasolitulafono e faapea ona e faatinoina i le tama teine a le sa tagi” and in particular “o lenei solitulafono o le taumafai lea e fai se faigaaiga fai faamalosi i le teineitiiti e i lalo ifo o le 14 tausaga.” He was asked if he understood that he said “I understand thank you.” This was an interview conducted before anything came before the court. The record of interview shows a full understanding of the matter and also shows the defendant as is his constitutional right chose not to make a statement to the police about the matter.
8. The evidence adduced also shows the defendant did not tell Mr Ainuu he did not understand the charges. In his oral testimony the defendant admitted that. He said he left it to the lawyer to decide what was best for him because of his inexperience in such matters. No protestation of innocence, no indication that he did not understand what was happening and what he was facing. Neither did he make any such claims or protest when the matter was called in court.
9. The court record shows that originally he pleaded not guilty to all charges. That shows an understanding of what was happening. Later he changed that plea from not guilty to guilty. No indication at that time the defendant did not know what was going on. He said nothing to the Registrar or to the presiding Justices at any stage of these proceedings to that effect. The denial only resurfaces when he comes to be interviewed by the probation office.
10. I do not know what was said to him in that interview. He does not explain it in his affidavit. Neither has any testimony by affidavit or otherwise been forthcoming from the probation office or the relevant probation officer. I would expect however that the officer would not mislead the defendant. And it is clear a probation officer is not as knowledgeable about such matters as a lawyer. And there is nothing to suggest the defendant was incompetently or poorly represented at the material times.
11. Likely and probable inference to be drawn is that the defendant changed his mind again when it was explained to him by the probation office that he was facing serious prison time. The defendant is not an uneducated person. He told the court and this is reflected in his pre-sentence report that he was educated at Pesega College up to Form 6 level. He has worked numerous jobs over a 58 years old life including as a taxi driver, a bus driver, a carpenter and contractor. He holds the position of a’oa’o in his ekalesia. According to a character reference from his pulenuu he is active in village affairs.
12. To put it bluntly he is not a stupid person. He does not strike me as one who would unknowingly admit such serious allegations. His attempts to persuade me otherwise on the witness stand were not impressive. He seemed noticeably nervous especially when cross examined on crucial issues. And his answers were very inconsistent.
13. According to the law a defendant will be permitted to withdraw a guilty plea if it was entered mistakenly or in ignorance. Or if a defendant has a clear defence to the charges. Nothing that I have seen or read indicates a clear defence. Your mere denials of the allegations do not constitute a clear defence. I am also not persuaded you were ignorant or misunderstood the allegations and the charges.
14. Your application to reverse back to not guilty pleas is denied. Your guilty plea will remain in place, you are remanded in custody to the 17 of August for sentence.
    

JUSTICE NELSON