Police v Sekone [2018] WSSC 128 (24 December 2018)

SUPREME COURT OF SAMOA
Police v Sekone [2018] WSSC 128

Case name:	Police v Sekone
Citation:	[2018] WSSC 128
Decision date:	24 December 2018
Parties:	POLICE (Prosecution) AND FOU SEKONE male of Magiagi. (Defendant)
Hearing date(s):	10,11 & 13 December 2018
File number(s):	S275/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:

Order:

- In their submissions, both counsel agree declaring a mistrial is the most appropriate remedy in the present instance. I accordingly albeit reluctantly declare for the reasons given a mistrial and refer this matter to the first mention list in the New Year to set a new date of hearing before a different judge.

Representation:	L Sio for prosecution K Koria for defendant
Catchwords:	Theft – co-defendant pleaded guilty currently serving terms of imprisonment – accomplices – credibility – recognised principle – at the heart of the rule is the concept of fairness – constitutional requirement of a fair trial – prejudice – inherent hazards – miscarriage of justice – mistrial
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016 section 76(d) of the Evidence Act 2015
Cases cited:	Browne v Dunn (1894) 6R 67 Police v Tauauve’a [2010] WSSC 6 Police v Tanielu [2010] WSSC 134 Reid v Kerr [1974] 9 SASR 367, 373 Police v Lavea (unreported judgment of 28 January 2016 by Aitken, J)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FOU SEKONE male of Magiagi.
Defendant

Counsel:
L Sio for prosecution
K Koria for defendant

Hearing: 10,11 & 13 December 2018

Decision: 24 December 2018

DECISION OF NELSON J

1. The defendant is one of three defendants charged with the theft in 2017 of some $10,000.00 worth of Paracetamol tablets from the National Health Services Warehouse. The defendants were then working for the National Health Services at the warehouse at Motootua. His co-defendants pleaded guilty to the charge and are currently serving terms of imprisonment. They together with the receiver of the stolen tablets gave evidence against the defendant at his trial. Apart from two police officers who testified as to recovery of the stolen goods this was the only evidence adduced by the prosecution in support of the charge.
2. In response the defendant gave evidence and has begun calling witnesses in support of his defence. It soon became apparent that much of the evidence of the defendant and his witnesses included new matters which were not put or adequately put to the witnesses for the prosecution. Such new matters arise out of the evidence for example of the sister of the receiver defendant concerning delivery of the stolen goods by the defendant to the receiver as well as relating to the use of various vehicles.
3. This is a case where the evidence for the prosecution comprises accomplices of the defendant in a joint criminal enterprise. Credibility is accordingly at the core of this prosecution and all evidence to be adduced by the defence should have been properly put in cross examination to the witnesses for the prosecution. This is a well recognised principle according to the rule in Browne v Dunn (1894) 6R 67 accepted and applied in this jurisdiction in numerous matters; see for example Police v Tauauve’a [2010] WSSC 6 and Police v Tanielu [2010] WSSC 134. At the heart of the rule is the concept of fairness and the Constitutional requirement of a fair trial. Failure to follow these rules result in the kind of situation noted by Wells, J in Reid v Kerr [1974] 9 SASR 367, 373 where he spoke of the frustration to a tribunal where it is presented with two important bodies of evidence which are “inherently opposed in substance but which because Browne v Dunn has not been observed, have not been brought into direct opposition and serenely pass one another like two trains in the night.”
4. In some situations the problem can be resolved by recalling the relevant prosecution witnesses and putting to them matters that they should have been questioned about originally. However, the prejudice created by such a situation can in other cases not be resolved by such action.
5. Unfortunately, this has turned out to be one such case. Recalling the prosecution witnesses who in this matter constitute the entirety of the prosecution case carries a number of inherent hazards. Particularly so when the witnesses are in close life proximity to one another. Thus for example the two co-defendants are together serving imprisonment terms in the same prison at Tafaigata. And the receiver and her sister are living together if not in the same house certainly as part of the same family at Vaoala. I am concerned at the effect this may have on their credibility if recalled. The risk of manufacturing evidence to bolster each others account increases exponentially and the possibility of false or influenced “recollection” evidence becomes very real.
6. I am faced with a situation similar to what confronted my sister judge in Police v Lavea (unreported judgment of 28 January 2016 by Aitken, J) where inter alia the rule in Browne v Dunn was not followed by defence counsel. And I have come to a similar conclusion that recalling the prosecution witnesses in the circumstances of this case may result in a miscarriage of justice. The more appropriate action would be to declare a mistrial either pursuant to the inherent jurisdiction of the court, there being none preserved by the new Criminal Procedure Act 2016, or as suggested by prosecution counsel a mistrial pursuant to section 76(d) of the Evidence Act 2015 which attempts to codify the Browne v Dunn rule.
7. In their submissions, both counsel agree declaring a mistrial is the most appropriate remedy in the present instance. I accordingly albeit reluctantly declare for the reasons given a mistrial and refer this matter to the first mention list in the New Year to set a new date of hearing before a different judge.
8. O le tulaga lea ua iai lau mataupu Fou masalo e iai se taimi fa’amalamalama atili atu e le alii loia. O le fa’afitauli lea ua tula’i mai ona e tele mataupu fou lea sa laga e lau susuga i le faiga o lau molimau, ma sa laga foi e molimau lea na vala’auina mo lau itu. A’o mataupu uma na sa tatau ona fa’ata’atia i molimau a le itu tagi poo molimau a leoleo, sei aumai ai se latou tali i tu’uaiga lea sa e faia i lau molimau fa’apea foi molimau a lau susuga lea na vala’au. Ona ua lē fa’atino le tulaga lena o lona uiga maimau le taimi o le tatou fa’amasinoga, e tatau ona toe amata mai le amataga ae toe fai faalelei. O le lape lea o lau mataupu.
9. O lea la ua taunu’u ai fa’a-le-tulafono se fa’aiuga a le Fa’amasinoga o le a fa’aleaogaina le fa’amasinoga lea sa ou faia ona o tulaga ia. E le talafeagai le faia o se fa’aiuga ae lei mae’a ona fai fa’alelei vaega ia e saili poo le a le mea na tupu i totonu o le tou falefaigaluega tusa ai ma moliaga lea na aumai e fa’asaga i lau susuga. O le a fa’apena ona ou fa’aleaogaina le tatou fa’amasinoga lea sa fai, ae o le a toe tolopo mo le tausaga fou, sei toe saili mai seisi fa’amasino fou, ma toe amata le tou mataupu ma fai fa’alelei. A o’o i le taimi e vala’au ai molimau a leoleo e tatau ona tu’u iai mataupu lea e laga e lau susuga fa’atasi ai ma mataupu ia e laga e molimau a le itu tete’e fa’atoa mafai lea ona sailiili e le fa’amasinoga poo fea le amiotonu, poo ai e pepelo ao ai e le’o pepelo.
10. O le aso 14 o Ianuari lea o le a toe tolopo iai le tou mataupu, sei fuafua poo ai se fa’amasino o avanoa ma se aso e avanoa e toe fofogaina ai lau mataupu. Fa’aauau pea le tatalaina o oe i tua ma tulaga lea e tatala ai oe i tua aemaise lau saini e fa’atalitali ai lau mataupu. Atonu e iai se taimi lua feiloai ma lau loia e fa’amalamalama atili atu le tulaga lea ua iai lau mataupu. O le aso 14 Ianuari 2019 i le 10:00 i le taeao e toe vala’au ai lau mataupu i le potu numera tasi i luma o le Fa’amasino Sili.

JUSTICE NELSON