Police v Tupai [2018] WSSC 22 (21 February 2018)

SUPREME COURT OF SAMOA
Police v Tupai [2018] WSSC 22

Case name:	Police v Tupai
Citation:	[2018] WSSC 22
Decision date:	21 February 2018
Parties:
Hearing date(s):	19 February 2018
File number(s):	S2993/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused is allowed to withdraw his guilty plea to the sexual violation charges and to restore his not guilty plea. The sexual violation and adultery charges together with the accused’s guilty plea thereto are reinstated. Likewise, the attempted sexual violation and threat to kill charges
Representation:
Catchwords:	application to withdraw guilty plea – applicable law to an application to withdraw a guilty plea – legal principle applicable -
Words and phrases:
Legislation cited:
Cases cited:	Kereti Tulitoa v Police ] WSSC 13; Mafuao Gaia [2000] WSSC 3; Onosai Nofoaiga v Police [2007] WSCA 3 Police v Maina Sio [2000] WSSC 5; Police Reopoamo Ekalesia [2003] WSSC 13 .
	Police v Viliamu [2008] WSSC 74
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AOKUSO TUPAI male of Sagone, Savaii.
Accused

Counsel:
L Sio for prosecution
Accused in person

Hearing: 19 February 2018

Judgment: 21 February 2018

JUDGMENT OF SAPOLU CJ

The charges

1. The accused who is a pastor was charged with five counts of sexual violation, one count of attempted sexual violation, six counts of sexual connection with a dependent family member, two counts of threat to kill, and one count of adultery. In all, there were fifteen counts against the accused.
2. When this matter was called for mention on 26 January 2017, the accused who did not want to engage counsel, pleaded not guilty to the five counts of sexual violation, the one count of attempted sexual violation, and the two counts of threat to kill. He pleaded guilty to the six counts of sexual connection and the one count of adultery. At a later date, he changed his not guilty plea and pleaded guilty to the counts of sexual violation and the prosecution withdrew all the other counts. The accused now wants to withdraw his guilty plea to the sexual violation counts and revert back to his initial plea of not guilty.

Background

(a) Police interviews of the accused

3. When the accused was interviewed by police constable Pu’a Gataivai at the Asau police post on 25 November 2016 about this matter, he wanted to make a statement. That statement was recorded in writing by the police officer and signed by the accused on several pages. The second page of the statement shows that the police officer explained to the accused the purpose of their interview and the allegations for which the accused was being interviewed. These allegations were that: (a) between 31 August 2014 and 1 November 2014 the accused had forceful intercourses (faiga-aiga faifaamalosi) with the victim, (b) between 31 August 2014 and 1 November 2014the accused attempted to have forceful sexual intercourse with the victim, (c) between 31 May 2014 and 1 July 2014 the accused threatened to kill the victim, and (d) between 31 December 2015 and 1 February 2016 the accused had forceful sexual intercourse with the accused. The police officer then asked the accused whether he understands the purpose of their interview and the accused replied yes.
4. The police officer then explained to the accused his right to silence, his right to counsel, and his right to legal representation. The accused understood his rights as explained to him and informed the police officer accordingly. Because the accused wanted to make a statement, the police officer gave him the opportunity to make a statement. This appears from the sixth page of the statement. The accused then said: “I acknowledge to you that I admit the charges and the matter that we have been talking about today and this morning” (Ou te faailoa atu ou te ioeina moliaga ma le mataupu e pei ona ta talatalanoa ai lenei aso ma lenei taeao). The police officer then asked the accused whether there is anything else he wants to say or to be explained to him before they conclude their interview and the accused said no and thanked the police officer for the opportunity.
5. The second time that constable Pu’a Gataivai interviewed the accused was on 2 December 2016 at the Vaitoomuli police post in Palauli. This was in relation to the alleged sexual connections between the accused and a dependent member of his family and the alleged adultery during the period between 31 August 2014 and 1 November 2014 and the period 31 December 2015 and 1 February 2016. These are the same periods covered in the allegations of forceful sexual intercourse or sexual violation. It would therefore appear that the six counts of sexual connection with which the accused was interviewed on 2 December 2016 relate to the same incidents on which the five counts of sexual violation and the one count of attempted sexual violation are based. The accused did not want to make a statement at this second second interview at the police post in Palauli.

(b) The matter in Court

6. When this matter was first called for mention on 16 January 2017, the accused, as earlier mentioned, pleaded not guilty to the counts of sexual violation, attempted sexual violation, and threat to kill. However, he pleaded guilty to the counts of sexual connection and adultery. The accused still did not want to engage counsel at that time when asked by the Court. The matter was then set for the hearing of the sexual violation, attempted sexual violation, and threat to kill charges on 12 May 2017. On that date, the presiding Judge ordered that the accused be assigned counsel on legal aid. As a result, the matter was further adjourned for hearing to the week commencing 23 October 2017 and for the accused to be assigned counsel on legal aid. On 23 October 2017, the accused appeared with counsel on legal aid. Counsel advised the Court that the accused’s plea of not guilty to the counts of sexual violation, attempted sexual violation, and threat to kill be vacated and substituted with a guilty plea. The prosecution then withdrew the counts of sexual connection and adultery to which the accused had already pleaded guilty. The charges of attempted sexual connection and threat to kill to which the accused had pleaded not guilty were also withdrawn. The matter was then further adjourned to 13 November 2017 for a pre-sentence report, summary of facts, and sentencing. On 13 November, when this matter was called in Court again, the accused wanted to reverse his guilty plea to the counts of sexual violation. In consequence, his then counsel applied to withdraw from further acting as counsel for the accused. Mr Wulf was then assigned on legal aid as new counsel for the accused.
7. Mr Wulf has now filed an application on behalf of the accused to vacate his guilty plea to the sexual violation charges and to substitute it with a not guilty plea. The prosecution opposes the application. It is that application which is the subject of the present proceedings.

(c) The accused and his previous counsel

8. The accused testified that after he had pleaded not guilty to the counts of sexual violation, attempted sexual violation, and threat to kill and pleaded guilty to the counts of sexual connection and adultery, and was assigned counsel on legal aid, he told his legal aid counsel that he denies the sexual violation and the attempted sexual violation charges because the victim consented. However, he admits to the sexual connection charges. He also testified that his previous counsel advised him to entertain a plea bargain with the prosecution and he agreed. He was then advised by his previous counsel that the prosecution is willing to accept a plea bargain deal where he was to charge his initial not guilty plea to the sexual violation charges to guilty and the remaining charges will be dismissed. He further testified that his previous counsel also advised him that that was the best option for him to take. Perhaps, previous counsel took into consideration the statement made by the accused to constable Pu’a Gataivai at the Asau police post which contains an admission by the accused to the allegations of sexual violation, attempted sexual violation, and threat to kill. Eventually, the accused agreed, on the advice of his previous counsel, to take the plea bargain deal offered by the prosecution.
9. Subsequently, when the accused was interviewed by the probation service for the preparation of his pre-sentence report, he denied to the probation service that he raped the victim but maintained that he had sexual connection with the victim with her consent. At a later date when his previous counsel read the victim impact report to him, he denied that part of the victim impact report where the victim says that the accused raped her. The accused then informed his previous counsel that he did not want to continue with the plea bargain deal but would want to have the matter heard in Court. So when the matter was called for sentencing on 13 November 2017, previous counsel for the accused informed the presiding Judge that the accused would like to withdraw his guilty plea to the sexual violation charges and revert back to his not guilty plea. Previous counsel at the same time withdrew from continuing to act for the accused. Mr Wulf was then assigned on legal aid to act as new counsel for the accused.

Application to withdraw guilty plea

10. Mr Wulf then filed an application to withdraw the accused’s guilty plea and to revert back to the accused’s not guilty plea. The two grounds of the application are: (a) the accused has a clear defence to the charges, and (b) that it is in the interests of justice for the accused to be allowed to withdraw his guilty plea and to proceed to trial. The prosecution opposes the application.

The prosecution’s affidavit evidence

11. In his sworn affidavit, constable Pu’a Gataivai states that when he brought the accused to the Asau police post for questioning, he explained to the accused that the purpose why the police wanted to question him was in relation to the allegations of sexual violation and threat to kill against him. The accused understood the allegations. The statement made by the accused to constable Pu’a Gataivai is then attached to the police officer’s affidavit. In the statement, the accused admits to the allegations.
12. The victim in her sworn affidavit details the various occasions that the accused raped her by having forceful intercourse with her without her consent. She also refers to the threats the accused made against her. As a result of the acts committed by the accused on her, she has given birth to two children.

The applicable law to an application to withdraw a guilty plea

1. Section 72 of the Criminal Procedure Act 2016 provides:

“(1) A plea of guilty may by leave of the Court be vacated at any time before the defendant has been sentenced or otherwise dealt with.

“(2) No guilty plea may be vacated unless the Court is satisfied that:

(a) the defendant has not really pleaded guilty; or
(b) there has been some mistake; or
(c) there was a clear defence.

“(3) Subsection (2) is subject to the overriding discretion of the Court to act in the interests of justice”

13. The legal principles applicable to an application to withdraw a guilty plea are summarised in Police v Viliamu [2008] WSSC 74, para [33] where it is stated:
    • “[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 [2000] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police Reopoamo Ekalesia ef="h/www.paclii.org/worg/worg/ws/cases/WSSC/2003/13.html?stem=&synonyms=&query=%22Police%20v%20Tauveve%20%22" title="View Case">[200SC 13; Kereti Tulitoa v Police [2006] WSSC 13; Onosai Nofoaiga v Police [2007] WSCA 3. The guidiinciple is whether the interests of justice require that an accused who has pleaded guilty ilty to a charge should be granted leave to withdraw his plea of guilty and substituted 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. Those are only examples of the interests of justice test: Onosai Nofoaiga vce&#160 [2007] WSCA 3
    • It is recommended that counsel also refer to Adams on Criminal Law vol 2, Ch 5.5.23 (2), (3) which discuss the broad test of “what is in the interests of justice” and set out other types of situations where “in the interests of justice” the accused has been allowed to withdraw a guilty plea to a criminal charge.

Discussion

15. In relation to the first ground of the accused’s application, namely, that he has a clear defence, I am of the respectful view that there is no substance in this ground. The accused in his statement given to constable Pu’a Gataivai at the Asau police station admits to the allegations of sexual violation, attempted sexual violation, and threats to kill. The police officer in his sworn affidavit to which a copy of the accused’s statement is attached confirms what the accused had said to hm. The victim in her sworn affidavit sets out in detail the various occasions that the accused had forceful sexual intercourse with her without her consent, the occasion the accused attempted to have forceful sexual intercourse with her, and the occasions the accused uttered threatening words to her. The accused had also previously pleaded guilty to the charges of sexual violation, attempted sexual violation, and threats to kill. He is a pastor and evidently an intelligent man.
16. The only evidence in support of the accused’s proposed defence of consent on the victim’s part is his initial not guilty plea to the relevant charges, his advice to his previous counsel that the victim did consent, his denial of the sexual violation charges to the probation service, and his objection made to his previous counsel about that part of the victim impact report where the victim says that the accused raped her.
17. On all of that material, I am of the view that the accused does not have a clear defence. He has an arguable defence, but I do not consider that he has a clear defence.
18. As to the second ground of the application, namely, that in the circumstances of this case, it is in the interests of justice to allow the accused to withdraw his guilty plea and proceed to trial, the position is not so straightforward. It appears that the accused had always wanted to plea not guilty to the charges of sexual violation which he has a legal right to do. This is evident from his initial plea of not guilty to those charges on 16 January 2017 when this matter was first called for mention. He maintained that position up to 12 May 2017 which was the first hearing date. On 12 May, the presiding Judge adjourned the matter to a new hearing date which was 23 October 2017 for the accused to be assigned counsel on legal aid because of the seriousness of the charges. When the accused was assigned legal aid counsel, he informed counsel that he denies the sexual violation charges because the victim consented. However, after the plea bargain suggested by counsel to him, he eventually agreed to change his plea to the sexual violation charges from not guilty to guilty because of the advice by counsel that that was the best option for him. When the matter was adjourned for a pre-sentence report, the accused told the probation service that the victim consented and therefore again denied the sexual violation charges. Subsequently, when the accused’s then counsel read the victim impact report to him, he objected and denied what the victim says that the accused raped her.
19. Despite the admission by the accused in his statement to the police and what is said by the victim in her sworn affidavit, I have come to the conclusion that I should allow the accused to withdraw his guilty plea to the charges of sexual violation, attempted sexual violation, and threats to kill and to reinstate his not guilty plea.
20. The accused has a legal right to plead not guilty to a criminal charge. In this case, the accused evidently wanted to plead not guilty to the sexual violation charges. If counsel, after giving advice to the accused, disagrees with that course being taken, then he has two options, either continue to act for the accused or withdraw as counsel as previous counsel for the accused has properly done. The case, of course, is that of the accused and not of counsel.
21. Both Mr Wulf for the accused and counsel for the prosecution were in agreement that if the accused were to be allowed to withdraw his guilty plea to the sexual violation charges and to revert back to his not guilty plea, then the charges of sexual connection and adultery which have been dismissed should be reinstated together with the accused’s guilty plea to those charges. The charges of attempted sexual violation and threat to kill would also have to be reinstated.

Conclusion

22. The accused is allowed to withdraw his guilty plea to the sexual violation charges and to restore his not guilty plea. The sexual violation and adultery charges together with the accused’s guilty plea thereto are reinstated. Likewise, the attempted sexual violation and threat to kill charges
23. This matter is further adjourned for hearing during the week commencing 9 July 2018.

CHIEF JUSTICE