Police v Tiaka [2021] WSSC 89 (18 March 2021)

SUPREME COURT OF SAMOA
Police v Tiaka [2021] WSSC 89 (18 March 2021)

Case name:	Police v Tiaka
Citation:	[2021] WSSC 89
Decision date:	18 March 2021
Parties:	POLICE (Prosecution) AND TAGIILIMA TIAKA, male of Luua Faga. (Defendant)
Hearing date(s):	18 March 2021
File number(s):	Charging Document dated 29/06/20
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	L Faasii for prosecution P Chang for defendant
Catchwords:	- Adjournment application
Words and phrases:
Legislation cited:
Cases cited:	Police v Aneti Siaosi (26 August 2020)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAGIILIMA TIAKA, male of Luua Faga.
.
Defendant

Counsel:
L Faasii for the prosecution
P Chang for the defendant
Hearing: 18 March 2021
Decision: 18 March 2021

DECISION OF THE COURT
(Adjournment application)

1. The defendant in this matter was at the time of the alleged offending 17 years of age. While that means he is outside the scope of the Young Offenders Act 2007 I consider that the principles laid down by that legislation applies to 17 year olds. This is in line with this countrys obligations in accordance with the Convention of the Rights of the Child (“CRC”) to which it is one of the oldest Pacific parties. That Convention requires proceedings against young persons to be disposed of expeditiously and with minimum delay: see article 40(2)(b)(iii) which says -

“Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(iii) To have the matter determined without delay......”

2. This also aligns with article 9(1) of our Constitution which guarantees that:

“In the determination of his or her civil rights and obligations or of any charge against him or her for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.”

3. As a result of recognition of the CRC, Parliament enacted the Young Offenders Act 2007 and provided therein in section 6(2) that defended hearings where young people plead not guilty must be conducted “as soon as practicable”. It also provided in section 6(3):

“6. Procedure of Youth Court–

(3) The Court may dismiss any charge if the Judge is satisfied that the time that has elapsed between the date of the commission of the offence and the hearing has been unreasonably delayed”

4. In this case the offending is alleged to have occurred on 13 and 14 March 2020 that is over a year ago. In this case it is also apparent that the prosecution are not ready to proceed to hearing of the charges today and the stated reasons are because summonses have not been issued to the Police witnesses and a statement from the co-defendant who was dealt with by the Court on 26 August 2020 has not been obtained.
5. I do not consider this adequate justification for an adjournment. There is no reason why the Police did not issue the necessary summons in preparation for todays trial date which was set some time ago. According to the file on 27 July 2020 when it was set down for hearing the week commencing 15 March 2021 by Perese, CJ.
6. It is also clear from the file that at Callovers last week prosecution indicated the matter was ready to proceed. Neither is it clear why the Police failed to obtain a statement from the co-defendant in this matter who was as noted dealt with in August last year by the Court. In any event it is not necessary to obtain a statement before a witness is called in court to give evidence, other than for the purpose of fairly informing the defence as to the evidence of that witness.
7. The circumstances of the offending are well covered by the decision of the court in relation to the co-defendant: refer unreported judgment of Perese, CJ in Police v Aneti Siaosi (26 August 2020) where he said:

“In coming to a decision about your sentence, I have had regard to Part 2 of the Sentencing Act 2016. In my view, you should be given the chance to be discharged without conviction under s.69 of the Sentencing Act.

I have come to that view for the following reasons:

(1) You are only 18 years old and not previously reoffended;
(2) You have pleaded guilty, whereas your co-offenders have pleaded not guilty. This shows me that you are truly remorseful. Your road to a better life comes from your remorse, which is a sign that you take responsibility for your actions.
(3) The probation report demonstrates:

• (a) You and your family have given your apologies to the victim and your village of Sagone. Your family gave $500 to the victim and $1,600.00 to the village;
• (b) The burglary and theft arose in circumstances which do not suggest any pre-planning, in other words the burglary seems to have been opportunistic;
• (c) You feel sad because you have come to realise your behaviour was not acceptable;
• (d) Your father now lives in New Zealand, and there may come a time when you want to visit him, but a conviction may cause you problems with your ability to travel or remain past a visitor’s visa;
• (e) The value of goods stolen was $13.00”

8. I therefore decline the Police application for an adjournment and in the exercise of the powers of the Court pursuant to section 6(3) of the Young Offenders Act order a dismissal of the charge against the defendant.
9. O le fa’aiuga o le Fa'amasinoga i le mataupu lenei Tagiilima o lea ua te’ena le talosaga a le Ofisa o Leoleo e toe tolopō ona ua leva le mataupu lenei. Ua atoa le tausaga oi luma o le Fa'amasinoga. Ma o leisi tulaga ua mae’a ona fai le fa’aiuga e fa’asaga i le sa molia fa’atasi ma lau susuga. O lea la ua te’ena le toe tolopōina o lau mataupu, ma o lona uiga e leai ni molimau a Leoleo e mafai ona tu’u mai e fa’amaonia ai lenei solitulafono.
10. O lea ua fa’aleaogaina e le Fa'amasinoga solitulafono e fa’asaga ia oe. Ua e malamalama? (Defendant: fa’afetai). Ae e sili ona e ‘alo’alo mamao mai ituaiga mea fa’apenei ua e iloa Tagiilima? E le fa’apea e te maua le fa’amanuiaga i mea fa’apenei i aso uma.
11. Ua ala ona maua le fa’amanuiaga ona ua toso le faiga o le mataupu lea. Ae ana fa’apea e vave na fai su’esu’e e le Fa'amasinoga semanū e ese se fa’aiuga e tu’u atu i lau susuga. Aua la nei toe molia mai oe i luma o le Fa'amasinoga, o le fautuaga lena a le Fa'amasinoga ia oe, ua e malamalama Tagiilima? (Defendant: Ia).

JUSTICE NELSON