Police v Sione [2022] WSSC 73 (15 July 2022)

SUPREME COURT OF SAMOA
Police v Sione & Anor [2022] WSSC 73

Case name:	Police v Sione
Citation:	[2022] WSSC 73
Decision date:	15 July 2022
Parties:	The Crimes Act 2013, the Criminal Procedure Act 2016, The Constitution of Samoa 1960, and Common Law. AND: IN THE MATTER OF an application by LEMA’I SIONE First Applicant AND an application by MALELE PAULO Second Applicant AND The Police Respondent
Hearing date(s):	4 July 2022
File number(s):	MISC 187/21
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:	- The motions for stay are dismissed.
Representation:	U I Sapolu for First Applicant N Schuster for Second Applicant L I Atoa for prosecution
Catchwords:	conspiracy to commit murder – conspiracy to murder – conspiracy to commit an offence – real risk – prima facie – abuse of process – result
Words and phrases:	- applications for orders to stay the prosecutions - fundamental right to a fair trial - insufficient evidence to proceed with a full and proper prosecution - prejudice against the defendants - real risk the defendants will not get a fair trial -
Legislation cited:	Crimes Act 2013 ss. 38, 99(a) & 33, s.106
Cases cited:	Moevao v Department of Labour Re Emanuelle v Cahill [187] FCA 57 Toailoa Law Office v Duffy [2005] WSSC 7
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC 187/21

IN THE MATTER OF
The Crimes Act 2013, the Criminal Procedure Act 2016, The Constitution of Samoa 1960, and Common Law.

A N D:

IN THE MATTER OF
an application by LEMA’I SIONE
First Applicant

A N D

an application by MALELE PAULO
Second Applicant

A N D

The Police
Respondent

Counsel:
U I Sapolu for First Applicant
N Schuster for Second Applicant
L I Atoa for prosecution

Hearing: 4 July 2022

Decision: 15 July 2022

DECISION OF PERESE CJ

1. The Constitution preserves a person’s fundamental right to a fair trial; it also empowers the Supreme Court to make all such orders as may be necessary and appropriate to secure to an applicant the various rights, such as the right to a fair trial.
2. The Applicants, Lema’i Sione and Malele Paulo, ask the Court to make orders to stay the continuation of the prosecution being brought against them because the prosecutions breach their rights to a fair trial, or the prosecutions are an abuse of the Court’s processes.
3. Both men are jointly charged by the Police as follows:
   • (a) S1531/19: One (1) charge of conspiracy to commit murder pursuant to sections 38, 99(a) and 33 of the Crimes Act 2013, the maximum penalty being seven years imprisonment.

(b) S1551/19: One (1) charge of conspiracy to murder pursuant to sections 106 and 33 of the Crimes Act 2013, the maximum penalty being life imprisonment.
(c) Charging document dated 11 October 2019 which charges as an additional charge a charge of conspiracy to commit an offence pursuant to s.38 of the Crimes Act 2013, the maximum penalty being seven years imprisonment.

4. Were the applications for orders to stay the prosecutions successful that would mean the prosecutions would be stopped; no further step is able to be taken to prosecute the Applicants for the serious charges of conspiracy to commit murder and conspiracy to murder, which attracts a maximum penalty of life imprisonment. A stay of prosecution does not mean the Applicants are therefore innocent, that is because in our criminal justice system an accused person is presumed to be innocent until proven guilty.
5. In this judgment I will first set out the grounds of the applications, then identify the issues for the Court to determine. This will then be followed by a discussion of the legal principles and the facts of the case which are relevant to the issues in dispute. The final part of my analysis is to assess the facts; make findings of facts; and to apply the law to the findings of fact.
6. Grounds advanced by the First Applicant Mr Sione
   1. On or about 9 September 2019, the Applicant entered Not Guilty Pleas to one count of committing the crime of conspiracy to commit an offence (sections 38, 99(a) & 33 of the Crimes Act 2013), Information 1531/19, and one count of conspiracy to commit murder (sections 106 & 33 of the Crimes Act 2013), Information 1551/19.
   2. The Applicant had been detained on or about 14 August 2019, and was remanded in custody until 28 February 2020, when Her Honour Justice Tuala-Warren granted bail for the Applicant, and a co-defendant Malele Paulo.
   3. The Applicant was further remanded in custody from late March 2020 until on or about 5 May 2020, when Her Honour Justice Tuala-Warren, granted bail again for the Applicant.

7. Grounds advanced by the Second Applicant Mr Paulo^[1]
   1. That there is a real risk to the Applicant’s right to a fair trial if these proceedings were to proceed due to prejudice from the disclosure of surrounding facts alleged and conduct of the complainant; and
   2. That there is insufficient evidence to proceed with these proceedings due to issues relating to the admissibility of evidence and lack thereof.
3. Extensive affidavits were filed by both Applicants similarly; extensive submissions were filed by counsel for the Applicant.

APPLICANTS’ GROUNDS

8. Mr Sione advanced 3 grounds to support his application.
   • (1) There is a real risk the defendants will not get a fair trial. I will discuss the particulars of this ground below
   • (2) There is prejudice against the defendants due to the complainant’s authoritative position and the complainants conduct since the prosecution commenced.
   • (3) There is insufficient evidence to proceed with a full and proper prosecution. The lack of sufficient evidence arises because of territorially issues which affect the admissibility of evidence.
9. Mr Paulo on the other hand advanced 2 similarly focused grounds in support of his application.
   • (1) There is a real risk to the Applicant’s rights to a fair trial due to prejudice from the disclosure of surrounding facts alleged and the conduct of the complainant.
   • (2) There is insufficient evidence to proceed due to issues relating to the admissibility of evidence and lack thereof.

WHAT ARE THE ISSUES?

11. I draw from these grounds the following issues for the Court to determine.

(1) Is there a “real risk” that the defendants will not receive a fair trial?

(2) Is there a prima facie case that should be determined at trial?

(3) Are there any other grounds upon which a stay can be based, such as the release of information that was the subject of a suppression order to Australian authorities?

REAL RISK THAT THE DEFENDANTS WILL NOT RECEIVE A FAIR TRIAL

12. Article 9(1) which provides:
    • 9. Right to a fair trial - (1) 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. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.
13. The Applicants concern that they may or would not get a fair trial was advanced as follows
    • (a) There has been an unreasonable delay to the hearing of the applications for stay;
    • (b) There is a high risk they would not be judged by an independent and impartial tribunal if the matters were to go to a hearing because:
      • (i) There was disclosure of evidence that was the subject of a suppression order made in the Supreme Court, the disclosure of such evidence being an abuse of process, and also serving to prejudice the Applicants in the eyes of potential assessors;
      • (ii) The behaviour of the complainant in his public statements about the Applicants;
      • (iii) Improper purpose arising from political interference in the bringing of the prosecutions in the first place;
      • (iv) Allegations by the then Attorney General claiming the Judiciary was not impartial;
      • (v) Threats by the complainant against the Judiciary and the impact of such threats upon potential assessors for an assessor-trial and any impact on the presiding trial judge.

The principles which apply to applications for stay

14. The leading authority is the decision of this court in Toailoa Law Office v Duffy [2005] WSSC 7, which discussed the issue of a fair trial in the context of the fundamental right in Art 9(1) and with respect to the principles of the common law and in relation to an issue of abuse of process. The common law approach to fair trial may be summarized as follows.
    • “At common law, where there is, in a criminal proceeding, an obstacle in the way of a fair trial or a prejudice to the right to a fair trial had arisen, a stay of the prosecution or dismissal of the charge did not follow as a matter of course. The Court would have to see whether any action can be taken to remove the obstacle or alleviate the prejudice in order to have a fair trial. This is part of the Court’s duty of ensuring a fair trial. If no action can be taken to ensure that a fair trial takes place, then the prosecution must be brought to an end by granting a permanent stay or dismissing the charge. These would appear to be the appropriate remedies in such a situation.
15. The Applicant, however, in addition to their rights at common law, also have fundamental right to a fair trial under Art 9. Without expressly saying so, the Court in Duffy applied the common law approach to determining the rights under Art 9; the court held at page 6 of the judgment:
    • “In the circumstances of what occurred, I am of the opinion that the trial should have been adjourned in order to give the respondent adequate time to prepare his defence. That would have satisfied the respondent’s specific right provided in Article 9(4)(b) and the same time safeguard his primary right to a fair hearing provided in Article 9(1). This would have been the appropriate course to take as there was no evidence that an adjournment would have been unduly prejudicial to the respondent. Such an adjournment could have been accompanied by an order to the appellant to serve on the respondent’s counsel within one or two days a legible copy of the trial document which the respondent’s counsel found difficult to read.
    • “I am also of the opinion that there was no violation of the respondent’s right to a fair hearing provided in Article 9(1). In the first place, this is not a case where it was impossible to achieve a fair trial. The obstacle in the way of a fair trial created by the late service of trial documents by the appellant on the respondent’s counsel could have been overcome by an adjournment to give the respondent adequate time to prepare his defence. Such an adjournment, as I was informed from the bar, would have been for two months. There was, as already mentioned, no suggestion that such an adjournment would have been unduly prejudicial to the respondent. If it had been impossible to achieve a fair trial by any means available to the Court, then there would have been a violation of the respondent’s right to a fair trial because it means that the respondent had been effectively denied the right to a fair trial which is given to him by Article 9(1). Secondly, if the hearing had proceeded notwithstanding the late service of copies of the trial documents by the appellant, it would have been arguable that the respondent’s right to a fair trial had been violated because he did not have adequate time to prepare his defence contrary to Article 9(4)(b). But the hearing did not proceed. So the respondent did not have an unfair hearing. There is no other basis that I can see by which it can be said that the respondent’s right to a fair trial had been violated. I have therefore come to the view that there had been no violation of the respondent’s constitutional right to a fair trial”.
16. The confluence of common law principles with Constitutional rights and obligations creates a limitation which I do not consider helpful in understanding the nature and extent of the right to a fair trial under the Supreme law of Samoa. Perhaps the Constitutional right has a wider meaning? I will in this case adopt the approach taken in Duffy, but the Court may be faced with circumstances that call for the issue to be further addressed.

HAVE THE APPLICANTS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BEEN BREACHED?

17. This issue raises two questions:

(a) Has there been an unreasonable delay in the hearing of the applications for stay?

(b) Is there a real risk the Applicants could not be tried by an independent and impartial tribunal?

I turn to these questions in turn:

Was there an unreasonable delay?

18. A chronology of events is appropriate:

27 October 2020 -Mr. Sione’s application for stay
5 August 2021 -Amended Application for stay
16 August 2021 First hearing date for Mr Sione’s application
6 September 2021 -Respondents motion to oppose the application for stay
10 September 2021 -Mr. Paulo’s application for stay
21 April 2022 - Second hearing date. Abandoned because counsels were in agreement that assigned Justice was conflicted. Matter adjourned to mentions on Monday 25 April 2022 to set new hearing date.
6 May 2022 - Third new hearing date. Prosecution filed memorandum asking to adjourn the hearing on account of the prosecutor having a family emergency in 2 April 2022 and subsequently being on bereavement leave for 3 weeks.
13 May 2022 - Prosecution had not filed a memorandum of submissions for the reason that the prosecutor was on bereavement leave. Given the complexity of the issues, it would take a new prosecutor time to be able to file submissions.
6 June 2022 - Mentions. The Prosecutions submissions filed and a hearing date was set for 7 July 2022.
7 July 2022 - Hearing of applications

19. It can be seen from this chronology there was a considerable delay of ten months between the filing of the 1^st and the 2^nd Applicants applications for stay. Another delay occurs from the date of the 2^nd Application and the first date of hearing. It would appear at during this time the Applicants were involved in applications for bail.
20. The issue is whether the time it has taken for the hearing of the applications is a reasonable time? The initial pleading filed on 27 October 2022 was amended on 5 August 2021. The amended claim raised further issues than those contained in the initial application. The more complete nature of the amended claim suggests to me that it would be wrong to begin counting time running from the date of the initial filing. On the other hand, the 2^nd Applicants application was the filed on 10 September 2021. The issue of the reasonableness of time must be assessed from August/September 2021 to a hearing date of 21 April 2022 and an eventual hearing date of 7 July 2022.
21. The delay caused by the recusal of Tuala Warren J. who had been rostered to hear the application for stay on 21 April 2022 appears to have been for the interests of justice. Justice must not only be done it must be seen to be done, and Tuala Warren J. delivered the bail decision affecting both Applicants that included an order for suppression which has been allegedly breached by the prosecution, and one of the grounds of the Applicants application for stay of prosecution.
22. The delay to the 6 May 2020 hearing arose because of a bereavement affecting the Prosecutor. Personal tragedy type delays happen and will interfere with scheduling. Other personal events which delay hearings include contracting Covid and other diseases where someone is required to isolate. With the lead counsel for the prosecution being on bereavement leave, the respondent’s failure to comply with a timetable direction for the filing of submissions on behalf of the respondent was somewhat inevitable in the event of an extension to bereavement leave.
23. There is no formula by which the reasonableness of a delay can be calculated. Is a question of judgment of the circumstances of each case. In my view the delay between 6 May and 7 July is not unacceptably long in the circumstances. Both the recusal of the Justice and the bereavement leave were proper reasons for the delay to the hearing of the trial. The respondent’s submissions having been filed by at least 6 June 2022, the Court allocated the matter a hearing date of 7 July 2022. It would have been a different situation if the hearing of the stay application was required to go back to the hearing que.
24. Turning to the question of whether a fair trial is able to be held with an independent and impartial tribunal?

Would the Applicants’ be deprived of an independent and impartial tribunal?

25. The Applicants placed a lot of emphasis on the effect of the disclosures on a panel of Assessors. Both Applicants aligned the alleged damage caused by the disclosure to mean that an assessor trial could not be safely held. I am unable to accept the submission, for three reasons:

(a) The disclosures include police witness allegations against the Applicants, and statements contained in sentencing notes of a co-accused pleaded guilty. But they do not include evidence of self-incrimination. I acknowledge that there is of course an implicit prejudice against co-conspirators when one of the co-offenders pleads guilty. However, I am not satisfied that such tacit prejudice would, without more, be enough to give rise to a stay. In this case, when looked at in the whole and objectively, the statements do not in and of themselves establish an insurmountable prejudice that would reduce the Applicants rights to a fair trial before a Judge and panel of assessors to be of no value or worthless.

(a) Ms Schuster submits the co-offender, who plead guilty was sentenced and is now serving time, is in the process of making an application to vacate his guilty plea, on the basis that it was not freely given. It would follow therefore that if the “co-accused” was granted leave to vacate his guilty plea, then the probative value of any admission by him and which could therefore be implied against the Applicants as co-accused, would be worthless.

(c)The third reason which persuades me against the applications for stay on the basis of the disclosures “tainting” the potential pool of assessors is that it is open to the Applicants elect trial by a Judge alone (s.6 CPA).

i. In our criminal justice system, the general rule is that all matters are tried before a Judge alone s. 6(1) of the Criminal Procedure Act 2016 (“CPA”).
ii Trial by assessors is an exception to that general rule where the offence is punishable by life imprisonment s.6(2) of the Criminal Procedure Act 2015. A defendant so charged however may elect to be tried before a Judge alone (s.6(3) of the CPA. If the Applicants consider their prospects before a panel of assessors is compromised by the unlawful disclosures, then the law provides them with an alternation by way of an election, exercisable by them, to be tried by a Judge alone.
iii Ms Sapolu responsibly conceded that her client Mr Sione could elect to be tried by a Judge alone. Ms Sapolu’s main thrust in her submissions was to focus on behaviour which in her submission justified a stay on the basis of an abuse of process, which I will come to shortly.
iv Ms Schuster, whilst acknowledging that her client, Mr Paulo, could elect to be tried by a Judge alone nevertheless suggested that her client should not have to be put in the position of having to make the election.

26. Respectfully, the Constitutional right to a fair trial is not limited to or defined by the holding of a trial involving assessors, if that were so then all trials in the Supreme Court should be tried with assessors; that is not the case in Samoa. Article 9 refers to an obligation upon those responsible for making or applying the law to provide for a fair trial. Section 6 CPA provides the statutory framework which gives effect to the fundamental right of a fair trial. If an accused prefers a trial by assessors rather than a Judge alone, the trial Judge has the obligation of taking appropriate steps to ensure the accused’s fair trial rights are protected, which includes the need for an independent and impartial trial. Settled common law obligations require the removal of obstacles or the alleviation of prejudice against the defendant in order to have a fair trial. If the obstacles cannot be removed or the prejudice alleviated, then the prosecution should be stayed. These applications for stay for the breach of their Constitutional rights are at best premature.
28. I now turn to the next related issue – abuse of process.

ABUSE OF PROCESS

29. In addition to a stay being granted on the basis of an irremediable breach of a person, Art 9 rights, a stay may also be ordered on the basis of an abuse of process. Although some factors which are advanced in support of an application for stay under the constitution, can must be taken to not treat an allegation of abuse of process as an Art 9 issue. The grant of abuse of process has an altogether different basis: Re Emanuelle v Cahill [187] FCA 57, para 83:
    • The authorities are consistent in their emphasis that a clear, compelling and exceptional case must be shown to warrant the exercise of what is categorized as an extraordinary power, a power of last resort the exercise of which is necessary in the particular circumstances in order to serve the ends of justice. That this is the position is made clear in the decision of the Court of Appeal of New Zealand in Moevao v Department of Labour, particularly per Richmond P Woodhouse J and Richardson J:
      • “The justification for stay a prosecution is that the court is obliged to take that extra step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the court processes are being employed for the ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply by fairness to the particular accused. If is not whether the initiation and continuation of a particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.
30. Abuse of process is claimed to arise because of the way in which the Prosecution improperly disclosed information to prosecution authorities in Australia in support of an application to extradite a potential co-defendant. It also arises because of alleged improper purposes including political purposes; procedural unfairness and or procedural misconduct in their inconsistent treatment of different co-defendants, and the other grounds advanced in the amended application for stay, identified at paragraphs [1] f and g.
    31. Disclosure of allegedly prejudicial material against co-defendants/co-applicants. There are two publications which are at issue. The first relates to the suppression of evidential matters placed before the Court in relation to a bail hearing (“bail disclosure”).
    1. The second relates to the publishing of a sentencing decision in relation to a co-accused, which also contained information provided to the court considering the bail application (“sentence disclosure”). The sentencing of the co-accused, Taualai Leiloa Tuilaepa, was carried out in open court; nether the defendant or prosecution sought suppression orders in relation to the alleged involvement of the Applicants, under s.56 of the Criminal Procedure Act 2016.

Bail disclosure

33. As an abuse of process issue, the Applicants say that this court should denounce the Prosecution’s breach of the order for suppression by permanently staying the prosecution against them.
34. It appears Her Honour Tuatagaloa J issued a 3-page decision unreported decision dated 30 October 2019 expressed to address various orders sought by the Prosecution. The learned Judge made the following orders:
    • (i) The bail hearing will be by way of viva voce. The prosecution witnesses including Tualai Leiloa and Alatise Leafa are to give evidence.
    • (ii) The information received in confidence is to remain confidential. This includes additional information not disclosed in the affidavits of Taualai Leiloa and Lalatise Leafa, including statements made by the two witnesses to the Police.
    • (iii) The bail hearing will be closed to the general public and the media.
    • (iv) The Court also prohibits the publication of any report or account of the whole of the proceeding of the bail hearing.
    • (v) The Bail application came before Her Honour Justice Tuala-Warren. The learned Judge reinforced the issue of suppression at para [52] of her unreported decision dated 28 February 2020.

“Due to the particular facts of this case, the public and media interest it has drawn and the fact that it will be a trial before assessors drawn from our community, it is important to protect the accused’s right to a fair trial protected by Article 9(1) of the Constitution. The publication of the surrounding facts alleged as set out in this Ruling may prejudice that right to a fair trial guaranteed by Article 9(1). Accordingly, the only part of this ruling which may be published in news media, on the internet, or in any other publicly accessible database, until final disposition of the trial, is the fact that both accused applied for bail, bail was granted and the conditions of bail.

35. Mr Lema’i however breached his bail conditions in mid-March 2020 and he appears to have further appeared before Tuala-Warren J and been granted further bail on 5 May 2020.
36. The breach of bail issue, and the granting of new bail, although contained in a decision not reported in the law reports was nevertheless the subject of a newspaper article in the Samoa Observer, and which appears to go beyond the parameters for publication, noted at para [52] of the original decision noted above. The report named Mr Lema’i and noted that he had been jointly charged with co-defendant Mr Paulo with conspiracy to murder of the then Prime Minister of Samoa. No application for contempt of the Court’s orders was made at that time or later.

The sentencing disclosure – 22 December 2020

37. As previously referred, a co-accused Mr Leiloa pleaded guilty to a charge of conspiracy to commit an offence. He was sentenced on 22 December 2020 by Her Honour Justice Tuala-Warren. The sentencing was carried out in open court. Neither the prosecution nor the defendant, Mr Leiloa, sought an order for suppression. The Applicants in this case apparently did not know that the sentencing hearing had been scheduled. I note that a different prosecutor appeared at the sentencing to the Prosecutor who had appeared at the Bail hearings before Justices Tuatagaloa and Tuala-Warren.
38. Ms Atoa confirmed for the court that the Attorney General’s Office made the disclosure because they considered that there was a difference between disclosure and publication. That they released the information, which was the subject of the suppression order, to Australia as part of disclosure requirements in the Samoan Government’s application to extradite a potential co-defendant, Mr Pauga, who was unable to be charged on account of his being in Australia.
39. The question in the abuse of process context is whether the Attorney General’s actions are so egregious that the only proportionate response is to stay the proceeding?
40. From an outcome perspective, I am advised by all counsel that they are unaware of whether the disclosure led to publication anywhere other than in the Australian proceeding. There was no evidence that the information was published in Samoa potentially affecting the pool of persons whom might become Assessors in an Assessor trial hearing the Applicants’ cases. It therefore follows that the Applicant is unable to demonstrate a causal link between the Attorney General’s disclosure and harm to the Applicant’s right to a fair trial.
41. The sentencing decision was however published by the media in Samoa, shortly after the decision had been delivered. But, despite publication which clearly breached the terms of the suppression orders, the Applicants did not apply to this Court for an order for contempt against the newspaper or news media at that time or later.
42. The Applicants focus on the publication issue might therefore be seen to be selective in that it primarily focusses on the actions of the Attorney General. Whilst the court does not countenance a breach of its orders, it is clear from the authorities referred to earlier that a clearly compelling an exceptional case needs to be shown in order to warrant the exercise of an extraordinary power of last resort – to stay a prosecution. In this case, there has been a breach of the order, admittedly so. But, I do not consider that the breach is of a type which can only be remedied by the grant of a stay. In this regard I take into account that the breach was motivated by a misunderstanding of the law rather than a deliberate or flagrant breach to not obey a Court order. The appropriate remedy for this breach is an admonishment from the Court; the Attorney General’s office is reminded of the very high standards that are expect by and relied on in the fair and proper administration of justice in our country.
43. The applicants also rely on these further grounds in support of their claim of abuse of process which in the circumstances either would lead to an unfair trial;

(a) Political purpose.

44. I have some difficulty in understanding the evidential basis for the allegation of political purpose. The Applicant’s struggled to point to any political conflict between them and the complainant. Apparently one of the Applicants may have stood as a candidate for an opposing political party. Neither Applicant was able to point to any credible evidence of hostility or ill feeling stemming from the complainant to them that would support an allegation that the complainant or the police had abused the Court’s processes to prosecute these individuals.

(b) Political pressure

45. The Applicants complain that the Police investigation suffered from potential conflicts of interest in that the Police reported to the complainant who was at that time the Minister of Police, and who also the Minister to whom the Attorney General reported. The Applicants relied on Keil v National Prosecution Office [2017] WSSC 5, which involved Egon Keil, the then Commissioner of Police. Some 268 charges were laid against the Commissioner and they were set down for hearing. An independent prosecutor, Mr Nigel Hampton QC, was appointed by the Attorney General to review the charges. On the day of the Mr Hampton sought to withdraw all of the charges. Mr Hampton’s application for leave was based on three main flaws: (1) the police officers involved in arresting and charging the defendant had an interest in the defendant being arrested and charged. Mr Hampton submitted that none of the allegations had been properly investigated by objective and independent investigators. (2) at no time were any of the charges able to satisfy the two-part evidential sufficiency test – (i) was there a prima facie evidence of an offence; (ii) if so, was there reasonable prospect of the prosecution succeeding? (3) the public interest was not met and never was. There was no public interest in pursuing the prosecution, which would have been better raised and explored in an inquisitorial Commission of Inquiry rather than the use of an adversarial criminal trial.
46. With respect, the Applicants attempt to align their circumstances to those which prevailed in Keil is a long stretch. Critical to the question of conflict was in Keil the existence of a personal conflict between the investigators and the Applicants. The conflict the Applicants rely on is the Constitutional relationship between the complainant and the Police and the Attorney General. However, no evidence, beyond the existence of the Constitutional relationship, was advanced in support of a credible challenge to impugn the integrity of either the Investigators or the Attorney General. Indeed, Ms Atoa submitted: (Footnote para 6)
    • It is conceded that the victim is the former prime minister and a leader of the now Opposition party. However, factors as such do not have any bearing on the evidence against the defendants nor does it have any impact on the Prosecution of this matter. This is due to the fact that the Prosecutorial test to proceed with a criminal matter is determined by the Prosecution without any influence by the complainants in the proceedings of Criminal cases.
47. Ms Atoa makes an important point that even if it could be shown that the complainant had personal ill will against the Applicant’s, the Prosecutorial test is carried out without any influence by any complainant in proceedings of Criminal cases.
48. In relation to the substance of the claim of a lack of evidence against the Applicants, Ms Atoa submitted: (footnote para 7)
    • The respondent submits that there is overwhelming evidence by witnesses to prove the criminal charge against the two [applicants] beyond a reasonable doubt.
49. 49. The Applicants as is their right, filed affidavits in support of their motions for stay. As could be expected, they do not address any of the substantive issues for trial. Although submissions are made about the sufficiency of the evidence against them, or lack thereof, without evidence that would enable me to consider them in the whole, I am left with the submissions of the prosecution that the Prosecutorial test is carried out by the Police independent of the influence of the complainants, and that there is overwhelming evidence of an offence and that it is therefore likely that there is a good prospect of success. Beyond that, it would be improper for the Court in a stay application to try to evaluate the sufficiency of the evidence on the papers in a summary way.
50. There is one exception, the alleged recanting of Mr Tuilaepa, the co-offender’s guilty plea. I will discuss this later in the judgment.

(b) Letter and or threats to the Judiciary and its independence.

51. For completeness, I note the Applicants raised these types of issues. They have no impact whatsoever on the Court’s work and therefore are simply not grounds upon which a claim of abuse of process can be founded. The Judges of the Court will continue to carry out their work in accordance with their Oaths of Office.

Lack of a case for the Applicants to answer

52. The Applicants submit there is not enough probative evidence to continue with the proceedings against them; this is said to be due to issues relating to the admissibility of evidence and lack thereof in this matter. The complaint appears to be largely concerned with two hurdles:
    • (a) the fact of Mr Talalelei Pauga not being charged with an offence of conspiring with the Applicants, when the Applicants have been charged with the offence of conspiring with Mr Pauga. However, if it ultimately transpires that for whatever reason Mr Pauga is not charged, that does not necessarily mean there is a defect in the conspiracy charge against the Applicants; for a conspiracy charge to be made out there needs to be an agreement between at least two persons for a common purpose. The elements of the offence may be proved against the Applicants. Moreover, and irrespective of the position with regards Mr Pauga, the prosecution is required to prove its case against the Applicants; whether that evidence is sufficient for that purpose is a matter for the trial, and not to be determined in a summary way.
    • (b) it is also submitted the alleged recanting by Mr Tuilaepa, the co-defendant, of his position and guilty plea somehow evidences a weakness in the prosecution. The co-defendant’s application is presently being prepared; ultimately it will be filed, heard and determined. If leave is granted to the co-defendant to vacate his guilty plea, then the trial Judge in charge of the Applicants’ trial will need to make his or her own assessment of how that might affect the Applicants trial, if at all. I do not consider it appropriate to engage in what would amount to be nothing more than speculation as to the potential effects of a successful application to vacate a guilty plea.

RESULT

53. The motions for stay are dismissed.

CHIEF JUSTICE

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^[1] Grounds advanced by the Second Applicant Mr Paulo