Police v Faatasi [2023] WSSC 10 (22 March 2023)

IN THE SUPREME COURT OF SAMOA
Police v Faatasi [2023] WSSC 10 (22 March 2023)

Case name:	Police v Faatasi
Citation:	[2023] WSSC 10
Decision date:	22 March 2023
Parties:	POLICE (Prosecution) v STEVE AFIAFI FAAATASI, male of Aele & Auala (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Accordingly, on prosecution application and by consent of the Defendant, all charges against the Defendant are withdrawn and dismissed.
Representation:	T. Sasagi for Prosecution T. Toailoa for the Accused
Catchwords:	Murder -
Words and phrases:	“Prosecution application to withdraw charges” – “serious delays in conduct of proceedings”.
Legislation cited:	Constitution of the Independent State of Samoa 1960, Articles 9(1); 9(3).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

STEVE AFIAFI FAATASI, male of Aele & Auala

Accused

Counsels: T Sasagi for Prosecution
T Toailoa for the Accused

Ruling: 22^nd March 2023

ORAL REMARKS ON APPLICATION BY PROSECUTION
TO WITHDRAW CHARGES

1. On the 8^th October 2016, 44 year old Sauaga Iese of Aele was allegedly killed at Aele. The post mortem report shows that the deceased allegedly suffered blunt force trauma to his face and neck and multiple cuts also to his face and neck. The cause of the deceased’s death is said to be blunt force trauma to the head.
2. On the 12^th October 2016, the defendant was charged with his murder.
3. When this matter was again scheduled for hearing on Monday 20 March 2023 before me, Prosecution appeared and applied to withdraw the charges against the Defendant. The grounds for the application to withdraw charges against the Defendant are that:
   • (i) Two of Prosecution’s key witnesses have travelled overseas. An affidavit from the Investigating Officer show that these witnesses departed Samoa on the 16^th November last year on the seasonal worker program; and
   • (ii) That the family of the deceased wish to have the matter withdrawn.
4. It is bewildering that given the completely unsatisfactory conduct of this matter that almost 7 years after the victim was allegedly killed and the Defendant charged, prosecution now applies to withdraw the charges against the Defendant. This is because this week’s hearing date is about the 10^th or 11^th hearing date for this matter, the first hearing having been scheduled for the 26^th June 2017 – almost 6 years ago. Most of the earlier hearing dates were vacated due to prosecution not being ready to proceed. When the last hearing date was vacated on application by prosecution on the 19^th July 2022 on the grounds that the prosecutor’s children were unwell, I delivered oral remarks expressing concern over the conduct of this matter and the persistent applications by prosecution to adjourn matters and vacate hearing dates. I stated that:
   • “The continued adjournments of hearings and the vacating of hearing dates before this Court seriously starts to raise questions over the conduct of justice before this Court. We must all do our utmost, the Court, prosecution and defence counsel to ensure matters proceed to hearing.”
5. My remarks seem to have gone unheeded. Those remarks should have rung concern with prosecution and police to ensure the hearing of the charges could proceed this week before me. Those remarks were delivered on the 19^th July 2022. Four months after delivering those remarks, on the 16^th November 2022, 2 of prosecutions key witnesses left Samoa for New Zealand on the RSE scheme on 7 months contracts. Evidently, no pro-active steps were apparently taken by prosecution or police to ensure prosecution witnesses would be here to give evidence this week. Yet, there were a number of options available to prosecution, to for example:
   • (i) seek an early hearing date prior to the departure of the witnesses in November; or
   • (ii) obtain departure prohibition orders to prohibit the departure of these witnesses from Samoa under the Immigration Act 2020; or
   • (iii) locate the witnesses and apply to have their evidence given by audio visual link at trial. The whereabouts of these two witnesses in New Zealand ought to be straightforward to ascertain from records and information held by the Ministry of Commerce Industry and Labour given they are on the RSE program. Certainly, there is no indication on the material before me that such an endeavour would have been difficult.
6. On Monday when the application by prosecution was made to withdraw charges, defence counsel submitted that prosecution was either unwilling or unable to proceed with this matter.
7. Given the serious delay in the conduct of these proceedings and its completely unsatisfactory conduct over a lengthy period of time, largely due to prosecution applications, I am obliged to grant the application by prosecution to withdraw the charges against the Defendant.
8. In reaching this decision, I bear in mind the presumption of the defendant’s innocence and his right to a hearing within a reasonable time guaranteed by article 9(1) and 9(3) of the Constitution.
9. Accordingly, on prosecution application and by consent of the Defendant, all charges against the Defendant are withdrawn and dismissed.
10. Steve, you are now free to go.

_____________________

JUSTICE CLARKE