Police v Roache [2023] WSSC 50 (20 June 2023)

IN THE SUPREME COURT OF SAMOA
Police v Roache & Ors [2023] WSSC 50 (20 June 2023)

Case name:	Police v Roache & Ors
Citation:	[2023] WSSC 50
Decision date:	20 June 2023
Parties:	POLICE (Informant) v GREGORY ROACHE a.k.a. KOLIO ROACHE a.k.a. GREGORY ILENEO ROACHE, male of Vaiusu and Faleasiu. CHRIS IOSEFO PALATE a.k.a. IOSEFO KOLINI a.k.a. IOSEFO PEPE KOLINI male of Vaimoso, Moamoa fou, Leauvaa and Sataua Savaii and PJ EVALU male of Alafua, Nuufou and Solosolo (Defendants)
Hearing date(s):	20 June 2023
File number(s):	S2/21.S3/21.S5/21.S12.21.S14/21.S15/21.S18/21.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	Police to immediately execute the outstanding arrest warrant against the third accused. Upon execution, he is to be remanded in custody to 3 July 2023 when the charges against him will be recalled; Leave is granted to withdraw all charges against the first accused. The charges are withdrawn and dismissed; Leave is also granted to withdraw all except the common assault charge on Petelo against the second accused. Except for the common assault charge on Petelo, all charges against the second accused are withdrawn and dismissed; Leave is also granted to the second accused to vacate his not guilty plea and enter a guilty plea to the one remaining charge of common assault. On his guilty plea, he is remanded to 25 July 2023 at 12.30pm for a summary of facts, pre-sentence report and sentencing.
Representation:	L. Sio-Ofoia for the Informant P. Chang for the First Accused K. Koria for the Second Accused C. Vaai for the Third Accused
Catchwords:	Murder – manslaughter – grievous bodily harm – common assault – actual bodily harm – insufficient evidence.
Words and phrases:	“Application to withdraw charges” – “accused face multiple charges”.
Legislation cited:	Criminal Procedure Act 2016, s. 54(2).
Cases cited:	Police v Taimalie [2022] WSSC 4 (25 February 2022).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

GREGORY ROACHE a.k.a. KOLIO ROACHE a.k.a. GREGORY ILENEO ROACHE, male of Vaiusu and Faleasiu. CHRIS IOSEFO PALATE a.k.a. IOSEFO KOLINI a.k.a. IOSEFO PEPE KOLINI male of Vaimoso, Moamoa fou, Leauvaa and Sataua Savaii and PJ EVALU male of Alafua, Nuufou and Solosolo

Accused

Counsel: L. Sio-Ofoia for the Informant

P. Chang for the First Accused

K. Koria for the Second Accused

C. Vaai for the Third Accused

Ruling: 20 June 2023

REASONS FOR RULING OF JUSTICE ROMA
(Application to withdraw charges)

Charges

1. The record shows that 3 hearing dates were previously vacated. On 6 February 2023, the matter was assigned this week for hearing. For weeks at callovers, the last being Thursday 15 June 2023, it was assigned today 20 June 2023 for the hearing to commence.
2. The accused face multiple charges arising out of an incident at the Birdies bar, Tuanaimato on the evening of 12 December 2020. The incident involved a number of people. It resulted in the death of one Poasa Misipati (deceased) and injuries to two other victims namely Palemia Apisala (Palemia) and Petelo Sanele Isitolo (Petelo).
3. The first accused faces charges of murder, manslaughter, grievous bodily harm, actual bodily harm and common assault on the deceased. He faces a second common assault charge on Palemia.
4. The second accused faces charges of causing grievous bodily harm, actual bodily harm and common assault on Palemia; and causing grievous bodily harm, actual bodily harm and common assault on Petelo.
5. The third accused also faces a number of charges. An arrest warrant was issued for his failure to appear on 6 June 2022. That warrant remains outstanding and again he makes no appearance this morning. But his counsel appears having learnt in passing of the hearing against the co accused. In a letter dated yesterday 19 June 2023, counsel indicated that he would be seeking an adjournment so that his client with whom he has had no contact can be part of this hearing. I decline that application. Again an arrest warrant remains outstanding against the third accused; even counsel has lost contact with him; this is a long outstanding matter; and prosecution has an application in respect of the first and second accused who have always attended court and appear again this morning. There is no reason to further adjourn the proceedings so that the third accused can join at his convenience.

Prosecution’s Application

6. In a memorandum received by the Court last Friday 16 June 2023, prosecution indicated they would be seeking to withdraw a number of charges against the first and second accused. The formal application was filed and received today.
7. In respect of the first accused, they seek to withdraw all charges – murder, manslaughter, grievous bodily harm, actual bodily harm, and two counts of common assault.
8. For all charges concerning the deceased, the grounds of the application are:
   • (a) prosecution will not be able to lead evidence on the cause of death;
   • (b) the post mortem report on the deceased’s injuries and cause of death cannot be tendered in evidence because of lack of contact with the seven Chinese forensic pathologists who conducted the examination and signed the report;
   • (c) attempts to contact them through diplomatic channels and Chinese embassy have been unsuccessful and neither can and will be able to testify in person or virtually;
   • (d) as to the laceration on the right eyebrow, prosecution cannot rule out beyond reasonable doubt that others involved in the brawl were responsible.
9. As to the second common assault charge on Palemia, the grounds are:
   • (a) the victim has left the jurisdiction for seasonal work and attempts to reach him through family have been unsuccessful;
   • (b) a review of the evidence shows that the first accused acted in self defence, having been punched first by the victim who for the third time had forced his way back into the bar after being denied entry by the first accused.
10. In relation to the second accused, prosecution relies on the same grounds to withdraw the grievous bodily harm, actual bodily harm and assault charges concerning Palemia. Further they say that police have been unable to obtain any medical records / reports, having been advised by TTM Hospital that they have yet to locate the file(s).
11. As to the grievous bodily harm and actual bodily harm charges concerning Petelo, prosecution relies on police being unable to obtain medical records from TTM Hospital.
12. Further to the above grounds, prosecution cites the absence of 5 witnesses – Palemia, Lotu Salamo, Peter Poulos, Oscar Tafa and Constable Evan Tavae, whom they say TCU had confirmed have all left the jurisdiction.
13. For the above reasons, prosecution says there is insufficient evidence to prove the cause of death in relation to the murder and manslaughter charges; there is insufficient evidence to prove the injuries in relation to the grievous and actual bodily harm charges; and there is no reasonable prospect of convictions should they proceed on the charges.
14. Unsurprisingly the application is not opposed by the first and second accused.

Discussion

15. The tragic loss of a life from criminal offending is a serious matter that cannot be overlooked. That no one is held responsible after charges had been laid is regrettable. But most unsatisfactory is the fact that prosecution’s inability to offer evidence on the cause of death is due to lack of contact with pathologists who conducted the examination and prepared the report.
16. Whilst acknowledged the post mortem was conducted by a team of Chinese pathologists through international assistance, it is simply unacceptable that such crucial evidence cannot be later produced at trial for lack of contact with authors of the report. After all, the primary purpose of the examination is to determine the cause of death and produce evidence of same at trial where death is alleged to be the result of criminal offending.
17. Section 54(2) Criminal Procedure Act 2016 provides “Any information or charging document laid in the Supreme Court may be withdrawn by the prosecutor with the leave of a Judge at any time during the hearing.” The withdrawal of charges is therefore at the discretion of the court which must be satisfied the application has proper grounds. (see Police v Taimalie [2022] WSSC 4 (25 February 2022))
18. In this matter, the absence of 5 witnesses including one victim from the jurisdiction, inability of prosecution to obtain medical reports and failure to produce in evidence the post mortem report following unsuccessful attempts to make contact with pathologists provide proper grounds for prosecution’s application. Regrettably the tragic death of the deceased cannot be fully explained and in that regard no closure is provided for his family. But in the circumstances and on the grounds advanced by prosecution, the court can only exercise the discretion in favour of the application to withdraw the charges.

Orders

19. I make the following orders:
    • (a) Police to immediately execute the outstanding arrest warrant against the third accused. Upon execution, he is to be remanded in custody to 3 July 2023 when the charges against him will be recalled;
    • (b) Leave is granted to withdraw all charges against the first accused. The charges are withdrawn and dismissed;
    • (c) Leave is also granted to withdraw all except the common assault charge on Petelo against the second accused. Except for the common assault charge on Petelo, all charges against the second accused are withdrawn and dismissed;
    • (d) Leave is also granted to the second accused to vacate his not guilty plea and enter a guilty plea to the one remaining charge of common assault. On his guilty plea, he is remanded to 25 July 2023 at 12.30pm for a summary of facts, pre-sentence report and sentencing.

JUSTICE ROMA