Police v Heather [2023] WSSC 91 (11 October 2023)

IN THE SUPREME COURT OF SAMOA
Police v Heather & Anor [2023] WSSC 91 (11 October 2023)

Case name:	Police v Heather & Anor
Citation:	[2023] WSSC 91
Decision date:	11 October 2023
Parties:	POLICE (Informant) v NEIL HEATHER and JACK TIMOTHY HEATHER, males of Tufuiopa (Defendants)
Hearing date(s):
File number(s):	Charges 1, 2, 3 as per charging document dated 29/06/2020
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	I grant the application and direct that the witnesses May Mary Schuster, Moelani Heather and Jonathan Porter give evidence in this trial by zoom video link.
Representation:	L. Sio for Prosecution K. Kruse for the Defendants
Catchwords:	Burglary – theft – intentional damage
Words and phrases:	“application to give evidence via AVL”
Legislation cited:	Evidence Act 2015, ss. 86(3); 88.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

NEIL HEATHER AND JACK TIMOTHY HEATHER males of Tufuiopa

Defendant

Counsel: L. Sio for Prosecution

K. Kruse for both defendants

Date: 11 October 2023

ORAL RULING
(On prosecution’s application for directions for witnesses to give evidence in an alternative way)

1. At the commencement of this trial yesterday, prosecution applied for directions that three of its witnesses give evidence and be cross examined in an alternative way under section 88 Evidence Act 2015. Specifically, they seek that the witnesses’ evidence be given using a form of electronic communications link under section 88(a)(ii). The application has been renewed twice previously when the hearing was scheduled but vacated for reasons which are clear from the record. This is the third time the application has been made.
2. The basis of the application is that the three witnesses namely May Mary Schuster, Moelani Heather and Jonathan Porter have moved to New Zealand where they now reside. Prosecution say that the hearing of the charges against the accused has been vacated five times, and Moelani and Jonathan who were here for previous vacated hearing dates have since moved overseas. I note from the record this is the fourth hearing date and accept Mrs Kruse’s advice that it was largely due to a preliminary application in respect of one co accused’s fitness to stand trial which has since been determined by the Court.
3. Apart from the fact that those three witnesses no longer reside in Samoa, prosecution also advance as a ground that the accused will not be prejudiced in their defence as they would still be able to cross examine the witnesses and put their case across.
4. The application is opposed by both accused. Mrs. Kruse argues that there is no compelling reason or lawful justification provided by prosecution to allow the witnesses to give evidence by alternative means. I do not agree. Section 86 (3) of the Evidence Act is clear on the grounds upon which the court may direct that a witness gives evidence in an alternative way, and “the absence or likely absence of the witness from Samoa” is one of those grounds. I consider also that two of the three witnesses had been here for previous vacated hearing dates.
5. Counsel also argues that the accused have the right to face their accusers in court. And that it is imperative for the court to make in person observations to assess the witnesses’ demeanour which may not be apparent through video evidence. Again I do not agree. As Ms Sio for prosecution rightly puts it, the accused do not have a right to face their accusers in court but a constitutional right to a fair trial which includes under Article 9(4)(d) “the right to examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.” I do not see how that right of the present accused is infringed if the three prosecution witnesses are allowed to give evidence by an alternative way. Furthermore, they will be able to see the witnesses and hear their evidence, and it will not affect the court’s ability to make observations and assessment as to their demeanour.
6. I add that there have been numerous cases most recently where both witnesses and counsel have taken part in court proceedings by alternative means. It is the reality with technology in this day and age and a useful means to dispose proceedings without further delay provided that the court is satisfied of the grounds of an application under sections 86 and 88.
7. Coming back to the present matter I consider that these charges go back to April – May 2020. I consider the absence of the witnesses from the country and the fact that they now reside permanently in New Zealand. I consider that two had been in the country when previous hearing dates were vacated. I consider that the accused’s right to cross examine the witnesses will not be affected by having them give evidence by alternative means, and that they will not be prejudiced in their defence.
8. I grant the application and direct that the witnesses May Mary Schuster, Moelani Heather and Jonathan Porter give evidence in this trial by zoom video link.
   

JUSTICE ROMA