Pauga v Police [2024] WSSC 21 (3 May 2024)

IN THE SUPREME COURT OF SAMOA
Pauga v Police [2024] WSSC 21 (03 May 2024)

Case name:	Pauga v Police
Citation:	[2024] WSSC 21
Decision date:	03 May 2024
Parties:	TALALELEI PAUGA, male of Manono, Samoa and Brisbane, Australia (Applicant) v POLICE (Informant)
Hearing date(s):	11 April 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The application for recusal is dismissed.
Representation:	J. Fuimaono-Sapolu for the Applicant I. Atoa for the Informant
Catchwords:	Recusal application.
Words and phrases:
Legislation cited:	Constitution of the Independent State of Samoa 1960, Article 9;
Cases cited:	Craig v Banks [2012] WSSC 49; Leleua v Lands and Titles Court [2009] WSSC 123; Muir v Commissioner of Inland Revenue [2007] NZCA 334; Penaia v Lands and Titles Court [2011] WSSC 84; Peniamina v Lands and Titles Court [2004] WSCA 1; Police v Leiloa [2020] WSSC 96; Police v Pauga [2023] WSSC 61; Police v Sione [2019] WSSC 97; Reupena v Senara [2017] WSCA 1; Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35; (No 2) [2009] NZSC 122; Stehlin v Police [1993] WSCA 5.
Summary of decision:

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:

of an application for recusal

BETWEEN:

TALALELEI PAUGA, male of Manono, Samoa and Brisbane, Australia

Applicant

AND:

P O L I C E

Informant

Counsels: J. Fuimaono-Sapolu for the Applicant

I. Atoa for the Informant

Hearing: 11 April 2024

Decision: 3 May 2024

JUDGMENT OF THE COURT
(APPLICATION TO RECUSE)

The Proceeding

1. This judgment deals with an application for recusal by the defendant, Talalelei Pauga. The defendant claims that his constitutional right under Article 9 to a fair and impartial hearing is at risk due to a ‘reasonable apprehension of bias’, on myself as the Judge allocated to preside over the defendant’s criminal trial.
2. In the course of hearing the recusal application the court raised some preliminary issues with counsels separate from the recusal application. A decision on those preliminary issues is addressed separate from the recusal application in this decision.
3. First, I provide the background which gave rise to these proceedings.

Background

4. Talalelei Pauga, is the remaining defendant in a criminal matter currently before the Court. There were three co-conspirators in relation to this matter. The first co-conspirator, Taualai Leiloa, when charged pleaded guilty and was sentenced on 22 December 2020. The other two co-conspirators, Lema’i Sione and Malele Paulo were next to be charged. These two have been tried and have since been sentenced in 2023. The defendant visited Samoa in 2018 and in the same year returned back to Australia.
5. The defendant was extradited from Australia to Samoa in September 2023 to answer for the criminal charge of conspiracy to murder against him. The history of these proceedings so far as is relevant is as follows:
   • 1 September 2023: The defendant was formally charged that he conspired with Lema’i Faioso and Malele Paulo to commit the crime of murder against (former) Prime Minister, Tuilaepa Sailele Malielegaoi^[1]. The defendants Lema’i and Malele have since been tried, convicted and are currently serving imprisonment terms;
   • 4 September 2023: The defendant Talalelei Pauga made his first appearance in court and was adjourned to 11 September without plea for the prosecution to finalise charges and for defence counsel, Mr Fagaloa Tufuga to file application for bail;
   • 11 September 2023: The application for bail was filed and was adjourned to 21 September for hearing before Clarke J
   • 14 September 2023: At call-overs the application for bail was instead allocated before Tuatagaloa J for hearing on 21 September.^[2]
   • 21 September 2023: The Prosecution advised the court that the charge of conspiracy to murder is the final charge against the defendant.^[3] The defendant entered a ‘not guilty’ plea. The matter proceeded to hearing of the application for bail. Mr Fagaloa Tufuga was counsel for the defendant. Current counsel Ms Josephina Fuimaono-Sapolu filed an affidavit in support of the application for the applicant/defendant to reside at her place of residence at Lalovaea. Ms Fuimaono-Sapolu also undertakes to make sure that the defendant abides by his bail conditions. The Prosecution at first opposed bail but later renege and no longer opposed bail when they realised their strong ground of opposition was misconceived. Bail was granted.^[4]
   • Early Dec 2023: Trial was allocated to Tuatagaloa J by the Chief Justice.
   • 11 December 2023: Tuatagaloa J called the matter for case management and the following issues were raised by defence counsel, Mr Tufuga:
     • (i) Prosecution indicated they will be calling seven (7) witnesses. Defence Counsel (DC) advised the Court they have only received two (2) witness statements. The Court ordered Prosecution to file and serve all witness statements to DC.
     • (ii) DC sought assistance of a quash application filed before Vaai J in 2018/2019. DC said he had already written to Vaai J and yet to receive a response. The application to quash in the Court’s view is not relevant or no longer of any relevance to the defendant’s trial.
     • (iii) DC sought for the transcript of Lema’i Faioso and Malele Paulo’s trial hearing in March 2023 to be disclosed to them. Prosecution objects. I agreed. The transcript of that hearing is the evidence called and matters relating to those two defendants and cannot be used as evidence in the applicant/defendant’s trial. What is evidence, are the witness statements of the witnesses to be called by the Prosecution in the hearing of the charge against, Talalelei Pauga.
     • (iv) The matter was adjourned to 20 December 2023 for the second case management and to set a hearing date.
   • 20 December 2023: The prosecution confirmed with the Court that all documents relating to the trial have been filed and served upon DC. DC, Mr Tufuga did not appear but instead a Ms Seiuli appeared on instructions of Mr Tufuga who again sought further adjournment for Vaai J’s decision on their application to quash filed in 2018/2019. I reiterated what the Court has said in the first case management hearing that a decision of the quash application filed (then) has no relevance to the present matter. I made it clear to Counsel appearing on instructions of DC Tufuga that the court will not entertain any further delays from getting this matter to trial. Any further delays by DC prolonging this matter from getting to a hearing will result in the defendant’s bail being reviewed.
   • The matter was then set for special fixture hearing on 18 - 22 March 2024.
   • 22 January 2024: DC, Mr Tufuga’s application to withdraw as counsel for the defendant was granted by Nelson J and in his place Ms Josephina Fuimaono-Sapolu became DC.
   • 30 January 2024: The defendant filed application for recusal with supporting affidavit of the defendant.
   • 28 February 2024: The application was called before Nelson J and was referred to Tuatagaloa J.
   • 11 March 2024: Clarke J set the matter on 3 April 2024 before Tuatagaloa J. The hearing set as special fixture for 18 - 22 March obviously cannot proceed with the recusal application now before the Court. Furthermore, DC following the case management hearings filed an appeal on 11 December 2023.
   • 3 April 2024: The Court raised some preliminary issues with counsels. Matter was adjourned for counsels to address the issues raised.
   • 11 April 2024: The preliminary issues and application to recuse were heard together and the Court reserved its decision on both. This is that decision.

The Preliminary issues

6. The preliminary issues raised by the Court on 3 April 2024 were raised upon the following set of facts:
   • Mr Fagaloa Tufuga was counsel for the applicant/defendant who also made application for bail;
   • Ms Josephina Fuimaono-Sapolu provided an affidavit in support for the applicant’s application for bail by providing that the defendant can reside at her place of residence and that she will make sure that the applicant abides by his bail conditions if granted bail. Ms Fuimaono-Sapolu deposed in her affidavit in support a personal relationship she has with the applicant having known him for five (5) years.
   • Ms Josephina Fuimaono-Sapolu later replaced Mr Fagaloa Tufuga as counsel representing the defendant.
7. There was in my view no impropriety in myself as trial judge assigned to handle the proceedings bringing such matters to counsels’ attention and asking counsel to address what would normally be addressed in a pre-trial case management conference. The following issues arise because the applicant was granted bail to reside at Ms Josephina Fuimaono-Sapolu’s residence. At the time, Ms Fuimaono-Sapolu was not counsel for the applicant:
   • (i) The possibility of a conflict of interest of counsel, Ms Josephina Fuimaono-Sapolu representing the defendant given that the defendant is bailed to reside at her place of residence; and/or
   • (ii) Whether bail should be reviewed in terms of place of residence for the defendant.
8. The Prosecution did not file any submissions as they held the view that there is no conflict of interest. Ms Fuimaono-Sapolu filed submissions supporting her stance that there is no conflict of interest involved, that it is not uncommon for parties to engage counsel whom they already have a close relationship. Ms Fuimaono-Sapolu refers in particular to lawyers representing their spouses or relatives. I agree. But it certainly has not been the practice of the court in granting bail that the defendant resides with counsel who is representing him/her in a criminal matter. Perhaps, because there has not been an application before the court by Counsel for the defendant in a bail application offering for the defendant to reside at their place of residence.
9. The issue of whether appropriate for defendant to reside with counsel representing remains to be better addressed when such application comes before the Court.
10. I turn now to consider the application for recusal.

Relevant Law

11. The apprehension of bias is case dependent. The relevant law on bias is well settled. The test for apparent bias involves an objective assessment by a “fair minded and informed observer”. If such an observer would perceive a real possibility (not remote) of bias, the judge must recuse themselves. The test is reiterated by Nelson J in Craig v Banks^[5] at [41]:
    • “The standard to be applied when perception of bias is argued is the objective standard of the reasonable observer fully conversant with all relevant circumstances. If in the eyes of such an observer there was a real danger of bias the judicial officer concerned must step down. But the danger must be “a real danger.” Not an imagined, fanciful or speculative one. There must be reasons justifying the holding of such a belief. In the language of Saxmere:^[6]
      • ‘It is not enough that the circumstances create a vague sense of disquiet.’ And the onus is on the person who claims bias ‘firmly to establish that is the case.”’
12. The test for reasonable apprehension of bias is assessed in the two steps provided in the New Zealand Court of Appeal decision of Muir v Commissioner of Inland Revenue^[7]: Supreme Court case of Saxmere Company Ltd v Wool Board Disestablishment Company Ltd^[8]:
    • (i) Firstly, what are the circumstances relevant to the possible need for recusal because of apparent bias?
    • (ii) Second is, whether there is a ‘logical and sufficient connection’ between those circumstances and that apprehension?
13. This test has been applied in subsequent cases of Peniamina v Lands and Titles Court,^[9] Leleua v Lands and Titles Court,^[10] Penaia v Lands and Titles Court^[11], Craig v Banks, Reupena v Senara^[12] to name a few.
14. I turn now to determine the recusal application applying the two steps process. I will deal separately with each of the grounds for recusal.

Applying the two-steps test

15. The circumstances advanced by counsel for the defendant that requires recusal are:

(i) The Judge from presiding over a preliminary issues hearing (procedural hearing) relating to a bail application is privy to information held in “confidence” that may be prejudicial to the applicant’s case.

16. The defendant avers to the real likelihood that being privy to the information ruled in ‘confidence’ in the bail application of Lema’i Faioso and Malele Paulo means that I will have some relevant prior knowledge of the defendant’s case and therefore will be bias against the defendant. This is mere speculation and misguided.
17. The information that was ruled to be in “confidence” was due to an ongoing police investigation and was considered sensitive at the time because it may cause harm to some people or may hinder the police investigation should it be disclosed in the bail hearing.^[13] For those reasons it was held in ‘confidence’ pursuant to s59 of the Evidence Act 2015. The preliminary issues raised at the time have no relevance to the defendant, Talalelei Pauga. They were issues raised in view of the bail application by the two co-defendants, Lema’i and Malele. The information held in ‘confidence’ were so held for the reasons stated and should no longer in ‘confidence’ once the police had completed their investigations.
18. Furthermore, the defendants Lema’i Sione and Malele Paulo were tried and convicted by a panel of assessors in March 2023 and have been sentenced while the defendant, Talalelei Pauga was still in Australia. Lema’i and Sione are currently serving imprisonment terms. The defendant, Talalelei, was only formally charged on 1 September 2023 upon being extradited to Samoa.

(ii) The Judge by declining to disclose certain documents ruling it to be irrelevant gives a perceived risk to the applicant’s right to a fair trial.

19. At the first case management hearing, former counsel for the defendant, Mr Tufuga, made an oral application seeking for the disclosure of the transcript of the trial of co-defendants Lema’i Faioso and Malele Paulo. This was denied on the basis that the transcript for that trial is not evidence for the trial against the applicant/defendant, Talalelei Pauga. This and an earlier refusal of disclosure of document, counsel says amount to a perceived risk of bias against the right to a fair trial of the defendant.
20. For the sake of clarity, the refusal of disclosure of earlier document is in relation to the sentencing of the first co-defendant (Taualai Leiloa)^[14] and the application was by the defendant, Lema’i Sione for a stay of prosecution against him which application obviously failed because he is now serving an imprisonment term. The document sought to disclose from Taualai Leiloa’s file is to do with Taualai’s sentencing. I fail to see the connection of this document to the defendant’s matter before the court and how that leads to an apprehended bias on myself.
21. It is normal for a party to be dissatisfied with a Court direction or an interlocutory decision that may have been made against the party concerned. We are all humans, and as such, not every decision that is made by a Court may be acceptable to all which may be described as normal human behaviour. But on the same token, it would in my view be inexplicable to, based on these dissatisfactions, claim that the judge will not bring an impartial mind to the substantive hearing.

(iii) The Judge made comments in the case management hearing which comments are unlawful and gives rise to a perceived risk to the defendant’s right to a fair trial.

22. The comments made at the second case management hearing on 20 December 2023 of any delaying tactics will result in reviewing of bail were said in view of former counsel insisting on a decision of Vaai J to an application filed in 2018/2019 to quash prosecution against the defendant. Counsel claims that such comments reflect badly on counsel and are unlawful. Counsel was again told by the Court as in the first case management, that as far as the matter before the court is concerned, that application has no relevance for the defendant has been extradited and formally charged on 1 September 2023. The defendant has since entered a ‘not guilty’ plea and the criminal prosecution is proceeding against the defendant. Vaai J by letter dated 20 March 2024 in response to Ms Fuimaono-Sapolu (current counsel) letter in relation to a decision at paragraph [2] refers:
    • “(2) The application (to declare a warrant for arrest unlawful) was made obviously to support his attempt in Australia to challenge the deportation order, which obviously failed resulting in his deportation back to Samoa.”
23. Any adverse comments by a judge are not suffice to warrant recusal. As referred to in Muir v Commissioner of Inland Revenue^[15] at [103]:
    • “Comments as such (referring to adverse comments) will ordinarily not suffice to warrant recusal. What is important is that commentary should not however demonstrate that the judge has formed a fixed opinion as to the ultimate merits of the matter pending before him or her. It has to be shown, in short, that the judge does not have an open mind”.
24. I fail to see the comments made ‘of any delaying tactics would result in reviewing bail’ in the context they were made would result in the reasonable and objective forming the view that I will be bias. Those comments were certainly not unlawful.

(iv) The Judge by presiding over preliminary issues and bail application of the applicant gives a perceived risk of bias from presiding over the defendant’s trial.

25. The defendant suggests that Judges who preside over bail applications and preliminary or procedural issues should not preside over the substantive hearings of those same matters. For by doing so, gives a perceived risk that the right to a fair trial of the defendant guaranteed under article 9 of the Constitution will be placed at great risk. In the present matter almost all the judges of the Supreme Court have presided over the various preliminary applications by the co-defendants or by prosecution.
26. The approach adopted by this jurisdiction is, that the judge is not required to recuse merely because he/she has previously dealt with the case and the judge should not accede too readily to suggestion of bias. As applied by Nelson J in Leleua:
    • “Judges have a duty to sit on the cases allocated to them. A duty that is sometimes not often well understood in this country. This duty should be carried out unless there is good reason not to.”
27. As stated in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd:^[16]
    • ‘Judges should not automatically disqualify themselves in response to litigants’ suggestions that there is an appearance of lack of impartiality. Judges allocated to sit in a case have a duty to do so unless they are disqualified. If a practice were to emerge of judges disqualifying themselves without having good reasons litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of parties and would not be conducive to the ends of and administration of justice.’
28. If there is no good reason then I, as a judicial officer am, bound to carry out the duties I am sworn to faithfully undertake namely to give judgment objectively and impartially and without fear or favour.
29. A judge shall treat recusal applications with robustness and proportionate scepticism just like any other application. For a small jurisdiction like Samoa the doctrine of disqualification for alleged bias has to be applied somewhat robustly.^[17] If it is left to the litigants, there will forever be objections and cases would never get heard. As stated by Vaai J in Peniamina v Lands and Titles Court:^[18]
    • “The view...that if left to the litigant to decide which tribunal he or she appears before that is the fair and impartial or court to which all are entitled is wrong and unworkable.”

Conclusion

30. The application is not only speculative, misguided but is also short of substance and conviction. Counsel for the defendant failed to heed the warning expressed in Peniamina namely that the test to be applied is an objective one, “Viewed through the eyes of the reasonable observer aware of all the relevant circumstances. It is not the subjective perception of the particular litigant” and “speculative accusations of bias are not enough.”
31. The circumstances upon which apprehension of bias is said to arise do not meet the threshold of the two-step test established by settled law. There is no logical and sufficient connection between the circumstances and the apprehension of bias raised by counsel for the defendant. That is, no reasonable fair-minded person knowing all the surrounding facts will reasonably apprehended that I, as the judicial officer will not be impartial and may decide the defendant’s case other than on its merits.
32. The application for recusal is dismissed.

JUSTICE TUATAGALOA

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^[1] The defendants Lema’i Sione and Malele Paulo were found guilty by a panel of assessors and are currently serving imprisonment terms.
^[2] The defendant, Talalelei Pauga in his affidavit in support of his application to quash made very serious and damaging allegations against Clarke J which allegations were misconceived and wrong.
^[3] Information 2023-02550 SC/CR/UP.
^[4] Police v Pauga [2023] WSSC 61 (21 September 2023) – bail decision.
^[5] Craig v Banks [2012] WSSC 49 (11 May 2012).
^[6] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35; (No 2) [2009] NZSC 122.
^[7] Muir v Commissioner of Inland Revenue [2007] NZCA 334.
^[8] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35; (No 2) [2009] NZSC 122.
^[9] Peniamina v Lands and Titles Court [2004] WSCA 1.
^[10] Leleua v Lands and Titles Court [2009] WSSC 123.
^[11] Penaia v Lands and Titles Court [2011] WSSC 84.
^[12] Reupena v Senara [2017] WSCA 1.
^[13] Police v Sione [2019] WSSC 97 (30 October 2019) – see paragraphs [28] – [31].
^[14] Police v Leiloa [2020] WSSC 96 (22 December 2020).
^[15] ibid at note [7].
^[16] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72.
^[17] Stehlin v Police [1993] WSCA 5; This was certainly the position in R v Gough [1993] UKHL 1; 2 All ER 724.
^[18] ibid, note 6.