Leau v Police [2024] WSSC 69 (29 July 2024)

IN THE SUPREME COURT OF SAMOA
Leau & Ors v Police [2024] WSSC 69 (29 July 2024)

Case name:	Leau & Ors v Police
Citation:	[2024] WSSC 69
Decision date:	29 July 2024
Parties:	SAMUELU LEAU aka FAUEGA LEAUTULI TOESE aka SAMUELU PIKI aka SAM LEAU; SIVAI KEPI MAMEA; LISAMARIE SCHMIDT; FEPULEAI FAIMATA SU’A & LI’O FAATAUMALAMA AUAVA (Appellants) v POLICE (Respondent)
Hearing date(s):	26 July 2024
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:	District Court of Samoa, Mulinuu
Order:	I grant the appeal concerning the fixture and vacate the hearing date of 26 August 2024. I refer the matter back to the Learned Judge to set a new date for hearing. I dismiss the 1st and 2nd Appellants recusal appeal.
Representation:	U. I. Sapolu and J. Fuimaono Sapolu for the First and Second Named Appellants M. T. Lui for the Third and Fourth Named Appellants T. Toailoa for the Fifth Named Appellant L. T. Strickland for the Respondent
Catchwords:	Recusal appeal – appealing hearing date.
Words and phrases:
Legislation cited:	Constitution of the Independent State of Samoa 1960, Art 9.
Cases cited:	Lauano v President of the Land and Titles Court [2024] WSSC 20.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

1. SAMUELU LEAU aka FAUEGA LEAUTULI TOESE aka SAMUELU PIKI aka SAM LEAU
   
2. SIVAI KEPI MAMEA
   
3. LISAMARIE SCHMIDT
   
4. FEPULEAI FAIMATA SU’A
   
5. LI’O FAATAUMALAMA AUAVA
   

Appellants

AND:

P O L I C E

Respondent

Court: Chief Justice Perese

Counsel: U. I. Sapolu and J. Fuimaono Sapolu for the First and Second Named Appellants
M. T. Lui for the Third and Fourth Named Appellants
T. Toailoa for the Fifth Named Appellant
L. T. Strickland for the Respondent

Hearing: 26 July 2024
Judgment: 29 July 2024

JUDGMENT OF THE COURT

1. These appeals concern rulings of Her Honour the Senior Judge of the District Court, Judge Atoa-Sa’aga. The first challenge is brought by all five Appellants; they allege a denial of their rights to be represented by counsel of choice, preserved in article 9 of the Constitution (“the Art. 9 appeal”). The second challenge is brought only by the first and second Appellants; they challenge the Learned Judge’s decision to hear the matter and not recuse herself (“the recusal appeal”).
2. The Respondent opposes the Art. 9 appeal and will abide this Court’s decision in relation to the recusal appeal.
3. I first deal with the Art. 9 appeal, followed by the recusal appeal.

The facts

4. The parties are agreed:
   • (a) 26 January 2024, the 1^st, 2^nd and 3^rd Appellants were charged with offences, which included misleading police, fabricating evidence, conspiracy to defeat/pervert the course of justice.
   • (b) 27 and 29 January and 13 February 2024, the 1^st Appellant was charged with additional offences.
   • (c) 2 and 13 February 2024, the 2^nd Appellant was charged with additional offences.
   • (d) 5 February 2024, 4^th Appellant was charged.
   • (e) 20 February 2024, 1^st and 2^nd Appellants is charged with additional offences.
   • (f) 21 February 2024, the 4^th Appellant is charged with additional offences.
   • (g) 22^nd February 2024, the 5^th Appellant charged.
   • (h) 24 February 2024, the 3^rd Appellant is charged with additional offences.
   • (i) 27 February 2024, date of hearing scheduled – 20 May 2024 (for 2 weeks).
   • (j) 8 March 2024 – trial documents served, containing 97 witness statements.
   • (k) 18 March 2024 – further trial documents served containing 20 documents including witness statements.
   • (l) 23 April 2024, Appellants advise the court that they were in the process of retaining overseas counsel.
   • (m) 2 May 2024, Appellants counsel wrote to the Court advising that the 2 weeks hearing date allocated on 27 February 2024, was not going to be long enough.
   • (n) 10 May 2024, further trial documents served including 12 witness statements and 7 new witnesses served. As at this date, prosecution had 80 witnesses and 119 statements.
   • (o) 20 May 2024, application by Appellants to adjourn substantive hearing to April 2025; court advised that overseas counsel had been instructed for the first and second appellants (Mr P. Borich KC), and third and fourth appellants (Mr R. Marchant).
   • (p) 30 May 2024 Appellants counsel provide memoranda as to their dates of unavailability.
   • (q) 21 June 2024, decision of Judge Atoa-Sa’aga directing the Police to amend the informations to include the place of the alleged offending, and corrections of the 1^st Appellant’s name.
   • (r) 21 June 2024, the court delivers its decision concerning the hearing date, and directs the hearing to begin of 26 August 2024.
   • (s) 26 July 2024, prosecution advise this Court that the charges are anticipated to be finalised by the 2^nd August 2024. The charges are to be numbered (to identify the differences between them, some of those differences being slight or subtle). Further, the charges which were filed before Ms Strickland became involved in this matter were intended to be withdrawn, and some to be substituted with the charges amended pursuant to the courts direction for further particulars, made on 21 June 2024
5. There are other events and dates to which I will refer as required. However, in my respectful view, these are the milestones which appear relevant to the Art. 9 issue.

The Appellants appeal

6. The Appellants rely on their Art 9 rights. They say the setting of the hearing date of 26 August 2024 breaches their right to counsel of choice. Respectfully, the Constitutional claim is premature.
7. What is clear to me is that this file is not yet ready to be allocated a hearing. It is neither necessary or appropriate, at this juncture, to elevate this dispute into the territory of an alleged breach of fundamental rights.
8. When the Learned Judge set the first hearing date 20 May 2024, Her Honour was not to know that there would be so many charges and witnesses. That is plain from the fact of an experienced judge setting the matter down for a 2-week trial. However, the litigation, as it evolved through the ensuing service of the trial documents, show the Police intend to call as many as 80 witnesses to give evidence set out in 119 witness statements. Clearly more time was required, and appropriately the Judge has now allocated a 5-week fixture.
9. The Learned Judge also made a direction for Police to file amended charges that set out the actual place where the alleged offending took place. Her Honour must have appreciated a need for this clarity, and made the order. Whilst one might be dismayed the charges have still not been finalised, that would be an unduly harsh criticism of the prosecution. That is because these kinds of interlocutory details, important in the context of the case, can take time to iron out.
10. Without the finalised charges the Appellants are not reasonably able to formulate their defences. Indeed, it maybe that once all the relevant information has been disclosed, the Appellants might wish to reconsider their pleas, and avail themselves of the sentencing discounts for early guilty pleas. Conversely, the Prosecution and Defence may be able to discuss which charges are to finally be proceeded with. There might be merit in proceeding with representative charges to expedite the hearing, thereby reducing the demands on witnesses, and enhancing the chances of busy counsel being available earlier than April 2025.
11. However, what is of immediate concern is the advice of counsel for the 3^rd, 4^th and 5^th Appellants that the proposed hearing dates cut across other instructions in the Supreme Court. It means if these counsel are not able to appear for the Appellant clients, these parties would need to instruct new counsel.
12. When it comes to how much time is required for new counsel to prepare for a hearing, context is all important. But as a general guide, it would not be unusual for counsel to spend 2 days to prepare for a 1 day of trial. On that basis, for a 5-week hearing – over 25 hearing days, one might expect up to 50 days for preparation, or 10 weeks to prepare. Winding back from the 26 August, this would mean the trial date needed to have been set on about 10 June 2024. Though the trial date was not set until 21 June 2024, the almost two-week difference may not in the end have been critical when viewed in the whole. In my respectful view, new counsel would not have a reasonable time within which to prepare.
13. The Learned Judge at the time Her Honour set the 26 August 2024 hearing date, on 21 June 2024, was not to know that counsel involved in this matter also have matters in the Supreme Court during the 5-week period that has been set for this trial. For instance, Ms Toailoa is scheduled to represent a defendant in a 5-day murder trial on 19 August 2024, an assessor trial that may roll over to the following week; or that Ms Strickland, the prosecutor in this matter, is scheduled to prosecute an assessor trial involving allegations of sexual connection in the same week. Ms Sapolu, is scheduled to appear in another assessor trial in that week, but which is likely to be moved to be heard during one of the weeks of the trial of this matter. Ms Lui has a long-standing matter to be heard over 3 days in the week commencing 26 August 2024, again in the Supreme Court. Both Ms Toailoa and Ms Lui are involved in a Supreme Court matters in the week commencing 2 September 2024. The call-over list for the following weeks has not yet been released, but these hearings and trials were set months ago at either Civil or Criminal mentions of the Supreme Court.
14. Respectfully, it is a long-standing position that Supreme Court matters, and the maintenance of those fixtures, is ordinarily given priority.
15. It follows in my view, that the 26 August 2024 trial over 5 weeks cannot proceed without significant and unreasonable prejudice to some party or other, either in this litigation or in other cases before the court. I come to that view notwithstanding issues such as the Appellants rights to a trial without delay particularly as he remains in custody, the impact on the other Appellants, and the restrictions on their movements, and the impact of the 11-month delay on the witnesses. In relation to the effects of the delay on the Appellants, these are overborn by their request to hold the trial in April 2025, and the practical reality that the trial cannot, for the reasons set out earlier, be held as scheduled. The effect of the delay on the witnesses is unfortunate, but, ordinarily, cases take years to come to trial. The Police should not hesitate to seek the court’s assistance if there is any pressure put on witnesses to recant their evidence, something which at present is only a risk or a possibility.
16. I observe the Learned Judge did not seem to take into consideration the availability of counsel instructed in New Zealand when setting the 26 August 2024 hearing date. There is no absolute right to counsel. What is required is a careful weighing up the competing interests involved to determine the overall interests of justice. That important exercise was not carried out by Her Honour.
17. Counsel in Samoa have obviously determined with their clients that they require the assistance of senior counsel. The rank of senior counsel is reserved for the most senior advocates. The senior counsel involved in this matter are highly experienced criminal lawyers. Their involvement will undoubtedly benefit the conduct of the case and contribute to the administration of criminal justice in our country. I note the Learned Judge expresses a level of confidence in the Appellants’ Samoan counsel, confidence which I share; but, it is nevertheless a decision that they have made with their client and it must be respected.
18. I grant the appeal concerning the fixture and vacate the hearing date of 26 August 2024. I refer the matter back to the Learned Judge to set a new date for hearing.

The recusal application

19. The 1^st and 2^nd Appellants relied on submissions filed by Counsel.
20. Ms Fuimaono-Sapolu submitted her clients were prevented from challenging the Learned Judges explanation (in her decision) and were therefore prejudiced.
21. Respectfully, I can take the matter no further. I find that there was no proper basis upon which the application for recusal based on the ground of religious interactions/familiarity was brought in the first place. As the Supreme Court said in the very recent case of Lauano v President of the Land and Titles Court [2024] WSSC 20, held:
    • ...no reasonable person would think that a Judge in Samoa would breach his or her judicial oath to favour parties of his or her religious persuasion.”
22. Mr Fuimaono Sapolu did not seek to persuade me otherwise. I also adopt the last two sentences of that paragraph as being apposite the circumstances of this case – We appreciate that this litigation has given rise to strong feelings. But even so this argument should not have been advanced. The views of the Supreme Court Justices were expressed in the Learned Judge’s recusal decision, but appear to have fallen on deaf ears.
23. The second of the two grounds advance in the application for recusal - alleges pre-determination or bias as evidenced in Her Honours bail decision. This ground is hopeless, as well. A bail application proceeds in a summary way, where the evidence is not tested, but must nevertheless be evaluated in a preliminary way. It is not appropriate to make final findings of fact going to credibility. I do not read the Judges recusal decision to offer any views that may be seen by a reasonable person, aware of all the circumstances, that it is inappropriate for Her Honour to hear the substantive hearing.
24. I dismiss the 1^st and 2^nd Appellants recusal appeal.

CJ PERESE