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Police v Patu [2003] WSSC 50 (19 March 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Complainant

AND:

PETINA UILI PATU,
female of Vaiala
Defendant

Counsel: Ms L. Mulitalo for Prosecution
Mr H. Schuster for Defence

Date of Hearing: 18 November 2002
Date of Reasons: 19 March 2003

DECISION OF VAAI J

The defendant was jointly charged with one Penina Vaaelua of 1,167 charges relating to theft of large amounts of monies from their previous employer Ace Hardware over a period of about 7 years. Both were originally charged individually; the defendant Penina first appeared in this court in December 1998 and the defendant was charged in March 1999 and after several adjournments at the request of the prosecution the joint charges were finalised and not guilty pleas by both defendants entered on the 5^th May 1999. Both defendants were represented by counsel. Again after several adjournments the trial was finally set down for hearing before Wilson J on the 15^th November 1999. Trial did commence in November and was scheduled to last about 8 weeks. The defendant Penina was represented by Ms Sapolu; the applicant was represented by Mr Schuster and the prosecution team comprised of Mr Latu and Mr Masipau. On the 3^rd December the prosecution served more trial documents on defence counsels and as such were in breach of the order made by Sapolu CJ in July 1999, the hearing was adjourned for 3 days to the 6^th December to enable the defence to peruse the documents with costs awarded against the prosecution. On the 10^th December the prosecution again sought further adjournment to enable senior prosecuting counsel to travel overseas for his wedding. As there was a trial already set down for hearing before Wilson J in the new year the matter was set down for re-mention on the 28^th April 2000. The other trial was not completed by the 28^th April and on the 12^th June 2000 when the matter was recalled Wilson J declared the proceedings a mistrial as he would not be able to complete the trial before his departure upon the expiration of his warrant. The prosecution was ordered to apply for a new hearing date and counsel for the defendant Penina was granted leave to withdraw as counsel.

On the 18^th September 2000 the matter was called and adjourned to 2^nd October 2000 for the defendant Penina to obtain counsel and after about seven adjournments defendant Penina appeared with counsel on the 28^th January 2002 and on the 25^th February 2002 the trial against both defendants was set down for hearing during the week beginning 2^nd September 2002.

But on the 10^th April 2002 the defendant Penina passed away. And at the call over on the 29^th August 2002 of cases due for hearing in the forthcoming week the prosecution sought a further adjournment as the prosecuting counsel was overseas and secondly all the exhibits from the aborted trial have not been returned by the registrar of the courts to the prosecution. Trial was then adjourned to the week commencing 16^th September for hearing and at the call over on the 12^th September the prosecution sought further adjournment and the trial was set down for hearing the week commencing 30^th September 2002. At the call over on the 26^th September the prosecution sought leave to withdraw all the 1,167 joint charges heard before Wilson J and to substitute them with 100 informations against the defendant. Counsel for the defendant objected to the application by the prosecution and submitted an oral application for a permanent stay of prosecution relying on articles 4 and 9 of the Constitution. Both counsels were ordered to file written submissions.

For the defendant it is argued there has been an unreasonable delay in the hearing of the charges and secondly the purported attempt by the prosecution on the 26^th September 2002 to file 100 charges upon the withdrawal of the 1,167 charges infringes the defendants rights to be informed promptly of the nature of the charges against her and denies her the right to have adequate time to prepare for her pending trial scheduled to commence on the 30^th September 2002.

Counsel for the prosecution concedes in her oral submissions there has been a delay. For the purpose of the application before me I consider the adjournments and the delay prior to the aborted hearing to be irrelevant and therefore bears no significance to the conclusion I have reached; so that the events subsequent to the declaration of the mistrial on the 12^th June 2000 are the influencing factors in my determination of the present application.

The reasons for adopting the stance I have taken will be apparent in my ruling. The most significant events in my view are as follows:

(1) When Wilson J declared the mistrial on the 12^th June 2000 he ordered (according to the defendants written memorandum) the prosecution to re-list the matter for a new hearing and the prosecution did not take steps until the 18^th September 2000 (some three months later) to bring the matter back to court.

(2) Since the 18^th September 2000 there were about 8 adjournments to accommodate for the defendant Penina Vaaelua to engage new counsel. On the 28^th January 2002 (that is some 19 months since the mistrial) new counsel was engaged and the trial was set down for the 2^nd September 2002.

(3) The defendant Penina died in April 2002.

(4) At the call over on the 29^th August 2002 the prosecution told the court it will not proceed on the 2^nd September as the prosecuting counsel was overseas and the trial was set down to proceed on the 16^th September but the trial could not proceed on the 16^th September and was eventually set down for hearing on the 30^th September 2002.

(5) At the call over on the 26^th September both the prosecution and defence confirmed to proceed with the trial set down on the 30^th September. The prosecution however wanted to withdraw all the 1,167 joint charges against the defendant and the deceased Penina and substitute with 100 amended charges against the applicant alone.

(6) The 100 were included in the 1,167 joint charges heard before Wilson J. The only amendments sought by the prosecution were the removal of the name of the deceased defendant.

I shall deal first with the question of delay. In my view the applicant cannot now complain about the delay in the hearing of the charges against her. In the first place the prosecution is not seeking an adjournment of the hearing scheduled to commence 30^th September to enable them to withdraw the 1,167 informations and substitute them with 100 informations; the prosecution is saying to the court that it is proceeding on the 100 informations but not the 1,167 informations originally filed. Secondly up to the time the 1,167 informations were set down for hearing commencing on the 30^th September 2002 the applicant has never complained about the delay. In fact from the 12^th June 2000 when the mistrial was declared to September 2002 several adjournments were sought and granted but the defendant never opted to enforce her right to a speedy trial. She has in my view waived her rights by consenting to, or not objecting to the adjournments sought and granted. Accordingly her application for stay based on unreasonable delay is denied.

The second limb of the application is that the filing of the 100 informations upon the withdrawal of the 1,167 informations on the 26^th September (3 days before the trial date) breaches article 9(4)(a) which requires that every person charged with an offence shall be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against her. Again the application must also fail. It is true that the prosecution could have filed the 100 informations earlier soon after the death of the other defendant but the delay is in my view of the facts not fatal to the prosecution. In the first place the 100 informations complained of were included in the 1,167 informations which were heard before Wilson J and all that the prosecution sought to do in the 100 informations was to delete the name of the deceased defendant. In effect what the prosecution seek to do is to amend the information by deleting the co-defendant’s name but otherwise the charge remains the same. It means therefore that the defendant was informed of the charge way back in 1999 when the informations were laid and when her trial commenced before Wilson J in 1999. The applicant sought the assistance of the Court of Appeal decision in The Attorney General v Danny Fiatagata & Others CA 493 (21/3/94) but the facts of that case differ substantially and is distinguished on the facts from the present facts and the decision therefore has no relevance to the present case.

For the reasons given the application for stay of prosecution is dismissed. The hearing of this matter is set down to commence on the 15^th July 2003.

JUSTICE VAAI