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Pauga v Police (CA18_23) [2025] WSCA 1 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Pauga v Police (CA18_23) [2025] WSCA 1 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

TALALELEI PAUGA

Appellant

AND:

P O L I C E

Respondent

Hearing: 9 June 2025

Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young
Hon. Justice Roma

Appearances: Ms. J. Fuimaono-Sapolu & I. Sapolu for the Appellant

Ms. F. Faafanu for the Respondent

Judgment: 9 June 2025

Reasons: 19 June 2025

JUDGMENT OF THE COURT

Introduction

1. These reasons should be read in conjunction with our reasons for judgment delivered contemporaneously today on the appeal by the appellant, Talalelei Pauga, in CA 07/24.
2. Mr Pauga is charged that with three others he conspired to murder a prominent Samoan political figure. He was first charged in early 2020 and in his absence from Samoa a warrant for his arrest was issued shortly afterwards. However, it was not until September 2023 that he was extradited from Australia to Samoa and formally charged. Mr Pauga has pleaded not guilty and is now on bail awaiting trial before a judge and assessors.
3. Mr Pauga is the sole defendant awaiting trial. At a case management conference on 20 December 2023 Tuatagaloa J set Mr. Pauga’s trial down as a special fixture for hearing in the week commencing 18 March 2024. All counsel consented to that date. However, within two days Mr Pauga filed an appeal against the decision to allocate a trial date while a pretrial application to quash the originating information in which the conspiracy charge was based awaited determination.
4. We declined leave when the appeal was called in open Court for want of jurisdiction. Our reasons briefly follow.

Jurisdiction

5. Section 172 of the Criminal Procedure Act 2016 governs the right of appeal from the Supreme Court to this Court against orders or refusal to make an order as follows:
   • 172. Right of appeal on certain matters arising before trial - (1) At any time before the trial, the Attorney-General or the defendant, may appeal to the Court of Appeal against the making of an order or the refusal to make an order on any of the following matters:
   • (a) the severance or joinder of charges;
   • (b) directing separate trials of persons jointly charged;
   • (c) the admissibility or inadmissibility of evidence;
   • (d) the amendment of charges;
   • (e) the quashing or amendment of an information on the grounds that the information does not state in substance a crime or offence.
   • (2) At any time before the trial, the defendant, with the leave of the Court of Appeal, may appeal to the Court of Appeal against a refusal to make an order for further particulars of any matter which is the subject of any information.
6. Mr. Pauga’s rights of pretrial appeal are strictly prescribed. Ms Fuimaono-Sapolu for Mr Pauga did not argue that his appeal falls within any of the five discrete categories provided by s 172 (1) on which an appeal exists as of right. Instead, Ms Fuimaono-Sapolu’s submitted that a decision to fix a trial date where the Court has allegedly failed to determine an application to quash an information constitutes a “...refusal to make an order for further particulars of an information.” This proposition violates the plain meaning of the provision. A decision to fix a trial date could not possibly be described as a failure to order further particulars.

Substantive Analysis

7. In any event the appeal had no substantive merit for these brief reasons. Mr Pauga was formally charged and the original information against him was filed on 21 February 2021. Mr Pauga was then living in Australia. A warrant for his arrest was issued on 25 February 2020 which was executed in Australia in September 2020.
8. On 13 December 2021 Mr Pauga filed an application to quash the information and the warrant for his arrest. The police opposed. On 16 April 2022 submissions were heard in the Supreme Court before Vaai J. It appears that the application was adjourned on a number of occasions, apparently because Mr. Pauga’s former counsel consistently failed to comply with directions to file an amended application. The application was removed from the list on 22 July 2022 when Mr Pauga’s former counsel failed to appear and remained undetermined when Mr Pauga was extradited by consent from Australia to Samoa on 1 September 2023. He was granted bail on 21 September 2023.
9. Mr Pauga’s application to quash remained undetermined on 23 December 2023. Arguably it had been abandoned by that date. In any event Tuatagaloa J was satisfied at that case management conference that the application was no longer relevant to Mr Pauga’s trial. We agree with Ms Faanunu that the Judge was plainly right. The application to quash the warrant for his arrest was spent or moot once Mr Pauga was extradited and granted bail pending trial.
10. Ms Fuimaono-Sapolu’s submissions on Mr Pauga’s companion appeal in CA 07/24 postulated additional pretrial steps which would further delay these proceedings. Mr Pauga’s trial cannot be delayed any further. We confirm our direction made on 9 June 2025 setting the trial down for hearing in the week starting 6 October 2025. That direction is final. We do not expect Mr. Pauga to file any further pretrial applications. The trial is not to be adjourned again other than for an exceptional and unforeseen reason.
11. We confirm also that we have granted Ms Fuimaono-Sapolu leave to withdraw as Mr Pauga’s counsel.
    

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE ROMA