IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

SIAOSI ETEUATI
(also known as) SIAOSI MALUSEU
Applicant

AND

MINISTRY OF POLICE, PRISONS AND FIRE SERVICE
Respondent

Hearing: 9th of July 2004
Date of Judgment: 9th July 2004

Counsel: Mr Ming Leung-Wai for Applicant
Ms J Stowers for Respondent

JUDGMENT OF HIS HONOUR JUSTICE DJ CARRUTHERS

[1] I intend giving my decision immediately because I have a clear view about both the law and facts. I begin by narrating the chronology of events in this matter which bring us to Court today. The original charges laid against the Defendant were those of theft and burglary and the allegations against him were that they took place on the 6th of July 2003. The original Information's laid against him were sworn on the 9th of July and on the 22nd of July not guilty pleas were entered to both Informations. His Honour Senior District Court Judge Nelson then ordered disclosure to be made within 30 days in what must be described as the usual way and a date of hearing was set for the 22nd of December last year; some five months away from the date disclosure was ordered.

[2] On the 4th of September last year a letter was sent by Counsel for the Defendant to the Police indicating that there was no evidence in the disclosure documents which had been produced to him which linked the Defendant to these charges and that a Civil claim for damages would be made if the matter proceeded. There was no reply to that letter in September and on the 22nd of December when the defended hearing date had been set down the Senior Sergeant in charge offered no evidence, and sought to withdraw the charges. That was declined by the Court and His Honour Senior Judge Nelson dismissed the Information's at that time.

[3] The next step in these procedures was that the Civil proceedings were issued in March of this year claiming damages and a Statement of Defence to that was filed in May of this year.

[4] On the 20th of May the Defendant was served with two fresh summonses relating to the original charges alleged to have occurred on the 6th of July 2003.

[5] On the 28th of May Mr Leung-Wai filed a notice of motion for dismissal of those Informations and for costs.

[6] The next thing that happened was that the application for re-trial which was dated the 5th of July was filed and that was filed on the grounds that since the dismissal in December the Respondent had obtained fresh evidence upon which it was said "there is a likelihood of conviction."

[7] The application for re-trial was supported by an affidavit from Senior Sergeant Solomono Leavasa and I record the Courts appreciation for the oral evidence, which the Senior Sergeant has given today. Given I may say, in an impressive way as he struck me as a very honest witness who was true to his oath.

[8] The Senior Sergeants affidavit showed that on the hearing date of the 22nd of December last year he sought to withdraw the charges because of the non-attendance of Police witnesses although summonses had been issued.

[9] And today he made it clear that he meant by that, that of the three witnesses who had been summons, two did in fact appear but the third witness was not at Court.

[10] It was not until June of this year, in accordance with his evidence that he became aware of the fresh evidence which was according to his affidavit "the documentation of discovery made by the Police Criminal Records Office of fingerprints matching those of the Defendant and present on the window of the Complainants store, after the alleged incidents of burglary and theft."

[11] And I pause there since that last passage was a quote from his affidavit to emphasise the word "after" the alleged incident, which is yet to be explained.

[12] And later in his affidavit the Senior Sergeant said that the fresh evidence only came to his notice on the 25th of June of this year due to his not being informed by the Criminal Records Office that they had found them.

[13] I want to say again, that I thought the Senior Sergeant was an honest man giving honest evidence. He elaborated upon his affidavit in cross-examination. He said that there was no evidence available to him of fingerprints when the matter was called in Court in December. He said in his evidence that there were no fingerprint experts in the country now, since the last of them left in about June of last year. And he said in his evidence that an officer was presently being trained as an expert but he would not be available until some time in the future in this country and he said in his evidence that there were no reports received by him on the fingerprint evidence or ever seen by him.

[14] The evidence about fingerprints was information given to him by the Attorney-General's office.

[15] Now I accept the completely the submission of Ms Stowers for the Crown that there is provision for re-trial both in the Criminal Procedure Act and in Article 10 of the Constitution. And that the discretion of the Court about a re-trial is unfettered under s.107 of the Criminal Procedure Act which provides that the application must be made within 14 days or within such further period as the Court may allow. And clearly those are both matters, both the time and the substantive issue, which have to be decided by the Court on the principle of fairness and in the interests of justice. I will return in a moment to consider the law as it applies to this matter.

[16] Counsel for the accused Mr Leung-wai argues that there has been delay in filing the new Informations which is a breach of the Constitution requiring any Defendant to be properly informed about the nature of charges and he submits that there is an abuse of process here because these subsequent proceedings have been designed he says, to thwart the civil proceedings which have been filed in this matter and he says that there is a breach of the constitutional right not to be retried again unless the law which applies to the retrial process is fully applied.

[17] Ms Stowers for the Crown has already submitted to me and I accept that there is a right to apply for a retrial. And she says there was here prompt information, referring to very well known English and New Zealand cases. There is also a well known decision of His Honour Chief Justice Sapolo in Attorney-General v Danny Tangata & Anors which was decided in 1994.

[18] The subsequent history of this matter this year is in accordance with her submissions that in February this year, the Attorney-General's office was notified of the dismissal in December.

[19] On the 18th of February the Attorney-General sought information from the Ministry.

[20] On the 9th of March the Attorney-General ordered samples to be sent of fingerprints.

[21] And at the end of April it seems from the submissions that preliminary tests from the Police Criminal Records Office indicated a match. Although it is clear that there is no direct evidence from anyone who was qualified to assess such matches about that matter or any detail.

[22] And in May as I have already said the new Information's were served.

[23] 1 just want to add that given that history, there must be in my view a real doubt about whether there was here the sufficient promptitude having regard to all the circumstances in informing the Defendant well outside the 14 days and I would have thought that the substantial delays involved were not reasonable in the circumstances and for that reason alone the matter could not proceed.

[24] But the central issue is whether what is now asserted does in fact amount to fresh evidence. That is evidence that was not reasonable available to the Prosecution at the time. The other issue which is also central is whether or not the evidence now put before the Court is sufficiently compelling to warrant a retrial.

[25] The law about that is, I think, now well settled. There is a well-known New Zealand Court of Appeal decision Queen v Thomas in which it is said:

"First the evidence sought to be admitted must be fresh in the sense that even with the exercise of reasonable diligence the evidence was not available at trial, And that the evidence must be cogent by which it meant that it must go in a relevant, significant and compelling way to the issues which the Court has to determine."

[26] Those principles were reinforced in a well-known decision again of Sapolo C.J. in the case cited to me of Forsala in July 1994.

[27] In this case I am not persuaded that the evidence was not available by the exercise of reasonable diligence to the Police at the hearing on the 22nd of December last year.

[28] If it did in fact exist then it clearly was available and there appears to me to have been a miscommunication between two branches of the Police department which resulted in the Senior Sergeant not being made aware of fingerprint evidence which was held even if then not properly analysed.

[29] But more importantly, and here I accept the submission made to me by Mr Leung-Wai there is a considerable lack of detail in the significance of what has now subsequently been discovered. When, for example was the fingerprint taken? Was it after the incident, and was it amongst other fingerprints so that as Leung-Wai says it could have been one of many fingerprints of many people who leaned on the window of this place. By whom was it taken? Who matched it and what was their qualifications and expertise in doing that? What was the match against? What was the nature of the match and the percentage of match obtained in it? Could it have been an accidental match? What expertise is held by those who did that work? No affidavit has been filed by the person or persons who now give this information to the Attorney-General's office to the Senior Sergeant about exactly what it is that that evidence in details supplies to the Court.

[30] So the question therefore is finally is the evidence sufficiently compelling, significant and relevant to the issue which the Court has to decide. In my view it is not. It is vague, it is unclear, it is uncertain and it is certainly second-hand and in my view the Senior Sergeant who impressed me with the way he gave his evidence has been badly let down by his Department in this regard.

[31] I therefore consider that the Applicant has not made out its case here for a retrial on both grounds. The evidence in my view is not fresh, nor is it sufficiently compelling to warrant a retrial under both the Article in the Constitution and the provision in the Criminal Procedure Act.

[32] The application for retrial therefore is dismissed.

[33] The application by the Defendant is granted.

[34] The Information's are discharged and

[35] The charges are dismissed and I turn now to the question of costs.

DJ Carruthers J.