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Police v Fepuleai [2008] WSSC 110 (28 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FEPULEAI SIO LELEI FEPULEAI, male of Vaivase-tai.
Defendant

Counsels: Mr A Lesa & Ms P Chang for the prosecution
Mr LT Malifa for the defendant

Hearing: 28 July 2008

Ruling: 28 July 2008

RULING OF NELSON J.
on application to amend charges

An application was made this morning by the prosecution for an amendment to be made to the theft charges. The amendment being to add in each of the charges after the words "servant of the Ministry for Revenue" the words "Government of Samoa", likewise to add the same words at the end of the charge so that it would read "property of his employer, the Ministry for Revenue, Government of Samoa."

Section 36 of the Criminal Procedure Act confers on the court a wide power of amendment where it provides in section 36(1) the relevant part reading as follows:

"the court may amend the information in any way at any time during the trial".

Generally the longer the delay in seeking an amendment the more likely it is that the amendment may cause prejudice to an accused person and the more likely it is it may produce an injustice. This was noted by the English Court of Appeal in R v Johal [1973] QB 475 which has been approved by the New Zealand Court of Appeal in R v Johnston [1974] 2 NZLR at 660, where the court noted that even though the English statutory provisions are different the statements in R v Johal are of general application and are equally applicable as statements of general principle.

The statutory provision as to amendment in this country is of course also different from the New Zealand and English provisions but I respectfully agree with what is stated in these previous two cases that the test to be applied is whether an amendment causes prejudice to an accused person and to his case. As to the time that an amendment can be made the words used in the subsection are "at any time during the trial". This is being held to mean that it can even be made after the prosecution and defence have closed their respective cases as was done in Police v Eteuati [2005] WSSC 10.

The application by the prosecution in the present case is of course being made before any witnesses have been called by the prosecution and the application seems to be in order to clarify the proper identity of the defendant's employer. I have no doubt that the defendant knew who he worked for and that the substance of the charges against him involved allegations of dishonesty in relation to his employer. There is therefore in my view no obvious prejudice to be caused to the defendant's position in granting the amendment. I propose to allow the amendment accordingly and all information will be amended to add after the words "Ministry for Revenue" the words "Government of Samoa".

I note no request has been made under section 36(4) by counsel for the defendant to adjourn due to potential embarrassment in his defence and in fact counsel has already indicated that he was not seeking an adjournment but was merely objecting to the application to amend being made. Accordingly the trial will now proceed and prosecution is to call its first witness whoever that maybe.

JUSTICE NELSON