IN THE SUPREME COURT OF SAMOA
Police v Wiser KEY [2016] WSSC 25

Case name: 	Police v Wiser KEY	
		
Citation: 	[2016] WSSC 25	
		
Decision date: 	02 March 2016	
		
Parties: 	Police (prosecution) and Wiser KEY male of Toamua and Vaiusu (defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tuatagaloa	
		
On appeal from:		
		
Order:	I consider that it is in the interests of justice to grant leave to vacate the accused ‘guilty’ plea to ‘not guilty’ on the charge of abduction.  I also accept the ground advanced by the defence counsel that the defendant has a defence to the charge of abduction. 	
		
Representation: 	Ms R Titi for the Prosecution
Mr Leaiataualesa J Brunt for Defendant	
		
Catchwords: 	Application to vacate plea 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P  O  L  I  C  E
Prosecution

AND:

WISER KEY, male Vaiusu and Toamua
Defendant

Counsel:	
Ms R Titi for the Prosecution
Mr Leaiataualesa J Brunt for Defendant

Date:	02 March 2016
DECISION OF JUSTICE TUATAGALOA ON APPLICATION TO VACATE PLEA
1. 	I have delivered my decision orally regarding this application to vacate plea with my full reasons to follow. This is that decision. 
2. 	The defendant is charged with sexual connection with girl between 12-16 years old and abduction on 3 March 2015. The history of this matter is as follow:
•	23/03/15: Adjourned without plea to finalise charges to 13/04/15;
•	13/04/15: Further adjourned without plea to 20/04/15 for police to finalise charges;
•	20/04/15: Defendant pleaded ‘guilty’ to sexual intercourse with girl between 12-16 years old and adjourned without plea to abduction to 27/04/15;
•	27/04/15: Defendant pleaded ‘not guilty’ to abduction.  Adjourned to 30/11/15-01/12/15 for hearing;
•	02/12/15: Defendant changed ‘not guilty’ to ‘guilty’ to the charge of abduction.  Adjourned to 23/12/15 for sentence; 
•	23/12/15: Defendant in pre-sentence report still denies abduction or what he told probation does not amount to abduction.  Court appointed counsel under legal aid to fully advise and represent defendant.  Adjourned to 20/01/16 for counsel to appear;
•	20/01/16: Defense Counsel appears and advice the Court that Defendant maintains guilty plea.  Adjourned to 02/02/16 for sentencing;
•	05/02/16: Defense counsel in mitigation of what defendant says what happened is same as pre-sentence report which does not amount to abduction but also said there was an apology.  Adjourned to 07/02/16 for prosecution to confirm apology;
•	07/02/16: Prosecution confirms apology and defence counsel indicated that defendant wants to vacate ‘guilty’ plea to ‘not guilty’ given that he maintains that what he told probation and defence counsel is what happened.  Adjourned to 17/02/16 for defence counsel to file application to vacate plea and to file supporting affidavit.
3. 	The application to vacate plea is upon the ground that the accused has a defence.  This is one of the grounds that Court considers when considering an application to vacate plea in the interests of justice.
4. 	The accused was unrepresented from 23 March 2015 until 20 January 2016.  When police finalized their charges on 20 April 2015 the defendant pleaded ‘guilty’ to sexual intercourse but ‘not guilty’ to abduction until 2 December 2015. 
5. 	Although he changed his ‘not guilty’ to ‘guilty’ on 2 December 2015, the Court believes that the accused did not fully understand what the charge of ‘abduction’ legally means. This was the reason why the Court on 23/12/15 when the matter was for sentence appointed defence counsel under legal aid because what the accused told probation in pre-sentence report as to abduction is inconsistent with his guilty plea entered on 2 December 2015. 
6. 	Although counsel for defendant under legal aid on 20 January 2016 maintained defendant’s plea of ‘guilty’, when he filed his submissions in mitigation, he laid out what the defendant told him of what happened which was similar to what he told probation in the pre-sentence report and which the Court had concerns about as it does not seem to amount to abduction.
7. 	A discussion in Court resulted with defence counsel regarding this aspect of his submission which defence counsel then indicated to Court on 07 February 2016 that he wish on behalf of the defendant to vacate the accused ‘guilty’ to ‘not guilty’ given his instructions as he had put it in his submissions.
8. 	This is that application before the Court.
9. 	I have had the opportunity to peruse the trial documents or witness statements including that of the victim and given the consistency of the defendant’s version of what took place, I consider that it is in the interests of justice to grant leave to vacate the accused ‘guilty’ plea to ‘not guilty’ on the charge of abduction.  I also accept the ground advanced by the defence counsel that the defendant has a defence to the charge of abduction.

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Laulusā Justice Mata Tuatagaloa