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Police v Sione [2019] WSSC 97 (30 October 2019)

IN THE SUPREME COURT OF SAMOA
Police v Sione & Anor [2019] WSSC 97 (30 October 2019

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

LEMAI FAIOSO SIONE & MALELE PAULO

Defendants

Counsels: Leone Su’a-Mailo for the Prosecution
Unasa I. Sapolu & Josefina Fuimaono-Sapolu for the Defendants

Date: 30 October 2019

DECISION OF JUSTICE TUATAGALOA
(APPLICATION FOR ORDERS BY THE PROSECUTION)

Background

1. The two defendants, Malele Paulo a.k.a. King Faipopo and Lema’i Faioso on 15 August 2019 were jointly charged with conspiring to commit murder.^[1] They have been remanded in custody since 15 August 2019.
2. Counsel for the defendants filed application for bail on 23 August 2019 and the application for bail was set for hearing on 18 September 2019.
3. However, on 27 September 2019 the Prosecution filed an application for the Court to deal with preliminary issues prior to proceeding to hearing of application for bail. The application by the Prosecution seeks for various orders relating to the bail application by the defendants.

Application by Prosecution

4. The Prosecution seeks the following Orders:
   • (i) For the co-defendant Taualai Leiloa to be sentenced first pursuant to section 64(3)(c) of the Evidence Act 2015 prior to being called as a witness in the bail hearing for the defendants. This order was abandoned by the Prosecution pursuant to defence argument that Taualai Leiloa is not jointly charged with the two defendants, Malele Paulo and Lema’i Faioso, therefore section 64(3)(c) does not apply;
   • (ii) For the matter to be heard in closed court as per Article 9 of the Constitution that it is in the interest of justice that the public and media be excluded from these proceedings (due to the nature and sensitivity of the information involved;^[2]
   • (iii) For the Court to exclude information given or obtained in confidence pursuant to section 59 of the Evidence Act 2015. It is in the interest of justice that such an order be made given the nature of the proceedings, the nature of the charges, and the safety and wellbeing of the victim and other parties involved;
   • (iv) The Court to proceed with the bail by way of affidavit and not having to require the deponents to give evidence during the bail hearing and be subjected to cross-examination for the following reasons:
     • (a) It will not be in the interest of justice;
     • (b) The nature of the proceedings are complex;
     • (c) The safety and wellbeing of the victim and co-defendant Taualai may be compromised accordingly;
     • (d) It would compromise ongoing investigations by police regarding the other co-conspirators;
     • (e) It will be treading on matters unrelated to the bail hearing.

Defence Response

5. The defence opposes the making of the orders upon the following:
   • (i) It is not mandatory for defendant Taualai to be sentenced first pursuant to bail application. This was abandoned or not pursued by the Prosecution on 17 August 2019. The defendants however objected (and rightly so) as Taualai Leiloa is not a co-defendant or charged together with the defendants on Information S1551/19;
   • (ii) For the matter to be heard in open court pursuant to Articles 9 & 13 of the Constitution, it is in the interest of justice that the public and media be allowed to attend these proceedings to ensure the need for a fair trial, the desirability of open justice and the principle that the media plays an imperative role in reporting the trial as the eyes and ears of the public;
   • (iii) There be no order to exclude information given or obtained in confidence pursuant to section 59 of the Evidence Act 2015, given the public interest in the disclosure of the proceedings of information or communication is consistent with the interests of justice and a right to fair trial;
   • (iv) The deponents to give evidence during the bail hearing and be cross-examined for the following reasons:
     • (a) It will be in the interest of justice to do so ensuring there is no misleading justice;
     • (b) The nature of the proceedings thus far demands that the deponents are open to cross-examination in a viva voce hearing;
     • (c) The Prosecution’s statement, “The safety and wellbeing of the victim,
       co-defendant Taualai,” reflects the Prosecution’s special treatment of Taualai as a victim rather than a co-defendant. I find this ground irrelevant to the issues raised by the Prosecution;
     • (d) To ensure that the ‘defendants’ right to a fair trial is not compromised given the undue and unreasonable delay thus far, prejudices the defence. Firstly, the bail hearing will focus on ‘just cause’ to continue detention of the defendants. Secondly, there is no undue and reasonable delay which would prejudice the defence. The preliminary legal issues raised by the Prosecution are not raised to delay the bail hearing, they are relevant legal issues as to the procedure and law in relation to the bail hearing;
     • (e) “Treading on matters unrelated to the bail hearing,” is an ambiguous ground or reason for an order to be made;
     • (f) The standard of proof in the criminal jurisdiction of ‘beyond reasonable doubt’ applies to a bail hearing.
6. The orders sought by the Prosecution is to protect the information obtained from their informers not to be disclosed^[3] or exposed to the public through open Court;^[4] such information to be suppressed^[5] at the bail hearing before the trial.
7. The information the Prosecution seeks to contain or not to be disclosed is the information they claim to have received from their informers. Before addressing the Orders sought by the Prosecution, the issue of informer privilege must first be addressed.
8. The orders sought are only in relation to the bail application yet to be heard and does not extend to the hearing of the charge against the two defendants. The orders are made with this in mind.
9. I will work my way from the 4^th, 3^rd and 2^nd Orders sought by the Prosecution.

Discussion of Orders Sought

(i) Bail hearing to be by way of affidavit.

10. The Prosecution seeks an Order from the Court for the bail hearing to be by way of affidavit and not having to require the deponents to give evidence during the bail hearing and be subjected to cross-examination. The focus of their application is the protection of the two witnesses’ Prosecution claims to be ‘informers.’

(a) The Law

11. Samoa does not have a Bail Act (like New Zealand). The law regarding bail is provided for under the Criminal Procedure Act 2016. Section 105 of the Criminal Procedure Act 2016 specifically refers to the hearing of evidence in a bail application and the Court in considering matters in section 99 (factors relevant to a decision in bail) can only receive evidence that is relevant and admissible in a court (section 105(2)). Section 71(1)(a) provides for the ordinary way of giving evidence in criminal proceedings is orally in a courtroom or by way of affidavit if both prosecution and the defendant consent to the giving of evidence in this form [s.71(1)(b)].
12. At present there is no consensus by the prosecution and the defence for the bail hearing to be by way of affidavit.
13. Normally, bail applications are dealt with by way of affidavit. In Lam v Police^[6] where the defendant made application for bail, the affidavits filed by the Prosecution and those filed by the defence were conflicting. However, Counsel for the applicant (defendant) preferred not to call oral testimony to resolve the conflicts in the affidavits as that may disclose before trial the defence that the applicant (defendant) intends to run at trial.
14. The affidavits by the two defendants that conflicts with the affidavits filed by the Prosecution witnesses Taualai Leiloa and Alatise Leafa puts in issue the strength of the Prosecution case. The learned authors of Adam on Criminal Law commentaries on the Bail Act 2000 (NZ) said: [at BL 20.04]
    • “Where the strength of the Prosecution case is put directly in issue by an affidavit filed in support of the bail application, the proper course is for the deponent to be cross examined. It is not sufficient for the Prosecution to reply simply by tendering a statement or affidavit.”
15. Furthermore, the Prosecution claims that their two witnesses – Taualai Leiloa and Alatise Leafa are informers and therefore cannot be called to give evidence. The defence submits that the two informers have waived their right or privilege as informers under section 55 when they filed and disclosed their affidavits to the defence.

(b) Informer Privilege[7]

16. Section 54(2)(a) defines who or what an informer is as a person who supplies (in short) the police with information concerning the possible commission or actual commission of an offence with the expectation that his/her identity will not be disclosed. Under the informer’s privilege any information or communication that would reveal the informer’s identity is not to be disclosed (section 54(1)) thus the reason also why an informer is not to be called to give evidence (section 54(2)(b)).
17. The Prosecution contends that the privilege under section 54 is not lost or waived under section 55. They say, that although their identities have been disclosed or made known and published, section 54 can still be invoked and remains in operation nonetheless because section 55(4) provides that the privilege is not waived “...if disclosure had occurred involuntarily, mistakenly or otherwise, without the consent of the person who has the privilege”; therefore the two informers cannot be called to give evidence^[8] under section 54(2)(b). The Prosecution claims that the two informers did not voluntarily disclose their identities but that it was disclosed by other people^[9] and by various reporting and information on social media and printed media. I disagree.
18. Section 43(2) allows an informer to refuse to disclose information in a proceeding. However, section 43(2) only applies if such privilege has not been waived.
19. The affidavits by the two informers disclosed their names, villages and information pertaining to the alleged conspiracy against the two defendants. The informers knew the purpose of their affidavits was in relation to the application for bail by the two defendants. They referred in their affidavits as witnesses for the Prosecution.^[10] They also both refer in their affidavits to their safety being at risk if the defendants are released on bail.^[11] Both affidavits were disclosed to the defence.
20. The informers by deposing affidavits for the purpose of the bail hearing disclosed their identities, villages, and have provided information relating to the offence the defendants are charged with. There was no mistake on their part about their affidavits and its purpose. Their consent to the disclosure of such information by way of affidavits is implied (or expressed) by them having signed their affidavits.
21. Accordingly, the two Prosecution witnesses – Taualai Leiloa and Alatise Leafa voluntarily deposed affidavits disclosing their identities and personal information. They have under section 55 waived their privilege as informers under section 54 and can be called to give evidence.
22. There is no general rule that persons with criminal convictions should not be used as informers.^[12] I mentioned this because defence questions the integrity or credibility of the two informers given their criminal records or histories.
23. The order sought for the bail hearing to be by way of affidavit is denied.

(ii) Information obtained in confidence to be excluded pursuant to section 59 of the Evidence Act 2015.

24. The Prosecution seeks for an order not to disclose information obtained in confidence. The information is said to be obtained from their informers. This information (I believe) has not been disclosed in the affidavits of the two witnesses Taualai Leiloa and Alatise Vitale.
25. Section 69 of the New Zealand Evidence Act 2000 is the equivalent of section 59 of Samoa’s Evidence Act 2015. The commentary in Adams on Criminal Law says that section 69 does not need or depend on the existence of any ‘special relationship’ for the information to be in confidence; the focus of s.69 is confidentiality.^[13]The learned authors say that section 69 can be utilised where relationship falls short of those said to be privilege under the law.^[14]
    • “...that information can be confidential because of a reasonable expectation of confidentiality, even in the absence of a particular kind of relationship or agreement.”^[15]
26. The Judge’s discretion according to section 59 cannot override information that are privilege under ss.44-50, 52 & 54 of the Evidence Act 2015.
27. Section 59 does not depend on an existing relationship (informer-police); section 59 is about the reasonable expectation of confidentiality at the time the information was imparted and received. Section 59 can be invoked even where there was no privilege relationship existing at the time the two witnesses impart the information to the police as long as there was reasonable expectation on the part of the two witnesses that the information imparted to the police is kept in confidence.
28. The prosecution seeks^[16] from the Court to hold in confidence materials that have not been disclosed but may be traversed in detail and may inevitably be brought about if the deponents are required to be called to give evidence.
29. Section 59 provides the judge with a discretion to prevent disclosure in a proceeding of confidential matters (s.59(1)) or for such reasons as to prevent harm to a person whom the information was obtained or given (s.59(2)(a)), the nature of the proceedings and the sensitivity of the evidence (s.59(3)) to name a few.
30. The prosecution has disclosed to the Judge (only) statements by the witnesses Taualai Leiloa and Alatise Vitale made to the police that the prosecution claims to be obtained in confidence. The statements contain information that have not been disclosed (other than what has already been disclosed in the affidavits) and upon perusal such information at this stage of the proceedings is considered ‘sensitive’.
31. At this stage of the proceedings the information or communication that has not been disclosed is to remain in confidence. The public interest in the disclosure in the bail hearing proceeding of the communication or information is outweighed by the public interest to prevent harm from the intended victim and others involved; risk of exposing the ongoing police investigation or hindering such investigation to name a few.
32. A bail hearing is not concerned with the truthfulness of the information provided, that is a matter for the trial. The bail hearing is concerned with whether there is ‘just cause’ for continued detention of the two defendants. That is, whether the defendants should be at liberty pending the determination of guilt or innocence.
33. The information disclosed in the affidavits of the two witnesses Taualai and Alatise have provided adequate information to the defence of the Prosecution case and there is no need for any further disclosure of information.
34. Accordingly, the Court orders pursuant to section 59 that any information imparted by the two witnesses Taualai Leiloa and Alatise Vitale to the police other than what has been disclosed in their affidavits are information received in confidence. Therefore, any other information outside what is contained in the affidavits of the two witnesses is information received in confidence and are not to be disclosed.

(iii) The bail hearing to be closed court.

35. The Prosecution seeks to have the bail hearing closed to the public and media pursuant to Article 9(1) and section 56 of the Criminal Procedure Act. Article 9(1) is the right to a fair trial and public hearing...but the public and representatives of news service may be excluded from all or part of the trial in certain circumstances (named) or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interest of justice. (my emphasis)
36. Article 9(1) guarantees the right of access to a Court to be a fair, public and expeditious hearing. However, the right under Article 9(1) is not absolute and may be subject to limitation. The limitation is where publicity would prejudice the interest of justice.
37. The very same right under Article 9(1) the defence claims that the defendant’s right to a fair trial is the right to a fair and public hearing within a reasonable time. Defence also submitted Article 13 to apply in addition with Article 9 for the proceedings to be in open court. Article 13 is the right to freedom of speech and expression and does not apply. Having the bail hearing in closed court does not take away the defendants’ freedom of speech and expression. The issue is whether the bail hearing in the interest of justice should be heard in open court or closed to the general public and the media.
38. It is generally taken for granted that court proceedings are open to the public and may be freely reported. However, the idea of open justice is not absolute.^[17] Exceptions have been developed by the common law where on rare occasions, limits are placed on publicity.
39. Numerous statutory provisions also recognise that justice requires that the general rule of openness be modified in particular cases as in youth justice, children in criminal proceedings, protection of complainants from publicity in sexual offence proceedings to name a few.
40. Prosecution submits that whilst consideration favours the principle of open justice, the unique circumstances or the nature of the offence of conspiring to commit murder warrants a departure from open court principle to close court. The Prosecution contends that any disclosure of information in the bail application hearing will prejudice the ongoing police investigations or hamper the police investigations or may indicate the state of their inquiries especially so as there is a third suspect still at large. The Prosecution is also concerned that certain materials or information received in confidence if exposed to the public will pre-empt the evidence Prosecution has against the defendants and put at great risk the safety of the intended victim and others involved.
41. The defence on the other hand strongly advocate for an open court hearing saying that the information claimed by the Prosecution to be ‘sensitive’ cannot be so as such information has already been disclosed by the Samoa Police to the media concerning the criminal investigation and Prosecution of the defendants’ case.^[18] Counsel emphasizes that the principle of open court means open justice. That, the public interest in open justice is served by reporting court proceedings and their outcomes fairly and accurately.^[19]
42. The defence counsel refer to a number of media releases in her submissions. The police in those media releases did not disclose information in relation to their enquiries and status of those enquiries in relation to the suspect who is still at large. The media releases referred to by counsel for the defendants highlighted to the Court the involvement or the use of social media in relation to the present matter or the offending that the defendants are charged with. In saying that, the Court is very much aware of the fact that the defendant, Malele Paulo, is the infamous blogger known as King Faipopo.
43. For the bail application hearing to be closed court warrants a departure from open court having considered an overall balancing of relevant factors with what at this stage the interest of justice requires.
44. Having considered the offence being one of conspiring to commit murder therefore there may be other people involved other than the defendants; the fact that another suspect is still at large, so police investigations are still being carried out; there is still an imminent threat to the safety of the intended victim who is the PM of the country and others at this stage of the proceedings; and the risks involved if the information imparted by the two witnesses in confidence is exposed to the public at large will compromise the ongoing investigation by the police. All these factors taken into account are valid reasons that the Court feels that the hearing of the bail application by the two defendants’ warrants for a closed court hearing.
45. The Court under section 56 of Criminal Procedure Act can issue suppression orders in addition to (or without) an order of closed Court (excluding public and media) under Article 9(1).
46. The Court makes the order under Article 9(1) that the bail application hearing will be closed to the general public and media. The Court also under section 56 of Criminal Procedure Act makes an order to prohibit the publication of the bail application hearing.
47. It has to be borne in mind that the orders made are only in relation to the bail application hearing which is only concerned with the question of whether the defendants should be at liberty pending the determination of their guilt or innocence.

Conclusion

48. The Court makes the following Orders:
    • (i) The bail hearing will be by way of viva voce.^[20] The prosecution witnesses including Taualai Leiloa and Alatise Leafa are to give evidence.^[21]
    • (ii) The information received in confidence is to remain confidential. This includes additional information not disclosed in the affidavits of Taualai Leiloa and Alatise Leafa;^[22] including statements made by the two witnesses to the Police.
    • (iii) The bail hearing will be closed to the general public and the media;^[23]
    • (iv) The Court also prohibits the publication of any report or account of the whole of the proceeding of the bail hearing.^[24]
      

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, sections 33 & 38
^[2] Emosi Puni v A.G [2012] WSCA 12 (01 June 2012).
^[3] Evidence Act 2015, section 54 – Informers privilege; section 59 – information obtained in confidence
^[4] Article 9(1) of the Constitution – Prosecution claiming special circumstances to have the bail hearing in close Court to be in the interest of justice
^[5] Criminal Procedure Act 2016, section 56
^[6] [2018] WSSC 119
^[7] Supra, note 2
^[8] Evidence Act 2015, section 54(2)(b)
^[9] Samoa Observer article dated 17^th September 2019 attached to Prosecution supplementary submissions dated 18^th October 2019.
^[10] Affidavit of Alatise Leafa, paragraph [3]; Affidavit of Taualai Leiloa, paragraph [15]
^[11] Affidavit of Alatise Leafa, paragraph [25]; Affidavit of Taualai Leiloa, paragraph [21]
^[12] Patel v R [2010] NZSC 1.
^[13] EA69.02.
^[14] Sections 44-50 & 54.
^[15] R v X [2010]
^[16] Paragraph [39].
^[17] Refer to Article 9.
^[18] Defence submissions, paragraph 14(a)(b)(i)(ii)(iii).
^[19] John Fairfax Publications Pty Ltd v District Court of NSW (2004) NSWCA 324 at [20].
^[20] Evidence Act 2015, section 71(b)
^[21] Evidence Act 2015, section 55
^[22] Evidence Act 2015, section 59
^[23] Constitution, Article 9
^[24] Criminal Procedure Act 2015, section 56