It was a battle of legal minds in the Supreme Court yesterday, where an application to have a murder trial tried by a Judge without a panel of assessors was the subject of discussion. 

The application for trial before a judge alone was filed in the lead up to the murder hearing of the man accused of the murder of former Unit Trust of Samoa Chief Executive Officer, the late Sa’u Justina Sa’u.

Accused Kolani Junior Lam, who is represented by lawyer, Leiataualesa Komisi Koria, re-filed the application on Monday, which was the date initially scheduled for the hearing. 

Leading prosecutor is Attorney General, Lemalu Hermann Retzlaff, assisted by Magele Leone Su’a - Mailo. 

Supreme Court Judge, Justice Tafaoimalo Leilani Tuala – Warren presided.

Lam pleaded not guilty to a charge of murder in respect of his wife Sa’u, and alternative charges of manslaughter, common assault in respect of his step daughter, possession of narcotic and conspiracy to defeat the cause of justice. 

In the prosecution submission, Lemalu responded to claims of prejudice – if the defendant is trialed by a panel of assessors – and claims of allegations based on circumstantial evidence.  

Lemalu delved into the evidence of the pathologist, which feature strangulation, either the use of fingers or rope which is put before the Court with circumstantial evidence. 

He raised the question of what is the disputed issue in the trial. 

“We say that pursuant to report pursuant to circumstantial evidence, pattern of violence within that home, pattern of consumption of alcohol in that home, pattern of behavior of defendant in that home, that he did do in fact as pathologist suggested,” he argued.  

“The evidence that we propose to lead by the daughter of the deceased, that she (Sa’u) was in fact strangled, in the context of drinking and this was witnessed by her younger cousin and then later on intervened and seen of strangulation by the babysitter." 

“Now that environment is directly relevant to what we’re saying is the home environment of drinking."

On the night questioned there is similar type of drinking of the accused, but because the evidence of this behavior forms the pattern of that whole environment it is relevant, were not just grapping something from past and say - trying to hope that one incident is relevant to another. 

“And if (we) look at the actual issue that the defense dispute, prosecution says too this was strangulation causing the death of Sa’u. How can it not be relevant?” 

Lemalu told the Court that the charges look at the whole circumstances, not just a look at the physical assault, and this was domestic in its nature. 

He argued there is going to be prejudice at first instance, but the level of prejudice effect and the evidence will be tested in Court. 

Lemalu also touched on a statement made by defense lawyer, that the public is affected by social media discussions. 

“In that it’s as if it suggests that from now on we can never have a trial by assessors with the existence of Facebook,” he reiterated. 

“There is no evidence of that. When he said that no one in this court room, it sort of suggest that there is some sort of prejudice that affect the assessors, even if directed by your Honour. 

“Secondly because of those posts put before you in evidence, they are specific in their presentation in those long conversation, they presume that those being appointed and elected are affected by that.”

Lemalu made it clear that such a serious charge such as murder should remain and be trialed by panel of assessors under the direction of the judge. 

He said there is an inherit possibility of publicity in such case and “its accepted there will obviously be reports in favour or against any particular defendant. 

“But your Honour, how do you make consideration that every single case with publicity will therefore be subject be removed from panel of assessors, when you have in this context serious charges in section 6 of paragraph 2 refer to such as murder.”

The lead prosecutor challenged the defense submission on a complaint made two years later by one of the witnesses. 

“That is unfair,” he said. 

“If you read the evidence in whole she showed reason why. Her going to police was discouraged.”

Furthermore, Lemalu disagreed with the submission of the tried by judge alone application, claiming it is a narrow reading of the legislative provisions together. 

He argued the section in which the defense lawyer is reliant on, for defendant’s notice for trial by judge alone, is before the Court to consider, “it is not before you because you must direct judge alone to be applied for.”  

Lemalu pinpointed section 126 of Criminal Procedure Act 2016 goes together with section 125. 

The Criminal Procedure Act 2016 section 126 reads: Prosecutor’s application for trial by Judge alone(1)  If a defendant has given a notice under section 125, the Judge may, on application by the prosecutor and served on the defendant before the defendant is given in charge to the assessors, order that the defendant be tried before a Judge alone. 

(2) The Judge may make an order under subsection (1) if the Judge is satisfied: (a) that any reasonable procedural orders, and any other reasonable arrangements, to facilitate the shortening of the trial, have been made, but the duration of the trial still seems likely to exceed five (5) working days; and (b) that, in the circumstances of the case, the defendant’s right to trial by assessors is outweighed by the likelihood that potential assessors will not be able to perform their duties effectively. (3) For the purposes of subsection (2)(b), the Judge must take into account the following matters when considering the circumstances of the case: (a) the number and nature of the offences with which the defendant is charged; (b) the nature of the issues likely to be involved; (c) the volume of evidence likely to be presented; (d) the imposition on potential assessors of sitting for the likely duration of the trial; (e) any other matters the Judge considers relevant. 

According to Lemalu, section 125 does say the Judge must make an order but “it does not give a blanket of requirement”. 

“Your Honour is then required to consider whether the interest of justice is not granted…the Criminal Procedure Act gives a lot of directive to judge to direct the assessors to keep it safe, keep it fair and explained how it works and why its admissible.”

Moving on to claims on panel of assessors being influenced by public discussion, Lemalu pointed out the Court room is very different from surfing Facebook. 

He made the point the Court room is in the hands of the presiding Judge, where she or he gives assessors direction. 

“Once those directions are given they (assessors) will be reminded they need to be impartial, they need to be independent in their thinking. All in line with Article 9 of Constitution to have the right to a fair trial. The Court also reminds all assessors to disregard what they hear outside of Court.”

From the defense counsel, Leiataualesa who briefly touched on grounds that supports application to have Lam tried by judge alone. 

The defense lawyer made reference to the Criminal Procedure Act (C.P.A.) 2016 and the previous act Criminal Procedure Act 1972 which limits the rights of an accused in murder to a trial by judge only. 

Leiataualesa told the Court that there was no section in the Criminal Procedure Act 1972 – in respect of offenses that carries maximum penalty of life – to have a trial by judge alone. 

“That limitation no longer exists,” he argued. 

“Under previous legislation, this type of application made in case of Lufilufi and Police, the defendant made similar application under Section 87 of the Criminal Procedure Act 1972, the Supreme Court declined the application according to Court of Appeal – the only access at the time was section 87 which limits the rights of defendant to a only judge trial. 

“Again your Honour that limitation does not exist...” 

Under the Criminal Procedure Act 2016 section 125 (3) reads: If the defendant, within the period under subsection (1), gives notice under that subsection of the defendant’s desire to be tried before a Judge sitting alone, the Registrar must refer the matter to a Judge of the Supreme Court (who may or may not be the Judge before whom the trial is to be held). 

Sub section four (4) states: “The Judge to whom any matter is referred under subsection (3) must order that the defendant be tried before a Judge sitting alone unless, having regard to the interests of justice, the Judge considers that the defendant should be tried before a Judge with assessors, in which case the Judge must make the order accordingly”.  

Furthermore, Leiataualesa also submitted that from social media posts, it has indicated that there is no sympathy from the public to this particular defendant. 

“Needless to say, this particular case has attracted high level publicity, and subject of public discussion since October last year,” he pointed out. 

“Not only in terms of media coverage and in mainstream media, but also on social media, which is now a phenomenon in Samoa. We have attached in affidavit some of discussion going on – on posts. Discussions show that there is no sympathy for this particular defendant given the status of the alleged victim there is sympathy.” 

The defense lawyer emphasized – in terms of defendant being subject to a fair trial – the panel of assessors will be selected from members of the public, who are exposed to some of the discussions. 

“There is no one in this Court that can say they have not been influenced in their head, and cannot say there is no one at real risk of fair trial,” he said. 

“People will no doubt be exposed to these (public) discussions…will be safer in the hands of the judge sitting, only because the judge sitting alone give proper consideration to matters, in which evidence are considered and weight of the evidence.” 

Lastly, Leiataualesa disputed the case from Police of the presumption of the alleged act of strangulation. 

“That particular argument is based solely on circumstantial evidence that made inference that prosecution hope to draw from medical report,” he said. 

The lawyer also questioned why a complaint from one of the witnesses against the defendant, in an incident that allegedly occurred in 2016, was filed two years late. 

“The witness waited two years to lodge complaint for an incident that occurred in 2016. What has happened is the complainant (Talei) waited two years to file this complaint against the defendant.”  

The matter is adjourned for Justice Tafaoimalo’s ruling on 12 April 2019.