President of Land and Titles back in Court
The hearing of an appeal by the Office of the Attorney General against the decision to discharge the President of the Land and Titles Court, Fepulea’i Atilla Ropati, without conviction, was heard Monday.
The hearing is one of four appeal cases before the Court of Appeal this week. Presiding are Justice Robert Lloyd Fisher, Justice Rhys Harrison, Justice Graham Ken Panckhurst, Justice Vui Clarence Nelson and Justice Mata Keli Tuatagaloa.
Lawyer Aumua Ming Leung Wai represented Fepulea’i while Rexona Titi represented the Attorney General’s Office.
Fepulea’i had pleaded guilty to a charge of causing actual bodily harm with intent on Saili Leota, a security guard. The Court heard that it was not until later that an additional charge of grievous bodily harm was filed in February 2018 where the prosecution sought for the file to be transferred to the Supreme Court.
During the hearing of the matter in the Supreme Court before Justice Lei’ataualesa Daryl Clarke, the prosecution sought to withdraw the charge of grievous bodily harm and other alternative charges.
The file was then referred to the District Court to deal with sentencing. Since the decision of discharge without conviction was delivered last year, the President has been in “limbo” for over a year with the Attorney General’s Office deciding to file an appeal.
Lawyer Aumua maintained the decision to discharge his client without a conviction should stand. He told the Court the decision went through the proportionality test, which considered the gravity of the offence.
He argued that the Judge was correct after determining both aggravating and mitigating factors of the case and concluding the offending was low to moderate.
But Justice Harrison posed the question of how the Judge arrived at that conclusion that the offending was low to moderate when there were three acts of violence, namely “two blows to the (head) by a bottle and one punch.”
In response, Aumua maintained the Judge looked at the case in totality and “if it was not mentioned in the decision (the three acts of violence) then yes there would be room for concerns over that.”
Moving on to the consequences of offending, Aumua said the President intends to step down if the matter progresses and he is convicted of the offence.
“The respondent provided in an affidavit specifically stated that if he is convicted of offending, he will step down as President of the Land and Titles Court and that is what he intends to do,” said Aumua.
“He is not deciding to leave that decision to the Judiciary Commission, he has decided that he will step down (if Court of Appeal convicts him).”
The Court heard that Fepulea’i had written to the Chief Justice that he would stand down from his position pending a decision on the matter, instead of waiting to be suspended.
At this point, Justice Harrison asked what difference would it make if the respondent is convicted or be discharged without a conviction. Justice Harrison made the point that the public is aware of the acts from the President and what had happened.
“It’s the existence of those facts, that if he continues in office, say discharged without conviction, there is that stain, it remains in his reputation,” Justice Harrison said.
Aumua replied that his client feels he should step down if he has a conviction.
“There is a difference if the respondent was a Judge of this Supreme Court where criminal matters are heard, it would not be appropriate for him to remain as a judge whether convicted or not,” he said.
“He is a Judge of the Land and Titles Court which deals with customary lands and chief titles therefore it is not appropriate for him to hold the title of President if he has a criminal record in Court."
Moving on, the defense lawyer argued that conviction under the President’s name would also have a direct impact on his career should he decide to practice as a lawyer.
He made reference to the case of Police versus Kylie Wilson, and Pierre Meredith who were discharged without conviction and were allowed to continue their practice as lawyers.
“So it is not just his position as President it also has a direct consequence on the respondent not being able to practice as a practicing lawyer,” he said.
A question of whether the Samoa Law Society had a policy to consider disqualifying the practice of a lawyer regardless of conviction was raised.
Aumua said there was no such policy but the determining factor is good character and whether that becomes an issue conviction is taken into account.
The issue of international travel was also raised. Aumua refuted claims from the Attorney General that the matter has indirect consequence. He placed emphasis on the process of obtaining visa when visiting New Zealand and Australia, which would be hard for the respondent if he is convicted.
The Court also heard the President has paid for costs imposed by the District Court and has completed all sessions with the Alcohol and Drugs Court.
Aumua urged the Court to consider a non-custodial sentence and uphold the District Court’s decision to discharge his client without conviction.
In addition, he said the respondent accepts any increase in relation to penalty particularly to reparation of $2,000 to the victim.
While Aumua is mindful of concerns from the Court that the public might perceive the matter as a special treatment, he said whilst the respondent is the President of L.T.C., the case has not been straight forward.
He questioned the conduct of the prosecution in handling the matter describing it as “judge shopping”.
“It has gone to District Court, up to the Supreme Court down to the District Court, back up to Supreme Court, down to District Court now up to here (Court of Appeal),” he said.
“I have included in our bundle of authorities a decision by Chief Justice and the conduct of prosecution in this case is announced as abuse of process.
“This is judge shopping in the sense that the case has been heard and costs were awarded against the state and have already been paid…prosecution had applied every time matter came before the Supreme Court for an overseas judge to hear the matter.”
Aumua said every time the matter is referred to the District Court, there was no objection from prosecution and the Chief Justice ruled that that amounts to an abuse of process.
“The matter went down to District Court by Justice Clarke’s decision and the prosecution then applied to recuse the Judge from hearing the matter,” he said.
“We submitted then maybe that reflects the earlier attitude of judge shopping and this matter is here because it shouldn’t be heard by the same Judge of the District Court for it to come up here.
“Yes the respondent is the President of L.T.C. and should not be given special treatment but given the conduct of prosecution we submit it shouldn’t be treated differently there must be some finality that the decision of District Court is to stand.”
During the prosecution’s submission, Ms. Titi questioned a decision from the Court of Appeal in 2018 in relation to Attorney General versus Sefo case. The Court of Appeal at the time dismissed the appeal against the order discharging Mr. Sefo without conviction and suppressing publication of his name.
Ms. Titi reminded the Court of Appeal that the President exercised his authority at the time of offending over the security guard, who was the victim.
But Justice Vui Nelson asked whether that was not the legal duty of the Chief Executive Officer of the Ministry of Justice, instead of the President of the Land and Titles Court.
He also questioned if the prosecutor accepted that the victim in the case was not an invited guest to the function, which was for Judges of the Court.
Ms. Titi said yes he was not an invited guest but there were other staff members present who were enjoying themselves.
Responding to concerns about traveling with a conviction, Ms. Titi made reference to a case outside of jurisdiction where it emphasized that it is not up to the Court to conceal the matter. This should be left to the Immigration Office.
Similarly, the issue of Fepuleai’s license as a lawyer, Ms. Titi said, it should be left for the Samoa Law Society to deal with and decide.
During preliminary issues of the case, the Court of Appeal raised the issue of why there was no leave sought for the Supreme Court. Ms. Titi then filed an application for a leave for Supreme Court, which was objected to by Aumua.
The Court granted the leave before hearing the matter.
A decision has been reserved before Monday next week.