An appeal sought by five defendants to defer their trial to multiple charges alleging fabrication of evidence has been granted by the Supreme Court with the hearing likely to take place next year. 

A second separate appeal from two other defendants from the same proceeding to recuse the Senior District Court Judge, Talasa Atoa Saaga was unsuccessful and dismissed. 

Chief Justice Satiu Simativa handed down his decision on Monday. 

The appellants in the matter are Samuelu Sua also known by several names, Sivai Kepi Mamea, Lisamarie Schmidt, Member of Parliament for Salega No.1 Fepuleai Faimata Sua and Li’o Faataumalama Auava. 

The accused are charged with offences which include misleading police, fabricating evidence, and conspiracy to defeat the course of justice amongst others. 

The five appellants challenged the decision from Judge Saaga who denied a joint memorandum from the lawyers for the accused to defer the trial to April next year noting their unavailability. 

The appellants argued the decision to set a hearing in August denied their rights to be represented by counsel of choice preserved in Article 9 of the Constitution. 

In his decision, Chief Justice Perese said the argument of a breach to counsel of choice is premature. He said it was inappropriate to elevate this dispute into the territory of an alleged breach of fundamental rights with the files not yet ready to be allocated a hearing. 

He said of immediate concern was the advice of counsel for the third, fourth and fifth appellants who proposed hearing dates cut across other instructions in the Supreme Court. 

It means if the lawyers are not able to appear for the clients, these parties would need to instruct new counsel, said the Chief Justice.

He noted several Supreme Court matters that the senior lawyers representing the defendants were involved in adding long standing position that Supreme Court matters are ordinarily given priority. 

"It follows in my view, that the 26 August 2024 trial over five weeks cannot proceed without significant and unreasonable prejudice to some party or other, either in this litigation or in other cases before the court,” the Chief Justice pointed out. 

“I come to that view notwithstanding issues such as the appellants' rights to a trial without delay particularly as he remains in custody, the impact on the other appellants, and the restrictions on their movements, and the impact of the 11-month delay on the witnesses. 

“In relation to the effects of the delay on the appellants, these are overborn by their request to hold the trial in April 2025, and the practical reality that the trial cannot, for the reasons set out earlier, be held as scheduled.”

The Chief Justice said the effect of the delay on the witnesses is unfortunate but ordinarily cases take years to come to trial. 

He added the police should not hesitate to seek the court’s assistance if there is any pressure put on witnesses to recant their evidence, something which at present is only a risk or a possibility.

In terms of the availability of overseas counsel, the Chief Justice said there is no absolute right to counsel. 

He said what is required is a careful weighing of competing interests involved to determine the overall interest of justice. 

“That important exercise was not carried out by Her Honour,” he added. 

“Counsel in Samoa have determined with their clients that they require the assistance of senior counsel. The rank of senior counsel is reserved for the most senior advocates. 

“The senior counsel involved in this matter are highly experienced criminal lawyers.

“Their involvement will undoubtedly benefit the conduct of the case and contribute to the administration of criminal justice in our country.” 

The second appeal was brought by Sam and his wife seeking recusal of the same district court judge. They defendants were represented by Josephine Fuimaono Sapolu and Unasa Iuni Sapolu. 

The appeal was dismissed by the Chief Justice saying the challenge had no proper basis. 

One of the grounds advanced in the application for recusal, predetermination or bias is alleged on the part of the District Court judge's decision. 

“This ground is hopeless, as well,” said Chief Justice Perese. 

“A bail application proceeds in a summary way, where the evidence is not tested, but must nevertheless be evaluated in a preliminary way. 

“It is not appropriate to make final findings of fact going to credibility. 

“I do not read the judges recusal decision to offer any views that may be seen by a reasonable person, aware of all the circumstances, that it is inappropriate for Her Honour to hear the substantive hearing.”