rangement of Provisions
PART 1
PRELIMINARY
1. Short title and commencement
2. Interpretation
3. Application
PART 2
JURISDICTION OF
THE COURTS
Division 1 - Supreme Court
4. Criminal jurisdiction of
Supreme Court
5. Power to transfer proceedings
5A. Power to transfer proceedings
to District Court for
rehabilitative programme
6. Trial with or without assessors
7. Trial without assessors for
complex fraud
8. Transfer from District Courts
Division 2 - District Courts
9. Trial to be heard in District
Courts
10. Criminal jurisdiction of
Fa’amasino Fesoasoani
Division 3 - Youth Court
11. Criminal jurisdiction of Youth
Court
12. Youth Court may transfer
proceedings
PART 3
COMMENCEMENT
OF PROCEEDINGS
13. Proceedings to commence by
laying information
14. Person arrested without
warrant
15. Issue of summons
16. Time and place for laying
information
17. Criminal proceedings in
Supreme Court
18. Form and content of
information
19. Charging document
20. Information to charge one
offence only
21. Two or more information be
heard together
22. Charge may be representative
23. Two or more defendants may
be tried together
24. Information to contain
sufficient particulars
25. Application for further
particulars
2 Criminal Procedure 2016, No. 6
26. Information may be laid by
any person
27. Proceedings on information
requiring consent
28. Information not to be held
invalid for want of form
PART 4
ARREST AND SEARCH
Division 1 - Arrest
29. Arrest without warrant
30. Power to enter premises
without warrant to arrest
offender or prevent offence
31. Issue and withdrawal of
warrant to arrest defendant
32. Duty of persons arresting
Division 2 - Search
33. Search and seize warrants
34. Warrant for forensic samples
35. Disposal of things seized
36. Protection from responsibility
PART 5
SUMMONS, SERVICE,
EVIDENCE AND
DISCLOSURE
Division 1 - Summons and Service
37. Issue of Summons
38. Service of document on
defendant
39. Service in particular cases
40. Language of documents
41. Who may serve documents
42. Proof of service
Division 2 - Taking Evidence
other than at Trial
43. Evidence of person intending
to leave Samoa
44. Evidence of person
dangerously ill
45. Taking evidence of witness out
of court
Division 3 - Disclosure
46. Prosecutors duty to disclose
statements
47. Adjourning trial for witnesses
48. Prosecutor may decline to
disclose information
49. Court to determine disclosure
issues
50. Notice of alibi
51. Notice of expert evidence
PART 6
TRIALS
52. Place of trial
53. Transfer of trials between
District Courts and Supreme
Court
54. Withdrawal of information
with leave
55. Amendment of charges
56. Court may prohibit publication
57. Offence for contravening
exclusion order
58. Who may conduct proceedings
59. Conduct of proceedings in
Supreme Court
60. Presence and custody of
defendant during trial
61. Powers of Court if defendant
does not appear
62. Powers of Court if prosecutor
does not appear
63. Powers of Court when neither
party appears
64. Dismissal of information not a
bar
PART 7
PLEAS AND MENTALLY
IMPAIRED DEFENDANTS
2016, No. 6 Criminal Procedure 3
Division 1 - Pleas
65. Plea of guilty by notice to
Registrar
66. Plea on being charged
67. Plea on behalf of corporation
68. Special pleas
69. Evidence of former trial
70. Pleas of previous acquittal and
conviction
71. Second accusation
72. Application to vacate guilty
plea
Division 2 - Mentally
Impaired Defendants
73. Interpretation
74. When finding of unfitness to
stand trial may be made
75. Postponement of hearing, etc
76. Determining whether
defendant is fit to stand trial
77. Appeal to the Supreme Court
78. Detention of defendants found
unfit to plead etc.
79. Finding of insanity
80. Appeal against acquittal on
account of insanity
PART 8
WITNESSES
81. Summons for attendance of
witnesses
82. Warrant to arrest witness
83. Penalty for failing to comply
with witness summons
84. Witness refusing to give
evidence may be imprisoned
85. Witnesses may be excluded
PART 9
CONDUCT OF TRIAL,
ADJOURNMENTS AND BAIL
Division 1 - Conduct of Trial
86. Admissions
87. Evidence
88. Unrepresented defendant
89. Evidence on oath or
affirmation
90. Attempt proved when crime is
charged
91. Crime proved when attempt is
charged
92. Part of charge proved
93. Variance and amendment
Division 2 - Adjournments
94. Power to adjourn hearing
95. Powers on adjournment
96. Power to adjourn for inquiries
after conviction
97. Removal of trial on question of
law
Division 3 - Bail
98. Rules as to granting bail
99. Factors relevant to decision
as to bail
100. Restriction on release on bail
101. Restriction on bail where
certain previous convictions
102. Bail allowable for narcotic
offending only by order
103. Bail pending sentence
104. Defendant may seek bail
105. Evidence in bail hearing
106. Conditions of bail
107. Calling up of bail-bond,
guarantee or surety
108. Warrant for detention
Division 4 - Procedure
following Grant of Bail
109. Release of defendant granted
bail
110. Warrant of deliverance
111. Variation of conditions of
bail
4 Criminal Procedure 2016, No. 6
112. Defendant on bail may be
arrested without warrant in
certain circumstances
113. Warrant to arrest defendant
absconding or breaching bail
condition or who fails to
answer bail
114. Failure to answer bail
Division 5 - Bail
relating to Appeals
115. Bail pending appeal
116. Appeals from decision of
District Courts relating to
bail
117. Execution of Supreme Court
bail decisions
118. Hearing and granting of bail
to appellant and custody
pending appeal
119. Warrant to arrest appellant
who has absconded or is
about to abscond while on
bail
120. Surrender of appellant
released on bail and
discharge of surety
121. Appeal from decision of
Judge relating to bail
122. Procedural provisions
relating to appeal on
question of bail
123. Decision of Court of Appeal
PART 10
TRIAL IN THE
SUPREME COURT
Division 1 - General
124. Independence of prosecutor
125. Defendant’s notice to be
tried with Judge alone
126. Prosecution’s application for
trial by Judge alone
Division 2 - Assessors
127. Qualifications
128. Term
129. List of Assessors
130. Choice and summonsing of
assessors
131. Failure of assessor to attend
trial
132. Registrar to notify
prosecution and defence
133. Challenge to assessor
134. Oath or affirmation
135. Discharge of assessor
Division 3 - Verdict of Assessors
136. Concurrence of assessors
137. Assessors to be kept together
PART 11
APPEALS
Division 1 - Appeals from the
District Courts to the
Supreme Court
138. Reserving question of law
before determination of
information
139. Appeal if District Court
Judge refuses to reserve
question
140. Appeal on question of law
only by way of case stated
141. District Court Judge may
refuse a case if appeal
frivolous
142. Certifying that a case stated
has not been prosecuted
143. Case may be sent back for
amendment
144. Supreme Court to determine
the questions on case stated
145. Defendant appealing by way
of case stated may not
appeal otherwise
2016, No. 6 Criminal Procedure 5
Division 2 - General Appeals
146. Defendant’s general right of
appeal to Supreme Court
147. Right of Attorney-General to
appeal to Supreme Court
148. Notice of appeal
149. Transmission of documents
to Supreme Court
150. Copies of documents to be
supplied to the appellant on
request
151. Appellant to lodge
documents with Registrar
152. Setting down appeal for
hearing
153. Procedure on appeal
154. Supreme Court to hear and
determine appeal
155. Power to forbid report of
proceedings etc.
Division 3 - Provisions relating
to all Appeals
156. Powers of Judge as to
extension of time
157. Fresh evidence on appeal
158. Issue of warrant pending
appeal
159. Abandonment of appeal
160. Presentation of case by party
in custody
161. Power of Supreme Court to
direct retrial
162. Amendment of conviction
by substituting one offence
for another
163. Dismissal of appeal for non-
prosecution
164. Registrar to certify
determination on appeal
165. Determination of Supreme
Court
166. Custody of person after
determination of appeal
167. Resumption of probation on
determination of appeal
168. Party not prosecuting appeal
may be ordered to pay costs
169. Enforcement of order as to
costs
170. No Court fees payable on
appeal by person sentenced
to imprisonment
Division 4 - Appeals from Supreme
Court to Court of Appeal
171. Interpretation
172. Right of appeal on certain
matters arising before trial
173. Reserving question of law
174. Appeal on question of law
question not reserved
175. Powers of Court of Appeal
for appeal on question of law
176. Right of appeal against
conviction or sentence
177. Right of Attorney-General to
appeal against sentence or
acquittal
178. Appeal against decision of
Supreme Court on appeal
from District Court
179. Right of appeal against
sentence or conviction for
contempt of court
180. Determination of appeals in
ordinary cases
181. Powers of Court of Appeal
in special cases
182. Re-vesting and restitution of
property on conviction
183. Supplemental powers of
Court of Appeal
184. Duties of Registrar with
respect to notices of appeal,
etc.
185. Evidence for Court of
Appeal
186. Right of appellant to be
represented
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187. Power to forbid report of
proceedings, etc.
PART 12
MISCELLANEOUS
188. Costs
189. Witnesses’ expenses
190. Acts not generally to be
done on Sunday
191. Proceedings not to be
questioned for want of form
192. Consent of Attorney-General
to proceedings in certain
cases for offences on ships
or aircraft
193. Civil remedy not suspended
194. Contempt of court
195. Felonies, misdemeanours
and mode of trial
196. Proceedings against parties
to offences, accessories, and
receivers
197. Production of document,
etc., held by Ministry, etc.
198. Regulations
199. Rules of Court
200. Repeal, amendment,
transitional and saving
Schedule
__________
2016, No. 6
AN ACT to provide a code relating to criminal procedure and
rules as to the criminal jurisdiction of courts hearing
criminal cases and for related purposes.
[09th February 2016]
BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:
PART 1
PRELIMINARY
1. Short title and commencement-(1) This Act may be cited
as the Criminal Procedure Act 2016.
(2) This Act commences on a date nominated by the Minister
for Justice and Courts Administration.
2. Interpretation-(1) In this Act, unless the context otherwise
requires:
“Act” includes Ordinance;
2016, No. 6 Criminal Procedure 7
“charging document” means the charging document in Form 5
of the Schedule filed by or on behalf of the Attorney-
General pursuant to this Act;
“child” means:
(a) for a defendant, a person aged 10 years or over and
under 18 years;
(b) for a complainant or victim, a person aged 16 years or
under.
“corporation” includes other legal entity;
“Court” means the Supreme Court or a District Court whether
presided over by a Judge or a Fa’amasino Fesoasoani;
“Court of Appeal” means the Court of Appeal of Samoa
constituted under Article 75 of the Constitution;
“decision” includes a judgment, decree, order, writ,
declaration, conviction, sentence, opinion or other
determination;
“defendant” means a person charged with an offence, and “the
defence” has a corresponding meaning;
“enactment” means a provision of any Act, Ordinance or
subsidiary legislation;
“Fa’amasino Fesoasoani” means a person appointed as such
under the District Courts Act 1969;
“informant” means the person by whom or on whose behalf an
information is laid;
“information” includes any charge in a charging document;
“Judge” means a Judge appointed under the Judicature
Ordinance 1961 or the District Courts Act 1969;
“Judicial Service Commission” means the Judicial Service
Commission constituted by Article 72 of the Constitution;
“lawyer” has the meaning in the Lawyers and Legal Practice
Act 2014;
“offence” means an act or omission for which, under an
enactment, a person can be punished other than by means
of a civil proceeding;
“prescribed form” means a form prescribed by regulations or
rules of a Court made under this Act or any other
enactment;
“prison” has the meaning in the Prisons and Corrections Act
2013, and includes a police gaol;
8 Criminal Procedure 2016, No. 6
“prosecutor” means:
(a) the Attorney-General or includes a lawyer acting under
the general or special instructions of the Attorney-
General; or
(b) a constable prosecuting in a District Court, acting under
the general or special instructions of the
Commissioner of Police,
and “prosecution” has a corresponding meaning.
“public place” includes a place to which the public are entitled
or permitted to have access whether on payment or
otherwise;
“Registrar” means the Registrar of a Court, and includes a
Deputy Registrar;
“remanding officer” means a remanding officer mentioned in
Article 6(4) of the Constitution;
“representative”, for a corporation, means a person appointed
by the corporation to represent it for the purpose of doing
an act or thing which the representative is authorised to do
under this Act;
“rules” means rules made under, or applying pursuant to
section 199;
“Youth Court” means the Court established under the Young
Offenders Act 2007.
(2) A statement in writing, which need not be under seal, but
which purports to be signed by any person having, or being one of
the persons having, the management of the affairs of a corporation,
to the effect that the person named in the statement has been
appointed as the representative of the corporation for the purposes
of this Act, is admissible without further proof as prima facie
evidence that that person has been so appointed.
3. Application-(1) Subject to section 200, this Act applies to
all criminal proceedings on or after the commencement of this Act.
(2) Nothing in this Act limits or affects in any way any other
enactment conferring on a Court a power to pass a sentence or
impose a punishment or make an order in addition to or instead of
a sentence or punishment prescribed by this Act, or otherwise to
deal with a defendant.
2016, No. 6 Criminal Procedure 9
PART 2
JURISDCTION OF THE COURTS
Division 1 - Supreme Court
4. Criminal jurisdiction of Supreme Court - The Supreme
Court has jurisdiction to hear and determine the following:
(a) all criminal proceedings commenced in the Supreme
Court by the laying of an information;
(b) any information laid in a District Court and transferred
to the Supreme Court for trial under this Act or any
other Act;
(c) any information filed in the Supreme Court within the
jurisdiction of a District Court, if -
(i) the Supreme Court is satisfied that it is
desirable or expedient in the interest of justice to
do so; or
(ii) the information is to be tried together
with an information under the jurisdiction of the
Supreme Court; or
(iii) the information is an alternative to the
information under the jurisdiction of the
Supreme Court;
(d) all criminal appeals from a District Court or the Youth
Court whether brought by case stated or notice of
general appeal against conviction, sentence, or
acquittal;
(e) all applications for release on bail or at large in respect
of any information laid in or transferred to the
Supreme Court;
(f) any appeal against a bail decision from a District Court
or the Youth Court.
5. Power to transfer proceedings-(1) As an exception to
section 4, a Judge of the Supreme Court having heard the
prosecutor and the defendant may direct that a trial that otherwise
would be conducted in the Supreme Court be transferred to a
District Court for trial, if:
10 Criminal Procedure 2016, No. 6
(a) the person awaiting trial is charged under the Narcotics
Act 1967; and
(b) the Judge is satisfied that despite the maximum penalty
of the offence, the sentence that be imposed if the
charge or charges were proved may be less than
two (2) years; and
(c) there are no matters of legal or factual complexity or
matters arising from the public interest or the
interests of justice such that the trial should remain
in the Supreme Court.
(2) If the defendant is convicted of the offence or offences on
any proceeding transferred under this section, the trial Judge, as an
exception to subsection (1)(b), may sentence the defendant to
imprisonment for more than two (2) years but defendant may not
be sentenced to more than seven (7) years imprisonment.
5A. Power to transfer proceedings to District Court for
rehabilitative programme-(1) As an exception to section 4, a
Judge of the Supreme Court having heard the prosecutor and the
defendant may direct that the sentencing or other disposition that
would otherwise be conducted in the Supreme Court be transferred
to the District Court if:
(a) the defendant -
(i) has entered a plea of guilty; and
(ii) is likely to be suitable for a rehabilitative
programme in the District Court; and
(b) the Judge of the Supreme Court is satisfied that, despite
the maximum penalty for the offence, the sentence
that would be imposed, taking into account credit
for the satisfactory completion of the rehabilitative
programme, would be a community-based sentence.
(2) If the defendant:
(a) successfully completes the rehabilitative programme,
the District Court Judge may sentence the defendant
pursuant to its sentencing power; or
(b) fails to complete the rehabilitative programme, the
District Court Judge must transfer the matter back
to the Supreme Court for sentencing.
2016, No. 6 Criminal Procedure 11
(3) The Chief Justice may issue Directives to provide for
criteria and procedures for rehabilitative programme.
(4) In this section, “rehabilitative programme” means the
judicially monitored rehabilitative programme undertaken by the
District Court for a defendant pursuant to this section.
6. Trial with or without assessors-(1) All trials in the
Supreme Court are to be tried by a Judge alone.
(2) As an exception to subsection (1), a defendant charged with
an offence punishable by life imprisonment is to be tried by a
Judge sitting with five (5) assessors.
(3) However, a defendant under subsection (2) may apply
pursuant to section 125 to be tried before a Judge alone.
(4) Subsection (2) does not apply if the defendant is charged
under the Narcotics Act 1967.
7. Trial without assessors for complex fraud-(1) In this
section “complex fraud” includes a series of connected incidents of
fraud or other complex issues which, if taken together, amount to a
complex fraud.
(2) Subject to section 6(2), in any trial involving a case of
complex fraud punishable by life imprisonment, a Judge, on the
application of the prosecutor, may direct that the trial be heard by a
Judge alone.
8. Transfer from District Courts-(1) A Judge of the Supreme
Court may determine any application to transfer an information
laid in the District Court to the Supreme Court for trial.
(2) The transfer of an information to the Supreme Court may
be initiated by a Judge of the District Court or Supreme Court or
by application by a prosecutor or defendant.
Division 2 - District Courts
12 Criminal Procedure 2016, No. 6
9. Trial to be heard in District Courts-(1) A District Court
has jurisdiction set out under the District Courts Act 1969.
(2) A District Court has jurisdiction to hear and determine any
information transferred to the District Court from the Supreme
Court.
10. Criminal jurisdiction of Fa’amasino Fesoasoani - A
Court presided over by a Fa’amasino Fesoasoani has jurisdiction
prescribed under the District Courts Act 1969.
Division 3 - Youth Court
11. Criminal jurisdiction of Youth Court - A Youth Court
has jurisdiction as set out under the Young Offenders Act 2007.
12. Youth Court may transfer proceedings-(1) As an
exception to the Young Offenders Act 2007, on the application of
the prosecutor, a Youth Court may transfer the trial of a child to:
(a) the Supreme Court if the offence charged is punishable
by imprisonment of more than seven (7) years; or
(b) a District Court, in any other case,
if the Youth Court is satisfied that the seriousness of the offence,
or any other circumstances of the offence or the defendant make it
appropriate for the matter to be tried in the Supreme Court or a
District Court.
(2) A Youth Court may in any case transfer a trial to the
Supreme Court or a District Court if the child is jointly charged
with an adult and the interests of justice require that the trials be
heard together.
PART 3
COMMENCEMENT OF PROCEEDINGS
13. Proceedings to commence by laying information - All
criminal proceedings commence in the Supreme Court by laying of
an information unless the proceeding is transferred to the District
Court under section 5.
2016, No. 6 Criminal Procedure 13
14. Person arrested without warrant-(1) If a person is
arrested without warrant, any information charging the offence on
which that person is arrested is to be filed as soon as is practicable
in the Court before which the person arrested is to appear.
(2) If any information is laid in the Supreme Court,
proceedings in relation to bail may be heard on that information
although the Attorney-General has not filed a charging document.
15. Issue of summons-(1) When an information has been laid,
a Judge, Fa’amasino Fesoasoani or Registrar may issue a summons
to the defendant in Form 2 in the Schedule.
(2) A summons issued under subsection (1) must:
(a) require the person to appear at a date and time at the
Court where the information has been or is to be
filed; and
(b) contain the particulars of the person against whom the
information has been or will be laid and the
particulars of the offence or offences charged.
16. Time and place for laying information-(1) Any
information for an offence the maximum penalty for which does
not exceed three (3) months imprisonment is to be laid within 12
months of the time that the offence is alleged to have been
committed.
(2) Subsection (1) does not apply if any other period for the
laying of an information is provided by an enactment.
(3) Any information for an offence within the jurisdiction of a
District Court is to be filed in the District Court that is either
closest by the most practicable route to the place where the offence
was alleged to have been committed or to the place the person
charged resides.
(4) Any information for an offence within the jurisdiction of
the Supreme Court is to be filed in that Court.
17. Criminal proceedings in Supreme Court-(1) A hearing in
the Supreme Court to determine an information must not
commence until a charging document has been filed.
14 Criminal Procedure 2016, No. 6
(2) Subsection (1) does not apply if:
(a) the prosecution is a private prosecution; or
(b) the Attorney General consents to the prosecution
commencing.
(3) The charging document is to be filed within 21 working
days (or such further time as the Court may allow on application of
the prosecutor) of the first day the information filed is mentioned
or called before the Supreme Court.
(4) The charging document may:
(a) have proceedings to proceed on the information already
before the Supreme Court; or
(b) in addition to the information already before the Court,
have proceedings also proceed on any other
additional information in the charging document; or
(c) have proceedings to proceed on any substituted
information in the charging sheet; or
(d) amend any information already before the Supreme
Court.
(5) A person may enter a plea before the filing of a charging
document and the Court is to record the plea but for guilty plea the
Court may not enter a conviction unless the Attorney-General
consents to the conviction being entered.
(6) As an exception to subsections (2) and (5), the hearing of
any proceedings may commence without a charging document if
the Court grants leave for hearing to commence on the information
already before the Supreme Court.
18. Form and content of information-(1) Any information
must:
(a) be in Form 1 in the Schedule; and
(b) be sworn or affirmed; and
(c) refer to the provision of an enactment creating the
offence that it is alleged the defendant has
committed.
(2) If the consent of a Judge or the Attorney-General is
required to the laying of any information, the information is to be
endorsed with the consent or accompanied by a certificate
containing that consent.
2016, No. 6 Criminal Procedure 15
(3) The endorsement or certificate is conclusive evidence of the
consent.
19. Charging document-(1) The charging document must set
out:
(a) the charges on which the Attorney-General intends to
proceed with in the prosecution of the defendant;
and
(b) if the prosecution proposes a joint trial on two (2) or
more defendants, the charges against all the
defendants.
(2) The charging document may have the proceedings proceed
on:
(a) the information already before the Court; or
(b) in addition to, or in substitution of the information, any
additional charge or charges set out in the charging
document.
(3) If there is more than one (1) defendant, one (1) charging
document is to be filed with the Court.
(4) A failure to file a charging document does not invalidate
the proceedings.
(5) Nothing in this section prevents the prosecution applying to
amend or add any charge after a charging document has been filed.
(6) For a charging document containing more than one (1)
charge, each charge is treated as a separate charge.
(7) A Judge may order at any time before verdict:
(a) that the defendant be tried separately on any charge or
charges in the charging document; or
(b) that the defendants be tried separately from each other,
if the Judge is satisfied that there are special circumstances likely
to affect trial fairness or it is in the interest of justice.
(8) If an order is made under subsection (7) for separate trials,
the prosecutor must file a charging document for each trial.
20. Information to charge one offence only-(1) Subject to
any other enactment, any information is to be for one (1) offence
only.
16 Criminal Procedure 2016, No. 6
(2) As an exception to subsection (1), the information may
charge, in the alternative, different acts, omissions or matters if the
acts, omissions or matters are stated in the alternative in the
enactment under which the charge is brought.
(3) The Court may, on the application of the defendant, order
that the information laid under subsection (2) be amended or
divided if the Court is satisfied that the defendant’s defence to any
charge or charges will otherwise be prejudiced.
(4) If an order is made under subsection (3), the hearing is to
continue on the information as amended or, in the case of dividing
the information, as if the information had been laid in respect of
each of the divided charges.
21. Two or more information be heard together-(1) Two (2)
or more charges for any offences against a defendant may be tried
together.
(2) The Court may make an order for the purpose of subsection
(1) if:
(a) the information arises from allegations linked
sufficiently by time, place, circumstances or other
factors giving rise to significant commonality of
evidence; or
(b) the Court thinks it is desirable or expedient in the
interests of justice to do so.
(3) The prosecutor may:
(a) notify the Court before which the proceedings are being
conducted proposing that two (2) or more charges to
be tried together; and
(b) seek leave at any time before or during the trial, to
amend that notification.
(4) If the Court before which proceedings are being conducted
thinks it is in the interest of justice to do so, it may, on the
application of the defendant or the prosecutor, order that a
defendant be tried separately on one (1) or more charges against
the defendant.
(5) If one (1) charge is to be tried before assessors, all charges
may be so tried.
2016, No. 6 Criminal Procedure 17
(6) If one (1) charge is to be tried in the Supreme Court, all
charges may be tried in the Supreme Court.
22. Charge may be representative-(1) A charge may be
representative if:
(a) multiple offences of the same type are alleged; and
(b) the offences are alleged to have been committed in
similar circumstances over a period of time; and
(c) the nature and circumstances of the offences are such
that the complainant cannot reasonably be expected
to particularise dates or other details of the offences.
(2) A charge may also be representative if:
(a) multiple offences of the same type are alleged; and
(b) the offences are alleged to have been committed in
similar circumstances such that it is likely that the
same plea would be entered by the defendant in
relation to all the offences if they were charged
separately; and
(c) because of the number of offences alleged, if the
offences were to be charged separately but tried
together it would be unduly difficult for the Court
(including, in any trial with assessors, the assessors)
to manage the separate charges.
(3) A representative charge must be identified as such.
(4) A representative charge must contain the following:
(a) particulars of the offences of which the charge is
representative, including, without limitation, when
values, amounts, or quantities are relevant,
particulars of the minimum values, amounts, or
quantities that the prosecution must establish in
order for the charge to be proved; and
(b) the dates on or between which the offending is alleged
to have occurred.
(5) The Court may, on application of any party or on its own
initiative, in the interests of justice:
(a) order that any charge that is representative, be amended,
or divided into two (2) or more charges; or
18 Criminal Procedure 2016, No. 6
(b) order that two (2) or more charges be amalgamated into
a representative charge.
23. Two or more defendants may be tried together-(1) Any
number of defendants may be tried together.
(2) A Court may make an order for the purpose of subsection
(1) if:
(a) the allegations against the defendants are linked
sufficiently by time, place, circumstances or other
factors giving rise to significant commonality of
evidence; or
(b) the Court thinks it is desirable or expedient in the
interests of justice to do so.
(3) The prosecutor may:
(a) notify the Court before which proceedings are being
conducted proposing that the charges against one
(1) defendant be tried with charges against one (1)
or more other defendants; and
(b) seek leave at any time before or during the trial to
amend that notification.
(4) If the Court before which proceedings are being conducted
thinks it is in the interest of justice to do so, it may, on the
application of the defendant or the prosecutor, order that a
defendant be tried separately.
(5) If one (1) defendant is to be tried before assessors on one
(1) charge, all charges against the defendant may be so tried.
(6) If one (1) charge is to be tried in the Supreme Court, all
charges against all defendants may be tried in the Supreme Court.
24. Information to contain sufficient particulars-(1) Any
information or charging document must contain particulars as will
fairly inform the defendant of the substance of the offence with
which the defendant is charged.
(2) In addition to section 18(1)(c), the particulars of the
offence:
(a) must, to the extent it is practicable or appropriate, use
the words of the enactment creating the offence; and
2016, No. 6 Criminal Procedure 19
(b) may refer to any part of that enactment.
(3) In estimating the sufficiency of the information under
subsection (2), the Court must have regard to the reference to the
enactment.
(4) The particulars must include the time and place of the
alleged offence to the extent that may be reasonably ascertained
and the person (if any) against whom, or the matter (if any) in
respect of which, it was committed.
25. Application for further particulars-(1) If a defendant,
who has sought further particulars of a charge from the informant
or prosecutor, considers the response to be inadequate, the
defendant may apply to the Court in which the charge is to be tried
for an order for specified further particulars.
(2) If the Court is satisfied that all or some of the particulars,
specified in the application under subsection (1), are necessary in
the interests of a fair trial, the Court may order the informant or
prosecutor to supply those particulars to the defendant in writing.
26. Information may be laid by any person-(1) Subject to
any other enactment and subsection (2), a person aged 21 or over
may lay any information for an offence.
(2) A person under the age of 21 may do so with the leave of a
Judge.
27. Proceedings on information requiring consent-(1) If a
person is alleged to have committed an offence that requires the
consent of another person before the information for that offence
may be laid, the person alleged to have committed the offence:
(a) may be arrested; or
(b) be issued with a warrant for arrest and its execution;
and
(c) may be remanded in custody or on bail,
although the consent to the laying of the information has not been
obtained.
(2) When the person is remanded under subsection (1):
(a) no further proceedings are to be taken until the consent
has been obtained; and
20 Criminal Procedure 2016, No. 6
(b) the consent must be obtained within five (5) working
days of the order remanding the defendant in
custody.
(3) In any other case, the consent must be obtained as soon as
is practicable.
28. Information not to be held invalid for want of form-(1)
A Court may not quash, set aside or dismiss:
(a) any information; or
(b) a charging document or a charge in the charging
document; or
(c) a warrant, order or other process of court,
by reason only of the failure to comply with this Act unless the
Court is satisfied that there has been a miscarriage of justice such
that it would be contrary to the interests of justice to allow
amendment, or any other correction available under this Act, or
any other enactment, or rule of law.
(2) Subject to subsection (1), a Court may not invalidate or
dismiss, on any of the following grounds, any information:
(a) that does not contain the name of any person injuriously
affected;
(b) that does not state who is the owner of any property
therein mentioned;
(c) that charges an intent to defraud, without naming or
describing the person whom it was intended to
defraud;
(d) that does not set out the words used, if words used are
the subject of the charge;
(e) that does not specify the means by which the crime was
committed;
(f) that does not name or describe with precision any person
or thing;
(g) that was not properly sworn or affirmed.
PART 4
ARREST AND SEARCH
Division 1 - Arrest
2016, No. 6 Criminal Procedure 21
29. Arrest without warrant-(1) A person must not be arrested
without a warrant except pursuant to a power to arrest without a
warrant under this Act or any other enactment.
(2) A private person:
(a) may arrest without a warrant any other person whom the
person finds committing an offence punishable by
imprisonment for three (3) years or more; and
(b) must, as soon as possible, deliver the arrested person to
a constable or police station.
(3) A constable, and any other person whom the constable calls
for assistance, may arrest and take into custody without a warrant:
(a) a person whom the constable finds committing, or
whom the constable has good cause to suspect of
having committed, an offence punishable by
imprisonment for three (3) months or more; or
(b) a person who, within the constable’s view, commits or
commences to commit an offence under the Police
Offences Ordinance 1961 or the Road Traffic
Ordinance 1960, and who either -
(i) fails to give his or her name and address
on demand; or
(ii) after being warned by the constable to
desist, persists in committing that offence; or
(c) a person whom the constable -
(i) finds committing, or has good cause to
suspect of having committed, a breach of the
peace; or
(ii) finds in any public place, and has good
cause to think is drunk; and
(iii) has good cause to believe might cause
harm to others or come to harm himself or
herself as a result of the breach of the peace or
drunkenness.
(4) This section is subject to any enactment imposing any
limitation, restriction or condition on the exercise of any power to
arrest without a warrant conferred on any constable by that
enactment for an offence or class of offences.
22 Criminal Procedure 2016, No. 6
(5) If, under any enactment other than this Act, a person, not
being a constable, has power to arrest any other person without a
warrant, a constable may exercise that power in the same cases and
in the same manner as that person.
(6) This section does not affect Part IV of the Crimes Act 2013
on matters of justification or excuse in the arrest of any person.
30. Power to enter premises without warrant to arrest
offender or prevent offence-(1) If a constable is authorised by
this Act or by any other enactment to arrest a person without a
warrant, the constable, and any other person whom the constable
calls for assistance, may enter any premises, without a warrant and
by force if necessary:
(a) to arrest that person if the constable -
(i) has found that person committing an
offence punishable by imprisonment for three
(3) months or more and is freshly pursuing that
person; or
(ii) has good cause to suspect that the person
has committed the offence; or
(b) to prevent the commission of an offence that would be
likely to cause immediate and serious injury to
another person or property, if the constable has
good cause to suspect that the offence is about to be
committed.
(2) If, in any case to which this section applies:
(a) the constable is not in uniform; and
(b) a person in actual occupation of the premises requires
the constable to produce evidence of his or her
authority,
the constable must, before entering or proceeding further on the
premises, produce his or her badge or other evidence or an
identification document that he or she is a constable.
(3) This section does not affect in any way the power of a
constable to enter any premises pursuant to a warrant.
(4) A person who is arrested without warrant must be brought
before a Court or remanding officer, as soon as is reasonably
possible.
2016, No. 6 Criminal Procedure 23
31. Issue and withdrawal of warrant to arrest defendant-
(1) When any information has been laid and whether or not any
summons has been issued or served:
(a) a Judge may, if the Judge thinks fit, issue a warrant, in
the prescribed form, to arrest the defendant and
bring the defendant before a court; or
(b) a Fa’amasino Fesoasoani or a Registrar may issue a
warrant, in the prescribed form, to arrest the
defendant and bring the defendant before a Court if
the defendant is liable on conviction to
imprisonment and if, in the opinion of the
Fa’amasino Fesoasoani or the Registrar -
(i) a warrant is necessary to compel the
attendance of the defendant; or
(ii) a warrant is desirable having regard to
the gravity of the alleged offence and the
circumstances of the case.
(2) The warrant of arrest:
(a) is to be directed specifically to a constable by name or
generally to all constables; and
(b) may be executed by any constable.
(3) When executing a warrant under this section, the constable:
(a) may at any time enter any premises, by force if
necessary, if the constable has good cause to
suspect that the defendant is on the premises; and
(b) if, the constable is not in uniform and a person in actual
occupation of the premises requires the constable to
produce evidence that he or she is a constable, must,
before entering or proceeding further on the
premises, produce his or her badge or other
evidence that he or she is a constable.
(4) A warrant to arrest a defendant may be withdrawn by the
person who issued it at any time before it is executed.
32. Duty of persons arresting-(1) A constable or law
enforcement officer, who is arresting another person must inform
the person arrested on all of the following:
(a) the right not to say anything unless the arrested person
wishes to do so; and
24 Criminal Procedure 2016, No. 6
(b) the right to consult a lawyer; and
(c) the grounds of arrest and any charge against the arrested
person.
(2) A person who arrests another person pursuant to any
process or warrant must, if required by the arrested person:
(a) produce it to the arrested person, if the person is in
possession of the process or warrant at the time of
the arrest; or
(b) produce it to the arrested person as soon as practicable
after the arrest, if the person is not in possession of
the process or warrant at the time of the arrest.
(3) If, under any enactment, a person other than a constable
has, by virtue of the person’s appointment to an office, a power of
arrest without a warrant, the person must (whenever the person
arrests another person pursuant to that power) if required by the
arrested person:
(a) produce the evidence of appointment to the arrested
person, if the person has evidence of the
appointment at the time of the arrest; or
(b) produce the evidence of appointment to the arrested
person as soon as practicable after the arrest, if the
person does not have evidence of the appointment at
the time of the arrest.
(4) A failure to comply with a duty under this section does not
of itself deprive the person arresting, or the person’s assistants, of
protection from criminal or civil liability, but may be relevant to
any inquiry whether the arrest might not have been effected, or the
process or warrant executed, by reasonable means in a less violent
manner.
(5) This section does not limit or affect the provision of any
enactment providing:
(a) the burden of proving the absence of reasonable or
probable cause, or the absence of justification, for
any arrest is on any person; or
(b) a person having, by virtue of his or her office, a power
of arrest without a warrant is entitled, in
any specified circumstances, to exercise that power
2016, No. 6 Criminal Procedure 25
without the production of evidence of appointment
to that office, or is required, in exercising the
power, to comply with any specified conditions or
restrictions in addition to or instead of producing
evidence of appointment.
(6) In this section, “law enforcement officer”:
(a) means a person empowered or authorised under an
enactment to arrest any other person; but
(b) does not include a private person when exercising the
powers of arrest under section 29(2) or any other
enactment.
Division 2 - Search
33. Search and seize warrants-(1) This section applies
whether or not any information has been laid.
(2) A Judge or Registrar may issue a search and seize warrant,
or a restraining order, in the prescribed form, if he or she is
satisfied on the oath of any person that there is reasonable ground
or good cause for believing that there is in any building, aircraft,
ship, vehicle, box, receptacle, premises, or place, or on any person:
(a) anything upon or for which an offence punishable by
imprisonment has been or is suspected of having
been committed; or
(b) anything which, there is reasonable ground to believe,
will be evidence for the offence; or
(c) anything which there is reasonable ground to believe is
intended to be used for the purposes of committing
the offence.
(3) A restraining order may prohibit the defendant or any other
person from disposing of, or otherwise dealing with, the property
or part of or interest in it, as is specified in the order, either
absolutely or except in any manner specified in the order.
(4) In this section, “Registrar” does not include a Deputy
Registrar.
34. Warrant for forensic samples-(1) This section applies
whether or not an information has been laid.
26 Criminal Procedure 2016, No. 6
(2) If a Judge is satisfied on the oath of any person that there is
reasonable ground or good cause to believe that there is on or in
any person anything which there is reasonable ground to believe
will be evidence for an offence, the Judge may issue a warrant:
(a) to examine a part of the body that requires touching of
the body or removal of clothing; or
(b) to take a sample of hair; or
(c) to take a sample from or under a fingernail or toenail; or
(d) to take a sample of saliva or a sample by a swab; or
(e) to take a sample by swab or washing from any external
part of the body; or
(f) to take a sample from vacuum suction, by scraping or by
lifting by tape from any external part of the body; or
(g) to take a handprint, fingerprint, footprint, or toe-print;
or
(h) to take a sample of blood or other bodily fluid;
(i) to take a dental impression;
(j) to take any other prescribed forensic samples.
(3) This section does not affect the powers of the police to take
forensic samples under any other enactment.
(4) If a forensic sample is to be taken from a child or person
with mental disability, the sample must be taken in the presence of
a parent or a guardian of the child or person.
(5) Regulations may be made under section 198 to set out other
procedures for the taking of forensic samples.
35. Disposal of things seized-(1) If a constable seizes anything
under section 33, it must be retained under the custody of a
constable, except while it is being used in evidence or in the
custody of a court, until it is disposed of under this section.
(2) In any proceedings for any offence relating to the thing, the
Court may order, either at the trial or on a subsequent application,
that the thing be:
(a) delivered to the person appearing to the Court to be
entitled to it; or
(b) forfeited, defaced, or destroyed (in the case of
counterfeit coin, or forged bank notes); or
(c) retained under the custody of a constable until disposed
of under the Proceeds of Crime Act 2007; or
2016, No. 6 Criminal Procedure 27
(d) disposed of in any manner, as the Court thinks fit.
(3) A constable may:
(a) at any time, unless an order has been made under
subsection (2), return the thing to the person from
whom it was seized; or
(b) apply to a Judge, for an order as to its disposal, who
may make an order that a Court may make under
subsection (2).
(4) If, upon the expiry of a period of six (6) months after the
date of seizure:
(a) proceedings have not been brought for an offence
relating to the thing; and
(b) the thing is still in the custody of a constable,
a person claiming to be entitled to the thing may apply to a Judge
for an order that it be delivered to the person; and on any such
application the Judge may adjourn the same on any terms as he or
she thinks fit for proceedings to be brought, or may make any
order that a Court may make under subsection (2).
(5) If:
(a) a person is convicted in any proceedings for an offence
relating to a thing to which this section applies; and
(b) an order is made under this section to deface or destroy
the thing,
the operation of the order is suspended until -
(i) the time for appeal expires; or
(ii) if an application for leave to appeal or a
notice of appeal is filed, the refusal of the
application or the determination of the appeal
(on the determination of an appeal, the Court
determining the appeal may annul or vary the
order to deface or destroy the thing under this
section).
36. Protection from responsibility-(1) A person is not
criminally or civilly liable who, pursuant to this Act or any other
enactment:
(a) arrests another person whether with or without a
warrant, or executes any search warrant; or
(b) assists a constable to arrest any person on being called
upon by a constable so to do.
28 Criminal Procedure 2016, No. 6
(2) Subsection (1) does not apply if the person, called upon by
a constable to assist in the arrest of a person whom the constable
believes or suspects to have committed an offence, knows that
there is no good cause for the belief or suspicion.
(3) The protection from criminal and civil liability under
subsection (1) applies to the use by the person of any force as may
be necessary to overcome any force used in resisting arrest, search
or execution, unless the arrest, search or execution could have been
made by reasonable means in a less violent manner.
(4) Except for a constable or person called upon by a constable
to assist the constable, this section does not apply if the force used
is intended or likely to cause death or grievous bodily harm.
PART 5
SUMMONS, SERVICE, EVIDENCE AND DISCLOSURE
Division 1 - Summons and Service
37. Issue of Summons-(1) When any information has been
laid, a Judge, Fa’amasino Fesoasoani or Registrar may issue a
summons to the defendant in Form 2 in the Schedule.
(2) The summons is to be issued out of the Court in which the
information was laid pursuant to section 13.
38. Service of document on defendant-(1) In this section,
“defendant’s family” means the defendant’s father, mother, wife,
husband, brother, sister, half-brother, half-sister, or a son or
daughter or aged 18 years or more.
(2) Any summons to a defendant or any other document that is
required to be served on a defendant under this Act is to be served
by delivering it to the defendant personally, or by bringing it to his
or her notice if the defendant refuses to accept it.
(3) As an exception to subsection (2), a Judge, Fa’amasino
Fesoasoani or Registrar may, if satisfied that the service of any
summons or document under subsection (2) is not practicable,
order that the summons or document be served on the defendant by
leaving it at the defendant’s usual place of residence with a person
appearing to be a member of the defendant’s family aged 18 years
or more.
2016, No. 6 Criminal Procedure 29
39. Service in particular cases - As an exception to section
38, the service of a document may be effected as follows:
(a) if a lawyer advises that he or she is acting on behalf of a
person, it is sufficient service to deliver the
document to the lawyer;
(b) if a defendant is an inmate of any penal, psychiatric or
mental institution, it is sufficient service to deliver
the document to the superintendent or other officer
apparently in charge of the institution;
(c) as an exception to the Companies Act 2001, if service is
to be effected on a corporation, it is sufficient
service to deliver the document -
(i) to the president, chairperson, manager or
other principal officer of the corporation, or to
the secretary, clerk or treasurer; or
(ii) to a person purporting to have charge of
the affairs or business of the corporation at its
registered or principal office or principal place
of business or at the office or place of business
nearest to the Court from which the document is
issued; or
(iii) for a corporation incorporated outside
Samoa, to a person mentioned in subparagraph
(i) or (ii) at any office or place of business in
Samoa.
40. Language of documents-(1) If a document is served on a
person who is known to the Registrar to be able to read and
understand English, the document is to be written in English; but in
any other case it is to be written in Samoan or be accompanied by a
translation into Samoan.
(2) As an exception to subsection (1), if a document is served
on a lawyer pursuant to section 39, a document may be in Samoan
or in English.
41. Who may serve documents - Any summons or any other
document to a defendant required to be served on a defendant may
be served by a constable, an officer of the Court or any other
person or member of a class of persons authorised by a Judge or
30 Criminal Procedure 2016, No. 6
Registrar, either generally or in respect of a particular case or class
of cases.
42. Proof of service-(1) The service of any document may be
proved:
(a) by affidavit made by the person who served the
document, showing the fact and the time, place and
mode of service; or
(b) if service is affected by an officer of the Court or a
constable, by an endorsement on a copy of the
document showing the fact, time, place and mode of
service and signed by the person who served the
document; or
(c) by any person who served the document, on oath at the
hearing.
(2) The statement as to service made by the person who served
the document is taken to be correct unless the contrary is proved.
(3) A person who wilfully endorses a false statement of the
fact, time, place or mode of service on a copy of a document
commits an offence and is liable to a fine not exceeding 20 penalty
units or to imprisonment for a term not exceeding 12 months, or to
both.
Division 2 - Taking Evidence other than at Trial
43. Evidence of person intending to leave Samoa-(1) A party
to a prosecution may apply to a Judge of the Supreme Court or a
District Court or to a Fa’amasino Fesoasoani for an order that a
person attend at a specified time and place to give oral evidence or
produce any document, or both, if:
(a) the person will be a witness in a criminal trial that has
been assigned a trial date, or a likely trial date is
known with reasonable certainty; and
(b) the person who is to give evidence intends to leave
Samoa, and will not be in Samoa when the trial is to
be held; and
(c) the Court is satisfied that it is in the interests of justice
that the evidence be taken pursuant to an order
under this section.
2016, No. 6 Criminal Procedure 31
(2) If an order is made under subsection (1), the person in
respect of whom it is made may be examined, cross-examined and
re-examined as if the person was appearing as a witness at the trial.
(3) The evidence of the person examined is to be recorded in
writing and shown to the person so testifying who, if satisfied it is
correct, must sign the record produced by the court.
(4) Without affecting subsection (3), the presiding Judge or
Fa’amasino Fesoasoani may order that the hearing be videotaped
or recorded on any other electronic means.
(5) This section applies to any future trial whether before a
Judge and assessors in the Supreme Court or otherwise.
(6) If the trial is to be before a Judge sitting with assessors, the
evidence must be videotaped or recorded on any other electronic
means.
(7) This section does not affect the power of the Court to compel
the personal attendance of a witness at the hearing.
44. Evidence of person dangerously ill-(1) A party to a
prosecution may apply to a Judge or Fa’amasino Fesoasoani for an
order that the statement of any person as to a person charged with a
criminal offence be taken, if:
(a) a medical officer has certified that the person is
dangerously ill; and
(b) the person is able to give material evidence as to the
pending charge; and
(c) the person consents to the making of a statement.
(2) The statement taken under subsection (1):
(a) is to be taken, on oath or affirmation, by the Judge,
Fa’amasino Fesoasoani or a Registrar; and
(b) signed by person making the statement or, if that person
is unable to do so, by the Judge, Fa’amasino
Fesoasoani or Registrar taking the statement; and
(c) is to be filed in the Court in which the charge is to be
heard.
(3) Section 43(3) to (7) applies to the taking of statement under
this section, with necessary modifications.
32 Criminal Procedure 2016, No. 6
45. Taking evidence of witness out of Court-(1) If, on the
application of a party to a prosecution, a Judge or Fa’amasino
Fesoasoani is satisfied that any witness is or will be for sufficient
reason unable to attend at the trial and give evidence, he or she
may make an order directing the taking of evidence at any place in
Samoa outside the trial court.
(2) Section 43(3) to (7) applies to the taking of evidence under
this section, with necessary modifications.
(3) If the witness is overseas, the order under subsection (1)
may include taking of evidence by video conference, video link or
similar means at a place specified in the order.
Division 3 - Disclosure
46. Prosecutors duty to disclose statements-(1) The
prosecutor must, within a reasonable time before the trial, disclose:
(a) to the Court and the defendant, copies of all statements
made by witnesses proposed to be called, and by the
defendant whether given orally or in writing; and
(b) to the defendant, a list of any defendant’s previous
convictions that are known to the prosecutor.
(2) A statement that is in a language that the defendant does not
understand must be translated into a language that the defendant
understands.
47. Adjourning trial for witnesses-(1) If the Court is of the
opinion that the defendant is taken by surprise (in a manner likely
to be prejudicial to the defendant’s defence) by the calling of
prosecution witness:
(a) who has not made any written statement, and of the
intention to produce whom the defendant has not
had sufficient notice; or
(b) who has made a written statement, but whose written
statement has not been made available to the
defendant in sufficient time,
the Court may, on the application of the defendant, either adjourn
the further hearing of the case or, if the case requires, discharge the
assessors from giving a verdict, and postpone the trial.
2016, No. 6 Criminal Procedure 33
(2) If the Court is of the opinion that any witness who is not
called for the prosecution ought to be so called, the Court may:
(a) require the prosecutor to call the witness; or
(b) if the witness is not in attendance, make an order to
procure the attendance of the witness; or
(c) if it thinks proper, adjourn the hearing until the witness
attends.
(3) If, in such case, the Court is sitting with assessors and is of
opinion that it would be conducive to the ends of justice to do so,
the Court may, on the application of the defendant, discharge the
assessors and postpone the trial.
48. Prosecutor may decline to disclose information-(1)
Section 46 does not require a prosecutor to disclose information
which the prosecutor would, but for this section, be required to
disclose if:
(a) the prosecutor is not in possession of the information
requested; or
(b) the information is not recorded; or
(c) the disclosure of the information is likely to prejudice
the prevention, investigation or detection of
offences; or
(d) the disclosure of the information is likely to endanger
the safety of any person; or
(e) the information is -
(i) material or communications prepared by
the prosecutor, or communications between
persons assisting in the trial of the case and the
prosecutor; or
(ii) the information relates to information
about undercover police officers; or
(iii) the information is subject to a pre-trial
witness anonymity order or a witness anonymity
order given under evidence legislation; or
(iv) the information relates to information
about witnesses’ addresses; or
(f) the disclosure of the information would be likely to
prejudice -
34 Criminal Procedure 2016, No. 6
(i) the security or defence of Samoa or the
international relations of the Government; or
(ii) the entrusting of information to the
Government on a basis of confidence by the
government of any other country or any agency
of that government or any international
organisation; or
(g) disclosure of the information would be likely to
facilitate the commission of another offence; or
(h) disclosure of the information would constitute contempt
of Court or contempt of the Legislative Assembly;
or
(i) the information could be withheld under any privilege
applicable under the rules of evidence; or
(j) disclosure of the information would be contrary to the
provisions of any other enactment; or
(k) the information is publicly available and it is reasonably
practicable for the defendant to obtain the
information from another source; or
(l) the information has previously been made available to
the defendant; or
(m) the information does not exist or cannot be found; or
(n) the information -
(i) reflects on the credibility of a witness
who is not to be called by the prosecutor to give
evidence but who may be called by the
defendant to give evidence; and
(ii) is not for any other reason relevant.
(2) If part only of the information may be withheld, the
prosecutor must make the remainder of the information available if
it is possible to protect the withheld information by deletion,
summary, or otherwise.
(3) If the prosecutor becomes aware that there has ceased to be
any justification for withholding all or part of any information that
has been withheld under this Act, the prosecutor must, if the
criminal proceedings have not yet been completed, disclose that
information to the defendant as soon as is reasonably practicable.
2016, No. 6 Criminal Procedure 35
49. Court to determine disclosure issues-(1) The defendant
may apply to the Court for an order that a particular item of
information or type of information in the possession or control of
the prosecutor be disclosed on the grounds that:
(a) the defendant is entitled to the information under
section 46, and -
(i) the prosecutor failed to disclose the
information despite specific request (in writing)
from the defendant for the disclosure of the
information; or
(ii) the prosecutor refused under section 48
to disclose the information, and none of the
reasons described in that section for which
information could be withheld applies to the
information; or
(b) even though the information may be withheld under this
Act, the interests protected by the withholding of
that information are outweighed by other
considerations that make it desirable, in the public
interest, to disclose the information.
(2) If the Court is satisfied, on an application made under
subsection (1), that:
(a) the defendant is entitled to the disclosure of any
particular item of information or type of
information under subsection (1); or
(b) any particular item of information or type of
information should be disclosed to the defendant
under subsection (1),
the Court may order that the item or type of information be
disclosed to the defendant, subject to any conditions that the Court
considers appropriate.
(3) When hearing both parties and determining an application
under this section, only the presiding Judge may view the
information before an order is made pursuant to subsection (2).
(4) An application under subsection (1) must be filed with the
Court and served on the prosecutor not less than 15 working days
before the date of the trial.
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50. Notice of alibi-(1) If a defendant intends to call evidence in
support of an alibi, the defendant must give written notice to the
prosecutor of the particulars of the alibi.
(2) The written notice must be given:
(a) if the defendant is to be tried in a District Court, within
10 working days of entering a plea of not guilty;
(b) if the defendant is to be tried in the Supreme Court,
within 20 working days of entering a plea of not
guilty.
(3) The Court may, in the interests of justice and fair trial,
dispense with the period in subsection (2).
(4) Without limiting subsection (1):
(a) the notice under subsection (1) must include the name
and address of the witness or, if the name and
address is not known to the defendant when the
notice is given, any matter known by the defendant
that might be of material assistance in finding that
witness; or
(b) if the name or the address is not included in the notice,
the defendant must have, before giving the notice,
taken all reasonable steps, and after giving the
notice continue to take all reasonable steps, to
ensure that the name and address is ascertained; or
(c) if the name or the address is not included in the notice,
but the defendant subsequently discovers the name
or address or becomes aware of any other matter
that might be of material assistance in finding the
witness, the defendant must as soon as practicable
give written notice of the name, address, or other
information, as the case may require; or
(d) if the defendant is notified by the prosecutor that the
witness has not been traced by the name or at the
address given, the defendant must as soon as
practicable give written notice of any other matter
known to the defendant that might be of material
assistance in finding that witness or, on
subsequently becoming aware of any such matter,
give written notice of it as soon as practicable.
2016, No. 6 Criminal Procedure 37
51. Notice of expert evidence-(1) If a defendant proposes to
call a person as an expert witness, the defendant must, at least 10
working days before the date fixed for the defendant’s hearing or
trial or within any further time that the Court may allow, disclose
to the prosecutor:
(a) any brief of evidence to be given, or a report provided
by that witness; or
(b) if that brief or the report is not then available, a
summary of the evidence to be given and the
conclusions of the report to be provided.
(2) If the defendant, under subsection (1)(b), provides only a
summary of evidence to be given or conclusions of the report to be
presented, the defendant must disclose to the prosecutor the brief
of evidence to be given or the report provided by that witness as
soon as possible after it becomes available.
PART 6
TRIALS
52. Place of trial - A charge is to be heard and determined in
the Court in which the information has been filed, unless an order
is made otherwise under this Act. 53. Transfer of trials between District Courts and Supreme
Court-(1) A District Court Judge may, on the application of the
prosecutor or the defendant or on the Judge’s initiative, order that
any information for trial in the District Court or before the
Fa’amasino Fesoasoani be transferred to the Supreme Court for
trial.
(2) A Judge of the Supreme Court may order that the trial of
any information laid in that Court be transferred for hearing and
determination in a District Court.
(3) An order may be made:
(a) under subsection (1), if the District Court Judge is
satisfied -
(i) that a question of law of general or public
importance has arisen or may arise; or
38 Criminal Procedure 2016, No. 6
(ii) that otherwise in the public interest or
interests of justice it is desirable that the trial be
conducted in the Supreme Court; or
(b) under subsection (2), if the Judge of the Supreme Court
is satisfied that -
(i) the information filed within the Supreme
Court is within the District Court jurisdiction; or
(ii) the matter is within section 5.
54. Withdrawal of information with leave-(1) Any
information laid in or transferred to a District Court may, with
leave of that Court, be withdrawn by the informant:
(a) at any time before the information has been determined;
or
(b) if the defendant has pleaded guilty, before sentence has
been imposed.
(2) Any information or charging document laid in the Supreme
Court may be withdrawn by the prosecutor with the leave of a
Judge at any time during the hearing.
(3) The withdrawal of charges pursuant to this section does not
prevent any further or other proceedings against the defendant for
the same offence.
55. Amendment of charges-(1) Subject to subsections (2) to
(5), if the defendant appears to answer a charge, the Court may
amend the charges in any way at any time during the trial.
(2) At the trial of any person, a Judge may amend the charges
pursuant to subsection (1) in a manner that brings the charge into
conformity with the evidence offered by the informant or
prosecutor.
(3) Amendment under subsection (1) may allow the charges to
be amended by:
(a) amending any particulars; or
(b) removing or adding or substituting charges; or
(c) adding or removing the name of any defendant.
(4) If an amendment is by way of substituting another offence
for that charged, then:
2016, No. 6 Criminal Procedure 39
(a) before the trial is continued, the substituted charge is to
be read to the defendant who must be asked to plead
to it;
(b) the trial is to proceed as if the defendant had been
charged with the substituted offence subject to any
order of the Court as to the rehearing of any
evidence given in relation to the original charge.
(5) If a charge is amended under subsection (1) and subsection
(2) does not apply, the trial is to proceed as if the defendant had
been charged on the information or charging document as
amended.
(6) In any case, the Court may on the application of the
defendant adjourn the hearing if satisfied that an adjournment is
required to allow the defendant to meet the charge as amended.
56. Court may prohibit publication-(1) If a Court makes an
order, pursuant to Article 9(1) of the Constitution, to exclude the
public and representatives of news services from all or any part of
any trial, the Court may, in addition to making the order or instead
of the order:
(a) make an order to prohibit the publication of any report
or account of the whole or any part of the trial; or
(b) make an order to prohibit the publication, in any report
relating to the trial, of the name of the defendant or
of any other person connected with the trial.
(2) A person must not publish the name of the victim or the
alleged victim of a sexual offence in a report or account of the
whole or any part of the trial unless the Court is of the opinion that
the interest of justice requires publication.
(3) If the publication of a person’s name is prohibited under
this section, a person must not publish that person’s name, or any
name or particulars likely to lead to the identification of that
person.
57. Offence for contravening exclusion order-(1) Without
limiting the power of a Court to commit for contempt of court, a
person commits an offence who:
40 Criminal Procedure 2016, No. 6
(a) disobeys an order made under Article 9(1) of the
Constitution or section 56(1); or
(b) contravenes of section 56(2) or (3).
(2) A person convicted of an offence under subsection (1) is
liable to a fine not exceeding 100 penalty units or to imprisonment
for a term not exceeding 12 months, or both.
58. Who may conduct proceedings-(1) At the hearing of any
charge in a District Court:
(a) if any information has been laid by a constable, any
other constable who is a sworn member of the
Police may appear and conduct proceedings against
the defendant; or
(b) if any information has been laid by an officer of a
Ministry, statutory body, or corporation, any other
officer of that Ministry, statutory body or
corporation may appear and conduct the
proceedings against the defendant.
(2) If a private information has been laid, the informant or
informant’s lawyer may appear and conduct the proceedings
against the defendant.
(3) As an exception to subsection (1), the informant in any case
may be represented by a prosecutor from the office of the
Attorney-General but not otherwise.
59. Conduct of proceedings in Supreme Court-(1) The trial
of any information filed in the Supreme Court by a constable or an
officer of a Ministry, statutory body or government corporations is
to be conducted by the Attorney-General or a prosecutor employed
by the Attorney-General’s Office.
(2) As an exception to subsection (1), the Attorney-General
may instruct any other lawyer to conduct the trial if the Attorney-
General is of the opinion that it is in the public interest or interests
of justice to give the instruction.
(3) In any other case, the Attorney-General may appear and
conduct the prosecution, if the Attorney-General is of the opinion
that it is in the public interest to do so.
2016, No. 6 Criminal Procedure 41
60. Presence and custody of defendant during trial-(1) A
defendant is entitled to be present in Court during the whole of the
defendant’s trial, unless the defendant misconducts himself or
herself by so interrupting the trial as to render its continuance in
the defendant’s presence impracticable.
(2) A defendant may defend the proceedings personally or be
represented by a lawyer.
(3) When the trial of a defendant who was granted bail
commences in the Supreme Court, the Court may remand the
defendant into custody until the end of the hearing of the trial if:
(a) the defendant is liable on conviction to a sentence of
imprisonment or the defendant has been arrested; or
(b) the defendant was late to the hearing of the trial; or
(c) the defendant has conducted himself or herself in a
manner that may influence or threaten witnesses.
61. Powers of Court if defendant does not appear-(1) If any
summons has been served on the defendant within a reasonable
time before the trial, or the defendant has been released on bail to
attend personally at the trial, and the informant but not the
defendant appears at the trial, the following provisions apply:
(a) if the offence charged is one for which the maximum
penalty is more than three (3) months
imprisonment, the Court may -
(i) issue a warrant to arrest the defendant
and bring the defendant before the court; or
(ii) adjourn the trial to a time and on any
conditions as the Court thinks fit, and if the
defendant does not appear at the time to which
the trial is adjourned, issue a warrant to arrest
the defendant and bring the defendant before the
court;
(b) if the offence charged is one for which the maximum
penalty is a fine or not more than three (3) months
imprisonment, the Court may -
(i) proceed with the trial and (if the
defendant is convicted) pass sentence; or
(ii) issue a warrant to arrest and bring the
defendant before the court; or
42 Criminal Procedure 2016, No. 6
(iii) adjourn the trial to a time and on any
conditions as the Court thinks fit.
(2) A person arrested under a warrant issued under subsection
(1) must not be released except on bail (and not otherwise) granted
by a Judge after hearing from the prosecution.
62. Powers of Court if prosecutor does not appear-(1) If the
defendant is in custody or has been released on bail and the
prosecutor has not had adequate notice of the trial, the Court must
adjourn the trial to a time and place and on any conditions as it
thinks fit to enable the prosecutor to appear.
(2) In any other case, the Court may:
(a) dismiss the information for want of prosecution, if the
prosecutor does not appear; or
(b) adjourn the trial to a time and place and on any
conditions as the Court thinks fit.
(3) If the information is dismissed under subsection (2)(a), the
Court may, upon application by the prosecution, grant leave to re-
file the information if the Court is satisfied that the prosecutor has
a reasonable excuse for non-appearance.
63. Powers of Court when neither party appears-(1) If both
parties to the prosecution do not appear at the trial of a charge, the
Court may:
(a) dismiss the information; or
(b) adjourn the trial to such time and place and on such
conditions as the Court determines.
(2) If the information is dismissed under subsection (1)(a), the
information may be re-filed if the Court is satisfied that there are
reasonable excuse for non-appearance of the parties.
64. Dismissal of information not a bar-(1) The dismissal of
any information under section 62 does not operate as a bar to any
further or other proceedings.
(2) The Court may allow the re-filing of information if it is
satisfied of any reasonable excuse for non-appearance by either
party to the prosecution.
2016, No. 6 Criminal Procedure 43
PART 7
PLEAS AND MENTALLY IMPAIRED DEFENDANTS
Division 1 - Pleas
65. Plea of guilty by notice to Registrar-(1) A person who is
charged with an offence for which the person is not liable on
conviction to a sentence of imprisonment may give written notice
addressed to the Registrar that he or she pleads guilty, and the
Court has same power to deal with the person as if the person had
appeared before it and pleaded guilty.
(2) As soon as practicable after receiving the written notice
under subsection (1), the Registrar must, in writing, notify the
prosecution.
(3) This section does not prevent the issue of a warrant to arrest
the defendant.
66. Plea on being charged-(1) Before a charge is gone into:
(a) the defendant must be called by name; and
(b) the charge must be read to the defendant; and
(c) when the Court is satisfied the defendant understands
the charge, the defendant must be asked how the
defendant’s pleads.
(2) The defendant may plead:
(a) guilty or not guilty; or
(b) any special pleas under section 68.
(3) If the defendant is represented by a lawyer, before any
charge is gone into:
(a) the defendant must be called by name; and
(b) the lawyer for the defendant may advise the Court that
the charge is to be taken as read, and enter a plea on
behalf of the defendant.
(4) If the defendant wilfully refuses to plead or will not answer
directly, the Court may enter a plea of not guilty.
(5) If the defendant pleads guilty, and the Court is satisfied he
or she understands the nature and consequences of his or her plea,
the Court may convict the defendant or deal with the defendant in
any other manner authorised by law.
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(6) If a plea of guilty is not entered, the trial must be conducted
pursuant to this Act.
67. Plea on behalf of corporation-(1) If any information is
filed against a corporation for an offence, before the charge is gone
into:
(a) the corporation must be called by name; and
(b) the charge is to be read to the representative; and
(c) when the Court is satisfied the representative
understands it, the representative must be asked
how the corporation pleads.
(2) If the corporation either does not appear by a representative
or, though it does so appear, fails to enter any plea under
subsection (1), the Court must order a plea of not guilty to be
entered, and the trial to proceed as if the corporation had entered a
plea of not guilty.
(3) A statement signed by a managing director of the
corporation, or by any person (by whatever name the person is
called) having, or being one of the persons having, the
management of the affairs of the corporation, to the effect that the
person named in the statement has been appointed as the
representative, is admissible as evidence of the person’s
appointment.
(4) A representative:
(a) need not be appointed under the seal of the corporation;
and
(b) is not, by virtue the appointment, qualified to act on
behalf of the corporation before the Court for any
other purpose.
68. Special pleas-(1) In addition to a plea of guilty or not
guilty, the only other pleas permitted are any of the following
pleas:
(a) pleas of previous acquittal; or
(b) pleas of previous conviction; or
(c) pleas for pardon.
(2) The special pleas:
(a) may be pleaded together; and
2016, No. 6 Criminal Procedure 45
(b) must be disposed of before the defendant is called on to
plead further; and
(c) for a trial with assessors, must be disposed of by the
Judge without the assessors.
(3) If every special plea is disposed of against the defendant,
the defendant must nevertheless be allowed to plead not guilty.
69. Evidence of former trial - In the trial of an issue on a plea
of previous acquittal or conviction pursuant to section 70, the
following is admissible in evidence to prove or disprove the
identity of the charge:
(a) a copy of the entry in the Criminal Record Book;
(b) a copy of the information;
(c) a copy of any notes made by the Judge or Fa’amasino
Fesoasoani presiding at the former trial, certified by
the Registrar.
70. Pleas of previous acquittal and conviction-(1) On the
trial of an issue on a plea of previous acquittal or conviction on any
charge, Court must order that the information be dismissed, if it
appears that the matter on which the defendant was formerly
charged is:
(a) the same in whole or in part as that on which it is
proposed to the defendant; and
(b) the defendant might on the former trial, having regard
to any amendment to the charge that could then
reasonably have been made, have been convicted on
all of the offences that the defendant may be
convicted on the information subject to the special
plea.
(2) If it appears to the court, that the defendant could not have
been convicted on some offence within the former information that
is the subject of the special plea, the Court must order that the
defendant must not be convicted on any charge that the defendant
could have been convicted of at the former trial, but that the
defendant must plea to any other offence charged.
(3) Section 66(2) and (3) applies to this section.
46 Criminal Procedure 2016, No. 6
71. Second accusation-(1) If any information charges
substantially the same offence for which the defendant was
formerly charged, but adds a statement of intention or
circumstances of aggravation tending if proved to increase the
punishment, the previous acquittal or conviction bars the
information.
(2) A previous acquittal or conviction on any information
charging murder, manslaughter or infanticide bars any second
information for the same homicide charging it as anyone of those
charges.
(3) On the trial of an issue on a plea pursuant to section 70 to
an information charging murder, manslaughter or infanticide the
Court must direct that the defendant plead over if it appears that:
(a) the former trial was for an offence against the person
alleged now to have been killed; and
(b) the death of that person is now alleged to have been
caused by the offence previously charged; but
(c) the death happened after the trial on which the
defendant was acquitted or convicted.
72. Application to vacate guilty plea-(1) A plea of guilty
may, by leave of the Court, be vacated at any time before the
defendant has been sentenced or otherwise dealt with.
(2) No guilty plea may be vacated unless the Court is satisfied
that:
(a) the defendant has not really pleaded guilty; or
(b) there has been some mistake; or
(c) there was a clear defence.
(3) Subsection (2) is subject to the overriding discretion of the
Court to act in the interests of justice.
Division 2 - Mentally Impaired Defendants
73. Interpretation - In this Part:
“intellectual disability” A person has an intellectual disability if
the person has a permanent impairment of the mind to an
extent that results:
(a) in a significantly low general intelligence; and
(b) a demonstrable inability to lead an independent life.
2016, No. 6 Criminal Procedure 47
“specialist nurse” means a specialist nurse registered under the
Nursing and Midwifery Act 2007 who specialises in the
field of mental health;
“unfit to stand trial”, for a defendant:
(a) means a defendant who is unable, due to mental
impairment or intellectual disability, to conduct a
defence, or to instruct a lawyer to do so; and
(b) includes a defendant who, due to mental impairment, is
unable -
(i) to plead; and
(ii) to understand the nature, purposes or
possible consequences of the proceedings to the
extent necessary to conduct a defence or instruct
a lawyer for that purpose.
74. When finding of unfitness to stand trial may be made -
Subject to section 75, a Court may make a finding under this Part
that a defendant is unfit to stand trial:
(a) before or during the taking of plea by the defendant; or
(b) at any stage after the commencement of the proceedings
and until all the evidence is concluded.
75. Postponement of hearing, etc. - If the Court has sufficient
information on the condition as to whether or not a defendant is fit
to stand trial, the hearing, trial or other proceeding relating to the
defendant is to be postponed pending the final determination as to
whether or not the defendant is fit to stand trial.
76. Determining whether defendant is fit to stand trial-(1)
The Court must have on record an opinion from two (2) medical
practitioners or one (1) medical practitioner and one (1) specialist
nurse that the defendant is mentally impaired or has an intellectual
disability before subsection (2) applies.
(2) If the Court is satisfied on the evidence given under
subsection (1) that the defendant is mentally impaired, the Court
must record a finding to that effect, and:
(a) give each party an opportunity to be heard and to
present evidence as to whether the defendant is unfit
to stand trial; and
48 Criminal Procedure 2016, No. 6
(b) find whether or not the defendant is unfit to stand trial;
and
(c) record the finding made under paragraph (b).
(3) The standard of proof required for a finding under
subsection (2) is the balance of probabilities.
(4) If the Court records a finding under subsection (2) that the
defendant is fit to stand trial, the Court must commence or
continue the hearing or trial, or commit the defendant for trial, as
the case may require.
77. Appeal to the Supreme Court-(1) If a finding has been
made under section 76 for a trial to be held in a Court as to
whether the defendant is unfit to stand trial, the prosecutor or the
defendant may appeal against that finding to the Supreme Court.
(2) Divisions 1 to 3 of Parts 12 apply, with necessary
modifications, to an appeal under subsection (1).
78. Detention of defendants found unfit to plead etc.-(1)
When the Court has sufficient information on the condition of a
defendant found unfit to stand trial or acquitted on account of his
or her insanity, the Court must:
(a) consider all the circumstances of the case; and
(b) consider the evidence of one (1) or more health care
professionals (within the meaning under the Mental
Health Act 2007), as to whether the detention of the
defendant, in accordance with one of the orders
specified in paragraph (c), is necessary; and
(c) if it is satisfied that the making of the order is necessary
in the interests of the public or any person or class
of person who may be affected by the court’s
decision, make an order that the defendant be -
(i) detained as if an “Inpatient Treatment
Order” had been made under Part V of the
Mental Health Act 2007; or
(ii) released, as if a Community Treatment
Order had been made under Part IV of the
Mental Health Act 2007.
2016, No. 6 Criminal Procedure 49
(2) As an exception to the Mental Health Act 2007, no person
subject to an order made under subsection (1)(c) is to be released,
on leave or discharged from any institution, without an order of the
Court that made the order detaining that person.
79. Finding of insanity-(1) If, at a hearing or trial, the
defendant gives evidence as to the defendant’s insanity and the
assessors or (if there is no assessor) the Judge finds the defendant
not guilty on account of his or her insanity, the Judge must record
that finding.
(2) Before or at a hearing or trial, the Judge must record a
finding that the defendant is not guilty on account of his or her
insanity if:
(a) the defendant indicates that he or she intends to raise the
defence of insanity; and
(b) the prosecution agrees that the only reasonable verdict
is not guilty on account of insanity; and
(c) the Judge is satisfied, on the basis of expert evidence,
that the defendant was insane within the meaning of
section 13 of the Crimes Act 2013 at the time of the
commission of the offence.
(3) If, at a trial before a Judge and assessors, the defendant
gives evidence as to his or her insanity and the assessors find the
defendant not guilty, the Judge must ask the assessors whether or
not they have acquitted the defendant on account of his or her
insanity.
80. Appeal against acquittal on account of insanity-(1) A
defendant who is acquitted on account of his or her insanity may
appeal against the verdict or decision, and, for the purposes of the
appeal:
(a) the verdict or decision is to be regarded as a conviction;
and
(b) the provisions of this Act relating to appeals against
conviction, so far as they are applicable and with
any necessary modifications, apply to the appeal.
(2) The Court may:
50 Criminal Procedure 2016, No. 6
(a) allow the appeal, and direct that a verdict of acquittal or
a decision to dismiss the information be substituted
for the verdict or decision given at the trial or
hearing;
(b) dismiss the appeal;
(c) exercise a power, whether to direct a new trial or a
rehearing or otherwise, that it could have exercised
if the appeal were an appeal against conviction.
(3) If the Court thinks that (except for the appellant’s insanity)
the proper verdict or decision would have been that the appellant
was guilty of an offence other than the offence charged, the court:
(a) may not allow the appeal merely because the appellant
ought to have been acquitted of the offence charged;
and
(b) may direct that the other offence be substituted for the
offence charged.
(4) If, on the appeal under this section, the appellate Court is
satisfied that:
(a) the finding of insanity ought not to stand; and
(b) in the absence of that finding, the proper verdict or
decision would have been that the appellant was
guilty of an offence (whether of the offence charged
or any other offence of which the appellant could
have been found guilty at the trial or hearing),
the appellate court -
(i) must substitute, for the verdict or
decision given, a verdict of guilty of the offence
or a conviction for the offence; and
(ii) may exercise a power in relation to the
appellant (such as sentencing the appellant) that
is available to the Court where the verdict or
decision appealed against was given.
(5) Unless the appellate Court otherwise directs, the term of
any sentence of imprisonment passed by it under subsection (4)
begins to run as if passed on the date on which the verdict or
decision appealed against was given.
2016, No. 6 Criminal Procedure 51
PART 8
WITNESSES
81. Summons for attendance of witnesses-(1) The informant
or defendant may, at any time, obtain from a Judge, Fa’amasino
Fesoasoani or Registrar a summons calling on any person to appear
as a witness at the hearing of a charge.
(2) Any summons obtained under subsection (1):
(a) may require the person summoned to bring with him or
her and to produce at the hearing any books,
documents, papers, writings, maps, photographs,
films and recordings, as may be mentioned in the
summons; or
(b) calling on a person to appear as a witness must -
(i) be served under Division 1 of Part 5 on
that person, as if references in that Part to the
defendant were references to the person called
upon to appear; and
(ii) be served by a constable or officer of the
Court (not being a prosecutor), by a party or the
party’s lawyer, or by any person authorised by a
party or the party’s lawyer to serve the
summons.
82. Warrant to arrest witness-(1) This section applies
whether or not any summons has been issued or served.
(2) If a Judge or Fa’amasino Fesoasoani has sufficient grounds
to believe that a person, whose evidence at the hearing is required
by the informant or the defendant, will not attend to give evidence
without being compelled to do so, he or she may issue a warrant
for the attendance of that person at the hearing.
(3) If at the hearing of any charge, a person summonsed as a
witness under this Act fails to appear and has no reasonable excuse
for his or her failure, the Court may, if satisfied that the summons
was duly served on the person, issue a warrant for the appearance
of that person.
52 Criminal Procedure 2016, No. 6
(4) Division 1 of Part 4 applies to any warrant issued under this
section, as if references in that Division to the defendant were
references to the person whose attendance or appearance is
required.
83. Penalty for failing to comply with witness summons-(1)
A person summonsed under this Act to appear as a witness at a
hearing who refuses or neglects without just excuse to appear or to
produce any books, documents, papers, writings, maps,
photographs, films or recordings required by the summons to be
produced commits an offence.
(2) A person convicted of an offence under subsection (1) is
liable on conviction to a fine not exceeding 100 penalty units or to
imprisonment for a term not exceeding 12 months, or both.
(3) This section does not affect any power of the Court to
commit for contempt of court.
84. Witness refusing to give evidence may be imprisoned-
(1) Subject to Article 9(5) of the Constitution, a person present in a
Court at the hearing of any charge, whether the person has been
summoned to give evidence or not, may be required to give
evidence.
(2) If a person, without offering any reasonable excuse:
(a) refuses to give evidence when required; or
(b) refuses to be sworn; or
(c) having been sworn, refuses to answer any questions
concerning the charge as are then put to the person,
the Court may -
(i) order that, unless the person sooner
consents to give evidence or to be sworn or to
answer the questions put to the person, the
person be detained in custody for a period not
exceeding seven (7) consecutive days; and
(ii) issue a warrant for the person’s arrest
and detention pursuant to the order.
(3) If the person so detained, on being brought up at the
adjourned hearing, again refuses to give evidence or to be sworn
or, having been sworn, to answer the questions put to him, the
2016, No. 6 Criminal Procedure 53
court, if it thinks fit, may again direct the witness to be detained in
custody for the like period, and so again from time to time until the
person consents to give evidence or to be sworn or to answer the
questions.
(4) Subsections (2) and (3) do not apply to a Court presided
over by a Fa’amasino Fesoasoani unless that Court has an extended
jurisdiction under section 18 of the District Courts Act 1969.
(5) This section does not affect any power of the Court to
commit for contempt of court.
85. Witnesses may be excluded-(1) A Court may, if it thinks
fit, of its own motion or at the request of any party at any time
during the hearing, order all or any witnesses other than a witness
who has given or is giving his or her evidence to leave the
courtroom and to remain out of hearing but within call until
required to give evidence.
(2) A witness who has given evidence must not leave the
courtroom except with the permission of the court.
(3) A witness who contravenes subsection (2) commits an
offence and is liable on conviction to a fine not exceeding 100
penalty units.
PART 9
CONDUCT OF TRIAL, ADJOURNMENTS AND BAIL
Division 1 - Conduct of Trial
86. Admissions - The defence may, at any time before or
during trial, admit in writing or admit in Court any fact alleged
against the defendant.
87. Evidence-(1) Upon the trial of the defendant:
(a) the prosecution may open the prosecution case and,
after any opening, is entitled to call any witnesses as
he or she thinks fit; and
(b) the defendant, whether he or she is defended by
a lawyer or not, may, at the end of the case for the
54 Criminal Procedure 2016, No. 6
prosecution, open his or her case, and, after any
opening, is entitled to call any witnesses as he or
she thinks fit.
(2) Without limiting subsection (1), the Court may give a
defendant leave to make an opening statement, after any opening
by the prosecution and before any evidence is adduced, for the
purposes only of identifying the issue or issues at the trial.
(3) An opening statement made under subsection (2) does not
affect the rights of the defendant to raise any other issue at the trial.
(4) When all the evidence (including any evidence given on
cross-examination, re-examination, or in rebuttal) is concluded:
(a) the prosecution may make a closing address to the
court; and
(b) after any closing address on behalf of the prosecution,
the defendant or defendant’s lawyer may make a
closing address, and the prosecution has no right of
reply to the defence closing address,
however, if the defendant is not represented by a lawyer, the
prosecution does not have any right to make a closing address except
with leave of the Court.
88. Unrepresented defendant-(1) If a defendant, who is not
defended by a lawyer, pleads not guilty, the Court must, before any
evidence for the prosecution is heard, and when the Court is
satisfied that the defendant fully understands the nature and
consequence of the charge, caution the defendant, either orally or
in a written statement, in a language which the defendant
understands, in the following words, or in words to the like effect,
that is to say:
“At the end of the evidence-in-chief given by each
prosecution witness, you may cross-examine the witness if
you wish. When all the evidence against you has been
heard you will be asked whether you wish to give evidence
yourself or to call witnesses. You are not obliged to give or
call evidence, but, if you do, that evidence will be subject
2016, No. 6 Criminal Procedure 55
to cross-examination by the prosecution and may be used
against you. You should consider in particular whether
evidence which you can give is relevant and will assist you
in your defence”.
(2) When the evidence for the prosecution has been heard
against a defendant who is not defended by a lawyer, the Court
must ask the defendant whether the defendant wishes to give or
call evidence.
89. Evidence on oath or affirmation - A witness at the trial of
any charge must be examined on oath or affirmation.
90. Attempt proved when crime is charged - If the
commission of the crime charged is not proved, but the evidence
establishes an attempt to commit the crime, the defendant may be
convicted of the attempt.
91. Crime proved when attempt is charged-(1) If an attempt
to commit a crime is charged, but the evidence establishes the
commission of the full crime, the defendant may be convicted of
the attempt.
(2) After a conviction for that attempt, the defendant is not
liable to be tried again for the crime which he was charged with
attempting to commit.
92. Part of charge proved-(1) A charge is deemed divisible;
and if the commission of the offence charged, as described in the
enactment creating the offence or as charged in the count, includes
the commission of any other offence, the defendant may be
convicted of:
(a) any offence so included which is proved, although the
whole crime charged is not proved; or
(b) an attempt to commit any offence so included.
(2) On a count charging murder, the assessors may:
(a) pursuant to section 90, find the defendant guilty of an
attempt to commit murder; or
(b) if the evidence proves manslaughter but does not prove
murder, find the defendant guilty of manslaughter.
56 Criminal Procedure 2016, No. 6
93. Variance and amendment-(1) If on the trial of an
information there appears to be a variance between the proof and
the charge in the information either as filed or as amended, or as it
would have been if amended in conformity with any further
particulars, the Court before which the case is tried, or the
appellate court, may amend the information, or any charge in it, in
accordance with the evidence.
(2) If the Court is of the opinion that the defendant has not
been misled or prejudiced in the defendant’s defence by the
variance, the Court must make the amendment.
(3) If it appears that:
(a) the charge has been laid under an enactment other than
that cited in the information; or
(b) there is in the information or in a charge in the
information, any omission to state, or a defective
statement of anything requisite to constitute the
crime; or to negative any exception that ought to be
negatived, but that the matter omitted is proved by
the evidence,
the Court before which the trial takes place, or the appeal court, if
of opinion that the defendant has not been misled or prejudiced in
the defendant’s defence by the error or omission, must amend the
information or charge as may be necessary.
(4) In any such case, the trial or the appeal may then proceed in
all respects as if the information or charge had been originally
framed as amended.
(5) If the Court is of opinion that the defendant has been misled
or prejudiced in the defendant’s defence by any variance, error,
omission, or defective statement as specified under this section, but
that the effect of the defendant being misled or prejudiced might be
removed by adjourning or postponing the trial, the Court may in its
discretion make the amendment and adjourn the trial to a future
day in the same sittings, or discharge any assessors and postpone
the trial to the next sittings of the court, on any terms as it thinks
just.
(6) If an appellate Court amends any information or charge
under this section, it may in its discretion, in making the
amendment:
(a) affirm the sentence; or
2016, No. 6 Criminal Procedure 57
(b) quash the sentence passed and pass any other sentence
warranted in law (whether more or less severe) in
substitution for the original sentence; or
(c) vary the sentence or any part of it or any condition
imposed in it; or
(d) direct a new trial; or
(e) make any order as justice requires.
(7) In determining whether the defendant has been misled or
prejudiced in the defendant’s defence, the Court must consider all
of the evidence adduced, as well as the other circumstances of the
case.
(8) The decision as to making or refusing to make an
amendment is deemed a question for the court, and that decision
may be reserved for the Court of Appeal, or may be brought on
appeal before the Court of Appeal, in the same manner as any
other decision on a point of law.
Division 2 - Adjournments
94. Power to adjourn hearing-(1) A Court may adjourn the
hearing of a charge to a specified time and place.
(2) If a Court at that place by reason of its constitution has no
jurisdiction to hear the charge, the Court may adjourn the hearing
to a specified time and place.
95. Powers on adjournment - When:
(a) a defendant who has been arrested or detained under a
law is brought before a Court or a remanding officer
for the purposes of bail; or
(b) a hearing is adjourned and the defendant is liable on
conviction to a sentence of imprisonment,
the defendant may be released at large or on bail or remanded in
custody.
96. Power to adjourn for inquiries after conviction-(1) A
Court may adjourn the hearing after the defendant has
been convicted and before the defendant has been sentenced or
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otherwise dealt with, for the purpose of enabling inquiries to be
made or of determining the most suitable method of dealing with
his or her case.
(2) When a hearing is adjourned under subsection (1), a Judge
or Fa’amasino Fesoasoani having jurisdiction to deal with offences
of the same kind (whether or not he or she is the Judge or
Fa’amasino Fesoasoani before whom the charge was heard) may,
after inquiry into the circumstances of the offence, sentence or
otherwise deal with the defendant for the offence to which the
adjournment relates.
97. Removal of trial on question of law-(1) If a question of
law arises on the trial of a person in a Court presided over by a
Fa’amasino Fesoasoani, the trial must (whether or not an
application has been made by either party) be transferred for trial
before a Judge of the District Court.
(2) If a trial is transferred under subsection (1), the proceeding
must continue, except as the Judge otherwise orders, as if the
information and any order made on it had been always before a
Judge.
Division 3 - Bail
98. Rules as to granting bail-(1) A defendant is bailable as of
right who is charged with an offence that is not punishable by
imprisonment.
(2) A defendant is bailable as of right who is charged with an
offence for which the maximum punishment is less than three (3)
years’ imprisonment, unless the offence is one that relates to
assault on a child, or by a male on a female.
(3) Despite anything in this section, a defendant who is charged
with an offence punishable by imprisonment is not bailable as of
right if the defendant has been previously convicted of an offence
punishable by imprisonment.
(4) A defendant charged with an offence and is not bailable as
of right is bailable at the discretion of the Court unless the Court is
satisfied that there is just cause for the defendant to be remanded in
custody.
2016, No. 6 Criminal Procedure 59
99. Factors relevant to decision as to bail - In considering
whether there is just cause for the defendant to be remanded in
custody or for continued detention, a Court must take into account
the following:
(a) whether there is a risk that the defendant may fail to
appear in Court on the date to which the defendant
has been remanded;
(b) whether there is a risk that the defendant may interfere
with witnesses or evidence;
(c) any previous conviction on an offence of a similar
nature;
(d) whether there is a risk that the defendant may offend
while on bail;
(e) the seriousness of the punishment to which the
defendant is liable, and the severity of the
punishment that is likely to be imposed;
(f) the character and past character or behaviour, in
particular proven criminal behaviour of the
defendant;
(g) whether the defendant has a history of offending while
on bail, or breaching Court orders including other
orders imposing bail conditions;
(h) the nature of the offence with which the defendant is
charged, and whether it is a grave or less serious
one of its kind;
(i) the strength of the evidence and the probability of
conviction or otherwise;
(j) the seriousness of the punishment to which the
defendant is liable, and the severity of the
punishment that is likely to be imposed;
(k) any other matter that is relevant in the particular
circumstances.
100. Restriction on release on bail - A defendant who is
charged with treason or espionage must not be released on bail
other than by order of a Supreme Court Judge.
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101. Restriction on bail where certain previous convictions-
(1) This section applies to a defendant aged 18 years or over who:
(a) has one (1) or more previous convictions for an offence
under paragraph (b) (whether those convictions
were for the same offence or for different specified
offences under that paragraph); and
(b) is charged with any of the following offences under the
Crimes Act 2013 -
(i) sexual violation under section 52 or 53;
(ii) murder;
(iii) attempted murder;
(iv) manslaughter;
(v) any crimes against a person under any of
sections 118 to 122;
(vi) using any firearm against law
enforcement officer, etc under section 127;
(vii) commission of a crime with firearm
under section 130;
(viii) robbery and burglary under sections
174 to 177.
(2) A defendant to whom this section applies must not be
granted bail or allowed to go at large except:
(a) by order of a Judge of the Supreme Court or of the
District Court; and
(b) the defendant satisfies the Judge that bail or remand at
large should be granted.
(3) Without limiting subsection (2)(b), the defendant must, in
particular, satisfy the Judge on the balance of probabilities that the
defendant will not, while on bail or at large, commit any offence
involving violence against, or danger to the safety of, any other
person.
(4) In deciding whether or not to grant bail to a defendant to
whom this section applies or allow the defendant to go at large, the
Judge must take into account, as primary considerations, the need
to protect:
(a) the safety of the public; or
(b) if appropriate, the safety of the victim or victims of the
alleged offending.
2016, No. 6 Criminal Procedure 61
102. Bail allowable for narcotic offending only by order-(1)
A defendant who is charged with or convicted of a narcotic offence
may be granted bail:
(a) if the defendant does not have a previous conviction for
a narcotic offence, by order of a Registrar; or
(b) in any other case, by order of a Judge.
(2) A defendant who is charged with or convicted of a narcotic
offence may be granted bail only under subsection (1).
103. Bail pending sentence-(1) If a defendant is found guilty
or if a defendant pleads guilty, the Court may not grant bail unless
it is satisfied on the balance of probabilities that it would be in the
interests of justice in the particular case to do so.
(2) The onus is on the defendant to show cause why bail should
be granted.
(3) When considering the interests of justice under subsection
(1), the Court may, instead of the considerations in section 99, take
into account the following considerations:
(a) whether the defendant is likely to receive a sentence of
imprisonment;
(b) the likely length of time that will pass before the
defendant is sentenced;
(c) any other consideration that the Court considers
relevant.
(4) If the defendant is unlikely to receive a sentence of
imprisonment, this must count against the defendant being
remanded in custody.
104. Defendant may seek bail-(1) A defendant who is bailable
as of right must, if the defendant so requests, be brought before a
Court for the purpose of making an application for bail if:
(a) the defendant has been remanded in custody under
section 95; and
(b) the defendant did not make application for bail under
this Act at the time of the remand.
(2) The application may be granted as if it were an application
made at the time at which the defendant was remanded.
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(3) If bail is granted under this section, the particulars required
to be certified by the District Court or Registrar under section
108(b) must be:
(a) certified in writing by the Court granting bail; and
(b) forwarded to the office-in-charge of the prison in which
the defendant is detained under the remand warrant.
105. Evidence in bail hearing-(1) When hearing an
application for bail, a Court may receive as evidence any
statement, document, information, or matter that it considers
relevant, whether or not it would be otherwise admissible in a
court.
(2) As an exception to subsection (1), when considering the
matter described in section 99:
(a) the Court may only consider a statement, document,
information, or matter that would be admissible in a
Court if made by the appropriate person or given or
produced in proper form; but
(b) for the purpose of the bail hearing, it does not matter
whether the evidence -
(i) is given or produced by the appropriate
person or given or produced in sworn or
unsworn form; or
(ii) is otherwise given or produced in a form
in which it would be admissible in a court.
106. Conditions of bail-(1) Subject to section 109, if a
defendant is granted bail, the defendant must be released on
condition that the defendant attend personally:
(a) at the time and place at which the hearing is adjourned;
or
(b) at the time and place to which, during the course of the
proceedings, the hearing may from time to time be
adjourned.
(2) The Court or remand officer may impose, as a further
condition of the defendant’s release, a condition that the defendant
report to the Police at the time or times and at the place or places
that the Court or remand officer orders.
2016, No. 6 Criminal Procedure 63
(3) Whether or not the Court or remand officer imposes a
condition under subsection (2), the Court or remand officer may
impose any other condition that the Court or remand officer
considers reasonably necessary to ensure that the defendant:
(a) appears in Court on the date to which the defendant has
been remanded; and
(b) does not interfere with any witness or any evidence
against the defendant; and
(c) does not commit any offence while on bail; and
(d) for the protection of the community.
(4) The Court or remand officer may require, as a further
condition of the defendant’s release, the deposit of any sum or the
entering into of any obligation in the nature of a bond, guarantee,
or surety, whether by the defendant or any other person.
107. Calling up of bail-bond, guarantee or surety-(1) A
person who has obtained an order requiring any other person to
enter into a bond, guarantee, or surety under this section may apply
to the Court for an order calling up the bond, guarantee or surety
on the ground that the defendant has failed to keep the condition of
his or her release.
(2) When an application is filed under subsection (1), the
Registrar must:
(a) fix a time and place for hearing of the application; and
(b) not less than five (5) working days before the time
fixed, cause to be served on any person bound by
the bond, surety or guarantee a notice of the time
and place so fixed.
(3) If on the hearing of any application made under subsection
(1), it is proved to the satisfaction of the Court that the condition of
the release has not been kept, the Court may make an order to call
up the bond, surety or guarantee to such an amount as it thinks fit.
(4) Any amount ordered under this section is recoverable as if
it were a fine.
64 Criminal Procedure 2016, No. 6
108. Warrant for detention - If the defendant is released on
bail under section 95, a Court or Registrar may, and must if the
defendant is not released within the period specified in section
109(3)(a):
(a) issue a warrant for the detention of the defendant in
custody for the period of the adjournment; and
(b) certify on the back of the warrant the fact that the Court
or Registrar has granted the defendant bail, and the
condition or conditions imposed.
Division 4 - Procedure following Grant of Bail
109. Release of defendant granted bail-(1) If a defendant is
granted bail, the Registrar must prepare a notice of bail setting out
the conditions of bail imposed by or under section 106.
(2) The Registrar must:
(a) give the notice of bail to the defendant; and
(b) be satisfied that the defendant understands the
conditions of bail; and
(c) require the defendant to sign the notice of bail.
(3) If a defendant is granted bail, the Court or Registrar may
direct that the defendant be detained in the custody of the court:
(a) for such time, not exceeding two (2) hours, as may be
necessary to enable the notice of bail to be prepared
and signed; and
(b) if, within the period of two (2) hours, the defendant is
not released (whether by reason of having refused to
sign the notice of bail or for any other reason), for
such time as may be necessary to enable a warrant
for detention to be issued under section 108.
(4) If bail is granted to a defendant who has been remanded in
custody and is in custody only under the warrant issued in respect
of the remand, the defendant must be released from custody as
soon as is reasonably practicable after the defendant has signed the
notice of bail.
(5) A copy of the notice of bail must be given to the defendant
on his or her release or as soon as practicable after that.
2016, No. 6 Criminal Procedure 65
110. Warrant of deliverance-(1) Subject to subsection (3), if a
warrant for detention has been issued under section 108, a warrant
of deliverance must be issued and sent to the prison officer-in-
charge of the prison in which the defendant is detained.
(2) The warrant of deliverance may be issued by a Judge or
Registrar on being satisfied that the defendant is entitled to be
released and that the requirements of section 109 have been met.
(3) No warrant of deliverance need be issued if the Registrar
before whom the defendant signs the notice of bail endorses on the
remand a certificate that the defendant has signed the notice of
bail, and that the defendant is accordingly entitled to be released.
111. Variation of conditions of bail-(1) If the defendant has
been granted bail, the Court may, on the application of the
defendant or the informant, make an order varying or revoking any
condition of bail or substituting or imposing any other condition of
bail.
(2) A Registrar may exercise the power conferred by
subsection (1) to make an order if:
(a) the informant does not object; and
(b) the offence with which the defendant has been charged -
(i) is not punishable by imprisonment; or
(ii) is punishable by a term of imprisonment
of not more than seven (7) years.
(3) If a Court or remand officer has, in granting bail to any
defendant, imposed the condition that the defendant report to the
Police at such time or times and at such place or places as the
Court or Registrar orders, any Registrar may, on the application of
the defendant, make an order varying the time or times or the place
or places at which the defendant is required to so report.
(4) If a Court or remand officer varies or revokes any condition
of bail or substitutes or imposes any other condition of bail under
subsection (1), the Registrar must:
(a) as soon as is reasonably practicable prepare a new
notice of bail setting out the conditions of bail as
amended (if any); and
(b) be satisfied that the defendant understands the
conditions of bail; and
(c) require the defendant to sign the notice of bail.
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(5) If, in any case to which subsection (4) applies, the
defendant fails without reasonable excuse to attend at the time and
place required, or fails to sign a fresh notice of bail, a Judge or
Registrar may issue a warrant for the arrest of the defendant.
(6) If a bail-bond has been entered into that requires sureties,
the bond continues in force and the order does not take effect until
the sureties to the bail-bond have consented in writing to the order
or a new bail-bond is entered into complying with the order.
112. Defendant on bail may be arrested without warrant in
certain circumstances-(1) A constable may arrest without warrant
a defendant who has been released on bail if the constable believes
on reasonable grounds that:
(a) the defendant has absconded or is about to abscond for
the purpose of evading justice; or
(b) the defendant has contravened or failed to comply with
any condition of bail.
(2) A defendant who is arrested under subsection (1) must be
brought before the Court as soon as possible.
(3) In any such case, the Court must reconsider the question of
bail, if it is satisfied that the defendant had absconded or was about
to abscond or has contravened or failed to comply with any
condition of bail.
(4) After a defendant has been arrested under subsection (1),
the defendant cannot be bailed as of right.
(5) Nothing in this section prevents a constable from seeking a
warrant to arrest a defendant under section 113.
113. Warrant to arrest defendant absconding or breaching
bail condition or who fails to answer bail-(1) The Court or a
Registrar may issue a warrant for the arrest of a defendant if:
(a) the Court or Registrar is satisfied by evidence on oath
that -
(i) the defendant has absconded or is about
to abscond for the purpose of evading justice; or
(ii) the defendant has contravened or failed
to comply with any condition of bail; or
2016, No. 6 Criminal Procedure 67
(b) the defendant -
(i) does not attend personally at the time and
place specified in the notice of bail or, as the
case may be, the bail bond; or
(ii) does not attend personally at any time
and place to which during the course of the
proceedings the hearing has been adjourned.
(2) A warrant to arrest a defendant under this section:
(a) must be directed to a constable by name or generally to
all constables; and
(b) may be executed by any constable.
(3) For the purpose of executing a warrant issued under this
section, the constable executing it may at any time enter on to any
premises, by force if necessary, if the constable has reasonable
grounds to believe that the defendant against whom it is issued is
on those premises.
(4) The constable executing the warrant must:
(a) have the warrant with him or her; and
(b) produce it on initial entry and, if requested, at any
subsequent time; and
(c) if the constable is not in uniform, produce evidence that
he or she is a constable.
(5) If a defendant is arrested under a warrant issued under this
section, section 112(2) to (4) applies as if the defendant had been
arrested under section 112(1).
114. Failure to answer bail-(1) A defendant commits an
offence if the defendant, having been released on bail:
(a) fails without reasonable excuse to attend personally at
the time and the Court specified in the notice of
bail; or
(b) fails without reasonable excuse to attend personally at
any time and place to which during the course of the
proceedings the hearing has been adjourned; or
(c) fails to comply with any of the conditions of bail.
(2) A defendant convicted for an offence under subsection (1)
is liable to a fine not exceeding 200 penalty units or to
imprisonment for a term not exceeding 12 months, or both.
68 Criminal Procedure 2016, No. 6
Division 5 - Bail relating to Appeals
115. Bail pending appeal-(1) If a person is in custody under a
conviction and is appealing the conviction or sentence, or both, the
Court or appellate Court must not grant bail unless it is satisfied on
the balance of probabilities that it would be in the interests of
justice in the particular case to do so.
(2) The onus is on the appellant to show cause why bail should
be granted.
(3) When considering the interests of justice under subsection
(1) the Court or appellate Court may, instead of the considerations
in section 99, take into account the following considerations:
(a) the apparent strength of the grounds of appeal;
(b) the length of the sentence that has been imposed on the
appellant;
(c) the likely length of time that will pass before the appeal
is heard;
(d) any other consideration that the Court considers
relevant.
(4) The time during which an appellant is released on bail
pending the determination of the appeal is not counted as part of
any term of detention under the appellant’s sentence, whether it is
the sentence passed by the Court from which the appeal is brought
or the sentence passed or varied by the Court of Appeal.
(5) If a case is stated to the Court of Appeal, this section
applies to a person for whose conviction the case is stated as it
applies to an appellant.
116. Appeals from decision of District Courts relating to
bail-(1) If a District Court Judge, Fa’amasino Fesoasoani or
remand officer refuses to grant bail to a defendant (whether before
or after conviction), the defendant may appeal to the Supreme
Court against that refusal.
(2) If a District Court Judge, Fa’amasino Fesoasoani or remand
officer grants bail to a defendant (whether before or after
conviction), the informant may appeal to the Supreme Court
against that decision.
(3) If, for any grant of bail to a defendant (whether before or
after conviction):
2016, No. 6 Criminal Procedure 69
(a) a District Court Judge, Fa’amasino Fesoasoani or a
remand officer has imposed any condition of bail,
or has refused to impose any condition of bail, or
any particular condition of bail; or
(b) a District Court Judge, Fa’amasino Fesoasoani or
remand officer has, on an application made under
section 111, made an order varying or revoking any
condition of bail or substituting or imposing any
other condition of bail, or has refused to make the
variation or revocation order,
the defendant or the informant may appeal to the Supreme Court
against the imposition of that condition of bail or, as the case may
be, against that refusal or against the decision in respect of that
application.
(4) For the purposes of an appeal under this section, the failure
of a District Court Judge or Fa’amasino Fesoasoani or Remand
Officer to impose any condition of bail, or any particular condition
of bail, on any occasion on which the condition could lawfully
have been imposed is treated to be a refusal to impose the
condition.
(5) An appeal under this section is by way of rehearing.
117. Execution of Supreme Court bail decisions-(1) If, on an
appeal under section 116, the Supreme Court determines that bail
should not be granted or should not be continued, a warrant for the
detention of the defendant in custody must be issued out of the
Supreme Court and signed by a Judge.
(2) The person who executes the warrant must ensure that a
copy of the notice of the result of the appeal is given to the
defendant when the warrant is executed or as soon as practicable
after the warrant is executed.
(3) If, on an appeal for any condition of bail, the Supreme
Court varies or revokes the condition of bail or substitutes or
imposes any other condition of bail, the following provisions
apply:
(a) if the defendant is present at the Supreme Court, the
Registrar of the Supreme Court must -
70 Criminal Procedure 2016, No. 6
(i) as soon as is reasonably practicable,
prepare a new notice of bail setting out the
conditions of bail as amended (if any); and
(ii) be satisfied that the defendant
understands the conditions of bail; and
(iii) require the defendant to sign the notice
of bail; and
(b) if the defendant is not present at the Supreme Court, the
Registrar of the District Court appealed from must
send written notice to the defendant requiring the
defendant to attend at a specified time and place for
the execution of a fresh notice of bail containing the
conditions (if any) required to give effect to the
Supreme Court’s decision.
(4) If, in any case to which subsection (3) applies, the
defendant fails without reasonable excuse to attend at the time and
place required, or fails to enter into a fresh notice of bail, the
Registrar of the District Court appealed from must refer the matter
to a District Court Judge who may issue a warrant for the arrest of
the defendant.
118. Hearing and granting of bail to appellant and custody
pending appeal-(1) The bail application of an appellant must be
heard and determined by the Judge who presided at the trial in the
Court below or if the presiding Judge is not available, by another
Judge.
(2) If an appellant is granted bail, the appellant must, if the
appellant is in custody only under the conviction to which the
appeal relates, be released from custody on entering into a bond
before a remanding officer in any sum and with or without a surety
or sureties as the Judge directs, subject to the condition that the
appellant attend personally at the Supreme Court or Court of
Appeal on the day on which the appeal is to be heard and on any
day to which the hearing may be from time to time adjourned.
(3) The time during which an appellant is on bail is not
included as part of the appellant’s term of imprisonment.
(4) If a case is stated under this Part, this section applies to a
person for whose conviction the case is stated as it applies to an
appellant.
2016, No. 6 Criminal Procedure 71
(5) For the purposes of this Part, an appellant:
(a) is treated not to be in custody only under the conviction
to which the appeal relates if a direction has been
given that another sentence or term of
imprisonment is to follow the sentence imposed on
that conviction; and
(b) has not appealed against the conviction for which that
other sentence or term was imposed.
119. Warrant to arrest appellant who has absconded or is about to abscond while on bail-(1) If:
(a) an appellant is released on bail; and
(b) a remanding officer is satisfied on the oath of the
respondent or of any surety or on the oath of some
person on behalf of the respondent or any surety,
that the appellant -
(i) has absconded; or
(ii) is about to abscond for the purpose of
evading justice,
the remanding officer may issue a warrant to arrest and bring the
appellant before a Judge.
(2) When the appellant is arrested pursuant to the warrant, a
Judge, on being satisfied that the appellant had absconded or was
about to abscond, may commit the appellant to a prison until the
hearing.
120. Surrender of appellant released on bail and discharge
of surety-(1) An appellant who has been released from custody on
bail pending the hearing of the appellant’s appeal may:
(a) surrender himself or herself; and
(b) apply to a Judge for the discharge of the bail-bond.
(2) A surety for an appellant released under subsection (1) may
apply to a Judge to be discharged from the surety’s obligation
under the bail-bond.
(3) For subsection (1) or (2), the Judge may, if the appellant
has not surrendered, issue a warrant to arrest and commit the
appellant to a prison for the unexpired term of the sentence
originally imposed.
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(4) When the appellant is arrested under this section, the
appellant’s sureties are discharged from their obligations under the
bail-bond.
(5) Division 3 of this Part applies to this Division with
necessary modifications.
121. Appeal from decision of Judge relating to bail-(1)
Subject to subsection (4), this section applies to a decision made by
a Judge whereby:
(a) a person is granted or refused bail; or
(b) a condition of bail is imposed, substituted, revoked or
varied; or
(c) the imposition of a condition of bail, or a condition of
bail, is refused; or
(d) the variation or revocation of a condition of bail is
refused.
(2) The Attorney-General or the person to whom the decision
relates may appeal to the Court of Appeal against a decision to
which this section applies.
(3) For the purposes of this section, the failure of a Judge to
impose a condition of bail, or a particular condition of bail, on any
occasion on which the condition could lawfully have been imposed
is treated to be a refusal to impose the condition.
(4) This section does not apply to a decision made by a Judge
of the Supreme Court if the decision was made on appeal from a
decision of a District Court Judge or a Fa’amasino Fesoasoani.
122. Procedural provisions relating to appeal on question of
bail-(1) A person wishing to appeal under section 121 must file
notice of that person’s intention to appeal with the Registrar of the
Court of Appeal within 10 working days from the date of the
decision to be appealed against.
(2) An appeal under section 121 that is not heard before the
date on which the decision appealed against ceases to be of any
effect lapses on that date, and is treated to have been dismissed by
the Court of Appeal for non-prosecution.
(3) A decision of a Judge appealed against under section 121
must not be suspended only by reason of the fact that notice of that
appeal has been given.
2016, No. 6 Criminal Procedure 73
(4) On any appeal under section 121, the Court of Appeal may:
(a) confirm the decision appealed against, or vary it; or
(b) set it aside and make such other order as the Court of
Appeal thinks ought to have been made in the first
place.
123. Decision of Court of Appeal-(1) If, on any appeal under
section 121 against a refusal to grant bail to any person, the Court
of Appeal determines that bail be granted, the Court of Appeal
must order that the person be released on bail, subject to any
conditions, as the Court of Appeal thinks fit.
(2) If, on an appeal under section 121 on any condition of bail,
the Court of Appeal cancels or amends a condition of bail or
substitutes or imposes any other condition, the Registrar of the
Court whose decision was appealed against must send written
notice to the person bailed and to any surety requiring them to
attend at a specified time and place for the execution of a fresh
bail-bond containing any conditions required to give effect to the
Court of Appeal’s decision.
(3) If, in any case to which subsection (2) applies, the person
bailed fails without reasonable excuse to attend at the time and
place required, or fails to enter into a fresh bail-bond as aforesaid,
the Registrar must refer the matter to a Judge, who may issue a
warrant for the arrest of the person bailed.
(4) If, on an appeal under section 121 against a grant of bail,
the Court of Appeal determines that bail not to be granted or
should not be continued, a warrant for the detention in custody of
the person to whom the determination relates must be issued out of
the Court of Appeal and signed by a Judge; and the person who
executes that warrant must ensure that a copy of the notice of the
result of the appeal is given to the person arrested when the
warrant is executed or as soon as practicable after the warrant is
executed.
(5) A person to whom subsection (4) applies and who is not in
custody may be arrested without warrant by a constable.
PART 10
TRIAL IN THE SUPREME COURT
74 Criminal Procedure 2016, No. 6
Division 1 - General
124. Independence of prosecutor - In relation to the exercise
of any authority, power or duty of the Attorney-General or a
prosecutor for the commencement or conduct of any trial in the
Supreme Court, a decision on the authority, power or duty is not to
be challenged or called in question in any manner by the
informant.
125. Defendant’s notice to be tried with Judge alone-(1) For
the purposes of section 6(2), the defendant may, within 28 days
before the date on which the defendant is to be tried, give written
notice to the Registrar of the Supreme Court of the defendant’s
wish to be tried before a Judge sitting alone.
(2) When the Registrar receives the notice under subsection
(1), the Registrar must forthwith give a copy of the notice to the
prosecutor.
(3) 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).
(4) 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.
(5) If two (2) or more defendants are to be tried together, they
are to be tried before a Judge with assessors unless all of them
apply to be tried by a Judge alone.
(6) A notice purporting to be given under this section on behalf
of the defendant by the defendant’s lawyer is, unless the contrary is
proved, to be treated to be given with the authority of the
defendant.
(7) As an exception to subsection (1), a defendant may give
notice under that subsection before or immediately after the person
is committed for trial.
2016, No. 6 Criminal Procedure 75
126. 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.
(4) If the defendant is one of two (2) or more persons to be
tried together, and each of them are to be tried with assessors, all
of them must be tried before a Judge with assessors unless an order
is made under subsection (1) for all of them to be tried by a Judge
alone.
Division 2 - Assessors
127. Qualifications - Except for a person with a previous
conviction or awaiting trial on a criminal charge, any citizen of
Samoa aged between 25 years and 68 years and who has
no convictions may be appointed to the List of Assessors if in the
76 Criminal Procedure 2016, No. 6
opinion of the Judicial Service Commission that person is qualified
to carry out the role of an assessor.
128. Term - A person appointed as an assessor must serve in
that role for five (5) years but is eligible for re-appointment after a
lapse of five (5) years.
129. List of Assessors-(1) The Registrar of the Supreme Court
must keep and maintain the List of Assessors.
(2) In January of every year, the Registrar of the Supreme Court
must:
(a) review the List of Assessors; and
(b) recommend to the Judicial Service Commission -
(i) the deletion of persons who have died or
who have become unable or unfit to sit as
assessors; and
(ii) the addition of persons qualified as
assessors to the List of Assessors.
(3) There must always be at least 250 eligible assessors on the
List of Assessors, together with their addresses and occupation.
(4) The Judicial Service Commission may at any time, other
than during any trial on which the assessor is sitting, with
sufficient cause direct that an assessor be removed from the List of
Assessors.
(5) Any irregularity in the appointment of an assessor pursuant
to or non-compliance with section 127, 128 or this section does not
invalidate the verdict of the assessors.
130. Choice and summonsing of assessors-(1) The Judge who
is to preside at the trial must direct the Registrar to summon five
(5) assessors as chosen by that Judge to sit.
(2) The summons must:
(a) be directed to the assessor at that person’s listed place
of residence; and
(b) set out the date, time and place of trial.
(3) An assessor may, when receiving the summons, seek to be
excused from attendance at the trial and the Judge may grant the
excusal for sufficient cause.
2016, No. 6 Criminal Procedure 77
131. Failure of assessor to attend trial - An assessor who has
been summonsed under section 130 and who does not, without just
cause, attend at trial or otherwise fulfil the duties as an assessor
until discharged is guilty of contempt of Court and is punishable
accordingly.
132. Registrar to notify prosecution and defence-(1) At least
five (5) working days before the commencement of the trial, the
Registrar of the Supreme Court must notify the prosecution and the
defendant (personally or by the defendant’s lawyer) of the names
of the five (5) assessors chosen to sit, including their occupation
and villages.
(2) The prosecutor or defendant must, after receiving the notice
under subsection (1), give written notice to the Registrar of any
challenge or objection to any assessor.
(3) The prosecutor and the defendant, each have one (1) right
of objection without any grounds or cause, to any assessor except
that any other objection must be with cause or grounds to be
determined by the Judge under section 133.
133. Challenge to assessor-(1) At any time before an assessor
is sworn:
(a) the prosecutor or the defendant may challenge the
assessor for cause; or
(b) the presiding Judge may, on the Judge’s own initiative,
remove the assessor.
(2) The Judge must not allow a challenge or removal under
subsection (1) unless the Judge is satisfied that there is some
reasonable and sufficient objection to the assessor.
(3) If the Judge is satisfied as specified under subsection (2),
the Judge must remove the assessor and substitute another.
134. Oath or affirmation - An assessor must, before
commences to act as such, in open Court and in the presence of
the defendant, be sworn on oath or make an affirmation to act well
and truly as an assessor and to decide in accordance with the
evidence and the law.
78 Criminal Procedure 2016, No. 6
135. Discharge of assessor-(1) If at any time after the
commencement of a trial and before a verdict, the presiding Judge
is of the opinion that, owing to the happening of any emergency or
casualty or to the misconduct or disqualification of any assessor or
the assessor’s death or inability to continue to perform the
assessor’s duty, or to any other sufficient cause, it is necessary in
the interests of justice to do so, the Judge may adjourn the trial or
discharge the assessors and order a new trial.
(2) If the presiding Judge becomes incapable of trying the case
or of acting pursuant to subsection (1), the Registrar must
discharge the assessors.
(3) The exercise by the Judge of the discretion under this
section is not reviewable by a court.
Division 3 - Verdict of Assessors
136. Concurrence of assessors-(1) On a trial before a Judge
and assessors, a defendant is not to be convicted of any offence
unless the conviction is concurred by at least four (4) assessors.
(2) If the assessors cannot reach a verdict on a matter charged
within what is in the opinion of the trial Judge a reasonable time
(which may not be less than 5 hours) the Judge must enquire of the
assessors as to the likelihood of their reaching a verdict.
(3) If the Judge is of the opinion that there is no reasonable
prospect of a verdict, the assessors must be discharged upon which
the Judge may order a new trial.
(4) If the presiding Judge is of the opinion that the assessors
verdict is unreasonable or cannot be supported having regard to the
evidence, the presiding Judge may:
(a) acquit the defendant if the verdict is guilty; or
(b) order a new trial if the verdict is not guilty.
137. Assessors to be kept together-(1) From the time when
the defendant is given in charge to the assessors, the trial must
proceed continuously, subject to the power of the Supreme Court
to adjourn it.
(2) Upon any adjournment, the Supreme Court may, if it thinks
fit, direct that:
2016, No. 6 Criminal Procedure 79
(a) during the adjournment, the assessors are to be kept
together; and
(b) proper provision be made to prevent the assessors from
holding communication with anyone on the subject
of the trial,
but if the direction is not given, the assessors may be separated.
PART 11
APPEALS
Division 1 - Appeals from the District
Courts to the Supreme Court
138. Reserving question of law before determination of
information-(1) A District Court Judge may:
(a) reserve for determination by the Supreme Court any
question of law which arises on the trial of a
defendant, or on any of the proceedings
preliminary, subsequent or incidental to the trial;
and
(b) give any decision subject to the determination by the
Supreme Court of that question,
and the Supreme Court has the power to consider and determine
that question.
(2) The prosecutor or the defendant may during the trial apply
to the presiding Judge presiding to reserve any question, and the
Judge, if the Judge refuses so to do, must take a note of the
application.
(3) If the result of the trial is acquittal, the defendant is to be
discharged, subject to being again arrested if the Supreme Court
orders a new trial.
(4) If the result of the trial is conviction, the Judge:
(a) may postpone sentence, or respite the execution of the
sentence until the question reserved has been
determined; and
(b) in either case in paragraph (a), must, in the Judge’s
discretion, either remand the defendant in custody
or grant bail on any terms and subject to any
conditions as the Judge thinks fit.
80 Criminal Procedure 2016, No. 6
(5) If the Judge decides to reserve a question under this section,
the Judge must state a case for the determination of the Supreme
Court.
(6) If the Judge decides to reserve a question under this section
on an application made under subsection (2), the applicant must:
(a) within 15 working days after being notified of that
decision or within any further time as the Judge
may allow, submit a draft of the case stated, through
the Registrar of the District Court, to the Judge; and
(b) deliver or post a copy of the draft to the respondent or
the respondent’s lawyer; and thereupon section
140(4) to (7) applies.
(7) If the respondent is the Police or a government Ministry or
agency the appellant or applicant must serve a copy of the case
stated to the Attorney-General.
139. Appeal if District Court Judge refuses to reserve
question-(1) If the prosecutor or the defendant applies to a District
Court Judge under section 138 to reserve a question of law for the
determination of the Supreme Court, and the District Court Judge
refuses so to do, the party applying may within 15 working days of
the refusal, appeal to the Supreme Court against the refusal by:
(a) filing a prescribed notice of appeal in the office of the
District Court; and
(b) lodging a copy of the notice in the office of the
Supreme Court; and
(c) serving a copy of the notice on the respondent or
respondent’s lawyer.
(2) The Registrar of the District Court must send all papers
relating to the trial in which the question arose to the Registrar of
the Supreme Court who must:
(a) set the appeal down for hearing on the first practicable
sitting day in the most convenient place where
sittings of the Supreme Court are held; and
(b) notify the parties to the appeal of the time and place
appointed for the hearing.
2016, No. 6 Criminal Procedure 81
(3) The Supreme Court may, after hearing the parties, and
considering any evidence as it thinks fit to require or admit, allow
or refuse the appeal.
(4) If the appeal is allowed:
(a) a case is to be stated for the determination of the
Supreme Court by the District Court Judge as if the
question had been reserved; and
(b) sections 138(6) and 140(4) to (7) apply with necessary
adaptations.
(5) If the respondent is the Police, the notice of appeal is to be
served on the Attorney-General.
140. Appeal on question of law only by way of case stated-
(1) If any information has been determined by a District Court
Judge, either party may, if dissatisfied with the decision as being
wrong on a question of law, appeal to the Supreme Court by way
of case stated for the determination of the Supreme Court on a
question of law only.
(2) An appellant under this section must:
(a) within 15 working days after the decision, file in the
office of that District Court a prescribed notice of
appeal; and
(b) lodge a copy of the notice of appeal in the office of the
Supreme Court; and
(c) serve a copy of the notice of appeal on the respondent or
respondent’s lawyer.
(3) The appellant must:
(a) within 15 working days after the filing of the notice of
appeal, or within any further time as the District
Court Judge may allow, submit a draft of the case
stated (setting out the facts and the grounds of the
decision and specifying the question of law on
which the appeal is made), through the Registrar of
the District Court to the District Court Judge; and
(b) deliver or post a copy of the draft to the respondent or
the respondent’s lawyer.
(4) As soon as may be practicable after receiving the draft case
stated, the District Court Judge must, after hearing the parties if the
Judge considers it necessary to do so, settle the case, sign it, and
82 Criminal Procedure 2016, No. 6
send it to the Registrar. The settling and the signing of the case are
treated for the purposes of this Part to be the statement of the case
by the District Court.
(5) If District Court Judge has, since the date of the Judge’s
decision ceased to hold that office or died or left Samoa, or is
incapable for any other reason of acting as such, another District
Court Judge may:
(a) extend the time for submission of a draft case stated;
and
(b) settle and sign the case.
(6) The Registrar must:
(a) send to the Supreme Court office nearest to the District
Court the case signed by the District Court Judge,
together with any bail-bond entered into by the
appellant; and
(b) make a copy of the case available to each party.
(7) When the Registrar of the Supreme Court receives the case
stated, the Registrar must:
(a) set it down for hearing on the first practicable sitting
day in the most convenient place where sittings of
the Supreme Court are held; and
(b) notify the parties to the appeal of the time and place
appointed for the hearing.
(8) If an appeal under this section relates to a conviction, the
notice of appeal is not to be filed until after the defendant has been
sentenced or otherwise dealt with.
(9) If the respondent is the Police or a government Ministry or
agency, the appellant must serve a copy of the notice of appeal to
the Attorney-General.
141. District Court Judge may refuse a case if appeal
frivolous-(1) If the District Court Judge, whether before or after
having had a draft of the case stated submitted to him or her, is of
the opinion that the appeal is frivolous, or concerns the
admissibility of evidence which if admitted or excluded could not
affect the Judge’s decision, but not otherwise, the Judge:
(a) may refuse to state a case; and
2016, No. 6 Criminal Procedure 83
(b) must, on the request of the applicant for the case, sign
and deliver to the applicant a certificate of that
refusal.
(2) If the District Court Judge refuses to state a case under
section 138, the appellant:
(a) may within 15 working days of such refusal, apply to
the Supreme Court for an order requiring the
District Court Judge to state a case; and
(b) serve a copy of the application on the District Court
Judge and on the other party, and the District Court
Judge and that other party is entitled to appear and
be heard.
(3) The Supreme Court may, if it thinks fit, make an order
requiring the District Court Judge to state a case, and the District
Court Judge on being served with the order must state a case
accordingly.
(4) On the making and service of such an order, section 140(3)
to (7) applies with the substitution of service of the order for the
filing of the notice of appeal.
(5) If the informant is the Police, the applicant must serve a
copy of the application under this section to the Attorney-General.
142. Certifying that a case stated has not been prosecuted-
(1) If, within 15 working days allowed under section 138, 139, 140
or 141 for the submission by the applicant or appellant of a draft of
a case stated or within any further time as may be allowed, no such
action is taken, a District Court Judge may certify that the
application or appeal has not been prosecuted.
(2) When the certificate of non-prosecution is lodged in the
Supreme Court, a Judge may dismiss the matter for want of
prosecution, or make any other order that the Court thinks fit.
143. Case may be sent back for amendment-(1) The
Supreme Court may cause a case stated under this Part to be sent
back to the District Court Judge to amend the case accordingly and
return it to the Supreme Court.
(2) As an exception to subsection (1), the Court may with the
consent of the parties re-state any question of law referred to bring
that question into conformity with the evidence and issue at trial.
84 Criminal Procedure 2016, No. 6
144. Supreme Court to determine the questions on case
stated - The Supreme Court must hear and determine any question
of law arising on any case stated under this Part, and may do one
(1) or more of the following:
(a) remit the matter to the District Court with the
determination of the Supreme Court thereon and
any consequential directions; or
(b) on an appeal, reverse, confirm or amend the decision for
which the case has been stated; or
(c) exercise any power conferred by section 154.
145. Defendant appealing by way of case stated may not
appeal otherwise - A defendant who appeals by way of case stated
against a decision is not entitled to appeal to the Supreme Court
against the same decision under this Part, unless the Supreme
Court grants leave to the defendant to withdraw the appeal by way
of case stated, and if necessary extends the time within which a
notice of appeal may be filed under this Part.
Division 2 - General Appeals
146. Defendant’s general right of appeal to Supreme Court-
(1) Subject to any other provision of this Act or to any other
enactment, if a defendant is convicted on any information heard in
a District Court or any order is made for the forfeiture or calling up
of a bond or any order is made other than for the payment of costs
on the dismissal of the information, the person convicted or against
whom the order is made may appeal to the Supreme Court.
(2) For appeal against conviction, the appeal may be:
(a) against the conviction and the sentence passed on the
conviction; or
(b) against the conviction only; or
(c) against the sentence only.
(3) For appeal against an order for the payment of money, the
appeal may be:
(a) against the order and the amount of the sum ordered to
be paid; or
2016, No. 6 Criminal Procedure 85
(b) only against the amount of the sum ordered to be paid.
(4) An appeal against conviction must not be brought until the
person convicted has been sentenced or otherwise dealt with.
147. Right of Attorney-General to appeal to Supreme
Court-(1) The Attorney-General may appeal to the Supreme
Court:
(a) against the decision of a District Court dismissing any
information; or
(b) against acquittal; or
(c) against the sentence passed on any person, unless the
sentence is one fixed by law.
(2) No appeal under subsection (1) lapses against a sentence of
imprisonment that is unheard before the date on which the person
convicted has completed serving that sentence, and if the Supreme
Court upholds the appeal and imposes an increased sentence the
convicted person is to be recalled to serve the additional period of
imprisonment so imposed.
148. Notice of appeal-(1) If:
(a) a convicted person intends to appeal to the Supreme
Court against conviction or sentence; or
(b) the Attorney-General intends to appeal against the
sentence passed on the conviction of a person, or to
appeal against an acquittal,
the person or the Attorney-General must, in the prescribed form,
give notice of appeal, including the grounds of appeal, by filing in
the office of the Court whose decision is appealed against within
14 working days after the date of the sentence, conviction or
acquittal.
(2) The Registrar receiving the notice must forthwith deliver or
post one (1) copy to all of the following:
(a) respondent or respondent’s lawyer;
(b) the District Court Judge or Fa’amasino Fesoasoani
whose decision is appealed against;
(c) to the Supreme Court office.
86 Criminal Procedure 2016, No. 6
(3) The Supreme Court may, on application, extend the 14
working days specified under subsection (1) if that Court is
satisfied that there were reasonable grounds for the delay and that
in the interests of justice the extension ought to be granted.
149. Transmission of documents to Supreme Court - The
Registrar of the District Court must send to the Supreme Court
office, with the copy of the notice of appeal, or as soon as possible
thereafter:
(a) any bail-bond entered into by the appellant;
(b) the information or charge sheet;
(c) any certified copy of the entry in the Criminal Record
Book containing the conviction, sentence or order;
(d) a copy of the transcript of evidence given before a
District Court Judge or Fa’amasino Fesoasoani (and
if there was no recording of the hearing, copies of
the notes of the Judge or Fa’amasino Fesoasoani) at
or for the purposes of the hearing and of any
questions of law raised at the hearing and of any
submissions made by either party;
(e) if the defendant pleaded guilty, a summary of the facts
stated by the informant;
(f) a copy of a written judgment which the District Court
Judge or Fa’amasino Fesoasoani may have
delivered; and
(g) any exhibits tendered as evidence in the District Court.
150. Copies of documents to be supplied to the appellant on
request - The Registrar of the District Court must, upon request,
supply to the appellant a copy of the documents listed under
section 149 to enable the appellant to prepare the record of appeal.
151. Appellant to lodge documents with the Registrar-(1)
The appellant must, within six (6) weeks following the filing of the
notice of appeal or of the order granting leave to appeal, lodge with
the Registrar and serve on the respondent a copy of the appeal
record.
(2) If the respondent is the Police, the appellant must serve on
the Attorney-General a copy of the appeal record.
2016, No. 6 Criminal Procedure 87
152. Setting down appeal for hearing - The Registrar must,
after receiving the documents referred to in section 149:
(a) set the appeal down for hearing on the first practicable
sitting day in the most convenient place where
sittings of the Supreme Court are held; and
(b) notify the parties to the appeal of the time and place
appointed for the hearing.
153. Procedure on appeal-(1) If a question of fact is involved
in an appeal, the evidence taken in the District Court bearing on
the question must, unless the Supreme Court otherwise directs, be
brought before the Supreme Court by production of the documents
specified in section 149, any exhibits which are in the custody of
either party, and any other materials as the Supreme Court
considers expedient.
(2) As an exception to subsection (1), the Supreme Court:
(a) may rehear the whole or any part of the evidence; and
(b) must rehear the evidence of any witness,
if the Supreme Court has reason to believe that any note of the
evidence of that witness made by the District Court Judge or
Fa’amasino Fesoasoani is or may be incomplete in any material
particular.
(3) For subsection (2), the Supreme Court has the same
jurisdiction and authority as the District Court, including powers as
to amend, and to hear or receive further evidence, if that further
evidence is new evidence pursuant to section 157.
154. Supreme Court to hear and determine appeal-(1) The
Supreme Court may:
(a) hear and determine any general appeal; and
(b) make an order on the appeal, as the Supreme Court
thinks fit.
(2) Without limiting subsection (1), the Supreme Court may:
(a) for any appeal against conviction -
(i) confirm the conviction; or
(ii) set the conviction aside and direct either
an entry of acquittal or a new trial; or
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(iii) amend the conviction and, if the
Supreme Court thinks fit, quash the sentence
imposed and either impose any sentence
(whether more or less severe) that the
convicting Court could have imposed on the
conviction as so amended, or deal with the
defendant in any other way that the convicting
Court could have dealt with the defendant on the
conviction as so amended; and
(b) for any appeal against an acquittal -
(i) dismiss the appeal; or
(ii) uphold the appeal and direct a new trial;
or
(iii) uphold the appeal and convict the
respondent on the charge for which the appeal is
made; or
(iv) if it is satisfied that the acquittal should
not be set aside but that the respondent ought to
have been convicted of some other offence and
that the District Court had jurisdiction to convict
the respondent of that other offence, instead of
dismissing the appeal, convict the appellant of
that other offence; and
(c) for an appeal against sentence -
(i) confirm the sentence; or
(ii) if the sentence (either in whole or in
part) is one which the Court imposing it had no
jurisdiction to impose, or is one which is clearly
excessive or inadequate or inappropriate:
(A) quash the sentence and either substitute
any other sentence warranted in law
(whether more or less severe); or
(B) quash any invalid part of the sentence
that is severable; or
(C) vary, within the limits warranted in law,
the sentence or any part of it or any
condition imposed in it; and
2016, No. 6 Criminal Procedure 89
(d) for an appeal against an order -
(i) confirm the order; or
(ii) set it aside; or
(iii) quash it and substitute any other order
warranted in law (whether more or less severe);
or
(iv) vary, within the limits warranted in law,
the order or any part of it or any condition
imposed in it; and
(e) for an appeal against the amount of any sum ordered to
be paid, confirm the amount or increase or reduce it
within the limits warranted in law.
(3) If the Supreme Court convicts a respondent pursuant to
subsection (2)(b), it may:
(a) refer the matter back to the District Court instance for
sentence; or
(b) itself, sentence the respondent.
(4) In any case, the Supreme Court may exercise any power
that the Court whose decision is appealed against might have
exercised.
155. Power to forbid report of proceedings etc. - On any
general appeal, the Supreme Court has the same powers as a trial
Court has under sections 56 and 57.
Division 3 - Provisions relating to all Appeals
156. Powers of Judge as to extension of time-(1) A Judge of
the Supreme Court may, on the application at any time of the
appellant or intending appellant, extend any time prescribed or
allowed under this Part for the filing of any notice or the
submission of a draft of any case stated or the doing of any other
thing in respect of any appeal or proposed appeal to the Supreme
Court.
(2) An appellant or intending appellant may at any time apply
to a Judge of the Supreme Court to review any decision of a
District Court Judge refusing an extension of time for the
submission of a draft of any case stated under this Part.
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(3) The Judge may confirm the decision, or reverse it and allow
the extension of time as the Judge thinks fit.
157. Fresh evidence on appeal-(1) The appellate court may,
on the hearing of an application to admit fresh evidence in the
appeal, admit fresh evidence if:
(a) the fresh evidence could not reasonably have been given
at the trial; and
(b) the fresh evidence must be such that when viewed in
combination with the evidence given at trial it can
be said that the Judge or assessors acting reasonably
would have acquitted or convicted the defendant;
and
(c) the fresh evidence is credible in the sense that it is
capable of belief.
(2) If the fresh evidence is suspicious and unreliable the
appellate court may reject the fresh evidence.
(3) An appellant who intends to adduce fresh evidence on
appeal must:
(a) give the respondent 20 working days’ notice of the
appellant’s intention to do so; and
(b) provide the respondent with the fresh evidence within
10 working days of the giving of the notice.
(4) If fresh evidence has been provided to the respondent under
subsection (3)(b), the appellate court may, on application, adjourn
the hearing of the appeal to another date to allow reasonable time
to respond.
158. Issue of warrant pending appeal - If, under a decision
against which the defendant appeals, the defendant has been
sentenced to imprisonment, the warrant of commitment to execute
the sentence must be issued, even though the notice of appeal has
been given.
159. Abandonment of appeal - An appellant may, at any time
after the appellant has given notice of appeal, or after the appellant
has applied for an extension of time for the notice of appeal,
abandon the appeal by giving the Registrar of the Supreme Court
2016, No. 6 Criminal Procedure 91
and the respondent a prescribed notice to abandon the appeal, and
upon the giving of the notice, the appeal is treated to have been
dismissed by the Supreme Court for non-prosecution.
160. Presentation of case by party in custody-(1) A party to
an appeal who is in custody is entitled to present the party’s case
and argument in writing instead of by oral argument if the party so
desires, which must be considered by the Supreme Court.
(2) On the hearing of any general appeal against a conviction
and the sentence passed on the conviction or against the conviction
only, the appellant, if he or she is in custody, whether or not he or
she is represented by a lawyer, is entitled to be present, and the
officer-in-charge of the prison in which the appellant is detained
must, without further authority than this subsection, cause the
appellant to be taken to the Supreme Court for the hearing.
(3) On the hearing of a general appeal against sentence only or
of any appeal by way of case stated on a question of law only, a
party to the appeal who is in custody, whether or not the party is
represented by a lawyer, is not entitled to be present except with
the leave of the Supreme Court, which may be given on the
application in writing of that party.
(4) If leave of the Supreme Court is given for a party to an
appeal who is in custody to be present at the hearing of the appeal,
the Registrar of that Court must notify the officer-in-charge of the
prison in which that party is detained, and the officer must, without
further authority than this subsection and that notification, cause
the party to be taken to the Supreme Court for the hearing.
(5) A party to an appeal who is taken to the Supreme Court
under subsection (2) or (4) must, unless the party’s release is
ordered by the Supreme Court, and except while the party is in the
custody of that Court, remain in the custody of the escorting officer
until returned to the prison in which the party is to be detained.
161. Power of Supreme Court to direct retrial-(1) On an
appeal, the Supreme Court may remit the decision appealed against
to the District Court with a direction that the information to which
it relates be retried.
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(2) If the decision is remitted under subsection (1), the
Registrar of the Supreme Court must send a certificate to that
effect to the Registrar of the District Court whose decision was
appealed against, together with in the case of a general appeal the
documents and exhibits referred to in section 150.
(3) The case remitted under this section is to be dealt with as if
a new trial as to the whole matter had been granted under section
154.
(4) Sections 118 and 158 apply, with necessary modifications,
to this section.
162. Amendment of conviction by substituting one offence
for another-(1) If, on any appeal against a conviction for any
offence (whether or not the appeal is against the sentence also), it
appears to the Supreme Court that:
(a) the evidence is insufficient to support a conviction for
that offence, but is sufficient to support a conviction
for some other offence of a similar character within
the jurisdiction of the convicting court; and
(b) the defendant has not been prejudiced in his or her
defence,
the Supreme Court may, on any terms as to costs and otherwise as
it thinks fit -
(i) amend the conviction by substituting that
some other offence for the offence mentioned in
the conviction, and, if it thinks fit, quash the
sentence imposed and either impose any
sentence that the convicting Court could have
imposed (whether more or less severe), or deal
with the defendant in any other way that the
convicting Court could have dealt with the
defendant, on the conviction as amended; or
(ii) remit the conviction to the District Court
with a direction that it be amended accordingly.
(2) If a conviction is remitted under subsection (1), the
Registrar of the Supreme Court must send a certificate to that
effect to the Registrar of the District Court whose decision was
appealed against, and the District Court must:
2016, No. 6 Criminal Procedure 93
(a) amend the conviction and, if it thinks fit, quash the
sentence imposed, and impose any sentence which
it has jurisdiction to impose (whether more or less
severe); or
(b) deal with the defendant in any other way that it has
power to deal with the defendant, in respect of the
conviction as amended.
163. Dismissal of appeal for non-prosecution-(1) The
Supreme Court may dismiss the appeal for non-prosecution, if:
(a) an appellant does not appear at the hearing of the appeal
and, if the appellant is in custody, has not presented
a case or argument in writing as provided in section
160; or
(b) an appellant, having appeared at the hearing, does not
prosecute his or her appeal.
(2) If the Supreme Court dismisses any appeal for non-
prosecution, the Registrar of that Court must send a certificate to
that effect to the Registrar of the District Court whose decision was
appealed against.
164. Registrar to certify determination on appeal - After the
determination by the Supreme Court of an appeal, the Registrar of
the Supreme Court must:
(a) send a certificate of the determination to the Registrar of
the District Court whose decision was appealed
against; and
(b) send a copy of the certificate to any party to the appeal
who is in custody and was not present when the
determination was made.
165. Determination of Supreme Court-(1) If, on any appeal,
the Supreme Court confirms any conviction, sentence, order or
amount of any sum to be paid, or if the appeal is dismissed for
non-prosecution, or if a certificate has been given under section
142 that the appeal has not been prosecuted, the decision of the
District Court must be enforced.
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(2) If, on an appeal, the Supreme Court:
(a) sets aside or reverses any conviction, order, or other
decision; or
(b) amends any conviction or other decision; or
(c) quashes or varies any sentence or order; or
(d) increases or reduces the amount of any sum ordered to
be paid,
the Registrar of the District Court must make a note of the
determination of the Supreme Court in the entry in the Criminal
Record Book relating to the decision appealed against.
(3) In any case to which subsection (2) applies, the
determination of the Supreme Court or the decision of the District
Court as amended or varied by the Supreme Court, takes effect as
if it were the decision of the District Court.
(4) If the Supreme Court imposes a sentence of imprisonment,
the warrant to be issued must be issued out of the Supreme Court
and be signed by a Judge.
(5) If the Supreme Court varies a sentence of imprisonment
imposed by the District Court, it is not necessary to issue a fresh
warrant of commitment for the sentence as so varied.
(6) If the appellant has paid a fine pursuant to a sentence of the
District Court and on the determination of the appeal:
(a) the appellant’s conviction is set aside; or
(b) the sentence is quashed and any other sentence imposed
is not for the payment of a fine or is for the payment
of a smaller fine; or
(c) the sentence is varied by a reduction in the amount of
the fine imposed,
the appellant is entitled, subject to the order of the Supreme Court,
to a return of the sum paid or part thereof, as the case may be.
(7) In subsection (6), “fine” includes any costs or other money
ordered by the Court to be paid on the conviction of the appellant.
166. Custody of person after determination of appeal-(1) If:
(a) the determination of the Supreme Court on any appeal
has been given; or
(b) an appeal has been dismissed for non-prosecution or a
certificate has been given under section 142 that an
appeal has not been prosecuted,
2016, No. 6 Criminal Procedure 95
any person who is liable under that determination or the decision
appealed from to serve a sentence of imprisonment and who is not
in custody may be arrested without warrant by a constable.
(2) If the Supreme Court, in giving the determination, quashes
a sentence of imprisonment imposed by the District Court and does
not impose another sentence of imprisonment, the Registrar of the
Supreme Court at the place where the determination is given must
send to the officer-in-charge of the prison in which the appellant is
detained or from which the appellant was released on bail a
certificate setting out the result of the appeal, and, if the appellant
is in prison and is not in prison for any other matter, the appellant
must be released.
(3) If the Supreme Court in giving the determination:
(a) varies a sentence of imprisonment imposed by a District
Court; or
(b) amends the conviction for which a sentence of
imprisonment was imposed by a District Court,
the Registrar of the Supreme Court at the place where the
determination is given must send to the officer-in-charge of prison
a certificate of determination, and the warrant issued in execution
of the sentence of the District Court has effect as if it were
amended in accordance with the certificate.
(4) If under section 142 a District Court Judge has certified that
an appeal has not been prosecuted, the Registrar of the District
Court must send that certificate to the officer-in-charge of the
prison in which the appellant is detained.
(5) If an appeal has been dismissed for non-prosecution, the
Registrar of the Supreme Court must send a certificate to that
effect to the officer-in-charge of the prison.
167. Resumption of probation on determination of appeal -
If under any determination for which the defendant appeals a
District Court having jurisdiction has released the defendant on
probation, and:
(a) when the appeal is determined neither the decision to
release the defendant on probation nor the
conviction on which it was made is set aside; or
(b) the appeal is not prosecuted or is dismissed for non-
prosecution,
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the term of probation as specified by a District Court or as varied
by the Supreme Court must be resumed as from the day -
(i) the appeal is determined; or
(ii) the District Court Judge or Fa’amasino
Fesoasoani, having jurisdiction under any
enactment conferring power to release a
defendant on probation, certifies that the appeal
has not been prosecuted; or
(iii) the Registrar of the Supreme Court
certifies that it has been dismissed for non-
prosecution.
168. Party not prosecuting appeal may be ordered to pay
costs-(1) If a notice of appeal is given but the appeal is dismissed
for non-prosecution or a certificate is given under section 142 that
the appeal has not been prosecuted, the Supreme Court may allow
the respondent costs as it thinks fit.
(2) No costs incurred after notice has been given by the
appellant abandoning the appeal are to be allowed.
169. Enforcement of order as to costs - If, on the
determination of any appeal, either party is ordered to pay costs,
the order as to costs are:
(a) to be included in the certificate of the determination sent
under section 164; and
(b) enforceable as if it were a fine imposed by the District
Court.
170. No Court fees payable on appeal by person sentenced
to imprisonment - If an appellant has been sentenced to
imprisonment under the conviction to which the appellant’s appeal
relates, no Court fees are to payable for the appeal either in a
District Court or in the Supreme Court.
Division 4 - Appeals from Supreme
Court to Court of Appeal
2016, No. 6 Criminal Procedure 97
171. Interpretation - In this Part:
“appellant” includes a person who has been convicted and
intends to appeal under this Part;
“Court of Appeal Rules” means rules relating to the practice
and procedure of the Court of Appeal made under this Act
or any other enactment;
“Judge” means a Judge of the Supreme Court of Samoa;
“sentence” includes:
(a) an order of the Supreme Court made on conviction; and
(b) a discharge without conviction pursuant to this Act or
any other enactment; and
(c) for power of the Court of Appeal to pass a sentence, a
power to make an order or to direct a discharge
under this Act or any other enactment.
172. Right of appeal on certain matters arising before trial-
(1) At any time before the trial, the Attorney-General or the
defendant, may appeal to the Court of Appeal against the making
of an order or the refusal to make an order on any of the following
matters:
(a) the severance or joinder of charges;
(b) directing separate trials of persons jointly charged;
(c) the admissibility or inadmissibility of evidence;
(d) the amendment of charges;
(e) the quashing or amendment of an information on the
grounds that the information does not state in
substance a crime or offence.
(2) At any time before the trial, the defendant, with the leave of
the Court of Appeal, may appeal to the Court of Appeal against a
refusal to make an order for further particulars of any matter which
is the subject of any information.
(3) On any appeal under this section, the Court of Appeal may:
(a) confirm the decision of the Supreme Court or Judge; or
(b) vary it, or set it aside and make any other order, as the
Court of Appeal thinks ought to have been made in
the first place.
(4) If a person intends to obtain the leave of the Court of
Appeal to appeal to that Court under this section, the person must
give notice of the application for leave to appeal, in such manner
98 Criminal Procedure 2016, No. 6
as may be directed by the Court of Appeal Rules, within 10
working days after the decision of the Supreme Court or Judge is
given, irrespective of whether reasons for the decision are given at
a later date and irrespective of whether any formal steps to sign,
enter, or otherwise perfect the decision are necessary or are
afterwards taken.
(5) The Court of Appeal may, at any time, extend the time
within which notice of an application for leave to appeal under this
section may be given.
(6) Even if an application for leave to appeal under this section
has been made, the Supreme Court may, if it is satisfied that it is in
the interests of justice to do so, proceed with the trial without
awaiting the determination of the application.
173. Reserving question of law-(1) The Court before which a
defendant is tried may, during or after the trial, reserve pursuant to
this section for the opinion of the Court of Appeal a question of
law arising either on or incidental to the trial.
(2) If the decision of the question may in the opinion of the
Supreme Court depend on any questions of fact, the Judge may
when the Judge is sitting with assessors, ask the assessors
questions as to the facts separately, and the Supreme Court must
make a note of those questions and the findings on those questions.
(3) The Attorney-General or the defendant may during the trial
apply to the Court to reserve the question of law, and the Court, if
it refuses to reserve it, must nevertheless take a note of the
application, unless it considers the application to be frivolous.
(4) If the result of the trial is acquittal, the defendant must be
discharged, subject to being again arrested if the Court of Appeal
orders a new trial.
(5) If the result of the trial is conviction, the Supreme Court:
(a) may respite the execution of the sentence until the
question reserved has been decided; and
(b) must either commit the defendant to prison, or grant the
defendant bail on any terms and conditions as the
Supreme Court thinks fit.
(6) If the question is reserved, a case must be stated for the
opinion of the Court of Appeal, to be approved and signed by the
Judge who presided at the trial.
2016, No. 6 Criminal Procedure 99
(7) If the question is reserved on application, the case must be
stated by the party who applied for the question to be reserved, and
if the question is reserved by the Judge on own initiative, the case
must be stated by that Judge.
174. Appeal on question of law question not reserved-(1) If
the Supreme Court refuses to reserve a question, the party applying
may move the Court of Appeal for leave to appeal against that
refusal.
(2) The Court of Appeal may upon the motion, and upon
considering any evidence as it thinks fit to require, grant or refuse
leave to appeal.
(3) If leave to appeal is granted, a case must be stated for the
opinion of the Court of Appeal as if the question had been
reserved.
175. Powers of Court of Appeal for appeal on question of
law-(1) The Court of Appeal may, on own initiative, restate a case.
(2) Upon the hearing of any appeal on a question of law against
conviction, sentence or acquittal under this Part, the Court of
Appeal may:
(a) confirm the ruling appealed from; or
(b) if it is of the opinion that the ruling was erroneous, and
that there has been a mistrial in consequence, direct
a new trial; or
(c) if it is of the opinion, if the defendant has been
convicted, that the ruling was erroneous, and that
the defendant thereby was bound to have been
acquitted, order that the conviction be set aside,
which order is treated to be an acquittal; or
(d) make any other order as justice requires.
(3) Unless subsection (2)(c) applies, a conviction or acquittal
must not be set aside, or a new trial must not be directed, even if
the question of law is decided in favour of the appellant, unless, in
the opinion of the Court of Appeal, the trial error caused a
substantial wrong or miscarriage of justice.
(4) If it appears to the Court of Appeal that a wrong or
miscarriage of justice did not affect all of the charges, the Court of
Appeal may:
100 Criminal Procedure 2016, No. 6
(a) give separate directions as to each charge, and pass
sentence on any charge that stands good and
unaffected by the wrong or miscarriage of justice;
or
(b) remit the case to the Court below with a direction to
pass a sentence as justice requires.
(5) The order or direction of the Court of Appeal are to be
certified and signed by the presiding Judge to the Registrar of the
Court before which the case was tried, and the order or direction
must be carried into effect.
176. Right of appeal against conviction or sentence-(1) A
person convicted in the Supreme Court, except on appeal from a
decision of the District Court, may appeal to the Court of Appeal:
(a) against the conviction and the sentence passed on the
conviction; or
(b) against the conviction only; or
(c) against the sentence only, unless the sentence is one
fixed by law.
(2) A person convicted or sentenced in the Supreme Court on
appeal from the District Court may, with leave of the Court of
Appeal, appeal to the Court of Appeal:
(a) against the conviction and the sentence passed on the
conviction; or
(b) against the conviction only; or
(c) against the sentence only, unless the sentence is one
fixed by law.
177. Right of Attorney-General to appeal against sentence
or acquittal-(1) The Attorney-General may appeal to the Court of
Appeal against the sentence passed on any person, unless the
sentence is one fixed by law.
(2) No appeal under subsection (1) against a sentence of
imprisonment that is unheard before the date on which the person
convicted has completed serving that sentence lapses, and if the
Court of Appeal upholds the appeal and imposes an increased
sentence, the convicted person must be recalled to serve the
additional period of imprisonment so imposed.
2016, No. 6 Criminal Procedure 101
(3) If, on the trial of a person on a charge before a Judge alone,
the person is acquitted of that charge, the Attorney-General may
appeal to the Court of Appeal against that acquittal.
(4) If, on the trial of a person on a charge before a Judge sitting
with assessors, the person is acquitted of that charge, the Attorney-
General may, on the grounds that an error of law has occurred,
appeal to the Court of Appeal against that acquittal.
(5) Error of law includes, but is not limited to, the following:
(a) the question of admissibility of evidence;
(b) a ruling on a no case to answer application;
(c) directions of the trial judge to the assessors as to the
law;
(d) the correct construction of a statute;
(e) the question as to the legal consequences of
uncontroverted fact;
(f) whether a particular defence is available to the assessors
to consider;
(g) whether a positive actual finding was unsupported by
any evidence;
(h) the verdict of the assessors is unreasonable or cannot be
supported having regard to the evidence.
(6) Upon the hearing of an appeal under subsection (3) or
subsection (4) the Court of Appeal may:
(a) dismiss the appeal; or
(b) uphold the appeal and direct a new trial.
178. Appeal against decision of Supreme Court on appeal
from District Court - The Attorney-General may with leave of the
Supreme Court, appeal to the Court of Appeal against a decision of
the Supreme Court on appeal from the District Court.
179. Right of appeal against sentence or conviction for
contempt of Court-(1) A person who is found guilty in the
Supreme Court of a criminal contempt of that Court or of any other
court, may appeal to the Court of Appeal:
(a) against the finding; or
(b) against any sentence imposed for the contempt; or
(c) against both the finding and the sentence.
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(2) This Part applies to this section as if the finding were a
conviction.
180. Determination of appeals in ordinary cases-(1) On any
appeal against conviction, the Court of Appeal may allow the
appeal if that Court is of the opinion:
(a) that the verdict of the assessors should be set aside on
the ground that it is unreasonable or cannot be
supported having regard to the evidence; or
(b) that the judgment of the Court before which the
appellant was convicted should be set aside on the
ground of a wrong decision of any question of law;
or
(c) that on any ground there was a miscarriage of justice; or
(d) that the trial was a nullity.
(2) In any other case, the Court of Appeal must dismiss the
appeal.
(3) The Court of Appeal may, even though it is of the opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if the Court of Appeal considers that
no substantial miscarriage of justice has actually occurred.
(4) Subject to the special provisions of this Part, the Court of
Appeal must, if it allows an appeal against conviction, quash the
conviction, and direct a verdict of acquittal to be entered, or direct
a new trial, or make any other order as justice requires.
(5) On any appeal against sentence, the Court of Appeal, if it
thinks that a different sentence should have been passed, must:
(a) quash the sentence passed and pass any other sentence
warranted in law (whether more or less severe) in
substitution for the original sentence; or
(b) vary the sentence or any part of it or any condition
imposed in it; and
(c) in any other case, dismiss the appeal.
181. Powers of Court of Appeal in special cases-(1) If, on an
appeal under section 176, it appears to the Court of Appeal that an
appellant, though not properly convicted on some charge, has been
properly convicted on some other charge, that Court may:
2016, No. 6 Criminal Procedure 103
(a) affirm the sentence passed on the appellant; or
(b) pass a sentence in substitution for the original sentence,
as it thinks proper and as may be warranted in law
by the verdict on the charge on which the Court of
Appeal considers that the appellant has been
properly convicted.
(2) If:
(a) an appellant has been convicted of an offence; and
(b) the Judge or the assessors could, on the charge or
charges, have found the appellant guilty of some
other offence; and
(c) on the finding of the Judge or assessors, it appears to the
Court of Appeal that the Judge or assessors must
have been satisfied on facts that proved the
appellant guilty of that other offence,
the Court of Appeal may, instead of allowing or dismissing the
appeal, substitute for the verdict found by the Judge or assessors a
verdict of guilty of that other offence, and pass any sentence in
substitution for the sentence passed as may be warranted in law for
that other offence.
(3) If, on an appeal under section 176, it appears to the Court of
Appeal that the appellant was insane at the time of the commission
of the offence and should have been acquitted on account of the
appellant’s insanity, the Court of Appeal may quash the
conviction.
(4) The Mental Health Act 2007 applies to the appellant if the
conviction is quashed under subsection (3), so far as that Act is
applicable, as if the appellant had been so acquitted and as if
references in that Act to the Court or a Judge were references to
the Court of Appeal.
182. Re-vesting and restitution of property on conviction-
(1) The operation of an order for the restitution of any property to a
person made on a conviction, and the operation, in case of the
conviction, of the provisions of section 24(1) of the Sale of Goods
Act 1975 as to the re-vesting of the property in stolen goods on
conviction, are (unless the Court before which the conviction takes
place directs to the contrary in any case in which, in its opinion,
the title to the property is not in dispute) suspended:
104 Criminal Procedure 2016, No. 6
(a) if the notice of appeal or leave to appeal is given, within
14 working days after the date of conviction, until
the determination of the appeal; and
(b) in any other case, until the expiry of 14 working days
after the date of the conviction.
(2) For the purpose of subsection (1), if the operation of the
order or a provision of Sale of Goods Act 1975 is suspended until
the determination of the appeal, the order or provision does not
take effect as to the property in question if the conviction is
quashed on appeal.
(3) Rules may provide for securing the safe custody of any
property, pending the suspension of the operation of the order or
provision.
(4) The Court of Appeal may, by order, annul or vary any order
made on a trial for the restitution of any property to any person,
even though the conviction is not quashed; and the order, if
annulled, does not take effect, and, if varied, takes effect as so
varied.
183. Supplemental powers of Court of Appeal-(1) For the
purposes of an appeal or application for leave to appeal against
conviction or sentence, the Court of Appeal may, if it thinks it
necessary or expedient in the interests of justice, do any or all of
the following:
(a) order the production of any document, exhibit, or other
thing connected with the proceedings the production
of which appears to that Court to be necessary for
the determination of the case;
(b) order a witness who would have been compellable
witnesses at the trial to attend and be examined
before the Court of Appeal, whether they were or
were not called at the trial, or order the examination
of the witness to be conducted in the manner
prescribed by the Court of Appeal Rules before a
Judge or officer of that Court, Judge or other person
appointed by the Court of Appeal for the purpose,
and allow the admission of any depositions so taken
as evidence before that Court;
2016, No. 6 Criminal Procedure 105
(c) receive the evidence, if tendered, of any witness
(including the appellant) who is a competent but not
compellable witness;
(d) if a question arising on the appeal involves prolonged
examination of documents or accounts, or any
scientific or local investigation, which cannot in the
opinion of the Court of Appeal conveniently be
conducted before that Court, order the reference of
the question in manner prescribed by the Court of
Appeal Rules for inquiry and report to a special
commissioner appointed by that Court, and act upon
the report of any such commissioner so far as the
Court of Appeal thinks fit to adopt it;
(e) appoint a person with special expert knowledge to act as
adviser to the Court of Appeal if it appears to that
Court that special expert knowledge is required for
the proper determination of the case.
(2) In any proceedings, the Court of Appeal may exercise in
relation to the proceedings any other powers that may for the time
being be exercised by the Court of Appeal on appeals in civil
matters, and issue any warrants necessary for enforcing the orders
or sentences of that Court.
(3) The Court must not increase a sentence by reason of or in
consideration of any evidence that was not given at the trial.
184. Duties of Registrar with respect to notices of appeal,
etc.-(1) The Registrar of the Court of Appeal must:
(a) take all necessary steps for obtaining a hearing of any
appeal or application for leave to appeal of which
notice is given; and
(b) obtain and lay before the Court of Appeal in proper
form all documents, exhibits and other things
connected with the proceedings in the Court whose
decision is appealed against, which appear
necessary for the proper determination of the appeal
or application.
106 Criminal Procedure 2016, No. 6
(2) Any documents, exhibits, or other things connected with
the proceedings on the trial of any person who, if convicted, is
entitled or may be authorised to appeal against conviction or
sentence must be kept:
(a) in the custody of the Supreme Court; or
(b) in the custody of the Court of Appeal,
pursuant to Rules made for the purpose, for such time as may be
provided by those Rules, and subject to any power as may be given
by those Rules for the conditional release of the documents,
exhibits or things from that custody.
(3) The Registrar must give the necessary forms and
instructions in relation to notices of appeal or notices of application
to any person who demands them, officers of the court, officers-in-
charge of a prison, and any other offices or persons as the Registrar
thinks fit.
(4) The officer-in-charge of a prison must cause:
(a) the forms and instructions to be placed at the disposal of
prisoners desiring to appeal or to make an
application under this Part; and
(b) any notice given by a prisoner in that institution to be
forwarded on behalf of the prisoner to the Registrar.
(5) The Registrar must report to the Court of Appeal or a Judge
of that Court any case in which it appears to the Registrar that,
although no application has been made for the purpose, legal aid
ought to be granted to an appellant.
185. Evidence for Court of Appeal-(1) On any appeal or
application for leave to appeal under this Act, the Court before
which the appellant was convicted must, if it thinks necessary or if
the Court of Appeal so desires, send to the Court of Appeal in
addition to any documents referred to in section 184 or in any
Rules, a copy of the whole or of any part as is material of any notes
taken by the Judge presiding at the trial.
(2) The Court of Appeal may, if it considers the notes
defective, refer to any other evidence of what took place at the trial
as it thinks fit.
2016, No. 6 Criminal Procedure 107
186. Right of appellant to be represented-(1) On the hearing
of an appeal or on any proceedings preliminary or incidental to an
appeal, the appellant is entitled to be present at the hearing
(whether or not the appellant is represented by a lawyer) if the
appellant is in custody.
(2) The power of the Court of Appeal to pass any sentence
under this Act may be exercised even though the appellant is for
any reason not present.
187. Power to forbid report of proceedings, etc. - The Court
of Appeal has the same powers as the Supreme Court has under
sections 55 and 56, and those sections apply, with necessary
modifications, to proceedings before the Court of Appeal.
PART 12
MISCELLANEOUS
188. Costs-(1) If the Court convicts a defendant, it may order
the defendant to pay to the informant costs as the Court thinks just
and reasonable for Court fees, witnesses’ and interpreters’
expenses, and lawyers’ fees.
(2) If an information is withdrawn or dismissed, the Court may
only order the informant to pay to the defendant costs, as the Court
thinks just and reasonable, for fees for the defendant’s lawyer and
expert witnesses if there was no evidence to support the
information and no evidence to cause a reasonable person to
suspect the defendant, and not otherwise.
(3) The Court must not order costs against the informant or
prosecution if the defendant was granted legal aid.
(4) Costs allowed under this section must not exceed the
amount provided for in any scale prescribed by regulations or rules
made under this Act or any other enactment.
(5) Any costs allowed under this section:
(a) must be specified in the conviction or order for
dismissal; and
(b) may be recovered in the same manner as a fine.
(6) The defendant or the Attorney-General may appeal against
any order for costs.
108 Criminal Procedure 2016, No. 6
(7) No order for costs is be made in favour of the defendant if
the defendant by his or her conduct after the alleged offence had
brought the prosecution upon himself or herself.
189. Witnesses’ expenses-(1) The Court may order a party at
whose instance a witness appears at the Court to pay the costs and
expenses of that witness, not exceeding the amount provided for in
any scale prescribed by regulations or rules made under this Act or
any other enactment.
(2) The order may be enforced in the same manner as a fine.
190. Acts not generally to be done on Sunday-(1) The
following must not be done on a Sunday:
(a) issuing or execution of a warrant; or
(b) issuing or serving of summons or other document; or
(c) any other act to be done or proceeding to be taken, on a
matter to which this Act applies.
(2) As an exception to subsection (1), the following acts may
be done and proceedings taken as effectually on a Sunday as on
any other day:
(a) a warrant to arrest a defendant or appellant may be
issued and may be executed;
(b) a warrant to arrest, or for the appearance of, any person
required to give evidence may be issued and may be
executed;
(c) a search warrant may be issued and may be executed;
(d) any information may be laid or any step taken if it is
necessary to enable the issue of any warrant referred
to in paragraph (a), (b) or (c);
(e) a warrant of commitment (except for non-payment of a
sum of money) may be executed;
(f) any arrest authorised to be made without warrant may be
made, and any person authorised to be taken into
custody without warrant may be taken into custody;
(g) any person may be granted bail or released on bail;
(h) any statement may be taken.
(3) A person who contravenes subsection (1) commits an
offence and is liable to a fine not exceeding 1 penalty unit.
2016, No. 6 Criminal Procedure 109
(4) An act done on a Sunday in breach of subsection (1) is not
to be invalidated solely on the ground that it was done on a
Sunday.
191. Proceedings not to be questioned for want of form - No
information, complaint, summons, conviction, sentence, order,
bond, warrant, or other document, and no process or proceeding is
to be quashed, set aside, or held invalid by a Court by reason only
of any defect, irregularity, omission, or want of form unless the
Court is satisfied that there has been a miscarriage of justice.
192. Consent of Attorney-General to proceedings in certain
cases for offences on ships or aircraft-(1) Proceedings for the
trial and punishment of a person who:
(a) whether or not the person is a citizen of Samoa or a
person ordinarily resident in Samoa, is charged with
having committed beyond Samoa an offence on
board or by means of any ship or aircraft which is
not a Samoa ship or a Samoa aircraft; or
(b) whether or not the person is a citizen of Samoa or a
person ordinarily resident in Samoa, is charged with
having committed, anywhere within Samoa or in the
space above Samoa, an offence on board or by
means of any ship or aircraft which belongs to the
government of another country other than Samoa or
is held by a person on behalf or for the benefit of
that government, whether or not the ship or aircraft
is for the time being used as a ship or aircraft of any
of the armed forces of that country,
must not, by virtue only of the provisions of this Act, be instituted
in a Court except with the consent of the Attorney-General.
(2) If:
(a) the Attorney-General’s consent under subsection (1)
certifies that it is expedient that the proceedings
should be instituted; and
(b) the proceedings would be instituted only by virtue of
the jurisdiction conferred by Part II of the Crimes
Act 2013,
110 Criminal Procedure 2016, No. 6
the Attorney-General must not give consent unless satisfied that
the government of that country to which the ship or aircraft
belongs has consented to the institution of the proceedings in
Samoa.
(3) As an exception to subsection (1), a person charged with
the offence mentioned in subsection (1) may be arrested, or a
warrant for the person’s arrest may be issued and executed, and the
person may be remanded in custody or on bail, even if the consent
of the Attorney-General to the institution of a prosecution for the
offence has not been obtained; but no further or other proceedings
are to be taken until that consent has been obtained.
193. Civil remedy not suspended - No civil remedy for any
act or omission is to be suspended by reason that the act or
omission amounts to an offence.
194. Contempt of Court-(1) If a person, in any criminal or
civil proceeding:
(a) assaults, threatens, intimidates, or wilfully insults a
Judge, District Court Judge, Fa’amasino Fesoasoani
or any Registrar, or any officer of the court, or any
assessor, or any witness, or any constable during his
or her sitting or attendance in court, or in going to
or returning from the court; or
(b) wilfully interrupts or obstructs the proceedings of the
Court or otherwise misbehaves in court; or
(c) wilfully and without lawful excuse disobeys any order
or direction of the Court in the course of the hearing
of any proceedings; or
(d) wilfully aids, abets, counsels, procures, or incites any
other person to do any of the things described in
paragraphs (a) to (c),
a constable or officer of the court, with or without the assistance of
any other person, may, by order of the court, take the person into
custody and detain the person until the rising of the court.
(2) In any such case in subsection (1), the Court (excluding,
however, a Court presided over by a Fa’amasino Fesoasoani
without extended jurisdiction granted pursuant to section 18 of the
2016, No. 6 Criminal Procedure 111
District Courts Act 1969), if it convicts the person after giving the
person a reasonable opportunity of being heard in his or her
defence, may, for each such offence, sentence the person:
(a) to pay a fine not exceeding 100 penalty units; or
(b) to imprisonment for a term not exceeding 12 months
imprisonment,
and in default of payment of the fine, may direct that the defendant
be imprisoned for a term not exceeding 12 months, unless the fine
is sooner paid.
(3) Nothing in this section affects any power or authority of a
Court to punish a person for contempt of Court in any case to
which this section does not apply.
195. Felonies, misdemeanours and mode of trial-(1) There is
no distinction between offences formerly known as felonies and
misdemeanours, or between offences punishable on a charging
document or information laid by the Attorney-General and by way
of summary conviction; and, so far as may be necessary for the
purpose of any rule of the common law or of any enactment in
force in Samoa, all offences are either summary offences or
crimes.
(2) A reference in any enactment to the trial of an offence by
way of indictment or by way of summary proceedings is to be
construed as a reference to the trial of the offence by a Court in the
ordinary course of its criminal jurisdiction and procedure.
196. Proceedings against parties to offences, accessories,
and receivers-(1) This section applies to a person charged:
(a) as a party to an offence (not being the person who
actually committed it); or
(b) with being an accessory after the fact to any offence; or
(c) with receiving property knowing it to have been
dishonestly obtained.
(2) A person to whom subsection (1) applies may be proceeded
against and convicted for an offence whether or not the principal
offender or any other party to the offence or the person by whom
the property was obtained has been proceeded against or convicted.
(3) A person to whom subsection (1) applies may be proceeded
against and convicted:
112 Criminal Procedure 2016, No. 6
(a) alone as for a substantive officer; or
(b) jointly with the principal or other offender or person by
whom the property was dishonestly obtained.
(4) If any property has been dishonestly obtained, any number
of receivers at different times of that property, or of any part or
parts of it, may be charged with substantive offences, and may be
tried together.
197. Production of document, etc., held by Ministry, etc.-(1)
If a document, record, information or thing required for the
purpose of any investigation or prosecution of an offence is in the
possession or control of a Ministry, government agency or public
body, the Ministry, government agency or public body must, upon
request in writing by the Attorney-General, provide the document,
information or thing to the prosecutor.
(2) A document, record or information must be provided under
subsection (1) even if it is confidential or privileged or is
prohibited under an enactment to be disclosed.
198. Regulations-(1) The Head of State may, acting on the
advice of Cabinet, make regulations to give effect to the provisions
or for the purposes of this Act, and in particular may make the
following regulations:
(a) to prescribe forms to be used in respect of any
proceedings to which this Act applies;
(b) to prescribe the lawyers’ fees payable by parties in
proceedings to which this Act applies;
(c) to prescribe the fees, travelling allowances, and
expenses payable to interpreters and to persons
giving evidence in proceedings to which this Act
applies;
(d) to prescribe the costs and charges payable by parties in
proceedings to which this Act applies;
(e) to prescribe the procedure for the taking of the evidence
of witnesses under sections 43 to 45, including
provisions for requiring the attendance of witnesses,
the answering of questions, and the production of
documents;
2016, No. 6 Criminal Procedure 113
(f) to providing for or prescribe any other matter in respect
of which regulations are contemplated or required
under this Act.
(2) Any warrant or summons required under this Act is to be in
the prescribed form.
(3) The Schedule may be amended, replaced or repealed by
regulations made under this section.
199. Rules of Court-(1) The Head of State may, acting on the
advice of the Prime Minister, and with the concurrence of the
Rules Committee constituted under section 40(2) of the Judicature
Ordinance 1961, make, amend, replace or revoke rules regulating
the practice and procedure and forms of proceedings of the District
Courts and the Supreme Court and the Court of Appeal under this
Act.
(2) Rules are subject to and must not be inconsistent with any
provision of this Act or any other enactment.
(3) The power to make rules under this section includes:
(a) prescribing the forms of notice of appeal and case stated
and any other forms to be used in respect of appeals
to which this Act applies;
(b) fixing scales of fees and costs payable in respect of
proceedings to which this Act applies;
(c) prescribing the duties of Registrars in respect of
appeals, including the preparation of the record,
setting down the time for hearing and the
notification of the determination; and
(d) prescribing any other matters of practice or procedure
of the courts for the purposes of this Act.
(4) Parts I, II and IV of the Court of Appeal Rules 1961, and
the Schedules to those Rules apply to Part VIIA of those Rules as
if they were Rules made under this Act.
200. Repeal, amendment, transitional and saving-(1) The
Criminal Procedure Act 1972 is repealed (“repealed Act”).
(2) For section 5(3) of the Young Offenders Act 2007
substitute:
114 Criminal Procedure 2016, No. 6
“(3) A charge of an offence for which the maximum
penalty is life imprisonment is to be laid with the Supreme
Court and dealt with by the Supreme Court.”.
(3) At the commencement of this Act:
(a) all pending actions, matters and proceedings
commenced under the repealed Act continue as if
they were commenced under this Act;
(b) all actions, matters and proceedings commenced under
the repealed Act and pending or in progress at the
commencement of this Act may be continued,
completed and enforced under this Act;
(c) all powers, jurisdictions, officers, appointments, orders,
warrants, rules, regulations, seals, forms, books,
records, instruments, and generally all acts of
authority which originated under the repealed Act,
and subsist or in force at the commencement of this
Act, continue for the purposes of this Act as if they
had been made under this Act;
(d) a defendant may be found guilty or convicted of the
offence created by the repealed Act if the
defendant’s act or omission -
(i) would have constituted an offence under
both the repealed Act and this Act; and
(ii) occurred on a date that cannot be
established with certainty but that is established
to have occurred either after the commencement
of the repealed Act and before its repeal or after
the commencement of this Act.
(4) Regulations may be made pursuant to section 198 to deal
with any other transitional matter.
2016, No. 6 Criminal Procedure 115
SCHEDULE (sections 2, 15, 18, 37 and 198)
FORMS
FORM 1 - INFORMATION
I, [full name], of [address, occupation], say on oath that I have
reasonable cause to suspect, and do suspect, that at
............................................................................................................
..............................................on ...................................... [full
name], of [address, occupation], [here set out the nature of the
offence] [here add section and statute applicable]
...............................................
Signature of applicant
Sworn before me at..............................this ...............day
of.....................................2….
.....................................
(Deputy) Registrar
FORM 2 - SUMMONS TO THE DEFENDANT
IN THE [SUPREME/DISTRICT] COURT OF SAMOA
HELD AT … BETWEEN: ............................................................................
(Informant)
AND: .........................................................................................
(Defendant)
WHEREAS an information has been laid against you by the
abovenamed informant that on the ...........day of
..........................................20….......... at .............................you
did ......................
116 Criminal Procedure 2016, No. 6
You are therefore summoned to appear before this Court at Court
Room No. ... on the .......... day of 20.........., at ...........o’clock in the
forenoon, at the Court house at ................., there to answer the
charge so made against you.
Dated at ...................... this .................. day of .................... 20
.........
..........................................
Judge/ Faamasino Fesoasoani/Registrar
To the above-named Defendant
FORM 3 - BAIL BOND NOTICE
To:.............................................................(“the Defendant”)
And ...............................................................(“the sureties”)
Take notice that if the Defendant fails to perform the condition(s)
following or any of them, namely
...............................................................................
Then you, the defendant will forfeit the sum of
...................................and you the surety(ies), will forfeit the sum
of ..............................(each).
Dated at .......................... this ......................... day of....................
20
(defendant signature)
(surety(ies) signature)
.......................................
Registrar
2016, No. 6 Criminal Procedure 117
FORM 4 - ORDER TO CALL UP BOND
I ORDER that the within bond (or the bond)
............................................(here describe the bond)
....................................... be called up to the amount of
$.....................in respect of the Defendant and to the amount of
$...........................in respect of (each of) the sureties
or.......................................(a surety).
Dated at .............................. this ................... day of
......................... 20............
............................
Judge
FORM 5 – CHARGING DOCUMENT
IN THE SUPREME COURT OF SAMOA
HELD AT:
IN THE MATTER OF: (INFORMANT) v. ………..
I .......................................................the [Attorney-General of
Samoa/Prosecutor of the Office of Attorney-General] proceed
[and/or charge the defendant] on the:
(a) information number(s) (if any)........; and/or
(b) charge the defendant on the additional charges (if any);
and/or
[that the defendant is charged that at
........................................................... on ...........................................
[full name], of [address, occupation], [here set out the nature of
the offence] [here add section and statute applicable]
(c) the information number(s) as substituted by the
following charge(s); and/or
[that the defendant is charged that at
................................................. on ........................................... [full
name], of [address, occupation], [here set out the nature of the
offence] [here add section and statute applicable]
118 Criminal Procedure 2016, No. 6
(d) information number(s) as hereby amended as follows:
(the amendments to the information)
DATED this …......... day of …......… 20…........
(signature)
(Attorney-General/Prosecutor of the Office of Attorney-General)
__________
The Criminal Procedure Act 2016 is administered
by the Ministry of Justice and Courts Administration.
