Judge to rule if Samoan court can try defamation offence committed overseas

By Lagi Keresoma

APIA, SAMOA – 25 AUGUST 2022: Defense counsel in a defamation case against an Australian based Samoan radio host today applied to quash the defamation charge against his client as the Samoan Court has no jurisdiction to hear or try anyone on an offence that was committed outside of Samoa.

Counsel Fuimaono Sefo Ainuu for the applicant Tiumalumatua Maifea Fetu relied on the Crimes Act 2015 Jurisdiction – Section 4.

Fuimaono conceded that an offence was committed, but not in Samoa.

He cited Section 4(1) “This Act applies to all offences for which the offender may be proceeded against and tried in Samoa.”

However, Judge Schuster pointed out the exact wordings in Section 4(1) which refers to “all offences” and Section 4(2) which applies to all acts done or committed in Samoa and subsection 3 and 4.

He asked counsel to point out exactly where Section 4 says “exclude” offences committed outside of Samoa.

He also informed counsel that the success of his argument depends on proving that the Samoa legislation does “exclude” offences that were committed outside Samoa.

Fuimaono cited Section 5 regarding persons not to be tried in respect of things done outside of Samoa but Judge Schuster reminded him of part of Section 5 which says “ ….no act done or committed outside Samoa is an offence, unless it is an offence by virtue of any provision of this Act or of any other enactment.”

Judge Schuster then set a scenario where a person was working for Samoa in Australia but had stolen public funds. Can that person be tried in Samoa?

Counsel said “no” but Judge Schuster said it can.

He then cited Section 6 Place of commission of offence – “For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in Samoa, the offence shall be deemed to be committed in Samoa, whether the person charged with the offence was in Samoa or not at the time of the act, omission, or event.” 

If the offence was partially committed overseas and partially committed in Samoa, then that person can be tried here.

Counsel for the complainant, Jason Tuala agreed that whilst the offence was committed in Australia, the effect on the offence caused actual harm to the victim who resides in Samoa.

Judge Shuster will deliver his decision tomorrow morning, and if the application is successful, then that would be the end of the defamation case, but if unsuccessful, witnesses will be called for the actual hearing.