Prosecution Breached Court Suppression Order

By Lagi Keresoma

APIA, SAMOA: 22 SEPTEMBER 2022: The Prosecution in the conspiracy case against Lema’i Sione and Malele Paulo, breached a Court suppression order not to disclose information regarding the case.

Prosecutor Lupematasila Iliganoa Atoa confirmed disclosing information regarding the accused’s bail hearing to the Australian authorities.

Counsel for Lema’i, Unasa Iuni Sapolu said the breach prejudiced Lema’i, Paulo, Pauga and Taualai Leiloa – the accused in the case.

(Note: Taualai Leiloa is currently serving a 5 year prison sentence since December 2020 after pleading guilty to the charge of conspiracy).

In his decision delivered 15 July 2022, His Honour Chief Justice Satiu Simativa Perese noted the admission by Lupematasila.

“Ms. Atoa confirmed the disclosure made by the Attorney General’s Office to the Australian authorities was made because it was considered that there was a difference between disclosure and publication.”

His Honour said he did not understand such a difference matters all that much, but prosecution should have asked for permission.

“Information which was subject to the order for suppression was conveyed to a third party and permission to make available material subject to the suppression order, permission should have been sought from the Court,” said His Honour.

In this particular hearing for the stay of proceedings, His Honour extended the order to the media that terms of the decision were suppressed pending further order of the Court.

“In the context of a concern about alleged abuse of process, the concern is whether the Attorney General’s breach of the order for suppression warrants the exercise of the extraordinary power to stay the prosecutions against the Applicants,” said His Honour.

The Court noted that the reason behind the disclosure of information was to assist the AG’s request to extradite the third defendant, Talalelei Pauga from Australia to stand trial in Samoa.

His Honour said a request for extradition is a normal part of the administration of the criminal justice system to ensure that an accused person is brought back into the jurisdiction to stand trial.

He also noted that counsels were not aware if the disclosed information were published anywhere and in particular in Samoa, and there is no evidence before him that the breach of the suppression order was “motivated by malice or ill will against the Applications.”

“But the lack of evidence of these matters does not in and of itself mean the end of inquiry,” said His Honour.

Suppression order lifted
On 22 August 2022, Unasa applied for a discharge of the suppression order and Prosecution did not oppose the application.

Presiding Judge at the criminal mention then, Justice Fepuleai Ameperosa Roma granted the application and lifted the suppression order.

It is now going on to three years since the accused have been charged, and the hearing for the actual charge is now scheduled for February 2023.