Lawyer argues Judge Saaga recused from hearing Sam’s case

By Lagi Keresoma/

Apia, SAMOA – 08 May 2024– Lawyer Fuimaono Josephine Sapolu did not mix words when she pointed out that when a judge is both a judge of the facts and a judge of the law, he/she should be disqualified from presiding over a case.

So began her submission in her clients Samuelu (Sam) Su’a and wife Sivai Kepi’s application to recuse District Court Judge, Talasa Atoa Saaga from presiding over their case.

Fuimaono stated that the judge decides the law whilst the jury decides the facts. However, in the previous hearing of Sam and Sivai’s bail application, Judge Saaga was both the judge of the law and judge of facts “and the comments she made in her decision appears to be statements of facts.”

Reasonable apprehension of bias
Fuimaono’s concern is that the facts are yet to be heard, tried and proven before the Court yet the Judge had made comments in the bail decision of 27 February 2024 that gives rise to a “reasonable apprehension of bias.”

She however was surprised when Judge Saaga pointed out the continuation of a suppression order.

Fuimaono reminded the Judge that she only delivered a decision but was not aware of a suppression order.

Outside Court, Fuimaono said an order is too late as the media have already published her decision and comments.
“What is relevant to this application to recuse is how the ultimate decision-maker – the Judge was both the judge of the law and the judge of the facts,” said Fuimaono.

Samuelu Su’a who claims to know the identity of the person involved in the unresolved hit and run case at Vaitele in April 2021.

Two parts of the application
Fuimaono’s application was based on two parts.

One, Judge Saaga presided over the bail application in February 2024 where information about the Applicants were disclosed and such information is vital to the trial itself.

Given its disclosure, the Judge has knowledge of prejudicial facts or circumstances which give rise to an apprehension of bias including subconscious bias.

The second part is that the bail decision is currently being appealed which has the potential to affect Judge Saaga’s capacity to preside in the trial scheduled for 20 May 2024.

“Having an appeal against the Judges bail decision, is also another circumstance which can play into subconscious bias,” said Fuimaono.

The appeal against the bail decision is scheduled to be heard in the Supreme Court this month.

“There is the potential that the decision’s outcome can affect the Judges capacity to preside over the trial. It cannot be predicted what the outcome would be, thus it would be appropriate for her to recuse herself from the case at this stage,” said Fuimaono.

The affidavits in support of the application
Fuimono submitted the affidavits of Unoi Alofia Samoa and Sita in support of their argument.

She said there is an evident or apparent and perhaps actual conflict of interest between Judge Saaga and the complainant, Lealailepule Rimoni Aiafi as both attend the same church where Judge Saaga holds a prominent position as deacon.

Unoi’s affidavit says that “because of this case, I find it very awkward when I see them at church due to this much anticipated public case before the Court.”

He further stated that he can sense that the other church members are uncomfortable to talk about it out of respect and love for our church members, but they do share their discomfort about the close church affiliation of Judge Saaga and Lealailepule.

“The concern here is that there is an apparent apprehension of bias because to a fair-minded observer, Judge’s role as a deacon in the church where the complainant is a church member, can conflict with her role as a Judge where the complainant is the main witness for the prosecution,” said Fuimaono.

Prosecutor Taimalelagi Leinafo Strickland took a neutral stance and did not make a submission.

The Court will deliver its decision Thursday next week.