In this post I describe the process and detail challenges for laying criminal charges privately in Samoa. It’s not an easy thing to prosecute (even more challenging to do it privately) but it is perfectly possible and is an accepted legal action. In this online guide I use the thirteen charges I have laid against Edwin Joseph (Force) Schmidt from Alafua as examples, showing the applicable Statute and how I have applied the law to the Informations (charges).
At the outset I wish to state that there is nobody in a better position in Samoa to know me and understand me than the boy I have today charged with thirteen crimes. Force, of all people has had the most opportunity to see, understand and rectify matters of any of the people who have lied to, stolen from and crossed me in Samoa. I doubt anyone else would have tolerated, forgiven and given as much as opportunity to rectify the matters as I have to this lad – six years, multiple warnings, forgiveness sessions, mediation, court hearings and my crystal clear objectives.
Sad, but reality in Samoa where there is a HUGE disconnect between perception and reality at all levels of society.
Samoa inherited NZ criminal and civil law pretty much lock-stock-and-barrel in 1962 when she gained independence from New Zealand*. The Westminister traditions and interpretations apply. This means that you can generally take New Zealand legal interpretations and be confident of a good understanding.
The Constitution of the Independent State of Samoa is the top-level of law. The Constitution basically says that everyone here has a right to live happy and healthy in Paradise and that the Government has a right to govern and tax us all!
Under that are the Statutes which the government writes and enforces. The Criminal sides of the Law are mostly contained in the Crimes Act 2013, and the Criminal Procedures Act 1973, with a few little things listed in various other Acts, mostly those applying to civil matters (non criminal things).
The Judiciary (the legal system of the Courts and the Judges) is established and operates under the Supreme Court Rules, the District Court Act and acts that relate to appointment and operations of the Judiciary.
In regards to taking a Private Prosecution in Samoa, the key laws to be aware of, know and understand are the Crimes Act 2013 which sets out what is a crime; and the appropriate Court Act (District or Supreme) that applies to the Court process of accepting, handling and processing of the charge (technically called an “Information”).
If the matter has a penalty of seven years prison or more (or if the value of a claim is substantial) then the matter must be tried in the Supreme Court. If there is a complex matter of law or if the District Court Judge instructs so then the Supreme Court will also hear the matter. In most cases it will be the District Court that will handle the Information and deal with the Private Prosecution.
The Process to Lay
A Criminal Charge can be commenced by anyone. Except for some minor facts such as time limits and express exemptions, there is no restriction on who this is or what their status is in Samoan society either in the law or in practice.
It is of course normal for the Police to investigate complaints from the public and (since 2016) the Prosecutions Division to lay the charges and conduct the prosecution but the law says:
11. Any person may lay an information – Except where expressly otherwise provided by any enactment, a person who has reasonable cause to suspect that an offence has been committed may lay an information for that offence.
That is pretty simple and it means . . . any person. I am a person, so have commenced the Criminal Charges against in this case Force.
This makes me the “Informant” and Force the “Defendant”.
The Court must accept the Information(s) and issue a date and time for the Defendant to appear in court. This is done through a “Summons to Accused” that must be delivered to the Defendent (or his legal representative, or if the court agrees someone with leadership responsibilities from his family). This is called “Service”. Once the Defendant has been served with the Summons(es) the Court can proceed with natural justice assured.
Recapping this, anyone who believes that they have seen or has evidence of of a Crime (as listed in the law) can lay an Information with the Courts, serve the Defendant with a Summons to appear in court on a specific day, time and place and they must appear or they could get arrested and forced to appear.
Laying charges on another person (a Private Prosecution) is a powerful thing, but it also has the associated risk of course that if the process is abused, then the Informant could be found to have abused the process and could themselves be in the gun. Power is a two edged sword with the flip-side always being responsibility.
The Process in Court
At the first mention, at the time, place and date that the Court Registrar set, the judge will call both parties (the Informant and the Defendant) into the courtroom or up to the front of the court and the charges will be read aloud.
The Defendant is required to answer with their plea, either “Guilty” or “Not Guilty”. If they say nothing or say or do anything silly the Judge can enter the plea of Not Guilty into the Court Records and there will be a trial at a later date.
There are ways to delay the requirement for a plea . . . smart lawyers always have tricks up their sleeves to delay the inevitable but if the paperwork is in order, the Judge must eventually get to the point that the Plea is recorded.
If the plea is Guilty, the judge will generally ask the Informant for a suitable timeframe to provide a statement of facts and/or evidence or reports as he thinks appropriate. Then the sentencing will be done at a later stage.
If the Defendent’s plea is “Not Guilty” then the judge will set the matter for a hearing at some stage in the future. Again lawyers can delay this process in various ways and both parties and/or a lawyer can contribute into timing matters. For example, usually if one party is overseas, busy or has good reason the matter can be pushed out (adjourned) and even more than once if the Judge agrees.
While there is a section in the appropriate laws that allows for imperfect documents to be accepted and processed, it is important to the Samoan legal system at all levels that the documents are correct. This applies from the first point of lodging right through to documents furnished for viewing by the Judge.
All documents supplied to the court must be on single-sided Legal Bond.
Served documents must have a signature from the recipient and/or a sworn affidavit of service and this must be presented to the court if the other party is not present to prove that they did get served.
Any document given to the court must also have a copy to the other party.
All Informations supplied to the Court must also have a particular court form on the reverse.
Preparing legal documentation is NOT for the faint-hearted!
I’ve charged EJ with thirteen crimes [view the actual Informations] that relate to various events over the last six years – two recent events in 2016 and the rest from 2010. His cases raise issues that are examples of the process, the challenges that I’ve had to work through in developing the charges and the way my decisions have affected both the Informations AND the process undertaken in court.
|LIST OF INFORMATIONS|
|5.||Theft,||s.161 & 162||Weed-eater|
|7.||Theft,||s.161 & 162||Mattress|
|11.||Theft,||s.161 & 162||Freezer|
|13.||Threat to Kill,||s.129|
The first three crimes here are Perjury. The Law defines the crime of Perjury thus:
Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of witness’s evidence upon oath or affirmation, whether such evidence is given in open court or by affidavit or otherwise, such assertion being known to the witness to be false.
In Force’s case he gave an Affidavit to the court that contained three lies:
- That he worked for me – he never has. He was a SWAP Ambassador which is an unpaid voluntary position. He’s also lied about this previously more than once and also confessed to lying about it more than once so he’s ‘slipped up on purpose’ here!
- He stated that he had not been served with a critical document. He had been – twice. Oops!
- He lied that I rented a room from his mother and got kicked out for not paying the rent. Not true. A malicious lie at that. I really look forward to proving this lie in court with witnesses, logic and fact.
Perjury is a very serious crime.
A person who commits perjury is liable to imprisonment for a term not exceeding 5 years.
It’s an act that hits at the core of the judicial process. If one doesn’t respect the Judges or the process of obtaining justice by lying to them in a formal process of swearing an oath on the bible then don’t expect any mercy when you’re caught out and someone like me steps up to the mark and says “Play ball!”
I’ve noted that lawyers here in Samoa have no fear presenting porkies to the Judges. I know that the definition of the legal profession in some quarters is to act as professional liars BUT letting them get away with doing this deliberately is wrong in my books. If Samoa claimed to be a crooked country with liars and cheats and thieves running the show like Nigeria is perceived to be, I’d say to myself, “Whatever, this is their world and country!” and let em at it. But Samoa makes a big song and dance about being a country, “Founded upon God!” and they make a mockery of Christianity with their conduct.
Lawyers who lie, should watch out from here-on-in.
I then charge Force with theft and intentional damage (Cases 4-8). These matters have already been before a Judge and EJ has been ordered to pay their replacement value to me. It is highly likely that it will be the same District Court Judge who will be hearing these criminal charges. I’d find it hard for him to say on the one hand, “Yes Mr Schmidt, you have to pay Mr Smith for the replacement cost of the missing stuff”, and on the other hand, “Oh no he didn’t steal them at all – he’s not guilty!”
The other issue arising from this is that Section 161 relates to theft, but Section 162 describes a more serious form of theft which is theft from a person in a “special relationship”. This used to be called “theft as a servant” but has recently been enlarged somewhat to include other situations from direct employment.
162. Theft by person in special relationship – (1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that require the person:
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
(2) A person to whom subsection (1) applies commits theft who fails to account to the other person as so required or deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
The problem that Force has, and which affects both me and the court is that he has several times before claimed to have been an employee. In his recent Affidavit he repeats this assertion. If he claims that I was his boss then he must surely accept that he should be charged with the more serious offence as he was in a “special relationship” according to the legal definition. Of course if he told the truth that he wasn’t an employee then he’d be confessing to having committed Perjury as per the first charge. All this may be moot in that as a volunteer for the SWAP Foundation he was also in a “special relationship”. The court can assess this all based on EJ’s plea to the first charge and the facts as they are determined in court.
The charges 9-11 are straight-forward. The Informations will be heard in court. EJ will plead one way or the other and events will unfold from there – either sentenced or going to a hearing/trial. The Act says in regards to Theft:
161. Theft or stealing – (1) Theft or stealing is the act of:
(a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
(b) dishonestly, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
(2) An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that:
(a) the property cannot be returned to any owner in the same condition; or
(b) any owner is likely to be permanently deprived of the property or of any interest in the property.
(3) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.
A person is liable to imprisonment for a term not exceeding 7 years who: (a) intentionally or recklessly, destroys or damages any property
The charges 12 and 13 are more serious and result from a situation outside of the Mulinu’u courtrooms.
Threats to … do grievous bodily harm – A person is liable to imprisonment for a term not exceeding 3 years … who verbally makes a threat to … do bodily harm to any person.
Unlawful intimidation – A person commits an offence and is liable to imprisonment for a term not exceeding 1 year or to a fine of 2 penalty units who: (a) imposes or attempts to impose … upon any other person … against the doing … any act which such other person has a legal right to do … uses violence to or by words or acts intimidates such other person
They are of particular significance to me, not so much in the events in court but the mere fact that I have laid the charges. You see, threatening physical violence (technically “grievous bodily harm”) is one thing – it’s a crime – but when it is done to intimidate a blogger, to attempt to threaten an investigative blogger at that, for me, this crosses a line.
EJ crossed that line and I see red, for nothing, and I mean NOTHING on this planet will stop me from sharing the truth as I see it and experience it in the way, form, shape, timing or context that I wish to. That independence; that freedom from unreasonable external controls is a central part of who I am and what I do.
EJ has made a HUGE error thinking that threatening to “f*cken smash my jaw, and I’m not afraid to do it” will have the slightest hope of ever controlling what is said about him online from these quarters. On the contrary, the world will know much more about the “Big [fat] boy from Alafua who has the mother with one leg” which is how the Police referred to him recently!
The best thing that people who object to their conduct being shared with the world can do is to apologise and fix the problem. At the very least they should STFU but to ‘take it to’ a blogger fearless to take on crims, crooks and crazies from around the world is just foolishness and will backfire.
While EJ has committed the crimes and the Informations are valid, short of a confession, or guilty plea, I cannot actually prove that these two occurred. In court before the judge if it goes to trial it will be my word against his. He certainly lacks credibility and I can prove this. I don’t think I lack credibility but if the judge requires proof beyond my word and what is ‘probably likely to have happened’ then EJ may get away with the crimes – at least until his conscience ‘got to him’ anyway! I consider that the events as I state them in the Informations and my Affidavit and credibility will put the matters ‘beyond reasonable doubt’ but that’s for the trial judge to determine should EJ deny that he did what he did and plead “Not Guilty”.
Tips & Advice
While laying an Information or undertaking any legal process may on the surface appear straightforward, the legal system has the capacity to bloat an issue, potentially quite badly. Legal paths are simply one way of dealing with an issue. Sometimes they are a “necessary evil” but I advise caution when entering into the legal process and to do anything to avoid them if at all possible.
You will also be on your own. No lawyer will help you and this is perfectly natural behaviour because they have invested their time and money into knowing the legal things that you don’t. It’s their revenue streams as an industry that you are directly challenging by doing it yourself. The Court staff are generally great at Mulinu’u and will help to the best of their ability BUT they are simply staff, employed to help people take cases to court. They are not lawyers and are specifically prohibited from providing legal assistance. OK sure, if there’s a little something wrong with a document, they might help by ignoring it BUT lawyers they are not!
In a conflict situation expect Samoans to personalise the matters hugely. Taking someone to court is a cultural shame and there will be human relationship consequences, some that could last generations. For Palagi suing Samoans in Samoa this means that your future in Samoa is likely limited unless you have strong support systems and are well established.
While the Judiciary are supposedly independent and sworn to objectivity and impartiality don’t bank on it. I’ve seen enough to know that Samoa is no different to the legal fraternity offshore – they can certainly close ranks when threatened and some decisions and processes that I have seen already in my short time in this space are highly questionable. This may be funny or cute when observing from a distance – but it gets a little more painful when it affects you and you’re paying for it at the end of the day.
Expect a fight, foul play and obscene delays. In 2015 I sued Samoa Observer in the District Court for a commercial breach of contract by the owner Savea Sano Malifa, totalling $3,500.00. More than a year later and the case has ballooned to a $2m defamation case in the Supreme Court with a trial pretty unlikely this side of Christmas.
When I sold the SWAP Prado to Elisapeta Auina from Pesenga and she ripped me off, it took me ten months and a trip to the Supreme Court and a Private Prosecution against her lawyer to get the Prado back and justice to complete its work! The Prado was returned eventually (and she lost her money) so justice was eventually served in the end but that’s ten months with no money and no car. Even now the car is still off the road because it came back in a poor [undrivable] condition.
Another client of a high profile lawyer died last weekend while waiting for the Chief Justice to sort out one case – fourteen years fighting for justice on that case! One has to be prepared for delays and problems ALL the time.
Lawyers know how to play legal games with newbies. Enjoy the game. I’ve enjoyed learning to play it, although in the early days I expected a little too much and was a bit too serious! In life you win some and lose some. Get over the losses if they occur because from my experience when real justice and the legal system connect and agree then you ought to “go out and buy a lotto ticket”!
It’s illegal in Samoa to claim to be a lawyer or to use the word lawyer in a description of your services. One also cannot receive income for giving legal assistance. This post with advice is given free online and I’m not a lawyer – and likely never will be!
So there . . . you can’t now sue me for giving legal advice even though this is advice about the legal process of completing a Private Prosecution in Samoa!
* Laws relating to land and land ownership were written from the ground-up in Samoa, with more than 80% of Samoa land in “Customary ownership” a uniquely South Pacific concept where the High Chiefs manage the land based on historical family use.