A lawsuit brought by an inmate claiming he was behind bars for four more years after the expiry of his jail term was dismissed by the Supreme Court.

Sio Agafili also known as Salailua filed legal action against the Ministry of Police and Prisons in 2020 alleging he was unlawfully jailed for close to five years and was unaware that his jail term should have ended in 2015. 

Senior Supreme Court Justice, Vui Clarence Nelson ruled the plaintiff’s claim fails on its facts and therefore dismissed the case this month. 

Agafili had a string of convictions previous convictions of burglary and theft in 2004 for which he was sentenced to a term of imprisonment. 

On 19 December 2008, he appeared before the District Court on further charges of burglary and theft and was sentenced by District Court Judge Tauiliili Harry Schuster to five years in prison on each charge. 

At the time the plaintiff was already serving a term of imprisonment for other burglary and thefts.  

On the district court criminal records database sheets Judge Schuster entered the sentence as “convicted five years imprisonment” beside the first charge and the word concurrent with a downward arrow to each charge thereafter. 

Justice Nelson took judicial notice of the fact that at the time, the practice of the only two district court judges there was that they filled in the sentence portion of the record sheets in their handwriting before signing the sheets. 

On the relevant Warrant of Commitment to prison typed up and presented subsequently to the judge as per the district court practice, the Judge signed off on a sentence of a five year imprisonment for all the charges to be served concurrently. 

The Court heard there is no evidence as to the exact date the warrant was submitted to or signed by the trial judge. 

Justice Nelson noted it is not disputed that in reality the plaintiff served a cumulative term of almost five years in prison for the charges before being released by the Supreme Court. 

He said he heard the evidence of the plaintiff via his affidavit submitted by consent (no cross-examination was requested) and sighted the relevant record sheets and warrant of commitment. 

The district court file on the matter containing the trial judge's sentencing notes unfortunately cannot be located. 

Justice Nelson referred to evidence from Aperaamo Niko, the police orderly on duty the day of the plaintiff's sentencing and Assistant Commissioner Leiataua Samuelu concerning the records of the police.  

Constable Niko noted the judges sentence as “five years served imprisonment on expiry of previous term”. 

To this end, he produced a copy of his prisoner sentencing report to that effect. The Court has also heard from the probation service as to their records.

Justice Nelson said significantly, the probation officer confirmed that the notation he made in the probation report sentencing diary was similar to Aperaamo Niko, that the sentence issued by the trial judge was “five years imprisonment per charge – serve concurrently but to serve cumulatively with his current term”. 

This is consistent with what was recorded by former Constable Niko.

“Despite counsel’s valiant efforts, the court has no reason to doubt the reliability of this evidence,” Justice Nelson said. 

The plaintiff's case relied on the two documents signed by the trial judge as the record sheets for the day and the warrant of commitment issued subsequently. 

The Senior Justice said if the plaintiff’s interpretation were correct, the judge would have written the word concurrent in the box as well. 

“He did not evince an intent that the five years was to be served cumulative to the defendant’s current imprisonment terms which the trial judge was well aware of from the documents before him. 

“This interpretation is supported by the evidence of the police orderly and the probation officer on duty that day that the sentence handed down by the trial judge was five years imprisonment each charge to be served concurrently but cumulatively to his existing term of imprisonment.”

Justice Nelson pointed out this would also accord with the fact that these incidents of burglary and theft were quite separate and distinct from the burglaries and thefts for which the plaintiff had already been sentenced a month earlier by Judge Vaai to a term of imprisonment. 

Justice Nelson added the case highlighted critical issues such as the importance of having functioning recording equipment in every court.

He said this would have easily resolved what occurred and the trial judge's sentencing remarks. 

He said it is essential for judges to check that to which they affix their signatures noting the trial judge failed to do this leading to his signing an incorrect warrant of committal an error trumped only by the fact there exists other independent evidence.\

Justice Nelson emphasised the importance of properly storing court files in case they are required in the future, if not in physical storage then at least electronically in an appropriate database.