Cook Islands Police v Arioka [2006] CKCA 6; CA 15 of 2005 (9 February 2006)

IN THE COURT OF APPEAL OF THE COOK ISLANDS

CA 15/05
CRN 31/05

BETWEEN

THE COOK ISLANDS POLICE
Appellant

AND

JASON ARIOKA
Respondent

Coram: Williams CJ
Barker JA
Smellie JA

Hearing: 11 November 2005

Counsel: Mr T Elikana for Appellant
Mr A Robinson for Respondent

Judgment: 9^th February 2006

JUDGMENT OF THE COURT

INTRODUCTION - NATURE OF THE APPEAL

[1] This is a Crown appeal against a judgment of Nicholson J in which he took the exceptional step of dismissing a theft charge against the Respondent on the ground of abuse of process. The decision was taken because of the failure of the Police to disclose to the defendant's solicitor various documents said to be necessary to enable a decision to be made as to what plea to enter.

[2] The Respondent was initially arrested and charged on 22 October 2004 with the burglary of five outers of cigarettes. The offences were alleged to have been committed on 12 October 2004. The burglary charge was subsequently withdrawn and a substitute charge of theft was laid.

[3] From the time that the Respondent was charged until March 2005 his solicitor repeatedly sought full disclosure of all documents said to be relevant to the charge. The police had provided the charge sheet, a signed statement of the Respondent, and a two and a half page summary listing material witnesses and outlining the information each witness would provide. Throughout this period the Respondent did not enter a plea.

[4] Counsel for the Respondent then made an application for dismissal of the charge on the ground of abuse of process. A hearing commenced on 21 April 2005 and was subsequently adjourned to the following day so that the Crown could instruct counsel. After receiving and considering written submissions, Nicholson J upheld the application to dismiss in a judgment dated 30 August 2005.

[5] The Police made an application for leave to appeal on 6 October 2005 and on 10 October 2005 filed an Application for Enlargement of Time to Appeal.

[6] The appeal was heard by this Court on 11 November 2005. The Respondent submitted that the Notice of Appeal was out of time. The Court does not propose to deal in detail with that contention. There is some uncertainty as to when the Appellant actually received a legible copy of the decision. Given the importance of determining the question raised in this case, the Court exercises its discretion to enlarge the time for the appeal under Rules 17 and 18 of the Court of Appeal Rules.

[7] In this case this Court is called upon to consider the correctness of the decision of Nicholson J and, to the extent necessary, express its views on the right of criminal defendants in the Cook Islands to full disclosure from the Crown prior to entry of a plea.

FACTUAL AND PROCEDURAL BACKGROUND

[8] There is little or no dispute as to the essential facts. They were set out in the decision of Nicholson J and have also been helpfully summarized by the parties in their written submissions before this Court.

[9] On 22 October 2004 Mr Arioka was arrested and charged with a burglary of five outers of cigarettes which was alleged to have been committed on 12 October 2004.

[10] Mr Arioka was in custody until he was released on bail later on 22 October 2004 for next appearance on 28 October 2004. When the matter was called on 28 October 2004 Mr Arioka was remanded without plea to 11 November 2004 to enable the Police time to provide disclosure of documents requested by the defence.

[11] On 10 November 2004 Respondent's solicitor, Mr Robinson, wrote to the Police after he had received a disclosure pack which contained two documents, a summary of evidence and exhibits and a copy of Mr Arioka's signed statement. Mr Arioka's statement confirmed his identity and his awareness as to why the police wished to talk to him. In the statement he acknowledged that on the night in question he went with a friend to the Meatco premises and took the five cartons of cigarettes. He then drove to Mr Francis Dash wood's house and left the cigarettes there. In particular Mr Arioka responded to questions from the police as follows:

Q. What have you got to say?

R. I took those cartons of cigarettes.

...

Q. When you picked up the cigarettes at the back of the Meatco, did you know that these are stolen stuff?

R. Yeah.

...

Q. Is there anything that you weren't comfortable on how the interview was conducted?

R. No.

Mr Arioka signed the statement and noted "I've read my statement and it is true and correct." On the face of it, it was an unqualified confession that he had stolen the cigarettes.

[12] On 11 November 2004, Mr Arioka was remanded without plea to 2 December 2004. On 23 November 2004 Mr Robinson spoke with Sergeant Howard of the Police Prosecutions Section, specifically seeking disclosure of further documents. On 2 December 2004 Mr Arioka was once again remanded without plea to 23 December 2004 to allow the Police further time to provide disclosure. On 23 December 2004, the matter was adjourned by the Registrar to 27 January 2005 as further disclosure had not been provided by the Police. On 24 January 2005, Detective Sergeant Manavaikai advised Mr Robinson that the prosecution section was dealing with the request for disclosure.

[13] On 27 January 2005, on the application of the Police, the burglary charge was withdrawn and the substitute charge of theft was laid. The alleged facts of the theft charge arose from the same matters as the original burglary charge.

[14] On 1 February 2005, Mr Robinson received a telephone call from the prosecutions section enquiring as to what discovery he had received. Mr Robinson advised that he had a summary of evidence and a copy of Mr Arioka's statement. He requested a summary of facts for the theft charge, the statements of the witnesses named on the summary of evidence page which the prosecutor had read out and "all other relevant disclosure". About 30 minutes later, the Police delivered a new summary of facts. No further documents were provided.

[15] On 24 February 2005 the matter came before a Justice of the Peace. The Police advised that they were still making enquiries and the file was under review. Counsel for the Respondent advised that, if no further disclosure was provided by the time of the next call, he would make an application to have the case dismissed. The Respondent was remanded without plea to 31 March 2005.

[16] On 31 March 2005, the Respondent applied to dismiss the theft charge on grounds of abuse of process, want of prosecution and breach of constitutional rights. Justice of the Peace Kenning adjourned the matter to be heard before a High Court Judge.

JUDGMENT OF NICHOLSON J

[17] Nicholson J noted that there is a common law duty to disclose material information to the defence before trial and that the Constitution of the Cook Islands contained provisions similar to the New Zealand Bill of Rights Act 1990 providing for the right to a fair trial. Fairness of the criminal law process required disclosure of information relevant to guilt or innocence. Nicholson J rejected the Police submission that the obligation of disclosure was limited to the obligations provided in s. 99 of the Criminal Procedure Act 1980-81. The judge found that the s. 99 provisions dealt solely with the requirement of a "vetting" preliminary proceeding before trial and were not an exclusive code of criminal disclosure.

[18] Nicholson J held that there had been a failure by the Police to perform its obligation to disclose relevant information held by it relating to the charge made against Mr Arioka despite early and repeated request for such disclosure.

[19] His reasoning was captured in his conclusion that:

"The Court has power to sanction performance of the obligation of disclosure by dismissing the charge on the ground of abuse of process. Having regard to the stated circumstances I consider that it is appropriate to exercise the power of sanction in this case. I accordingly discharge Mr Arioka on the charge of theft of cigarettes."

THE RELEVANT PROVISIONS OF THE CONSTITUTION

[20] In this Court Mr Robinson submitted that the ongoing failure of the Appellant to release relevant information to the Respondent in this case was an abuse of process and contrary to the Constitution. Therefore Nicholson J had correctly concluded that this was an appropriate case to dismiss the charge against the Respondent.

[21] Articles 64 and 65 of the Constitution provide:

"64(1) It is hereby recognized and declared that in the Cook Islands there exist, and shall continue to exist, without discrimination by reason of race, national origin, colour, religion, opinion, belief or sex, the following fundamental human rights and freedoms –

(a) The right of the individual to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with law;

(b) The right of the individual to equality before the law and to the protection of the law;

(c) The right of the individual to own property and the right not to be deprived thereof except in accordance with law:

Provided that nothing in this paragraph or in Article 40 of this Constitution shall be construed as limiting the power of Parliament to prohibit or restrict by Act the alienation of Native land (as defined in section 2(1) of the Cook Islands Act 1915 of the Parliament of New Zealand);

(d) Freedom of thought, conscience, and religion;

(e) Freedom of speech and expression;

(f) Freedom of peaceful assembly and association.

(2) It is hereby recognised and declared that every person has duties to others, and accordingly is subject to the exercise of his rights and freedoms to such limitations as are imposed, by any enactment or rule of law for the time being in force, for protecting the rights and freedoms of others or in the interests of public safety, order, or morals, the general welfare, or the security of the Cook Islands.

65(1) Subject to subclause (2) of this Article and to subclause (2) of Article 64 hereof, every enactment shall be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms recognised and declared by subclause (1) of Article 64 hereof, and in particular no enactment shall be construed or applied so as to-

(a) Authorise or effect the arbitrary detention, imprisonment, or exile of any person; or

(b) Impose or authorise the imposition on any person of cruel and unusual treatment or punishment; or

(c) Deprive any person who is arrested or detained-

(i) Of the right to be informed promptly of the act or omission for which he is arrested or detained, unless it is impracticable to do so or unless the reason for the arrest or detention is obvious in the circumstances; or

(ii) Of the right, wherever practicable to retain and instruct a barrister or solicitor without delay; or

(iii) Of the right to apply, by himself or by any other person on his behalf, for a writ of habeas corpus for the determination of the validity of his detention, and to be released if his detention is not lawful; or

(d) Deprive any person to the right to a fair hearing, in accordance with the principles of fundamental justice, for the determination of his rights and obligations before any tribunal or authority having a duty to act judicially; or

(e) Deprive any person charged with an offence of the right to be presumed innocent until he is proved guilty according to law in a fair and public hearing by an independent and impartial tribunal; or

(f) Deprive any person charged with an offence of the right to reasonable bail, except for just cause;

(g) Authorise the conviction of any person of any offence except for the breach of a law in force at the time of the act or omission; or

(h) Authorise the imposition on any person convicted of any offence of a penalty heavier than that which might have been imposed under the law in force at the time of the commission of the offence.

(2) Every enactment, and every provision thereof shall be deemed remedial, whether its immediate purpose is to direct the doing of anything that the enacting authority deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment [of the object] of the enactment or provision thereof according to its true intent, meaning and spirit.

(3) In this Article the term "enactment" includes any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom, being an Act in force in the Cook Islands, and any regulation, rule, order, or other instrument made thereunder."

(Underlining added)

[22] The Respondent submitted that Articles 65(1)(c)(i), 65(c)(ii) and 65(1)(d) of the Constitution implicitly recognised the right to adequate time and facilities to prepare a defence and this supported the claimed right to pre-trial disclosure of documents. The Court does not agree as to the first two Articles. Article 65(1)(c) concerns the right of a person to be free from arbitrary arrest and has no bearing on the question of pre-trial discovery in criminal proceedings. Article 65(1)(c)(ii) deals with the right to counsel. The relevant provision of the Constitution is Article 65(1)(d) which recognises the right to a fair hearing. But in this case the "hearing" stage of the proceedings had not been reached because no plea had been entered.

RELEVANT NZ CASES AND ABUSE OF PROCESS PRINCIPLES

[23] The Respondent laid much emphasis on cases decided pursuant to the NZ Bill of Rights Act 1990. Many of them, however, deal with disclosure in the context of a fully defended charge - see R v Nimmo [1990] 3 NZLR 342 and Allen v Police (1998) 16 CRNZ.

[24] As Fisher J pointed out in Simpson v MAF (1996) 3 HRNZ 342 at 354:

"...at the time of detention s 23(1)(a) ... merely requires the detainee be told the reason [for detention]. At a later stage when a person is charged, s 24(a) envisages that the person will be informed ... promptly and in detail the nature and cause of the charge ... Then at a third stage, when the defended prosecution hearing itself is in view, ss 24 and 25 implicitly require full pre-trial criminal disclosure. It would be inconsistent with that scheme to require disclosure in the fullest sense at interview stage."

(Underlining added)

And we would add "or before a plea is entered".

[25] Furthermore in a series of cases the Court of Appeal in New Zealand (R v Takiari CA 273/99, 22 July 1999; R v Gutuama CA 275/01, 13 December 2001 and R v Beckham CA 351/01, 19 March 2002) has held that only a serious risk of miscarriage of justice, because of non-disclosure before trial, can justify dismissal for abuse of process.

[26] Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 (C.A.) summarised the applicable principles:

"The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example through multiple or successive proceedings) as to cause vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

[27] Recently, in Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62, the Court of Appeal re-affirmed the principles in Moevao set out above. McGrath J stated:

"The power to stay is not available for disciplinary purposes nor to reflect a Court's view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on the accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases."

DISCUSSION

[28] In the Cook Islands the legislature has enacted the Criminal Procedure Act 1980-81. It came into force at the same time as Part IVA of the Constitution.

[29] Section 99(1)(a) and 1(c)(iii) of the Criminal Procedure Act, provides for some pre-trial document disclosure. Counsel for the Appellant acknowledged from the bar that if a plea of "not guilty" is entered then disclosure follows automatically under section 99 of the Criminal Procedure Act 1980-1.

SECTION 99 CRIMINAL PROCEDURE ACT 1980-81

[30] The duty to provide pre-trial disclosure under the Constitution is to be interpreted against the backdrop of the legislation enacted in the Cook Islands. Section 99 of the Criminal Procedure Act 1980-81 provides:

"99. Preliminary proceedings: (1) Where a trial of any person is to be heard by a Judge sitting with or without a jury pursuant to the provisions of either section 14 or section 16 or section 17 of the Judicature Act 1980-1981 the following procedure shall apply:

(a) There shall be tendered to the Court and to the defendant or his counsel or solicitor written statements of each witness to be called by the prosecutor at the trial setting out the evidence to be adduced thereat by that witness:

Provided that where no written statement has been obtained from a witness, the prosecutor shall tender in lieu thereof a summary in writing of that evidence to be adduced by that witness at the trial and state the reason why no written statement has been obtained.

(b) The written statement tendered under this section shall be-

(i) Signed by the person who made it; and

(ii) Contain a declaration made pursuant to section 653 of the Cook Islands Act 1915 by that person to the effect that it is true to the best of his knowledge and belief:

(c) Each written statement tendered under this subsection shall

(i) If the statement is made by a person under the age of 21 years, given his age; and

(ii) If it is made by a person who can not read it, be read to him before he signs it and be accompanied by a declaration by the person who read the statement to the effect that it was so read; and

(iii) If it refers to any other document as an exhibit, be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect the document or a copy thereof:

(d) Where a witness is a Cook Islander, the written statement tendered under this section shall be in both the English and Maori language

Provided that a defendant who is a Cook Islander may require all statements to be written in both the aforesaid languages:

(e) The written statement shall be tendered to the parties as required by this section not later than 28 days before the date fixed for trial:

(f) Where the defendant is represented by counsel or solicitor

(i) He, if he so desires, may, not later than 14 days before the date of trial, notify the Registrar that he requires the written statement to be considered by a Justice for the purpose of a hearing in accordance with the provisions of paragraph (h) of this subsection:

(ii) If no such notification is given as herein provided, the defendant shall be deemed to have consented to his committal for trial and the defendant shall be so committed:

(g) Where the defendant is not represented by counsel or a solicitor, he shall, not later than 14 days before the date of the trial, be brought before a Justice, who shall conduct a hearing in accordance with the provisions of paragraph (h) of this subsection:

(h) At the hearing pursuant to paragraphs (f) and (g) of this subsection at which the prosecutor is present, the Justice shall consider all written statements tendered for the purpose of the trial hear any submissions either party wishes to make, and then decide whether the defendant should be committed for trial:

(i) If the Justice decides that the defendant should be committed for trial, he shall by record on the information direct accordingly, and the defendant shall be so committed:

(j) If the Justice decides that the defendant should not be committed for trial, he shall forthwith discharge the defendant.

(2) In any criminal proceedings a written statement by any person tendered pursuant to paragraph (a) of subsection (1) of this section shall, if the defendant consents, be admissible as evidence to the like extent as oral to the like effect by that person."

(Underlining added)

[31] In the present case this s. 99 of the Criminal Proceedings Act was never triggered. The Respondent had not entered a plea and therefore the case had not progressed to the point where a date for hearing had been set down. The hearing, to borrow the words of Fisher J in Simpson v MAF was not "in view".

[32] Taking into account the Court's finding that the process of limited disclosure of documents contemplated by s. 99 of the Criminal Procedure Act had not been triggered it is necessary to consider whether or not any additional obligation under the common law duty of disclosure was breached in such a way that there was here an abuse of process or the Respondent was denied the right to a fair hearing. The argument for the Respondent was that there was a right to full disclosure from the very moment he was charged.

[33] The Court accepts that the /constitutional right to a fair hearing and abuse of process principles create a duty to disclose information material to the preparation and presentation of the defendant's case. The Court does not accept, however, especially in light of the specific provisions of s. 99 of the Criminal Procedure Act, that a criminal defendant should be furnished with the totality of available documentary and other evidence at the stage of the proceedings where the Respondent is yet to enter a plea. This would amount to reading into the Constitution an absolute right to full pre-trial discovery as if it was a civil case.

[34] The obligation of further pre-trial disclosure beyond the provisions of s. 99 of the Criminal Procedure Act must be assessed on a case-by-case basis. Failure to disclose documents may in some cases give rise to a breach of the Constitution. Before that can occur, however, there must have been an actual miscarriage of justice or a real risk of miscarriage of justice.

[35] In this respect, Section 61 of the Criminal Procedure Act 1980-1981 is relevant. It provides:

"61. Pleas on defendant being charged: - (1) Before any charge is gone into, the defendant shall be called by name and the charge shall be read to him and when the Court is satisfied he understands it he shall be asked how he pleads.

(2) He may plead either guilty or not guilty or such special pleas as are hereinafter provided for.

(3) If the defendant willfully refuses to plead or will not answer directly the Court may enter a plea of not guilty.

(4) If he pleads guilty, and the Court is satisfied he understands the nature and consequences of his plea, the Court may convict him or deal with him in any other manner authorized by law.

(5) if a plea of guilty is not entered, the trial shall be conducted as hereinafter provided."

[36] In the present case the Respondent had not entered a plea. Section 61 provides that a plea should be entered once the Court is satisfied that the defendant understands the charge. This was clearly the case here. The Justices should have required a plea to be entered. If defence counsel advised the accused against doing so, the Justices should have entered a plea of not guilty under s 61(3).

[37] In the circumstances of this case, it is the Court's view that the Respondent was provided with information clearly sufficient for him to decide what plea to enter. Even without the benefit of the measure of disclosure afforded in this case, an accused person knows, (assuming capacity to plead exists), whether what is alleged against him or her is true. If there was any doubt a not guilty plea could have been entered on the basis that it might be changed later to a guilty plea. The suggestion from counsel for the Appellant that this might deprive the accused of the chance to obtain a lesser sentence for an early guilty plea does not impress us. The discount for an early plea rests on two considerations. First, it shows contrition in the form of acknowledgement of wrongdoing at the first reasonable opportunity. Secondly, the State is relieved of the expense and effort of further investigation and/or preparation. An accused who elects to put the Crown to proof and wait to see how strong the prosecution case is, inevitably forfeits the discount advantage.

[38] Although it is not central to our decision it is also worth noting in this case that there does not appear to have been any utility in the documents which the Respondent's solicitor insisted upon receiving prior to entering a plea. The signed statement of the Respondent amounted to a confession.

[39] There was no prejudice suffered by the Respondent by not having available, at the stage prior to entering a plea, the documents requested by his solicitor.

[40] Given the stage of the proceedings and the evidence that had been made available to the Respondent, the Court finds in the circumstances there was no miscarriage of justice or serious risk of a miscarriage of justice so as to breach the right to a fair hearing under the Constitution.

[41] As set out in the extracts from the New Zealand authorities cited above, the remedy of a stay or dismissal for abuse of process should only be used in extreme cases. Such an order should not be made for purely disciplinary reasons. The order is to ensure a fair trial with dismissal only being resorted to in exceptional cases where remedial measure could not ensure a fair trial.

DECISION

[42] The Court finds that the circumstances of this case did not fall into that category of exceptional cases where the step of dismissing the proceeding was appropriate on abuse of process principles or on the ground of a breach of the Respondent's right to a fair trial.

[43] The appeal is upheld. The order dismissing the information against the Respondent is set aside as is the order against the Appellant for costs. If costs have been paid to the Respondent, they must be refunded to the Police. As this case is in the nature of a test case there will be no award of costs in this Court.

Williams CJ
Barker JA
Smellie JA