Cook Islands Police v Arioka [2005] CKHC 12; HC Cr 31.2005 (30 August 2005)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 31/2005

BETWEEN

THE COOK ISLANDS POLICE
(Informant)

AND

JASON ARIOKA
(Defendant)

Counsel: A J Robinson, for Defendant /Applicant
C Amery, for Police/Respondent

Judgment: 30 August 2005 (New Zealand time)

APPLICATION

Application

[1] The defendant JASON ARIOKA applies for the information charging him with theft to be dismissed because of failure to disclose documents held by the Police relating to the prosecution.

[2] When the application was called before me on 21 April 2005 because of the important issue of law involved, I adjourned the hearing until the following day so that the Police could instruct the Crown Law Office.

[3] On 22 April 2005 Mr C Amery, Crown Counsel, appeared for the Police and I made orders for the filing of written submissions by counsel for the Police and written submissions in response by Mr Robinson, counsel for the defendant. I have received such further submissions and a joint memorandum of counsel and have decided the matter on the documents filed.

Circumstances

[4] On 22 October 2004 Mr Arioka was arrested and charged with a burglary which was alleged to have been committed on 12 October 2004. Mr A J Robinson was instructed to act for Mr Arioka.

[5] Mr Arioka was in custody until he was released on bail later on 22 October 2004 for next appearance on 28 October 2004. Mr Robinson asked the Police for disclosure but this had not been proved when the matter was called on 28 October 2004 and accordingly Mr Arioka was remanded without plea to 11 November 2004 to enable the Police time to provide disclosure.

[6] On 10 November 2004 Mr Robinson wrote to the Police after he had received a disclosure pack which contained two documents, a summery of evidence and exhibits and a copy of Mr Arioka’s statement. There was no summery of facts provided for the actual charge.

[7] On 11 November 2004, Mr Arioka was remanded without plea to 2 December 2004 to allow the Police time to provide disclosure.

[8] On 23 November 2004 Mr Robinson spoke with Sergeant Howard of the Police Prosecution Section, specifically seeking disclosure.

[9] On 23 December 2004, the matter was adjourned by the Registrar to 27 January 2005 as disclosure had not been provided by the Police.

[10] On 24 January 2005, Detective Sergeant Manavaikai advised Mr Robinson that prosecution section was dealing with the request for disclosure.

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

[12] On 1 February 2005, Mr Robinson received a telephone call from the prosecutions section and was asked what discovery he had. Mr Robinson advised that he had a summary of facts and 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 only. No further disclosure was provided.

[13] On 2 December 2004 Mr Arioka was again remanded without plea to 23 December 2004 to allow the Police time to provide disclosure.

[14] On 31 March 2005, a Justice of the Peace considered that the application to dismiss the theft charge was of such importance it should be decided by a High Court Judge and accordingly adjourned the application to the April sitting of the High Court. It was subsequently called before me for hearing on 21 April 2005.

Submissions

[15] Mr Robinson submitted that the charge against Mr Arioka should be dismissed on the basis that the ongoing failure of the Police to provide full discovery was a breach of his rights as guaranteed in Articles 64 and 65 of the Constitution of the Cook Islands (the Constitution). He submitted that the fundamental human rights and freedoms as provided under Article 64, including the right to equally before the law and protection of the law, recognize and import such fundamental principles as the right to a fair hearing and the right of an accused to know the nature of the allegations against him or her at an early stage after being charged.

[16] Mr Robinson submitted that the acceptance by the Crown that it had an obligation to provide pre-trial disclosure including witness statements, with endorsement of this by Greig CJ in Police v Chikami and Burgess CRN 608/2004 – CRN 619/2005 supported these propositions. He said that the Chikami case involved the fishing vessel Adelita that was arrested by the Cook Islands Government in late 2004 for allegedly fishing without a license in the Cook Islands EEZ. As at 1 April 2005 Mr Chikami and Mr Burgess had not entered a plea to the charges. Their counsel sought disclosure of witness statements from the Crown so as to be able to fully advise their clients. At a hearing of this issue by way of telephone conference before Greig CJ on 1 April 2005 the Crown accepted that it had an obligation to provide pre-trial disclosure including witness statements. That acceptance by the Crown meant that the Chief Justice did not have to make a ruling on the point. However the position reached by the parties was approved by the Chief Justice.

[17] Mr Robinson also referred to and relied upon the decision of Giles J in the New Zealand case Allen v Police [1999] 1 NZLR 356.

[18] In his submissions for the informant Mr Amery referred to the New Zealand law on criminal disclosure and contrasted the differences in the New Zealand and Cook Island statutes and criminal procedure.

[19] Mr. Amery said that the Crown accepted in the Chikami case that it had an obligation to provide pre-trial disclosure to the defence counsel in the form of statement and that in view of that agreement "it may be more difficult to now argue against the president set already in [that] case".

[20] Mr Amery said that the decision of Giles J in the Allen case "...could possibly be invoked and so the possibility of the current case being subject to an abuse of process action is quite high. However, against this authority is placed the sanction of local practice, as given statutory effect in s.99(e) of the Criminal Procedure Act 1908/1/."

[21] Mr Amery concluded by stating:

Finally, because of the consideration uncertainty surrounding trial dates in this jurisdiction it is submitted that the more sensible alternative is to stay within the present well-tried system rather than open up the possibility of much greater pressure on the Police to provide information which may not be always readily available.

Decision

[22] Over the past 20 years New Zealand Courts have increased the obligation of disclosure by the prosecution and have sanctioned compliance by dismissing charges in some cases.

[23] They have found the obligation arises from common law and statute.

[24] They have stated a common law duty to disclose material information to the defence between trial where this is necessary to satisfy the prosecution’s duty of fairness in the conduct of a trial – R v Quinn [1991] 3 NZLR 146 (CA).

[25] Statutory obligations of disclosure are created by provision of the Crimes Act 1908, the Evidence Act 1908 and the New Zealand Bill of Rights Act 1990.

[26] There is also a comprehensive obligation of disclosure of personal information relating to the defendant arising from provisions of the Official Information Act 1982 – Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385; R v Tamihere (No. 2) [1990] 6 CRNZ 653.

[27] The Cook Islands does not have legislation equivalent to the New Zealand Official Information Act but its Constitution has provisions similar to the New Zealand Bill of Rights Act.

[28] The pertinent provisions of the Cook Islands Constitution are:

64. (1) it is hereby recognized and declared that in the Cook Islands there exist, and shall continue to exist,... the following fundamental human rights and freedoms –

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

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

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

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

(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

...

(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.

[29] The cumulative effect of Articles 64 and 65 of the Constitution is to give every person in the Cook Islands the right to be treated fairly throughout the criminal law process from the moment of being detained, arrested or charged. This involves being informed promptly of the act or omission for which he is arrested, detained or charged and then, if he or his lawyer requests, being informed promptly of the information which the prosecuting authority has with relation to the charge. Knowledge of this information may be important to the defendant in deciding whether to seek and pursue release from detention on bail or by writ of habeas corpus, in deciding how to plead to the charge, in preparing for a hearing or in conducting his defence at a hearing.

[30] Because of the absence in the Cook Islands of statutory rights to be given personal information equivalent to those given to people in New Zealand by the New Zealand Official Information Act the ambit of disclosure is not as extensive in the Cook Islands as it is in New Zealand but extends at least to disclosure of all information which is relevant to guilt or innocence of a charge. This is primarily information about the suspected facts relating to the charge, whether they support or reduce the likelihood of the charge being proved. It would include information obtained from potential witnesses and information about objects such as weapons, injuries, clothing or fingerprints.

[31] The information may be in many forms including records of interviews, witness statements, investigation notes and reports and photographs.

[32] Performance of the obligation to provide such disclosure might be considered to be too onerous a burden to place on a busy police force. However in New Zealand despite initial concern, experience has been that the performance of the disclosure obligation can materially reduce the burden on Police and on prison authorities and the Courts, by causing earlier release from detention and earlier resolution of the prosecution either by discharge, plea of guilty to an appropriate charge or a shorter hearing focusing only on disputed issues. Of paramount importance however is that it contributes to fairness of the criminal law process for the benefit of all involved in it.

[33] The initial attitude of the Police in this matter, and this aspect was referred to by Mr Amery, was that the Police’s duty of disclosure was limited to the obligations provided in s99 of the Criminal Procedure Act 1980-81.

[34] The pertinent provisions of s 99 are:

99. Preliminary proceedings – (1) Where a trial of any person is to be heard by a Judge sitting with or without a jury...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 reasons why no written statement has been obtained:

(e) The written statements 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 a 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 statements 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 paragraph (f) and (g) of this subsection at which the prosecutor is present, the Justice shall consider all written statement tended for the purpose of the trial, hear any submissions either party wishes to make, and then decided whether the defendant should be committed for trial:

[35] In my s 99 deal solely with requirement of a "vetting" preliminary proceeding before trial and does not, and was not intended to, prescribe the limit of the prosecution obligation of disclosure. It is not an exclusive code of criminal disclosure.

Result

[36] I find that there has 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.

[37] The Court has power to sanction performance of the obligation of disclosure by dismissing a 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. (CR No 31/2005).

Costs

[38] Mr Robinson submitted that given the dilatory actions of the Police this was an appropriate case for modest costs to be awarded to Mr. Arioka.

[39] Mr Amery resisted the application for costs submitting that this was an important test case and each side should bear its own costs.

[40] Having regard to the effort to which Mr. Robinson took to obtain disclosure and then to make detailed submissions on an important and uncertain issue of law I consider that it is an appropriate case in which to distribute the costs involved and I therefore order that Jason Arioka be paid costs of $500.

C M Nicholson J

30 August 2005