Attorney-General v Fiatagata [1994] WSCA 1; 04 1993 (21 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA

HELD AT APIA

C.A. 4/93

BETWEEN:

THE ATTORNEY-GENERAL
Appellant

AND:

DANNY FIATAGATA
TIPASA MAISA AND HARRY CAIN
Respondents

Coram: The Rt. Hon. Sir Robin Cooke, (President);
The Rt Hon. Sir Gordon Bisson;
The Hon. Sir John Jeffries

Hearing: 21 March 1994
Judgment: 21 March 1994

Counsel: M.B. Edwards for Appellant - R.S. Toailoa for Respondents

JUDGMENT OF THE COURT
DELIVERED BY SIR ROBIN COOKE

This appeal relates to Article 9(4)(a) of the Constitution of the Independent State of Western Samoa which provides:

Right to a fair trial

9. .....

(4) Every person charged with an offence has the following minimum rights:

(a) To be informed promptly, in a language which he understands and in detail of the nature, and cause of the accusation against him:

We commence by substituting as agreed the Attorney-General for the Police as appellant. The matter has a complicated history but the appeal from the Chief Justice's decision of 27 April 1993, supplemented on 9 August 1993, raises only a short question as follows.

An information sworn on 11 February 1992 charged the first two present respondents with causing actual bodily harm to Toai Filimoeatu on 26 January 1992 and an information sworn on 2 March 1992 charged the present third respondent with causing actual bodily harm to Faleata Maselusi on 9 February 1992. Some 13 months later, after various adjournments and the case having come to the attention of the Attorney-General's office, substituted charges were laid. The first two respondents were charged with causing grievous bodily harm to Toai Filimoeatu on 26 January 1992 and the third respondent was charged with causing grievous bodily harm to Faleata Maselusi on 9 February 1992. Those substituted charges would carry much heavier maximum penalties.

It is not necessary to endeavour to explore the causes of the delay, although some delay in furnishing witness statements to the defence appears to have been one contributing factor.

The important point, fully accepted by Mr. Edwards in his clear and candid argument for the Attorney-General, is that the substituted charges are based on exactly the same circumstances and conduct as the original charges. They represent an appreciation by the Attorney-General's office of the seriousness of the matter different from that formed by the Police. There have been no supervening circumstances; no new relevant fact has occurred. That distinguishes such cases as the death of a victim after assault charges have been laid.

The essence of Mr. Edwards' argument is that 'charged with an offence,' under Art 9(4) must be related to each separate offence formally charged. Once a specific offence has been charged, it is accepted that the person has a right to be informed in relation to it as required by para. (a)

Any abuse of procedure is to be dealt with by other remedies such as invoking the reasonable time provisions of Art. 9(1) or the abuse of process jurisdiction inherent in the Court.

Mr Edwards rightly concedes, however, that if Art 9(4)(a), fairly and liberally construed, provides a remedy, the existence of other remedies is immaterial. He accepts that the constitutional rights are to be interpreted generously and purposively, as held by the Privy Council in the judgment delivered by Lord Wilberforce in Minister of Home Affairs v Fisher [1990] A.C 319, and by this Court in Attorney-General v Saipaia Olomalu (1984) 14 V.U. W.L.R. 275; and there is abundant other authority in various jurisdictions to the same effect. But Mr Edwards contends that this would not justify what he calls a misinterpretation or what might otherwise be described as an unduly loose interpretation of Art 9(49(a). Counsel have cited a number of cases, but none deals with the bearing of such a provision as Art 9(4)(a) on a situation such as the present. We therefore refrain from complicating this judgment by reviewing the cases cited.

Literally and strictly, para. (a) of Art. 9(4) could be interpreted as argued for the appellant. Applying the generous and purposive approach, however, we consider first that a person is charged when Court proceedings are served on him: there may be other situations amounting to charging, but that is sufficient for the purposes of the present case, the respondents having been served with the original information soon after they were laid. Secondly, we hold that the charge is of an offence when the defendant is notified by it that particular conduct of his in particular circumstances is alleged to have constituted an offence.

With reasonable speed thereafter - that is to say promptly - he is entitled to be informed of the matters specified in para. (a). The Chief Justice said of 'promptly’:

"... the word "promptly" must be seen "as promptly as it is reasonable in the circumstances". This gives the word "promptly" the flexibility required to conform with the generous and purposive approach to be adopted in interpreting the fundamental rights and freedoms provisions of the Constitution."

We accept that. It is clear of course that a delay of 13 months would not satisfy this requirement.

The defendant is entitled to be informed in detail of the nature and cause of the accusation against him. These words must extend to the alleged gravity of his conduct. Once the prosecution has specified the gravity, as was done here by the reference to actual bodily harm, substituted charges are no doubt still possible. but in our view it would violate the spirit of Art. 9(4)(a) and be contrary to the generous and purposive approach to allow a substitution that could not fairly be described as prompt.

In substance, therefore, we agree with the conclusions of the Chief Justice. The appeal must be dismissed. We repeat that it relates only to the substituted grievous bodily harm charges. The original in formations, and we understand some other charges remain to be determined. To give effect to Art 4(2) of the Constitution, the appropriate order is to dismiss the substituted grievous bodily harm charges, without prejudice of course to the rights of the prosecution to proceed on the other charges. The Chief Justice did not expressly make such an order. We now make one, thus confirming the effect of his decision.