Police v Faasolo [2001] WSCA 6 (23 November 2001)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of The Judicature Ordinance 1961
and The Criminal Procedure Act 1972

AND

IN THE MATTER of an appeal pursuant to Section 164L
of the Criminal Procedure Act 1972

BETWEEN

THE POLICE
Appellant

AND

MALEKO FAASOLO, PATI FAUPO,
LAINE LEOFO, FRANCES MAIAVA, TIFAGA PRITCHARD
Respondents

Coram: The Hon. Sir Ian Barker, (presiding)
The Rt. Hon. Sir Ian McKay
The Hon. Justice Robertson

Hearing: 20 November 2001

Counsel: Raymond Schuster and Damas Potoi for Appellant
Semi Leung Wai for Respondent Faupo
Atoa Peter Petaia for Respondents Faasolo and Pritchard
Jerry Brunt for Respondents Leofo and Maiava

Judgement: 23 November 2001

JUDGEMENT OF THE COURT DELIVERED BY ROBERTSON J

The five listed respondents faced a number of charges of theft as a servant with regard to their employment at Samoa Communications Ltd.

Laine Leofo was charged with three counts - on 26 June 2000, stealing 2 Christmas 1995 stamp sheets with a total value of $250; on 27 June 2000, stealing 2 Christmas 1995 stamps with a total value of $250.00; and on 28 June 2000, stealing 5 Christmas 1999 Millennium stamp sheets with a total value of$225.00.

Pati Faupo was charged with two counts - on 27 June 2000 stealing 2 Arts Festival stamp sheets with a total value of $200.00; and on 28 June 2000 stealing 2 Royal Air Force stamp sheets with a total value of $250.00.

Tifaga Pritchard was charged with two counts - on 26 June 2000 stealing 1 Christmas 1995 stamp sheet with a total value of $125.00; and on 28 June 2000 stealing 2 Christmas 1999 Millennium stamp sheets with a total value of $90.00.

Maleko Faasolo was charged with one count, on 28 June 2000, of stealing a Royal Air Force stamp sheet with a total value of $125.00.

Frances Maiava was charged with two counts - on 26 June 2000 of stealing 2 Christmas 1995 stamp sheets with a total value of $250.00; and also on 26 June of stealing 2 Christmas 1995 stamp sheet sets with a total value of $250.00.

They were tried together in the Supreme Court at Apia on 2, 4 and 6 October 2000. On 13 October all were acquitted on all charges, the Judge announcing that reasons were to be given.

On 27 October 2000 the appellant filed a notice of appeal against acquittal on the basis that:

(a) the decisions to acquit were wrong in law

(b) the decisions were against the weight of evidence.

This document, by an oversight, did not specifically refer to Frances Maiava except in the entituling. Although that may appear a minor error, we are of the view that it is fatal to the appellant's endeavour to appeal against her acquittals. Any process which seeks to challenge an acquittal of a person who has been tried for any offending must be strictly adhered to in all its facets. There was not a valid or complete notice of appeal within the 14-day time limit prescribed in Section 164Q of the Criminal Procedure Act 1972 in respect of Frances Maiava. She could not thereafter be in jeopardy of further action by the appellant. There was no valid appeal affecting her.

The record suggests that, apart from service on counsel a few days later, no further action occurred. It appears that the principal reason for this omission by the appellant was the non-delivery of the promised reasons for judgment. The appellant is entitled to considerable sympathy in these circumstances because the provision of reasons for a judgment is of fundamental importance: Connell v Auckland City Council [1977] 1 NZLR 630. The operation of the principle in a Judge-alone criminal trial is discussed in detail by the New Zealand Court of Appeal in R v Connell [1985] NZCA 34; [1985] 2 N.Z.L.R. 233. When delivering the judgment of the Court, Cooke J (as he then was) said:

Further, what the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge's failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition.

In practice, if the reasons are of some length it has sometimes been found fairest to announce the verdict at the outset. There can be no invariable rule; the Judge will wish to take into account the implications case by case. If necessary the reasons can be delivered later in writing, although preferably they should be given with the verdict.

Only in most exceptional cases, if ever, is it likely to be consistent with the judicial role in trying an indictment to give no reasons for the verdict. If the verdict is not guilty, however, occasionally a very brief statement of reasons is best. In other cases, whether the verdict is guilty or not guilty, it is obviously impossible to work out a formula covering all circumstances. But in general no more can be required than a statement of the ingredients of each charge and any their particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

The Judge at an early date should have provided brief reasons and exposed for all to see the assessments and analysis which he employed. It is of fundamental importance that this occur in a timely manner and in a concise but comprehensive way so that justice is not only done but manifestly seen to be done.

When, however, for whatever reason the delivery of reasons is delayed, an appellant (whether the State or an accused) must take steps to protect against any detriment flowing from that dereliction. Any appellant must be constantly aware of the obligations and responsibilities contained in the Court of Appeal Rules 1961 and the time limits which they include. Applications can always be made under Rule 7 for enlarging time, but an appellant who fails to protect their position against clear time-lines does so at their peril and with the consequences which necessarily flow.

On 11 October 2001 counsel for Pati Faupo filed an application in the Supreme Court for an order to strike out the appeal against acquittal upon the grounds -

1. The appellant filed with the Registrar the Notice of Appeal on or about 27 October 2000 but failed to lodge the Record with the Registrar within 6 weeks from the date thereof and therefore has not complied with Rule 32 of the Court of Appeal Rules 1961 ("the Rules").

2. The period of 6 weeks from the date the Notice of Appeal was filed has expired and pursuant to Rule 35 of the Rules the appeal is deemed to be abandoned.

3. He was prejudiced in his defence in that:

(a) The two grounds of appeal were vague and no particulars were provided such as to enable him to properly defend the appeal.

(b) There is no record.

(c) There is no written decision.

(d) He would not have adequate time to prepare his defence.

4. In the circumstances he will not be ensured of a fair trial and there will be a breach of his constitutional rights under Article 9 of the Constitution.

5. The onus is on the Appellant to diligently conduct the appeal.

Similar relief was sought on behalf of Laine Leofo and Frances Maiava in a motion filed on 18 October 2001 on the grounds –

1. They were prejudiced in their defence in that -

(a) There is no written decision

(b) They will not have adequate time to prepare their defence.

2. In the circumstances they will not be ensured of a fair trial and there will be a breach of their constitutional rights under Article 9 of the Constitution.

3. The onus is on the Appellant to diligently conduct the appeal.

Counsel for Tifaga Pritchard and Maleko Faasolo filed a motion on 18 October 2001 joining in the strike out applications on the same grounds

These matters came before the learned Chief Justice on 19 October 2001 and, in a ruling delivered on 22 October 2001, he ordered that the matters should be referred to this Court.

An incomplete (and, we are told from the Bar, in some respects an inaccurate) record was lodged on 16 October 2001 and served some days later on counsel who had acted at the original Supreme Court trial.

In the judgment issued contemporaneously in Etelagi and Ors, we have considered the provisions of the relevant Court of Appeal Rules. That case held that the combined effect of Rules 32 and 35 means that a failure to comply with the requirements of Rule 32 within 6 weeks from the date of filing of appeal results in the automatic abandonment of the appeal under Rule 35.

As well as the enlargement of time power referred to earlier, there is Rule 38 which permits non-compliance with rules to be waived. Whether it could cover the deeming provisions of Rule 35 is open to debate but, in a case where there was an acquittal more than a year ago, it would be unconscionable to permit the continuation of a process which challenges that conclusion. There are provisions to enable application to be made for extensions of time so there are inbuilt safeguards.

But inaction or omission whether through neglect, oversight or mistake which persists for this length of time cannot be excused.

Accordingly, without having to consider any constitutional ramifications, we are satisfied that the four appeals which were validly commenced were deemed to have been abandoned in December 2000 when no appeal record was lodged. There is no jurisdiction for this Court to hear the appeals which are accordingly dismissed.

Solicitors:
Attorney-General's Office, Apia, for Appellant
Leung Wai Law Firm, Apia, for Respondent Faupo
Richard's Law Firm, Apia, for Respondents Faasolo and Pritchard
Toailoa Law Firm, Apia, for Respondents Leofo and Maiava