Teo v Attorney-General [2001] WSCA 7 (23 November 2001)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

All TAITO GALU TEO
of Samatau, Matai
Appellant

AND

ATTORNEY-GENERAL
First Respondent

AND

MISA TELEFONI RETZLAFF
of Puipaa and Falelatai, Minister of Finance
and Deputy Prime Minister
Second Respondent

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

Hearing: 19 November 2001

Counsel: G P Barton QC and A'e'au Semi Epati for Appellant
Attorney-General (Brenda Heather-Latu),Raymond Schuster
and Damas Potoi for First Respondent
No appearance for Second Respondent

Judgement: 23 November 2001

JUDGEMENT OF THE COURT DELIVERED BY SIR IAN BARKER

On 4 September 2001, Sapolu CJ discharged the second respondent, Misa Telefoni Retzlaff, who had faced a private prosecution. The Chief Justice ordered the discharge because the first respondent, the Attorney-General, had issued a notice discontinuing the prosecution purporting to act under Article 41(2) of the Samoan Constitution.

The appellant now appeals against that decision. The second respondent had appeared in person in the Supreme Court. He was aware of this appeal, but advised the Court that he did not seek to appear at the hearing. This was a reasonable stance for him to take, given that legal argument in support of the Chief Justice's decision to discharge the second respondent, was being offered to the Court by the Attorney-General.

Facts

The facts are not in dispute. The following summary is largely taken from the synopsis of the appellant presented at the hearing:

In early March 2001, there was a General Election in Samoa, conducted under the Electoral Act 1963 (`the Act'). Under Part IX of the Act (relating to corrupt and illegal practices), s 96(3) creates the offence of bribery and s 97(2) creates the offence of treating. The second respondent was a candidate for election for the territorial constituency of Falelatai and Samatau. He was successful.

On 23 July 2001, the appellant laid two information’s in the District Court alleging that, on 23 January 2001, the second respondent had committed the offence of bribery and treating, contrary to sections 96(3) and 97(2) of the Act.

The charges were called on 15 August 2001 in the District Court at Apia, District Court Judge Vui C Nelson presiding. Because the judge is related to the defendant, he disqualified himself from hearing the matter and, acting under s 30 of the Criminal Procedure Act 1972, ordered the informations be transferred to the Supreme Court where they came up for mention on the 17 august 2001.

On the previous day, the Attorney-General had released a press statement which was widely broadcast both over the national radio channels and on television. The press statement referred to the present case and to other similar prosecutions that had been filed or contemplated. The gist of the statement was that, in the exercise of her discretion under Article 41(2) of the Constitution, the Attorney-General would discontinue all prosecutions which had been filed, or which might be filed, under the Act. The published statement indicated a unilateral decision made by the Attorney-General without obtaining leave, or recognising the need to obtain any such leave, of the Courts before which the said charges were filed or might be filed. There was no notice to, nor any consultation with the appellant as informant.

On that same day the Attorney-General filed an application in the Supreme Court, purporting to be made pursuant to the discretion vested in her under Article 41(2), namely the power to discontinue proceedings, in which an order was sought that the criminal proceedings against the second respondent should be permanently stayed on the grounds that "it is in the public interest that the prosecution be discontinued".

On 17 August 2001, when the application was called before the Supreme Court there was no appearance by, or on behalf of, the Attorney-General. The Chief Justice informed counsel for the appellant that an application had been filed by the Attorney-General to "stay" the proceedings. As the informant was not aware of that application, the Chief Justice directed that he should be served, and stood the matter down until 2 pm on that day to enable the Attorney-General to appear. At that stage, after discussion with counsel and with the second respondent, it was agreed that the appellant should have an opportunity to file by 31 August 2001 an application to the Court challenging the actions of the Attorney-General.

Accordingly the appellant applied to the Court, pursuant to Article 73(2) of the Constitution, for interpretation and determination of the effect of Article 41(2), namely:

9.1 Does the discretion of the Attorney-General to "discontinue" proceedings under Article 41(2) authorise the discontinuation of the private prosecution filed by the informant Aii Taito Galu Teo, against the defendant Misa Telefoni Retzlaff?

9.2 If so, should the Attorney-General be allowed to discontinue the private prosecution by informant Aii Taito Galu Teo, against defendant Misa Telefoni Retzlaff?

That application came on for hearing, as directed by the Chief Justice, on 4 September 2001.

On the same day, the Attorney-General had given a notice to the Court, to the informant (present appellant) and to the defendant (present second respondent) in the following terms:

PURSUANT to my powers under Article 41(2) of the Constitution of the Independent State of Samoa, I HEREBY DISCONTINUE the present proceedings in respect of criminal proceedings filed by All TAITO GALU TEO of Samatau, Matai the abovenamed Informant against MISA TELEFONI RETZLAFF of Puipaa and Falelatai, Honourable Deputy Prime :Minister and Minister of Finance in respect of two informations filed on 23 July 2001 in the District Court.

Decision of Supreme Court

On 4 September 2001 the Chief Justice ruled that the power of the Attorney-General under Article 41(2) to discontinue any proceedings for an offence alleged to have been committed extends and applies to a private prosecution and that, since the Attorney-General had filed a notice to discontinue the private prosecutions brought by the appellant, the second respondent was discharged. A written judgment, giving reasons for the decision, was delivered subsequently.

The reasoning of the Chief Justice may be summarised as follows:

(a) The Attorney-General's power under Article 41(2) is not restricted to any specific category of prosecutions: to construe the Article as exempting private prosecutions from the all embracing words of the Article would be to engraft onto that provision an exemption which does not appear on its face.

(b) Authorities in other common law jurisdictions show that this construction of Article 41(2) is in step with the jurisprudence in those jurisdictions where the power of the Attorney-General to discontinue a criminal prosecution extends to a private prosecution. In particular, the Chief Justice relied on comments by members of the House of Lords in Gouriet v Union of Post 0ffice Workers and others [1977] 3 All E.R. 70, 79, 88, 107 for the principle that the Attorney-General has a right to discontinue private prosecutions even in the absence of any statutory provision. He also referred to Canadian and Fiji authorities which must be read with care because of particular statutory provisions in those jurisdictions regarding private prosecutions.

(c) The Constitutional Convention Debates 1960 do not alter the conclusion on the express words of Article 41(2).

Issues

At the hearing in this Court, counsel agreed that the appeal raised three discrete questions, the last two of which had been rather telescoped in the appellant's application. These questions are:

(a) Does Article 41(2) of the Constitution give the Attorney-General the power to discontinue or stay private prosecutions?

(b) If the answer to (a) is "Yes", is the exercise of such power amenable to judicial scrutiny and, if so, on what basis?

(c) If the answer to (b) is "Yes", should the exercise of such power be scrutinised by the Court in the circumstances of this case?

Counsel for the appellant acknowledged that there was insufficient evidence to enable either the Supreme Court, or this Court on appeal, to consider question (c) above. The Chief Justice did not wish to hear counsel on question (b), although submissions on the point had been given to him. We consider that we should consider question (b) because of the importance of the issues raised: Counsel were in agreement that we should do so and the question was fully canvassed in argument.

Article 41(2) of the Constitution

Under the Samoa Constitution, the role of the Attorney-General is covered by Article 41, viz.:

41(1) The Head of State, acting on the advice of the Prime Minister, shall appoint an Attorney-General, who shall be a person qualified to be a Judge of the Supreme Court.

(2) The Attorney-General shall advise on legal matters referred to him by the Head of State, Cabinet, the Prime Minister or a Minister and shall have power exercisable in his discretion, to institute conduct or discontinue any proceedings for an offence alleged to have been committed.

(3) The Attorney-General shall have a right of audience in, and shall take precedence over any other person appearing before, any court or tribunal.

(4) The powers of the Attorney-General may be exercised by him in person or by officers subordinate to him, acting under and in accordance with his general or special instructions.

(5) The Attorney-General shall hold office for such term or terms and under such conditions as may be determined by the Head of State, acting on the advice of the Prime Minister.

In Samoa, the Attorney-General, whilst being the chief law officer and principal legal advisor of the State, is not a member of the Government. He or she is not a politician, but rather an officer of the Crown. The situation of the Samoan Attorney-General (whilst similar to that in other Pacific nations) differs from that of the Attorney-General in many common law jurisdictions where the Attorney-General is a member of the legislature and/or where the role of chief legal adviser to the Government is assumed by a Solicitor-General. In some jurisdictions, (e.g. New Zealand) the Solicitor-General is given by statute all the power of the Attorney-General and exercises such power in an independent and non-political way. Other Commonwealth jurisdictions have the Attorney-General as an official not a politician, as is the case in Samoa.

We are not persuaded that it matters whether the Attorney-General is a member of the legislature or is an appointed official. The holder of that office in Samoa has all the powers of an Attorney-General at common law unless those powers are restricted or amended by the Constitution or by statute. As well as the power to control prosecutions, private or public, the common law confers on the Attorney-General a wide range of disparate functions (e.g. guardian of charities, protector of children and mentally-disordered persons, being but two examples). The specific provisions of the Constitution do not deprive the people of Samoa from the benefit of having an Attorney-General able to exercise these useful functions in the public interest. Indeed Article 41(1), referring to the appointment of "an Attorney-General," indicates otherwise.

The sole question is whether Article 41(2) restricts the right of the Attorney-General to discontinue only public prosecutions, i.e. those brought by the Police, any organ of the State or by the Attorney-General herself. Like the Chief Justice, we see no possible justification for reading down the plain words of the Article in the manner contended by counsel for the appellant to exclude private prosecutions from the ambit of the Attorney-General's power. As the Chief Justice said, there is no restriction on the category of prosecutions: the words apply to "any proceedings for an offence alleged to have been committed". To engraft onto the clear words of the Constitution an exemption which does not appear on the face of the Constitution is quite unjustified.

We do not accept the argument that selected statements of Professor Davidson (a significant player in the Constitutional Convention debate) indicate a contrary interpretation of a clear constitutional provision. We do not consider that those statements assist the appellant. We query the justification for referring to these debates when a provision in the Constitution is clear and unequivocal. We acknowledge that constitutions are to be interpreted liberally and in accordance with the traditions of the society which they govern. But it is unacceptable to use the interpretative device of recourse to constitutional debates to argue that the Attorney-General may not discontinue private prosecutions under Article 41(2) because of some general statements affirming the right of citizens to bring private prosecutions.

Nor can we find convincing counsel's argument over the use of the word "discontinuance" in Article 41(2). The word might more appropriately have been "stay" since "discontinuance" is usually applied to the termination of civil proceedings by act of the party bringing them. However, the sense of the word "discontinuance" in the context of criminal proceedings is quite clear. Nor can we see that, in this context, the word "any" does not refer to both types of prosecution, private or public.

Common Law Position

Reference to overseas jurisdictions in this context can be confined to Gouriet because, in England, the Attorney-General was held to be able to halt private prosecutions absent an express power. In other jurisdictions, there were express powers of various kinds. We cite the passages from Gouriet referred to by the Chief Justice as sufficient authority for the proposition that, at common law, the Attorney-General can stay a private prosecution. Lord Wilberforce said at page 79:

"The individual ... who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority."

In the same case, Viscount Dilhorne said at p.88:

"The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons."

At p.107 Lord Edmund Davies said:

"[It] was urged that any change in the present law would open what were called 'floodgates' to a multiplicity of claims by busybodies. But it is difficult to see why such people should be more numerous or active than private prosecutors are at the present day, and they are few and far between though this fact may be attributable in part to the power of the Attorney-General to enter a nolle prosequi in any criminal case..."

And at p.116 Lord Fraser of Tullybelton said:

"[A] private prosecution is always subject to the control of the Attorney-General through his power to enter a nolle prosequi, or to call in any private prosecution and then offer no evidence. By exercise of these powers the Attorney-General can prevent the right of private prosecution being effectively exercised in any particular case."

Accordingly, we have no hesitation in concluding that the Chief Justice was correct in holding that the Attorney-General had the power to discontinue or stay the private prosecution brought by the appellant against the second respondent. The Chief Justice was therefore right to discharge the second respondent. The decision is based on both the clear words of the Constitution and on the Attorney-General's right at common law.

Right to Review

Since the second respondent has been discharged, the question may be academic whether the Attorney-General's power under Article 41(2) to discontinue the prosecution is reviewable. However, we consider that question because of:

(a) its constitutional importance

(b) the right of the appellant to seek a constitutional ruling from the Supreme Court under Article 73(2) of the Constitution which was exercised in this case.

The question of review ability of the decision to discontinue or stay a private prosecution was considered in two cases referred to by the Chief Justice in his judgment, i.e. Kostuch v Attorney-General for Alberta (1995) 128 D.L.R. (4^th) 440 (Court of Appeal of Alberta) and Director of Public Prosecutions v Matatulu and Anor (Fiji Court of Appeal, 12 February 1999). Although the question of the exercise of the right to stay was in a different constitutional framework in each case, we consider the cases are useful on the question of reviewability of the decision to stay a private prosecution.

Based on those authorities, we consider that the Attorney-General's decision to discontinue a private prosecution is reviewable but only on the grounds of "flagrant impropriety in the exercise of discretion". That was the basis for the Canadian decision in Kostuch (cit. supra) which was followed by the Fiji Court of Appeal. At p.449 of its decision, the Alberta Court of Appeal referred to the Attorney-General being required to have regard not only to the interests of the person laying the charges but also to the interests of the person charged and to the public interest, the latter being said to be the fundamental consideration.

In Amery v Solicitor-General [1987] NZCA 77; [1987] 2 NZLR 292, an attempt was made to review the Solicitor-General's stay of criminal proceedings pursuant to a statutory power. The New Zealand Court of Appeal did not feel the need to decide whether the actions of the Solicitor-General were reviewable, as Sinclair J in the High Court had found them to be. At p.391 the Court indicated a likelihood that such a decision could be reviewed but decided, on the facts, that the continuation of the prosecutions would amount to a clear abuse of process, because the charges were based on activities for which the accused had already been convicted.

To similar effect is the decision of the Full Court of the High Court of New Zealand in R v Barlow [1996] 2 NZLR 116, 121.

In England, a Divisional Court in R v Director of Public Prosecutions, ex parte C (1995) 1 Cr.App. 136, granted judicial review of the DPP's decision because she had not followed the Code issued pursuant to her statutory powers when making a decision to refuse to prosecute the applicant's husband for buggery.

In Maxwell v R, [1996] HCA 46; (1966) 70 ALJR 324, 342, it was said in the joint judgment of Gaudron and Gummow JJ in the High Court of Australia:

The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as “the prosecutional discretion'. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of the Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s.394A of the Act.

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is unusually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

The views quoted in the Australian case may be based on a different legal framework. We consider the other authorities more persuasive in Samoa. The Attorney-General must be answerable to judicial superintendence because of her constitutional position. Decisions from New Zealand, England and Canada support that proposition.

Accordingly, we hold that the Attorney-General's decision must be subject to review by the Court. We express no view as to what form that review might take. Samoa, unlike the jurisdictions referred to in the authorities cited, does not have a judicial review statute. The prerogative writs still remain: there may also be rights under the Constitution.

We observe that, if the grounds for exercising her discretion were as stated in the Attorney-General's press statements, it could be hard to see how she could be said to have acted "with flagrant impropriety".

In her statement, the Attorney-General referred to the specific provisions in the Act which allowed election petitions to be filed which could include allegations of bribery and the like, such as were encompassed in the private prosecution laid by the appellant. She considered that a proliferation of private prosecutions arising out of the election to be an abuse of the criminal process: that the criminal justice system could be used for a collateral purpose. She took into account also the fact that private prosecutions were being brought 5-6 months after the election during which time the Court had been heavily involved hearing numerous election petitions. Clearly she considered the public interest in having finality to the electoral process. The apparent stance of the Attorney-General was consistent with the comments of this Court in Va'ai v Lene and Toia (CA 6/96: 29 October 1996), although those comments were made in a different context:

There needs to be finality of the result of an election as soon as possible after it is held. Uncertainty about the result of the election for even one constituency may cause difficulties in relation to the proper working of the legislature. Barring further litigation after a final hearing in the Supreme Court avoids what may turn out to be a very long and drawn out process.

In the circumstances of the appellant having chosen not to bring an election petition, which could have had the effect of the Electoral Court considering the criminal allegation against the second respondent, it is hard to see how the Attorney-General's decision to discontinue the private prosecution in this case can be categorised as "flagrant impropriety" - which is the only ground available on which to review her decision. Following the Canadian authority, the Attorney-General appears to have considered the public interest as well as the interests of both parties to the prosecution.

Decision

For the reasons indicated, the appeal is dismissed and the discharge of the second respondent affirmed. The appellant still has the right to have the decision of the Attorney-General under Article 41(2) of the Constitution judicially reviewed by whatever procedural means are available. However, such review can only be on the grounds of "flagrant impropriety", the onus of proving which would rest on the appellant. On the information currently before this Court, establishment of such a ground seems unlikely.

Solicitors:

Semi Epati, Auckland, New Zealand, for Appellant
Attorney-General's Office, Apia, for First Respondent