Police v Ta'elega [2006] WSCA 2 (26 April 2006)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

THE POLICE
Appellant

AND

MAUGA LEO’O TA’ELEGA
Respondent

Coram: The Honourable Justice Ellis
The Honourable Justice Gallen
The Honourable Justice Salmon

Hearing: 26 April 2006

Counsel: Miss P Chang and Mr. L Petaia for the Appellant
Mr. R S To’ailoa for the Respondent

Judgment: 26 April 2006

JUDGEMENT OF THE COURT

[1] On the appellant’s application the appeal is dismissed.

[2] The respondent applies for costs and the appellant opposes.

[3] The appellant’s principal ground of appeal was to be that the trial Judge had made an error of Law in his summing up to the assessors. While prosecuting counsel had noted the direction the record of it has not been available. Counsel left the matter to the last moment to concede the appellant could not proceed in the absence of the record.

[4] Counsel for the respondent spent substantial time preparing for the appeal. Counsel’s time has been charged as $6,862.50

[5] Counsel has been unable to refer us to any case where on a prosecutor’s appeal against acquittal costs have been awarded to the accused respondent.

[6] We asked counsel to refer us to authority to make the award sought. Such a power exists for the Supreme Court: s.167 of the Criminal Procedure Act 1972. The power in civil cases is not in question: ss.56 and 61 of the Judicature Ordinance 1961.

There is no explicit statutory power to award costs in criminal appeals. However s.164R of the Criminal Procedure Act 1972 provides for supplemental powers of this Court.

(1) For the purpose of any appeal or application for leave to appeal against conviction or sentence, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, do all or any of the following things:

......

(2) In any such proceedings, the Court of Appeal may exercise in relation to the proceedings any other powers that may for the time being be exercised by the Court of Appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court.

[7] While this provision could be read to have application to appeals against conviction or sentence only we consider the situation could arise in any appeal requiring the Court to use these powers. In our opinion the words 'any appeal' include an appeal against acquittal and are not limited by the words 'or application for leave to appeal against conviction or sentence.' It follows that the Court can rely on its powers to award costs in the Judicial Ordinance 1961.

[8] In our view an award of costs against the appellant prosecutor must be rare and only in cases where justice plainly demands such. Here the acquittal was on a murder charge and the consequences of appeal could be serious indeed for the respondent.

[9] We bear in mind the scale of fees on legal aid and counsel’s involvement for 2 days. We make an award of costs against the appellant of $1200.

Honourable Justice Ellis

Honourable Justice Gallen

Honourable Justice Salmon

Solicitors

Attorney General’s Office, Apia, for the Appellant

Toa Law for the Respondent