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Samoa Law Society v Ponifasio [2014] WSCA 9 (7 November 2014)

COURT OF APPEAL OF SAMOA
Samoa Law Society v Ponifasio [2014] WSCA 9


Case name:
Samoa Law Society v Ponifasio


Citation:


Decision date:
7 November 2014


Parties:
SAMOA LAW SOCIETY (applicant) v TUALA AUIMATAGI IOSEFO PONIFASIO (respondent)


Hearing date(s):
5 November 2014


File number(s):
CA 22/13


Jurisdiction:
Civil


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
His Honour Justice Fisher
His Honour Justice Hammond
His Honour Justice Vaai


On appeal from:
Supreme Court of Samoa


Order:
- Appeal is allowed with the following orders:
  • a. The stay of the disciplinary proceedings brought by the appellant is set aside.
  • b. There will be a formal order requiring the appellant to pursue the disciplinary proceedings with expedition.
  • c. The proceedings are remitted to the Supreme Court and will stand adjourned there for the purpose of reviewing if necessary:
i. The expedition with which the disciplinary proceedings have been pursued; and
ii. The adequacy of the reduction in any penalty imposed by the Law Society Disciplinary Tribunal in recognition of the breach of the respondent’s right to a hearing within a reasonable time.
- No order as to costs in favour of either party in either the Supreme Court or this Court.


Representation:
S Leung Wai for appellant
B Squire QC and S Ponifasio for respondent


Catchwords:
disciplinary proceedings – constitutional delay


Words and phrases:


Legislation cited:
The Constitution of the Independent State of Samoa 1960, Article 9
Law Practitioners Act 1976, ss. 32(1) and (3)
Crimes Act 2013, ss.162, 165(a)


Cases cited:
R v Morin (1992) 71 CCC (3d), [1992] 1 SCR 771
Attorney General’s reference (No.2 of 2001) [2004] 2 AC 72
Williams v R [2009] NZSC 41; [2009] 2 NZLR 750.
Puni v Attorney General [2012] WSCA 12
Woodroffe v Samoa Law Society [2012] WSCA 15
Samoa Law Society v Ponifasio CA9/13, 15 November 2013
Laws v Australia Broadcasting Tribunal (1990) 170 CLR 935
Chow v Canterbury District Law Society [2005] NZCA313
Z v Dental Complaints Assessment Committee [2008] NZSC 55


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


FILE NO: CA 22/13


BETWEEN


SAMOA LAW SOCIETY a body duly established by s.16 of the Law Practitioners Act 1976
Appellant


A N D


TUALA AUIMATAGI IOSEFO PONIFASIO
Respondent


Coram: Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Vaai


Counsel: S Leung Wai for appellant

B Squire QC and S Ponifasio for respondent


Hearing: 5 November 2014
Judgment: 7 November 2014


JUDGMENT OF THE COURT

Introduction

  1. The appellant Law Society appeals against the judgment of Malosi J granting the respondent a permanent stay of the disciplinary proceedings brought against him by the Law Society.
  2. This is the third time that the matter has been before this Court. On 31 May 2012 we found that the Tribunal which the Law Society had convened to hear the disciplinary proceedings lacked independence from the Council which was effectively the prosecutor in the same matter. On 15 November 2013 we reduced costs against the Law Society from $50,000 to $7,500 following a Supreme Court decision that the Law Society’s interim suspension order lacked validity.
  3. The current appeal concerns the lapse of time since the client’s complaint against the respondent was first made to the Law Society. The question is whether there has been a breach of the respondent’s constitutional right to a hearing within a reasonable time and, if so, what remedy would be appropriate.

Factual background

  1. We repeat Malosi J’s helpful summary of the background with minor changes as follows:

Judgment in the Supreme Court

  1. In a careful judgment Malosi J noted that a period of three years 8 months had passed between Law Society receipt of the original complaint on 10 February 2010 and the respondent’s issue of the current proceedings on 23 May 2013; that although another five months had passed by the time the proceedings came on for hearing in the Supreme Court, the Law Society was still unable to advise when a disciplinary Tribunal could be convened; that this was due to ongoing difficulties in identifying Tribunal members who would not have a conflict of interest; that although the respondent had sought adjournments of the disciplinary proceedings on two occasions, these did not contribute to the delay because on each occasion the adjournments were declined and the hearings adjourned for other reasons; that a major factor in the delay had been the respondent’s ultimately successful challenge to the validity of the first hearing; that this could not be laid at the door of the respondent; and that another contributory factor was the small size of the Law Society and the difficulty of finding Tribunal members not thought to have any conflict of interest.
  2. The Judge did not consider that the delay had prejudiced the respondent in his defence of the charges which she regarded as straightforward. However she pointed out that he had been effectively prevented from practising law for over two years due to the interim suspension imposed by the Law Society. This had impacted upon his career, his earning capacity and his family. Finally, the Judge noted that the money in issue between the respondent and the client had been repaid in full soon after the original complaint was made.
  3. In all those circumstances the Judge considered the delay to be unreasonable for the purposes of Article 9 and permanently stayed the charges. She awarded costs against the Law Society in the sum of $12,500 including disbursements.

Constitutional delay principles

  1. The respondent’s complaint was that his rights under Article 9(1) of the Constitution had been breached. Article 9 provides:
  2. It will be seen that the art 9 includes the right to a hearing within a reasonable time. That is the constitutional right said to have been breached here. It has not been disputed that disciplinary proceedings brought by the Law Society are akin to criminal proceedings for present purposes and that art 9 applies to such proceedings.
  3. In deciding how art 9 should be applied we must outline the modern approach to applications based on delay in criminal cases. On this topic we do not think that any distinction needs to be drawn between authorities relating to constitutions, conventions and statutes.
  4. A convenient starting point is Sopinka J’s well known summary in R v Morin[1] of the factors which assist in assessing whether there has been unacceptable delay. He said:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay. As I noted in Smith, supra ‘it is axiomatic that some delay is inevitable. The question is, at what point does the delay because [sic] unreasonable?’. It is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:

(1) the length of the delay;
(2) waiver of time periods;
(3) the reasons for the delay, including;

a. inherent time requirements of the case;

b. actions of the accused;

  1. actions of the Crown;
  1. limits on institutional resources;
  2. other reasons for the delay; and
(4) prejudice to the accused.
  1. R v Morin has been followed in many cases since[2] including Malosi J in the present case. But what is misleading about the earlier authorities is their tendency to equate constitutional delay with entitlement to a stay. The more modern approach involves a two-step inquiry. Whether there has been a breach of the defendant’s right to a hearing within a reasonable time is now only the first step in the inquiry. The second step, and often the more important one, is to decide what remedy should be granted in response to the breach. In some cases of constitutional delay no remedy may be justified at all. In others some intermediate form of remedy may be justified. Only in the most extreme cases – usually where lengthy delay has been accompanied by adverse consequences for the conduct of the defence or some other striking factor – will the Court go so far as to stay the proceedings altogether.
  2. The modern approach to which we have referred is usefully illustrated by reference to three sources. The first is the 2003 House of Lords decision in Attorney General’s Reference where Lord Bingham said:[3]
  3. The second is the 2009 New Zealand Supreme Court decision in Williams v R.[4] The Court accepted that the delay of five years in the circumstances of that case did amount to a breach of the right to a trial within a reasonable time. But as to remedy the Court was content with a reduction in penalty as distinct from quashing the conviction. It pointed out that there had been no adverse consequences for the conduct of the defence and said:[5]
  4. The third case is the 2012 decision of this Court in Puni v Attorney General.[6] Although that decision did not embark upon any comprehensive review of the principles it is clear that it adopted the modern distinction between unconstitutional delay, on the one hand, and justification for a stay, on the other. After categorising the authority delay of 30 months in that case as excessive,[7] the Court went on to refuse a stay.[8] In doing so it approved the approach taken in Attorney General’s Reference[9].
  5. As more recent authorities have emphasised, a stay of proceedings is neither a necessary nor usual remedy even where constitutional delay has been established. Other available remedies include a public acknowledgment of the breach, action to expedite the hearing, release of the defendant on bail, a reduction in the penalty if and when one needs to be imposed, the payment of compensation to an acquitted defendant or the placing of a limitation on the way in which the prosecution will be permitted to present its case.[10] An example of the last of these remedies was a direction that the prosecution would not be permitted to call a witness where the delay would make it more difficult for the defence to challenge her evidence.[11]
  6. This modern approach is consistent with the general approach to constitutional remedies today: the Court first enquires whether there has been a breach of a constitutional right; and if there is “fashions” an appropriate remedy which may need to be wider than or different from the traditional private law remedies. It must be an “effective” remedy in some form, to secure the constitutional right.

Summary of Principles

  1. We do not attempt to lay down a set of principles which will be applicable to all cases in which a defendant seeks constitutional relief for delay in the prosecution of proceedings of a criminal or quasi-criminal nature. Broad constitutional principles demand flexibility. However the following will normally be a suitable approach.
  2. The first question is whether there has been a breach of the of the defendant’s art 9 right to a hearing within a reasonable time. It will be convenient to refer to such a breach as “constitutional delay”. Whether there was constitutional delay turns on a consideration of the factors which were helpfully identified in Morin as follows:
(4) prejudice to the accused.
  1. If there was no constitutional delay, the case goes no further. But if such delay is found, the Court must move to a second question. The second question is what remedies would be possible in the circumstances. Depending on the nature, stage and history of the particular proceedings, the array of possible approaches to remedy include:[12]
  2. The third question is whether any remedy is warranted in the circumstances of the particular case, and if so, which remedy. Here the range of relevant considerations overlap greatly with those identified earlier but with particular emphasis upon the following:
  3. The first of those questions, whether there was constitutional delay, was squarely addressed by Malosi J at first instance. We are not satisfied that she addressed the second and third, doubtless because of the way in which the case was presented to her. It is with that background that we turn to the specific questions raised by the appeal.

Was there constitutional delay in this case?

  1. Whether there was constitutional delay in this case is conveniently answered by proceeding through the considerations identified by Sopinka J.
  2. The first was the length of the delay. Malosi J noted that 3 years and 3 months elapsed between the complaint to the Law Society and the respondent’s filing of the current constitutional proceedings. A further five months had passed by the time the proceedings were heard and even at that stage no disciplinary hearing was scheduled. This has not been contested.
  3. The second was waiver of time periods. It has not been suggested that there was any waiver by the respondent in this case.
  4. The third was reasons for the delay. Mr Leung Wai submitted that the Judge had failed to place any or sufficient emphasis on the fact that much of the delay was caused by legal proceedings issued by the respondent. But there could be no possible criticism of the respondent for successfully challenging steps taken by the Law Society. Both the constitution of the original Disciplinary Tribunal, and the subsequent suspension of the respondent from practice, were found to be invalid. The respondent’s decisions to bring proceedings on each occasion were vindicated. Nor did the challenge to the suspension stop the Law Society from progressing the disciplinary hearing.
  5. Mr Leung Wai submitted that once the respondent began the current proceedings it was “not proper for appellant to appoint members to the disciplinary Tribunal and for the disciplinary Tribunal to proceed to hear the charges while a legal challenge to the Supreme Court was pending”. In our view this puts the matter too high. The Society could have pressed on with the disciplinary proceedings. To delay the proceedings until the outcome of Court proceedings based on delay, could only have compounded the very problem which was the subject of the respondent’s complaint. On the other hand, given the history, it is perhaps easy to understand why the Society would have been cautious about continuing while the Supreme Court proceedings remained unresolved.
  6. We accept that the periods occupied by Court proceedings had some relevance in that they resolved questions of law which were novel in Samoa. As to the first set of proceedings concerning the Constitution of the disciplinary Tribunal we said this in Woodroffe v Samoa Law Society [2012] WSCA 15 at [27]:
  7. And even as to the interim suspension proceedings, which were doubtless a distraction to the Law Society, we said this Samoa Law Society v Ponifasio CA9/13, 15 November 2013 at [11] and [12]:
  8. The Court proceedings are therefore relevant not on the basis that the respondent contributed to the delay but rather that this was a novel situation in which all were feeling their way through some difficult and novel legal issues.
  9. Mr Leung Wai further submitted that the delay was in part due to “the constant objections to the members nominated to the Disciplinary Tribunal.”
  10. In our view the fact that the respondent lodged objections did not of itself delay the proceedings. It was up to members of the Disciplinary Tribunal to decide whether to accede to the objections. In some cases members appear to have been over-ready to withdraw. In a small law society a firmer line could have been taken on the question whether knowledge of, and connections with, the respondent required recusal. But the way in which they responded to impartiality objections was the responsibility of the members of the Tribunal, not that of the respondent.
  11. It was not axiomatic that members of the Tribunal had to disqualify themselves on every occasion that there was an impartiality objection – there may well have come a point at which they would have been justified in pressing on given the doctrine of necessity. An adjudicator who would otherwise be subject to disqualification at common law may be required to sit if there is no other competent Tribunal or if it is not otherwise possible to form a quorum.[14] In particular, if a member of a professional organisation has conducted himself in such a way that no disciplinary Tribunal can address itself impartially towards his case, he will not inevitably be able to establish immunity from disciplinary proceedings on that ground.[15] On the other hand it is understandable that following a successful challenge to the decision of its first Tribunal, the Law Society would be particularly anxious to avoid any exposure to challenge before insisting that the respondent accept the proposed membership of the Tribunal.
  12. The next significant factor in this case is lack of prejudice to the conduct of the defence. Having considered the charges, and the respondent’s own affidavit, we agree with the Judge that there could be no basis for pleading prejudice in that sense in this case.
  13. Mr Leung Wai submitted that the authorities “clearly state that the prejudice, if any, must affect adversely or infringe the right of the person to a fair trial” failing which there cannot be constitutional delay. That is not our interpretation of the authorities. It is true that in constitutional delay cases the passing of time without consequences that are adverse to the conduct of the defence much reduces the likelihood that a stay will be justified. Lack of prejudice to the defence was therefore fatal in Puni and Williams above. In Puni a delay of seven years, and in Williams a delay of five years, without adverse consequences for conduct of the defence were held insufficient to justify a stay or acquittal.
  14. However, neither Puni nor Williams was intended to indicate that there could never be a stay based on delay alone. The right to a trial without undue delay is a distinct right which overlaps with, but is not the same as, the right to a fair trial. The purpose of the right to a trial without undue delay is to minimise pre-trial restraints such as imprisonment or restrictive bail conditions and to minimise other personal disadvantages such as anxiety for a person presumed to be innocent until guilt is proven.[16] The real point is that the remedy for undue delay must be tailored to the harm caused. If the harm caused is not prejudice to the conduct of the defence, it is unlikely that the remedy will be a stay, as Puni and Williams illustrate.
  15. We have no reason to question other forms of harm to the respondent. During the history of these proceedings he was precluded from practice for a period of 2 years and 2 months – coincidentally almost exactly the penalty which the Tribunal thought appropriate following the first disciplinary hearing. The personal, emotional and financial consequences for the respondent and his family must have been very substantial. That is a relevant consideration, albeit a relatively minor one in the context of this kind of case.
  16. It is then necessary to decide whether, in the light of all of those considerations, the delay was excessive. This is very much a borderline case. The period that has elapsed is not huge compared with most cases of this kind, there has been no prejudice to the conduct of the defence and there have been special factors contributing to the delay. On the other hand the respondent has been heavily penalised over a lengthy period. Weighing all those factors we have concluded that this case is just over the line into constitutional delay.

There having been constitutional delay, what remedy is appropriate?

  1. Among the array of possible remedies referred to earlier, those which are relevant in this case include declining a remedy on the ground that the breach is not of sufficient importance, a public acknowledgment of the breach, directions to expedite the hearing, reducing the penalty if and when one needs to be imposed, and staying the proceedings.
  2. The choice of remedy requires the exercise of a judicial discretion. For the reasons outlined earlier, we are satisfied that the Judge did not apply the appropriate principles at this point. On appeal we must approach the discretion afresh.
  3. A number of considerations are relevant in selecting the appropriate remedy.
  4. The first is the lack of prejudice to the conduct of the defence. This immediately makes a stay unlikely, although not impossible.
  5. The second is the public interest in ensuring that properly founded prosecutions are pursued. This assumes special significance when considering professional disciplinary proceedings. We accept Mr Leung Wai’s submission that in such cases the primary consideration is protection of the public. The point is captured in the passages he cited from two New Zealand appellate decisions. The first was the Court of Appeal decision in Chow v Canterbury District Law Society. [17]
  6. The second was a passage from the decision of the New Zealand Supreme Court in Z v Dental Complaints Assessment Committee: [18]
  7. Protection of the public is a powerful reason for bringing the current disciplinary proceedings to a hearing in the present case. If it were to be established that the respondent had failed to account for his client’s funds, it would be important for the public to be made aware of the fact that he had behaved in that way, for the legal profession to be made aware that conduct of that nature will be penalised, and for the respondent to understand that his conduct was unacceptable.
  8. Mr Squire emphasised to this court that if the disciplinary proceedings continue they will be fully defended. Of course that must be the right course to follow if the respondent is innocent of the charges. But equally if he were to be found guilty, it would suggest a disturbing lack of insight or education as to the financial responsibilities of legal practitioners. That is an important matter which ought not to be left unresolved.
  9. The next consideration is the extent and seriousness of the breach of the defendant’s rights. Although we have found that, on balance, there was constitutional delay in this case, we do not consider that it was a serious breach of the respondent’s rights. We have already outlined the reasons for that view.
  10. The next consideration is the harm caused to the respondent. We are concerned at the very real impact this case has had on the respondent and his family over a lengthy period. Ironically, this has included a de facto suspension from practice equal to the penalty which the first Disciplinary Tribunal imposed.
  11. However our concern over the effect on the respondent is mitigated by two considerations. One is the principle that in a matter of this kind protection of the public must take priority over the interests of the individual practitioner. The other is that the conduct alleged in the charges would, if established, be very serious indeed. Section 32(1) of the Law Practitioners Act 1976 requires that all money received by a solicitor for or on behalf of any person must be paid into a separate trust account. Pursuant to s 32(3) breach of that duty renders the solicitor liable to imprisonment for 12 months. Under ss 162 and 165(a) of the Crimes Act 2013 failure to account could render a solicitor liable for imprisonment for 10 years. These are serious matters which need to be ventilated. Of course that is in no way intended as a comment upon the likely outcome of the proceedings.

Conclusions

  1. We are satisfied that a stay of the disciplinary proceedings would be inappropriate. The breach of constitutional rights can be adequately remedied by this Court’s order for expedition of the proceedings and the Disciplinary Tribunal’s recognition of the delay in its reduction of penalty, should there be one in the future. We anticipate that if the Tribunal failed to make an adequate reduction in penalty the respondent would seek an appropriate remedy from the Supreme Court. The existing proceedings in the Supreme Court will stand adjourned for that purpose.
  2. Mr Leung Wai submitted that we should give a formal direction that the doctrine of necessity be applied to prevent any further objections to members appointed to the Disciplinary Tribunal. We decline to make any such order. The doctrine of necessity is potentially available but must be applied to the facts of the particular circumstances that may arise.

Result

  1. The appeal is allowed with the following orders:
  2. In all the circumstances there will be no order as to costs in favour of either party in either the Supreme Court or this Court.

Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Vaai

[1] R v Morin (1992) 71 CCC (3d) 1, [1992] 1 SCR 771.

[2] A notable example being Martin v District Court at Tauranga [1995] 2 NZLR
419 (CA).

[3] Attorney General’s reference (No.2 of 2001) [2004] 2 AC 72 at [24].

[4] Williams v R [2009] NZSC 41; [2009] 2 NZLR 750.

[5] Williams v R at [18].

[6] Puni v Attorney General [2012] WSCA 12.

[7] Puni at [18].

[8] Puni at [26].

[9] See n3 above.

[10] Attorney General’s reference (No.2 of 2001) [2004] 2 AC 72 at [24]; Williams v R above at [18]; Puni v Attorney General above.


[11] Puni v Attorney General above.
[12] Attorney General’s reference (No.2 of 2001) [2004] 2 AC 72 at [24]; Williams v R above at [18]; Puni v Attorney General above.


[13] As in Puni v Attorney General above.

[14] Laws v Australia Broadcasting Tribunal (1990) 170 CLR 935.

[15] Cf. Brinkley v Hassig, 83 F. 2d 351 (1936) (cited 23 N.Y.U.L.Q.R. 132). See also Robert M. Sedgewick (1945) 23 Can. Bar Rev. 453, 467.

[16] See in particular Williams at [130].

[17] Chow v Canterbury District Law Society [2005] NZCA313 at page 9.

[18] Z v Dental Complaints Assessment Committee [2008] NZSC 55 McGrath J at paragraph 128.


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