Saufau &amp Ors v Siaosi II [2021] WSCA 11 (14 December 2021)

IN THE COURT OF APPEAL OF SAMOA
Saufau & Ors v Siaosi II & Ors [2021] WSCA 11 (14 December 2021)

Case name:	Saufau & Ors v Siaosi II & Ors
Citation:	[2021] WSCA 11
Decision date:	14 December 2021
Parties:	FA’ATOAFE SAUFAU, LEOLI SANELE and VAITOGI SEFO (Appellants) v ALIPIA SIAOSI II; SAMOA PITA; NIUAPU FA’AUI LEIATAUA; TOLOFUAVALELEI FALEMOE LEIATAUA; PU’EMAITULILO PAULO LEUTELE; TITIA VAILIGA UMAGA; TAUALOFA’I LOLESIO LEIATAUA; TUA’ENA LOMAU PAULI; MAOGA KASIPALE AIONO; SNAFOA MOANA; PILIA’E KOSE; ONO TALOSAGA; FONOMAITU FALANIKO & TUIMAUNEI SIO (First Respondents) & THE ATTORNEY GENERAL (Second Respondent)
Hearing date(s):	07 December 2021
File number(s):	CA 29/19
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Perese Honourable Justice Hansen Honourable Justice Harrison
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is dismissed. The appellants are ordered to pay costs of $2500 to each respondent on the appeal.
Representation:	LT Malifa for the Appellants TF Tufuga for the First Respondents DJ Fong and C Te’o for the Second Respondent
Catchwords:	Banished chiefs – flagrant impropriety
Words and phrases:	Challenging discontinuance of criminal proceeding –“judicial review” – “customs and usages”
Legislation cited:	Attorney General Office Act 2013 s. 7(2); Constitution of the Independent State of Samoa Articles 9; 41(2); 73(2)
Cases cited:	Gouriet v United Postal Workers Union [1977] UKHL 5; [1978] AC 435; Saufau & Ors v Siaosi II & Ors [2019] WSSC 89; Teo v Attorney General [2001] WSCA 7
Summary of decision:

CA29/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINU’U

IN THE MATTER:

of the Constitution

BETWEEN:

FA’ATOAFE SAUFAU, LEOLI SANELE and VAITOGI SEFO, chiefs of Leulumoega

Appellants

AND:

ALIPIA SIAOSI II; SAMOA PITA; NIUAPU FA’AUI LEIATAUA; TOLOFUAVALELEI FALEMOE LEIATAUA; PU’EMAITULILO PAULO LEUTELE; TITIA VAILIGA UMAGA; TAUALOFA’I LOLESIO LEIATAUA; TUA’ENA LOMAU PAULI; MAOGA KASIPALE AIONO; SNAFOA MOANA; PILIA’E KOSE; ONO TALOSAGA; FONOMAITU FALANIKO, and TUIMAUNEI SIO, chiefs of Leulumoega

First Respondents

AND:

THE ATTORNEY GENERAL

Second Respondent

Coram: Honourable Chief Justice Perese
Honourable Justice Hansen
Honourable Justice Harrison

Counsel: L. T. Malifa for the Appellants
T. F. Tufuga for the First Respondents
S. Ainuu and C. Teo for the Second Respondent

Hearing: 07 December 2021

Judgment: 14 December 2021

JUDGMENT OF THE COURT

Introduction

1. This appeal from the judgment of Tuatagaloa J in the Supreme Court^[1] gives rise to one discrete issue: What is the nature and extent of the right to challenge the Attorney- General’s statutory decision to discontinue a criminal proceeding?^[2]

Facts

2. The relevant facts can be stated shortly^[3].
3. The appellants and first respondents are from the same village of Leulumoega. They were apparently parties to an ongoing dispute which led to a defended hearing in the Native Land Court. In its decision delivered on 6 November 2015 the Court ordered that (1) the appellants were to apologise to the village and perform its usual traditional ways without any further words which would cause dispute within it; (2) the first respondents were to accept the apology ; and (3) the appellants were to be accepted back into the village’s internal affairs if its people were satisfied.
4. A difference arose over whether the process and content of the apology proposed by the appellants satisfied the terms of the Court’s order. A month after the decision, following exchanges between the parties, the first respondents set out the requisite conditions for an apology. Two months later, on 12 February 2016, the appellants wrote a formal letter of apology to the first respondents on behalf of the village. It appears from an affidavit filed by the Attorney General’s office that the letter did not satisfy all the conditions imposed by the first respondents as being in accordance with the usual customs of the village. On the same day the appellants wrote and requested the Native Land Court to charge the first respondents with contempt of court for their conduct in implementing the Court’s orders.
5. The Court referred the complaint to the police who after investigation advised that there was no evidence to support a charge of contempt. The appellants then filed their own charge of contempt against the first respondents. The Attorney General later intervened at the first respondents’ request. The Attorney applied the relevant Prosecutorial Guidelines, concluding after an inquiry that there was no evidence to support the charge and no prospect of a successful prosecution. It would not be in the public interest to proceed further. On 19 February 2018 the Attorney exercised his discretion to issue a certificate of discontinuance.

Supreme Court

6. The appellants sought to challenge the Attorney’s certificate by way of an application to the Supreme Court to exercise its jurisdiction under Article 73(2) of the Constitution of the Independent State of Samoa to determine any questions which arise under the Constitution^[4]. A number of issues were raised. In a carefully reasoned judgment Tuatagaloa J dismissed the application. She was satisfied that the Court’s power to review a discontinuance decision by the Attorney was strictly limited to the ground of flagrant impropriety which was not established here^[5]. Furthermore, the Judge was satisfied that there was no evidence of contempt^[6] and that the decision did not violate the appellants’ right to a fair trial under Article 9 of the Constitution^[7] .
7. Tuatagaloa J made orders striking out the appellants’ application, confirming that the Attorney General had a discretionary power under Article 41(2) of the Constitution to discontinue any criminal proceedings, discontinuing the private prosecution brought by the appellants against the first respondents and discharging them as defendants and ordering the appellants to pay costs to both respondents.

Analysis

8. Mr Malifa filed full submissions in support of the appellants’ appeal. But before us, as before Tuatagaloa J, he conceded that the Attorney General’s decision could only be impugned on proof of flagrant impropriety^[8]. And, as before the Judge, his primary submission was that this threshold was satisfied by the Attorney’s failure to consult with the first respondents before deciding to discontinue. There was, he submitted, a breach of natural justice because the first respondents were not heard in the decision-making process.
9. We concur with Tuatagaloa J in rejecting Mr Malifa’s submission. Article 41 (2) provides that the Attorney General ...”shall have the power, exercisable in his discretion, to institute, conduct or discontinue any proceedings alleged to have been committed”. In Teo^[9] this Court held that the Attorney General’s constitutional discretion could only be reviewed on the limited ground of flagrant impropriety. This threshold sets a very high bar for judicial intervention.
10. The policy rationale for imposing this limit on the Supreme Court’s power of review is founded in the strict constitutional separation of the powers of prosecution and adjudication^[10]. It is no business of the Courts to intervene in decisions about whether a prosecution should be commenced or pursued. Any other approach would compromise the integrity of the judicial process^[11]. Thus the judicial power to review is reserved for only the most obvious cases of abuse. We agree with Tuatagaloa J that proof of flagrant impropriety requires evidence of misconduct bordering on corruption, violation of the law, or bias for or against a particular individual.^[12]The requisite degree of abuse must be of such severity that it strikes at the heart of prosecutorial system.
11. The appellants’ case falls well short of meeting that settled standard of impropriety. Mr Malifa’s primary and oft repeated complaint on appeal is that the Attorney General acted unfairly by considering the first respondents’ letter of request to discontinue the private prosecution without affording the same opportunity to the appellants. However, the Attorney owes no obligation of fairness to consult with the prosecutor or any other group. His or her overriding duty is to act in the public interest irrespective of the views of one particular group, and to undertake an independent evaluation of the evidence and the prospects of success when making a prosecutorial decision. This exercise does not engage any fair trial rights vested in a private prosecutor; as the Judge noted, the criminal process is not the preserve of the private individual ^[13] . And we add what may be obvious that a failure or omission to discharge a duty of fairness, even if it existed, could never of itself amount to gross impropriety of the nature justifying a challenge to the Attorney’s decision.
12. In this case the Attorney General elected to make the reasons for his decision public. However, Mr Ainuu referred to compelling authority for the view that the Attorney is not required to give any reasons^[14]. A dissatisfied party must make out his or her case for challenge solely in reliance on material in the public domain.
13. Mr Malifa devoted much of his argument on appeal to challenging Tuatagaloa J’s finding that there was no evidence of contempt. She was satisfied that the apology tendered by the appellants did not in fact accord with the usual customs of the village. It is unnecessary for us to determine this question. It is not the issue in this case.
14. We would wish, however, to allay any sense of injustice which the appellants may nurse at the result of this appeal by noting that Mr Malifa’s submissions ignored the critical element of a contempt charge; that is, of a deliberate affront to the authority or dignity of the Native Land Court by disobeying its order. Mr Malifa did not and could not have pointed to any evidence, let alone evidence sufficient to satisfy the criminal standard of proof beyond reasonable doubt, that the first respondents’ approach was an attempt to disobey the Court’s orders or challenge its authority. This was no more than a dispute between the parties about the adequacy of steps which the Court required to be taken in implementing its order. The appropriate remedy for the appellants in the event of a dispute was to apply to the Court for further orders. The private prosecution for contempt was misconceived and could not possibly have succeeded on the facts of this case.

Result

15. The appeal is dismissed.
16. The appellants are ordered to pay costs of $2500 to each respondent on the appeal.
    

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE HANSEN
HONOURABLE JUSTICE HARRISON

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^[1] Saufau & Ors v Siaosi II & Ors [2019] WSSC 89.
^[2] Section 7(2) of the Attorney General Office Act 2013 and Article 41(2) of the Constitution of the Independent State of Samoa.
^[3] Judgment of Tuatagaloa J at [11]-[18].
^[4] The proceeding was originally filed in the District Court before it was transferred to the Supreme Court.
^[5] At [31]-[36].
^[6] At [38]-[39].
^[7] At [40]-[45].
^[8] Teo v Attorney General [2001] WSCA 7 (23 November 2001).
^[9] Teo, at n8 above.
^[10] See the authorities reviewed at [32] and [33] of the judgment.
^[11] Teo, at n6 above.
^[12] At [34].
^[13] At [43]
^[14] Gouriet v United Postal Workers Union [1977] UKHL 5; [1978] AC 435.