Police v Lima [2003] WSDC 2 (28 May 2003)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TULIAUPUPU PALA LIMA
male of Letogo
Defendant

Senior Sergeant Lomano Paulo for Prosecution
Ms Ruby Drake of Drake & Co. for the Defendant

Date of Hearing: 28.05.03
Date of Ruling: 28.05.03

ORAL RULING OF NELSON, J

Before the evidence commenced in this matter, defence counsel has raised as a preliminary issue the correctness of the date the offence is alleged to have occurred when compared to the date the information was sworn. The information alleges the offence occurred on 28 September 2002 but the information was sworn on 23 September 2002. The prosecution now seeks to amend the offence date to 28 September 2001.

Clearly the Court has a discretion available to it to either quash the information or amend it - in this regard, see section 18(1) and section 18(3) of the Criminal Procedure Act 1972.

Section 16 of the Criminal Procedure Act provides for the information to contain certain particulars. One of these particulars is particulars as to the time of an alleged offence.

Section 16(1), (2), and (3) uses the words “shall contain these particulars”. The requirement is therefore mandatory that the information must contain particulars as to the time of the alleged offence. Section 16(4) provides that “except as hereinbefore provided, no information shall be held to be defective for want of form or substance”.

The information in this case alleges that the offence occurred on the 28 September 2002. The problem is that this information was sworn on the 23 September 2002, five days before the offence allegedly occurred. It is physically impossible to lay an information before an offence is committed. This is clearly a matter of substance and not a mere technical error and the information has stayed that way since the beginning and was in that way when it was brought before the Court earlier this year. I do not regard this as a proper case where the Court on hearing day should exercise its discretion to amend and I do not allow the prosecution application to make an amendment to the information and the information is accordingly quashed.

There may also be other grounds for quashing the information other than this one. Section 12 of the Criminal Procedure Act provides an information such as this must be laid within 12 months from the date the offence occurred. I suspect that the problem with the date was an attempt to avoid the operation of the time limit. However, I have no evidence of that as I have not heard any witnesses but there may probably be grounds there for quashing the information.

The information can also be quashed or at least permanently stayed on the basis of Article 9 of the Constitution. That Article guarantees that every person coming before the court on a criminal matter must receive a fair hearing “within a reasonable time”. There has been no explanation as to why if the offence occurred on the 28 September 2001, a charge was not laid until almost one year later. It is now the year 2003 and almost 2 years have passed by since the offence allegedly occurred.

It could be in my view a breach of the defendant’s constitutional rights to allow these proceedings to go further. That also would be ground for quashing or at least permanently staying these proceedings.

However, as I have indicated the main reason why the information has been quashed is because the information is defective and accordingly the information is quashed and the defendant is discharged.

JUDGE