Police v Solomona [2004] WSDC 4 (18 October 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

ALENI SOLOMONA
male of Vaimoso, Vaitele-uta Asau and Salani and MAUMEA

SEUMANUTAFA TUUFUA,
male of Vaimoso
Defendants

Counsels: Police Prosecution section for informant
S. Hazelman for defendants

Decision: 18 October 2004

DECISION OF NELSON, DCJ

The first named defendant faces a charge of unlawful conversion and the second named defendant one of actual bodily harm. Their cases have been consolidated as the charges are alleged to arise out of the same incident. Not guilty pleas were entered by the defendants on 30th March 2004 and their cases were adjourned to the 30th August 2004 for hearing. No formal order was made by the court requiring service of trial documents on defendants counsel as it has been made clear to the police prosecution section of the informant on many previous occasions dating back to early 2004 that disclosure of trial documents well before trial (usually within 30 days of the matter being set down for hearing) was now a mandatory obligation and the court expected compliance unless there were special reasons for not so doing. Prosecutors were also advised that the previous court practice of making formal orders in every case would no longer be followed.

On Monday 30th August 2004, defence counsel advised the court she was not in a position to proceed with the trial as trial documents were only received by her on Friday 27th August 2004 and Saturday 28th August 2004. She also complained that there was no medical report among the documents she received raising the possibility that the informant has failed to make full disclosure of documents. In response the informant argued that no order for disclosure had been made by the court neither had there been a request for trial documents from defence counsel. The prosecutor who appeared on trial day said that when he received their file he realized disclosure had not been made and accordingly rectified the position the weekend before the trial.

Given the importance of the point I ordered written submissions be filed by both parties and the matter was adjourned to 18th October 2004 to hear argument. Defence counsel filed hers and although they have been given ample opportunity the informant has filed nothing in reply or otherwise. Neither has there been a response to counsels suggestion that the lack of a medical report means not all documents have been disclosed. It certainly would be unusual although not impossible to proceed with hearing of an actual bodily charge without some form of medical evidence as to the injuries allegedly caused by the defendants. On 18th October 2004 when the matter was called the informant advised the Attorney Generals Office was appearing for them. The court stood the matter down and re-arranged its schedule accordingly to hear argument but no representative of that office appeared. Neither were any written submissions received from the Attorney Generals office. Accordingly I dismissed the charges, and indicated full reasons would follow. These are those reasons.

At the outset I make two points in relation to as the defendants submissions: firstly a decision of the Trial Chamber of the International Tribunal for serious violations of international humanitarian law in what was formerly Yugoslavia, while very fascinating is of limited usefulness. Decisions of such tribunals of which there are an increasing number in this modern age are not normally recognized as persuasive precedent and counsel has cited no case where any court in this country has recognized and/or applied such a decision. The position is governed by the remarks of the Court of Appeal in L v L an unreported decision dated 28th March 1994 where Lord Cooke as President in delivering the courts judgment said at page 6:

“Thus in determining the common law applicable in Western Samoa the courts of this country are free to draw on decisions in common law jurisdictions other than England itself, although English precedents will always be among the primary sources..... in no case can any overseas decision be an absolutely binding precedent for the Western Samoan courts but decisions of overseas national appellate courts are likely to have special persuasive force and obviously unanimity of opinion among the jurisdictions would be very telling.”

The decision cited by defendants counsel does not at all meet these criteria and in any event it has not been demonstrated to the courts satisfaction that such a decision has the force of international law or whether it is like some jurisdictions in this area a decision given only in an advisory capacity. It would be most imprudent to even consider such a precedent unless these factors are first addressed and clarified.

In relation to the defendants second argument it should be noted the decision of Giles, J in Allen v Police [1999] 1 NZLR 356 has been distinguished and in my view curtailed by subsequent decisions of the New Zealand High Court and Court of Appeal – see paragraphs 53 pp of the judgment of Randerson, J in Attorney General v District Court at Hamilton and Kaire an unreported decision dated 09th June 2004 which cites cases that “clarified the scope of Allen” and which make it “important to read the observations of Giles, J in their context.”. Allen probably represents a high water mark decision in this area of the law. Tempting as it may be it should not in my respectful view be considered to have application outside of the particular facts that confronted Giles, J (a deliberate refusal by the Police to comply with a pre-trial request by defence counsel for discovery). Such facts are not present in this case.

The need for the informant to make full disclosure of trial documents has already been discussed at length by this court in its recent judgment in Toailoa v Duffy an unreported decision dated 25th January 2005. The same considerations apply here notwithstanding that the prosecution in that case was a private prosecution. It is arguable that the duty of disclosure on the Police as the law enforcement arm of the State is even more onerous given the facilities and resources the Police are able to call upon.

The fact that in this case the court made no formal order requiring disclosure is insufficient to excuse non-disclosure. The informant has been made well aware of the courts requirement that disclosure be made to defence counsel as a matter of course in every case. Neither is it necessary that defence counsel specifically request the trial documents. The obligation to disclose is on the informant for the reasons fully canvassed in Toailoa v Duffy and failure to comply is a ground for the court intervening using its abuse of process jurisdiction. As well such non-compliance prejudices the defendants right to a fair trial and his right to adequate time for preparation of his defence, inviolable rights guaranteed to every defendant by article 9(1) and article 9(4)(b) of the Constitution. In addition, in this case no explanation of any kind has been forthcoming from the informant as to why trial documents were not served earlier as per the prescribed procedure. Service a few days before trial is clearly inadequate and in breach of all these matters.

The court here can and should exercise its discretion in favour of the defendants. It would be an abuse of process similar to what occurred in Toailoa v Duffy to allow this prosecution to continue after such a flagrant and unexplained breach of established discovery procedures. The charges against the defendants are accordingly dismissed.

DISTRICT COURT JUDGE