Police v Faitala [2004] WSDC 5 (22 October 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TOETU PA'U FAITALA
of Saleilua Falealili.
Defendant

Counsels: Sgt. Latu Latu for Police
M. Leung Wai for Defence

Hearing: 15th October 2004
Decision: 22nd October 2004

DECISION OF VAAI, DCT

The Facts:

The defendant Toetu Pa’u Faitala was charged in February March 2004 with 5 criminal charges, three of Arson and two of Wilful Damage.

i) D.238/04 – Arson relating to a House;

ii) D.411/04 – Arson relating to a Car (Ford Topaz);

iii) D.412/04 – Wilful Damage of a car (Ford Topaz);

iv) D.413/04 – Arson relating to an Electric Generator;

5. D.414/04 – Wilful Damage of an Electric Generator.
   

The Defendant has already pleaded guilty to the charge D.238/04 (i.e.) arson relating to a house – so this charge is not an issue in this decision.

On 23^rd March 2004, the charges (D.412/04) wilful damage of the car and (D.414/04) wilful damage of an electric generator were withdrawn by the Police with the Court’s leave, on the basis of the duplicity of the informations. The two charges of arson relating to the car (D.411/04) and arson relating to an electric generator (D.413/04) remained before the Court and the defendant entered not guilty pleas. They were then set for hearing on the 09^th August 2004.

On 09^th August 2004, the two arson charges set for hearing were both dismissed by Judge Nelson on the basis that the Police offered no evidence. The Defence claims that no mention was ever made on that day of further charges to be laid whilst the Police claimed they did make mention of their intention to file fresh charges.

On the 13^th August 2004, the Police swore fresh charges for wilful damage of the motor vehicle - Ford Topaz (D.2301/04) and wilful damage of the electric generator (D.2234/04). It is not disputed that the two fresh charges filed on 13^th August 2004 are identical in wording to the two wilful damage charges withdrawn by the Police on 23^rd March 2004. The only difference is the names of the officers laying the infomations and a more complete citation of the same sections of the Crimes Ordinance on which the informations were based on.

It is the filing of the two new wilful damage charges which has led to the current proceedings.

The defendant by way of Motion has sought quashing/ dismissal of the two new informations on a two fold argument.

1. Double Jeopardy – Article 10 (3) of the Constitution – the defendant has been charged twice for substantially the same offence he’d been acquitted on before; and
   
2. Failing (i) above, there has been an Abuse of Process in the Police not promptly informing the defendant of the nature and cause of the accusation against him. Article 9 (4) of the Constitution.
   

The Defence is also seeking costs if these charges are quashed/ dismissed.

In response, the Police argued that the two new informations should not be quashed because they relate specifically to the offence of wilful damage and are therefore different in both form and substance to the arson charges dismissed by Judge Nelson on the 9^th August 2004. I understand their argument to say the offences of arson and wilful damage have different elements. Furthermore, they argued that the defendant either had previous knowledge or ought to have known that fresh charges were going to be laid presumably when the two arson charges were dismissed in August 2004. They say also that s.12 of the Criminal Procedure Act does not apply and s.35 (3) of the same said Criminal Procedure Act applies.

The costs according to the police, should not be awarded because they were simply following the provisions of the Criminal Procedure Act. Therefore they should not be liable for any costs.

On the date of hearing submissions from the prosecution and the defence (15^th October 2004), the defendant had not yet entered a plea to the wilful damage charges filed in August 2004.

The Procedure

The first procedural matter that needs to be addressed in my view is whether or not the two wilful damage informations filed in August 2004 are defective either in form only or in substance only or in both. If in form only, it can with the Court’s leave, be cured by an amendment. If the defect is in relation to substance, then there may be a need to hear evidence after a plea by the defendant to the charges, given that the defect cannot be cured by amendment on whether Double Jeopardy or Abuse of Process has occurred or not.

The parties have both filed affidavits each in support of their submissions and their contents relate to the nature and the substance of the charges in the two new informations.

The common sense or logical thing to do here and at this stage of this matter is for the parties to advise the Court on their positions and what they wish to do. In my view a legal analysis of the Double Jeopardy Principle or Abuse of the Court’s Process in the context of the procedures as laid down by the authorities and as put forward by the parties here ought to be decided procedurally after a plea has been entered by the defendant. It goes without saying that if the parties agree to an assumption (without the defendant formally pleading to the charges) that the plea is taken for granted of either not guilty or previous acquittal due to the Double Jeopardy principle or an abuse of Process, and the police agreeing to putting forward their defence to the motion to quash on that understanding, then we should properly in my opinion proceed on that premise.

[Defence Counsel advised the Court to proceed on its motion on the basis of a plea of previous acquittal by the defendant to both charges. The police advised the Court it consented to the procedure as outlined. Both parties advised the Court that neither wished to call oral evidence but to proceed on the affidavits filed.]

The Law

On the authority of Connelly vs DPP [1964] A.C (The H/L provides the appropriate test to apply when a plea of autrefois acquit or convict is pleaded.

For example at pg 1309, Lord Morris puts the test as follows:

“The court is concerned with charges of offences or crimes. The test is, therefore whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction.”

Again at pg 1311 his Lordship puts the test in the alternative as follows:

“The test above referred to is also the test as to whether the new charge is the same as, substantially the same as, or in effect the same as the charge contained in the earlier indictment.”

Again at pg 1326 Lord Morris in quoting Grantham J. puts the test as follows:

“The real test is, was the first charge the same as that on which the prisoner is being charged again, or, was the evidence necessary to support the second indictment sufficient to prove a legal conviction on the first?”

At pg 1333 of Connelly vs DPP Lord Hodson puts the test down as follows:

“The test is whether the acquittal on the first charge necessarily involved an acquittal on the second.”

Finally Lord Devlin at pg 1339 considered the appropriate test as being:

“For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged.. The word “offence” embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.”

In incorporating the test as stated in its various forms by their Lordships in the Connelly v DPP case, to the facts before me, it is necessary to analyse carefully the nature of the arson offences/charges against the defendant which were dismissed on the 9^th August 2004, in direct relation to the two fresh wilful damage charges to which the defendant now pleads previous acquittal.

The two charges of arson; the first relating to the motor vehicle and the second in relation to the electric generator which were dismissed, refer to a specific act of wilfully setting fire to those two pieces of equipment on a specified date. I shall use only the charge against the defendant for wilfully damaging the motor vehicle to analyse what I consider to be the applicable law to the circumstances in this case.

On the charge of arson of the motor vehicle, the wording is – “the defendant on the 14^th February 2004 wilfully set fire to a vehicle namely a Ford Topaz private car the property of Tauva Bartley female of Saleilua.” S 112 (b) of the Crimes Ordinance 1961.

The fresh wilful damage charge filed in August 2004 in relation to the motor vehicle, charges the defendant in that “on the 14^th February 2004, he wilfully damaged a vehicle namely a Ford Topaz private car property of Tauva Bartley female of Saleilua.” S 113 (1) (a) of the Crimes Ordinance 1961.

The wilful damage charge withdrawn by the Police in March 2004 is worded as follows; “the defendant on the 14^th February 2004 wilfully damaged a vehicle namely a Ford Topaz private car property of Tauva Bartley female of Saleilua.”

Applying the test as laid down earlier in the Connelly case, to the above factors it seems to me that in terms of Lord Morris’s view, the necessary proof by the Police to convict the defendant on the charge of wilfully damaging the Ford Topaz motor vehicle on 14^th February 2004, would also equally establish the defendants guilt in the arson charge dismissed in August 2004. The act for which the defendant is charged for in the wilful damage charge, is wilfully damaging the vehicle by setting fire on the 14^th February 2004 to the said Ford Topaz motor vehicle, the property of Tauva Bartley. In other words, the act complained of in both the charges of arson in relation to and the wilful damaging of the motor vehicle, is the same (i.e.) the wilfully setting fire to the Ford Topaz motor vehicle, belonging to the same said owner, Tauva Bartley, on the same date being 14^th February. 2004. In my opinion, the withdrawal in March 2004 of the first wilful damage charge relating to the motor vehicle by the Police (which is identical in wording to the wilful damage charge presently before the Court that was filed in August 2004), after the arson charge in relation to the same said motor vehicle was dismissed, lends strong support to this view.

In applying the test in the alternative way as stated by Lord Morris in Pg 1311 of the Connelly case, (i.e.) whether the new charge is the same as, substantially the same as, or in effect the same as the charge contained in the earlier indictment? To me, the answer is quite clearly yes.

This is answered in the positive because the wilful damage charge filed in August 2004 charging the defendant of wilfully damaging on the 14^th February 2004 a Ford Topaz motor vehicle the property of Tauva Bartley is substantially the same or is in effect the same as the earlier charge of arson relating to the same said vehicle and the same said act of setting fire to the said vehicle, in which the defendant was acquitted of, on 09^th August 2004.

Therefore I find that the defendants plea of previous acquittal to the charge of wilfully damaging the Ford Topaz motor vehicle on the 14^th February 2004, such vehicle being the property of Tauva Bartley satisfies the test upon which the principle of Double Jeopardy relies and I consequently hold that the defendants plea of previous acquittal stands as a bar to the fresh charge of wilful damage to the motor vehicle proceeding any further. Putting it another way, the fresh charge of wilfully damaging the motor vehicle filed in August 2004 violates the defendants rights provided for in Article 10 (3) of the Constitution. It also goes without saying that the same reasoning also applies to the second charge filed in August 2004 against the defendant for wilfully damaging an electric generator on the 14^th February 2004 the property of Fanene Tele’a of Saleilua. It follows logically therefore that the defendants plea of previous acquittal to this second charge of wilfully damaging an electric generator the property of Fanene Telea of Saleilua on the 14^th February 2004, also succeeds.

That is sufficient ground for me to acquit the defendant on both charges and I do so hold on the basis that his constitutional right under Article 10 (3) of the Constitution, has been breached by the laying of the two new wilful damage charges which are in effect the same or substantially the same as the two arson charges already dismissed. The accused is discharged accordingly.

I have not determined the issue raised by the Defence in their second argument regarding a potential breach of Article 9(4) of the Constitution or the abuse of process argument because the substantial issue of whether the prosecution can proceed further on the two new wilful damage charges has been answered in the negative for the reasons given above.

Costs:

On the question of costs I find that in the circumstances of this case and the procedure adopted by the Prosecution from the outset to the date of hearing this matter, the defendant has been inappropriately inconvenienced (even though not as seriously as the defendants in the cases before the Court of Appeal in the The Police vs Safue & ors, Senio & ors, Junior Siale) cited in the defendants submissions, by the filing of the two fresh wilful damage charges after the original wilful damage charges were withdrawn for reasons of duplicity of charges, especially after the two charges of arson against the defendant were dismissed. Consequently an order is made as to awarding of reasonable costs in the defendants favour. In my opinion, the importance of safeguarding the individuals constitutional rights as the one in Article 10 (3) of the Constitution is reflected in Lord Devlin’s dicta in Connelly’s case at pg 1353 when he states:

“In my opinion, if the Crown were to be allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, there would be a grave danger of abuse and of injustice to defendants .....

... There is another factor to be considered, and that is the courts’ duty to conduct their proceedings so as to command the respect and confidence of the public .....

... That is why every system of justice is bound to insist upon the finality of the judgement arrived at by a due process of law. It is quite inconsistent with that principle that the Crown should be entitled to re-open again and again what is in effect the same matter.”

Counsel is to prepare a memorandum of costs and to be submitted through the Registrar for scale assessment purposes after serving the Police.

I also wish to impress on Counsel that guided by the final adjusted costs awarded by the Court of Appeal in the three cases of Police vs Safue (and others), the question of quantum may be determined strictly in the context, the manner and the principles the Court of Appeal considered relevant in determining the final award of costs (given the amounts actually claimed by the defendants) in those cases. The two new charges of wilful damage against the defendant are accordingly dismissed with costs.

JUDGE