Police v Patu [2004] WSDC 9 (2 November 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

GAFATASI PATU
male of Vaiala
Defendant

Counsels: S.Sgt. Sapatu Pulepule for informant
Ms S. Hazelman for defendant

Ruling: 02.11.04.

RULING OF JUDGE NELSON

The facts of this matter are clear and uncontested. On the 2 December 2003, information number D2265/03 for a charge of assault was purportedly laid by the Police against the defendant. The information was marked by Deputy Registrar Heinrich Siemsen as “Sworn before me at Apia this 02^nd day of December 2003” but was not signed in the appropriate place by or on behalf of the informant as is normal and required for all criminal informations. The Deputy Registrar assigned the matter a mention date being 20 January 2004 and while remand conditions are not specifically noted on the court file he must have remanded the defendant accordingly. On 20 January 2004, defence counsel appeared for the defendant and obtained an adjournment for one week to obtain instructions from her client. The defendant was granted bail by the court on condition he report every Friday to the Criminal Investigation Branch Office of the Police Department in Apia.

On 27 January 2004, the matter was recalled in court and the defendant through counsel pleaded guilty to the charge. I noted from a perusal of the information that the information appeared not to have been properly executed and accordingly marked the court record “Unsworn”. As defence counsel had not made an issue of this, she probably being unaware of it, the matter was adjourned to 03 February 2004 for a summary of facts and for sentence. The defendants bail was continued.

The informant duly submitted a summary of facts but as the information had by sentence day still not been rectified or the issue of its deficiency even addressed, the court ruled it defective and dismissed the charge. On 23 February 2004, the Police relaid the same information this time however in a proper format. Not surprisingly, defence counsel has taken objection to this and the court required argument on the preliminary legal issue of the validity of the new information.

The Police argue the relaying of the charge is sanctioned and allowed by sections 10 to 19 of the Criminal Procedure Act 1972. They acknowledge section 13 requires every information to be “on oath” and in the form “set out in the second schedule” to the legislation but say that the apparent failure to swear the original information is a defect of form only and does not invalidate the charge. They say that section 16 sets out the requirements for an information and that those were fully complied with. Accordingly, pursuant to section 16(4), the original information was not defective for want of form or substance.
When asked for a comment on section 170 of the Criminal Procedure Act, they submitted that in this factual situation, there has been no miscarriage of justice occasioned. They say this even though on the face of it, the information appears to be unsworn or at least improperly sworn. Certainly no evidence was produced by the informant by way of affidavit or otherwise to suggest the information was in fact properly sworn but execution by the deponent was inadvertently overlooked. They also maintain their argument notwithstanding the fact that the defendant was compelled to appear before a remanding Registrar, was subjected to bail conditions including a regular reporting requirement and notwithstanding the fact that the defendant had to engage the services of legal counsel to act for him. All of which were in relation to an apparently unsworn information. With due respect however all these arguments seem to me to be more applicable to the correctness and validity of the original information as opposed to the propriety and validity of the new information which is the current issue requiring determination.

Counsel for the defendant began her submissions by pointing out that the responsibility for the correctness of an information in every case lies on counsel for the prosecution. As authority for this proposition, she cites a decision of the English Court of Criminal Appeal in R. v. Smith [1950] 2 All ER 679 where at page 682, the court said:

“we think it desirable to point out that the responsibility for the correctness of an indictment lies in every case on counsel for the prosecution and not upon the court. No counsel should open a criminal case without having satisfied himself on that point.”

Those remarks were adopted and applied by our Supreme Court in Police v. Apelu Aiga and others [1987] SPLR 416 by Bathgate, J at page 419 lines 161 to 169. Whilst I agree completely with these observations, it must be pointed out that there are other more direct authorities on point (defence counsel can look them up herself) and that observations and indeed decisions of the English Court of Criminal Appeal, while highly persuasive, are not binding on the Samoa District Court. In any event, R. v. Smith was a case concerned with, as the justices themselves observed, “a badly drawn indictment” and the courts power of amendment of the indictment. It also involved a consideration of English legislation which is framed in quite different terms to the relevant provisions of our Criminal Procedure Act 1972. Counsels must ever be wary of citing propositions of law from overseas jurisdictions based on cases decided under legislations with quite different settings, aims and provisions.

Defence counsels main submission is twofold. Firstly that the requirement in section 13 of the Criminal Procedure Act to substantiate an information “on oath” is mandatory and that the dismissal of the original charge was justified. Further, that pursuant to the Supreme Court decision in Police v. Maiava Siau and another (an unreported decision of Justice Wilson dated 30 May 2000) “dismiss” means and includes acquittal, quash, strike out and stay. As the learned justice remarked on page 6 of his judgment, “dismiss” is an all-embracing word which means and includes “all these well recognized ways by which criminal proceedings may be terminated in favour of a defendant.” It must not be overlooked that the case was taken on appeal by the Police and by unreported decision dated 18 August 2000, the Court of Appeal upheld the finding of the learned justice.

Counsels second submission was accordingly to enter a plea of previous acquittal and argue that by virtue of the provisions of section 52(a) of the Criminal Procedure Act 1972, the defendant should be discharged from the present information. As to the applicability of section 170 of the Criminal Procedure Act (a similar provision to which is contained in section 114 of the District Court Act 1969) she points out there was no application or attempt by the Police to cure the original defective information and that the new information was laid some twenty (20) days after the previous information was dismissed. She submits there has been a miscarriage of justice and the court should not entertain the new proceedings any further.

The two issues raised by the parties advocates are firstly whether the court was correct in its decision to dismiss the original information because it was prima facie unsworn; and secondly, if so, whether that debars the prosecution from bringing the present charge.

As to the first issue, it is clear the courts decision on the original information was rendered on 3 February 2004. The matters now being raised by the Police are more in the nature of a challenge upon the correctness of that decision. The appropriate procedure for mounting such a challenge is not to refile the information but to file an appeal to the Supreme Court under Part VII of the Criminal Procedure Act 1972 against the decision handed down on 3 February 2004. Until the Supreme Court orders otherwise, the courts decision remains in full force and effect and that decision was to dismiss the original charge.

The second issue which flows from this can be disposed of equally as easily and as quickly: pursuant to the Court of Appeal decision in Police v. Maiava Siau and another, a dismissal includes an acquittal. In these proceedings, it means the defendant was acquitted of the original charge. The defendant quite properly through counsel has entered a special plea of previous acquittal. It is clear the fresh information is in every respect a duplication of the original information number D2265/03. The matter falls squarely within the terms of section 52(a) in that “the matter on which the defendant was formerly charged is the same in whole or in part as that on which he has been charged in the information now before the court and that the defendant might have been convicted of all offences of which he may be convicted”. In such cases, the section requires “the court shall give judgment that (the defendant) be discharged from that information”.

The new information cannot be allowed to stand and there will be an order permanently staying the fresh information and a further order that the defendant be discharged therefrom. Costs have not been sought and accordingly there will be no order as to costs.

There is one final matter arising out of these proceedings that I should deal with. In the course of her submissions, defence counsel handed up as copies of authorities cited by her copies downloaded from various internet websites. This is of course a far cry from the established procedure of counsel providing the actual law report or text of any decision cited in counsels submissions. In these days of advanced electronics and media telecommunications, it may well be that decisions downloaded from the internet will become more fashionable and indeed may become the norm in some jurisdictions. That day has not yet dawned in the Samoa District Court. Experience has shown that case reports obtained from internet websites are not necessarily completely accurate. They are only as reliable as the person who loads them onto the relevant database and in some instances, deliberately false statements have been incorporated into court decisions deliberately by mischievous parties. Until some acceptable form of certification of accuracy is ascertained, the District Court will not accept judgments downloaded from any internet websites. Counsel citing decisions will be expected to follow the usual practice of either supplying the actual text involved or at least a photocopy of same acceptable to the trying judge; no pun intended. This procedure is to be followed until the Supreme Court or this court holds otherwise.

JUDGE