Toailoa Law Office v Duffy [2005] WSDC 3 (25 January 2005)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

TOAILOA LAW OFFICE
Informant

AND:

KOSE DUFFY
of Saleilua Falealili
Defendant

Counsels: Toleafoa RS Toailoa for informant
Semi L. Wai for defendant

Decision: 25 January 2005

DECISION OF NELSON, DCJ
(disclosure of trial documents and abuse of process)

Factual background:

The background facts of this matter are not in dispute: on 04th March 2004, the informant instituted a private prosecution against the defendant by filing a criminal information alleging breach of section 82 of the Crimes Ordinance 1961. The charges arise out of an incident alleged to have occurred at Saleilua Falealili on 07th February 2004 and allegedly involving the defendant and members of his family. Proceedings were mentioned on 23rd March 2004, a not guilty plea entered by the defendant through his counsel and trial was scheduled for Monday 23rd and Tuesday 24th August 2004. It was also ordered that all trial documents be served on defendants counsel by the informant within 45 days. The defendants bail was continued on various conditions including surrendering of his travel documents to the Registrar of the court to hold pending disposal of the proceedings and reporting to the Registrar every Friday before 4pm.

The Arguments:

On trial day defendants counsel appeared and complained that the informant had not complied with the courts order for service of the trial documents. He says on Thursday, 19th August at 4pm he received by telefax three witnesses' statements and on Friday, 20th August at 4pm he received a further batch of witnesses statements by telefax. He also says there was difficulty in reading one of the statements sent on Friday.

The informant says late service of the statements was due to an oversight on his part. He accepts full responsibility for the oversight and says he contacted defence counsel on Thursday 19th August and discussed the matter with him. He says counsel agreed to accept service by telefax and service was duly effected on Thursday 19th and Friday 20th August. He says defence counsel had the statements of all prosecution witnesses over the week-end. He also says defence counsel never followed up disclosure of documents with him. Defence counsel indeed makes no mention of any follow up on the matter of disclosure but of course he is under no obligation to do so as the courts order was directed at the informant and not the defendant.

Because of the wider importance of the issues raised I adjourned the trial and directed the parties to file full written submissions. These were duly filed and I am grateful to counsel for their submissions and also for their patience in allowing the court time to fully research this matter.

The defendant seeks to have the charge against him dismissed. He argues that the failure to comply with the courts order has resulted in a serious and substantial breach of his right to a fair trial under article 9(1) of the Constitution and his right to have adequate time and facilities for the preparation of his defence under article 9(4)(b) of the Constitution. He also claims a further delay in this matter would breach his right to trial within a reasonable time under the aforesaid article 9(1). The defendant also argues that these proceedings because they arise out of a domestic dispute between the defendant and members of his family, are an abuse of process and the court should not sanction the use of the criminal law to pursue private disputes. He points out the Police as an independent and impartial law enforcement agency investigated this matter and elected not to prosecute the defendant. Without using the word, the defendant seems to be suggesting the prosecution against him is not only unfounded but is in fact malicious. He says the prosecution is therefore an abuse of process. He further argues that non-compliance with the courts order is in itself an abuse of process justifying dismissal of the information.

The informant counters that it would be a serious error and a grave miscarriage of justice to dismiss the information. He says the charge is serious and the defendant has been fully informed of the nature and cause of the accusation against him. He says the defendant has had ample time to prepare his defence and that none of the defendant’s constitutional rights have been infringed. He says there is no legal obligation on the informant to disclose witnesses statements and the courts order may have no legal foundation. He says defence counsels failure to follow up disclosure indicates the trial documents are not important to the defendants case but in any event defence counsel by agreeing to accept last minute service by telefax is estopped from now raising an objection. He also says that notwithstanding the late service defence counsel had sufficient time to peruse the statements this being a very simple and straight forward matter. He argues that non-compliance is only in relation to a procedural matter and while an adjournment is appropriate dismissal is not as it would give the public impression that people can commit serious offences and with the courts assistance escape any consequences. He submits fairness must operate not only in relation to the defendant but also in respect of the prosecution and fairness requires an adjournment not a dismissal.

Disclosure:

By way of background it would be useful to outline the practice that prevails in the District Court in relation to pre-trial disclosure of documents. This necessarily entails a consideration of relevant provisions of the Constitution as well as a number of legal authorities.

Article 9 (1) of the Constitution insofar as it is relevant, guarantees to all defendants –

“a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.”

This is commonly referred to as the fair trial provision of the Constitution and indeed it is headed “Right to a fair trial.” Also relevant is article 9(4) of the Constitution which provides for certain minimum rights every person charged with an offence has: and the deliberate use of the phrase “minimum rights” must not be overlooked, thus clearly suggesting that the intention of the framers of the Constitution was to endow these rights as a basic and essential minimum. In keeping with this is the heading of this part of the Constitution which reads “Part II – Fundamental rights.”

The relevant portions of article 9(4) are:

“(4) Every person charged with an offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing and, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

I have highlighted the phrases I consider most relevant to the present enquiry: from article 9(4)(a) – “informed promptly” and “in a language which he understands” and “in detail”; from article 9(4)(b) “have adequate time” and “preparation of his defence”; from article 9(4)(d) “legal assistance of his own choosing”; from article 9(4)(d) “examine or have examined witnesses against him”.

Of these rights the New Zealand courts have said when considering similar protections under the New Zealand Bill of Rights Act 1990: Richardson, J. in dealing with the New Zealand equivalent, article 9(4)(b) “interpreted purposively as is appropriate to the Bill of Rights is a fundamental right protective of personal liberty and an important element of a fair trial. As well it is designed to put the defence on a footing of equality with the prosecution in preparation for a fair trial. That right must include adequate access to evidence which the accused requires to present his or her case” – R v B [1995] 2 NZLR 172 at page 182; a passage cited with approval in both the Kaire [an unreported judgment dated 09th June 2004] and Police v Elliot [an unreported decision of Cooper, J dated 21st October 2004] decisions referred to later in this judgment; see also the judgment of the Full Court in AG v Otahuhu District Court [2000] NZHC 950; [2001] 1 NZLR 737 discussed in Kaire at paragraph 43pp.

Our own Court of Appeal has stated on a number of occasions that these rights are to be interpreted using the generous and purposive approach propounded by Lord Wilberforce in delivering the judgment of the Privy Council in the leading case of Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319. That judgment was first applied in AG v Saipaia Olomalu and others [1980 – 1993] WSLR 41 and was there described at page 49 “as an unsurpassed exposition of the approach to fundamental rights provisions.” The Court of Appeal said:

“we have already indicated our agreement that the Constitution should be interpreted in the spirit counselled by Lord Wilberforce in Fisher’s case. He speaks of a constitutional instrument such as this as sui generis; in relation to human rights of ‘a generous interpretation avoiding what has been called the austerity of tabulated legalism’; of respect for traditions and usages which have given meaning to the language; and of an approach with an open mind. This involves we think still giving primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pedantic way.”

Of this approach Sapolu, CJ said in considering the interpretation of “charged” in article 9(4) and “promptly” in article 9(4)(a) in Police v Danny Fiatagata and others unreported judgment dated 27th April 1993 at page 11:

“the generous and purposive approach still requires giving primary attention and meaning to the words used in the Constitution to confer fundamental rights and freedoms. It also recognizes that the Constitution does not function in a vacuum but within the context of a particular society and must therefore be placed in its proper ‘philosophical and historical contexts’. In most cases, our Courts will no doubt adopt such interpretations similar or identical to those adopted by the Courts of other countries on the fundamental rights and freedoms provisions of their Constitutions which are similar to ours. But there will be cases when our Courts, because of our own unique experience and conditions, will take a different interpretation on a similar provision from the Courts of other countries. This will only be common sense. It is also consistent with the generous and purposive approach. This approach, needless to say, does not however mean that the Courts can ignore or disregard the clear words used in the fundamental rights and freedoms provisions of the Constitution without giving some generous interpretation to those words consistent with the purpose of the particular provision in question.”

On appeal the judgment of the Honourable Chief Justice was upheld by the Court of Appeal reaffirming on page 3 of their decision dated 21st March 1994 that –

“constitutional rights are to be interpreted generously and purposivly as held by the Privy Council in the judgment delivered by Lord Wilberforce in Ministry of Home Affairs v Fisher and by this court in Attorney General v Sapaia Olomalu, and there is abundant authority in various jurisdictions to the same effect.”

In applying this approach the court found that –

“in our view it would violate the spirit of article 9(4)(a) and be contrary to the generous and purposive approach to allow a substitution (of a more serious charge) that could not fairly be described as prompt.”

In the instant case the prosecution had sought to substitute charges of grievous bodily harm some 13 months after they had brought actual bodily charges against the accused. The substituted charges were dismissed by the court for breach of the promptness requirement in article 9(4)(a).

In pursuance of these rights and guarantees and approaches to interpretation it has become the practice of the District Court over the past few years in response to requests from defence counsel, to order the Police as the informant in 99% of criminal cases to participate in a pre-trial procedure known as disclosure or discovery of trial documents. Pursuant to that procedure the informant is required to serve on defence counsel within a time frame stipulated by the court (usually within 30 days of setting a matter down for hearing) copies of statements of all witnesses be they favourable or unfavourable to the prosecution and whether proposed to be called or not. Also required to be served are copies of all other documents intended to be used at or relied upon by the informant at the trial; common examples of which would be copies of any statements by the accused to the Police, any relevant medical reports, in traffic cases photographs and the plan of the accident scene and suchlike. In the Supreme Court such matters are the subject of a specific statutory obligation imposed by section 89(1) of the Criminal Procedure Act 1972 which provides:

“Procedure in criminal trials with assessors – (1) where an information is filed in the Supreme Court charging any person with an offence triable before the Supreme Court with assessors, the prosecution shall make available to the person so charged or his legal adviser copies of all statements made by witnesses proposed to be called, and by the person so charged whether given orally or in writing, within a reasonable time before the trial.”

No legislative requirement exists in relation to the District Court but the practice that has developed is seen as a necessary corollary to an accused persons constitutional right to a fair trial under article 9(1) and to his rights under articles 9(4)(a),(b),(c) & (d).

It is also an embodiment of the common law duty of disclosure arising out of the need to do fairness and observe basic principles of natural justice in a trial. In AG v Hamilton District Court and Kaire an unreported decision of the New Zealand High Court dated 9th June 2004 the court said at paragraph 23:

“while there is no genuine common law concept of discovery in criminal proceedings, the duty lying on the prosecution to disclose relevant material has developed incrementally on a pragmatic basis to meet particular situations. It has developed as an aspect of fairness in the conduct of the trial.”

As noted by Fisher, J. in Herewini v Ministry of Transport (a case decided on facts that arose prior to the New Zealand Bill of Rights legislation) [1992] 3 NLR 482 at page 495:

“As I see it, the important source of jurisdiction for present purposes is the Court’s common law power to ensure that a party is not subjected to unreasonable surprises at a hearing. Within reasonable limits, every defendant is entitled to know in advance what case he or she will have to meet. Here, the emphasis lies not upon the disclosure of information already in the possession of the prosecution – which may or may not be information helpful to the defence case – but rather upon ensuring that the defendant is given a reasonable opportunity to prepare a defence. That necessarily entails reasonable notice of the prosecution case. Only if there is reasonable notice can the defence make their own inquiries, brief their own evidence, research the law and prepare argument and cross-examination........ the particular practice that a written brief must be supplied in advance is Judge-made.”

In the same vein are the English cases cited by counsel for the defendant: R v Brown (Winston) [1994] 1 WLR 1559 where Steyn LR in delivering the judgment of the Court of Appeal at page 1606 stated:

“The objective of the criminal justice system is the control of crime, but in a civilized society that objective cannot be pursued in disregard of other values. That everybody who comes before our courts is entitled to a fair trial is axiomatic ........ Similarly the right of every accused to a fair trial is a basic or fundamental right. That means that under our unwritten constitution those rights are regarded as deserving of special protection by the courts. However in our adversarial system, in which the police and prosecution control the investigation process an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.”

In R v Ward [1993] 2 ALL ER 577 (one of the IRA London bombing series of cases) the Court of Appeal in quashing the defendants conviction referred to the prosecutions duty at common law to disclose to the defence all relevant material i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence case. Such duty required the prosecution to supply copies of all witnesses statements to the defence or to allow them to inspect such statements and make copies thereof, unless there were good reasons (e.g. protection of witnesses) for not doing so. Disclosure included all relevant scientific material and this accrued pre-trial as well as throughout the trial, whether or not the defence have made a specific request for disclosure. The court referred with approval to the words of that eminent jurist Lord Denning MR in Dallison v Cafery [1964] 2 All ER 610, 618:

“The duty of prosecuting counsel or solicitor as I have always understood it is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence:”;

and also adopted the following from the judgment of Lawton, CJ in R v Hennessey [1978] 68 Cr App R 419, 426 where he said the courts must –

“keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected, and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution.”(emphasis is mine)

Along similar lines is the judgment of Cooke, P in another leading case Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385.

The practice in the District Court originally necessitated orders being made on a case by case basis but this has now evolved to become a mandatory requirement the Police as informant must comply with in every case involving a defence counsel. Complaints of non-compliance by Police prosecutors are now very few and far between as are complaints of trial by ambush. The practice is presently limited to cases involving defence counsels but no doubt at some stage consideration will have to be given to whether it should be extended to all cases.

It is in this context that the defendant obtained a disclosure order from the court requiring the informant to serve copies of all trial documents within 45 days of the matter being listed for hearing. In terms of the order service should have been effected by no later than 06th May 2004. This is the order the informant has not complied with and which the defendant says has resulted in a breach of his constitutional rights and an abuse of the courts process.

Abuse of Process:

I move on to now consider the issue of abuse of process. While the defendants argument is framed, as it must be in the context of a private prosecution, it is but a specific application of a wider principle that applies to all cases, viz. that every court must possess inherent powers to prevent an abuse of its processes and procedures. That is a well established proposition in relation to the Supreme Court which is a legally constituted superior court of record. The question is whether the same can be said to apply to the District Court. As the point has not previously been fully examined in this court and because it is in my view the central issue in this case I propose to deal with it in some detail.

The District Court of Samoa owes its existence to article 74 of the Constitution which provides:

“74. Subordinate Courts – There shall be such subordinate Courts possessing such jurisdiction and powers as may be provided by Act.”

For this court the creating statute is the District Courts Act 1969 (“the Act”). As a creature of statute the court only has that jurisdiction which is conferred by its enabling legislation. Section 3 subsection (1) of that legislation constitutes the court as a “subordinate court of record” with such jurisdiction as is prescribed by Part III of the Act. Its criminal jurisdiction is defined by section 36 as –

“jurisdiction to hear determine and pronounce sentence in respect of any information relating to any offence which is punishable by a fine penalty or forfeiture of any amount or by a term of imprisonment or by both, except any offence which is punishable by a term of imprisonment exceeding 5 years, whether or not also punishable by a fine, penalty or forfeiture.”

Quite clearly therefore this court is a subordinate court of record and as such possesses none of the inherent powers and jurisdiction enjoyed by a superior court of record such as the Supreme Court. However as noted by the English House of Lords in the leading case of Connelly v DPP [1964] 2 All ER 401:

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”

(per Lord Morris of Borth-Y-Gest at page 409)

“My Lords, the court has an inherent power to protect its process from abuse. Lord Blackburn in Metropolitan Bank, Ltd. v. Pooley said ‘But from early times(I rather think, though I have not looked at it enough to say, from the earliest times) the court had an inherent power to see that its process was not abused.’

And the Earl of Selborne, LC said ‘The power seemed to be inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure’

Although their Lordships were there dealing with a civil action in the Queens Bench Division they were clearly not limiting the power to civil jurisdiction.”

(per Lord Pearce at page 447)

Similarly the New Zealand Court of Appeal in AG v. Otahuhu District Court [2001] NZCA 187; [2001] 3 NZLR 740 at 746:

“As a statutory court of limited jurisdiction the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction. The most important of these inherent powers are the powers of a Court, subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures and to prevent an abuse of its process.”

See also Lord Cooke (sitting then as President of the New Zealand Court of Appeal) in Commissioner of Police v. Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385 at 399 in a case under the Official Information Act 1982 (NZ):

“In proceedings on indictment there is no reason why a High Court Judge cannot determine a preliminary or incidental question as to whether the accused has received information to which he is entitled under the Official Information Act. In my opinion the same applies to a District Court Judge in relation to summary proceedings. Inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact: O’Toole v Scott [1965] AC 939, 959; Re G J Mannix Ltd [1984] 1 NZLR 309; McMenamin v Attorney-General [1985] 2 NZLR 274 and the authorities there collected at p 276. Their decisions on preliminary points are of course not conclusive but subject to review or appeal.”

The rationale for the rule is well explained in the judgment of Richardson, J. in Moevao v Dept. of Labour [1980] 1 NZLR 464 at page 481:

“It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Courts processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.”

Further on in his judgment the learned judge quotes from Woodhouse, J. in Taylor v Attorney General [1975] 2 NLR 675, 689:

“The inherent jurisdiction of the Court arises in relation to and for the purpose of giving proper support for the functioning of the Court as a Court of justice...As one experienced officer of the Court in England has said, “The juridical basis of the inherent jurisdiction is .... the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner”: Master Jacob, ‘the Inherent Jurisdiction of the Court’ Current Legal Problems 1970 23, 27-28. Thus it is the due administration of justice – at the time and for the future – that is the concern and province of the Court: not the personal but extraneous problem that may face the individual litigant or witness or Judge in some particular case.”

Richardson goes on to say:

“Considerations of these kinds are in my view at the heart of the abuse of process principle. The concern is with conduct on the part of a litigant in relation to the case which if unchecked would strike at the public confidence in the court’s processes and so diminish the court’s ability to fulfil its function as a Court of law. As was put by Frankfurter J in Sherman v United States [1958] USSC 87; 356 US 369, 380 (1958):

‘Public confidence in the fair and honourable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.’ ”

In the case of Attorney General v Hamilton District Court and Kaire an unreported decision of the New Zealand High Court dated 09th June 2004 the following is noted at paragraph 30:

“Recently in Fox v Attorney General [2002] NZCA 158; [2002] 3 NZLR 62 the Court of Appeal has reaffirmed the principles enunciated in Moevao and the court went on to note that passages from Moevao had been adopted in overseas jurisdictions including the High Court of Australia in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520 and Jago v District Court (New South Wales) [1989] HCA 46; (1989) 168 CLR 23, 29 per Mason, CJ. Similarly in England in R v. Horseferry Rd Magistrates’ Court ex p Bennett (1994) 98 Cr. App. Reports 114.”

In the Horseferry Rd case in his speech in the House of Lords, Lord Griffiths says at page 124 and 125:

“As one would hope, the number of reported cases in which a court has had to exercise a jurisdiction to prevent abuse of processes are comparatively rare. They are usually confined to cases in which the conduct of the prosecution has been such as to prevent a fair trial of the accused.

There have, however, also been cases in which although the fairness of the trial itself was not in question the courts have regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process.

In the present case there is no suggestion that the appellant cannot have a fair trial. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law and to refuse to countenance behaviour that threatens the rule of law. My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law.”

Lord Bridge in his speech specifically adopted passages from the judgment of Woodhouse, J in Moevao where Woodhouse said at page 475 said:

“It is not always easy to decide whether some injustice involves the further consequence that a prosecution associated with it should be regarded as an abuse of process. And in this regard the Courts have been careful to avoid confusing their own role with the executive responsibility for deciding upon a prosecution. In the Connelly case Lord Devlin referred to those matters and then as I have said he went on to speak of the importance of the Courts accepting what he described as their “inescapable duty to secure fair treatment for those who come or are brought before them.” He said that “the courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused” ([1964] AC 1254, 1354; [1964] 2 All ER 401, 442).

Those remarks involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function.”

In his speech in a passage adopted by the court in Fox Lord Lowry said:

“I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.”

These authorities are all helpfully reviewed in AG v. District Court at Hamilton and Anaru Hohepa Kaire where at paragraphs 34 and 35 the court said:

“[34] These authorities confirm that ordinarily, it is the duty of the court to try the person charged. It is not for the court to interfere with the decision to prosecute. The jurisdiction to stay or dismiss must be exercised sparingly and only in the clearest of cases. Abuse of process is a flexible remedy designed to be adapted to different situations as they arise. But there are at least two categories where the court may act. First where the prosecutor’s conduct would preclude a fair trial. Secondly, where the prosecutor’s conduct is so inconsistent with the purposes of criminal justice that to proceed with the prosecution would tarnish the integrity of the court or offend its sense of justice and propriety.

[35] Both Moevao and Fox were examples of cases falling into the latter category. In such cases, it may still be possible for a fair trial to be conducted. But the prosecutorial conduct may have been such that an abuse of process could nevertheless occur. The present case is not concerned with cases in that category. Rather, the issue is in the first category namely whether, as a result of the failure to disclose, it is no longer possible to give Mr Kaire a fair trial.”

There is accordingly an abundance of authorities establishing the existence of the abuse of process jurisdiction and providing the parameters of the jurisdiction. Some other decided categories of abuse of process include:

(i) delay - excessive delay in filing an information or any delay thereafter may constitute an abuse of process allowing dismissal of an information or the granting of a permanent stay of the proceedings: DSW v. Stewart [1990] 1 NZLR 697; AG v. Danny Fiatagata and others – unreported decision of the Samoa Court of Appeal dated 21st March 1994 where the Court of Appeal at page 3 said:

“Any abuse of procedure is to be dealt with by other remedies such as invoking the reasonable time provision of article 9(1) or the abuse of process jurisdiction inherent in the court.”

(ii) re-litigation of same issue – in certain circumstances it may be an abuse of the process of the court to re-litigate issues which are substantially the same as those which have already been litigated in previous proceedings: Bryant v. Collector of Customs [1984] 1 NZLR 280 (CA); see also the recent ruling of this Court in Police v. Toetu Faitala an unreported decision dated 22nd October 2004 of Judge Vaai which although decided on the basis of article 10(3) of the Constitution and a plea of autre fois could also have been decided on the basis of abuse of process as clearly the prosecution there sought to re-litigate essentially the same issues; see also Amery v. Solicitor General [1987] NZCA 77; [1987] 2 NZLR 292 (charges based on activities for which the accused had already been convicted) cited by our Court of Appeal in Aii Taito v Attorney General and another unreported decision dated 23rd November 2001 at page 11.

(iii) multiplicity of charges or other improper bringing of charges: see R v. Moore [1974] 1 NZLR 417 (CA) where the accused was sentenced in relation to two different charges in respect of the same facts.

(iv) misconduct by the prosecution – in Fox v Attorney General [2002] NZCA 158; [2002] 3 NZLR 62 (CA) the accused was charged with four matters. As a result of an agreement between the accused and the police two charges were dismissed and one changed to a charge of lesser seriousness and the accused pleaded guilty. After the accused had been remanded for sentencing the police, on the advice of the Crown solicitor, re-laid the withdrawn charges. The accused applied to have them dismissed on the grounds the relaying of the charges contrary to the agreement was an abuse of the courts process. The District Court dismissed the charges. A judicial review in the High Court of that decision found a departure from the agreement did not necessarily amount to an abuse of process. The Court of Appeal noted (at pp 71 – 72) that:

“These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution prior to trial as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on the accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.”

(v) non-disclosure of relevant material – for some authorities see Police v. Elliot an unreported decision of Cooper, J dated 21st October 2004 and the cases cited therein; see also the guiding principles formulated by the court in Attorney General v Hamilton District Court and Kaire at paragraph 57 in the following terms:

“Care must be taken to tailor the approach to the circumstances of the case. The court’s approach must always be discretionary in nature and requires the exercise of judgment rather than the application of inflexible rules. Relevant considerations include:

(a) whether the failure to disclose is due to inadvertence, inefficiency or to deliberate conduct;

(b) whether the police or prosecuting agency has acted in good faith;

(c) whether the failure to disclose is relevant in the sense that the nondisclosure of the material could damage the prosecution case or advance that of the defence;

(d) the extent of any prejudice to the accused in the conduct of his or her defence as a result of the nondisclosure;

(e) whether the accused can nevertheless receive a fair trial without undue delay;

(f) whether remedies short of stay or dismissal could achieve a fair trial (such as an adjournment, the exclusion of evidence, the right to call rebuttal evidence, or a limited stay until relevant material is produced).”

For a case of non-disclosure due to lost evidence see paragraph 16 of Police v Elliot where the learned judge deals with the Court of Appeal decision in R v Harmer unreported judgment dated 26th June 2003.

(vi) illegality of unfairly obtained evidence - on its own illegality may be insufficient to constitute an abuse of process. Whether there is an abuse depends on all the circumstances and in particular on competing aspects of the public interest including that of effecting prosecution: R v Holford [2001] 1 NZLR 385 (CA). On admissibility of evidence obtained through an unlawful search and seizure and whether it should be excluded as an abuse of process see Police v Smith an unreported decision of our Supreme Court dated 28th October 2003 where Sapolu, CJ canvassed some relevant New Zealand authorities but found that they had no application to the facts of the case (seizure held not to be unreasonable).

The list of circumstances is by no means exhaustive for as these authorities observe “abuse of process is a flexible remedy designed to be adapted to different situations as they arise.” The cases also remind “that ordinarily it is the duty of the court to try the person charged. It is not for the court to interfere with the decision to prosecute” and that “the jurisdiction to stay or dismiss must be exercised sparingly and only in the clearest of cases.”

Application to Samoa:

Given the paucity of decisions of the superior courts of this country on abuse of process in criminal cases, these decisions of leading courts in the United Kingdom and New Zealand are of high persuasive value and given the origins of our system of laws, I see no reason why they should not be adopted as the law applicable in this court.

As was noted by Lord Bridge in the Horseferry Rd case:

“Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of (international) law... I think that respect for the rule of law demands that the court take cognizance of that circumstance. To hold that the court may turn a blind eye to (executive) lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view. It is apt, in my view, to describe these circumstances, in the language used by Woodhouse J. in Moevao v. The Department of Labour [1980] 1 NZLR 464, 467, as an “abuse of the criminal jurisdiction in general” or indeed, in the language of Mansfield J. in United States v. Toscanino, 500 F.2d 267 (1974), as a “degradation” of the court’s criminal process. To hold that in these circumstances the court may decline to exercise its jurisdiction on the ground that its process has been abused may be an extension of the doctrine of abuse of process but is, in my view, a wholly proper and necessary one.”

As laid down by President Cooke of our Court of Appeal in L v. L an unreported decision dated 28th March 1994 at page 6:

“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. Where, for instance, there are differences of approach in the other jurisdictions, the Western Samoan Courts will select or evolve the solution which they adjudge to be most suitable for the society of Western Samoa. Indeed, 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 especial persuasive force and obviously unanimity of opinion among the jurisdictions would be very telling.”

There can be no argument that the principles which govern the use of the abuse of process jurisdiction are those outlined and referred to in the authorities discussed supra. These are the principles that should be applied and followed in the District Court. The only question then remaining is how they are to be applied to the instant proceedings.

The Decision:

I have given this matter the most careful consideration being ever mindful that the discretion is one to be exercised sparingly and only in the clearest of cases. This is a case where the court made an order for disclosure of trial documents within a certain period. The order was properly made pursuant to the informants common law duty of disclosure to meet requirements of fairness and as a necessary adjunct to the accused's Constitutional rights under articles 9(1), and 9(4)(a) to (d). The order was not complied with and although I accept the informant's explanation that this was due to an oversight on his part it does not alter the fact the order of the court was not complied with. Counsel for the accused is quite correct: that is the nub of the matter. Clearly, the efficient administration of justice in any court requires that its orders be complied with and that sanctions be applied for non-compliance. To take any other view would undermine the integrity of the court and would render orders of the court meaningless and of no value. The court would become judicially impotent if parties before it were permitted or encouraged to ignore its orders. Plainly that cannot be the position in the District Court which is a valuable cog in the wheels of Samoan justice.

This is a case that falls into the second category enunciated by Lord Lowry in the Horseferry Rd case. It is a case not as much concerned with the inability to give the person accused a fair trial, (although I accept the argument that the defendants constitutional rights to a fair trial and to have adequate time for preparation of his defence have also been infringed) but is a case that must be halted at this stage “because it offends the courts sense of justice and propriety to be asked to try the accused in the circumstances.” To put it in the words of Richardson, J in Moevao, the primary concern here is with conduct on the part of a litigant in relation to the case which if allowed to remain unchecked “would strike at the public confidence in the courts processes and so diminish the courts ability to fulfil its function as a court of law.” In the words of the New Zealand Court of Appeal in Fox “for the court to proceed with the prosecution on its merits would tarnish the courts integrity and offend the courts sense of justice and propriety.”

Most of the submissions and arguments made by counsels are adequately answered in the discussion on disclosure and abuse of process. I would only add further that:

(i) I agree with counsel for the informant that the charge is a serious one and as noted, the courts approach must be careful and considered.

(ii) the courts decision in this matter has nothing to do with the merits or otherwise of the prosecution and the strength or otherwise of the informants case. Indeed that point has not now nor ever will be reached.

(iii) the court does not regard non-compliance with its orders as a mere matter of procedure. It is in my view a matter of substance that strikes at the very heart of the courts functions and its core task of administering justice in an orderly and effective manner. With due respect to counsel I believe public confidence in the institution would be truly eroded if litigants coming before the court were permitted to disregard orders of the court without sanction or consequence. In such cases the court is compelled to take extreme steps in order to safeguard its ability to effectively function as a court of law.

(iv) as for the argument by counsel for the accused that the prosecution is malicious and is because of family differences, this raises matters which only truly arise at a later stage of the proceedings. Whether such factors exist or not and whether they would warrant the courts intervention on the basis of an abuse of process can only be determined after a hearing of all the relevant evidence. Such matters more properly arise at the end of a trial rather than at this pre-trial stage.

I have also considered whether given the circumstances what remedy is the most appropriate and whether the proceedings can be adjourned rather than stayed or dismissed. An adjournment would however mean the proceedings must be permitted to go on notwithstanding breach of the courts disclosure order. I am of the view that it would be a travesty of justice and an abuse of the courts process to allow these proceedings to continue any further. The issue of an adjournment and whether this would cure any prejudice to the accused caused by the last minute disclosure of documents must give way to the more fundamental and important considerations of the need to ensure orders of the court are obeyed and given full force and effect.

For these reasons the remedy of an adjournment has in my view no application. The appropriate and proper order to make is to invoke the abuse of procedure jurisdiction and to dismiss the charge against the defendant for non-compliance with the order of disclosure. Charge is accordingly dismissed.

Given the novelty and importance of the issues raised in this case I consider it inappropriate to make any order as to costs.

DISTRICT COURT JUDGE