Comptroller of Customs v Betham [2018] WSDC 4 (26 March 2018)

DISTRICT COURT OF SAMOA
Comptroller of Customs v Betham [2018] WSDC 4

Case name:	Comptroller of Customs v Raymond Betham (Betham Freight and Customs)
Citation:	[2018] WSDC 4
Decision date:	26 March 2018
Parties:	COMPTROLLER OF CUSTOMS, Matautu (Informant) and RAYMOND BETHAM, Trading as Betham Freight and Customs, Sogi (Defendant)
Hearing date(s):	21, 22, 23 March 2018
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa R Viane Papalii
On appeal from:
Order:	i) The hearsay evidence is disallowed and excluded. ii) The application for an adjournment to take statements from the LDS representative and to serve the defence is refused. It follows that the proposed application for witness summons and warrants of arrest should they fail to comply is also refused. This matter will continue to trial on 4/04/18.
Representation:	Ms L Sio for Prosecution Mr L R Schuster & Ms N Schuster for Defendant
Catchwords:	Admissibility of Hearsay Evidence during trial - Non disclosure of witness statements and prejudice to defendant – sections 10 Evidence Act 2015 – ss46, 47, 81 & 82 Criminal Procedure Act 2016
Words and phrases:	Removal of goods from Customs without permission of customs officer.
Legislation cited:	Crimes Act 1961 (NZ) s.368. Criminal Procedure Act 1972 s.21. Criminal Procedure Act 2016 ss.46; 47; 81; 82. Customs Act 1977 ss.218; 223. Evidence Act 2015 ss.2; 10; 10(1)(i); 10(1)(ii); 10(2). Evidence Act 2006 (NZ) ss.18; 22.
Cases cited:	Mahoney R, Mcdonald E, Optican S, Tinsley Y The Evidence Act 2006: Act and Analysis (2014, Brookers); Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508; P v Holdaway DC Nelson CRI-2011-042-2682, 15 May 2012; P v Khelawon 2006 SCC 57 [2006] 2 SCR 787; R v Accused [1992] 2 NZLR 187; R v Foreman (No17) HC Napier CRI-2006-041-1363, 21 May 2008; Toailoa Law Office v Duffy [2006] 2 LRD 138.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

COMPTROLLER OF CUSTOMS, Matautu
Informant

AND:

RAYMOND BETHAM, Trading as Betham Freight and Customs, Sogi
Defendant

Representation:
Ms L Sio for Prosecution
Mr L R Schuster & Ms N Schuster for Defendant

Hearing: 21, 22, 23 March 2018
Ruling: 26 March 2018

RULING ON ADMISSIBIITY OF HEARSAY EVIDENCE
AND NON DISCLOSURE

INTRODUCTION

1. The Defendant Raymond Betham (‘Mr Betham”) faces 31 charges brought pursuant to s223 Customs Act 1977 alleging that during various dates he removed goods from Customs control without permission of a customs officer and thereby committed offences against the Act. Some 31 charges brought pursuant to s218 Customs Act were withdrawn and dismissed at the start of the trial.
2. This trial has been continuing for three days commencing on 21/03/18. On the second day after the luncheon adjournment, Prosecution sought if they could have the rest of the afternoon off so they may review their position with the real possibility of withdrawing all charges. I granted this. It seems the change of position came about given the admission by Prosecution witness Alvin Onesemo that they only conducted investigations after receipt of the payment from the Defendant Mr Betham. However, the next day, 3rd day (23/03/18) Prosecution appeared and informed they will continue with the charges. So the trial continued. I will come to this later.

HEARSAY EVIDENCE & OBJECTION

3. During the course of his evidence, the witness Ah Mu Leavai referred to a meeting he had with two Latter Day Saints representative (“LDS reps”) and he started to recount the alleged conversation whereby Mr Schuster naturally objected on the basis that the two LDS reps mentioned were not listed as witnesses and Prosecution have not disclosed their witness statements.
4. Ms Sio was questioned about this and she informed she might have to call the LDS reps and may also have to ask for witness summons under s81 and 82 Criminal Procedure Act 2016 (“CPA”). According to Ms Sio the problem they been having with these two witnesses is they remained uncooperative and it seems they do not wish to give evidence. According to Ms Sio this was the main reason for not including them in the witness list. When asked why there was no disclosure of the statements Ms Sio replied it was for the same reason as witness statements had not been taken.
5. Mr Schuster objected strongly to allowing the evidence. He emphasised that the evidence as it stands is strictly hearsay and there will be prejudice to Mr Betham if it were allowed without the benefit of knowing in advance what these witnesses would be saying. Mr Schuster expressed the view that Prosecution seemed to be filling the loopholes of their case as they progress and mainly from the questions raised during trial.
6. With Toailoa v Duffy^[1] in mind, I had initially suggested adjourning the matter further for Prosecution to attend to summoning the LDS reps and service of their witness statements on the defence. However, having heard further from both Counsel, I decided to stand down the matter for me to consider the issue further. I did. I called a meeting in Chambers with both counsel where this was discussed further and counsel were given more opportunity to advance their arguments. Ms Sio informed she would also be relying on ss46 and 47 CPA where I informed that s47 does not envisage an application by the Prosecution but Defence. Here it is not the defence seeking an adjournment but rather it is the Prosecution. I also brought to their attention s10 Evidence Act 2015 and whether it applies at all. Ms Sio suggested she could obtain the statements from the witnesses in the meantime under s.10 Evidence Act 2015 (“Evidence Act”).
7. I informed counsel that I will deliver my ruling on this issue on Monday 26/03/18 at 9am. This is my ruling.

ANALYSIS

8. In assessing the admissibility of the evidence, I must have due regard to the procedural history and all relevant circumstances of this matter.
9. The key issue at play here is firstly the non disclosure of the evidence and secondly, the undue prejudice (if any) on Mr Betham.

Hearsay: s10 Evidence Act

10. A hearsay statement is defined in s2 Evidence Act as a statement made by a witness and is offered in evidence at the proceeding as the truth of its contents. Here in the absence of any witness statement the purpose for offering the evidence must be as the truth. Prosecution surely did not say that it was just to prove the fact that it was made. In that sense then I agree with Mr Schuster that it is strictly hearsay.
11. Prosecution however has sought to wiggle its way around it by relying on s10 Evidence Act, then ss 46, 47, 81, 82 CPA.
12. I will refer first to s10 Evidence Act which talks about the general rule about the admissibility of hearsay evidence. It states that :

“1) Subject to subsection 2 to 4 and section 12, a hearsay statement is admissible in any proceeding if:

The circumstances relating to the statement provide reasonable assurance that the statement is reliable and

either;

The maker of the statement is unavailable as a witness; or

The judge considers the undue expense or delay will be caused if the maker of the statement were required to be a witness.

A party intending to offer hearsay evidence under the subdivision must within sufficient time before the hearing provide the Court and other party with notice of the party’s intention to offer hearsay statement in evidence.

13. The above provision is largely reflected in ss18 & 22 NZ Evidence Act 2006 with some minor differences. With reference to the use of the words in subsection 1(a) of “reasonable assurance that the statement is reliable,” this means that the evidence is reliable enough for the fact finder to consider it and draw conclusions as to weight.^[2] This is “sometimes referred to as threshold reliability as opposed to ultimate reliability.”^[3]
14. In my view however, before I even consider the reliability of the statement offered as the truth here, subsection 2 above is crucial. The key phrase there is sufficient notice must be given by the party offering the hearsay evidence prior to the hearing. Although the Evidence Act is silent as to what amounts to ‘“sufficient time’, this is a matter of common sense.
15. The whole language of subsection 2 imputes that the notice must be given pre trial. In NZ the rationale for giving notice under s22 of their Evidence Act is to “encourage admissibility decisions concerning hearsay to be made pre trial where possible.”^[4] This rationale was implicitly referred to by Justice Simon France in R v Foreman (No 17)^[5] when the application to offer hearsay evidence was made by the defence during the trial. The learned judge there was unwilling to accept that an application to offer hearsay evidence from an expert during the course of the trial amounted to notice. In his words:

“Although s22 has no express time limit, the general concept must be pre-trial. Perhaps with Defence evidence it might be later, although I struggle to see why....For the avoidance of doubt I therefore reject the proposition that s22 was complied with”.

16. The same s22 rationale is reflected in the comments of the NZ Supreme Court in Morgan v R^[6] where it was said that “such notice provides the opportunity to the other party to oppose the admission of the evidence and to obtain rebuttal evidence where the hearsay is admitted”. This applies equally to our s10.
17. We have here the Prosecution on the 3rd day of the trial, seeking to rely on this s10 to admit as the truth hearsay statements. To stem the injury to the Defence, Ms Sio proposes that the matter be adjourned for her to obtain the statements and the Defence can then reply. With all due respect to Ms Sio, I simply cannot entertain her request as it would be to go against the spirit and rationale of s10(2). The law speaks, it should be obeyed
18. Here, there was no prior notice given by the Prosecution to the defence as required under s10(2). I also note here that none of the situations in (1)(b)(i) & (ii) apply here as the witnesses are very much alive but they refuse to cooperate with Police. So with all due respect this provision does not assist the prosecution at all. As I said above, the wording of the provision is clear. Prosecution should have given notice within sufficient time to the defence of its intention to call hearsay evidence. The provision does not say Prosecution can pick and choose as they see fit during the trial when to give notice. The provisions goes to the constitutional rights relating to a fair hearing and Mr Betham is entitled to know in advance the evidence against him and if required prepare evidence in rebuttal.
19. Given the above reasons, I therefore rule s10 Evidence Act was not complied with, there being no pre trial notice and the statement is excluded on that basis apart from the fact it is strictly hearsay.

Non disclosure and Prejudice to Defence

20. The law on the disclosure of trial documents is settled as previously set out under s21 of the repealed CPA 1972 with the leading authority being Toailoa Law Office v Duffy.^[7]
21. Toailoa v Duffy was an appeal to the Supreme Court from the District Court on a decision by Judge Vaai (as he was known then), to dismiss criminal charges brought by private prosecution for the non disclosure of trial documents. The learned CJ Sapolu there held that the proper remedy where there is an allegation of insufficient time to prepare a defence and prospective breach of the right to a fair trial is to adjourn the matter to give the Respondent adequate time to prepare his defence. In his view this would have satisfied the Respondent's specific right provided in Article 9(4) (b) and at the same time safeguard his primary right to a fair hearing provided in Article 9(1).
22. As noted by the learned CJ Sapolu in Toailoa v Duffy, New Zealand’s approach to the question of the Crown’s obligation to supply briefs of evidence to the defence and the action for the Court to take under s.368 of the Crimes Act 1961 (NZ) when there is non-compliance with that obligation was summarised by Cooke P in R v Accused[8]:
    • “It is the standard and proper practice to supply the defence with a copy of the brief of the proposed new evidence: see Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 3394, 400. If this pras practice is not followed the ordinary rery remedy of the defence is to ask for an adjournment or postponement. We accept, however, that there may be cases in which the inherent jurisdiction to ensure a fair trial the trial Judge may rightly conclude that an adjournment or postponement would be unduly prejudicial to the accused, and may decline to allow the prosecution to add to the scope of the proposed evidence or to call an added witness. Some unreported rulings of that kind are collected in a ruling of Tompkins J in R v Murray (New Plymouth, T 17/9March arch 1991). These rulings have been given on applications by the Crown for leave to call additional evidence. Such applications represent an appropriate practice, but the basic juriion i inherent one juse just ment mentioned.”
23. As mentioned above, Ms Sio also relies on ss46, 47 and 81 CPA. Section 46, deals with the Prosecution’s duty to disclose to the Defendant and Court, within a reasonable time before trial, all statements made by the Defendant and witnesses the Prosecution proposes to call, whether given in writing or verbal.
24. Section 47 then deals with adjourning the trial for a witness. It provides at subsection (1) that:

“If the Court is of the opinion that the Defendant is taken by surprise in a manner likely to be prejudicial to the Defendant’s defence by the calling of Prosecution witnesses:

Who has not made a written statement of the intention to produce whom the Defendant has not had sufficient notice; or

The Court may on application by the Defendant either adjourn the further hearing of the case or, if the case requires, discharge the assessors from giving a verdict, and postpone the trial.”

25. As the above s46 indicate, the rule of law requires that ALL documents must be disclosed within a reasonable time before the trial. As recognised in Toailoa v Duffy this goes to the Constitutional right of a defendant to prepare for his or her defence as guaranteed under Article 9 (4) (b) as well as the primary right to a fair hearing under Article 9 (1).^[9]
26. In terms of s47, as I expressed to Counsel in Chambers, it is discretionary and only operable if Mr Betham as the Defendant here, so requests an adjournment where he is caught by surprise in a manner likely to be prejudicial to him due the proposed undisclosed evidence. But here, Mr Betham is not requesting an adjournment rather he objects to it. It is the Prosecution who is seeking to rely on this provision which in my view does not provide a remedy at all for them. Even though this Court does have inherent powers, I will not exercise this for the same reasons canvassed in this decision. .
27. This matter as all involved are well aware has a protracted history. From the time of investigations to the present it is now spanning 4 years. The 31 remaining counts against Mr Betham were filed on 22/12/15. So from that date to now, it is approximately 2 years and almost 4 months. Since then it has gone through a number of adjournments. When I took over the file, it had already been on a final adjournment. Most of those adjournments were by the Prosecution and Court.
28. On 10/07/17 Defence Counsel sought an adjournment with the consent of Prosecution who was ready to proceed due to a case commitment in the Supreme Court. There was an indication of the possibility of settling the matter. So it was adjourned to 30/10/17 for hearing but in the meantime counsel to continue to negotiate. It was to be a grand final adjournment. On that date a meeting in chambers was requested whereby Prosecution intimated there was a real possibility of settlement. Mr Schuster was in agreement. So again the matter was adjourned for mention this time for the parties to continue dialogue on settlement as intimated. On 14/11/17, the matter was recalled whereby the Court was informed that negotiations had been unsuccessful. The matter was then set down for hearing with no further adjournments.
29. On Wednesday 21/03/18, we commenced the trial. A witness list was produced not once was there an indication from the Prosecution of an intention to produce the LDS reps as witnesses. On Thursday 22/03/18, Prosecution sought to have the afternoon off to review their position again indicating there was a real possibility of withdrawal of all the charges. The main reason they say is because of the evidence adduced in Court from their witness that the investigations only commenced after Mr Betham made the payment. I allowed that indulgence but the next day Prosecution turned up and said they would still be proceeding with the trial. In the afternoon of 23/03/18, this evidence came through.
30. Ms Sio relies on s81 which deals with summoning witnesses to appear to give evidence. She says that given the uncooperative attitude of the LDS reps she will be seeking this and if they fail to comply then she will seek a warrant of arrest under s82 CPA. With respect to Ms Sio, however, whilst this might be of benefit to her side, the proposal completely disregards the interests of the defence and the primary concern for a fair trial.
31. Mr Schuster has argued there is prejudice to his client due to the non disclosure of this evidence within a reasonable time and I am inclined to agree with him. Here I accept that the defence will be unduly prejudiced by a further adjournment of this matter to allow the prosecution to collate this evidence from the LDS reps. I have consulted Toailoa v Duffy and am of the view that case is distinguished in that it involved the trial documents only been disclosed three days prior to the trial. There the learned CJ Sapolu held that there was no evidence that an adjournment would have been unduly prejudicial to the Defendant. I note here that there were other trial documents disclosed during the trial but leeway was allowed there. The Defence accepted the late disclosure acknowledging that their only remedy is an adjournment.
32. Here, we have a trial on foot for three days in a row. It has a protracted history of being in the system since the date of filing for two years and almost 4 months. This infers that during this lengthy time frame, Prosecution should have gotten their act together and collate all the evidence they require. When they make the call to proceed with the trial then in fairness to Mr Betham, he must know in advance the evidence against him so he may prepare for his defence. Not the Prosecution filling the loopholes and ad hocly changing its position during the trial as the evidence unfolds and expect the Court to entertain this application once again in clear contravention of Article 9 Constitution. Yet this matter has already been through too many adjournments. The need for finality and closure is overwhelming.
33. As I said above, the witness taking the stand at the moment is basically referring to hearsay evidence and the Prosecution are still tossing the coin whether to call the LDS reps. In the meantime what they intend to say is unknown to Mr Betham. Is this prejudicial? Yes it is. Will the hearsay evidence if allowed operate unfairly to Mr Betham. Yes it will. Prosecution has had more than ample time to sort this out. I most certainly do not condone Prosecution embarking on a fishing expedition during the course of this trial. Nor do I tolerate a trial by ambush.
34. If I am to allow this evidence and application for an adjournment, it will open a can of worms which is not conducive at all to the due administration of justice or fair hearing for that matter.

CONCLUSION

35. The end result of this matter is:
    1. The hearsay evidence is disallowed and excluded.
    2. The application for an adjournment to take statements from the LDS reps and to serve the defence is refused. It follows that the proposed application for witness summons and warrants of arrest should they fail to comply is also refused.
36. This matter will continue to trial on 4/04/18.

JUDGE ALALATOA R VIANE PAPALII

---

^[1] Toailoa Law Office v Duffy [2006] 2 LRD 138
^[2] Mahoney R, Mcdonald E, Optican S, Tinsley Y The Evidence Act 2006: Act and Analysis (2014, Brookers) at 92. Also see P v Holdaway DC Nelson CRI-2011-042-2682, 15 May 2012 at 14.
^[3] Ibid also see P v Khelawon 2006 SCC 57 [2006] 2 SCR 787.
^[4] Ibid.
^[5] R v Foreman (No17) HC Napier CRI-2006-041-1363, 21 May 2008 at [14].
^[6] Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at [16].
^[7] Supra n 1
^[8] R v Accused [1992] 2 NZLR 187 at 193.
^[9] Supra n 1.