Police v Seiuli [2018] WSDC 7 (5 April 2018)

DISTRICT COURT OF SAMOA
Police v Seiuli [2018] WSDC 7

Case name:	Police v Seiuli
Citation:	[2018] WSDC 7
Decision date:	05 April 2018
Parties:	POLICE (Informant) and WALKER SEIULI, male of Saleaumua & Afulilo (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa R Viane Papalii
On appeal from:
Order:	This Court has the power to end proceedings where justice requires and where there is an abuse of process. For the reasons canvassed here, the information against Seiuli is therefore dismissed and /or quashed.
Representation:	Attorney General for Prosecution Mr L J Brunt for Defendant
Catchwords:
Words and phrases:	Charged with giving false information – Change of Plea, delay in filing charge in breach of s16 Criminal Procedure Act 2016- abuse of process- miscarriage of justice
Legislation cited:	Constitution of Samoa Article 9(4) (a) Criminal Procedure Act 1972 s.12 Criminal Procedure Act 2016 s.16 District Court Act 2016 s.66
	Police Offences Ordinance 1961 s.10(2)
Cases cited:	Asian Taste Company Ltd v Ah Sam [2017] WSDC 8 Mataafa v MOR [2017] WSDC 14. Meredith Ainuu Lawyers v Muagututagata Peter Ah Him [2006] WSSC 55. R v Connelly [1964] AC 1254 at 1301; Toailoa v Duffy [2006] 2 LRD 138 Watson v Clarke [1990] 1 NZLR 715
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

WALKER SEIULI of Saleaumua & Afulilo
Defendant

Representation:
Attorney General for Prosecution
Mr L J Brunt for Defendant

Submissions: 5 April 2018
Ruling: 5 April 2018

RULING ON OUT OF TIME CHARGE

INTRODUCTION

1. On 15 August 2017, the Defendant Walker Seiuli (“Seiuli”) through Defence Counsel pleaded not guilty to a charge alleging that on 13/09/2013, he gave false information to Constable Viane Faletoese with the intention of misleading him in the execution of his duties.
2. The matter came for hearing before me on 5 April 2018. When it was first called Prosecution informed they were ready to proceed. However, Defence Counsel did not appear and I stood it down for Seiuli to contact his lawyer to appear and to inform him that the matter will proceed as scheduled. Mr Brunt eventually appeared when the matter was recalled and apologised for his tardiness as he was engaged in a mediation. I informed him that there will not be any further adjournment and that the matter will proceed. He sought to stand down the matter so he may confer further with his client.
3. When the matter was recalled, Mr Brunt sought to vacate the plea and substitute it with not guilty. He also requested if the matter could proceed to sentence. Prosecution were ready to deliver the summary of facts orally. I accepted the change of plea and proceeded to hear from Prosecution on the oral SOF where they confirmed the maximum penalty for the offence was 3 months imprisonment.
4. Naturally, I was troubled about this being aware of the time limitation for filing of charges relating to offences with a maximum imprisonment term of 3 months. I also noted from the information that the alleged offending took place on 19 September 2013. The information was laid on 22 July 2017. I enquired with Counsel if they were aware of the statutory limitation provision for filing certain charges in the Criminal Procedure Act 2016. It seemed both were caught by surprise but acknowledged there is such a provision. I took a break to consult the CPA as did not have the Act with me.
5. When the matter was recalled, I drew counsel’s attention to s16 CPA and that on my reading of the Act and applying that to the information laid on 22/07/17 it was out of time, unless Prosecution could rely on subsection (2) to persuade me otherwise. I also enquired with the Prosecution if the alleged date of the offending remained the same, and they confirmed this. It was also explained that it was only in July 2017 when Seiuli was reinterviewed by Police that it was discovered he allegedly gave false information in September 2013, hence the late filing of the charge.
6. Prosecution conceded the charge was caught by s16 CPA but they put forth that the Court can take this into account as a factor in mitigation. For the defence, Mr Brunt indicated he was going to address this in mitigation as well. I must say this approach does not sit well with me.

ANALYSIS

7. Section 16 provides for the time and place for laying an information. It states:

“(1) Any information for an offence the maximum penalty for which does not exceed three (3) months imprisonment is to be laid within 12 months of the time that the offence is alleged to have been committed.

(2) Subsection 1 does not apply if any other period for the laying of an information is provided by an enactment.”

8. I had queried Prosecution if they were aware of any other enactment they could rely on under subsection (2) to get around subsection (1). The answer was “No”. So this subsection (2) does not apply here.
9. The criminal charge as I said above is brought pursuant to s10(2) Police Offences Ordinance 1961 which states that:

“A person who willfully gives false information to a constable with intent to mislead him or her in the execution of his or her duties commits an offence and is liable to imprisonment for a term not exceeding 3 months.”

10. Section 16 CPA is basically the same as s12 of the repealed CPA 1972. The only difference is the latter also included offences with a fine of $50. It is crystal clear from the information that the incident leading to the offence allegedly took place on 19 September 2013. The charge here was not laid until 22 July 2017 some 3 years and 10 months later after the alleged incident. Whatever the explanation for the delay, the fact of the matter is, according to s16 CPA, this charge should have been filed by 20 September 2014 which is precisely a year after the incident.
11. Both Defence Counsel and Prosecution seem to be of the view that I can take this into account as a factor in mitigation. I do not favour this at all. I am bothered by a bigger concern of whether it is in the interest of justice that Seiuli be sentenced at all on this charge which was filed way out of time and in clear contravention of s16 CPA. I am also mindful that Seiuli had denied the charge right through but it was at the last hour that Counsel informed of the change of plea. Perhaps if defence counsel had cast his mind to this issue, it would have become apparent that a change of plea would not have been appropriate rather an application to quash the information should have been put forth. For the Prosecution, they should have considered withdrawing the charge rather than insisting on proceeding to sentence and suggesting using this as a mitigating factor.
12. For my part, I cannot close my mind to the fact that there is a statutory provision dictating the time limit from which Police should file a charge of this nature. It should have been complied with. It is not the job of the Court to ascertain when to lay any information against an accused. That is strictly the Prosecution’s job. But it is my job to see to it that justice prevails.
13. Section 16 CPA is there for a reason. The policy in my view is to ensure the prompt prosecution of criminal charges and spare the defendant from the burden of having to defend a charge(s) after memories may have faded and possibility of evidence being tampered or lost. I venture further to say it also goes to the Constitutional right of an accused under Article 9(4) (a) to be informed promptly of the nature and cause of the charge against that person.
14. This Court has inherent powers to ensure its processes are not used as an instrument of oppression or otherwise abused.^[1] It is the same powers which enable it to act effectively within its criminal jurisdiction.^[2] In addition, this Court also has statutory powers under s66 District Court Act 2016 to quash an information where there has been a miscarriage of justice.
15. What may be deemed as a miscarriage of justice has been traversed authoritatively in cases such as Meredith Ainuu Lawyers v Muagututagata Peter Ah Him.^[3] This was an appeal from the District Court on a private prosecution for contempt of Court. The learned CJ Sapolu there stated that a miscarriage of justice would occur if the defect, irregularity or want of form has caused the defendant prejudice or has resulted in an abuse of process. What tantamount to an abuse of process is also settled law.[4]
16. I reiterate the legal proceeding here was brought outside of the time limited by s16. It should have never gotten this far. In my view, the fact that it even got to this stage is in itself an abuse of process that is prejudicial to Seiuli who has had to appear in Court a number of times to answer to this out of time charge. Perhaps with some due diligence (as in checking the law), the charge might not have been brought thereby avoiding it being in the criminal system for 8 months. But even when the statutory limitation was discovered this morning, Prosecution still persisted with it.
17. In my view the conduct of the Prosecution of this charge does “offend the Court’s sense of justice and propriety and strikes at the public’s confidence in the Court’s processes.”^[5] So there is an abuse of process. Ultimately, there will also be a miscarriage of justice if I am to even entertain sentencing Seiuli in the clear knowledge the charge is statute barred.

CONCLUSION

18. This Court has the power to end proceedings where justice requires and where there is an abuse of process.
19. For the reasons canvassed here, the information against Seiuli is therefore dismissed and /or quashed.

JUDGE ALALATOA R VIANE PAPALII

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^[1] Watson v Clarke [1990] 1 NZLR 715 at 718.

[2] R v Connelly [1964] AC 1254 at 1301; also see Toailoa v Duffy [2006] 2 LRD 138, Asian Taste Company Ltd v Ah Sam [2017] WSDC 8 & Mataafa v MOR [2017] WSDC 14.

^[3] Meredith Ainuu Lawyers v Muagututagata Peter Ah Him [2006] WSSC 55.
^[4] See Toailoa v Duffy supra n 2.
^[5] Ibid