IN THE FAMILY VIOLENCE COURT OF SAMOA
Police v Brown [2022] WSFVC 1 (08 April 2022)

Case name: 	Police v Brown	
		
Citation: 	[2022] WSFVC 1	
		
Decision date: 	08 April 2022	
		
Parties: 	POLICE (Informant) v LILITH BROWN (Defendant)	
		
Hearing date(s): 	25 March 2022	
		
File number(s): 		
		
Jurisdiction: 	Family Violence Court (District) – CRIMINAL	
		
Place of delivery: 	Family Violence Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Atoa-Saaga	
		
On appeal from:		
		
Order:	The charges are hereby dismissed and the application for cost is dismissed.	
		
Representation: 	Mr. Pickering for Prosecution
Ms. Faafiti Lo Tam for Defendant	
		
Catchwords: 	Assault – threatening words – insulting words – familial relationship (complainant and victim) – domestic.	
		
Words and phrases:	“application for stay of Prosecution” – “application for dismissal of charges” “application for costs” – “abuse or process” – “miscarriage of justice”. 	
		
Legislation cited:	Constitution of the Independent State of Samoa 1960, Articles 4; 9(1);
Criminal Procedure Act 2016, ss. 28; 62; 188(2); 191;
District Court Act 2016, s. 66.	
		
Cases cited:	Martin v District Court at Tauranga [1995] 2 NZLR 419;
National Prosecution Office (NPO) v Tavaseu [2016] WSSC 182;
Phillips v Police [2017] WSSC 5;
Police v Phillips [2018] WSCA 8;
Police v Ropati [2005] WSSC 8;
Police v Solomona [2004] WSDC 14,
R v Morin [1992] 1 SCR 771;
Toailoa Law Office v Duffy (2006) 2 LRC 138.	
		
Summary of decision:		

IN THE FAMILY VIOLENCE COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

LILITH BROWN

Defendant

Representation:	Prosecution represented by Mr. Pickering
.			Defendant Represented by Ms. Faafiti-Lo Tam

Hearing Date:		25th March 2022
Decision:		8th April 2022

DECISION
INTRODUCTION
1. 	The Defendant is a New Zealand citizen who moved to Samoa to be her mother’s primary caregiver. On the 12th of May 2021, she was arrested and held in custody by the Police on three charges of assault, threatening words and insulting words on the 3rd April 2021. The Defendant’s elderly mother is the Complainant. The Defendant was subsequently released on restrictive bail conditions on 24th May 2021 after entering a Not Guilty Plea to all the charges. 
2. 	The Defendant is now seeking a permanent stay of proceedings and dismissal of the three charges against her due to the alleged delay and inaction by Prosecution to proceed with the hearing of the matter on three separate dates. Costs are also sought against Prosecution for legal fees incurred to date.
3. 	The Defendant also submits that there has been a violation of her right to a fair trial within a reasonable time under Article 9(1) of the Constitution.
 BACKGROUND INFORMATION
4. 	The Defendant was arrested on the 12th of May 2021 for allegedly committing the aforementioned offences on her elderly mother on the 3rd of April 2021. 
5. 	The Defendant was only released from custody on the 24th of May 2021 when she entered a Not Guilty plea to all three charges and a hearing date was scheduled on the 28th of July 2021. She was remanded on bail to sign at the Police Station at Apia, not to contact the victim, to reside with a relative in a village in Apia and to surrender all her travel documents.
6. 	On the 28th of July 2021, the Defendant was ready to proceed with the hearing but the hearing did not proceed as Prosecution was not ready to proceed due to the unavailability of the victim who was medically unfit to attend court proceedings. No medical certificate was provided. The Court allowed the adjournment on the consent of the Defendant. The hearing was rescheduled to 21st October 2021. 
7. 	On the 21st of October 2021, Defendant was not available to attend proceedings. She was hospitalized from multiple stab wounds. A letter from the attending Doctor supported an adjournment. The Prosecutor initially advised that it was ready to proceed but admitted subsequently when an objection was raised by Defence Counsel, that it had not summoned any witnesses nor prepared to proceed with the matter
8. 	Both Prosecution and Defence Counsel agreed to an adjournment to 15th November 2021 to set a new hearing date. On 15th November 2021, both agreed for the hearing to be scheduled on 2nd March 2022.
9. 	On the 2nd March 2022, Prosecution advised that it was not ready to proceed and sought an adjournment. The Grounds for the adjournment are:
(a) 	The victim was bedridden and the Prosecution has not had the opportunity to discuss with the Victim the taking of her evidence outside the courtroom.
(b) 	Prosecution has not been able to obtain medical evidence as to the fitness of the victim to give evidence.
(c) 	Prosecution cannot confirm whether the Victim still wanted to proceed with the case.
10. 	Defence Counsel opposed the application and filed a Memorandum to the Court for the dismissal of charges.
11. 	Prosecution opposed the application for dismissal of the charges and requested time to file a response.
12. 	The Court granted an adjournment for Defence Counsel to file a written application and submissions on 11th March 2022 and for Prosecution to provide a written response by 18th March 2022. The Court was to hear submissions on the 25th of March 2022.
13. 	The Application for the Stay of Prosecution and Dismissal of Charges was filed on the 11th March 2022 with a copy served on Prosecution on the 14th March 2022. Prosecution did not file any written responses until the 25th March 2022.
Memorandum to the Court for dismissal of charges
14. 	The Memorandum to the Court filed on 2nd March 2022 opposed the granting of another adjournment as it was in breach of the principles of natural justice and the Defendant’s constitutional right to a fair and public hearing within a reasonable time. Defence Counsel sought the dismissal of charges for want of prosecution. 
Application for a Stay of Prosecution and Dismissal of Charges and Costs
15. 	On the 11th March 2022, an Application for the Stay of Prosecution and Dismissal of the charges and an Application for Costs were filed with an Affidavit by the Defendant in support on the ground that there has been a miscarriage of justice.  
16. 	The Defendant deposes in her affidavit the adverse circumstances that she was subjected to because of the charges laid against her due to the inaction of Prosecution and delay in proceeding with the hearing of this matter on the dates scheduled by the Court. 
17. 	The Defendant further deposes the prejudice to her personally and emotionally because of the restrictive bail conditions imposed on her which prohibited her from seeing her mother or return to New Zealand to provide care for her 22 year old autistic daughter who had also been diagnosed with global development delay. 
18. 	The Defendant also sustained injuries from a separate matter by which she is a beneficiary of a Protection Order. What has been submitted as relevant for the Court’s consideration notwithstanding that the Protection Order is a separate matter is that the delay in finalising this matter will jeopardise her safety and her health as the injuries that she had sustained in that matter requires a further assessment by her doctor in New Zealand. The Defendant was scheduled to leave on 4th June 2021 but because of this matter and her bail conditions, the funds are currently on credit until 4th June 2022 and will be forfeited if she is unable to travel.
Submissions in support of Application for Stay of Proceedings and Dismissal of Charges
19. 	The Submissions in Support of the Application to Stay Prosecution refers to Article 4 and 9(1) of the Constitution and the District Court’s statutory jurisdiction under Section 66 of the District Court 2016 which Counsel purports provides the Court with the jurisdiction and power to dismiss the charges for miscarriage of justice.
20. 	Defence Counsel relies on National Prosecution Office (NPO) v Tavaseu [2016] WSSC 182 in which her Honour Justice Tuala Warren reaffirmed the District Court statutory power and an inherent power to dismiss an information where the Court is satisfied that there has been a miscarriage of justice and that a miscarriage of justice will occur when there is an abuse of process.
21. 	Her Honour also referred to Toailoa Law Office v Duffy (2006) 2 LRC 138 in which the Sapolu CJ stipulated that,
22. 	“The experience of other common law jurisdictions, for example, England, Australia and New Zealand have shown that the circumstances which may constitute abuse of process are varied that the categories of circumstances which constitute abuse of process cannot be defined exhaustively. It is therefore often said that the categories of abuse of process are not closed. In the context of criminal proceedings, some of the situations which would constitute abuse of process include the bringing of a prosecution for an improper purpose or ulterior motive, conduct on the part of the prosecution which has made it impossible to achieve a fair trial or deliberate noncompliance with orders of the Court which have tarnished the integrity of the Court.”
23. 	Counsel for the Defendant also referred to Justice Tuala Warren’s conclusion that it is settled law that delay may constitute an abuse of process and it was essential for the Court to explore the circumstances and facts of the case to determine whether such circumstances would amount to an abuse of process because they offend the Court’s sense of justice and propriety or strike at the public confidence in the Court’s processes and diminish the Court’s ability to fulfill its function as a Court of law” or tarnish the Court’s own integrity.”
24. 	Counsel also relied on Police v Ropati [2005] WSSC 8 (17 May 2005) in which Sapolu CJ referred to the New Zealand Court of Appeal decision of Martin v District Court at Tauranga [1995] 2 NZLR 419 which cited with approval the Supreme Court of Canada decision in R v Morin [1992] 1 SCR 771 which provided the following factors to be considered in analysing whether the delay has been reasonable or not:
25. 	 Length of the delay
(a) 		Waiver of time periods-
(b) 		the reasons for the delay, including
(c) 	Inherent time requirements of the case; -
(d) 	 Actions of the accused; -
(e) 	 Actions of the Crown
26. 	Counsel also addressed these Morin factors individually in substantiating a stay of proceedings due to the unreasonable delay which is submitted as an abuse of process and therefore a miscarriage of justice.  
PROSECUTION’S RESPONSE TO THE APPLICATION AND SUBMISSIONS FOR STAY OF PROCEEDINGS
27. 	Prosecution opposes the application for want of prosecution and for stay of proceedings. In respect of the former ground for dismissal, Prosecution submits that the charges cannot be dismissed for want of Prosecution as Prosecution had appeared on all three occasions when the matter was called. In respect of the latter ground, Prosecution inadvertently refers to Section 66 of the Criminal Procedure Act 2016. 
 APPLICATION FOR COSTS TO BE PAID TO THE DEFENDANT
28. 	Defendant seeks Costs against Prosecution and relies on Section 188(2) of the Criminal Procedure Act 2016. 
29. 	Counsel for the Defendant relies on Phillips v Police [2017] WSSC 5 in which Justice Tuatagaloa refers to the two limb test and two part evidential sufficiency test in determining whether costs should be awarded.
30. 	It is submitted that Prosecution should not have proceeded with the 3 charges and that this is a proper case in which the Court should order that costs be awarded to the Defendant.
31. 	Defence Counsel also refers to the legal costs incurred by the Defendant in paying for her legal representation and having to comply with the bail conditions imposed by the Court. She had to be supported financially from New Zealand by her 20 year old daughter also as she had to find alternative accommodation and provisions while awaiting the outcome of this matter. 
PROSECUTION’S OPPOSITION TO PAYMENT OF COSTS
32. 	Prosecution opposes the application and submits that under Section 188(2), both limbs should be satisfied before costs can be awarded. Prosecution refers to Court of Appeal decision of Police v Phillips [2018] WSCA 8 which overturned Phillips v Police [2017] WSSC 5.
33. 	Prosecution submits that evidence has not been adduced yet and that said charges are supported by evidence and the Statement taken by Police has not been tested yet. The Protection order issued for the Defendant is not part of the Hearing. 
34. 	In conclusion, Prosecution submits that there is evidence to support the charges. Prosecution further concludes that there is no evidence to cause a reasonable person to suspect the Defendant.  I am inclined to treat the “no” in the second conclusion as inadvertently inserted as that will supports the salient points covered in the preceding paragraphs of Prosecution’s submission. 
DISCUSSION
35. 	Defence Counsel on behalf of the Defendant has filed a Memorandum and subsequently an Application and Submission for the dismissal of charges on various grounds. In the Memorandum for want of prosecution. In the Application on the ground of Miscarriage of Justice and additionally, in the Submissions, on the infringement of the Defendant’s right to a fair trial under Article 9(1) of the Constitution. 
Want of Prosecution
36. 	The power of the Court to dismiss charges for want of prosecution is provided under Section 62 of the Criminal Procedure Act 2016 which stipulates that,
37. 	“Powers of Court if prosecutor does not appear – 
(1)	 If the defendant is in custody or has been released on bail and the prosecutor has not had adequate notice of the trial, the Court must adjourn the trial to a time and place and on any conditions as it thinks fit to enable the prosecutor to appear. 
(2)	 In any other case, the Court may: (a) dismiss the information for want of prosecution, if the prosecutor does not appear.
(3)	 If the information is dismissed under subsection (2)(a), the Court may, upon application by the prosecution, grant leave to refile the information if the Court is satisfied that the prosecutor has a reasonable excuse for non-appearance.” (Bold for emphasis)
38. 	The Prosecution has made appearance on the 28th July 2021, 21st October 2021, 15th November 2021 and 2nd March 2021. The Court cannot dismiss the charges for want of Prosecution pursuant to Section 62 of the Criminal Procedure Act 2016 because on all these dates, a Prosecutor has appeared.
Abuse of Process and Miscarriage of Justice
39. 	The crux of the Defendant’s Application and Submission is for the Court to Stay the Prosecution and dismiss the charges because there has been an abuse of process amounting to a Miscarriage of Justice due to the Prosecution’s inaction and delay in prosecuting this matter. This miscarriage of justice is submitted as an infringement also of the Defendant’s right to a fair trial under the Constitution justifying a permanent stay of proceedings.
40. 	Essentially, there are two sources of the Court’s power to bring criminal proceedings to an end on the ground of undue delay. By virtue of the Court’s statutory jurisdiction and inherent power to prevent the abuse of process amounting to a miscarriage of justice and secondly when there is an infringement of the person’s right to fair trial. These are separate jurisdictional issues which can be simultaneously invoked. 
41. 	The District Court has a statutory power under Section 66 of the District Court Act 2016 and under Section 28 and 191 of the Criminal Procedure Act 2016 to dismiss charges if there is a miscarriage of justice. A miscarriage of justice will occur when there is an abuse of process. I take cognizance that the Court also has an inherent power to prevent the abuse of Court processes which has been explained by Woodhouse J in Moevao v Department of Labour as not confined to the procedures and practices of the Court system but as against the much wider and serious abuse of the criminal jurisdiction.
42. 	 In Toailoa Law Office v Duffy (2006) 2 LRC 138 stipulated at page 159 that,
	“In the context of criminal proceedings, where there is a complaint of abuse of process, there are two fundamental policy considerations which the Court must take into account in dealing with such a complaint. This was explained in Williams v Spautz [1993] 2 LRC 659 at 667-668 in a joint judgement delivered by Mason CJ, Dawson, Toohey and Mc Hug JJ where their Honours said,
	“As Lord Scarman said in R v Sang [1979] 2 All ER 1222 at 1245, every court is in duty bound to protect itself against an abuse of process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464 at 481 in a passage that Mason CJ quoted in Jago v District Court (NSW) (1989) 168 CLR 23 at 30. The first is that the public interest in the administration of justice requires that the Court protect its ability to function as a court of law by ensuring that the processes are used fairly by state and citizen alike. The second is that, unless the Court protects ability so as to function in that way, its failure will lead to the erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.”
43. 	Sapolu CJ further stipulated, “One of the recognized categories of abuse of process at common law is the prosecution of a criminal proceeding which will result in a trial which is unfair or conduct on the part of prosecution which will make it impossible to give the defendant a fair trial. “
44. 	After canvassing numerous authorities both in Australia and New Zealand Sapolu CJ in Toailoa Law Office v Duffy also reaffirmed the jurisdiction to grant a permanent stay of criminal proceedings on the ground of abuse of process is one which is not to be exercised except in the clearest of cases or in another way, exercised in the most exceptional circumstances or is one which must be exercised carefully and sparingly and only for compelling reasons. 
45. 	In Police v Solomona [2004]	WSDC 14, the District Court dismissed charges for the failure of Prosecution to provide trial documents on time. On the date of hearing of submissions, Prosecution did not appear nor provided Submissions as ordered by the Court.
46. 	In NPO v Tevaseu, the Supreme Court dismissed an appeal against the decision of the District Court Judge who had dismissed two informations due to the delay in the Prosecution finalisation of the charges. The Supreme Court found that Prosecution’s action was an abuse of process and that the granting of another adjournment after a final adjournment would undermine the Court’s ability to function as a Court of Law and would tarnish the integrity of the Court’s processes and undermine the public confidence in the administration of justice. The Court also found an adjournment as an inappropriate remedy and that a stay of proceedings and the dismissal of the charges were inevitably justified. 
47. 	In Toailoa v Duffy the Court allowed an appeal against the decision of the District Court to dismiss a charge on an abuse of process for the failure of Prosecution to serve trial documents within the time frame ordered by the Court for service on the Defendant. According to the Court in this case, something much more serious than that is required for a stay of proceedings and an adjournment was a more appropriate remedy than a permanent stay of proceedings.
CURRENT APPLICATION
48. 	Determination of an abuse of process can commence from events prior to the laying of charges and post charges to trial stage. 
49. 	The Defendant was arrested on the 12th May 2022 on allegations of offences committed on her mother on the 3rd April 2022. She was held in custody for two weeks and released on the 24th May 2020 on bail conditions which prohibited the Defendant from returning home to Lotopue or visiting her mother. Secondly, by surrendering her passports, she could not travel to New Zealand as scheduled on 4th June 2021 until after the matter is heard. While these events have caused the Defendant emotional and physical distress, these are not peculiar to her and are part and parcel of the criminal process that cannot be circumvented once charges are laid. Nevertheless, these factors can be placed on the scale with the post charges factors if any in determining whether there has been in fact an abuse of process.
50. 	The Court has scheduled 3 hearings dates on 28th July 2021, 21st October 2021 and 2nd March 2022. Defendant has submitted that on all three hearing dates, Prosecution was unable to proceed despite the inaccurate advice on 21st October 2021 to gain momentarily an advantage due to the absence of the Defendant for a justifiable reason. 
51. 	Counsel for the Defendant has asked the Court to consider that the constant follow up with the Office of Prosecutions on the 29th June 2021, 30th June 2021, 12th July 2021 and 14th July 2021 in which she received no response notwithstanding she copied and wrote to all the Senior Prosecutors who could have assisted in progressing this matter to a hearing.
52. 	On the 15th February 2022 and 1st March 2022, Defence Counsel also advised the Prosecution that they were ready to proceed and only received a response on the 1st March 2022 late in the afternoon from Prosecution that they were not ready to proceed for reasons which were later conveyed on 2nd March 2022. 
53. 	In all fairness to the current Prosecutor who only had carriage of the file for the 2nd March 2022, the reasons for the adjournment are substantially the same as the reason for the adjournment on 28th July 2021. Essentially, Prosecution had not verified, confirmed and proceeded to arrange an alternative way of giving evidence by 2nd March 2022. 
54. 	The District Court has the highest volume of cases with the maximum penalty of 7 years imprisonment. The most common offences that are filed by the Court are offences of common assault, threatening words and insulting words. The current charges filed against the Defendant fall into this category of the most common offences which can be expedited within 3 months-6 months from the date of mentions if parties are able to proceed.
55. 	The adjournments sought by Prosecution of which the Defendant consented to two, have now resulted in 3 Court hearing scheduled and a fourth hearing if allowed. Disproportionately, these 3 hearings are scheduled for a matter that is not all complex nor complicated. No evidence or information has been provided by Prosecution to rebut or refute the matters raised in the Application to justify the lengthy process and lack of preparations and progress in the matter. 
56. 	In my respectful view, the inaction and delay by Prosecution in prosecuting and proceeding with the hearing dates is unjustified and is an abuse of process which offend the Court’s sense of justice and propriety and strike at the public confidence in the Court’s processes and diminish the Court’s ability to fulfil its functions as a Court of law.
REMEDY
57. 	A stay of proceedings and dismissal of charges does not necessarily trigger a permanent stay of proceedings if there is an appropriate remedy. A stay of proceedings involves the weighing of the public interest in bringing to trial those who have been charged with criminal offences against the reasons justifying the stay.
58. 	The Court must also consider whether there are any other remedies that the court can consider which in this case will be another adjournment or an expedited hearing. Should the Court consider an expedited hearing, the likely hearing date will be scheduled after the 19th June 2022.  If adjourned to a normal hearing, a likely date will be 31st July 2022 as the Court has to reschedule all other matters from the weeks of lockdown. Defence Counsel had objected to another adjournment and submits that an expedited hearing cannot cure the delay.
59. 	Prosecution has not provided any grounds for rebuttal other than a blanket opposition to the dismissal of charges. What is disconcerting is the advice from current prosecutor on 25th March 2022, that there has not been any progress since the 2nd March 2022 as the Investigating Officer has not been able been to confirm whether the victim is able to proceed with the hearing.
60. 	With COV 19 lockdown restrictions and Police now at the forefront of monitoring Lockdown restrictions, I will accept the predicament faced by Investigating Officer in having to prioritise this investigation during the period of lockdown from 18th March 2022 to 25th March 2022. The country however has not been in lockdown from 2nd March 2022 to 18th March 2022 when submission from Prosecution was due and neither was the Investigating Officer or the Prosecutor restricted from 28th July 2021. 
61. 	Therefore, in the absence of any explanation from Prosecution as to whether the victim will be able to proceed with the hearing if it is expedited or scheduled at another date in August 2022, I am of the view that an adjournment and an expedited hearing are not the most appropriate remedies as it will only exacerbate the delay and prejudice to the Defendant. 
62. 	The victim is an elderly mother who is allegedly assaulted by her daughter and it is a very serious allegation and one of public interest as it is an action that is not condoned by our Society. Nonetheless, the trajectory of the Defendant’s file weighed against the lack of traction in Prosecution’s file since the 28th July 2022 tips the scale in favour of the Defendant. Every person is presumed innocent until proven guilty.
INFRINGEMENT OF RIGHT TO FAIR TRIAL
63. 	As I have already found that there has been a miscarriage of justice and dismissed the charges accordingly, I will not delve into the third aspect of the application on an infringement of a right to a fair trial. Had I considered this aspect of the Application, I would have asked both Counsels to consider this right against the countenance of current developments in the application of the Morin factors since Police v Ropati in Samoa and Martin v District Court of Tauranaga in New Zealand. 
COSTS
64. 	Section 188 (2) of the Criminal Procedure Act 2016 stipulates that, “If information is withdrawn or dismissed, the Court may only order the informant to pay to the defendant costs, as the Court thinks just and reasonable, for fees for the defendant’s lawyer and expert witnesses if there was no evidence to support the information and no evidence to cause a reasonable person to suspect the defendant, and not otherwise.” 
65. 	The Section provides two limb test that the Court must consider as to whether costs should be awarded. The two limbs are:
a.	There is no evidence to support the information; and
b.	There is no evidence to cause a reasonable person to suspect the Defendant and not otherwise.
66. 	In Police v Phillips (2018) WSCA 8 (25 October 2018), the Court of Appeal stipulated that the both limbs must be satisfied before the Court can award costs. The Court also made an important distinction between an evidential burden and legal burden and it is the former rather than the latter that must be satisfied before the Court awards the Defendant any costs.
67. 	I am satisfied there is evidence to support the information and to cause a reasonable person to suspect the Defendant by way of the Statements filed by Prosecution that have not been heard in a trial because of the inaction of Prosecution and delay in prosecuting this matter.
68. 	The application for costs is dismissed.
CONCLUSION
69. 	The charges are hereby dismissed on the grounds that there has been an abuse of process amounting to a miscarriage of justice.
70. 	For aforementioned reasons, the application for costs is dismissed.

JUDGE SAAGA