Police v Lota [1999] WSSC 5 (17 June 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

LIU LOTA
of Moamoa and Falelatai,
PUAA VAA
of Vaiusu and Fasitoo-uta
Defendants

Counsel: Mr Leung Wai & Mr Schuster (Junior) for Prosecution
Mr G. Gilmour for the Defendant Liu Lota
Mrs R. Drake for the Defendant Puaa Vaa

Hearing Date: 17 June 1999

REASONS FOR DECISION OF WILSON J.

INFORMATION CHARGING MANSLAUGHTER WITHDRAWN AND THEN
DISMISSED FOR LACK OF EVIDENCE

The two accused were charged with manslaughter and came to trial on 16 June 1999. This was clearly an unusual case. The charge arose out of the death of a man following his consumption of a drink containing what was said to be either methanol or methylated spirits. It was alleged that the accused Lui Lota, who worked as a laboratory technician at the laboratory at the National Hospital, sold a quantity of a chemical (that was held at the dispensary) to the accused Puaa Vaa, who worked at the X-ray department at the National Hospital. It was alleged that the transaction of sale was for the sole purpose of consumption. The spirit was subsequently passed on to another or others, some mixing of the spirit with other drink occurred, and eventually the deceased (and others) consumed the mixture, with tragic and fatal consequences as far as the deceased was concerned.

Before the trial commenced, the prosecution sought leave (which was subsequently granted) to amend the information in a number of respects by changing the unlawful act(s) relied upon from:

“by an unlawful act, namely obtaining methanol (methylated spirit) for consumption.”

to:

“by unlawful acts, namely selling and obtaining methanol for consumption.”

During legal discussion which followed the applications to amend the information, it became apparent that the prosecution did not even have direct evidence, in the form of the oral testimony of either a doctor who certified the deceased as being dead, or a doctor who performed a post mortem examination of the deceased’s body, as to the cause of the deceased’s death. It also became apparent that the prosecution was in difficulty in proving, by evidence, the necessary causative link between the conduct of the two accused and the death of the deceased, that is to say something more than evidence that the conduct of the two deceased was one of many factors contributing to the death of the deceased. Counsel for the accused Liu Lota, as I understood him, also contended that the prosecution could not prove that the chemical his client sold to the accused Puaa Vaa was methanol, or that the accused Liu Lota knew that it was for human consumption, or that he was in any way responsible for the giving of the liquid, which was the liquid that was ultimately consumed, to the deceased.

After considerable legal discussion and after the prosecution and the defence had had an opportunity to seek and obtain instructions and consider their respective positions, the prosecutor, Miss Mata Tuatagaloa, sought leave to withdraw the information as against each of the two accused upon the basis that the prosecution had no (or insufficient) evidence to offer. I granted the prosecution the leave it sought. Thereupon each of the two accused, by their counsel, made an application for an order that the information be dismissed. In the exercise of my discretion, I granted each of those applications and the information was dismissed.

DEFENDANTS SEEK COSTS ORDERS AGAINST PROSECUTION

I adjourned consideration of the question of what order (by way of the costs which each of the two accused was seeking) should be made until a time after which the prosecution and the defence had had an opportunity to take instructions and consider the question of quantum of the costs in question.

THE STATUTORY DISCRETION TO AWARD COSTS IN CRIMINAL PROCEEDINGS

The relevant discretion to award costs in criminal proceedings is conferred by section 35(2) and 167(2) of the Criminal Procedure Act 1972 as amended.

Section 35(2) provides:

35. Withdrawal of information by informant -

(2) On the withdrawal of an information the Court may award to the defendant such costs as it thinks reasonable, and any costs awarded may be recovered pursuant to section 117 of this Act as if the costs were awarded on a conviction.

Section 167(2) provides:

167 Costs –

(2) Where the Court dismisses any information, it may order the informant to pay to the defendant such costs as it thinks just and reasonable for Court fees, witnesses’ and interpreters’ expenses, and solicitor’s fees.

The Court has an unfettered (or unconfined) discretion to award costs to a defendant in the circumstances of a withdrawal/dismissal of an information. The discretion is one to be exercised in each case according to its own circumstances. Beyond limiting the power to order such costs as to the Court seems “reasonable” or “just and reasonable”, as the case may be, the sub-sections do not otherwise circumscribe the discretion conferred. No doubt it must be exercised judicially so as to achieve what is fair and just between the parties according to the circumstances of the particular case, and its exercise is open to challenge according to the well-established rules which govern the exercise of discretionary powers. (see Puddy v Borg^[1]).

The day may come when an attempt will be made to formulate a principle or a guideline according to which the discretion should be exercised.^[2] To do so would not necessarily constitute a fetter upon the discretion not intended by the legislation, and it might help to avoid inconsistencies. The comments of Mason CJ and Deane J in the High Court of Australia case of Norbis v Norbis^[3] have relevance in this context:

“The point of preserving the width of the discretion which Parliament has created is that it maximizes the possibility of doing justice in every case. But the need for consistency in judicial adjudication, which is the antithesis of arbitrary and capricious decision-making, provides an important countervailing consideration supporting the giving of guidance by (superior) courts, whether in the form of principles or guidelines.”

By conferring on Courts a power to award costs when proceedings terminate in favour of the defendant, the legislature must be taken to have intended to abrogate the traditional rule that costs are not awarded against the prosecution. I reach that conclusion notwithstanding the fact that in some jurisdictions^[1] the practice has been maintained (not easy, I think, to justify as an application of the rules of statutory interpretation) of not awarding costs against a police officer who is an informant. I am persuaded by the majority decision of the High Court of Australia in Latoudis v Casey^[2].

As Mason CJ said in that case (at p.542):

“In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs.......... in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott (1981) 53 F.L.R., at p.111. Most of the arguments which seek to counter an award of costs against an informant fail to recognise this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.”

In case it should be suggested that the making of a costs order in this case against the prosecution will mean that police and other public officers who fall into the category of prosecuting authorities will be discouraged from enforcing the criminal laws by the apprehension of an adverse order for costs (such as this one) from prosecuting cases which should be brought, that is an argument without substance and, in any event, it is no longer accepted by the Courts (see the authorities cited in Latoudis v Casey supra at p.543).

I am persuaded to follow the reasoning of Mason CJ, in that case, and I indicate that neither the availability of legal aid nor the fact that the defendant is in receipt of it is to be regarded as a possible reason for refusing to award costs. I accept that “the Courts have traditionally made orders for costs without regard to considerations (such as whether the defendant is entitled to, or is in receipt of, legal aid).”

I am not to be understood as saying that costs should follow the event as is often the case in civil proceedings.

However, I am of the opinion that, in ordinary circumstances such as exist here, an order for costs should be made in favour of these successful defendants. It might have been otherwise if either defendant, by his conduct after the commission of the alleged offence, had brought the prosecution upon himself. The prosecution did not argue that that reason or any other reason existed to justify the refusal of a costs order in the defendants’ favour.

If a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, that may warrant (and be “just and reasonable” for the Court to make) a costs order which deprives the defendant of the whole or part of the defendant’s costs (see Toohey J in Latoudis v Casey supra at p.562).

THE FACT THAT THE PROSECUTION HAS ACTED IN GOOD FAITH IN THE
PUBLIC INTEREST HELD NOT TO BE A GROUND FOR DEPRIVING THE
SUCCESSFUL DEFENDANTS OF THEIR COSTS

It should not be forgotten that the purpose of an award for costs such as may be ordered pursuant to s.35(2) and s.167(2) of the Criminal Procedure Act is to compensate the successful party. Such costs are not awarded, as the authorities discussed supra indicate, to penalise the unsuccessful party. In exercising this discretion the Court should look at the matter primarily from the perspective of the successful party. I have attempted to do just that. The fact that an unsuccessful party has acted in good faith in the public interest (though not entirely irrelevant) is not a ground for depriving the successful defendant of its costs (Oshlack v Richmond River Council^[1]).

In so far as that decision of the High Court of Australia may be seen as an attempt to state or re-state or extend the common law, I cannot, with respect to the opinions of their Honours in the majority, see that as representing the common law in Samoa. In my view, the majority opinions, having the hallmarks of judge-made law or judicial law-making, take the law, which could so easily be amended by legislation, beyond permissible limits. This is not a branch of the law where judicial law-making is justified in the interests of the social or economic or political development of this fast-developing society. Unlike the position that may have existed in Australia, this is neither the occasion nor the place for the common law to be developed and adapted under the guise of a need to meet “the changing needs and requirements of the people” of Samoa. If law reform is needed in this area, let it be done by the Parliament. What would, I think, be required would be “legislation to afford (the prosecution) a special and privileged position so far as costs are concerned” (see Kirby J, who, though in dissent, supported the majority on this issue in South-West Forest Defence Foundation Inc. v Department of Conservation and Land Management (No.1) (1998) 154 ALR 405 at p.412).

If a public interest cost regime is desired so as to protect the prosecution, as a branch of the executive arm of government, from costs orders as I am persuaded to make here, the amending statute would need to be specific about the reform.

THE QUANTUM OF COSTS

As to the quantum of costs to be ordered, I am persuaded by the New Zealand case of R v Myett^[1]. I emphasise that, on the material before me at the time when the applications for leave to withdraw the information and for the information to be dismissed were made, it appeared to me that the prosecution had insufficient evidence to support the conviction of either defendant and that the police investigation into the offence charged, as distinct from the investigation into the deceased’s death, [and, in particular, the investigation into the issues of causation including the proof of the chain of causation from the accuseds’ conduct to the death of the deceased] was not conducted in a ‘reasonable’ and ‘proper’ manner.

This is not, I think, a case involving such special difficulty, complexity or importance as would warrant indemnity costs or greater costs than usual being awarded (or normal costs being exceeded).

I fix the costs the defendant Puaa Vaa to be paid by the Prosecution at $3,300.00 (including VAGST), less such sum as may have been paid to the defendant’s solicitors or to which he may be entitled by way of legal aid.

I fix the costs of the defendant Liu Lota to be paid by the Prosecution at $3,300.00 (including VAGST), less such sum as may have been paid to the defendant’s solicitors or to which he may be entitled by way of legal aid.

The quantum of costs in each case is related to what I assess to be ‘party and party’ costs. The excess between the sum fixed and the bill of the accused Liu Lota, in particular, falls, in my judgment, more into the category of ‘solicitor and client’ costs or indemnity costs, which are not appropriate to be ordered here.

JUSTICE WILSON

---

^[1] [1973] VicRp 61; (1973) VR 626 at p.628
^[2] Perhaps along the lines of Australian Law Reform Commission Report No.75, 1995, or the Costs in Criminal
Cases Act 1967 (New Zealand) s.5.
^[3] [1986] HCA 17; (1986) 161 CLR 513 at p.519
^[1] For example, Victoria and Queensland, in Australia
^[2] (1990) 170 CLR 534
^[1] (1998) 152 ALR 83.
[1] (1991) 7 CR NZ 460