Police v Faulkner [2005] WSSC 4 (14 March 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

JOSEPH LAFAELE FAULKNER @ JOE PALAGI
of Vaitele-uta and Savalalo
Defendant

Counsel: R Schuster for informant
TRS Toailoa for accused

Hearing: 3, 8 March 2005
Judgment: 14 March 2005

JUDGMENT OF SAPOLU CJ

Proceedings

By motion (intituled First Amended Notice of Motion dated the 1^st day of March 2005), the accused seeks the following orders from the Court:

(a) an order that the new charges filed by the prosecution in this case should be dismissed; and

(b) an order that the prosecution witnesses should be confined to those as listed in the witness list served on defence counsel together with the trial documents.

The grounds stated in support of the motion are: (a) that the acceptance of the new charges and the additional witnesses would violate the accused’s constitutional rights pursuant to Articles 6(3),9(1) and 9(4)(a) of the Constitution, (b) and further violate s.89 of the Criminal Procedure Act 1972, and (c) and further constitute an abuse of the Court’s process.

I will, later in this judgment, deal in turn with each of the stated grounds in support of the accused’s motion. I will also mention certain matters on which further submissions are required from counsel.

History of proceedings

The essential facts regarding the relevant history of the present proceedings may be stated as follows. By information s681/03 sworn on 18 April 2003 by the police, the accused was charged with possession of narcotics contrary to ss.17 and 18 of the Narcotics Act 1967. By information s687/03 sworn on 22 April 2003 by the police, the accused was further charged with possession of unlawful weapons contrary to s12(1),(2) and (3) of the Arms Ordinance 1960. Both these informations were called for mention on 22 March 2003 and counsel from the Attorney-General’s Office appeared for the prosecution. The case was then adjourned without plea from the accused to 5 May 2003 for the police to finalise their charges. On 3 May 2003, a further information was sworn by the police by which the accused was charged that on 17 April 2003, he knowingly had possession of narcotics, namely, metamphetamine which consisted of seven small packets of white crystalline material contrary to ss.7 and 18(2)(a) of the Narcotics Act 1967. All three informations appear to have been called for mention on 5 May 2003 and on that day the accused entered a not guilty plea to all three charges. A number of adjournments then followed. At the call-over on 10 February 2005, this case was set down for hearing on Friday, 18 February.

Between 10 and 18 February 2005, the police filed seven new informations, one of which was subsequently withdrawn by the prosecution and dismissed. I need not concern myself with that information any more. Only six new informations now remain. By information 68/05 sworn on 3 February 2005, the accused is charged with possession of ammunitions for an unlawful weapon contrary to s.12(1),(2) and (3) of the Arms Ordinance 1960. By information s.69/05 sworn on 3 February 2005, the accused is charged with possession of ammunitions for an unlawful weapon contrary to s.12(1),(2) and (3) of the Arms Ordinance 1960. By information s.69/05 sworn on 3 February 2005, the accused is charged with possession of ammunitions for an unlawful weapon contrary to s.12(1),(2) and (3) of the Arms Ordinance 1960. By information s.70/05 sworn on 3 February 2005, the accused is charged with possession of ammunitions for an unlawful weapon contrary to s.12(1),(2) and (3) of the Arms Ordinance 1960. By information s.72/05 sworn on 3 February 2005, the accused is charged that on the 17^th day of April 2003 he was in possession of four glass pipes for the purpose of administering prohibited narcotics contrary to s.13(b) of the Narcotics Act 1967. By information 73/05 sworn on 3 February 2005, the accused is charged that on the 17^th day of April 2003, he was in possession of two steel pipes for the purpose of administering prohibited narcotics contrary to s.13(b) of the Narcotics Act 1967. By information s78/05 sworn on 10 February 2005, the accused is charged with possession of parts of an unlawful weapon contrary to s.12(1), (2) and (3) of the Arms Ordinance 1960. These additional informations were filed and served on the accused on 4 February 2005. On Friday, 18 February 2005, the date set for the trial of this case, counsel for the accused informed the Court that he objected to the additional informations and the list of new witnesses to be called by the prosecution. He sought leave to file a formal application to dismiss the additional new informations and to confine the prosecution to its original list of witnesses. Leave was granted and a formal motion was filed. A subsequent motion (intituled First Amended Notice of Motion dated 1^st of March 2005) was then filed.

Clarification by prosecution of certain matters relating to its case

After the hearing on Thursday, 3 March, when both counsel relied almost exclusively on their written submissions, I asked for both counsel on Monday, 7 March, to appear again on Tuesday, 8 March. The reason for this was because I wanted clarification from the prosecution on certain parts of its case. Counsel for the prosecution appeared but counsel for the accused was not able to appear due to illness. His colleague Ms Papalii appeared on his behalf.

From the answers given by counsel for the prosecution to questions from the Court, it became clear that the glass and steel pipes with which the accused has been charged in February 2005 were seized by the police on 17 April 2003. It also became clear that the reason for the seizure of the pipes was that the police suspected they were in connection with the metamphetamine which had been found and seized by the police at the same time from the accused’s premises. The pipes and samples taken from the alleged metamphetamine were then sent by the police to the Institute of Environmental Science and Research Ltd (ESR) in New Zealand for laboratory and scientific tests to confirm whether the pipes had metamphetamine and whether the samples were metamphetamine. A report dated 2 May 2003 was sent from ESR on the results of the tests that were carried out. It confirmed that metamphetamine were detected in the pipes and the samples were metamphetamine. Information s.744/03 which was sworn on 3 May 2003 charged the accused with possession of metamphetamine. It was called for mention on 5 May 2003 and the accused entered a not guilty plea. It is not clear when the police received the ESR report, but given the importance of this case to the police as it appears from the trial documents served on the registrar, I assume that it must have been early May 2003.

It also became clear from what counsel for the prosecution told the Court in reply to questions from the Court, that on instructions from the office of the Attorney-General in February 2005, the police filed the two charges sworn on 3 February 2005 by which the accused is charged with possession of the pipes for the purpose of administering metamphetamine. Thus from 17 April 2003 when the police seized the pipes because they suspected they were in connection with the memtamphetamine they had seized at the same time from the accused’s premises, and after they received the report from ESR, presumably in the first week of May 2003, which confirmed that metamphetamine were detected in the pipes, the police did not file any charges in relation to the pipes until 4 February 2005, which is a lapse of twenty one months from the time when the police filed an information in the first week of May 2003 charging the accused with possession of metamphetamine. The reason for this, as mentioned by counsel for the prosecution in his written submissions, was that this is the first metamphetamine narcotic case in Samoa and there were no members of the police service who were familiar with metamphetamine or the use of the pipes to administer the metamphetamine.

It also became clear on 8 March from counsel for the prosecution, in response to a question from the Court, that he was proceeding in this preliminary matter on the understanding that the accused’s motion was merely seeking to dismiss the two new additional charges on the use of the pipes for the purpose of administering metamphetamine and not on the four new additional charges filed under the Arms Ordinance 1960. The reason why counsel for the prosecution was asked about this matter is because his written submissions address only the new charges relating to the use of the pipes but not the new charges filed under the Arms Ordinance 1960. As it will appear in the course of this judgment, the principal issue in this matter is whether the accused was informed promptly by the prosecution of the nature and cause of the accusation against him in terms of Article 9(4) of the Constitution. The determination of this question calls for consideration of the relevant surrounding circumstances. It is thus a question of fact whether the prosecution acted promptly in informing the accused of the nature and cause of the accusation against him. Without this issue being addressed in the submissions of counsel for the prosecution in relation to the additional charges filed under the Arms Ordinance 1960, the Court finds it very difficult to make a determination on those charges. So even though it appears that the accused’s motion is directed at all the additional charges filed against him, I will accept that counsel for the prosecution was under a genuine misunderstanding. I will therefore not be dealing with the new additional charges filed under the Arms Ordinance 1960 in this judgment but counsel for the prosecution would have to file further written submissions, by a date to be specified later, to address the accused’s motion for the dismissal of those charges.

I should also mention here that there is an important issue raised in the written submissions by counsel for the prosecution for which counsel for the accused should be given the opportunity to reply as it is not addressed in his written submissions. The issue, as I understand it, is that counsel for the accused is now objecting to the admissibility of the ESR report so that its author in New Zealand would have to be called as witness by the prosecution at the trial. The prosecution is now seeking from the Court certain orders in relation to this issue. I consider that counsel for the accused should be given the opportunity to file written submissions on this issue if he wishes to do so. I will, therefore, not make a determination on this issue in this judgment until I have received submissions from counsel for the accused on the date to be specified.

It should also be mentioned that the motion by the accused insofar as it relates to the statements by additional prosecution witnesses which were served on counsel for the accused a few days before the trial set for 18 February 2005, relies in part on Article 9(1) and Article 9(4)(a),(b),(c) and (d) of the Constitution. These constitutional provisions were not addressed in the written submissions by counsel for the prosecution. I want submissions from the prosecution on those constitutional provisions. I also want further submissions from counsel for the accused on the applicability of those provisions to this part of his motion

I turn now to the constitutional provisions which the accused claims to have been violated in this case. These are Articles 6(3), 9(1) and 9(4)(a) of the Constitution.

ARTICLE 6(3)

Article 6(3) of the Constitution provides:

“Right to personal liberty

“6.

“......

“(3) Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay.”

The Article 6(3) right has been commonly referred to as the “right to counsel.” It is a right given to a person who has been “arrested” to be informed promptly of the grounds of his arrest and of any charge against him and to be given the opportunity to consult a lawyer of his choice without unreasonable delay. It is the fact of an “arrest” which triggers this right into operation. The kind of situation where the Samoan Courts have had to deal in the past with the right under Article 6(3) is where a suspect on a criminal offence has made an admission or a confession to the police but subsequently counsel engaged by the accused makes application to the Court during the trial to exclude the admission or confession from the evidence for the prosecution on the ground that at the time the admission or confession was made to the police, the accused was under arrest and the police did not inform, or correctly inform, the accused of his right to consult a lawyer of his choice without delay before obtaining the admission or confession. See, for instance, Attorney-General v Semi Tupai Ueti (1994) (unreported judgment of the Court of Appeal delivered on 5 May 1994); Police v Lepopoi Schwenke (1996) (unreported judgment of the Supreme Court). I need not canvass the operation of Article 6(3) in any detail as the written submissions of counsel for the accused do not refer to an arrest of the accused and there is nothing in the material placed before the Court to show whether if the accused had been arrested, he had been informed promptly of the grounds of his arrest and of any charge against him and be allowed to consult a lawyer of his choice without reasonable delay.

It also appears from the written submissions by counsel for the accused that his real complaint is that the prosecution had filed two charges against the accused under the Arms ordinance 1960 in April 2003 and one charge against the accused under the Narcotics Act 1967 in May 2003 and then more than twenty one months later in February 2005, the prosecution filed additional charges against the accused under the same Ordinance and Act. In other words the accused was originally changed in April 2003 and then charged again in May 2003. More than twenty one months later in February 2005, the prosecution brought additional charges against the accused. And this is really what the accused is complaining about. These facts do bring out the important distinction between the right provided under Article 6(3) and the right provided under Article 9(4)(a) which is one of the other constitutional provisions claimed by the accused to have been violated in this case. The right provided under Article 6(3) is a right given to a person who is arrested; the right provided under Article 9(4)(a) is a right given to a person who is charged. The two are different. As the accused had already been charged in April 2003 and then again in May 2003, his objection to the additional charges filed against him in February 2005 would be an objection by a person charged because he had already been charged in 2003 and those charges are still pending against him. Article 6(3) which refers to a person who is arrested would therefore not apply to the accused’s motion. The appropriate constitutional provision is Article 9(4)(a).

ARTICLE 9(1)

Article 9(1) of the Constitution, as far as relevant, provides:

“Right to a fair trial

“s9(1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.” (italics mine)

Similar provisions in relation to the right to a fair trial exist in New Zealand and Canada and in my view, the New Zealand and Canadian case law on the subject are particularly relevant to the interpretation of Article 9(1). However, I do not propose to go into great detail on the relevant New Zealand and Canadian cases as I have come to the conclusion that Article 9(1) is not the appropriate constitutional provision for the motion by the accused.

The relevant New Zealand provision is s.25(b) of the New Zealand Bill of Rights Act 1990 which provides:

“Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(b) The right to be tried without undue delay.”

In Canada, the relevant provision is s.11(b) of the Canadian Charter of Rights and Freedoms which provides:

“Any person charged with an offence has the right:

(b) to be tried within a reasonable time.”

It will be seen that the New Zealand and Canadian provisions are similar to the words of Article 9(1) which provide for the right of a person charged with an offence to be tried within a reasonable time.

The Canadian approach for determining whether there has been a violation of s.11(b) of the Charter was laid down in the R v Morin [1992] 1 S.C.R. 771 where Sopinka J (in the Supreme Court of Canada) said at p787:

“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which inevitably lead to delay or are otherwise the cause of delay. As I noted in R v Smith (1989) 52 CCC (3d) 97, ‘It is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ p(105).

“While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:

“1. the length of the delay;

2. waiver of time periods;
   
3. the reasons for the delay, including
   

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources; and

(e) other reasons for delay; and

4. prejudice to the accused.”
   

The approach laid down in Morin’s case by Sopinka J has been adopted and applied by the New Zealand Court of Appeal and High Court to cases where alleged breaches of s.25(b) of the New Zealand Bill of rights Act 1990 have been raised: see, for instance, R v B; R V Parkes [1996] 1 NZLR 385 (CA); Martin v District Court of Tauranga [1995] 2 NZLR 419 (CA); Dreliozis v R (1995) 12 CRNZ 548 (HC). In R v B; R v Parkes and Dreliozis v R, counsel submitted to the Court a chronology of events that have taken place, that is, relevant dates and what occurred on each date. I recommend the same practice to the Samoan bar in respect of applications under Article 9(1) for alleged breaches of the right to be tried within a reasonable time. Preferably, counsel should file an agreed chronology of events, or if there is no agreement, then counsel to file separate chronologies. A statement, following the guidelines in Morin, should set out the relevant information including the reasons for the delay.

When I asked counsel for the accused during the presentation of his submissions about the reasons for the delay in this case, I had the guidelines set out in Morin in mind. And as he pointed out that his real complaint was that the accused had not been informed promptly of the additional charges against him, I assumed that counsel was really relying on the right provided under Article 9(4)(a) instead of Article 9(1). This must be right because the gist of the complaint is not that the accused has not been tried within a reasonable time, but that additional charges have been filed against the accused about twenty one months after the filing of the original charges.

For those reasons, I conclude that Article 9(1) is not appropriate to the motion by the accused as it was presented.

ARTICLE 9(4)(A)

Article 9(4)(a) of the Constitution provides:

“Right to a fair trial

“9(4)(a) 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.”

In Attorney-General v Danny Fiatagata et al (1994) (unreported judgment of the Court of Appeal delivered on 21 March 1994), the respondents had been charged by the police in the then Magistrates Court with actual bodily harm. Thirteen months later, on instructions from the Office of the Attorney-General, the police filed in the Supreme Court the more serious charge of causing grievous bodily against the respondents. This was based on exactly the same circumstances upon which the original charge in the Magistrates Court was based. On application by the respondents to the Supreme Court that the filing of the more serious charge of causing grievous bodily was in breach of the respondent’s rights under Article 9(4)(a) of the Constitution to be informed promptly of the nature and cause of the accusation against them, this Court held the filing of the grievous bodily harm to be in breach of Article 9(4)(a). On appeal, the Court of Appeal dismissed the appeal. Sir Robin Cooke (as he then was) in delivering the judgment of the Court said:

“It is not necessary to endeavour to explore the causes of the delay, although some delay in furnishing witness statements to the defence appears to have been one contributing factor.

The important point, fully accepted by Mr Edwards in his clear and candid argument for the Attorney-General, is that the substituted charges are based on exactly the same circumstances and conduct as the original charges. They represent an appreciation by the Attorney-General’s Office of the seriousness of the matter from that formed by the Police. There have been no supervening circumstances; no new relevant fact has occurred. That distinguishes such cases as the death of a victim after assault charges have been laid.

Further on His Honour said:

“Mr Edwards rightly concedes, however, that if Article 9(4)(a), fairly and liberally construed, provides a remedy, the existence of other remedies is immaterial. He accepts that the constitutional rights are to be interpreted generously and purposively, as held by the Privy Council in the judgment delivered by Lord Wilberforce in Minister of Home Affairs v Fisher [1990] A.C. 319, and by this Court in Attorney-General v Saipaia Olomalu (1984) 14 V.U.W.L.R. 275: and there is abundant other authority in various jurisdictions to the same effect.”

His Honour went on to say:

“Literally and strictly, para. (a) of Article 9(4) could be interpreted as argued for the appellant. Applying the generous and purposive approach, however, we consider first that a person is charged when Court proceedings are served on him: there may be other situations amounting to charging, but that is sufficient for the purposes of the present case, the respondents having been served with the original informations soon after they were laid. Secondly, we hold that the charge is of an offence when the defendant is notified by it that particular conduct of his in particular circumstances is alleged to have constituted an offence.”

“With reasonable speed thereafter - that is to say promptly - he is entitled to be informed of the matters specified in para (a). The Chief Justice said of ‘promptly’:

‘........the word ‘promptly’ must mean ‘as promptly as it is reasonable in the circumstances.’ This gives the word ‘promptly’ the flexibility required to conform with the generous and purposive approach to the adopted in interpreting the fundamental rights and freedoms provisions of the Constitution.’

“We accept that. It is clear of course that a delay of 13 months would not satisfy this requirement.”

His Honour then said:

“The defendant is entitled to be informed in detail of the nature and cause of the accusation against him. These words must extend to the alleged gravity of his conduct. Once the prosecution has specified the gravity, as was done here by the reference to actual bodily harm, substituted charges are no doubt still possible, but 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 that would not fairly be described as prompt.”

Judgments of the Court of Appeal are of course binding on this Court. And when it comes from a world renowned jurist and highly respected Judge as Lord Cooke of Thorndon, as His Honour is now, it merits the full authority of the doctrine of stare decisis.

Counsel for the prosecution in his written submissions made extensive reference to New Zealand cases which have dealt with s24(a) of the New Zealand Bill of Rights Act 1990 which provides that an accused charged with an offence has the right to be informed promptly and in detail of the nature and cause of the charge against him and s.335 of the Crimes Act 1961 (NZ) which gives a Judge power to amend an indictment if there is a variance between the proof and the charge in any count in the indictment. In R v Rapatini (1996) 16 CRNZ 311, the latest New Zealand case cited by counsel for the prosecution in his written submissions, Paterson J in the High Court of New Zealand dealt with a pre-trial application by the Crown under s.335 of the Crimes Act 1961 (NZ) to amend the indictment it had filed by substituting the six original counts with seventeen new counts. Reference was also made to ss.24(a) an d 25(b) of the New Zealand Bill of Rights Act 1990. At p314, Paterson J pointed out there is a difference of judicial opinion in New Zealand whether amendment under s.335 can allow additional or cumulative counts to those which were in the original indictment. His Honour further pointed out that the position in New Zealand may not be finally settled.

While decisions of the superior Courts of New Zealand have always been highly respected by the Samoan Courts, they are of course only highly persuasive but not binding precedents. The persuasiveness of New Zealand cases on a particular point of law would be affected if there is a division of judicial opinion on the point. Furthermore, if the Samoan Court of Appeal has made a decision on a particular point of law, as it had done in Danny Fiatagata’s case, then that decision is binding on the other Samoan Courts and must be followed. I will, therefore, respectfully apply Danny Fiatagata’s case to the present case.

The crucial question on this part of the case is whether the prosecution had informed the accused with reasonable speed or as promptly as it is reasonable in the circumstances, in terms of Article 9(4)(a), when it filed two additional charges of possession of pipes for the purpose of administering narcotics on 4 February 2005. This is a question of fact which requires consideration of all relevant circumstances.

As mentioned earlier, the police first seized the pipes which form the subject matter of the two additional narcotic charges on 17 April 2003. The police suspected that the pipes were in connection with the metamphetamine they had seized from the accused’s premises at the same time. The police then sent the pipes together with samples from the alleged metamphetamine substances to the ESR in New Zealand for scientific tests. A report dated 2 May 2003 from the ESR on the results of the tests was sent to the police. The police must have received that report in the first week of May 2003. The report showed that metamphetamine was detected in the pipes and the samples were metamphetamine substances. That should have confirmed beyond doubt the suspicion held by the police that the pipes had been used in connection with the metamphetamine. However, the only information that was sworn on 3 May 2003 and called for mention on 5 May 2003, was information s.744/03 which charged the accused with possession of metamphetamine under the Narcotics Act 1967.

In charging the accused under the Narcotics Act 1967 with possession of metamphetamine in the first week of May 2003, the prosecution was at that time informing the accused in detail of the nature and cause of the accusation against him. At the same time, the prosecution was in effect specifying to the accused the gravity of his conduct in relation to the metamphetamine which is a narcotic. No doubt additional charges in relation to the metamphetamine were still possible. But once the prosecution had specified to the accused at the beginning of May 2003 the gravity of his alleged offending, any additional charges related to the metamphetanmine must be filed promptly. However, in spite of the fact that the police had seized the pipes on 17 April 2003, that the police had received the ESR report at the beginning of May 2003 which confirmed the presence of metamphetamine in the pipes, and there had been no change in the circumstances in terms of supervening circumstances or the occurrence of a new relevant fact since the beginning of May 2003, no additional charges related to the metamphetamine or pipes were laid until February 2005, some twenty one months down the track.

It was said that the reason for this delay is that this is the first case in Samoa which involves metamphetamine narcotic and there were no members of the police service who were familiar with metamphetamine or the use of pipes to administer the metamphetamine. It was the Office of the Attorney-General who instructed the police in February 2005 to file the new additional charges. Even though the police have often demonstrated a high level of competence in their work, the present case is in a real sense a repetition of the situation that occurred in Danny Fiatagata. In that case, the police had filed a charge of actual bodily harm in the then Magistrates Court. Thirteen months later, on advice from the Office of the Attorney-General, the police filed in this Court the more serious charge of grievous bodily harm to substitute the original charge of grievous bodily. This Court and the Court of Appeal did not, in the circumstances of that case, consider the difference of opinions between the two arms of the prosecution on what charge should have been filed as a factor which justified the delay of thirteen months.

On the question about the novelty of the case, it is true that this is the first metamphetamine narcotic case in Samoa. But the police must have known at least by the beginning of May 2003 when they received the ESR report which confirmed the presence of metamphetamine in the pipes, that the pipes must have been used in connection with the metaphetamine that was seized on 17 April 2003 as they had already suspected. Section 13(b) of the Narcotics Act 1967 under which the two additional charges have been laid, appear, in my respectful view, to be straightforward. It provides that any person commits an offence who has in his possession may pipe for the purpose of the commission of an offence against this Act. The provision is not complicated. It was just a question of whether there was sufficient evidence to support a charge under s.13(b). Furthermore, I am of the respectful view that, even if this is the first metamphetamine prosecution in Samoa, twenty one months is too long a lapse of time for the prosecution to find out that they could lay additional charges under s.13(b) in relation to the pipes.

For all those reasons, I have come to the conclusion that the two additional charges laid on 4 February 2005 which charged the accused with possession of pipes for the purpose of administering metamphetamine are in breach of the accused’s right under Article 9(4)(a). Those charges are therefore dismissed.

Abuse of process

One of the grounds on which counsel for the accused sought to dismiss the additional charges is that the additional charges were an abuse of the Court’s process. Counsel referred to a number of English and New Zealand cases on the Court’s inherent jurisdiction to protect its process from abuse. In view of the conclusion I have reached in relation to Article 9(4)(a), it is unnecessary to discuss this ground of abuse of process of the accsed’s motion. As Sir Robin Cooke (as he then was) said in Danny Fiatagata:

“[If] Article 9(4)(a), fairly and liberally construed, provides a remedy, the existence of other remedies is immaterial.”

What I am saying here is not to be taken as implying in any way that there was any abuse of process on the part of the prosecution. I have made no such determination either expressly or impliedly.

Statements by additional prosecution witnesses

In what is in effect the second part of the accused’s motion, the accused complains that statements by six new and additional witnesses to be called by the prosecution for this case were only served on counsel for the accused a few days before the trial that was scheduled for 18 February 2005. Counsel for the accused has therefore said in his written submissions that the failure of the prosecution to serve the statements of those witnesses on the defence within a reasonable time before trial, constitutes a violation of s.89(1) of the Criminal procedure Act 1972, Articles 9(1) and 9(4)(a),(b),(c) and (d) of the Constitution and the prosecution’s common law duty of disclosure. It is also claimed that the failure of the prosecution to serve the aforementioned witnesses statements on the defence within a reasonable time before trial constitutes abuse of process. This is quite a handful of grounds.

It seems that the relevant facts are that this case was first set down for hearing in the week commencing 21 July 2003. A number of adjournments then ensued. Trial documents consisting of statements to be called by the prosecution at the trial were served on counsel for the accused sometime in 2003. However, a few days before the trial scheduled for 18 February 2005, the prosecution served on counsel for the accused more statements purported to have been made by six additional prosecution witnesses whose names were not on the list of prosecution witnesses which was served on the defence in 2003.

Counsel for the prosecution in his written submissions does not deny that there are additional witnesses the prosecution wants to call for the trial of this case and that the statements of some of these witnesses were served on counsel for the accused a few days before the trial set down for 18 February 2005. However, he mentions only four such witnesses. It is not clear whether two of those witnesses have made any statements and, if so, whether copies of their statements have been served on the defence. As mentioned earlier, the trial set for 18 February 2005 did not proceed.

During my research for this case, I came across the New Zealand case of Simpson v Ministry of Transport (1996) 3 HRNZ 342 in which Fisher J appears to have dealt with ss.25(1) and 24(d) of the New Zealand Bill of Rights Act 1990. Those provisions are respectively similar to Article 9(1) and 9(4)(b) of the Samoan Constitution. The report of Simpson’s case is not available in Samoa. I would ask the prosecution to obtain, if possible, a copy of that case from its counterpart in New Zealand.

As counsel for the prosecution has not addressed in his written submissions the relevance and applicability or otherwise of Articles 9(1) and 9(4)(a),(b),(c) and (d) to this part of the accused’s motion, I would call for submissions from the prosecution on those matters. In case it turns out that there has been a breach of those unconstitutional provisions, I would like both counsel to also make submissions on what should be the appropriate remedy in the circumstances. In this connection, consideration of ss.89(1) and 106 of the Criminal Procedure Act 1972 would also be necessary.

So further submissions are required from counsel as follows: (a) counsel for the prosecution to file submissions on the accused’s motion to dismiss the new additional informations filed under the Arms Ordinance 1960; (b) counsel for the accused to file submissions in reply to the application by counsel for the prosecution for certain orders in relation to the ESR report and the possible calling of the ESR analyst as a witness by the prosecution; (c) counsel for the prosecution to file submissions on the relevance, applicability or otherwise of Articles 9(1) and 9(4),(a),(b),(c) and (d) to the second part of the accused’s motion; and (d) both counsel to file submissions on what should be the appropriate remedy in the circumstances should the Court decide there has been a breach of the constitutional provisions mentioned in (c). These submissions to be filed by 4 April 2005.

This matter is further adjourned to 5 April 2005 9.30am for hearing the further submissions from counsel. The accused’s bail conditions to continue.

As for the two additional informations by which the accused has been charged under s.13(b) of the Narcotics Act 1967 with possession of pipes for the purpose of administering metamphetamine, both informations have been dismissed for breach of Article 9(4)(a). Information s.744/03 sworn on 3 May 2003 charging the accused with possession of metamphetamine still remains.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for information
Toailoa & Associate for accused