[2006] 2 LRC 62

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

POLICE

v

ROPATI

Supreme Court
Sapolu CJ
17 May 2005

Constitutional law - Fundamental rights - Right to fair trial - Right to fair hearing within reasonable time - Criminal proceedings - 14 months between laying of charges and trial - Consent of defence counsel to seven-month adjournment - Whether constituting waiver of right - Whether delay reasonable - Whether prejudicial to accused - Constitution of Western Samoa 1960, art 9 Criminal Procedure Act 1972, ss 89, 106(1) (b).

On 1 April 2004 the accused was charged with three counts of theft. On 13 April 2004 the charges were called for mention and the accused indicated that he wanted legal aid. The charges were then adjourned without plea to 27 April. The accused was granted legal aid an in May 2004 the accused's counsel applied for an adjournment to obtain full instructions from the accused. In that same month the accused entered his plea of not guilty to the charges and the case was adjourned for hearing to October 2004. Five days before the hearing was due to commence the prosecution served its trial documents on counsel for the accused, following which counsel for the accused asked for a further adjournment, which was granted. Under s 89 of the Criminal Procedure Act 1972 an obligation was imposed on the prosecution to supply the accused or his counsel with copies of the prosecution's trial documents within a reasonable time before the trial. Section 89 did not provide any sanction for non-compliance but under s 106(1) (b) of the Act the court was given the power to adjourn the hearing. The case was adjourned until 1 November 2004 and on that day the case was re-set for hearing to a week in June 2005. In December 2004 the accused applied to have the prosecution stayed on the ground that his right to a fair hearing within a reasonable time, under art 9(1) of the Constitution, had been violated.

HELD: Application dismissed.

The practice of the Supreme Court when setting hearing dates for both criminal and civil cases was that the presiding judge would first check the court diary. A date would then be mentioned to counsel for the case to be adjourned to for hearing. That would be accompanied by a question from the presiding judge whether that date was suitable to counsel. If counsel involved agreed that that was a suitable date for the hearing to be adjourned to, then the case would be adjourned to that date for hearing. If any of the counsel involved in the case had good reason for not finding the suggested trial date to be suitable, the presiding judge would find another date from the court's diary. In the instant case the judge appeared to have followed the spirit of s 106(1) (b) of the Criminal Procedure Act 1972. The waiting period was five months from the date the hearing was set and seven months from the date the accused was charged. That was well within reasonable standards. The reason the hearing did not proceed in October 2004 was due to no fault of the court. In considering whether the accused's right to a hearing within a reasonable time in a criminal proceeding had been infringed, the whole period from the time the accused was charged t the time of the trial was to be analysed. The accused, being the applicant for a stay, had the onus of proving that the delay was unreasonable. It could not be said that the accused, or his counsel, waived his rights with regard to the hearing date or the time period from the date of his application in October 2004: the cause for that application for an adjournment was the actions of the prosecution. However, the adjournment of the case from November 2004 to June 2005 was with the consent of the accused. No evidence was adduced to show that counsel for the accused was consenting to the inevitable. He could have asked the presiding judge for an earlier hearing date or informed the presiding judge that the adjournment was too long and not suitable to the accused. For counsel for the accused to have consented to the hearing of that case being further adjourned to June 2005 gave rise to an inference of waiver. No evidence was adduced to rebut that inference. There was no evidence to show that there was any attempt to expedite the hearing of the motion. No request was made to the court to re-list the case so that counsel for the accused could apply for an earlier hearing date. The accused had therefore waived his right to allege unreasonable delay in respect of the time period from November 2004 to June 2005, which was approximately seven months. The adjournments to apply for legal aid and for counsel for the accused to receive full instructions were inherent time requirements and the consequent delay was reasonable. There were no actions by the accused which were responsible for any unreasonable delay. The prosecution was responsible for the adjournment from October to November 2004. It had to be borne in mind that Samoa had only two judges for the Supreme Court. As a third world developing nation, Samoa also had limited resources which had to be shared around all sectors of the community. Even though the delay of about five months from May to October 2004 could be classified as institutional or systemic delay, it was not unreasonable in the circumstances of the instant case. No evidence was adduced of any prejudice to the accused. There was no complaint that the accused had suffered any significant prejudice as a consequence of the alleged unreasonable delay. It followed that there was no infringement of the accused's right to a hearing within a reasonable time provided in art 9(1) of the Constitution (see pp 72-75, below). R v Smith [1989] 2 SCR 1120, R v Askov [1990] 2 SCR 1190, R v Morin [1992] 1 SCR 771, R v B [1996] 1 LRC 517 and R v Stewart [2000] BCCA 399 applied.

Per curiam. In Canada four factors have to be considered with regard to whether or not a delay in proceedings is unreasonable: (i) the length of the delay, (ii) whether there has been a waiver of time periods, (iii) the reasons for the delay and (iv) any prejudice to the accused. The same approach has been taken to unreasonable delay in New Zealand (see 66, below). R v Morin [1992] 1 SCR 771 and Martin v Tauranga District Court [1995] 2 LRC 788 applied. R v Smith [1989] 2 SCR 1120, R v Coghill [1995] 3 NZLR 651 and R v B [1996] 1 LRC 517 considered.

[Editors' notes: Article 9 of the Constitution of Western Samoa 1960, so far as material, is set out at p 65, below.

Section 89 of the Criminal Procedure Act 1972, so far as material, provides: '(1) Where an information is filed in the Supreme Court charging any person with an offence triable before the Supreme Court with assessors, the prosecution shall make available to the person so charged or his legal adviser copies of all statements made by witnesses proposed to be called, and by the person so charged whether given orally or in writing, within a reasonable time before the trial...'

Section 106 of the 1972 Act, so far as material, is set out at p 72, below.]

Cases referred to in judgment

Martin v Tauranga District Court [1995] 2 LRC 788, [1995] 2 NZLR 419, NZ CA
R v Askov [1990] SCR 1199, Can SC
R v B [1996] 1 LRC 517, [1996] 1 NZLR 385, (1985) 3 CRNZ 377, NZ CA
R v Bennett (1991) 3 OR (3d) 193, Ont CA; affd [1992] 2 SCR 168, Can SC
R v Brassard [1993] 4 SCR 283, Can SC
R v Coghill [1995] 3 NZLR 651, (1995) CRNZ 258
R v Lewis (2 June 1995, CA 62/94, unreported), NZ CA
R v Morin [1992] 1 SCR 771, Can SC
R v Nuosci [1993] 4 SCR 283, Can SC
R v Smith [1989] 2 SCR 1120, (1989) 52 CCC (3d) 97, Can SC
R v Stewart [2000] BCCA 399, BC CA

Legislation referred to in judgment

Canada
Canadian Charter of Rights and Freedoms 1982, s 11

New Zealand
New Zealand Bill of Rights Act 1990, s 25

Samoa
Constitution of Western Samoa 1960, art 9
Crimes Ordinance 1961, ss 85, 86(g)
Criminal Procedure Act 1972, ss 89, 106(1) (b)

Application

The accused, Iakopo Ropati, made an application to the Supreme Court to stay the prosecution of the three charges of theft as a servant laid against him on the ground that his right to a fair hearing within a reasonable time provided for in art 9(1) of the Constitution had been violated. The police opposed the application. The facts are set out in the judgment.

K Koria and P Chang for the prosecution.
T K Enari for the accused.

17 May 2005. The following judgment was delivered.

SAPOLU CJ.

INTRODUCTION

The court is here concerned with a motion by the accused to stay the prosecution of the three charges of theft as servant laid against him under ss 85 and 86(g) of the Crimes Ordinance 1961 on the ground that his right to a fair hearing within a reasonable time provided in art 9(1) of the Constitution has been violated. Article 9(1), as far as relevant, provides:

'In the determination of... any charge against him for any offence, every person is entitled to a... hearing within a reasonable time...'

The accused's motion relies on four grounds which appear to extend beyond art 9(1). However, when questioned during the hearing of the motion, counsel for the accused told the court that he relies solely on the alleged violation of art 9(1).

FACTS

On 1 April 2004 the accused was charged by the police with three counts of theft as a servant. The charges were then called for mention on 13 April 2004 and the accused indicated that he wanted legal aid. The charges were then adjourned without plea to 27 April for the accused to apply for legal aid to the registrar. On 27 April when the charges were re-mentioned, the court was notified that the accused had been granted legal aid. The case was then further adjourned to 11 May 2004 for counsel to be assigned on legal aid to act for the accused and to appear. On 11 May Mr Enari appeared as counsel on legal aid for the accused and he applied for an adjournment to obtain full instructions from the accused. The case was accordingly further adjourned to 24 May. On 12 May Mr Enari wrote to the police with a copy to the Attorney General's Office requesting copies of the trial documents to be given to him to assist him in his advice to the accused. When there was no response to his letter, he rang counsel in the Attorney General's Office who was said to be handling the file for this case, but that counsel was not available. Mr Enari says he left a message for that counsel to call him back but nothing happened. On 24 May the accused entered a plea of not guilty to the charges and the case was adjourned for hearing to the week commencing Monday 25 October 2004.

On Wednesday 20 October 2004 copies oft e prosecution's trial documents were served on counsel for the accused. At the call-over on Thursday 21 October counsel for the accused advised the court that he was not ready to proceed with the hearing the following week as he had just received copies of the prosecution's trial documents the previous day and had not had the chance to go over the trial documents with the accused. Counsel appearing for the prosecution on that day consented to the adjournment sought. The case was then further adjourned to 1 November 2004 for a new hearing date to be set. On 1 November the case was re-set for hearing to the week commencing Monday 6 June 2005. Counsel for both the accused and the prosecution consented to the hearing of this case being further adjourned to the week commencing 6 June 2005. Then, 3 December 2004, counsel for the accused filed his present motion which for some unknown reason was not mentioned until 4 April 2005. The accused's motion was then adjourned to 18 April for the prosecution to file a response.

LAW

Under s 25(b) of the New Zealand Bill of Rights Act 1990, it is there provided:

'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 the New Zealand Court of Appeal in Martin v Tauranga District Court [1995] 2 LRC 788 at 793-794 per Cooke P and at 806-807 per McKay J adopted the approach to determining unreasonable delay stated in the Supreme Court of Canada by Sopinka J for the majority in R v Morin [1992] 1 SCR 771. In that case Sopinka J said (at 787-788):

'The general approach to a determination as to whether the right [to be tried within a reasonable time] 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 either inevitably led to delay or are otherwise the cause of a delay. As I noted R v Smith [1989] 2 SCR 1120 at 1131, "it is axiomatic that some delay is inevitable. The question is, at what 'point does the delay become unreasonable?'". While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing 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.'

Counsel for the prosecution has relied on the Morin approach as stated in Martin v Tauranga District Court [1995] 2 LRC 788. Essentially, the material facts of Martin were that the appellant was charged with sexual violation on 18 December 1992 and the trial was set for 4-5 November 1993. Then, through the unilateral and unjustified action of the Crown prosecutor, the trial dates were vacated by the registrar. As a result, another trial date did not become available until 11 May 1994, some 17 months since the appellant's first court appearance. In allowing the appeal, Cooke P said (at 797):

'[I] would not at the present stage under the Bill of Rights regard delays of the order exemplified in the present case as necessarily beyond the pale. It is the contribution from the prosecutor [to that delay] that tips the balance in this case.'

In the later case of R v Coghill [1995] 3 N LR 651 the appellant was charged on 21 December 1992 with inducing a boy to do an indecent act and with wilfully obstructing the course of justice. His trial did not take place until 14 December 1994, almost two years after he was charged. He was convicted and sentenced on 10 February 1995. The appellant appealed against conviction. One of the grounds of his appeal was alleged infringement of his right to be tried without undue delay under s 25(b) of the New Zealand Bill of Rights Act 1990. Both the Crown and the appellant by their respective counsel supplied the court with chronologies of events which included the events which occurred between the date the appellant was charged and the date he was tried. In dismissing the appeal and holding that there was no infringement of the appellant's right to be tried without undue delay under s 25(b), Cooke P, who delivered the judgment of the New Zealand Court of Appeal, said ([1995] 3 NZLR 651 at 660):

'All in all, and having regard to the general principles stated in R v Morin (1992) 71 CCC (3d) 1 at 13, and in the judgments in this Court in Martin v Tauranga District Court [1995] 2 LRC 788, it is clear that there has been in the present case no unreasonable delay on the part of the police or the prosecution or in the working of he justice system. Likewise the appellant cannot be criticized for any delay caused by the tactics followed on his behalf. And, for reasons which become more evident when the other main ground of appeal is examined, such delay as has occurred has not on balance prejudiced the appellant. The trial has certainly taken longer than criminal cases usually take in New Zealand, but there has been every reason. The arguments relying on unreasonable delay must fail. So must the alternative argument of abuse of process... This Court is aware that in New Zealand at present there is a fashionable wave of applications in criminal cases based on alleged breach of the Bill of Rights provision against undue delay. Many of these, as illustrated by the present case and the last before this Court (R v Lewis (Court of Appeal, Wellington, CA 62/94, 2 June 1995)), prove to be without substance. Possibly counsel advising clients charged with crimes have felt duty-bound to raise such objections; but no encouragement to do so should be derived from the special facts of Martin's case, as was stressed in the judgments there delivered. Counsel should consider very carefully whether in any given case a claim of undue delay has true substance, before consuming Court time and causing further delay by objections which may have negligible prospects of success.'

Applying the Morin approach as enunciated by Sopinka J in that case, it would appear that the reasons why Cooke P decided in Coghill that there was no infringement of the appellant's right to be tried without undue delay under s 25(b) of the New Zealand Bill of Rights Act 1990 were: (a) there was no unreasonable delay attributable to the police or the prosecution; (b) there was no unreasonable systemic or institutional delay, that is no unreasonable delay was attributable to the working of the justice system, and (c) no prejudice to the appellant.

In R v B [1996] 1 LRC 517 the New Zealand Court of Appeal dealt with two criminal appeals against conviction by two different appellants. The first appellant was arrested and charged, inter alia, on 11 June 1993 with the offence of rape. He was tried on 5 April 1995 about 22 months after he was charged. He was convicted. The second appellant was arrested on 21 July 1993 and charged with assault with a weapon and he alternative counts of injuring with intent to injure and assault. His trial as scheduled for 14 June 1995 about 23 months after he was charged. He was also convicted. On appeal to the Court of Appeal, one of the grounds of appeal was that the delay in hearing the charges against the appellants infringed the appellants' right to be tried without undue delay provided in s 25(b) of the New Zealand Bill of Rights Act 1990. Both appeals were dismissed. The judgment of the Court of Appeal was delivered by Henry J. In so doing, Henry J said (at 519-520):

'"Undue delay" cannot be defined, and although broad principles governing the application of the subsection [s 25(b)] are being and will continue to be established, it must always be the evaluation of the particular case which is determinative. What is an undue lapse of time in one set of circumstances may not be undue in another. There are necessarily a varying number of factors contributing to the lapse of time from arrest to trial which we think render it impossible to lay down a general time framework. This is not an appropriate area for judicial legislation. It is rather a constitutional matter for government if there is to be a requirement that trials are to be processed within any stipulated time-frame. The Canadian experience evidenced by R v Askov [1990] 2 SCR 1199, which required clarification in R v Morin [1992] 1 SCR 771, demonstrates the problems which may emanate. The provision of resources itself is a matter of complexity and as implications affecting governmental activities beyond the Department for the Courts. What must not be lost sight of in this consideration is the obligation of the judicial system to meet the reasonable needs of its civil jurisdiction as well as those of its criminal jurisdiction. All these factors and many others are pertinent if time limits are to be nominated, even under the description of guidelines... The acceptance by the Solicitor-General that the aim should be to dispose of trials within 12 months of arrest is commendable. The practice note issued by the Chief Justice and the Chief District Court Judge and presently being implemented on a trial basis under which certain time-frames are stipulated for the disposal of criminal trials is also a desirable step to ensure there is due expedition. But in our view it would be wrong to elevate either of those matters to the status of establishing the foundation for an argument that a failure to meet the particular aim is indicative of a breach of s 25(b). Whether or not a breach has occurred must always remain an open question to be determined by the circumstances of the case.'

On the issue of absence of complaint about delay at some time prior to an application to invoke s 25(b) Henry J said (at 520):

'The Solicitor-General submitted that it should be a requirement of relief that an accused person expressly complain of delay at some time prior to any application to invoke s 25(b). We do not think that there should be any such court-imposed prerequisite, which is one which cannot be implied into the legislative intension. We observe, however, that a failure to raise the issue of delay on what may be appropriate occasions could be said to be relevant to both whether there had been undue delay and also whether if that were established to the remedy which should be provided. Failure to complain when complaint could be expected arguably is a factor relevant to establishing the foundation for the court's jurisdiction and to the exercise of its powers under that jurisdiction.'

In coming to the conclusion to dismiss both appeals, Henry J on behalf of the Court of Appeal said (at 524):

'A period of 23 months elapsed from arrest to trial. No prejudice or trial unfairness is alleged. No complaint o delay was made until the application for stay was filed on 7 June 1995. Although the delay is in excess of that which concerned the court in Martin, this case does not have the features which were there seen as decisive. Here the delay has in reality been due to lack of resources, and the need for utilising them to give a reasonable treasure of priority to sexual abuse cases. In the end a value judgment is required. The case could perhaps be classified as borderline, but when looked at overall w are not led to the conclusion that there was undue delay of a nature and extent which would now warrant the quashing of a conviction and the consequential entry of a stay following a trial which it is accepted was fair. In the circumstances no miscarriage of justice has resulted.'

Section 11(b) of the Canadian Charter of Rights and Freedoms, which is similar in wording to the right to a hearing within a reasonable time provided by art 9(1) of the Samoa Constitution, provides:

'11. Any person charged with an offence has the right... (b) to be tried within a reasonable time.'

The principles set out by Sopinka J in R v Morin [1992] 1 SCR 771 to be applied when dealing with an application to stay criminal proceedings on the ground that an accused's right to be tried within a reasonable time has been infringed, have been followed since in superior courts in Canadian provinces: see Martin v Tauranga District Court [1995] 2 LRC 788 at 793 per Cooke P. I need not in this case refer in detail to the Canadian jurisprudence on s 11(b), but there is one issue raised by Mr Koria for the prosecution in his submissions in this case which requires reference to some of the leading Canadian cases on s 11(b). Mr Koria said in his submissions that when this case was called on 1 November 2004 before Vaai J for setting a new hearing date, counsel for the accused consented to the further adjournment of the hearing to the week commencing Monday 6 June 2005. This issue appears relevant to the question of waiver which is one of the factors to be considered under the Morin approach when analysing an application to stay criminal proceedings for alleged infringement of the right to be tried within a reasonable time. The practice of this court when setting hearing dates for both criminal and civil cases is that the presiding judge would first check the court diary. A date is then mentioned to counsel for the case to be adjourned to for hearing. This would be accompanied by a question from the presiding judge whether that date is suitable to counsel. If counsel involved agree that is a suitable date for the hearing to be adjourned to, then the case would be adjourned to that date for hearing. From what counsel for the prosecution told this court, that was the practice followed by Vaai J when he further adjourned this case on 1 November 2004 for hearing in the week commencing on Monday 6 June 2005.

In relation to the question of waiver, Sopinka J, in delivering the judgment of the Supreme Court of Canada in R v Smith [1989] 2 SCR 1120 at 1136, said:

'Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized s more than silence. Therefore, absent other factors, waiver of the appellant's s 11(b) rights might be inferred based on the foregoing circumstances.'

That particular passage was cited with approval by Cory J in the Supreme Court of Canada in R v Askov [1990] 2 SCR 1 90 at 1228. In R v Morin [1992] 1 SCR 771 at 790 Sopinka J said:

'As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable.'

In the Court of Appeal for British Columbia in R v Stewart [2000] BCCA 399 Braidwood JA, after referring to the passage I have already cited from the judgment of Sopinka J in R v Smith [1989] 2 SCR 1120 at 1136, explained:

'However, an agreement does not always constitute waiver. The term waiver by definition means that the accused had choices open to them. The Supreme Court of Canada has ruled that there can be no waiver in the absence of such choices. Sopinka J, discussing this point in Morin, wrote at p.790: "As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable." On the other hand, Courts should be wary of presuming that an agreement is "mere acquiescence to the inevitable". In R v Bennett (1991) 3 OR (3d) 193; affd [1992] 2 SCR 168, Arbour JA (as she then was) stated: "Acquiescence to dates and to adjournments cannot always be construed as simple resignation to the inevitable. In some instances, the acceptance of a trial date more than eight months away may indicate a recognition by counsel that such a time lapse, in all the circumstances, is not unreasonable." The Supreme Court of Canada has also emphasised this point, as well as the necessity of evidence to show that an accused was consenting to the inevitable. In R v Nuosci [1993] 4 SCR 283, Mr Justice Sopinka stated at p. 284 that "agreement to suggested dates cannot be characterized as acquiescing in the inevitable in the absence of evidence to that effect". In R v Brassard [1993] 4 SCR 283 the Court reversed a lower Court decision ordering a judicial stay of proceedings in large part because portions of the delay had been waived by the accused. Madam Justice L'Heureux-Dubé stated: "We do not agree with the majority of the Court of Appeal as to the effect of the consents by the respondent to a number of the adjournments of the proceedings. In the absence of any evidence that these consents amounts to acquiescence in the inevitable, the consents constituted waiver or, no actions of the accused, were attributable to him." As will be seen, there is a lack of evidence in this case to determine whether agreement to trial dates can be considered "mere acquiescence to the inevitable" rather than waiver.'

LAW APPLIED TO FACTS

The complaint on behalf of the accused in this case is that the lapse of about 14 months, from 1 April 2004 when the accused was charged by the police with theft as a servant to the new trial date set for the week commencing 6 June 2005, is too long a lapse of time that the accused's right to a fair hearing within a reasonable time provided under art 9(1) of the Constitution has been violated. Consequently, the criminal prosecution in this case should be stayed.

It would be recalled that after the accused was charged on 1 April 2004 his case was then called for first mention on 13 April when he indicated that he wanted counsel on legal aid to represent him. His case was then adjourned without plea to 27 April for him to apply t the registrar for legal aid and then further adjourned to 11 May for counsel to be assigned to him on legal aid after his legal aid application was approved by the registrar. When counsel appeared on 11 May he sought a further adjournment to 24 May to obtain full instructions from the accused. On 24 May a plea of not guilty to the charges was entered on the accused's behalf and the case was set down for hearing in the week commencing on Monday 25 October 2004. There is no complaint that the scheduling of the hearing of this case for October 2004 infringed the accused's right to a trial within a reasonable time as required by art 9(1).

What has really prompted the present complaint from the accused is that notwithstanding a request made by his counsel on 12 May 2004, before the plea of not guilty was entered, to the police and the Attorney General's Office for copies of the prosecution's trial documents, none was supplied until Wednesday 20 October 2004. Counsel for the accused then applied during the call-over on Thursday 21 October for an adjournment of the hearing scheduled for the following week commencing on Monday 25 October on the ground that he was not ready to proceed with that hearing as he had just been served with copies of the prosecution's trial documents the day before and therefore had not had the chance to go over the trial documents with the accused. The prosecution consented to the adjournment sought. The case was then further adjourned to 1 November for a new hearing date to be set. On 1 November both counsel for the accused and counsel for the prosecution consented to the case being further adjourned for hearing to the week commencing Monday 6 June 2005. On 3 December 2004 counsel for the accused filed his present motion. I do not know why he did not apply to the court to bring forward the hearing of his client's case if he was concerned that the further adjournment of the hearing to the week commencing 6 June 2000 was too long an adjournment. It is also not clear why counsel for the accused has filed this motion to stay further proceedings when he had consented on 1 November 2004 to the case being further adjourned for hearing to the week commencing 6 June 2005.

As earlier mentioned, the practice of this court when setting trial dates for criminal and civil cases is that the trial judge would first check the court diary for a suitable date. A date when found would then be mentioned to counsel. That would be accompanied by a question to counsel whether that is a suitable date. If counsel involved in the case indicate their agreement, then that would be the date to which the case would be adjourned for hearing. If any of the counsel involved in the case good reason for not finding the suggested trial date to be suitable, the presiding judge would find another date from the court's diary. If that date is suitable and counsel agree then that would be the date the case would be adjourned to for hearing.

Under s 89 of the Criminal Procedure Act 1972 an obligation is imposed once the prosecution, in a criminal case like this one which is triable before assessors, to supply the accused or his counsel with copies of the prosecution's trial documents within a reasonable time before the trial. Section 89 does not provide any sanction for non-compliance with that obligation. It is s 106(1) (b) of the Act which is relevant here. Section 106(1) (b) provides:

'If the Court is of opinion that the defendant is taken by surprise, in a manner likely to be prejudicial to his defence by the production on behalf of the prosecutor of a witness... (b) who has made a written statement, but whose written statement has not been made available to the defendant in sufficient time - the Court may, on the application of the defendant, either adjourn the further hearing of the case...'

In the circumstances of what transpired, Vaai J appears to have followed the spirit of the procedure in s 106(1) (6) with the consent of both counsel.

In his submissions, counsel for the accused was not only critical of the conduct of the prosecution for the late service of the trial documents but he h also said the period it is taking for the court to hear this case should also be taken into consideration. In this connection, it must not be overlooked that in this case the accused was charged on 1 April 2004 and the case was not ready for a trial date to be set until 24 May 2004. It was then adjourned for hearing to the week commencing 25 October 2004, which was a waiting period of five months from the date the hearing was set and seven months from the date if the accused was charged. This is well within reasonable standards. The reason the hearing did not proceed in October 2004 was due to no fault of the court. The further adjournment of the hearing of this case from 1 November 2004 to the week commencing 6 June 2005 involves a waiting period of about seven months. That period includes the Christmas and New Year's holidays when the courts were closed for three weeks. It also includes the two weeks in December 2004 when the number one courtroom was used for the sittings of the Court of Appeal and only one courtroom was therefore available for Supreme Court hearings.

I turn now to consider the factors set out in R v Morin [1992] 1 SCR 771 in the context of this case.

LENGTH OF THE DELAY

I accept the submission by counsel for he accused that, in considering whether the accused's right to a hearing within a reasonable time in a criminal proceeding has been infringed, the whole period from the time the accused was charged to the time of the trial should be analysed. However, it must be pointed out that the accused, being the applicant for a stay, has the onus of proving that the delay complained of is unreasonable. In this case, as already mentioned, the accused was charged on 1 April 2004 and his trial is now set for the week commencing 6 June 2005. Between 1 April 2004 and 6 June 2005 is a period of about fourteen months.

WAIVER OF TIME PERIODS

Next, following the factors set out in Morin, I have to consider whether there has been any waiver of the time periods. This is a somewhat difficult issue which requires careful analysis. The reason why counsel for the accused sought an adjournment for the hearing set for the week commencing on 25 October 2004 was due to the late service by the prosecution of its trial documents. Counsel for the accused did not have sufficient time to prepare and he wanted adequate time to prepare for the hearing. It cannot be said that he waived the hearing date or the time period from the date of his application for an adjournment, which was 21 October 2004 to 1 November 2004, when this case was re-called for setting a new hearing date. The cause for that application for an adjournment was the actions of the prosecution.

The adjournment of the case on 1 November 2004 to the week commencing 6 June 2005 for hearing was with the consent of counsel for the accused. No evidence was adduced to show that counsel for the accused was consenting to the inevitable. He could have asked the presiding judge for an earlier hearing date or informed the presiding judge that the adjournment to 6 June 2005 was too long and not suitable to the accused. For counsel for the accused to consent to the hearing of this case being further adjourned to 6 June 2005 gives rise to an inference of waiver: see R v Smith [1989] 2 SCR 1120, R v Askov [1990] 2 SCR 1190, R v Morin [1992] 1 SCR 771 and R v Stewart [2000] BCCA 399. No evidence was adduced to rebut that inference. It is true that counsel for the accused filed his present motion on 3 December 2004, but there is again no evidence to show that there was any attempt to expedite the hearing of this motion. It would also appear that if counsel for the accused was really concerned about the length of the adjournment from 1 November 2004 to 6 June 2005, he could have applied to the court to re-list this case so that he could apply for an earlier hearing date. However, no such request was made but instead this motion to stay as filed notwithstanding that counsel for the accused had consented to the hearing being further adjourned to 6 June 2005. I conclude that the accused had waived the time period from 1 November 2004 to 6 June 2005 which is approximately seven months. This time period is therefore to be deducted from the total period of fourteen months from 1 April 2004 when the accused was charged to 6 June 2005, the current hearing date.

Perhaps, I should refer again in this connection to R v B [1996] 1 LRC 517 at 520 where Henry J in delivering the judgment of the New Zealand Court of Appeal in that case said:

'We observe however that a failure to raise the issue of delay on what may be appropriate occasions could be said to be relevant to both whether there had been undue delay and also whether if that were established to the remedy which should be provided.'

REASONS FOR THE DELAY

(a)Inherent time requirements of the case

The inherent time requirements of this case is one of the reasons for the delay in this case. Even though the accused was charged by the police on 1 April 2004, the case was not called for mention until 13 April 2004. This is normal procedure. An accused is first charged by the police and then his case would be set down for mention on the court's next mention date. The adjournments from 13 April 2004 to 27 April 2004 for the accused to apply to the registrar for legal aid and the further adjournment from 27 April 2004 to 11 May 2004 for the accused to be assigned counsel on legal aid after his legal aid application was approved were further inherent time requirements of this case. The further adjournment from 1 May 2004 to 24 May 2004 for counsel assigned on legal aid to act for the caused to receive full instructions is another inherent time requirement of this case. I regard these inherent time requirements, which were for the benefit of the accused, to be neutral in my consideration of the reasons for the delay. Thus, the period of about seven weeks from 1 April 2004 to 24 May 2004 for inherent time requirements is also deducted from the total period of fourteen months from 1 April 2004 to 6 June 2005. The time period spent on inherent time requirements is obviously reasonable.

(b) Actions of the accused

Another factor to be considered under the reasons for the delay is the actions for the accused. Here I do not see that there were any actions by the accused which were responsible for any unreasonable delay. It is true that at the call-over on 21 October 2004 counsel for the accused sought an adjournment of the hearing set for the week commencing on Monday 25 October 2004, but the adjournment granted to 1 November was caused by the actions of the prosecution in serving copies of its trial documents on counsel for the accused only a few day before the scheduled hearing. Counsel for the accused is one of the most experienced members of the criminal bar but experienced counsel are, as a rule, busy with other cases and legal work. They never have just one case to work on at a time.

(c) Actions of the prosecution

I find that the prosecution was responsible for the adjournment from 21 October 2004 to 1 November 2004 because it was the cause of that adjournment. But that was about one week. For the further adjournment from 1 November 2004 to June 2005 the prosecution by its actions might have contributed to that adjournment. But counsel for the accused consented to it.

(d) Limits on institutional resources

The time period from 24 May 2004, when the accused pleaded not guilty to the charges against him, to 25 October 2004, when the hearing of the case was scheduled to start, was five moths. As I have earlier mentioned, a waiting period of five months from the date an accused is charged to the date of trial is well within reasonable standards. There was also no complaint that that waiting period was unreasonable in the circumstances of this case.

It is also to be borne in mind that Samoa has only two judges for its Supreme Court. The same two judges in 2004 also had to hear appeals in the Land and Titles Court. Judges, of course, do not sit at night time, or during weekends, or on public holidays. As a third world developing nation, Samoa also has limited resources which have to be shared around all sectors of the community.

Even though the delay of about five months from 24 May 2004 to 25 October 2004 can be classified as institutional or systemic delay, I do not consider it to be unreasonable in the circumstances of this case.

All in all then, the time periods of five months from 24 May 2004 to 25 October 2004 and from 25 October to 1 November 2004 can be considered f as periods of delay which are attributable to the state. This is a total of five months and one week. This is not an unacceptable delay applying proper principles.

PREJUDICE

The fourth factor to be considered under the Morin approach is prejudice to the accused. No evidence was adduced of any prejudice to the accused. There is no complaint that the accused has suffered any significant prejudice as a consequence of the alleged unreasonable delay. In my view, if there is any prejudice to the accused, it must be minimal.

CONCLUSION

After considering the factors set out in Morin in the context of this case, I am of the view that, in the circumstances, there is no unreasonable delay. Consequently, there is no infringement of the accused's right to a hearing within a reasonable time provided in art 9(1) of the Constitution.

Solicitors:
Attorney General's Office for the prosecution.
Kruse, Enari & Barlow for the accused.