Toailoa Law Office v Duffy [2005] WSSC 7 (17 May 2005)

IN THE SUPREME COURT OF SAMOA

HELD AT APIA

BETWEEN:

TOAILOA LAW OFFICE
Informant

AND:

KOSE DUFFY
of Saleilua, Falealili
Defendant

Counsel: TRS Toailoa for appellant
S Leung Wai for respondent

Hearing: 11 May 2005
Judgment: 17 May 2005

JUDGMENT OF SAPOLU CJ

Nature of proceedings

This is an appeal from a decision of the District Court dated 25 January 2005 in which a private prosecution brought by the appellant was dismissed due to the failure of the appellant to make available copies of all its trial documents to the respondent within a certain period as ordered by the Court. In the District Court proceedings, the appellant was the informant and the respondent was the defendant.

The appellant in his appeal seeks from this Court three orders, namely, (a) an order to set aside the decision of the District Court dismissing the charge against the respondent, (b) an order for the respondent to be referred back to the District Court to stand trial, and (c) an order for costs to be awarded to the appellant. The grounds of the appeal are:

(a) the District Court had no jurisdiction to deal with any allegation of violations of constitutional rights,

(b) the District Court had erred in law in its findings that the appellant’s failure to comply with the disclosure order of the Court had resulted in an abuse of the Court’s process,

(c) the District Court had erred in law in the exercise of its discretion by dismissing the charge against the respondent.

Even though it is indicated in the notice of appeal that there may be further grounds of appeal when the written decision of the District Court was made available to counsel, no further grounds of appeal have been filed.

Facts

The relevant facts to this appeal may be briefly stated. On 4 March 2004, the appellant as informant laid a charge in the District Court of threatening to kill or do bodily harm against the respondent as defendant pursuant to s.82 of the Crimes Ordinance 1961. The charge carries a maximum penalty of three years imprisonment. When the charge was called for first mention on 23 March 2004, it was amended by consent of counsel by deleting the words “or do bodily harm” so that the charge became just one of threatening to kill. The respondent, through his counsel, then entered a not guilty plea to the charge as amended. The presiding District Court Judge then set the case down for hearing on Monday and Tuesday, 23 and 24 August 2004. The learned Judge also made the order that the appellant was to serve copies of all of its trial documents on the respondent’s counsel within 45 days. This means the trial documents were to be served on the respondent’s counsel by about 6 May 2004 which was just over 3 ½ months before the dates set for the hearing of the case.

As it turned out, the appellant did not serve copies of its trial documents on counsel for the respondent until Thursday and Friday, 19 and 20 August 2004, which was about 3 ½ months after 6 May. One of the witnesses’s statements served was found by the respondent’s counsel to be difficult to read. On 23 August, the day on which the trial was to commence, counsel for the respondent applied to the Court to dismiss the charge against the respondent on the grounds: (a) the failure of the appellant to comply with the Court’s order as to service of the trial documents had resulted in a breach of his right to a fair trial under Article 9(1) and (4)(b) of the Constitution, (b) the appellant’s non-compliance with the Court’s order was an abuse of process, and (c) the prosecution was also an abuse of process as it arose out of a domestic dispute and the police had investigated the dispute and elected not to prosecute the defendant. I need not concern myself with ground (c) as a separate ground as it is embraced in the general ground of abuse of process.

Counsel for the appellant, on the other hand, as it appears from the submissions by the respondent’s counsel, apologised and informed the Court that the late service of the trial documents on the respondent’s counsel was due to an oversight on his part. He submitted that the charge was a serious one and the respondent’s counsel had had the weekend to peruse the trial documents. He further submitted that in the circumstances, an adjournment rather than a dismissal was the appropriate course to take.

Judgment under appeal

In the judgment under appeal, the learned District Court Judge accepted the explanation given by counsel for the appellant that the non-compliance with the Court’s order to serve the appellant’s trial documents on counsel for the respondent within 45 days from the day the order was made was due to an oversight on his part. However, His Honour held that even though he accepted the appellant’s explanation, it did not alter the fact that the Court’s order had not been complied with and that sanctions should be applied for non-compliance. His Honour further said that to take any other view would undermine the integrity of the Court and would render its orders meaningless and of no value. In addition, the Court would become judicially impotent if parties before it were permitted or encouraged to ignore its orders. The Judge then held that the appellant’s non-compliance with the Court’s order constituted an abuse of process “because it offends the Court’s sense of justice and propriety to try the accused in the circumstances,” which is the second category of abuse of process enunciated by Lord Lowry in R v Horseferry Road Magistrates Court; ex parte Benett [1944] 1 AC 42 at p.74. He went on to say that if the appellant’s conduct was allowed to remain unchecked, it would, in the words of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at p.482, “strike at the public confidence in the Court’s process and so diminish the Court’s ability to fulfil its function as a Court of law,” or in the words of McGrath J in delivering the judgment of the New Zealand Court of Appeal in Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 at pl72 “for the Court to proceed with the prosecution on its merits would tarnish the Court’s integrity and offend the Court’s sense of justice and propriety.” Essentially then, the view taken by the learned Judge is that since the appellant failed to comply with the Court’s order due to an oversight on the part of its counsel, that was an abuse of process. The reason being that such non-compliance if allowed to remain unchecked, would offend the Court’s sense of justice and propriety to try the accused, or would strike at the public confidence in the Court’s process and so diminish the Court’s ability to fulfil its function as a Court of law, or would tarnish the Court’s integrity.

The Judge also held that the appellant’s failure to comply with the Court’s order had infringed the respondent’s constitutional right to a fair trial and to have adequate time for the preparation of his defence. However, the decision to dismiss the charge against the respondent was not based on the breach of the constitutional right to a fair trial. The decision to dismiss the charge was based solely on the appellant’s non-compliance with the Court’s order to serve copies of all its trial documents on the respondent’s counsel within 45 days from the day the order was made.

At the hearing of the appeal, counsel for the respondent reiterated the submissions he had made to the lower Court in relation to the alleged breach of the constitutional right to a fair trial and abuse of process. I will deal with these issues first before dealing with the first ground of appeal which is that the District Court has no jurisdiction to deal with any allegations of violations of constitutional rights.

Alleged breach of the right to a fair trial as provided in Article 9(1) and (4)(b) of the Constitution

It was submitted for the respondent that the service by the appellant of copies of its trial documents on counsel for the respondent only two and three days before the trial in violation of the District Court’s order that those documents should be served within 45 days, which was about 3 ½ months before the trial, had breached the respondent’s right to a fair trial as provided in Article 9(1) and (4)(b) of the Constitution. Before I deal with the approach to be adopted where there is an obstacle in the way of a fair trial or prejudice to the right to a fair trial in terms of Article 9(1) and (4)(b) of the Constitution, it will be helpful to refer first to the common law approach.

At common law, where there is, in a criminal proceeding, an obstacle in the way of a fair trial or a prejudice to the right to a fair trial has arisen, a stay of the prosecution or dismissal of the charge does not follow as a matter of course. The Court would have to see first whether any action can be taken to remove the obstacle or alleviate the prejudice in order to have a fair trial. This is part of the Court’s duty of ensuring a fair trial. If no action can be taken to ensure that a fair trial takes place, then the prosecution must be brought to an end by granting a permanent stay or dismissing the charge. These would appear to be the appropriate remedies in such a situation.

In the decision of the High Court of Australia in Jago v District Court (New South Wales) [1989] HCA 46; (1989) 168 CLR 23, Mason CJ said at p.34:

“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial Judge can do in the conduct of the trial can relieve against its unfair consequences:’ Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J.”

In the same case, Brennan J said at p.47:

“Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v R [1989] HCA 28; (1989) 167 CLR 94), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 31; (1982) 152 CLR 25), absence of competent representation (McInnis v R [1979] HCA 65; (1979) 143 CLR 575) MacPherson v R [1981] HCA 46; (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the Court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial Judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury to counteract any prejudice which the accused might otherwise suffer.”

In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, which was a case of a private prosecution, Mason CJ, Dawson, Toohey and McHugh JJ in a joint judgment said at pp.518 - 519:

“The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, ‘to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair:’ Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at pp95 - 96.....If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the Court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the Court must be satisfied that there are no other available means, such as directions to be given by a trial Judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgements in that case gave emphasis to the necessity that the Court should satisfy itself upon this point before granting the relief sought.”

In Johannsen and Chambers [1996] QCA 111; (1996) 87 A Crim R 126, Fitzgerald P said at p.135:

“..........there is a strong predisposition toward permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial which produces a result free of the taint of risk of miscarriage of justice........A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted.”

In New Zealand, on the question of the Crown’s obligation to supply briefs of evidence to the defence and the action for the Court to take under s.368 of the Crimes Act 1961 (NZ) when there is non-compliance with that obligation, Cooke P (as he then was) said in R v Accused [1992] 2 NZLR 187 at p.193:

“It is the standard and proper practice to supply the defence with a copy of the brief of the proposed new evidence: see Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 393 - 394, 399 - 400. If this practice is not followed the ordinary remedy of the defence is to ask for an adjournment or postponement. We accept, however, that there may be cases in which the inherent jurisdiction to ensure a fair trial the trial Judge may rightly conclude that an adjournment or postponement would be unduly prejudicial to the accused, and may decline to allow the prosecution to add to the scope of the proposed evidence or to call an added witness. Some unreported rulings of that kind are collected in a ruling of Tompkins J in R v Murray (New Plymouth, T 17/90, 6 March 1991). These rulings have been given on applications by the Crown for leave to call additional evidence. Such applications represent an appropriate practice, but the basic jurisdiction is the inherent one just mentioned.”

Of more direct relevance to the circumstances of this case is the judgment of the High Court of New Zealand in Herewini v Ministry of Transport [1992] 3 NZLR 495. The case was concerned with an appeal against conviction from a defended summary prosecution in the New Zealand District Court. One of the issues raised in the appeal was whether the prosecution should be required to provide to the defence briefs of evidence in advance. In dismissing the appeal, Fisher J said at p.496:

“The scope of procedural fairness therefore lies within the hands of the Courts. If thought appropriate, they have ample jurisdiction to direct that all or more of the existing practices relating to the advance provision of briefs on indictment should extend to all or some summary prosecutions.

“Nor would the Court be lacking sanctions to enforce such procedures if adopted. If a general practice for provision of briefs were to be promulgated and not complied with, the obvious sanction would be to adjourn, if necessary repeatedly and with costs, upon the broad ground that until briefs were produced in advance the defence would unreasonably be taken by surprise. That, for example, was seen by Cooke P in Ombudsman at pp399, 400 as the sanction for inadequate disclosure in terms of the Official Information Act. The power to adjourn could be accompanied by specific interlocutory orders to produce briefs. Persistent non-compliance in the face of express orders to that effect could eventually result in dismissal of the prosecution.:

“I therefore have no doubt that it lies within the powers of the Courts to bring about change in this area. The remaining question is whether they should do so.”

His Honour then went on at pp497 - 498 to give a qualified answer to the question he posed by saying:

“In my view there is a strong case for requiring advance copies of prosecution briefs in defended summary cases, at least where the defendant is in jeopardy of prison. In this case, for example, the appellant faced possible imprisonment for three months. The concept of differing standards for differing levels of seriousness is already observed by the ministry. If briefs for non-imprisonable cases are not thought to be practicable, it might at least be desirable to lower the level of seriousness at which they will customarily be prepared. On the other hand I do not think appropriate for one High Court Judge to legislate in the area. If change is to be achieved judicially, it should be affected by the High Court sitting as a Full Court or by the Court of Appeal.”

In the case of R v Pahau (2001) 19 CRNZ 21, the New Zealand Court of Appeal dealt with a criminal appeal against conviction. One of the grounds of appeal was that the District Court Judge should not have permitted the Crown to call certain witnesses at the trial due to the late disclosure of the evidence of those witnesses by the Crown to the defence. In dismissing the appeal, Thomas J in delivering the judgment of the Court said at p.23:

“19. Offering the defence an adjournment to meet any prejudice which Mr Pahau might have suffered was the obvious course. Such an adjournment was offered but refused. Mr Pahau cannot now be heard to complain of prejudice.

“20. As submitted by Mr France, Allen v The Police (1998) 16 CRNZ 23 is readily distinguishable. The specific information requested by the defence had not been provided at all. In the present case, because of the way in which the Crown’s case developed, delivery of the evidence to the defence occurred after the deposition hearing and prior to trial. In the course of preparation for trial developments in the Crown’s case will at times inevitably occur. Following depositions, weaknesses or gaps in the prosecution evidence may be perceived and an attempt made to reinforce or provide that evidence. In such circumstances, and in the absence of any suggestion that the Crown was seeking to ambush the defence or otherwise acting in bad faith, an adjournment is the appropriate method of dealing with any prejudice to the accused. The interest of the community in ensuring that guilty persons are convicted outweighs any procedural defect or delay which can be rectified by granting an adjournment. To the extent that Allen v The Police is inconsistent with this approach it is in error.”

Allen v The Police (1998) 16 CRNZ 23 was a decision of the High Court of New Zealand. The approach adopted in that case has clearly been disapproved by the Court of Appeal of New Zealand. The approach in Allen also seems to be at odds with the Australian and other New Zealand authorities earlier referred to in this judgment.

The position in England with regard to the provision of statements by the prosecution to the defence for the preparation of its case where the offence is one to be tried summarily, was explained in Vincent v R [1993] 1 WLR 862 where the Privy Council dealt with two criminal appeals against conviction which originated from the Resident Magistrate’s Court of Jamaica. The common ground of the two appeals was that the appellants had been denied a fair trial, as guaranteed by s.20 of the Jamaica Constitution, in that the trial proceeded without the defence being provided with witnesses statements indicating the evidence to be called by the prosecution. In delivering the judgment of the Privy Council, Lord Woolf said at p.868:

“Undoubtedly a defendant will be assisted in preparing his defence if he is provided with copies of statements on which the prosecution proposed to rely prior to the commencement of his trial. It is therefore desirable, where this is practicable, for statements to be provided. Clearly the more serious and the more complex the proceedings the greater the desirability that statements should be provided and the more likely that it will be practicable to provide the statements. In the converse situation, where the offence is trivial, to be dealt with summarily, where the issues are simple, the provision of statements before trial is less important.

“In Jamaica as in England, in the case of offences which are triable only summarily when the offences are properly regarded as being ‘petty offences,’ it is not normally practical or necessary in order to obtain a fair trial for the defendant to be served in advance with copies of witnesses’ statements. In cases where the offences are being tried on indictment before a jury, again in Jamaica the position is the same as in England and before the trial begins the defendant will receive copies of the depositions or statements of witnesses to be called on behalf of the prosecution. In England in the case of offences triable ‘either way,’ that is summarily or on indictment, the position is now covered by the Magistrates Courts (Advance Information) Rules 1985...... Under these the prosecution, on request, are required to furnish to a defendant as soon as practicable either a copy of those parts of every written statement which contain information as to the facts and matters of which the prosecution proposes to adduce evidence in the proceedings......If the requirements are not complied with, then the Court is required to adjourn the proceedings, unless the Court is satisfied that the conduct of the case for the defendant will not be substantially prejudiced by non-compliance with the requirement.” (emphasis mine)

The position at common law as I see it then, is that, where there is an obstacle to a fair trial in a criminal proceeding and the Court is faced with a motion from the defence to stay the proceeding or to dismiss the charge, the Court must first satisfy itself that there are no other available means, such as adjournments or other interlocutory orders, rulings on evidence, directions to the assessors if it is an assessor trial, of bringing about a fair trial. If there are no other means available of bringing about a fair trial, then the proceeding must be terminated by granting a permanent stay or dismissing the charge. If the impediment to a fair trial is that the defendant has not had adequate time to prepare his defence due to the failure of the prosecution to supply the defence with copies of its trial documents within a reasonable time before the trial, then to bring about a fair trial, the ordinary remedy is an adjournment. Such an adjournment is to be accompanied by interlocutory express orders if necessary. However, an adjournment would not be appropriate if it will prejudice a fair trial or otherwise be unduly prejudicial to the defendant. In such a situation, if there are no other means available of securing a fair trial, the appropriate course to take is to terminate the proceeding by granting a permanent stay or dismissing the charge.

In considering a pre-trial complaint that the defendant’s constitutional right to have adequate time and facilities for the preparation of his defence has been violated, it is necessary to refer first to the relevant provisions of the Constitution. Article 9 of the Constitution, which is the right to a fair trial provision, provides, insofar as it is relevant:

“(1) In the determination of..........any charge against him for any offence, every person is entitled to a fair ................hearing............by [a] tribunal established under the law.

“(2).............

“(3).............

“(4) Every person charged with an offence has the following minimum rights:

“(a)...........

“(b) To have adequate time and facilities for the preparation of his defence.”

Article 9 of the Samoa Constitution is very similar to s.20 of the Jamaica Constitution which also provides for the right to a fair trial. Insofar as it is relevant, s.20 provides:

“(1) Whenever any person is charged with a criminal offence he shall......be afforded a fair hearing........by [a] Court established by law.

“(2)............

“(3).............

“(4)..............

“(5)..............

“(6) Every person who is charged with a criminal offence:

“(a)........

“(b) shall be given adequate time and facilities for the preparation of his defence.”

In Vincent v The Queen [1993] 1 WLR 862, already referred to, the Privy Council had to deal with two criminal appeals which originated from the Resident Magistrate’s Court of Jamaica. One of the issues raised by the appellants was that notwithstanding the right to a fair hearing and the right to adequate facilities for the preparation of a defence provided in s.20 of the Jamaica Constitution, the statements of the prosecution witnesses were never disclosed to them. Lord Woolf who delivered the judgment of the Privy Council, referred in the course of the judgment to s.20(6)(b) of the Jamaica Constitution and then said at pp.870-871:

“While the language of [s.20(6)(b)] does not require a defendant always to be provided with copies of the statements made by the prosecution witnesses, where the provision of a statement of a witness is reasonably necessary for such purpose, it should be provided as being a facility required for the preparation of his defence. This is in accord with the view of Forte J.A. expressed in Reg v Bidwell (unreported),.......where he indicated that ‘facilities’ could include a statement of a particular witness and added that ‘facilities must relate to anything that will be required by the accused in order to aid him in getting his defence ready to answer the charge.’ It follows that the present practice of refusing to provide statements of proposed witnesses to the defence, as a matter of course, is inappropriate. Where a request is made for the disclosure of the statements in a case which is to be tried summarily, if it is not a case involving only petty offences, the request should be carefully considered. If there are no circumstances making this course undesirable, for example, because of the need to protect the witness, then the preferable course in the interests of justice is to disclose the statement. The fact that a case is opened by the prosecution does assist the accused in knowing the case he has to meet. However, as was submitted on behalf of the defendants, if he is taken by surprise by anything contained in the opening this can result in a defendant being in the undesirable situation of either having to seek an adjournment, which could affect the flow of the trial, or making do without an adjournment because of the delay which an adjournment would involve.

“This being the position, the Director of Public Prosecutions may like to consider whether or not he should give further guidance on this subject. Clearly it would be preferable if the need to consider each case in relation to its particular circumstances could be avoided by a general practice being promulgated which requires the disclosure of witnesses or alternatively giving the defence a statement of the nature of the evidence, which will be relied upon by the prosecution, before trial (in the absence of special circumstances) to assist the defendant in the preparation of his defence. In making this suggestion, their Lordships have in mind the judgment delivered by Lord Lowry in Berry v The Queen [1992] 2 A.C. 364, 376 where he said:

’in a civilised society the most suitable ways of achieving such fairness (which should not be immutable and require to be reconsidered from time to time) are best left to, and devised by, the legislature, the executive and the judiciary which serve that community and are familiar with its problems.’”

In New Zealand there are statutory provisions on the right to a fair trial which are similar to Article 9 of the Samoa Constitution and s.20 of the Jamaica Constitution. These are s.24(3) and s.25(a) of the New Zealand Bill of Rights Act 1990. Section 25(a) provides:

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

“(a) The right to a fair............hearing............by...............[a] Court.”

Section 24(d) provides:

“Everyone who is charged with an offence -

“(d) Shall have the right to adequate time and facilities to prepare a defence.”

In Attorney-General v The District Court of Otahuhu [2001] NZCA 187; [2001] 3 NZLR 740, Richardson P in delivering the judgment of the New Zealand Court of Appeal said at p.753

“[47] The third consideration is that s.24(d)..... while separately stated in the Bill of Rights, is in aid of the primary right to a fair trial (s.25(a)), just as the right to present a defence (s.25(e)) is also an aspect of fair trial. Thus, speaking of the provisions of the European Convention on Human Rights, parallel to s.24 and including s.24(d), the European Commission on Human Rights said in its Adolf report of 8 October 1980....

’They exemplify the notion of fair trial........but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Art 6(3) are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings’

“[48] And s.24(d) is not a newly recognised right. The right to adequate facilities to prepare a defence is inherent in s.354 of the Crimes Act 1961 which provides that every person accused of any crime make his full defence thereto,’ and in fair trial at common law.’

“[49] In its terms s.24(d) is restricted by the language employed. The composite right is to ‘adequate time and facilities to prepare a defence.’ Governing both time and facilities, ‘adequate,’ in context, as a word of limitation is used in the sense of sufficient or necessary, not full or complete. And the expression ‘facilities’ suggests an intended focus on the means of preparing a defence. The White Paper, ‘A Bill of Rights for New Zealand’ states (para 10.130):

’The facts of each case will determine what constitutes an adequate time for the purposes of this provision. ‘Facilities’ to prepare the defence might include access to documents or other evidence required by the defence to prepare its case, the opportunity and the means for personal communication between the accused and counsel while the accused is in custody, and perhaps also access to a library and legal materials if the accused wishes to act in his own defence.’”

Under the European Convention on Human Rights, Article 6 which is almost identical to Article 9 of the Samoa Constitution provides, insofar as relevant:

“(1) In the determination of...............any criminal charge against him, everyone is entitled to a fair.........hearing............by [a] tribunal established by law.

“(2).............

“(3) Everyone charged with a criminal 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.

“(b) to have adequate time and facilities for the preparation of his defence.”

The approach which the European Court of Human Rights ( ECHR) has adopted to a complaint of a violation of the right to a fair trial provided in Article 6 of the European Convention on Human Rights after a trial had been held is to assess the fairness of the challenged proceedings by having regard to the proceedings as a whole. For instance, in Sipavicius v Lithuania (2002) (final judgment delivered on 10 July 2002), the ECHR when dealing with an alleged violation of Article 6(3)(a) and (3)(b) said:

“27. The Court recalls that the fairness of proceedings must be assessed with regard to the proceedings as a whole.”

Further on the ECHR said:

“30. [The] Court reiterates that compliance with Article 6 must be determined in the light of the proceedings as a whole.”

In the Adolf report of 8 October 1980 by the European Commission on Human Rights, cited by Richardson P in Attorney-General v The District Court of Otahuhu (supra), it is there stated in relation to the specific rights provided in Article 6(3) of the Convention:

“They exemplify the notion of a fair trial......but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Art 6(3) are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings.”

The ECHR has also noted in a number of its judgments that the general right to a fair hearing enshrined in Article 6(1) is the primary night. The specific rights provided in Article 6(3) are particular aspects of the general right to a fair hearing provided in Article 6(1). For instance, in Mattoccia v Italy (2000) (judgment delivered on 25 July 2000), the ECHR said of the application of Article 6(1) and (3)(a) and (b) of the Convention:

“’58. The Court reiterates that the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1.”

In Condron v United Kingdom (2000) (final judgment delivered on 2 August 2000), the ECHR said:

“76. The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set out in paragraph 1.”

Many other judgments of the ECHR contain similar statements but it is unnecessary to refer to any more of them. Suffice in this connection to make one further reference to the commentary in Human Rights Law and Practice (1999) by Lord Lester of Herne Hill et al, where the learned authors state at p.153:

“4.6.62. The minimum guarantees set out in Art 6(3)(a) - (e) are specific aspects of the general right to a fair trial, and are not therefore exhaustive. The relationship between art 6(1) and art 6(3) ‘is that of the general to the particular.’”

It is to be noted here that Article 6(1) of the European Convention on Human Rights is almost identical word for word to Article 9(1) of the Samoa Constitution and Article 6(3)(a)-(e) of the Convention is also almost identical word for word to Article 9(4)(a)-(e) of the Samoa Constitution.

When considering an alleged violation of the specific right to have adequate time and facilities to prepare a defence provided in Article 6(3)(b), the approach adopted by the ECHR is to examine the allegation in the light of Article 6(3)(b) and 6(1) taken together rather than to just examine the allegation on the basis of Article 6(3)(b) alone. For instance, in Mattoccia v Italy (2000) (supra), the ECHR when dealing with a complaint for alleged violation of Article 6(3)(b) said:

“60. While the extent of the ‘detailed’ information referred to in this provision varies depending on the particular circumstances of each case, the accused must at any rate be provided with sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence.

“In this respect, the adequacy of the information must be assessed in relation to sub-paragraph (b) of paragraph 3 of Article 6, which confers on everyone the right to have adequate time and facilities for the preparation of their defence, and in the light of the more general right to a fair hearing embodied in paragraph 1 of Article 6.”

In Zoon v The Netherlands (2000) (judgment delivered on 7 December 2000), the ECHR was faced with an allegation of a violation of Article 6(3)(b) in that the complainant had not been provided with a copy of the judgment of the Regional Court of Rotterdam by the time he had to decide whether to lodge an appeal. In dismissing the complaint, the ECHR said:

“30. The applicant complained that he did not have available a copy of the complete written judgment of the first-instance Court at the time when he had to decide whether or not to lodge an appeal. He alleged a violation of Article 6(1) and (3)(b) of the Convention....

“31. As the requirements of Article 6(3) are to be seen as particular aspects of the right to be given a fair trial guaranteed by Article 6(1), the Court will examine the applicant’s complaint under Article 6(1) and (3)(b) taken together.”

In G.B. v France (2002) (final judgment delivered on 2 January 2002), the ECHR said:

“57. Bearing in mind that the requirements of paragraph 3(b) of Article 6 of the Convention amount to specific elements of the right to a fair trial guaranteed under paragraph 1, the Court will examine all the complaints under both provisions taken together.”

One can go on citing passages from the relevant judgments of the ECHR, but, in my view, the point needed to be made has been made with sufficient emphasis and clarity. That is, if there is a complaint that a defendant did not have adequate time and facilities to prepare his defence, such a complaint has to be determined on the basis of Article 6(1) and (3)(b) taken together to see whether there has been a violation of the right to a fair trial. In the context of Article 9 of the Samoa Constitution, that would mean if there is a complaint of a violation of the constitutional right to a fair trial because a defendant did not have adequate time and facilities to prepare his defence, such complaint should be examined under Article 6(1) and (3)(b) taken in conjunction.

It would appear then that where there is a complaint of a prospective violation of Article 6(3)(b) as opposed to a violation that has actually occurred then such a complaint should be examined under Article 6(1) and (3)(b) taken together. A possible remedy to prevent the prospective violation from becoming an actual violation is an adjournment. If an adjournment can be granted without undue prejudice to the defendant, then that is the appropriate course to take. In the case of Sadak v Turkey (No. 1) (2001) (judgment delivered on 17 July 2001), which was a case of actual violation of the right to a fair trial, the accused were charged with treason against the integrity of the State before the Ankara National Security Court. On the last day of the ensuing trial, and just before the Court delivered its judgment, the prosecution sought to alter the charge from one of treason to one of belonging to an armed organisation set up for the purpose of destroying the integrity of the State. The elements of the two charges were different. The Court granted the alteration sought by the prosecution. At that time the lawyers for the accused had already left the hearing. The accused who were then appearing by themselves applied for additional time to reorganise and prepare their defence to the new charge. That application was refused. The accused were then convicted of the new charge and sentenced to very lengthy terms of imprisonment. When the case came before the ECHR, one of the complaints by the accused was that their right under Article 6(3)(b) of the European Convention on Human Rights which requires that everyone charged with a criminal offence shall have adequate time for the preparation of his defence had been violated. In holding, inter alia, that the accused’s right under Article 6(3)(b) had been violated, the ECHR said:

“57. The Court therefore considers that, in using the right which it unquestionably had to recharacterise facts over which it properly had jurisdiction, the Ankara National Security Court should have afforded the applicants the possibility of exercising their defence rights on that issue in a practical and effective manner, particularly by giving them the necessary time to do so. The case file shows that the National Security Court, which could, for example, have decided to adjourn the hearing once the facts had been recharacterised, did not give the applicants the opportunity to prepare their defence to the new charge, which they were not informed of until the last day of the trial, just before the judgment was delivered which was patently too late. In addition the applicant’s lawyers were absent on the day of the last hearing. Whatever the reason for their absence, the fact is the applicants could not consult their lawyers on the recharacterisation of the facts by the prosecution and the National Security Court.

“58. Having regard to all the above considerations, the Court concludes that the applicants’ right to be informed in detail of the nature and cause of the accusation against them and their right to have adequate time and facilities for the preparation of their defence were infringed.

“59. Consequently, there has been a violation of paragraph 3(a) and (b) of Article 6 of the Convention taken together with paragraph 1 of that Article, which requires a fair trial.”

Reports of the judgments of the ECHR are not available in Samoa. The judgments of the ECHR referred to in this judgment were downloaded from the internet. I have no valid reason to doubt their veracity and accuracy.

Law applied to facts

As earlier mentioned, what occurred in this case was that copies of trial documents by the appellant were only served on counsel for the respondent two and three days before the trial was to start due to an oversight on the part of the appellant’s counsel. The late service of the trial documents was contrary to an order of the Court that service was to be effected within a specified time which was well before the trial dates. One of the trial documents was also difficult to read. Thus on the day the trial was to start, a pre-trial application was made on the respondent’s behalf to dismiss the charge against the respondent on the grounds: (a) the failure of the appellant to comply with Court’s as to service of the trial documents within a specified time had resulted in a breach of the respondent’s right to a fair trial under Article 9(1) and (4)(b) of the Constitution, and (b) the appellant’s non-compliance with the Court’s order was an abuse of process. Even though a finding was made that the respondent’s constitutional right to a fair trial had been infringed, the charge against the respondent was dismissed on the ground of abuse of process as a result of the appellant’s non-compliance with the Court’s order.

In the circumstances of what occurred, I am of the opinion that the trial should have been adjourned in order to give the respondent adequate time to prepare his defence. That would have satisfied the respondent’s specific right provided in Article 9(4)(b) and at the same time safeguard his primary right to a fair hearing provided in Article 9(1). This would have been the appropriate course to take as there was no evidence that an adjournment would have been unduly prejudicial to the respondent. Such an adjournment could have been accompanied by an order to the appellant to serve on the respondent’s counsel within one or two days a legible copy of the trial document which the respondent’s counsel found difficult to read.

I am also of the opinion that there was no violation of the respondent’s right to a fair hearing provided in Article 9(1). In the first place, this is not a case where it was impossible to achieve a fair trial. The obstacle in the way of a fair trial created by the late service of trial documents by the appellant on the respondent’s counsel could have been overcome by an adjournment to give the respondent adequate time to prepare his defence. Such an adjournment, as I was informed from the bar, would have been for two months. There was, as already mentioned, no suggestion that such an adjournment would have been unduly prejudicial to the respondent. If it had been impossible to achieve a fair trial by any means available to the Court, then there would have been a violation of the respondent’s right to a fair trial because it means that the respondent had been effectively denied the right to a fair trial which is given to him by Article 9(1). Secondly, if the hearing had proceeded notwithstanding the late service of copies of the trial documents by the appellant, it would have been arguable that the respondent’s right to a fair trial had been violated because he did not have adequate time to prepare his defence contrary to Article 9(4)(b). But the hearing did not proceed. So the respondent did not have an unfair hearing. There is no other basis that I can see by which it can be said that the respondent’s right to a fair trial had been violated. I have therefore come to the view that there had been no violation of the respondent’s constitutional right to a fair trial.

Abuse of process

As mentioned earlier, on 23 March 2004 the respondent entered a not guilty plea in the District Court to the amended charge of threatening to kill which carries a maximum penalty of three years imprisonment. The Court then adjourned the case for hearing to 23 and 24 August 2004 and ordered the appellant to serve copies of all its trial documents on the respondent’s counsel within 45 days. That was to be by about 6 May. The appellant only served copies of its trial documents on 19 and 20 August. There was, therefore, non-compliance by the appellant with the Court’s order in respect of the time period within which the trial documents should have been served. This non-compliance was due to an oversight on the part of the appellant’s counsel who is one of the most busy members of the bar given the number of cases in which he appears as counsel before the Courts. On 23 August, the day on which the hearing was to start, counsel for the respondent moved to dismiss the charge against the respondent. One of the grounds of that application was that the appellant’s failure to comply with the Court’s order amounted to an abuse of process. The charge was dismissed on that ground.

In the context of criminal proceedings, when there is a complaint of abuse of process, there are two fundamental policy considerations which the Court must take into account in dealing with such a complaint. This was explained in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 in a joint judgment delivered by Mason CJ, Dawson, Toohey and McHugh JJ where their Honours said at p.520:

“As Lord Scarman said in Reg v Sang [1979] UKHL 3; [1980] AC 402 at p.455, every Court is in duty bound to protect itself’ against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464 at p.481 in a passage which Mason CJ quoted in Jago v District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23 at p.30. The first is that the public interest in the administration of justice requires that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the Court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the Court’s processes may lend themselves to oppression and injustice.

The experience of other common law jurisdictions, for example, England, Australia and New Zealand has shown that the circumstances which may constitute abuse of process are so varied that the categories of circumstances which constitute abuse of process cannot be defined exhaustively. It is therefore often said that the categories of abuse of process are not closed. In the context of criminal proceedings, some of the situations which would constitute abuse of process include the bringing of a prosecution for an improper purpose or ulterior motive, conduct on the part of the prosecution which has made it impossible to achieve a fair trial, or deliberate non-compliance with orders of the Court which have tarnished the integrity of the Court. Whether or not such circumstances would amount to abuse of process because they “offend the Court’s sense of justice and propriety,” or “strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law,” or “tarnish the Court’s own integrity” will depend on the facts of each case.

Generally speaking, there is nothing more serious that offends the Court’s sense of justice and propriety in the context of criminal proceedings than to subject a defendant to a trial that will be unfair. The Court will therefore employ all the means available to it, including an adjournment, to prevent an unfair trial from being held provided that a fair trial can still be achieved in the circumstances of the case. To put it another way, it is the duty of the Court, as far as it is practicable, to ensure that a fair trial takes place and an unfair trial is avoided. If, in the circumstances, it is not possible to achieve a fair trial, then to appease the Court’s sense of justice and propriety, the usual remedy is to stay the prosecution or dismiss the charge. That will ensure that the defendant will not be subjected to an unfair trial. However, if the trial had already been held and completed and there was unfairness to the defendant which rendered the trial unfair, then to appease the Court’s sense of justice and propriety which has been offended, the ordinary remedy if the defendant had been convicted is to quash or set aside the conviction. In some cases, it may also be appropriate, in addition to setting aside the conviction, to order a retrial. This would be done on appeal or on an application for a retrial.

As Samoa has a written Constitution which guarantees to every person charged with an offence the right to a fair trial under its Article 9, one would expect that complaints about alleged violations of the right to a fair trial would be brought under Article 9 and be dealt with under the Constitution. The Courts, of course, still retain their jurisdiction to deal with such complaints under the common law doctrine of abuse of process.

The focal point of the judgment under appeal, as I understand it, is that the appellant’s non-compliance with the Court’s order if allowed to remain unchecked will undermine the Court’s ability to function as a Court of law or tarnish the integrity of the Court’s orders and its processes and thereby strike at the public confidence in the administration of justice. The Court’s order that the appellant failed to comply with was a pre-trial procedural order requiring the appellant to serve on counsel for the respondent copies of all of its trial documents within a certain period. It is obvious that the purpose behind the order was to ensure that the respondent had adequate time and facilities to prepare his defence before the trial. Compliance with the order was required to ensure that a fair trial could be held. Non-compliance with the order could have led to an unfair trial unless the trial was further adjourned to provide adequate time to the respondent to prepare his defence. The learned District Court Judge also saw the non-compliance in this case as undermining the Court’s ability to function as a Court of law and as tarnishing the integrity of the Court’s processes and thereby undermining public confidence in the administration of justice if allowed to remain unchecked. The ultimate question I have to decide is whether in the circumstances of this case the appellant’s non-compliance with the Court’s order constituted an abuse of process which justified a dismissal of the charge. To answer this question I have found it helpful to refer to some of the relevant Australian and New Zealand cases.

In R v Cox (1997-8) 196 LSJS 3, Cox J in the Court of Criminal Appeal of South Australia, with the concurrence of Prior and Williams JJ, said:

“But there is a more fundamental obstacle to the acceptance of Mr Shaw’s general submission about procedural unfairness in this case. As a ground for staying or invalidating a trial, procedural fairness may take a number of different forms. The case law on the subject is growing. See, for example, King v The Queen (1986) 161 CLR 425, Walton v Gardiner (1993) 177 CLR 378, Rona v District Court of South Australia [1995] SASC 4922; (1995) 63 SASR 223. Of course, the oppression or injustice or unfairness will have to be clearly established and instances of a conviction being set aside on broad principles of procedural unfairness are likely to be uncommon. It is necessary to remember that we live in an imperfect world and no accused is entitled to a flawless trial. Here much was made of the case management rules and the obligation of the Crown to conform with them. It failed to do so when it did not provide the defence with Garde’s witness statement at the proper time and in a form that accorded fully with the evidence that he would eventually be asked to give, with the result, it was said, that the appellant did not have the trial to which he was entitled. So the submission ran, his conviction should be set aside, whether any actual prejudice or unfairness has been established or not. However, it is a regrettable but common feature of our trial practice that the Crown will produce new or supplementary witness statements up to the eve of the trial and sometimes during the trial itself. The lateness may be justifiable or it may not, and it will always be a matter for the trial Judge, if the defence may be embarrassed, to decide whether the Crown should be permitted to call the late evidence. The Court makes every effort, through its status conferences and the undertakings it requires, to keep such occurrences to a minimum, but new counsel are briefed and counsel have second thoughts and additional witnesses simply turn up and so on, and it will tilt the scales of justice markedly and undesirably if the Court were to impose a blanket prohibition on late evidence. The Court must set its face against laxity or complacency in this area, and the normal sanction will be the exclusion of the evidence when it could be unfair in all the circumstances to admit it. If it can be allowed on just terms, most obviously by granting any necessary adjournment, sometimes by allowing the witness to be cross-examined on a voir dire, then that will ordinarily be the end of the matter. It will be a rare case indeed in which a defendant, although shown not to have been prejudiced by the lateness of the evidence, may nevertheless have his conviction set aside by reason of its introduction into the trial.”

In the Supreme Court of Queensland in the case of R v Harker [2002] QSC 61, Mackenzie J after referring to such cases as Jago v District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23, Williams v Spautz (1992) 174 CLR 518 Moevao v Department of Labour [1980] 1NZLR 464, said:

“[10] In R v Cooney (1987) 31 A Crim R 256, where the facts were less meritworthy for the prosecution than in the present case, the Court of Criminal Appeal refused to stay a second indictment after a nolle prosequi had been entered on an identical indictment in circumstances which ‘frustrated the method of listing cases.’ Andrew CJ said the following (264):

’There may be a rare case in which conduct by the prosecuting authority is so blatantly abusive as to call for a gesture on behalf of the Court resulting in a stay, the better to ensure that there will be no repetition of such behaviour.’”

Mackenzie J then went on to say:

“[11] While superior Courts have the power to ensure that their process is not used as an instrument of oppression, it is not the proper approach to equate that power to one to punish the prosecuting authority for non-compliance with case management procedures (Rona v District Court of South Australia [1995] SASC 4922; (1995) 77 A Crim R 16) or, in my opinion, a failure to indict within a prescribed time limit, if there is a clear explanation of the failure and such non-compliance or failure is not aggravated in some way by other factors. The kind of cases referred to in the passage quoted from Cooney should truly be rare.

“[12].....[Mr East] submitted [this] was one of the rare cases where the prosecution’s conduct was so blatant that a stay was justified to prevent the administration of justice being brought into disrepute and to prevent such misbehaviour in future.

“[13].....To the extent that it is implicit in those submissions that it is appropriate to impose a sanction upon the Director of Public Prosecutions for not complying with the time limit, it is important to remember that the reason why compliance with s.590 was not achieved was an administrative malfunction or incompetence on the part of someone in that office. That is far removed from a case where there has been a deliberate attempt to avoid prescribed procedures. Administration incompetence on the part of a prosecuting authority is to be deplored, but it does not, without more, equate to an abuse of process, applying proper principles.”

In New Zealand in the case of Allen v The Police (1998) 16 CRNZ 23, which was relied upon by counsel for the respondent, Giles J, in the High Court of New Zealand, when dealing with an appeal from the District Court regarding the pre-trial failure of the prosecution to supply certain records requested by the defence, said at p.31:

“In my view, this Court has given previous indications to prosecutors that this kind of information must be provided upon request. If there is a blatant and/or unexplained failure or refusal so to do, then the defence is entitled to take that point and seek dismissal of the information. Although the trial Judge would retain an overall discretion as to an adjournment application if same was forthcoming from the prosecutor, in the absence of a proper explanation for the delay, and bearing in mind that a person charged with an offence is entitled to have the matter determined without undue delay (s.25(b) New Zealand Bill of Rights Act 1990) an unduly benevolent attitude to a prosecutor-originated adjournment application might be undeserved. The position will no doubt be different if the prosecutor seeks the adjournment and is able to justify the reasons for non-compliance with the request. But it cannot be right to place the onus on the defence to seek an adjournment to enable the prosecutor to discharge his or her duty, neither can it be right to require a defendant to proceed to trial with the obvious risks of so doing when disclosure has been sought and refused. If, upon a timely request the prosecution elects not to respond, then, in my view, there are fatal consequences for the prosecutor since, in most cases, a ground for dismissal for abuse of process or prejudice to the process of a fair trial will have been per se established. The abuse lies in deliberate failure/refusal to supply, the prejudice lies in denial of the ability to assess the history and reliability of the device in order to determine whether there is a defence point to be taken. I do not see the issue as one of discipline, rather one of fairness.”

It will be seen that the approach taken in Allen v The Police is strict in the way it is framed as compared to the approach which was adopted by the New Zealand Court of Appeal in R v Pahau (2001) 19 CRNZ 21 or by the High Court of New Zealand in Herewini v Ministry of Transport [1992] 3 NZLR 495 at p.496. The Allen approach is also inconsistent with the approach stated by Cooke P in R v Accused [1992] 2 NZLR 187 at p.193 in relation to the ordinary remedy to be applied by the Court under s.368 of the Crimes Act 1961 (NZ) when there is non-compliance by the Crown with its obligation to supply briefs of evidence to the defence. These New Zealand authorities have been referred to earlier in this judgment. In the other case of Holloway v Police (1999) 16 CRNZ 647 Chisholm J in the High Court of New Zealand, distinguished Allen and held that the failure of the police in that case to disclose all information to the defendant for the preparation of his defence in spite of a request from the defendant for information was not blatant, deliberate or unexplained and therefore dismissed the appeal from the District Court where the defence of abuse of process was rejected.

In Australia, the approach which the Courts have adopted to the question of whether criminal proceedings should be permanently stayed on the ground of abuse of process requires the Court to embark on a balancing exercise of various factors and considerations. This approach is set out in Walton v Gardiner (1993) 177 CLR 378 where Mason CJ, Deane and Dawson JJ in a joint judgment said at pp.395 - 396:

“As was pointed out in Jago v District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”

In R v Pahau (2001) 19 CRNZ 21 a similar approach to Walton v Gardiner which involves a weighing process and the balancing of a variety of factors and considerations was applied by the New Zealand Court of Appeal in rejecting a submission by counsel for the appellant, that due to the failure of the Crown in a District Court prosecution to disclose to the defence the evidence of certain witnesses in a timely fashion, those witnesses should not have been permitted to be called and that the rial should have been stayed. In delivering the judgment of the Court of Appeal, Thomas J said in a passage already cited in this judgment:

“[In] the absence of any suggestion that the Crown was seeking to ambush the defence or otherwise acting in bad faith, an adjournment is the appropriate method of dealing with any prejudice to the accused. The interest of the community in ensuring that guilty persons are convicted outweighs any procedural defect or delay which can be rectified by granting an adjournment. To the extent that Allen v The Police is inconsistent with this approach it is in error."

It is also to be noted that the jurisdiction to grant a permanent stay of criminal proceedings on the ground of abuse of process is one which is not to be exercised except in the clearest of cases: see for example R v Power [1994] 1 S.C.R. 601 at 611 and Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 which were referred to in Police v Joseph Lafaele Faulkner (No. 2) (2005) (a judgment of this Court delivered on 20 April 2005). Other formulations of the same approach is that the jurisdiction to stay criminal proceedings on the ground of abuse of process is one to be exercised in the most exceptional circumstances: Wiliams v Spautz [1992] HCA 34; (1992) 174 CLR 509, at p.529, or is one which must be exercised carefully and sparingly and only for very compelling reasons: R v Horseferry Road Magistrates Court; ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42 at p.74. The onus of establishing abuse of process is on the party alleging abuse and it is a heavy one: Goldsmith v Sperrings Ltd [1977] 2 A11 ER 566 at p.582.

In this case, I am of the view that non-compliance with the District Court’s order that occurred due to an oversight on the part of counsel for the appellant does not amount to abuse of process. Something much more serious than that is required. The non-compliance being due to mere oversight cannot, in the circumstances, be described as blatant or deliberate or abusive. I respectfully differ from the District Court Judge that what occurred in this case would offend the Court’s sense of justice and propriety or undermine public confidence in the administration of justice and therefore amounts to abuse of process which justifies dismissal of a serious criminal charge. The public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime must also be weighed on the judicial scale. The public interest in fairness to the accused could have been satisfied by granting an adjournment to provide adequate time and facilities to the respondent to prepare his defence. On balance, I am of the view that the overall interests of justice did not justify the dismissal of the charge against the respondent without a trial. The appeal is therefore allowed.

Jurisdiction of District Court to deal with alleged violations of constitutional rights

The remaining ground of appeal which is that the District Court does not have jurisdiction to deal with alleged violations of constitutional rights is too broadly stated as there are several fundamental rights guaranteed by the Constitution. The only such right which is in issue here and with which the Court is concerned in this judgment is the right to a fair trial. I will therefore restrict what I say in this part of my judgment to that right.

Article 9(1) which enshrines the right to a fair trial provides, as far as relevant for this part of my judgment:

“In the determination of.....any charge against him for any offence, every person is entitled to a fair......hearing.......by [a] tribunal established under the law.”

It is clear that the right to a fair hearing would apply to every criminal trial held before a Court to determine a charge which has been laid against any person. That would include a criminal trial held in the District Court which is a subordinate Court established by statute. Both counsel in this appeal appeared to accept that position. It is elementary law that it is the duty of every Court in criminal proceedings to ensure a fair trial. It follows that a Court, including the District Court, has the necessary power to perform that duty in an effective manner in order to achieve a fair trial. To impose on the Courts the duty to ensure a fair trial without the necessary back-up power could undermine the right to a fair trial and lead to unfairness. It follows that the District Court has power in a criminal proceeding to deal with alleged violations of the constitutional right to a fair trial made at any stage of the proceedings, including the pre-trial stage, and to make rulings on such alleged violations. The very high number of criminal cases with which the District Court has to deal further makes it clearly necessary for that Court to have such power. Decisions of the District Court are subject to appeal and review so that any person who is not satisfied with a ruling on an alleged violation of the constitutional right to a fair trial may appeal or apply for review whichever is appropriate. It is also to be borne in mind that District Court Judges are legally qualified, they are not lay Judges.

Even though Australia and New Zealand do not have a right to a fair trial guaranteed by a written Constitution, the authorities in those jurisdictions on the power of the District Court to deal with complaints of alleged violations of the right to a fair trial lend support to the view I have expressed. In Rona v District Court of South Australia [1995] SASC 4922; (1995) 63 SASR 223 King CJ said in the Supreme Court of South Australia:

“9. The District Court is created by statute, namely the District Court Act, and its jurisdiction and powers are conferred by the statute. It is unable to draw upon ‘the well of undefined powers which is available to the Supreme Court’ (Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 per Dawson J at pp. 16-17) by reason of section 17 of the Supreme Court Act. There is no doubt, however, that the District Court has power to stay criminal proceedings permanently, permanently if necessary, to prevent abuse of its process: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, whether that power is inherent in the Court by reason of its being a Court of justice (Jago’s case per Mason CJ at p.26) or as implied by the grant of jurisdiction in section 9 of the District Court Act (Grassby v The Queen (supra) per Dawson J at pp.16-17.

“10. That the power of a Court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509......the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial, Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75......and with preventing the prosecution of proceedings brought for an improper purpose, Williams v Spautz.”

The distinction between an “inherent power” and an “implied power” alluded to by King CJ in Rona was explained as fundamental by Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 pp.16-17. Anyone who is interested in being further enlightened on that distinction is advised to read Grassby at pp.16-17.

In New Zealand, the Court of Appeal has held that the New Zealand District Court has the necessary power to control its own proceedings to ensure fairness, determine preliminary questions of law and fact, and prevent abuse of process. In McMenamin v Attorney-General [1985] 2 NZLR 274, it was said at p.276:

“An inferior Court has the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on it by statute. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of that process.”

In Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, which was a case under the Official Information Act 1982 (NZ), Cooke P said at p.399:

“In proceedings on indictment there is no reason why a High Court Judge cannot determine a preliminary or incidental question as to whether the accused has received information to which he is entitled under the Official Information Act. In my opinion the same applies to a District Court Judge in relation to summary proceedings. Inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact: O’Toole v Scott [1965] AC 939, 959; Re GJ Mannix Ltd [1984] 1 NZLR 309; Mc Menamin v Attorney-General [1985] 2 NZLR 274 and the authorities there collected at p276.”

In Attorney-General v The District Court of Otahuhu [2001] NZCA 187; [2001] 3 NZLR 740, Richardson J, when dealing with the powers of the District Court to make pre-trial rulings, cited with approval the above passages from McMenamin v Attorney-General and Commissioner of Police v Ombudsman His Honour also said at p.746:

“As a statutory Court of limited jurisdiction the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction.”

One of the recognised categories of abuse of process at common law is the prosecution of a criminal proceeding which will result in a trial which is unfair or conduct on the part of the prosecution which will make it impossible to give the defendant a fair trial: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at p.518; R v Horseferry Road Magistrates Court; ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42 at p.74. The power of the District Court to control and regulate its own proceedings to prevent abuse of process must therefore include the power to ensure a fair trial and to determine and rule on any complaints or allegations, made in the course of criminal proceedings, that the right to a fair trial will be or is being violated.

In view of this discussion, I reject that the District Court does not have the power to deal with allegations of violations of the constitutional right to a fair trial made in the course of criminal proceedings held before that Court. The District Court has such power and may make rulings on alleged violations of the constitutional right to a fair trial raised in the course of criminal proceedings.

Conclusions

The appeal is allowed and the decision of the District Court dismissing the charge against the respondent as defendant is set aside. The case is referred back to the District Court for the respondent to stand trial. The District Court may make the appropriate order in respect of the trial document which counsel for the respondent has found difficult to read.

In the circumstances of this case, I make no order as to costs.

Before leaving this case, I am grateful to counsel for the respondent for his customary industry. His citation of authorities has been helpful in my preparation of certain parts of this judgment.

CHIEF JUSTICE

Solicitors:
Toailoa & Associates Law Firm for appellant
Leung Wai Law Firm for respondent