Police v Tulaga [2006] WSSC 51 (14 September 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

PETELO TULAGA
Accused

Counsel: L S Petaia for prosecution
S Leung Wai for accused

Hearing: 4 September 2006
Judgment: 14 September 2006

JUDGMENT OF SAPOLU CJ

Introduction

In these proceedings the Court is faced with a motion by the accused seeking an order for a stay or dismissal of the criminal charges against him on the ground that his right under Article 9(1) of the Constitution to a hearing within a reasonable time has been infringed. As far as relevant, Article 9(1) provides:

"9(1) In the determination ...of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time..."

This right of a person charged with an offence to a hearing within a reasonable time under Article 9(1) is expressed in s.11 (b) of the Canadian Charter of Rights and Freedoms as the right to be tried within a reasonable time and in s.25 (b) of the New Zealand Bill of Rights Act 1990 as the right to be tried without undue delay. I mention these two jurisdictions because of the continuing references made by the Samoan Courts and bar to the relevant case law in those jurisdiction when dealing with motions for stay of proceedings for alleged violations of the right of a person charged with an offence to a hearing within a reasonable time. Samoan jurisprudence in this area of the law is still evolving.

The growing practice in this type of proceedings is for counsel on both sides to provide chronologies of the events related to the period of the alleged delay. This provides useful background material and is to be encouraged. An improvement on the current practice is for counsel to provide an agreed chronology of events where that is possible, setting out the reasons for any delay. Where that is not possible, counsel should provide separate chronologies and indicate where they are in agreement and where they are in disagreement and provide explanations for any disagreement. Such chronologies must also set out the reasons for any delay. It is also important for counsel to be specific and precise about dates. The reason for this is that this type of proceeding is normally dealt with on the basis of documentary material.

Chronology

The chronology of events pertaining to these proceedings, as it may be gathered from the separate chronologies provided by counsel for the prosecution and counsel for the accused, is as follows:

1. About May 2005 - The accused was charged with nine counts of theft as a

servant and eight counts of falsifying accounts

2. 13 June 2005 - This case was called for mention and counsel for the accused

entered a not guilty plea to all the charges. The case was then set for hearing in the week commencing 14 November 2005.

3. 10 November 2005 - Call over for all cases set down for hearing in the week

commencing 14 November 2005 to find out which cases were ready or not ready to proceed to a hearing. The defence was not ready to proceed to a hearing, as it had not been served with copies of the prosecution’s trial documents. Justice Vaai made an order for the prosecution to serve its trial documents "today" and then adjourned the case to the mentions on 14 November 2005 to set a new hearing date.

4. 14 November 2005 - The case was re-mentioned and further adjourned for hearing

to the week commencing 31 July 2006.

5. 27 July 2006 - Counsel for the accused appeared at the call over scheduled

for that day to find out which cases set for hearing in the week commencing on 31 July 2006 were ready to proceed or not ready to proceed. The call over did not proceed that day but was adjourned to the next day, 28 July 2006. Later on the same day, an officer of the Ministry of Justice called the office of counsel for the accused and advised that the call over had been adjourned to 31 July 2006. This was incorrect information as the call over was still to proceed on 28 July and counsel for the accused was misled by that incorrect information. By that time the prosecution had still not served copies of its trial documents on the defence.

6. 28 July 2006 - The call over proceeded as it was adjourned from the

previous day. However counsel for the accused did not appear as he thought it had been adjourned to 31 July 2006. He later found out from another counsel that the call over did proceed in the morning of 28 July 2006. Counsel for the accused then sent a complaint to the Ministry Justice that he was misinformed about the date of the call over by an officer of the Ministry. At about 4:00pm the same day, counsel for the accused was served by the prosecution with copies of its trial documents.

7. 31 July 2006 - Counsel for the accused made oral application to dismiss the

charges against the accused but Justice Vaai adjourned the matter to 28 August 2006 for counsel to file a written application. It would appear that no new hearing date has been set.

8. 28 August 2006 - The motion to stay or dismiss the charges was filed and

served on the prosecution.

9. 29 August 2006 - The prosecution filed and served a notice of opposition to the

motion for a stay or dismissal of the charges and required the accused to be cross-examined as to the contents of his affidavit in support of the motion filed on his behalf

10. 30 August 2006 - The prosecution received a facsimile letter from counsel for

the accused objecting to its request to cross-examine the accused on the contents of his affidavit.

Further background material

By way of further background material, the accused says in his affidavit that this case has been a heavy burden on him, his wife and his family. He and his wife were expecting their first child in April this year but due to his wife’s constant worry about what will happen in this case, she miscarried. He has also not been able to find permanent employment because of the charges against him. The only employment he has is part-time employment as a taxi driver from one of his friends.

The accused also says in his affidavit that under his bail conditions, he is required to report to the Apia Police Station every Monday and Friday. It is not mentioned when these bail conditions were imposed. Presumably they were imposed on 13 June 2005 when this matter was first called for mention. The accused further says that as a consequence of his bail conditions, his personal liberty has been restricted and he is not able to leave Samoa without approval of the Court. In March 206 when he went to American Samoa he had to obtain prior approval of the Court.

The accused also says that he has been advised by his counsel that the Court calendar is now into June 2007 and if a new hearing date is to be set for his case, that will have to be, at the earliest, June 2007 which will be about 26 months from May 2005 when he was charged.

In his written submissions handed to the Court, counsel for the accused asserts that the accused has also had to face the stigma and embarrassment in his village of being charged with theft. He also asserts that a delay of 26 months if this case is further adjourned for hearing to June 2007, will necessarily affect the memory of witnesses and this will impact adversely on the ability of the accused to defend the charges against him. He further asserts that this is a straightforward case which does not involve any complexity.

I will comment on these further background material in the course of this judgment.

Relevant law

The leading authority on the right of a person charged with an offence to be tried within a reasonable time is the decision of the Supreme Court of Canada in R v Morin (1992) 71 CCC (3d)1; [1992] 1 SCR 771; 12 CR 4th 1 (SCC) and in particular the judgment of Sopinka J which has been cited and quoted by counsel for the accused in his written submissions. At p.12 of the first citation, Sopinka J explained the purpose of the right of a person charged with an offence to be tried within a reasonable time as provided in s.11 (b) of the Canadian Charter of Rights and Freedoms by saying:

"The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial."

Sopinka J then explained these rights protected by s.11 (b) of the Charter by going on to say:

"The right to security of the person is protected in s.11 (b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh".

The learned Judge then explained the approach to be applied in determining whether there has been an infringement of the s.11 (b) right by saying at p.13:

"The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra ‘it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ p.1131)"

Sopinka J then indicated the factors to be considered in analysing whether the delay has become unreasonable by saying:

"[It] is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:

"1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case,

(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and

4. prejudice to the accused.

As to onus of proof, Sopinka J accepted that the legal burden of proving that an infringement of the s.11 (b) right to be tried within a reasonable time is on the accused who is alleging the infringement. But the evidentiary burden may shift between the parties depending on the circumstances of the case. He said at p. 14:

"I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the Court cannot come to a determinate conclusion on the facts presented to it. Although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting fourth evidence or argument may shift depending on the circumstances of each case."

In Police v Iakopo Ropati [2005] WSSC 8, I had also said that the onus of proving that the delay complained of is unreasonable is on the accused who is the applicant for a stay.

As to the standard of proof there are a number of Canadian authorities which state that the standard of proof required of the accused is proof on the balance of probabilities: for instance, R v Fagan (1998) 115 B.C.A.C 106; R v Grant (2001) BCSC 639 (Can LII) at para 26; R v Sigurdson (2002) BSCS 392 (Can LII) at para 16 which are all cases from the Province of British Columbia.

Perhaps I should also point out here that the Canadian experience shows that since R v Morin (supra) the number of successful challenges based on alleged violations of the right of a person charged with an offence to be tried within a reasonable time has declined quite markedly. In the decision of the Court of Appeal of British Columbia in R v Fagan (1998), 115 B.C.A.C. 106, Esson JA said:

"To summarize the consequences of the decision in Morin, I adopt the words of Professor Stuart in his one page annotation to R v Collins (1995) 40 C.R. (4th) 277... In the annotation, Professor Stuart with customary crispness said:

"The record is clear that the torrent of successful s.11 (b) challenges under R v Askov... has become a trickle under R v Morin... The right has been substantially curtailed ... Reported case law since Morin makes it clear that successful s.11 (b) challenges are now rare and highly unlikely to succeed unless the accused demonstrates serious prejudice."

In the decision of the New Zealand Court of Appeal in R v Coghill (1995) 13 CRNZ 258, Cooke P, as he then was, said at p.269:

"The 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 unreported, 2 June 1994, CA 62/94), 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 v District Court at Tauranga [1995] 2 NZLR 419] 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".

In the other decision of the New Zealand Court of Appeal in R v B; R v Parkes (1995) 13 CRNZ 377, Henry J in delivering the judgment of the Court similarly observed at p.379:

"Attention is again drawn to the observations that encouragement to raise s.25 (b) objections cannot be derived from the special facts of Martin and the need for careful consideration in any particular case before consuming Court time and causing further delay when there may be negligible prospects of success."

The passages cited from these two decisions of the New Zealand Court of Appeal are also pertinent here because the submissions for the accused in support of his motion for a stay or dismissal of the charges rely in part on the special facts of Martin v District Court at Tauranga [1995] 2 NZLR 419.

Discussion

I will now consider the factors set out by Sopinka J in R v Morin (supra) in the factual context of this case.

1. The length of the delay

As I said in Police v Iakopo Ropati [2005] WSSC 8, in considering whether the accused’s right to a hearing within a reasonable time under Article 9(1) of the Constitution has been violated, the whole period from the time the accused was charged to the end of the trial, if a trial has been held, should be analysed. Where a trial is still pending, then the whole period from the time the accused was charged to the time the pending trial is estimated to end.

In R v Morin (supra), where the accused had been convicted before the case went up to the Supreme Court of Canada, Sopinka J at p.14 of his judgment under the heading "The Length of the Delay" said:

"[This] factor requires the Court to examine the period from the charge to the end of the trial. Charge means the date on which an information is sworn or an indictment is preferred (see R v Kalanj [1989] 1 S.C.R. 1594"

Even though counsel for the accused stated that the accused was charged in or about May 2005, the informations before the Court show that some of them were sworn on 4 April 2005 while others were sworn on 18 April 2005. In terms of what was said by Sopinka J in Morin, those must be the two dates on which the accused was charged.

From April 2005 to now, September 2006, would be a period of 18 months. If a new trial date is set now, it would have to be in June 2007 based on the Court calendar. That will be a time lapse of 27 months from the time the accused was charged. This period of delay is of sufficient length to raise an issue as to its reasonableness. And as it is shown from Morin at p.13, if the length of the delay is such as to warrant inquiry into its reasonableness, the first factor to be considered is waiver of time periods. If the period of delay is not of sufficient length to raise an issue as to its reasonableness, then, of course, no inquiry is warranted into its reasonableness.

2. Waiver of time periods

As Sopinka J pointed out in R v Morin 71 C.C.C. (3d) 1 at p.14:

"Waiver must be clear and with full knowledge of the right one is waiving"

In this case there are two possible grounds on which the issue of waiver could be considered. The first ground is whether the accused agreed to the two trial dates that were set, firstly, for the week commencing 14 November 2005 and, secondly, for the week commencing 31 July 2006 and, if so, whether such agreement amounted to waiver. The second ground is whether the failure of the accused throughout the whole period of the alleged delay to make any request to the prosecution for copies of its trial documents amounted to waiver.

On the question of whether agreement by an accused to the setting of a trial date amounts to waiver, I refer to R v Smith [1989] 2 S.C.R. 1120 where Sopinka J said:

"Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waived 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 preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant’s s.11 (b) rights might be inferred based on the foregoing circumstances."

Then in Morin at p.14, 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 incuitable"

In the other decision of the Supreme Court of Canada in R v Brassard [1993] 4 S.C.R 283 L’Heureux-Dube J said:

"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 amount to acquiescence in the inevitable, the consents constituted waiver or, as actions of the accused, were attributable to him".

In the Court of Appeal of British Columbia in the case of R v Stewart (2000) BCCS 399, Braidwood J.A. explained:

"However, an agreement does not always constitute waiver. The term waiver by definition means that the accused had choices open to him. The Supreme Court of Canada has ruled that there can be no waiver in the absence of such choices".

In the present case, trial dates were twice set. The first trial date was set on 13 June 2005 for the week commencing 14 November 2005. The second trial date was set on 14 November for the week commencing 31 July 2006. There is no evidence whether the accused agreed to those trial dates so as to amount to waiver. The practice of the Court when setting trial dates for criminal and civil cases is that the presiding Judge, on the basis of available dates in the Court diary, would suggest a trial date to counsel and ask counsel whether such a trial date is mutually suitable. When counsel agree to a suggested trial date as mutually suitable, the case is then adjourned to that date for trial. It is uncommon for that practice not to be followed. Unfortunately, there is no evidence whether that practice was followed in this case. Both counsel did not raise or address the issue of waiver. In consequence, I am not in a position to determine whether the accused had agreed to any of the trial dates that were set and, if so, whether such agreement amounted to waiver.

On the second question of whether the failure of the accused throughout the whole period of the alleged delay to take any action to obtain from the prosecution copies of its trial documents amounted to waiver, I have come to the view that it did not. However, the inaction or non-action on the part of the accused may be taken into account under the factors of "actions of the accused" and "prejudice"

As it appears from the material before the Court, from April 2005 when the accused was charged to the call over on 10 November 2005, the prosecution did not provide the accused or his counsel with copies of its trial documents as it is required to do within a reasonable time before trial under s.89 (1) of the Criminal Procedure Act 1972. The accused, on the other hand, never requested from the prosecution copies of its trial documents at any time. In consequence, the accused was not in a position to proceed with the trial already set down for the week commencing 14 November 2005. The matter was then further adjourned for hearing at the call over on 10 November 2005 to the week commencing 31 July 2006 and Justice Vaai who presided at the call over on 10 November 2005 made an order for the prosecution to provide copies of its trial documents the same day. Again at the call over scheduled for 27 July 2006, the prosecution had still not provided the defence with copies of its trial documents and the defence had never requested from the prosecution copies of its trial documents. This call over was adjourned to Friday, 28 July 2006, but due to incorrect information from the Ministry of Justice, counsel for the accused did not appear at the call over on Friday morning, 28 July. In consequence, the trial of this matter set for the week commencing 31 July was vacated. Then at about 4:00pm in the afternoon of 28 July, counsel for the accused was served with copies of the prosecution’s trial documents.

It was not clear from counsel for the accused whether he would still have been ready to proceed with the trial set for the week commencing on 31 July notwithstanding the late service of the trial documents. His complaint is directed not only at the late service of the trial documents but also at the Ministry of Justice for his being incorrectly informed as to the date the call over of 27 July had been adjourned to.

In the circumstances, I conclude that there was no waiver of time periods, expressed or implied, by the accused or his counsel. As Sopinka J pointed out in R v Morin (1992) 71 C.C.C. (3d) 1 at p.14, "Waiver must be clear and unequivocal with full knowledge of the right one is waiving". In the circumstances of this case that did not occur. Even though the defence did not at any time during the whole period of the alleged delay request the prosecution for copies of its trial documents, the absence of such a request cannot be labelled as a clear and unequivocal release with full knowledge by the accused of his right to a hearing within a reasonable time under Article 9 (1). It, therefore, did not amount to waiver. But as I have already stated, such inaction or non-action on the part of the defence may, however, be taken into account under the factors of "actions of the accused" and "prejudice".

3. The reasons for the delay

(a) Inherent time requirements of the case

As Sopinka pointed out in Morin at p.13, all offences have inherent time requirements which inevitably lead to delay. These inherent time requirements of a case include its complexity, "intake requirements", and any preliminary inquiry. The learned Judge said:

"As well as the complexity of a case, there are inherent time requirements which are common to almost all cases. The respondent has described such activities as ‘intake requirements’. Whatever one wishes to call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time".

In Police v Iakopo Ropati [2005] WSSC 8, I referred to the period of time between the laying of the charges and when the accused entered his plea and a trial date was set, which included the times the accused took to retain counsel on legal aid and for counsel to obtain full instructions, as the "intake period" for the intake requirements or inherent time requirements of that case. The delay arising from the intake requirements was considered to be inherent delay and was neutral in the consideration of the overall delay whether it was reasonable. In the present case, I would also consider the time period from 4 and 18 April 2005 when the accused was charged to 13 June 2005 when the accused entered a plea of not guilty and a trial date was set, as the intake period for the intake requirements or inherent time requirements for this case. I would also consider the inherent delay due to the intake requirements of this case as neutral for the purpose of determining the reasonableness or otherwise of the overall delay. The inherent delay here is about two months and that is reasonable. There was also no complaint that this delay was unreasonable.

(b) Actions of the accused

There are really no actions by the accused which were responsible for the delay in this case. As explained by Sopinka J in Morin at p.14 under the heading "Actions of the Accused":

"Actions which could be included in this category include change of venue motions, ... adjournments which do not amount to waiver, attacks on search warrants etc."

Further on the learned Judge said:

"An example of such actions is provided by [R v Conway [1989] 1 S.C.R. [1659]]. In Conway, the accused made a number of requests which led to the proceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by Judge alone. A further example is provided in R v Bennett (1991), 6 C.R. (4th) 22 where the accused made an election at his Provincial Court trial to be tried in the then District Court".

In the present case, the accused did not contribute to the alleged delay by taking any action similar to the actions described in Morin. However, throughout the whole period of the alleged delay, the defence took no steps or any action to obtain from the prosecution copies of its trial documents. This inaction or non-action on the part of the defence will be considered further in relation to the factor of prejudice.

(c) Actions by the prosecutions

Of relevance under this factor is the failure or delay on the part of the prosecution to serve copies of its trial documents on the accused or his counsel within a reasonable time before trial as required under s.89 (1) of the Criminal Procedure Act 1972. The accused pleaded not guilty to the charges on 13 June 2005. The trial was then set for the week commencing 14 November 2005, some five months away. However, at the call over on 10 November 2005, the prosecution had not served the defence with copies of its trial documents. In consequence, the defence was not ready to proceed with the trial set for the week commencing 14 November 2005. That trial date was then vacated and a new trial date was set for the week commencing 31 July 2006. Justice Vaai who presided also made an order that the prosecution was to serve its trial documents on the defence on the same day, that is, 10 November 2006. At the call over that was held on Friday morning, 28 July 2006, which defence counsel did not attend because of incorrect information given to his office by a staff member of the Ministry of Justice, the prosecution had still not served its trial documents on the defence. The trial documents were only served on defence counsel at 4:00pm in the afternoon of that day. Counsel for the prosecution was not entirely clear as to why the trial documents were not served much earlier. He seemed to say it was due to oversight by the police. Even though it was also not entirely clear from defence counsel whether he was ready to proceed with the trial in the week commencing 31 July 2006, given that the trial documents, were served on him on 28 July, I have reservations about that.

From experience, fraud cases are generally the most difficult to prosecute because the relevant law and the facts of such cases are usually complex. That does not mean that such cases are therefore easy to defend. There are some fraud cases which are not of inordinate complexity but it does not follow that they are necessarily straightforward. In any event, in the absence of any material before the Court about the circumstances of the alleged offending in this case, I am not in a position to assess its complexity.

It follows from what I have just said, that it is probable that given the late service of the trial documents on the defence late Friday afternoon, 28 July 2006, the defence would not have been in a position to proceed with the trial in the week commencing 31 July. This would mean the trial would have had to be further adjourned and therefore further delay. The fact that defence counsel was misinformed by the Ministry of Justice about the date of the call over would have made no differences. The trial would still have been adjourned in any event due to the late service of the prosecution’s trial documents on the defence.

In the circumstances, I conclude that the prosecution was responsible for the delay from the week commencing 14 November 2005 to the week commencing 31 July 2006 which is a period of about 8½ months. Likewise, the prosecution would be responsible for the delay from the week commencing 31 July 2006 onwards.

(d) Limits on institutional resources

As Sopinka J stated in Morin at p.13 under the heading "The Reasons for the Delay":

"When a case is ready for trial a Judge, courtroom or essential Court staff may not be available and so the case cannot go on. This latter type of delay is referred to as institutional or systemic delay".

Further on, Sopinka said:

"Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s.11 (b) of the Charter... As I have stated this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them"

Strictly this factor does not apply to this case as there has not been any institutional or systemic delay because one of the parties, namely, the accused was never ready for trial due to the delay on the part of the prosecution to serve its trial documents. This is also not a case where the parties were ready to proceed but due to the non-availability of a Judge, courtroom or essential Curt staff the trial cannot proceed and there is consequential delay. In criminal cases, the Samoan practice has generally been that, after the accused has entered a not guilty plea to the charge, a trial date is set after the Judge has asked counsel involved whether that is a suitable trial date. The readiness of the parties to proceed to trial on that date is assumed on the basis that counsel would not have agreed to such trial date if they were not able to get prepared and be ready to proceed to trial on that date. The suitability of the trial date to the Court in view of the cases already set down for trial in the Court diary is also a factor taken into account in setting a trial date.

In Police v Iakopo Ropati [2005] WSSC 8, the period between the time the accused had pleaded not guilty to the charge and the date of trial was considered as institutional or systemic delay. The alternative course to take, perhaps, would have been to consider the period between the time the accused had pleaded not guilty and the date of trial under the Morin factor of "Other reasons for delay." I do not wish to further prolong this judgment by dwelling on this point as it was not raised or argued. For the purposes of this judgment, I am content to take the same approach as in Police v Iakopo Ropati (supra) and treat the period starting from 13 June 2005 until now as institutional or systemic delay.

The time periods to be considered here are (a) the time from the entering of the not guilty plea and the setting of the trial date on 13 June 2005 to the trial date originally set for the week commencing 14 November 2005, and (b) the time period from the week commencing 14 November 2005 to the trial date set for the week commencing 31 July 2005. With regard to (a), a waiting period of five months from the date of plea to the date of trial is well within reasonable standards. Absent the actions of the prosecution, a waiting period under (b) of 8½ months for trial would also have been reasonable. It is when the two periods are added together and the period for the consequential delay arising from the cancellation of the second trial date is taken into account, that an issue may be raised as to the reasonableness of the total period. If I understand counsel for the accused correctly, the reason for his complaint is not so much about the delay that has gone past but the future delay caused by the cancellation of the second trial date, as the Court calendar is now up to June 2007.

(e) Other reasons for delay

The other reason given by counsel for the accused for the delay is that a staff member of the Ministry of Justice had incorrectly informed his office about the date to which the call over of 27 July 2006 had been adjourned. As a result of this, he did not appear at the call over on 28 July 2006 and the trial date set for the week commencing 31 July 2006 was vacated. This reason for the alleged delay does not fit in particularly well under any of the other factors set out in Morin. I have therefore decided to consider it under the present factor of "Other reasons for delay."

I have come to the view that even if the office of counsel for the accused was not misinformed by a staff member of the Ministry of Justice about the date to which the call over of 27 July 2007 had been adjourned, the defence would still not have been able to be sufficiently prepared and proceed with the trial already set for the week commencing 31 July 2006. The reason is that the trial documents were only served by the prosecution on counsel for the accused late Friday afternoon, 28 July. Generally, fraud cases are complex and require more time to prepare compared to the other kinds of criminal cases. Counsel for the accused is also a very busy legal practitioner and as such would be expected to have other legal work that require his attention. I tend to think that the prosecution often overlooks that generally, private practitioners are very busy and seldom do they have just one legal matter to work on at one time. Thus the fact that counsel for the accused was misinformed about the date to which the call over of 27 July 2006 had been adjourned would have made no difference. The trial would still have been adjourned in any event due to the late service by the prosecution of its trial documents on the defence.

In the circumstances, I conclude that the fact that the office of counsel for the accused was misinformed by a staff member of the Ministry of Justice was not the cause of the further delay. It was the late service of the trial documents by the prosecution. There is therefore no delay under the heading of "Other reasons for delay".

4. Prejudice to the accused

It is clear from the judgment of Sopinka J in R v Morin (1992), 71 C.C.C. (3d 1) that prejudice to the interests protected by the right of an accused to be tried within a reasonable may be implied or proved. At p.23 Sopinka J said:

"[In] an individual case prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn."

Implicit in this is that there is a link between prejudice and institutional delay that may be tolerated. Then at p.24, it is there stated:

"Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused’s security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to the ‘vexations and vicissitudes of a pending criminal accusation’...Evidence may also be adduced to show that delay has prejudiced the accused’s ability to make full answer and defence."

In respect of his liberty interest, the accused refers in his supporting affidavit to his bail conditions which require him to report twice a week to the Apia Police Station. He also says that he is not able to leave Samoa without approval of the Court. The reporting condition of the accused’s bail is not unexceptional. It is the usual reporting requirement for bail in criminal cases including fraud cases. The restriction on the accused’s liberty to leave the jurisdiction is a normal consequence of being charged with a serious offence. I would accept that the accused has suffered some prejudice to his liberty interests. But as emphasised on behalf of the prosecution, from the time the accused was charged to the time that the prosecution eventually served its trial documents on the accused’s counsel, which would be a period of about 16 months, the accused never requested the prosecution of its trial documents. There is also no evidence that the accused made any effort to vary the reporting condition of his bail.

As stated by Sopinka J in Morin at p.23 when dealing with the issue of prejudice:

"Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the Court must consider. This position is consistent with decisions of this Court in regard to the other Charter provisions...Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay."

Further on in Morin at p.28, Sopinka J said:

"While the accused was not required to do anything to expedite her trial, her inaction can be taken into account in assessing prejudice. I conclude for this reason that the accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay."

In the subsequent decision of the Supreme Court of Canada in R v Sharma (1992) CanLII 90 (S.C.C.) (internet copy), Sopinka J said at p.11:

"The trial Judge found that the appellant had suffered some prejudice as a result of the delay by reason of the bail conditions. This conclusion must have been derived from the circumstances that I have outlined above. While these circumstances are consistent with the appellant having suffered some prejudice, I conclude that it was minimal. If the appellant was being seriously prejudiced by the delay, he would either have pressed to have his case tried or made some effort to vary the bail conditions. As for inferred prejudice, I am unwilling to infer more than nominal prejudice as a result of the mere passage of time. Mr Sharma’s inaction from his set date appearance to his scheduled trial date shows a noticeable lack of concern with the pace of litigation."

I refer to one more Canadian case. In the decision of the Newfoundland Court of Appeal in R v Slaney (1992) CanLII 2777 (NL CA) at p.10 (internet copy), Goodridge CJ said in relation to an accused’s right to be tried within a reasonable time:

"At some point, the accused may cry halt and ask for a stay. A Court should look upon such a claim where the accused has silently allowed the accruing time-lapses to accumulate less favourably than upon such a claim where the accused has protested the time lapses along the procedural course".

In similar vein, Henry J in delivering the decision of the New Zealand Court of Appeal in R v B; R v Parkes (1995) 13 CRNZ 277 observed at p.388 in relation to the right to be tried without undue delay in s.25 (b) of the New Zealand Bill of Rights Act 1990:

"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."

As I have already said, the accused at no time during the period of the alleged delay requested from the prosecution its trial documents in order to enable him to prepare for trial. There is also no evidence of the accused seeking a variation of the reporting condition of his bail. For these reasons, I conclude that any prejudice suffered by the accused to his liberty interest would be minimal.

What is said here about inaction or non-action on the part of the accused together with the authorities cited in relation thereto, would also apply to the other matters of prejudice alleged by and on behalf of the accused. But before proceeding further to the other matters of prejudice relating to the accused’s security interest and ability to make full answer and defence, I wish to refer to one other important matter noted in Morin. At p.23, under the heading of "Prejudice to the accused," Sopinka J stated:

"While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. This view is summed up by Doherty J (as he then was) in a paper given to the National Criminal Law Reform in July 1989 which was referred to with approval by Dubin. C.J.O in Bennett (at p.52) and echoes what has been noted by numerous commentators:

"An accused is often not interested in exercising the right bestowed on him by s.11 (b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity".

At p.30 of Morin, McLachlin J (as she then was) stated:

"An accused person may suffer little or no prejudice as a consequence of a delay beyond the expected and normal. Indeed, an accused may welcome the delay."

In respect of the accused’s security interest, counsel for the accused says in his written submission that the accused has had to face the stigma and embarrassment in his village of being charged with theft. In his supporting affidavit, the accused says that he and his wife were expecting their first child in April this year but due to his wife’s constant worry about his case she miscarried. He also says that he has not been able to find permanent employment because of the criminal charges against him. At present, he has only temporary employment as a taxi driver for a friend.

The matters of alleged prejudice to his security interest raised by the accused and his counsel are matters peculiarly within the accused’s personal knowledge. One can therefore understand the prosecution’s wish to cross-examine the accused. This is clearly more so because of the general nature of the assertions of prejudice without any real particulars in support. No reason was also given for the objection to the request by the prosecution for the accused to be cross-examined as to the contents of his affidavit. It could have inspired confidence in what the accused is saying if he had acceded to the request from the prosecution. After all the legal burden of proof is on the accused. As it is, I am not satisfied with the necessary degree of confidence about what the accused is asserting or that it has resulted in serious prejudice. After all, if the accused was seriously prejudiced by the delay, one would have expected him to take steps to obtain from the prosecution copies of its trial documents in sufficient time in order to prepare for trial on the trial dates that were set for November 2005 and then the end of July 2006. But no such steps were taken. This seems inconsistent with a desire to press on with the trial because the accused was suffering from serious prejudice. The first complaint about the delay was made orally by counsel for the accused on 31 July 2006 when this case was re-mentioned to set a new trial date and Justice Vaai ordered a written application for a stay or dismissal of the charges to be filed by 28 August.

It would appear that the real concern of the accused is the further delay resulting from the trial not proceeding in the week commencing 31 July 2006 because the Court calendar is now up to June 2007 and if a new trial date is set now, it will be in June 2007. However, I intend to give this case an expedited hearing either in October, November or December 2006. So it will not be June 2007.

In respect of the accused’s fair trial interest or his ability to make full answer and defence, counsel for the accused in his written submissions states that if this case is further adjourned for hearing to June 2007, that will necessarily affect the memory of witnesses and this will affect the accused’s ability to defend the charges against him. Implicit in this is that the accused has witnesses to be called at his trial and their memories will necessarily be affected by the anticipated adjournment to June 2007. As I have decided to set an expedited trial for this case in October, November, or December this year, this concern of the accused has been met.

Though strictly not necessary for the purpose of this judgment, I wish to refer on this point about the possible effect of delay on the memory of witnesses to R v Robinson (2001) BCPC 38 (CanLII) where the Court said:

"[70] Finally, I would like to comment on the quote from the Dresher case that the prosecution relied on:

"’In my view, a mere observation that witnesses’ memories might be affected is not sufficient to establish prejudice to the accused in the circumstances R v Dresher,supra, at para 27)"’.

"[71] In my opinion this passage does not stand for the proposition that the defendant has to present evidence with respect to the effect of the delay on the memory of the witnesses in order to be successful with his argument. It only stands for the proposition that if the Court is not satisfied that the memory of the witnesses was affected by the delay, if there was only a concern about that possibility, no determination of prejudice (whether inferred or based on the evidence) can be made." (emphasis mine)

On the same point about the possible effect of delay on the memory of witnesses, Henry J in delivering the judgment of the New Zealand Court of Appeal in R v B; R v Parkes (1995) 13 CRNZ 377 said at p.384

"Mr Wilson submitted that prejudice to the appellant has resulted, and referred to a number of matters under this head. Of possible substance only are the contentions that the appellant was unemployable through the remand period and the effect of delay on the memory of potential defence witnesses. The evidence in respect of the latter was vague, lacking in any detail and does not give cause for concern of any significance. We do not think that particular prejudice of the kind which is related to the issue of undue delay has been established".

In all the circumstances, I conclude that the accused has suffered no more than nominal prejudice as a result of the passage of time from the dates he was charged to now. On that basis a stay of proceedings will not be appropriate. As McLachlin J (as she then was) said in Morin at p. 30:

"Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining a stay of proceedings on account of delay, because the consequences of the delay are not great"

If, however, this case is considered to be a borderline case, then an expedited hearing rather than a stay of proceedings would be appropriate. As it was stated by Lord Cooke in Matatumua v Medical Council [2000] WSCA 3:

"Borderline cases can arise when the remedy for alleged unreasonable delays is to require an early hearing. But in cases where it is clear that the delay has been unreasonable a standard remedy is a stay. There is a large body of Canadian case law to that effect, a recent example in the Supreme Court of Canada being Maracle v The Queen (1998) 122 C.C.C. (3d 97. The same approach was taken in New Zealand in Martin v Tauranga District Court [1995] 2 NZLR 219" (emphasis mine)

The concern of the accused about a prolonged delay if this case is further adjourned for hearing to June 2007 on the basis of the Court calendar can be met by directing an expedited hearing to be held in October, November or December this year.

Conclusions

As earlier noted in this judgment, Sopinka J said in Morin at p.14:

"I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the Court cannot come to a determinate conclusion on the facts presented to it".

In this case, the total period of delay from April 2005 when the accused was charged until now, September 2006, is 18 months. The period of two months from April 2005 when the accused was charged to 13 June 2005 when the accused entered his not guilty plea and the first trial date was set, was taken up with the intake requirements or inherent time requirements of the case. That period which I have characterised as inherent delay is neutral and is to be deducted from the total period of 18 months. That leaves 16 months. This latter period represents institutional or systemic delay. The period of 5 months from 13 June 2005 to 14 November 2005 was no fault of the prosecution or the accused. But the prosecution was responsible for the 8½ months delay from 14 November 2005 to 31 July 2006. The prosecution should also be held responsible for the delay from 31 July 2006 to now. However, the defence at no time during this whole period of alleged delay took any action to obtain from the prosecution copies of its trial documents. I am also not satisfied with the necessary confidence about the allegations of prejudice made by the accused. Thus if the accused has suffered any prejudice, it must be minimal. The interest of society in bringing those charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining a stay of proceedings on account of delay. Accordingly, I conclude that there has been no violation of the accused’s right to trial within a reasonable time.

If, however, I were decide this matter on burden of proof, I would have held that the accused has not shown on the balance of probabilities that his right to be tried within a reasonable time has been violated.

All in all then, the motion is dismissed. This case is adjourned to 18 September for setting a hearing date in October, November or December 2006. The reporting condition of the accused’s bail is varied so that the accused will be required to report only on Fridays before 4:00pm to the Apia Police Station instead of twice a week as before.

CHIEF JUSTICE

Addendum

On Monday, 18 September 2006, this case was set down for hearing on 10 October with the agreement of counsel for both parties.

CHIEF JUSTICE