Police v Galu [2015] WSSC 171 (16 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Galu [2015] WSSC 171

Case name:	Police v Galu
Citation:	[2015] WSSC 171
Decision date:	16 October 2015
Parties:	Police (appellant) and Fa’aaliga Galu (respondent)
Hearing date(s):
File number(s):	S1008/15, S1009/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	(i) The Youth Court judge was erroneous in law to hold that the CPA does not apply to the Youth Court and as a consequence, she incorrectly concluded that she had no jurisdiction to reserve a question of law for determination by the Supreme Court. (ii) But the Youth Court judge quite correctly declined the application to refer to the Supreme Court a question of law for determination. (iii) As a result the appeal is refused. (iv) The Respondent is legally aided and the appellant has partially succeeded. There will be no order as to costs.
Representation:	K Hogan for appellant A Su’a for respondent
Catchwords:
Words and phrases:	Sexual violation – criminal justice for young persons
Legislation cited:
Cases cited:	Police v A & B (2014) WSSC 60 Attorney General v Lafaele & Sikoti (2014) WSCA 12
	R v C NZCA 332 (28/9/95)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Appellant

AND:

FA’AALIGA GALU
Respondent

Counsel:
K Hogan for appellant
A Su’a for respondent

Judgment: 16 October 2015

JUDGMENT OF THE COURT

Introduction

1. This is an appeal by the Police against the refusal by a judge of the Youth Court to reserve for determination by the Supreme Court a question of law raised by the police prior to the trial of a 13 year old youth charged with two counts of sexual violation of a child under 12 which are punishable by sentences of life imprisonment. Both informations were denied by the young offender and the hearing was set for the 27^th May 2015, but on the morning of the trial, counsel for the police filed a memorandum seeking a transfer of proceedings, to the Supreme Court, pursuant to section 6(5) Young Offenders Act 2007 (YOA).
2. The application was refused and the reasons for declining the application delivered on the 3^rd June 2015. Another application was then immediately filed soon after, pursuant to section 111 Criminal Procedure Act 1972, to reserve for determination by the Supreme Court a question of law namely:
   • “Should the defended hearing of a youth charged with an offence that attracts a maximum penalty of life imprisonment be transferred to the Supreme Court so that a trial with assessors can take place.”
3. In declining the application the Judge said:
   • “For the sake of not repeating myself, the reasons provided in my written decisions for declining the transfer of these proceedings to the Supreme Court are the same reasons for declining this application by the Attorney General and I adopt them here. I however would like to emphasise two things:
     • (i) On the issue of jurisdiction, Counsel for the informant is referred to the case of Police v B (2008) WSSC 85 (6/10/2008) by His Honour the Chief Justice;
     • (ii) Of equal importance is the fact that the Criminal Procedure Act does not apply to the Young Offenders Act (except s.22 (5)). As such I do not have the jurisdiction to reserve any question of law for the determination of the Supreme Court.”

The Appeal

4. The appeal by the police pursuant to section 130 Criminal Procedure Act 1972 (CPA) against the refusal by the Youth Court judge to reserve the question of law for determination by the Supreme Court is premised on two grounds namely:
   • (i) the CPA appeal procedure applies to the Youth Court, and
   • (ii) the question of law should have been reserved for the Supreme Court in this case because it raises an important legal issue.
5. Counsel for the Respondent supports the judgment of the Youth Court judge and accordingly opposes the appeal. He also argued that based on the judgment of this court in Police v A & B (2014) WSSC 60, the appellant has no right of appeal under the YOA .

Police v A & B (2014) WSSC 60 decision

6. The Supreme Court decision in P v A & B concerned two young offenders jointly charged with an adult for two offences triable in the Supreme Court due to their penalties. They pleaded not guilty. Application by the police to transfer the two youths to be tried together with the adult accused in the Supreme Court was refused by the Youth Court. Charges against both young offenders were dismissed at the conclusion of the defended hearing.
7. Police, pursuant to section 131 (1) CPA filed an appeal on a question of law by way of case stated. That section reads:
   • “131 (1) Where any information has been decided by a District Court Judge, either party way, if dissatisfied with the decision as being erroneous in point of law, an appeal to the Supreme Court by way of case stated for the determination of that Court on a question of law only.”

One of the reasons why the Youth Court judge refused to state a case was that the police has no right of appeal by way of case stated against the exercise of discretion by a Youth Court judge to transfer proceedings.

8. The police also appealed against the refusal by the judge to transfer the two young offenders to the Supreme Court for trial
9. The not guilty verdict was also appealed against.
10. The Supreme Court dismissed all the 3 issues on appeal. In relation to the appeal against acquittals, section 24 YOA confers the right of appeal on the young offender only to appeal his conviction or sentence. There is no right of appeal conferred on the Police.
11. The Supreme Court also held that section 131(1) CPA does not give the police a right of appeal by way of case stated, against the decision of the judge not to transfer proceedings. One of the reasons was that Parliament specifically enacted a right of appeal provision in the YOA and specifically granted it only to the young offender. Secondly the YOA does not provide for an appeal by way of case stated on a point of law from the Youth Court to the Supreme Court or any other Court. The omission was intentional. And finally, the court said that Parliament obviously had the CPA in mind when it enacted s.6 (1) YOA and s.22 (5). Section 22 (5) provides that action may be taken under the CPA against a young person who breaches his or her bail conditions.
12. The Supreme Court also addressed s. 3(1) CPA which provides:
    • “This Act shall apply to all proceedings in any court where a person is proceeded against for an offence. Provided that as to any matter of criminal procedure for which no special provision has been made by this Act or by any other law for the time being in force in Samoa, the law as to Criminal procedure in NZ shall be applied so far as it shall not conflict or be inconsistent with this Act or any other law for the time being in force in Samoa.”

At paragraph 24 his Honour said:

“As to the main clause of s.3 (1) it is to be remembered that the Criminal Procedure Act was enacted in 1972 when there was no Youth Court which was only established under the Young Offenders Act 2007. I am conscious of the approach to statutory interpretation that an Act is to be regarded as always speaking. But that is only an approach to assist in the interpretation of a statutory provision. It can be displaced by Parliament by express words or clear implication when enacting, a subsequent legislation. The real question is, therefore, what was intention of Parliament when it enacted the subsequent legislation. In this case, the real question is, did Parliament when enacting the Young Offenders Act 2007 intend section 3 (1) Criminal Procedure Act 1972 which is a procedural legislation, to apply to the Youth Court and confer on an informant in that Court a right of appeal by way of case stated 131(1). In my opinion the answer must be in the negative.

13. It was also emphasised in the judgment that the YOA is a special legislation which established the Youth Court as a specialised court with its special provisions. (paras 13, 14, and 29).

Appellants Submissions

14. Counsel submitted that Police v A & B (supra) is distinguishable from this case. This case concerned an application made pursuant to section 111 CPA and the order declining the application is appealed against pursuant to section 130 CPA whereas P v A & B was considered under sections 131 and 133 (2) CPA and 24 YOA.
15. The main thrust of the appeal however is that the CPA appeal procedure does apply to the Youth Court and contrary to the decision of the Youth Court judge the YOA does not preclude the appellant from advancing an application pursuant to section 111 CPA. Neither does it prohibit the appellant from appealing any adverse decision. In the first place counsel contended that the Youth Court is a division of the District Court pursuant to section 4 YOA. The Court of Appeal in Attorney General v Lafaele & Sikoti (2014) WSCA 12 at paragraph 8 also confirmed that the Youth Court was created as a division of the District Court. And as decisions of the District Court are appealable to the Supreme Court by virtue of part VII CPA so too must be the decisions of the Youth Court.
16. Secondly it was contended that section 6(1) YOA expressly provides that the Youth Court shall, in defended hearings, adopt the rules of Criminal Procedure. Those rules the appellant said are codified in the Criminal Procedure Act. It is acknowledged that the Youth Court was established to cater for a vulnerable section of society and although some specialised procedures are incorporated in the YOA, the provisions of the CPA continue to apply. Indeed section 3 CPA specifically provides that the CPA shall apply to all proceedings in any court where a person is proceeded against for an offence.
17. It was also contended that Parliament in enacting the YOA could not have intended to extinguish the usual right of the appellant to appeal on a point of law.
18. On the issue of the reference of the question of law, the appellant argued that a case should have been stated to the Supreme Court since the offence alleged against the youth was a very serious one punishable by life imprisonment and a trial by assessors pursuant to section 87 CPA should have been conducted. A trial by assessors was appropriate as it involves community input and public validation.

Discussion

19. It is common ground that Parliament recognised the need to provide a criminal justice system for young persons due to their vulnerability and their (generally) more immature judgment. This has led to the enactment of an alternative criminal justice regime to deal with young offenders. The YOA 2007 was enacted to:
    • “provide a criminal justice system for young persons, their treatment by the courts, and related purposes.”
20. But the youth justice regime created by the YOA is not an exclusive code for the administration of youth justice. It is an alternative criminal justice system with circumscribed processes, principles, rights, remedies and sanctions for the administration of youth justice. It does not cater for all the young offenders.
21. Except for the offence of murder, every other criminal charge brought against a young person shall be laid in the Youth Court. But where the offending by the young offender is considered or alleged to be so serious that it tantamount to adult offending, the YOA stipulates that the young person should be dealt with by the Supreme Court. The YOA also recognises that the orders that are within the powers of the Youth Court to make will not always serve. Some young offenders will always have to be tried or sentenced in a court of general criminal jurisdiction, such as the Supreme Court. The seriousness of the offence, the circumstances of the young person and the interests of justice come into play in the exercise of the discretion to transfer a young offender to the Supreme Court.
22. In the conduct of its business the Youth Court pursuant to section 6 (1) YOA may determine its own procedure, but in defended hearings it shall adopt the rules of Criminal procedure and must apply the criminal standard of proof. Rules of Criminal Procedure in a defended hearing requires a judge to deal with a pre-trial motion such as a section 111 CPA application which was filed by the appellants.
23. Reasons for refusal by the Judge to entertain the application and to state that the provisions of the CPA do not apply to the Youth Court was undoubtedly grounded on the decision of the Supreme Court in Police v A & B and which led the Youth Court judge to say at paragraph 11 of her decision that the YOA is a stand-alone legislation except where there is a breach of bail conditions by a young person which would then invoke section 22 (5) CPA for necessary action. As discussed in paragraphs 20 and 21, the YOA consisting of 25 sections, cannot be termed a stand-alone legislation, nor can the Youth Court, a division of the District Court, be correctly termed a specialised court.
24. Section 24(1) YOA which restricts the right of appeal to the young offender is confined to the issues of conviction and sentence. No similar right is granted to the police. The right of appeal by the appellant, to appeal against acquittal and sentence, which existed in the CPA has been specifically removed by express words of Section 24 YOA. Other rights of the appellant have not been so removed, expressly or by implication.
25. As a court which deals with young person charged with an offence, the Youth Court, as a division of the District Court is bound by section 3 CPA. A clear unambiguous provision in the YOA would be required to exempt the Youth Court, as a court exercising criminal jurisdiction from the requirements of the CPA.
26. It follows that the youth court judge was erroneous in law to hold that the CPA does not apply to the Youth Court and as a consequence the judge was wrong to hold that she did not possess the jurisdiction to entertain a pre-trial application, such as the section 111 CPA application submitted by the appellant.

Should the proceedings be transferred to the Supreme Court?

27. It is not sufficient for the appellant to contend that the trial of the young offender should have been transferred due to the seriousness of the offence which in accordance with section 87 CPA should be tried before assessors. The Youth Court may transfer a young person to the Supreme Court, if in the opinion of the judge, the offence is of such seriousness and the circumstances of the young person are such that he should be treated as an adult. This would require the youth court judge to view the police evidence to determine the nature and gravity of offending as well the background of the young offender in the exercise of the discretion whether to transfer the young offender. It is the seriousness of the offence and the background of the offender which are the primary considerations.

Similarly if the young offender, after a defended hearing, is convicted of a very serious offence, the trial judge may transfer the young offender to the Supreme Court for sentence, if in the exercise of the judge’s discretion the nature of the offending and the background of the offender are such that the young offender should be treated as an adult.

28. The primary focus of the Youth Court in the balance to be struck between the offence and the offender is the young person. The appellant in its sentencing memorandum sought an imprisonment sentence with 5 years to be adopted as the starting point which signals that the young offender should be sentenced as an adult.
29. Other than the seriousness of the offence and the desire by the appellant to impose an imprisonment sentence, the appellant did not advance any other factors to warrant transferring the young offender to the Supreme Court for trial or for sentence. The Youth Court judge did consider those factors.
    • In R v C NZCA 332 (28/9/95) the New Zealand Court of Appeal declined an appeal by the Crown against a sentence of 18 months supervision, where a 14 year old had committed two sexual violations by rape. The court held that the offender and the offences had singular features which justified the sentence of supervision.

It also said that a young offender should not be regarded as beyond help even after serious offending unless there is no escape from that conclusion.

30. The Youth Court judge was quite correct to decline the application to transfer the young offender to the Supreme Court. She was therefore quite entitled to refuse the motion, (disguised as a question of law), for the Supreme Court to determine, as a question of law, the transfer of the young offender charged with a serious offence.

Result

(i) The Youth Court judge was erroneous in law to hold that the CPA does not apply to the Youth Court and as a consequence, she incorrectly concluded that she had no jurisdiction to reserve a question of law for determination by the Supreme Court.
(ii) But the Youth Court judge quite correctly declined the application to refer to the Supreme Court a question of law for determination.
(iii) As a result the appeal is refused.
(iv) The Respondent is legally aided and the appellant has partially succeeded. There will be no order as to costs.

JUSTICE VAAI