National Prosecution Office v Tevaseu [2016] WSSC 182 (19 August 2016)

IN THE SUPREME COURT OF SAMOA
National Prosecution Office v Tevaseu [2016] WSSC 182

Case name:	National Prosecution Office v Tevaseu
Citation:	[2016] WSSC 182
Decision date:	16 September 2016
Parties:	National Prosecution Office (Appellant) and Satao Ilalio TEVASEU (Respondent)
Hearing date(s):	19 August 2016
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:	12 May 2016
Order:	I am of the view that the Learned Judge did not err in law in the exercise of his discretion to dismiss the informations. Looking at the merits of this appeal, the Appellant proceeded on a mistaken argument that these informations were dismissed for want of prosecution. Putting that aside, the overall interests of justice justify the dismissal of these informations by the Learned Judge in this case. The appeal is therefore dismissed.
Representation:	L. Sio for Appellant C. Vaai for Respondent
Catchwords:	Appeal – dismissing informations – charge of contempt of Court
Words and phrases:
Legislation cited:	Lands and Titles Act 1981 ss. 50; 75(1); Criminal Procedure Act 1972 ss.17; 43; 44; District Court Act 2016 s. 66;
Cases cited:	Toailoa Law Office v Duffy [2006] 2 LRC 138; Development Bank of Samoa v Manono-uta Primary School [2003] WSSC 10;
	Police v Miti [2007] WSSC 33 (30 March 2007); Constitution of the Independent State of Samoa Article 9; Russell v Stewart (1988) BCI 1891; Watson v Clarke (1988) BCI 1890; Meredith Ainuu Lawyers v Muagututagata Peter Ah Him [2006] WSSC 55; Watson v Clarke [1990] 1 NZLR 715; R v Connelly [1964] AC 1254; R v Sang [1979] UKHL 3; [1980] AC 402; Toailoa Law Office v Duffy [2005] WSSC 7 (17 May 2005) Reid v New Zealand Trotting Conference [1984] 1 NZLR 8; Allen v The Police (1998) 16 CRNZ 23; R v Pahau (2001) 19 CRNZ 21.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

NATIONAL PROSECUTION OFFICE
Appellant

AND

SATAO ILALIO TEVASEU
Respondent

Counsel: L. Sio for Appellant
C. Vaai for Respondent

Hearing: 19 August 2016
Decision: 16 September 2016

RESERVED DECISION OF TUALA –WARREN J
ON APPEAL AGAINST DISMISSAL OF INFORMATION

Introduction

1. This is an appeal from a decision of Judge Vaai in dismissing two informations against the Respondent on 12 May 2016.

Background of Proceedings

2. The informations at issue in this appeal charged the Respondent with contempt of Court and are worded as below;
   1. Sworn on 4 March 2016-

Information number-D703/16A

I Vaipanoa Malaga-Police Corporal of Apia say on oath that I have reasonable cause to suspect, and do suspect, that at Saletele Fagaloa on the 07th day of February 2016, the above named defendant of Saletele Fagaloa, by an unlawful act namely, “Ua poloaina ai nei oe, Satoa Ilalio Tevaseu ina ia taofia nei loa lava ona toe faia soo see isi lava galuega i le fanua ua faaalia i luga e pulea lea e le suafa Punua o Saletele Fagaloa e pei ona tulai mai ai itu o loo talosaga ma ii le taimi nei, sei vagana lava ua maua iai se leleiga o lenei mataupu. Ae peita’i le’o usitaia lava e le Susuga ia Satoa Ilalio Tevaseu lenei poloaiga sa tu’uina atu iai i le aso 8 o Oketopa 2015, e ala lea i lona alu atu ma ati lana pama’a i totonu lava o le fanua lenei o Faleulu, i le pito i tua, ma ave’ese pine o le fanua, thereby disobey the interim order delivering on the 8th day of October 2015, thereby commit the crime of contempt of Court.

Land and Titles Act 1981 Section 50 & 75(a)(1).

2. Sworn on 24 March 2016-

Information number-D943/16

I, Ioane Lemisio-Police Constable of Apia say on oath that I have reasonable cause to suspect, and do suspect that at Saletele Fagaloa, “O lo’o faaauau lava ona solia ma aiaina e Satoa Ilalio Tevaseu le fanua e pulea e le suafa Punua o Saletel i Fagaloa, thereby disobey, the Interim Order issued by the Registrar of Land and Titles Court on the 29th day of September 2015 namely, “Ua poloa’ina ai nei oe Satoa Ilalio Tevaseu ina ia taofia nei loa lava ona toe faia so’o se isi lava galuega i le fanua ua fa’aalia i luga e pulea lea e le suafa Punua o Saletel Fagalo e pei ona tula’i mai a i le itu o lo’o talosaga ma ii le taimi nei”, thereby commit the crime of Contempt of Court.

Land and Titles Act sec 50(a) and 75(1).

3. Both informations were mentioned for the first time on 5 April 2016. On that date and on Prosecution application, the matter was adjourned without plea to 19 April 2016 for Police to finalise charges.
4. When the matter was next called on 19 April 2016, the Prosecution then applied again for an adjournment without plea for Police to finalise charges. This application was granted to 3 May 2016 but this was noted as a final adjournment.
5. On 3 May 2016, the defendant appeared but the Court was not available due to a workshop. The matter was further adjourned to 12 May 2016.
6. On 12 May 2016, the defendant informed the Court that there was a final adjournment granted by the Court to 3 May 2016. However the Prosecution applied for a further adjournment to finalise charges. The Court dismissed both charges on this date.
7. The basis of the dismissal from the written Court records are:
   1. D703/16A –Info still not finalised by Police. Reasons given for further adjournment not satisfactory and unfair to Def given his expenses to travel to ct on previous occasions. Dismissed for undue and unfair delay; and
   2. D943/16-Info dismissed-insufficient particulars.

The Appeal

8. The basis of the Notice of Appeal is that the charge against the defendant was dismissed for want of prosecution.
9. The Appeal is upon the grounds that;
   1. The District Court Judge erred in law in the exercise of its discretion by dismissing the charge against the Respondent for want of prosecution;
   2. The overall interests of justice did not justify a dismissal of the charge for want of prosecution.

Appellants Submissions

10. The Appellant submits that the Respondent was charged with 3 counts of contempt of court pursuant to sections 50 and 75(1) of the Lands and Titles Act 1981.
11. They filed in support an affidavit from Constable Pesa Matealoga in which he says that on 8^th April 2016, he filed the information before DR Lesa relating to the charge of contempt of Court against the Respondent.
12. The Appellant submits that the Judge’s decision in dismissing the charges against the Respondent had no reasonable basis or ground and was made in haste and without good reason. The Appellant says it was made in an erroneous belief that the new charge that was filed by the Police did not exist when in fact, it was filed as per the affidavit of Constable Pesa Matealoga. The charge they say was before the Court but at the time, not before the Judge. The Appellant acknowledges that it was a final adjournment but maintains that the Judge could have verified the advice from Prosecution that they had more charges in file by way of an adjournment.
13. The Appellant relies on the cases of Toailoa Law Office v Duffy [2006] 2 LRC 138 and Development Bank of Samoa v Manono-uta Primary School [2003] WSSC 10. His Honour Chief Justice Sapolu in both cases stated that dismissal of charges does not follow as a matter of course where there is an obstacle in the way of a fair trial or a prejudice to the right to a fair trial.
14. The Appellant seeks an order to reinstate additional information filed by Police on 8 April 2016 and have the matter remitted back to the District Court to be dealt with.

Respondent’s Submissions

15. The Respondent submits that there was no error in law by the Learned Judge in dismissing the charges against the defendant. The matter was mentioned three times before the District Court with the second adjournment being a final adjournment for Police to finalise charges.
16. The Respondent refers to the maxim ‘Justice delayed is Justice denied’ which was quoted in the case of Police v Miti [2007] WSSC 33 (30 March 2007). The Respondent also relies on Article 9 of the Constitution of the Independent State of Samoa which is a right to a fair trial within a reasonable time.
17. The Respondent cites the New Zealand cases of Russell v Stewart (1988) BCI 1891 and Watson v Clarke (1988) BCI 1890. Both cases examined a court’s inherent power to control abuse of its process and extended such power to regulate the time within which a prosecution should be instituted and to grant a dismissal of the charge with the same effect as an acquittal on the merits in appropriate circumstances.
18. The Respondent submits that there was no error of law by the Learned Judge in dismissing the charges, and in the circumstances this was the most appropriate ruling.

Discussion

Want of Prosecution

19. The Appellant has concluded that the charges were dismissed for want of prosecution. If charges are dismissed for want of prosecution, then the Appellant has an option available to it, and that is that the charges are refiled. The appeal avenue used now by the Appellant is unnecessary.
20. However, I do not find that the charges were dismissed in this case for want of prosecution. The learned Judge wrote ‘Reasons given for further adjournment not satisfactory and unfair to Def given his expenses to travel to ct on previous occasions and the information was dismissed for ‘undue and unfair delay’. The other information was dismissed for ‘insufficient particulars’.
21. Dismissing a matter for want of prosecution is allowable in situations in which the informant does not appear or neither party appears. This is clearly set out in sections 43 and 44 of the Criminal Procedure Act 1972.
22. Section 43 Criminal Procedure Act 1972 specifies the power of the Court when informant does not appear. It provides;

Where at the trial of any charge the defendant but not the informant appears, the following provisions shall apply;

If the defendant is in custody or has been released on bail and the informant has not had adequate notice of the trial, the Court shall adjourn the trial to such time and place and on such conditions as it thinks fit to enable the informant to appear;

In any other case the Court may dismiss the information for want of prosecution or adjourn the trial to such time and place and on such conditions as the Court thinks fit;

On dismissing an information for want of prosecution pursuant to this section, the Court may award to the defendant such costs as it thinks reasonable and any costs awarded may be recovered pursuant to section 117 as if the costs were awarded on conviction.

23. Section 45 then provides for the case where there has been a dismissal for want of prosecution. The dismissal of any information for want of prosecution pursuant to section 43 or 44 (where neither party appears) does not operate as a bar to any further or other proceedings in the same manner.
24. Therefore this argument by the Appellant that the informations were dismissed for want of prosecution, with all respect, is a mistaken one.

Statutory Power of the District Court

25. In assessing the Learned Judge’s reasons for dismissing the first information D713/16A, it is important to ascertain firstly the power of the District Court to dismiss an information.
26. The District Court has a statutory power to dismiss an information where the Court is satisfied that there has been a miscarriage of justice.
27. The District Court Act 2016 explicitly provides for this in section 66;

Proceedings not to be questioned for want of form - No statement of claim, information, summons, judgment, conviction, sentence, order, bond, warrant or other document, and no process or proceedings in a Court, is to be quashed, set aside or held invalid by any Court on the grounds of any defect, irregularity, omission or want of form, unless the Court considering the question is satisfied that there has been a miscarriage of justice. (my emphasis)

28. A miscarriage of justice according to Sapolu CJ in Meredith Ainuu Lawyers v Muagututagata Peter Ah Him [2006] WSSC 55 would occur if the defect, irregularity, omission or want of form has caused the defendant significant prejudice or has resulted in an abuse of process: R v McColl (supra) at p.143.
29. Therefore a miscarriage of justice would occur where there is an abuse of process. An abuse of process is dealt with in the next part of this decision in detail. Suffice to say, the Learned Judge’s decision to dismiss an information are within statutory powers of the District Court pursuant to section 66 of the District Court Act 2016, if he is satisfied there has been a miscarriage of justice.
30. I now move to consider whether there was in this case, an abuse of process which would constitute a miscarriage of justice.

Inherent Power of the District Court

31. The District Court is a creature of statute. The High Court of New Zealand in Watson v Clarke [1990] 1 NZLR 715 at 718, says this about a Court created by statute;

... if a Court possesses jurisdiction in respect of criminal proceedings, it has by reason of that very fact, a power-indeed a duty-to ensure that its processes are not used as an instrument of oppression or otherwise abused. In short the power to prevent abuse of process is inherent within its jurisdiction”.

32. I agree entirely with this proposition. There are many judicial authorities for this proposition. In R v Connelly [1964] AC 1254, Lord Morris of Borth-y-Gest said at p 1301;

“There can be no doubt that a Court which is endowed a particular jurisdiction in respect of criminal proceedings has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”

33. In R v Sang [1979] UKHL 3; [1980] AC 402, Lord Scarman held, at p 455, that not only did every Court have the power to prevent an abuse of its own process, but also that every Court was duty bound to do so.
34. Sapolu CJ in Toailoa Law Office v Duffy [2005] WSSC 7 (17 May 2005) said this about abuse of process;

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.

35. It is settled law that delay may constitute an abuse of process. (see Reid v New Zealand Trotting Conference [1984] 1 NZLR 8)
36. It is essential to explore the circumstances and facts of this case to determine whether 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 diminish the Court’s ability to fulfil its function as a Court of law,” or “tarnish the Court’s own integrity”.
37. The facts of this case are; the learned Judge had before him two informations which were not finalised after three mentions and two adjournments, the third mention being a final adjournment to finalise charges. This third mention happened to fall on a date when the Court was unavailable. When the matter was called before the Court a fourth time, this was in effect a final adjournment to finalise charges. The Learned Judge had before him a defendant, still unable to answer to his charges after 5 weeks and on the fifth week Prosecution again sought a third adjournment without plea to finalise charges.
38. The Appellant argued that a third charge had been filed but it was not in the Court file before the Learned Judge. The affidavit provided by Constable Pesa Matealoga that he had filed the charges only came to light in this appeal.
39. The Learned Judge found the reasons given by the Prosecution for the delay unsatisfactory. The question is whether this delay was an abuse of process. Creating rigid timeframes around delay will not be helpful, nor will it serve any purpose. The Court had granted a final adjournment. Final adjournments are a procedure used by the Court to prevent misuse of its process by prosecution and defendants alike. It applies equally to a defendant who has sought more than one adjournment. It is for the purpose of preventing unfairness to litigants, and in the case of an unrepresented defendant (as he was in the District Court), to minimise prejudice to the defendant.
40. If a further adjournment had been granted, after a final adjournment, I have no doubt that this would have undermined the Court’s ability to function as a Court of law and would have tarnished the integrity of the Court’s processes and undermined public confidence in the administration of justice.
41. The Learned Judge took into account the anxiety and concern of the defendant and his expenses to travel to and from court on previous occasions. He was well entitled to take into account those factors.
42. Sapolu CJ in Toailoa Law Office v Duffy stated;

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.

43. The District Court has an inherent power and duty to enforce its rules of practice and to suppress any abuses of its process by dismissing the informations. The delay in this case before the Learned Judge was an abuse of process.
44. The Learned Judge had both the statutory power and inherent power to dismiss the information on the basis of undue and unfair delay.

Statutory duty of the Prosecution

45. The Learned Judge dismissed the second information (D D943/16) for ‘insufficient particulars’. Section 16 of the Criminal Procedure Act 1972 provides;

16. Information to contain sufficient particulars –

(1) Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which the defendant is charged.

(2) The particulars of the nature of the alleged offence shall, so far as is possible, use the words of the enactment creating the offence, and may refer to any portion of that enactment, and, in estimating the sufficiency of any such information, the Court shall have regard to such words or reference.

(3) The particulars shall include the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed.

(4) Except as hereinbefore provided, no information shall be held to be defective for want of form or substance.

46. Therefore there is a statutory duty on the Prosecution by virtue of section 16. If, as in this case, the information had not been finalised, it questions the Prosecution’s compliance with its statutory duty to ensure that every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which the defendant is charged.
47. I am mindful the Learned Judge may order further particulars pursuant to section 17 Criminal Procedure Act 1972. However, the granting of the adjournments was for the purpose of finalising the charges and if necessary, ensuring sufficient particulars. The Learned Judge was justified in dismissing the information for insufficient particulars. The Prosecution in my view had not discharged its statutory duty.

Constitutional right of the defendant

48. Other than the undue and unfair delay, and the insufficiency of particulars of the information, there are in my view, additional reasons, which might not be clear from the Learned Judge’s ruling, but justify the decision he made.
49. There is the constitutional right of the defendant to a fair trial which encompasses in Article 9, the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law and a minimum right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
50. The defendant was still waiting to be informed of the nature and cause of the accusation against him in the form of a final charge/s after three court mentions and his fourth appearance. It follows that his right to a fair and public hearing within a reasonable time is then put at risk because of the delay.

Approach of the Court

51. The Court notes that there are several approaches which can be taken when faced with the facts that were before the Learned Judge.
52. The first approach is found in the New Zealand in the case of Allen v The Police (1998) 16 CRNZ 23 in which Giles J said;

“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.

53. He went onto add;

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.

54. The Allen case approach has been noted as the strict approach. The approach in In R v Pahau (2001) 19 CRNZ 21 has been favoured which involves a weighing process and the balancing of a variety of factors and considerations. In delivering the judgment of the Court of Appeal, Thomas J said;

“[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.

55. Sapolu CJ said in Toailoa Law Office v Duffy;

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.

56. The approach of the Learned Judge was to grant adjournments to overcome whatever obstacle the Prosecution was facing. These adjournments did not remedy the situation and he was unsatisfied with the reasons for the delay.
57. In my view, he rightly exercised his discretion to dismiss the informations. He had taken into account the fairness to the defendant, when he noted ‘Reasons given for further adjournment not satisfactory and unfair to Def given his expenses to travel to ct(court) on previous occasions. Dismissed for undue and unfair delay’.
58. I add that the legitimate public interest in the disposition of charges and the need to maintain public confidence in the administration of justice, justify the decision by the Learned Judge.

Decision

59. In this case, I am of the view that the Learned Judge did not err in law in the exercise of his discretion to dismiss the informations.
60. Again, looking at the merits of this appeal, the Appellant proceeded on a mistaken argument that these informations were dismissed for want of prosecution. Putting that aside, the overall interests of justice justify the dismissal of these informations by the Learned Judge in this case.
61. The appeal is therefore dismissed.
    

JUSTICE TUALA-WARREN