Meredith v Attorney General [2017] WSSC 148 (11 December 2017)

IN THE SUPREME COURT OF SAMOA
Meredith v Attorney General [2017] WSSC 148

Case name:	Meredith v Attorney General
Citation:	[2017] WSSC 148
Decision date:	11 December 2017
Parties:	FONOTOE LAUOFO PIERRE MEREDITH (Respondent) and ATTORNEY GENERAL (Appellant)
Hearing date(s):	20 November 2017
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:	District Court
Order:	The appeal against conviction is dismissed. The appeal against sentence is upheld. The sentenced imposed is quashed and Mr Meredith is discharged without conviction.
Representation:	D Kerslake for the Respondent R Titi for the Appellant
Catchwords:	Appeal – appeal against conviction – appeal against sentence – politician – prominent figure
Words and phrases:	Obstructing police in executing duties – grounds: judge erred in law – judge erred in fact – miscarriage of justice
Legislation cited:	Criminal Justice Act 1954 s.42 Criminal Procedure Act 1972 ss.138; 104 Criminal Procedure Act 2016 ss.69 and s.70 Police Offences Ordinance 1961 section 10(1)(b)
Cases cited:	Attorney General v Vaai (2009) WSSC 48 (6 May 2009) Fisheries Inspector v Turner [1978] 2NZLR 233 (CA) Kerslake v Attorney General [2014] WSSC 87 (23 December 2014). Nepa v Attorney General [2010] WSCA 1 (7 May 2010) Police v Lauina [2017] WSDC 5 (12 May 2017) Police v Papalii [2011] WSC 132 Police v Roberts [1991] 1 NZLR 205 R v Hughes [2008] NZCA 546. R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 R v Owen [2008] NZLR 37 R v Thomas (CA) 3 NZLR 141 Rae v International Insurance Brokers (Nelson Marlborough Ltd) [1998] 3 NZLR 190
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FONOTOE LAUOFO PIERRE MEREDITH
Respondent

A N D:

ATTORNEY GENERAL
Appellant

Counsels:
D Kerslake for the Respondent
R Titi for the Appellant

Hearing: 20 November 2017
Decision: 11 December 2017

JUDGMENT OF JUSTICE TUATAGALOA

This is the decision in full with reasons of the conclusions delivered on Monday,11 December 2017.

Proceedings:

1. On 14 April 2014 Mr Meredith was convicted in the District Court on the charge pursuant to section 10(1)(b) of the Police Offences Ordinance 1961 that states:
   • “At Savalalo on the 4^th day of October 2013 the defendant incited or encouraged Muagututagata Peter Ah Him of Leififi to resist or obstruct Constable Ioapo Isitolo in the execution of his duty.”
2. On 15 April 2014 Mr Meredith was sentenced and he was convicted and ordered to pay $200 for court costs, in default 10 days imprisonment.
3. Before this Court Mr Meredith pursuant to section 138 of Criminal Procedure Act 1972 appeals against both conviction and sentence.

Brief factual background:

4. On the 4^th October 2013, five police officers: Senior Constable (S/C) Patu, Corporal Lotomau and Constables Isitolo, Vii and Vala were on patrol at around 10.00pm. They pulled over a green double cab pickup which made a U-turn in front of SNPF Plaza and Constables Isitolo and Vii proceeded to breath test the driver. The driver of the green pickup was Associate Minister Muagututagata Peter Ah Him.
5. Mr Meredith drove by and saw the Associate Minister’s vehicle on the side of the road with the police officers, he pulled up and stopped alongside Ah Him’s pickup. What followed was a heated argument between Mr Meredith and S/C Patu which resulted in Mr Meredith calling Ah Him ‘to go’ which Ah Him did.
6. Mr Meredith was Deputy Prime Minister at the time and Ah Him was his Associate Minister.

Grounds of appeal:

7. The Notice of Appeal sets out the following grounds against conviction:
   1. The Judge erred in fact by holding that:
      • (i) There was no dispute in regards to the exchange which followed after the accused Mr Meredith said, “O iai se mea o kupu.”
      • (ii) The defendant did not explain why he insinuated that breath testing the Associate Minister also necessitated breath testing the Assistant Police Commissioner Talaimanu;
      • (iii) Constable Ioapo did not continue with the test he was about to administer when Meredith arrived because his concentration was disrupted by the raised voices he heard.
   2. The Judge erred in law and in fact by holding that:
      • (i) The inference from what Mr Meredith said, was what he had in mind and that was to encourage Mr Ah Him to leave, quite apart from interfering the police in their work;
      • (ii) The meaning of “willfully” to be applied in the charge against Mr Ah Him was either doing it intentionally or deliberately, or that he was reckless or did not care about the consequences of his leaving under the circumstances;
      • (iii) There was no reasonable excuse for Ah Him to leave in the matter he did because he knew that the test Constable Isitolo informed him of had not been completed.
   100. His Honour erred in law and in fact by not addressing the further defence raise by counsel for Mr Meredith which was based on the premise that he honestly believed that his intervention was proper as in his view, the police officer was acting beyond his course of duty.
8. The grounds of appeal in (a)(i)-(iii) and (b)(i)&(iii) relates to finding of facts and inferences drawn by the trial judge from those facts on the evidence heard before him. The trial Judge was well entitled to reject or accept the evidence he heard and it was equally open to the trial Judge to draw the inferences from established facts on the evidence before him.
9. The grounds of appeal (b)(iii) and (c) are matters of law in relation to the interpretation of “wilfully” and the trial Judge failing to consider the defence of ‘honest belief’ put forward by the appellant.
10. In regards to sentence the Notice of Appeal sets out the following grounds:
    4. His Honour erred in fact when in sentencing he held that it was only when Mr Ah Him was about to be tested a fourth time when the Deputy Prime Minister arrived and argued with S/C Patu.
    5. His Honour erred in law and fact when in sentencing he refused to exercise his discretion to discharge Mr Meredith without conviction pursuant to section 104 of the Criminal Procedure Act 1972 when:
       • (i) He held that the consequences of a conviction under the circumstances was not at all out of proportion to the gravity of Mr Meredith’s offending;
       • (ii) He held that the gravity of the offending for the purposes of counsel’s application refers to the circumstances of the obstruction Mr Meredith has been found guilty of, rather than the statutory penalty of the charge he is guilty of.
       • (iii) He failed to see the relevance or significance of the public apology he apparently made because the conduct he was found guilty of was not directly against the public he apologized to but against the police officers whom he has not; and
       • (iv) He exercised the same discretion to discharge Mr Ah Him without conviction for not one offence but two, both relating to the same circumstances and facts upon which a conviction was found against Mr Meredith.
    6. His Honour erred in law and in fact when in sentencing he placed strong emphasis on victim impact reports made by police officers during sentencing.
    7. That there has been a miscarriage of justice.
11. The ground in (d) relates to findings of facts which facts are the same as those relevant to grounds (a)(iii) and (c) and all interrelate. The main grounds of the appeal against sentence are: ground (e) relating to discharge without conviction and ground (g) as to miscarriage of justice.

The relevant law:

12. It is well established that the Appellate Court may only differ from the trial Judge on fact if (a) the conclusion reached was not open on the evidence i.e. where there was no evidence to support it, and (b) if the Appellate Court is satisfied the trial Judge was plainly wrong in the conclusion reached.”^[1]
13. On finding of fact by a trial Judge on the basis of credibility the Trial Judge had the benefit of hearing the evidence and observing the witnesses.^[2]
14. What must be borne in mind is that the Appellate Court performs a review function and not to substitute its own view of the evidence. The finder of facts in this case is the District Court and the Appellate Court (Supreme Court) should not lightly interfere in this area.^[3]

Appeal against conviction:

15. I will now consider each of the grounds of appeal for the conviction.

(a) The Judge erred in fact

• No dispute in regards to the exchange which followed after Mr Meredith said, “O iai se mea o kupu.”
• Constable Ioapo did not continue with the test he was about to administer when Meredith arrived because his concentration was disrupted by the raised voices he heard.
• The defendant did not explain why he insinuated that the breath testing of the Associate Minister also necessitated breath testing Assistant Commissioner Talaimanu.

16. Counsel for Mr Meredith submitted that the Judge referring to those facts insinuates that Mr Meredith was the aggressive party when in fact Constable Maanaima was the one being aggressive. Counsel says at [28] of his submissions: “This part of the evidence is important because it sets the tone as to why Mr Meredith spoke certain words at a particular time. In essence, the evidence of Mr Meredith clearly disputes what has now been summarized by His Honour on page 5 of his summary of the facts in the paragraph which commences ‘There is no dispute regarding the exchange that followed’.”

Was there evidence to support the conclusion reached by the trial Judge? Was it open to the trial Judge to draw the inferences or make the conclusions he made?

17. The trial Judge in his judgment accepted the evidence that it was after Ah Him had been breath tested the third time that Mr Meredith pulled up. The trial Judge by reference to ‘There is no dispute regarding the exchange that followed’ in his judgment (page 2, para.3) was referring to the exchange between Mr Meredith and S/C Patu which exchange was ‘becoming quite heated’. It was the heated verbal exchange that distracted Constable Ioapo and did not continue with the test (fourth) he was to administer to Ah Him. The trial Judge also refers to Mr Meredith’s evidence that he (Meredith) responded the way he did because S/C Patu’s attitude towards him that night was rude and accusatory.
18. The trial Judge refers (page 5, para.2) to the evidence of Mr Meredith of him having seen earlier that evening Assistant Police Commissioner Talaimanu Keti having a beer at the same bar he and Ah Him had a beer. Counsel for Mr Meredith at [30] of his submissions says that Mr Meredith’s evidence was, “He had also seen Talaimanu walk out of the Leon’s and heading to his car before he stopped his vehicle next to Muagutu’s vehicle.” Counsel submits that the reason why Mr Meredith responded to breath test the Assistant Police Commissioner was because of S/C Patu’s insistence “e fai le amio tonu” (to do the right thing). The trial Judge also referred to S/C Patu’s response to Mr Meredith to breath testing the Assistant Commissioner.
19. The Appellant’s submissions have facts that were not within the facts taken by the trial Judge. There is no formal transcript of the evidence as it was not recorded. The trial Judge’s notes’ of the evidence is taken as the record of evidence. There is no reference to Mr Meredith’s evidence that he saw Talaimanu leaving Leon’s and walking to his car in the trial Judges notes of evidence. It is not referred to by the trial Judge in his written decision. It therefore, makes sense why the trial Judge said Mr Meredith did not explain why he said what he said to breath test the Assistant Commissioner.
20. The trial Judge thoroughly and sufficiently discussed the evidence. It was open to him to make the findings and/or to draw the inferences he did. It was open to the trial Judge as the fact finder to assess the honesty and reliability of the witnesses including the appellant and how much weight to place on each piece of evidence. His Honour in his judgment refers to competing claims about accusations of influencing police between S/C Patu and Mr Meredith (page 5, para. 3). In his judgment the trial Judge placed more weight and accepted the evidence of the police officers over that of the appellant where relevant.
21. This ground fails and is dismissed.

(b) The Trial Judge erred in law and in fact by holding that:

• The inference from what Mr Meredith said of what he had in mind, was to encourage Ah Him to leave, quite apart from interfering the police in their work.
• There was no reasonable excuse for Ah Him to leave in the manner he did because he knew that the test Constable Isitolo informed him of which was pending had not been completed.

22. Counsel submitted that it is difficult or impossible to draw an inference as to the state of mind of a witness which is totally inconsistent with what he actually said. That a person’s direct statement is the best evidence of his state of mind. Counsel submits that Mr Meredith’s evidence is that he never at any stage talked to Ah Him; nor any evidence that Ah Him even heard what he was saying to the police officers about the breathalyzer machine. Therefore the only proper inference from what Mr Meredith had in mind is exactly what he said to the police to let Ah Him go if the breathalyzer machine is not working.
23. The trial Judge in his written decision stated at [page 12, para.1]:
    • “To determine therefore whether Mr Meredith incited or encouraged Ah Him to leave, it is incumbent on the Court to consider the circumstances which existed immediately before Ah Him drove away.”

His Honour went on to say

“The real issue is whether or not what Meredith said is reasonably capable of conveying a meaning of encouraging or inciting Ah Him.”

24. The trial Judge accepted the evidence of the three (3) police officers that Meredith called Ah Him and heard him say three times, “Alu lau taavale”. This is the evidence immediately before Ah Him drove away that the trial Judge drew the inference that what Mr Meredith said is what he had in mind, to encourage Ah Him to leave. His Honour went on to say:
    • “If on the other hand the Court accepts as true Meredith’s evidence of what he said, it does not necessarily follow from that acceptance that he did not encourage Ah Him to leave because even in spite of his claim that he asked the officers to let Ah Him go if there was nothing further, there is still no evidence that Constable Isitolo or any other officer present indicated verbally or otherwise, that indeed, Ah Him could leave at the time he did. If Mr Meredith’s version is therefore true, the question is; what could reasonably be inferred of his intention from what he said?
25. It was open to the trial Judge on the evidence before him and his findings of fact leading up to the police officers hearing Mr Meredith calling Ah Him to leave to draw the inference he did. The Court is entitled to take into account the whole evidence direct and circumstantial to truly gauge the state of mind of the witness, in this case the Appellant (Mr Meredith). The trial Judge finds that there was no reasonable excuse for Ah Him to leave knowing that the tests had not been completed if it was not for Mr Meredith calling him to leave.
26. This ground fails and is dismissed.
    • The meaning of ‘wilfully’ to be applied in the charge against Mr Ah Him was either doing it intentionally or deliberately, of if he was reckless or did not care about the consequences of his leaving under the circumstances that he did.
27. The trial Judge held that the offence Mr Meredith is charged with under s. 10(1)(b) of the Police Offences Ordinance 1961 does not require proof of a ‘willful’ state of mind as opposed to the charge Mr Ah Him is charged with under s.10(1)(a) which has ‘willful’ as an element and therefore requires proof of a ‘willful’ state of mind. The trial Judge said of the legal requirement of the charge:
    • “Neither is the Prosecution required to prove whether Meredith in fact incited or encouraged Ah Him to obstruct Constable Isitolo because determining the question of inciting or encouraging a third person to obstruct a police officer in accordance with s. 10(1)(b) is an issue of law, not of fact. To prove therefore whether Meredith incited or encouraged Ah Him to obstruct Constable Isitolo, the Court considers the act rather than the fact. That is to say, the impact of what Mr Meredith said is determined not from its impact on Ah Him when he heard them but from what Mr Meredith intended their impact to be when he said them. The real issue is whether or not what Meredith said is reasonably capable of conveying a meaning of encouraging or inciting Ah Him.”
28. I agree with the trial Judge and this ground of appeal also fails and is dismissed.

Defence of ‘honest belief’

29. Counsel for the Appellant submitted that His Honour erred in law and in fact by not addressing the defence raised by counsel for Mr Meredith which was based on the premise that he honestly believed that his intervention was proper as in his view the police officer was acting beyond his course of duty. ^[4]
30. Mr Meredith premised such ‘honest belief’ on his evidence that he pulled up at the scene when the first breath test procedure was administered to Ah Him and observed three breath test procedures being administered before he then intervened. The trial Judge did not accept this evidence but the evidence of the three police officers that Mr Meredith pulled up after Ah Him was breath tested for the third time. This dispels the evidence by Mr Meredith that he observed all three tests (done by Constable Ioapo) which he then intervened because the police officer was acting beyond his course of duty.
31. The trial Judge had in his judgment canvassed the evidence surrounding the breath testing of Ah Him and upon that evidence the trial Judge who is the trier of facts was entitled to draw inferences and conclusions that he did.
32. The trial Judge does not address this defence in his judgment (nor dispel it) because it does not exist. The defence raised cannot be sustained on the evidence that is accepted by the trial Judge.
33. This ground of appeal is dismissed

Miscarriage of Justice

34. Counsel for Mr Meredith submits that the appeal should be allowed due to the error in fact by the Court or that the Appellant is substantially prejudiced by the finding of facts relied upon, therefore amounts to a miscarriage of justice.
35. A miscarriage of justice is dependent on the analysis of the evidence. The Court of Appeal in Nepa v Attorney General^[5] at [25] stated:
    • “The ground of miscarriage of justice is not a vehicle for rehearing and substitution by an appellate court. Miscarriage has been described as an ill defined wide ground which may have relation to the conduct of the case by the Judge (or the jury), the prosecution (or the defence), and is intended to embrace anything not coming within other grounds.”
36. Here the trial Judge had summed up the relevant law, had the opportunity to hear the evidence, assess the witnesses and their evidence and accordingly what evidence to accept or reject. The trial Judge has thoroughly and sufficiently made references in his decision to the facts/evidence raised by counsel. It was open to the trial Judge to make the assessment and to draw the inferences he made on the evidence that was heard before him and well canvassed in his written decision. There was no miscarriage of justice.
37. This ground of appeal is dismissed.

Appeal against sentence:

38. I now turn to the appeal on sentence.

His Honour erred in fact when in sentencing he held that it was only when Mr Ah Him was about to be tested the fourth time when the Deputy Prime Minister arrived and argued with Senior Constable Maanaima Patu.

39. What the trial Judge said in sentencing (page 3, para.4) is exactly what he found or accepted as evidence. The trial Judge addressed the evidence in his judgment as follows:
    • At [page 2, para. 3] “Constable Isitolo conducted three breath tests on Ah Him and the results were not considered a success because of the way Ah Him breathed into the apparatus. Constable Isitolo decided to conduct a further test and was about to administer it when another government vehicle registered SSS01 pulled up and stopped alongside MCIL07.”
    • Then at (page 9, para 1) “From his evidence which I accept, Constable Isitolo said he was unsettled by the verbal exchanges between Meredith and Senior Constable Patu. He did not continue with the test he was about to administer when Meredith arrived because his concentration was disrupted by the raised voices he heard.”
40. It was open to the trial Judge to make the finding he did. Therefore, this ground fails and is dismissed.

His Honour erred in law and in fact when in sentencing he refused to exercise his discretion to discharge Mr Meredith without conviction pursuant to section 104 of the Criminal Procedure Act 1972.

41. The Judge held that the consequences of a conviction under the circumstances are not at all out of proportion to the gravity of Mr Meredith’s offending. In other words the Judge was of the view that the disproportionate test was not met.

The law on discharge without conviction:

42. The Appellant was sentenced prior to the Criminal Procedure Act 2013 and the Sentencing Act 2016 coming into effect. Therefore, the appeal against sentence is pursuant to the Criminal Procedure Act 1972 (since repealed).
43. Section 104 insofar as relevant provides:
    • “(1) If after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence is of the opinion that, although the charge is proved:
    • “(a) The offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment, or
    • (b) Having regard to the age or other special circumstance of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed, it may discharge that person without convicting him, unless a minimum penalty is expressly provided for the offence by any enactment. ........
    • (5) A discharge under this section shall be deemed to be an acquittal.
    • (6) A Court discharging any person under this section may, if it satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property, that it could have made under any enactment applicable to the offence with which he is charged if it had convicted him, and the provisions of every such enactment shall apply accordingly.”
44. It is well established that the threshold test under section 104 of CPA 1972 of ‘disproportionately’ must be met before the Court invokes its discretion to discharge without conviction. This test remains the same under s.69 and s.70 of CPA 2016.^[6] The Chief Justice in Police v Papalii discussed the three New Zealand cases of R v Hughes^[7] Fisheries Inspector v Turner^[8] and Police v Robert.^[9] The Court in R v Hughes ruled that s. 107 of the Sentencing Act 2002 (NZ) clearly adopted the test applied in both Fisheries Inspector v Turner and Police v Roberts which test is that of ‘disproportionately’. Unless the Court is satisfied that the ‘disproportionately’ test has been met the discretionary power of the Court to discharge without conviction cannot be invoked.
45. The Court in Fisheries Inspector v Turner identified a three (3) step approach (which has been adopted by the Samoan Courts) to the exercise of the Courts discretion to discharge without conviction:
    • (i) The gravity of the offending;
    • (ii) Consequences of conviction;
    • (iii) Whether the consequences are out of proportion to the gravity of the offending identified at step one.
46. In Fisheries Inspector v Turner, Richardson J stated:
    • “In considering the exercise of the discretion under s.42 of the Criminal Justice Act 1954 the Court is required to balance all the relevant public interest considerations as they apply to the particular case: or, as s.42(1) puts it, ‘after inquiry into the circumstances of the case’, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction, and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s.42.”
47. I turn now to consider the three steps in [45] above in light of the circumstances of this case.

Gravity of the offending

48. Counsel for the appellant submitted the following:
    • (i) The charge in view of the statutory penalty is not a serious one.
    • (ii) Gravity of the offending was very minimal because there was no violence therefore less serious had there been physical contact.
49. The nature of the offence, the gravity with which it is viewed by Parliament and the seriousness of the particular offending, the circumstances of the offender and any other relevant factors are to be taken into account by the Court in assessing the gravity of the offending.
50. The Judge held that Mr Meredith’s offending was very serious. The Judge emphasized the circumstances of the offending by Mr Meredith rather than the statutory penalty of the offence he is found guilty of. The circumstances of the offending refers to:
    • The interference or intervention by Mr Meredith was, “neither called for nor tolerated by an officer especially Senior Constable Patu.”
    • The tone of Mr Meredith’s voice when he intervened was arrogant. His attitude was seemingly one of throwing his weight around in a display of the status of the political office he held.
    • Mr Meredith showed a lack of respect for the police in their law enforcement role. He undermined the role entrusted on police to enforce the law.
51. Counsel also submitted that the gravity was minimal because there was no violence. The Judge is of the view that violence or not does not matter because the penalty of the offence Mr Meredith is found guilty of is the same whether it be, direct or indirect based on the particular circumstances of each case.
52. In considering the personal circumstances of Mr Meredith the Judge says:
    • (i) Mr Meredith being the Deputy PM, bears little relevance to determining an appropriate sentence.
    • (ii) The public apology by Meredith on TV is of no relevance as the apology was not made to the police officers who are the victims of his offending.
    • (iii) The impact of the offending both personal and professional on Constable Isitolo and S/C Patu. The officers involved felt ‘deflated’
53. The Judge after considering the above matters decided that the consequences of a conviction are not out of proportion to the gravity of the offending. In other words the disproportionate test was not met.

Would any direct and indirect consequences on Mr Meredith outweigh the gravity of his offending?

54. The Parliament’s view of the level of seriousness of the offence is reflected by the penalty it imposes of a maximum penalty of 12 months’ imprisonment or a fine of not more than $200. This offence compared to other offences dealt with by the District Court with the maximum of 5 years imprisonment (jurisdiction now 7 years) and monetary fine of not more than $5000 is considered to be less serious.
55. Mr Meredith’s position as Deputy Prime Minister at the time and a senior lawyer are part of the appellant’s subjective circumstances and are relevant factors to be considered. The Judge in sentencing says that Mr Meredith’s political status of Deputy PM (at the time), is of little relevance. However, the Judge placed a lot of weight on how the police officers felt in the way they were treated by Mr Meredith in his status as Deputy Prime Minister. Considering the impact of the offending on Constable Isitolo the Judge in his sentencing says “The tone of Mr Meredith’s voice when he intervened according to Constable Isitolo was arrogant. His attitude was seemingly one of throwing his weight around in a display of the status of the political office he held.”
56. A conviction record will tarnish Mr Meredith’s personal and professional reputation as follows:
    • Mr Meredith at age 50 years has prior to the offence had a clean record. He has a distinguished record of service as a public servant and as a senior lawyer for more than 20 years. He has been a Member of Parliament since 2005.
    • He represents Samoa to regional and international meetings and no doubt has built a reputation both regionally and internationally.
57. Mr Meredith’s reputation as a lawyer and being able to practice has already been affected when a conviction was entered against him. A conviction will affect him practicing as a lawyer (issuance of a practicing certificate) and continuing to be a member of the Samoa Law Society.
58. Violence is a relevant factor to the degree of culpability of the offender. It is always an aggravating factor where it is involved in the commission of an offence. In the same vein, it must also be appreciated in sentencing where there is no violence involved. In this case there was no violence involved.
59. The consequences are already severe in terms of shame in the community and in his family. The substantial media exposure and guilty verdict has brought shame not only upon him and especially to his family (immediate and extended) but also to the Constituency he represents.
60. In Attorney General v Vaai^[10] despite that the offence was very serious, and the offending and the degree of culpability was quite serious the Judge nevertheless discharged the defendant without conviction. I adopt and endorsed the approach of Justice Kellam where he says:
    • “I have given careful consideration to the balance of interests, which are before me. On the one hand a most serious contempt has been committed by a senior lawyer and parliamentarian and a prosecution has properly been brought.....to protect the public interest in the administration of justice. On the other hand, I have before me a man in the autumn of his years who has led and unblemished and public life. There remains a possibility at least that the Law society will consider it appropriate to take disciplinary action against the defendant on the basis of finding of guilt already made by me.....and if it does occur may prove to be a significant extra burden upon the defendant.”

In regards to the public apology:

“Just as the high profile of the defendant is a relevant matter in terms of culpability in the circumstances of this case, so it is relevant to the weight of the apology. The nature of the apology reflects the submissions made by counsel that the guilty verdict has brought shame upon the defendant. In my view that factor is most relevant in terms of the imposition of a merciful disposition. Just as I concluded that the words used by the defendant in his letter were calculated to lower the authority of the Court and excite misgivings as to its integrity and impartiality, so such a public apology by a public figure of the dimension of the defendant can be said to reflect confidence in the Court and to reflect a respect for the integrity, propriety and impartiality of the Court. In my view a merciful sentence does likewise.”

61. The public apology by Mr Meredith on television (in my view) is to the whole of Samoa which would include the police officers involved and the Ministry of Police. The public apology by Mr Meredith who is a public figure can be said to restore confidence in the role of police officers in enforcing the law that may have been disrespected and undermined by Mr Meredith. Apologizing on television is an acknowledgment by Mr Meredith personally for his behaviour which public apology also shows great remorse on Mr Meredith’s part.
62. Aside from a merciful sentence Justice Kellam refers to, in the particular circumstances of this case I am of the view that the direct and indirect consequences of a conviction on Mr Meredith far outweigh the gravity of his offending.^[11]
63. I hold this ground of appeal successful.
64. A discharge without conviction under s. 104(5) “Shall be deemed to be an acquittal.”

Conclusion:

65. The appeal against conviction is dismissed.
66. The appeal against sentence is upheld. The sentenced imposed is quashed and Mr Meredith is discharged without conviction.
    

JUSTICE TUATAGALOA

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^[1] Rae v International Insurance Brokers (Nelson Malborough Ltd [1998] 3 NZLR 190 per Tippin J quoted in Kerslake v Attorney General [2014] WSSC 87 (23 December 2014).
^[2] Refer to authorities cited in Kerslake v AG; R v Munro [2007] NZCA 510; [2008] 2 NZLR 87; R v Owen [2008] NZLR 37.
^[3] Sapolu J in Kerslake v AG).
^[4] Counsel for the Appellant refers to the case of R v Thomas (CA) 3 NZLR 141
^[5] Nepa v Attorney General [2010] WSCA 1 (7 May 2010)
^[6] This issue was extensively covered by CJ in Police v Papalii [2011] WSC 132, see also Police v Lauina [2017] WSDC 5 (12 May 2017)
^[7] R v Hughes [2008] NZCA 546.
^[8] Fisheries Inspector v Turner[1978] 2NZLR 233 (CA)
^[9] Police v Roberts [1991] 1 NZLR 205 (CA)?
^[10] (2009) WSSC 48 (6 May 2009) per Kellam J in considering application for discharge without conviction

^[11] Refer Fisheries v Turner , supra n 8