Keil v National Prosecution Office [2017] WSSC 5 (20 February 2017)

IN THE SUPREME COURT OF SAMOA
Keil v National Prosecution Office [2017] WSSC 5

Case name:	Keil v National Prosecution Office
Citation:	[2017] WSSC 5
Decision date:	20 February 2017
Parties:	EGON LINCOLN KEIL, male of Malololelei (Applicant) and NATIONAL PROSECUTION OFFICE (Respondent)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	(i) All the charges filed by the Prosecution against the defendant are dismissed. (ii) Whether the application to stay proceedings permanently is withdrawn or not will not affect the decision to have the charges dismissed. (iii) Mr Hampton for the prosecution did not have any instructions in relation to costs sought by the defendant. The issue of costs was never raised by counsel for the defendant in his application for stay of proceedings or at any time prior. The parties to agree on costs and if they cannot agree for the applicant/defendant to file application for costs to the court.
Representation:	K Koria for the Applicant K N Hampton Q.C. for Respondent
Catchwords:	inciting, counselling and procuring to commit murder – armed with a dangerous firearm - possession of an unlawful weapon – unlawful intimidation – threatening words – insulting words – independent counsel sought to review charges – charges withdrawn – dismissed
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 105; 46(b)(i) Police Offences Ordinance 1961 ss. 25; 49(g); 4(g) Arms Ordinance 1961 s. 12 Criminal Procedure Act 2016 s. 124
Cases cited:	Toailoa Law Office v Duffy [2005] WSSC 7 (17 May 2005).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

EGON LINCOLN KEIL, male of Malololelei
Applicant

AND:

NATIONAL PROSECUTION OFFICE
Respondent

Counsel:
K Koria for the Applicant
K N Hampton Q.C. for Respondent

Date: 20 February 2017

ORAL RULING OF TUATAGALOA J

This is my decision in full already given orally in Court in regards to the application by the prosecution to have all the charges withdrawn against the applicant/defendant.

The charges:

1. The Police on 14 November 2016 filed the following charges against the defendant who was the Commissioner of Police:
   • (i) 4 counts of inciting, counseling and procuring to commit murder pursuant to section 105 of the Crimes Act 2013;
   • (ii) 100 counts of armed with a dangerous firearm pursuant to section 25 of the Police Offences Ordinance 1961;
   • (iii) 148 counts of being in possession of an unlawful weapon pursuant to section 12 of the Arms Ordinance 1961
   • (iv) 8 counts of unlawful intimidation pursuant to section 46(b)(i) of the Crimes Act 2013;
   • (v) 6 counts of threatening words pursuant to section 49(g) of the Police Offences Ordinance 1961;
   • (vi) 2 counts of insulting words pursuant to section 4(g) of the Police Offences Ordinance 1961.
2. The prosecution later on withdrew three counts of inciting counseling and procuring to murder.

The applications:

3. Counsel for the applicant/defendant, Mr Komisi Koria without the defendant having entered any plea to the charges filed an application to stay proceedings permanently. This is the application that was set for hearing on 20 February 2016.
4. However, on this day the prosecution made the application to have all charges withdrawn.

The proceedings:

5. Given the nature and circumstances of these proceedings or charges, the Attorney General as acting Director of the National Prosecution Office (NPO) appointed an independent counsel to review the charges, evidence and all matters pertaining to the charges currently before the Court.
6. Mr Hampton a Queens Counsel from New Zealand is the appointed independent counsel.
7. Mr Hampton after having reviewed all the charges and evidence and independent of the application by the accused for stay of proceedings upon the following grounds: [as in paragraphs 4.1.1 – 4.1.9 of the application]:
   • (i) That none of the allegations have been properly investigated by objective and independent investigators. The police officers involved in arresting and charging the defendant have an interest in the defendant being arrested and charged;
   • (ii) Interviews of potential witnesses of an acceptable rigorous standard were not done;
   • (iii) No explanation was sought from the defendant. That is, the defendant was never interviewed (as is the normal procedure) prior to being charged.
   • (iv) No appropriate legal advice was sought first before the charges were laid and the accused arrested;
   • (v) At no time (in relation to all charges) based on the evidence gathered was the two-part evidential sufficiency test met – (i) was there prima facie evidence of an offence; (ii) if so, was there reasonable prospect of the prosecution succeeding. This is consistent with the National Prosecution Guideline.
   • (vi) The ‘public interest’ was not met and never was. Given the background and the history leading up to the arrest and the laying of charges, the timing of such arrest and ‘relationships’ of all police officers involved (including the defendant), and in a general sense the absence of any civilian/public involvement and the apparent lack of any ‘criminality’ in relation to the allegations. For example in relation to the charge of inciting to commit murder there was no complaint by the victim of the alleged offending. Such matters would have been best raised and explored in an inquisitorial Commission of Inquiry and not by way of an adversarial criminal trial. To proceed with the charges would be manifestly not in the public interest;
   • (vii) The whole of the investigation, arrest and prosecution case is deeply and irremediably compromised.
8. Mr Hampton on behalf of the Prosecution therefore sought leave of the Court to have the charges withdrawn.
9. Perhaps of interest in the appointment of Mr Hampton is section 124 of Criminal Procedure Act 2016 which provides that the exercise of any authority, power or duty of the Attorney General or a Prosecutor for the commencement or conduct of any trial in the Supreme Court is not to be questioned or challenged in any manner by the Informant. The ‘informant’ in this case is the police.
10. Counsel for the defendant, Mr Koria then made the following applications in court:
    • (i) the charges to be dismissed;
    • (ii) application of permanent stay of proceedings withdrawn; and
    • (iii) Costs.
11. The grounds provided by the Prosecution after review (independent of the application by the accused stay of proceedings) are nevertheless raised in the application to have the criminal proceedings against the defendant permanently stayed. Those grounds in an application to permanently stay criminal proceedings could lead to dismissal of charges where the court see that there is no other action by way of adjournment or other interlocutory orders that would alleviate any problem in the way of a fair trial.^[1]
12. It was clear from the grounds provided by Mr Hampton that both the evidential test and public interest are not met prior to the charges being laid. On this basis the court is of the view that no order or any further action can be taken to alleviate the problems raised as grounds to withdraw the charges by Mr Hampton for the respondent.

The orders:

13. On the application by Mr Koria for the applicant/defendant the court make the following orders:
    • (i) All the charges filed by the Prosecution against the defendant are dismissed.
    • (ii) Whether the application to stay proceedings permanently is withdrawn or not will not affect the decision to have the charges dismissed.
    • (iii) Mr Hampton for the prosecution did not have any instructions in relation to costs sought by the defendant. The issue of costs was never raised by counsel for the defendant in his application for stay of proceedings or at any time prior. The parties to agree on costs and if they cannot agree for the applicant/defendant to file application for costs to the court.

JUSTICE TUATAGALOA

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^[1] Toailoa Law Office v Duffy [2005] WSSC 7 (17 May 2005) discussion by CJ of authorities on stay of proceedings.