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Phillips v Police [2018] WSSC 5 (19 January 2018)

IN THE SUPREME COURT OF SAMOA
Phillips v Police [2017] WSSC 5


Case name:
Phillips v Police


Citation:


Decision date:
19 January 2018


Parties:
PAUL JOSEPH PHILLIPS, male of Levili (Applicant) and POLICE (Respondent)


Hearing date(s):
27 October 2017


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Mata Keli Tuatagaloa


On appeal from:


Order:
- Respondent to pay the costs of $8,303.66 to the Applicant.


Representation:
Su’a H Wallwork for Applicant
L Sio for Respondent


Catchwords:
Cost to defendant – police conduct – review function of prosecution


Words and phrases:
Evidence must be able to prove charges


Legislation cited:
Costs in Criminal Cases Act 1967 s.5
Crimes Act 2013 ss. 39; 118; 123; 184(1); 184(2); 185; 188
Criminal Procedure Act 2011 s364
Criminal Procedure Act 2016 s167; s188
Police Offences Ordinance 1961 s25
Supreme Court (Fees and Costs) Rules 1971 Rule 5


Cases cited:
Acuthan v Coates (1986) 6 NZLR 472, 480;
Apia Construction & Engineering v Samoa National Provident Fund (Unreported, 15 September 2017);
Lavea v Mulitalo [2017] WSSC 17 (6 March 2017);
O N & Sons Construction v Pacific Forum Line (Unreported, 30 November 2015);
Police v Ah Him [2000] WSSC 140 (2 March 2015);
Police v Amituanai [2015] WSSC 74 (30 April 2015);
Police v Seru [2015] WSSC 183 (6 November 2015);
Police v Tito [2000] WSCA 2;
Police v Unasa [2007] WSSC 67 (27 August 2007);
Polynesian Limited v Samoa Observer Ltd [1999]; WSSC 35 (30 July 1999);
R v AB [1974] 2 NZLR 425;
R v CD [1976] 1 NZLR 436;
R v Kerr (Unreported, 15 April 1992, CA60/91);
R v Reed [1980] 1 NZLR 758;
R v Rust [1998] 3 NZLR 159 (CA);
Re Davidson, unreported (HC, Christchurch, 15 Dec 1993)


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


In the matter of an application for costs pursuant to section 88 of the Criminal Procedure Act


BETWEEN:


PAUL JOSEPH PHILIPS
Applicant


AND:


P O L I C E
Respondent


Counsel:
Su’a H Wallwork for Applicant
L Sio for Respondent


Hearing: 27 October 2017


Decision: 19 January 2018


DECISION OF TUATAGALOA J (AS TO COSTS)

Introduction

  1. This is an application for costs by the Applicant following a trial whereby the charges against him were dismissed by the court.
  2. The trial was by judge alone held over three days on 20, 21 and 26 July 2017. The decision was delivered orally on 4 August 2017 with the full written decision made available on 1 September 2017.
  3. The Court granted leave to Counsel for the Applicant to file Memorandum as to Costs by Friday 11 August 2017. In response the Respondent opposed costs being awarded to the Applicant. The hearing as to costs was on 27 October 2017 and the Court reserved its decision. This is that decision.

Background

  1. The charges relate to an incident that happened on 21 January 2017. The Applicant and his wife own and run the Pacific Jewel Shop at Levili. The van driven by Jia Xiang Sun, a Chinese national, drove into the Pacific Jewel Shop. On 23 January 2017 the police obtained a statement from the driver of the van and a Leo Li whose partner (personal and business) is the daughter of the driver of the van. The Police on the same day laid charges against the Applicant.

Proceedings in the Court

  1. The Applicant was originally charged with twelve (12) charges. On 6 February 2017 the matter was called for mention in the Supreme Court and was further adjourned to 13 February 2017 for the Police to finalise charges. On 13 February 2017 the Respondent withdrew six of the twelve charges and the Applicant pleaded ‘not guilty’ to the remaining six charges. The matter proceeded to a hearing on 20 July 2017 on the following six charges:
  2. Meanwhile, the defendant also lodged a complaint against the driver of the van for the damage caused to his shop but the driver (victim of the alleged offending by the defendant) was only charged with careless driving. The driver never turned up to answer to his charge on 29 March 2017 and a warrant was issued for his arrest.
  3. On the first day of trial, the Applicant opposed the application by the Respondent to have the evidence of the victim of the alleged offending by video link. This application was denied by the Court[1].
  4. On the second day of trial (21 July), the Respondent further withdrew three of the remaining six charges: endangering transport, attempt to cause serious bodily injury and threatening to kill. The remaining three charges were :
  5. The charge of intentional damage was also further amended down to s184(2) from s184(1) to maximum seven years imprisonment. The three remaining charges fall within the jurisdiction of the District Courts but because they are all alleged to have occurred from the same incident, as the proceedings had already started in the Supreme Court, they remained in the Supreme Court.

The application for costs

  1. The application for costs is premised on the following grounds:
    1. The Police conduct of the investigation of this matter.

The charges should have never been filed at the outset. The Police did not properly and fairly investigate the matter. If they had, they would have known that there was a lot more relevant evidence that they needed to take into account before deciding on whether or not it was appropriate to file the Informations against the defendant (applicant).

  1. The Prosecution failure to diligently review the evidence

The Prosecution did not diligently review the evidence in the trial documents. If they had they would have known that there was insufficient evidence to proceed with the Informations. Counsel for the defendant (applicant) before the charges were finalized requested the Prosecution to review the Police file as to the appropriateness of the charges.

  1. The Prosecutor’s conduct of the trial caused unnecessary delays

Conduct of the trial by the Prosecution unnecessarily prolonged the trial. The Prosecution’s failure to comply with the procedural requirements of the Criminal Procedure Act 2016 with regard to calling evidence by video link should have been made well in advance instead of on the day of the trial. As a result the substantive hearing of the evidence did not start until 3.25pm on the first day due to the application for evidence by video link and the Prosecution’s request for further time to consider their position when the application was denied.

The three charges that were withdrawn on the third day of trial could have all been withdrawn on the first day of trial when six charges were withdrawn. This could have narrowed the focus of cross examination and shortened the trial.

The Prosecution, “Has a duty to prosecute all criminal cases dispassionately and with scrupulous fairness,” as set out in the Rules of Professional Conduct for Barristers and Solicitors of Samoa. A prosecutor acting with ‘scrupulous fairness’ would consider all the relevant information in exercising prosecutorial discretion in proceeding with the trial.

  1. The Prosecutor was put on notice of likelihood of costs

The Prosecution was put on notice by Counsel for the applicant when they requested for further time to reconsider their position when the application to give evidence by video link was denied, that if charges are withdrawn forthwith the defendant (applicant) would not seek Order for costs.

  1. The total costs of $12,455.50 should be awarded or increased costs of 75%[2], is justifiable given, the conduct of the Police investigation and the Prosecution’s conduct of the trial.

The opposition to costs

  1. The Respondent’s submissions opposing costs is premised on the requirement in s188(2) of the Criminal Procedure Act 2016. Section 188(2) provides that the Court may only order the informant to pay costs if :
    1. There was no evidence to support the information; and
    2. There is no evidence to cause a reasonable person to suspect the defendant and not otherwise.
  2. The Respondent opposed the application for costs upon the following grounds:

The law

  1. The law on costs is provided for under section 188 of the Criminal Procedure Act 2016 (CPA) which states:

“188. Costs – (1) If the Court convicts a defendant, it may order the defendant to pay to the informant costs as the Court thinks just and reasonable for Court fees, witnesses’ and interpreters’ expenses, and lawyers’ fees.

(2) If an information is withdrawn or dismissed, the Court may only order the informant to pay to the defendant costs, as the Court thinks just and reasonable, for fees for the defendant’s lawyer and expert witnesses if there was no evidence to support the information and no evidence to cause a reasonable person to suspect the defendant, and not otherwise.

(3)The Court must not order costs against the informant or prosecution if the defendant was granted legal aid.

(4) Costs allowed under this section must not exceed the amount provided for in any scale prescribed by regulations or rules made under this Act or any other enactment.

(5) Any costs allowed under this section:

(a) must be specified in the conviction or order for dismissal; and

(b) may be recovered in the same manner as a fine.

(6) The defendant or the Attorney –General may appeal against any order for costs.

(7) No order for costs is to be made in favour of the defendant if the defendant by his or her conduct after the alleged offence had brought the prosecution upon himself or herself.

  1. The Supreme Court (Fees and Costs) Rules 1971, Rule 5 states:

“Costs – (1) Costs when allowed shall be regulated and paid according to the scale of costs set out in the Second Schedule hereto, but the Court may, in giving a judgment or making any order, fix a sum or sums as the costs of the action or of the application, as the case may be, in full of all costs, notwithstanding that such sum is greater than the sum set out in the said scale.

(2) In case of there being any doubt as to what costs should be allowed pursuant to the said scale in any particular matter arising in the course of any proceedings, the Court, in its discretion, having regard to the said scale, shall fix such sum for costs to be paid by any party as it thinks fit.”

Approach to Cost Orders - Samoa

  1. There are very few written decisions on costs awarded to defendants under s167 of the Criminal Procedure Act 1972 (repealed). In saying that, the Court itself very rarely award costs to defendants. The costs it awards to the prosecution are usually not challenged or appealed by defence counsels and it could be the reason why there are no written decisions providing the reasons for the award of costs and to the quantum awarded. The case of Police v Tito[3] was an appeal against costs awarded pursuant to s167(2) of Criminal Procedure Act 1972 (repealed) to the defendants in three criminal cases as follows:

Police v Maiava Safue Siau Tito and Tulagamua Maiava Safue (30 May 2000)

Defendants acquitted of murder/manslaughter; application for costs of $55,660 by defendants; Judge awarded costs of $4894.00 according to scale to the defendants.

Police v Maiava Naititi (12 June 2000)

Defendant acquitted of incest charges; costs sought by defendant of $3,657.50; costs of $2,434.00 according to scale awarded to defendant.

Police v Junior Siale (23 June 2000)

Charges dismissed on ‘no case to answer’ application; costs awarded to defendant of $3,114.00 presumed to be on same reasons given in Maiava Safue.

  1. The Court of Appeal in Tito held that (i) the Judge has jurisdiction to award costs to defendants under s167(2) (now repealed); and (ii) the words ‘where the Court dismisses any information’ in s167(2) includes the termination of criminal proceedings against a defendant, either by way of acquittal, or by way of quashing an information or by way of a stay or by any other matter of termination as opposed to conviction in s167(1). The costs awarded in the three cases were according to scale of costs. In Police v Unasa [2007][4] Justice Vaai awarded costs to the defendant according to the scale of costs.
  2. The equivalent of s167 in the Criminal Procedure Act 1972 (repealed) is s188. The predecessor of s188 simply gave a discretion to the Court to award costs to a successful defendant “such costs as it thinks just and reasonable for Court fees, witnesses and interpreters expenses, and solicitor’s fees.” Section 188(2) of CPA 2016 gives the same discretion to award costs to the defendant except that it now provides for a two limb requirement that the Court must be satisfied of and only then it could exercise discretion to award costs to the defendant (applicant). The two limbs are:
    1. There is no evidence to support the information; and
    2. There is no evidence to cause a reasonable person to suspect the Defendant and not otherwise.
  3. Furthermore, if the Court awards costs to the Defendant (or to the informant) it is such costs as it thinks is “just and reasonable”. Such discretion is fettered by s188(4) which provides that such costs should not exceed any scale provided for under any enactment, rules or regulation made under the Act.
  4. A scale of costs is provided for under Rule 5 Supreme Court (Fees and Costs) Rules 1971 which provides the Court with the discretion whether to adhere to the scale or award what it thinks to be reasonable costs. However, this Court has, on a number of occasions not followed the scale for the reason that the scale of costs under the Rules is outdated as the amounts (in the scale) reflect costs fixed over 40 years ago[5]. The Samoan approach to costs is reiterated by the Court of Appeal in Apia Construction & Engineering v Samoa National Provident Fund[6] at [57]:

“We accept that party and party scale costs in both Courts (Supreme & Court of Appeal) are well out of date. In appropriate cases costs of up to two-thirds of actual and reasonable costs may be possible. However there is no rule to that effect and each case must be considered according to its own particular circumstances.”

  1. Aitken J in O N & Sons Construction v Pacific Forum Line[7] approach the issue of costs as follows:

“In determining the amount, the Court will first determine what the actual and reasonable costs of the successful party should be, and from that amount, what a reasonable contribution would be. Such contribution is usually fixed at 2/3rds of the reasonable cost identified.”

  1. Given the very few written decisions on costs applications as to judicial consideration of how the discretion ought to be exercised, much has been made on the exercise of judicial discretion on costs in criminal cases in New Zealand.

Approach to Costs Orders - New Zealand

  1. The Respondent refers to s364 of the Criminal Procedure Act 2011 (CPA), CPA 2011 is primarily procedural and therefore more likely to focus on process whereas the Costs in Criminal Cases Act 1967 provide the statutory framework for costs in criminal matters and would come into play when the matter has concluded. Section 364 of CPA 2011 (refer to by prosecution) provides costs where there is ‘procedural failure’ such as failure or refusal to comply with a requirement imposed by the Act regulation or rules of the Court.
  2. The New Zealand judicial approach to costs application is well set out in the Costs in Criminal Cases Act 1967 and in their case law. The approach is, the applicant by making an application for costs seeks to invoke the Court’s discretion and must therefore show good grounds why the discretion should be exercised.
  3. Unlike civil cases, where costs follow the event section 5 of the Costs in Criminal Cases Act 1967 provides that there is to be no presumption for or against the granting of costs. An acquittal is not of itself sufficient reason for an order nor is the fact that the proceedings were properly brought and continued of itself a ground for refusing an order.[8]
  4. Section 5(2) of the Costs in Criminal Cases Act 1967 lists a number of matters which the Court must consider (where relevant) however the cases show that the Court’s discretion is not fettered or limited by these statutory considerations.[9] That is, although the Courts have found that none of the matters or criteria listed in s5(2) apply the Judges still award costs. Hardie Boys J in R v CD[10] said that the section simply means that the Court has to do what it thinks right in the particular case.

Discussion

  1. The prosecution in applying the two limb requirement in s188(2) submits that there was evidence justifying the laying of the charges against the defendant (applicant) and the same evidence reasonably suspected the defendant. Whether the evidence proves the charges beyond reasonable doubt says the prosecution is a matter for the Court. As such, the prosecution submits that costs should not be awarded to the defendant (applicant).
  2. Counsel for the applicant disagrees saying that, if that is the line of argument by the prosecution that as long as there is evidence then a defendant will never get to be awarded costs. Counsel for the applicant argues that it’s not just a case of putting up the evidence but must be evidence to support the information.
  3. As the trial judge I am in a particular good position to consider the application for costs. I had the advantage of hearing the evidence, as such it, would not be convenient nor necessary to advert to it all in this judgment. Ultimately I must exercise my discretion having regard to the combined effect of all matters which I have heard and observed.
  4. The two limb requirement in s188(2) can be appropriately addressed by the two part evidential sufficiency test referred to in [29](ii) as follows:
    1. Was there prima facie evidence of an offence or offences?; and
    2. If so, was there a reasonable prospect of the prosecution succeeding?

Was there evidence to support the filing of information? That is, was there prima facie evidence of an offence or offences?

  1. There may have been prima facie evidence of an offence or offences which support the filing of information as in the photos taken by Constable Frank Fuaava, of the van (EXH P1) and the victim himself (EXH P2) and the evidence of Mr Xiang Sun (driver of the van) and Mr Leo Li and that such evidence identified the defendant is not enough. If there is evidence to support the filing of information, such evidence must be capable of proving the charges. This is where the prosecutorial role to review the evidence comes in to play.

Was there a reasonable prospect of the prosecution succeeding? Was the evidence enough to prove the charges beyond reasonable doubt?

  1. If information is filed the buck stops with the prosecution (so to speak) that in their proper prosecutorial role, they (prosecution) must with due diligence review the evidence within a reasonable time before the trial to see if the evidence is capable or enough to prove the charges beyond a reasonable doubt. By reviewing the evidence, the prosecution will be in a better position to assess their prospect of succeeding. An example of the prosecutorial role to review the evidence was highlighted by independent counsels who reviewed the evidence by the police in two matters against the Police Commissioner, Mr Egon Keil in 2017.
  2. In reviewing the evidence independent counsel Mr Hampton QC in his Memorandum to the Court (I refer only to two of the grounds that I think applicable to the present matter) to have the charges against Mr Keil withdrawn. These were:
  3. Although the prosecution reviewed their position and withdrew three of the six charges after the video link application was denied, I agree with Counsel for the applicant that if prosecution had diligently reviewed the police file and the evidence, they would have discovered that Mr Xiang Sun (driver of the van) left the jurisdiction sometime in March 2017, he was after all their key witness and there was an outstanding warrant in the FF Court against him. They (prosecution) would have found out that the only other evidence in the file was of a Leo Li (who is the partner of the driver of the van’s daughter) and photos taken by Constable Fuaava which photos are incomplete. That is, the set of photos with the van in the Pacific Jewel shop showing the extent of the damage was never produced by the prosecution.
  4. Furthermore, if the prosecution had diligently reviewed the police file and evidence, they would have also found out that the interviews of potential witnesses of an acceptable rigorous standard were not conducted nor were potential witnesses interviewed. The police investigation led by Sergeant Taualai never interviewed and obtained statements from the 2-3 police officers who responded to the call and attended the scene or the two men from the tow away company who were called in to remove tow the van from inside the shop. There was also an employee (Solomua Manu) of the Applicant who witnessed when the van drove inside the shop but whom the Police never interviewed in the course of their investigation.
  5. Counsel for the applicant prior to trial had been requesting the prosecution to review its charges against the defendant. If the prosecution had diligently reviewed the police file and the evidence within reasonable time prior to trial the issues would have become apparent that would have no doubt influenced their decision, for example, making the application for evidence by video link which caused unnecessary delays on the first day of hearing and perhaps to the rest of the charges. The trial time would have been cut down to two days of the evidence and submissions instead of three. Given that they (prosecution) withdrew three of the six charges after the video link application was denied, the question then is, what is the prospect of the prosecution succeeding on the evidence to continue with the three remaining charges of intentional damage, armed with a dangerous weapon and assault?
  6. In my view, the prosecution should have never continued with the three remaining charges because there was no prospect of succeeding on the evidence there was. Counsel for the Applicant had put the prosecution on notice that should they not withdraw the charges against the applicant when their application for video link evidence was denied, the applicant would claim for costs. Even though the prosecution may have reviewed the evidence, they left it too late. Such review should have been done within a reasonable time before the trial.
  7. I consider that this is the proper case for the award of costs to the defendant. As said earlier, I must exercise my discretion having regard to the combined effect of all matters which I have heard and observed.
  8. In Re Davidson[11] William J said:

“A judgment in relation to the good faith of the prosecution in bringing and continuing the proceedings must be made on the basis of reasonableness of the overall decisions to prosecute rather than on unexplored allegations of inappropriate conduct by some individual police.”

  1. Kirby P in Acuthan v Coates[12] made the following comments:

The quantum to be awarded

  1. The Applicant seeks full solicitor-client costs including VAGST, amounting to $12,455.50. Alternatively if the Court considers it appropriate to only award a percentage, then increased costs of 75% as in Lavea v Mulitalo[13] is justified.
  2. In the circumstances of this case what is ‘just and reasonable’ costs to award, is the more appropriate approach rather than adhering to an outdated scale of costs.
  3. I endorse the approach of Aitken J in O N & Sons Construction[14] that a reasonable contribution or costs to be awarded is 2/3rds of the quantum claim by the Applicant, which is $8,303.66.

Should there be a criteria or guidelines in Samoa with regards to costs for defendants?

  1. Before I sign off on this judgment I would like to comment on the possibility of guidelines or criteria to be established regarding costs. Their Honours in Police v Tito[15] refrain from laying down guidelines such as those in the New Zealand Costs in Criminal Cases Act 1967, s5(2). I am mindful also that in this case neither Counsel make submissions on what should be guidelines in Samoa as in the New Zealand Costs in Criminal Cases Act 1967, s5(2). In my view, it is timely for some guidelines, criteria or relevant circumstances to be considered when considering costs to the defendant. I find that the circumstances listed in s5(2) are useful guidelines to be taken into account by the Court where relevant and on a case by case basis when considering costs to the defendants. Those circumstances are:
  2. If I was to have regard to the guidelines or criteria (above) I would find them all relevant to the circumstances of this case and therefore to the awarding of costs to the defendant.

Conclusion

  1. The application for costs succeeds and accordingly order as follows:
    1. The Respondent to pay the costs of $8,303.66 to the Applicant.

JUSTICE TUATAGALOA

[1] The reasons are provided in the written decision dated 1 September 2017. The driver surfaced up in his homeland China, yet the prosecution sought to have the evidence of the driver by video link when he had absconded from this country with an outstanding criminal charge against him.


[2] Lavea v Mulitalo [2017] WSSC 17 (6 March 2017)

[3] [2000] WSCA 2

[4] Police v Unasa [2007] WSSC 67 (27 August 2007)
[5] The following cases the Court awarded costs to the informant (against the defendant) not according to scale: Police v Ah Him [2000] WSSC 140 (2 March 2015), Police v Amituanai [2015] WSSC 74 (30 April 2015), Police v Seru [2015] WSSC 183 (6 November 2015) to name a few. See also Polynesian Limited v Samoa Observer Ltd [1999] WSSC 35 (30 July 1999)
[6] (Unreported, 15 September 2017)
[7] (Unreported, 30 November 2015)

[8] R v Rust [1998] 3 NZLR 159 (CA); R v Kerr (Unreported, 15 April 1992, CA60/91)

[9] See: R v AB [1974] 2 NZLR 425, R v CD [1976] 1 NZLR 436, R v Reed [1980] 1 NZLR 758, Re Davidson, unreported (HC, Christchurch, 15 Dec 1993)

[10] [1976] 1 NZLR 436
[11] (Unreported, High Court, Christchurch,15 Dec 1993)
[12] (1986) 6 NZLR 472, 480
[13] [2017] WSSC 17 (6 March 2017)
[14] Supra note 7
[15] Supra note 4

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