Police v Foaga [2019] WSSC 57 (19 July 2019)

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Case name:	Police v Foaga

Citation:	[2019] WSSC 57

Decision date:	19 July 2019

Parties:	POLICE v FOAGA FOAGA male of Moataa.

Sentencing date(s):	19 July 2019

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- Accordingly, I am not satisfied that a duly signed and sworn information was filed for the two documents that are now before the Court for my determination as to their validity as charges. I am also satisfied that these documents themselves are a nullity for the reasons that I have set out. - I will now adjourn this matter for sentencing, Summary of Facts, Pre-Sentence Report and Victim Impact Report on the 16 August 2019 at 12.30pm. - You are remanded on the same bail conditions to re-appear on the 16/8/2019 at 12.30pm.
Representation:	L A Matalasi for Prosecution M Lui for the Accused

Catchwords:

Words and phrases:
Legislation cited:	Crimes Ordinance 1961 (Repealed), Criminal Procedure Act 2013; Criminal Procedure Act 1972 (repealed). Police Offences Ordinance 1961,

Cases cited:	Police v Jones [1996] DCR 866; Police v Niue [2008] WSSC 109 Police v Tauai [2010] WSSC 23;

Summary of decision:

[1] The accused is said to have pleaded guilty to three (3) information arising from an incident on the 19th August 2011 that he (a) wilfully and without lawful justification caused grievous bodily harm to Faamasunu Penitito Taei (“the complainant”) contrary to section 79 of the Crimes Ordinance 1961 (Repealed) (“the Ordinance”)(S2033/11); (b) intentional damage contrary to section 113(3) of the Ordinance; and (c) insulting words contrary to section 4(g) of the Police Offences Ordinance 1961.

[2] When this matter was heard on the 16th April 2019, it was to hear the accused application to vacate his guilty plea. After the hearing of that application, I raised with counsel that two of the ‘information’ before the Court were both unsworn and unsigned.

[3] Through counsel, the accused has withdrawn his application to vacate guilty plea leaving only the question of the validity of the unsworn and unsigned ‘information’ to which the accused entered guilty plea. The most serious of the information against the accused of grievous bodily harm (S2033/11) is signed and sworn by Corporal Aasa Maiava on the 20th August 2011. The remaining two charges for insulting words and intentional damage are unsworn and unsigned. The charges are however purportedly brought by Sgt Keni Tuumatavai on behalf of Police as Informant. These two charges do not have information numbers nor do they have a printed reverse side with particulars as ordinarily appears on original versions of an information. Both however bear in original blue ink the letter ‘G’ on both charges.

[4] Counsel refer me to section 18 and 28 of the Criminal Procedure Act 2013 (‘CPA’) which relevantly provides:

(c) refer to the provision of an enactment creating the offence that it is alleged the defendant has committed.

28. Information not to be held invalid for want of form - (1) A Court may not quash, set aside or dismiss:

by reason only of the failure to comply with this Act unless the Court is satisfied that there has been a miscarriage of justice such that it would be contrary to the interests of justice to allow amendment, or any other correction available under this Act, or any other enactment, or rule of law.

(2) Subject to subsection (1), a Court may not invalidate or dismiss, on any of the following grounds, any information:

[5] Relevant also to determination of this issue is the definition of ‘informant’ and ‘information’ which are defined in section 2 of the CPA as follows:

“informant” means the person by whom or on whose behalf an information is laid; and

[6] In determining the question before me, I note that under the Criminal Procedure Act 1972 (repealed)(‘CPA 1972’), section 13 requires all information to be substantiated on oath before a Registrar and in the form 1 set out in the Second Schedule to that Act. Form 1 Information includes that the information be signed by or on behalf of the informant. There was no similar provision in the CPA 1972 to section 28 of the CPA. There were however provisions that dealt with defects (section 16(4)) and objections to an information (section 18) contained in the CPA 1972.

[8] Counsel for the accused however submits that section 28 only applies where an information has been laid but not properly sworn or affirmed. In this situation where there is no signed information, there is no charge before the Court as there is no deponent. In her submission, counsel for the accused submits that “[t]he two unsigned charges are just pieces of paper that have not been certified to be correct or true as they have not been signed by anyone...these two information are not defective as per section 28, but rather they do not exist and are therefore not valid.”

[9] Ms Lui refers me to the decision of Nelson ACJ in Police v Tauai [2010] WSSC 23 where Nelson ACJ states:

“I am not going to send a man to prison where there are no proper charges before the Court. I am therefore today going to sentence him on lesser charges of causing grievous bodily harm but in doing that I bear in mind what he has admitted to intending and also what is in the summary of facts.”

[10] I have also considered the judgment of Sapolu CJ in Police v Niue [2008] WSSC 109 (19 December 2008) to which I have also been referred by prosecution. Both these instances pre-date the CPA.

[11] I first turn to address the submission by prosecution counsel that when the matter proceeded before the then Chief Justice in 2011 and 2012, the signed and sworn charges would have been available and before the Chief Justice. I am not satisfied that was the case.

[12] First, on the unsigned and unsworn document on the Court file, these being a single sided document without the printed reverse side as is ordinarily shown in Police Information brought before the Court, the letter ‘G’ appears in original blue ink. This suggests that the ‘G’ notation was entered on the unsigned and unsworn document at the time the plea were taken, which is usually (but not always) the practice of the Registrars.

[13] Second, a signed and duly sworn ‘copy’ of the original charges were not provided to the Court to show that signed and sworn charges ever existed in the first place. I note however from prosecution counsel that original signed copies are not retained on the prosecution file, the practice being that the original signed copy is left with the Court Registry for filing and for the Court file.

[14] Third, in the absence of a copy of the original charge being able to be produced by prosecution, the Court could be assisted by prosecution providing evidence by way of affidavit or otherwise from Police that a signed and sworn charge had been filed with the Court. However, no such evidence was offered to satisfy me that an information was duly commenced at the beginning.

[15] In my respectful view, the Court needs clear evidence that signed and sworn charges were filed with the Court at the beginning to bring these charges against the accused. This can be by either filing a copy of the signed and sworn original or where such a copy cannot be produced, by evidence that signed and sworn copies were originally filed to duly commence the proceedings. That evidence however has not been produced and accordingly, I cannot be satisfied that signed and sworn information were filed to commence these charges. In this context, counsel may find helpful the discussion on this point in the judgment of McElrea J in Police v Jones [1996] DCR 866 which dealt with an unsworn information and this question.

[16] Now I turn to whether or not the unsworn and unsigned documents purportedly constituting an information can be saved by section 28 of the CPA.

[17] Information brought under the CPA 1972 (which was the applicable Act at the time in 2011) are continued, completed and enforced under the CPA (section 200, CPA). Under the CPA, an informant is defined as “the person by whom or on whose behalf an information is laid.” An information includes any charge or charging document.

[18] In these proceedings, prosecution is submitting to the Court that the “correctional avenue available to the Court pursuant to section 28(c)(sic) at this stage is to order the Prosecution to re-file the unsworn and unsigned charges.” Alternatively, that proceeding with the charges would not result in a miscarriage of justice. There are difficulties in my view with these contentions.

“...unless the Court is satisfied that there has been a miscarriage of justice such that it would be contrary to the interests of justice to allow amendment, or any other correction available under this Act, or any other enactment, or rule of law.” (emphasis added)

[20] Prosecution have not identified whether under the CPA, any other enactment or a rule of law where it permits this Court to direct the prosecution to re-file sworn and signed charges in the circumstances as they arise here. It may exist but it has not been brought to my attention.

[21] Second, a direction to re-file the charges in my view is not an amendment or a ‘correction’ to an existing charge but would likely constitute the bringing of fresh charges on the same alleged acts. Charges filed in 2019 would necessarily be brought pursuant to the CPA and not the CPA 1972, be re-dated and perhaps laid by a different Police Officer. It is not an amendment or a correction to the original charges but, in my view, entirely new charges altogether.

[22] Third, an information must be in form 1 and be sworn and affirmed (CPA s.18(1)(b); CPA 1972 ss. 13 and 19)). Information under both the CPA 1972 and the CPA provide for the signature of the ‘informant’ (CPA 1972, Form 1) or the signature of the “Applicant” (CPA, Form 1). This is a mandatory requirement.

[23] In my respectful view, there is strong merit in the submission by counsel for the accused that all that is before the Court are “just pieces of paper” for while there are documents before the Court purporting to be charges, they are not signed and in those circumstances, how can they be said to have been brought by an informant, that is “the person by whom or on whose behalf an information is laid”? There can be no certainty whatsoever that the information before the Court was laid by Sgt Keni Tuumatavai as purported on the face of these two documents.

[24] Fourth, linked to my third point and perhaps more critically, in my view, this type of serious error or defect is such that it cannot be saved by section 28 of the CPA. In dealing with the similar but not identical provision under section 379 of the New Zealand Criminal Procedure Act 2011, the New Zealand Court of Appeal in Talley’s Group Ltd v WorkSafeNew Zealand [2018] NZCA 587; [2019] 2 NZLR 198 considered the types of defects that would invalidate a charge and stated:

“[45] In New Zealand, such considerations have tended to be dealt with under s 379 of the CPA (or its predecessors), where miscarriage must be established in order to invalidate a defective charge. This means that New Zealand courts have tended to be less strict on the prior question of nullity. A charging document will be a nullity if it fails to disclose an offence, or a defendant, or is so unintelligible that the nature of the offence cannot be ascertained. Such will also be the case where the charge lacks a required statutory consent, or is out of time. To void a charging document therefore, relevant defects must be so radical as to deprive the document of its essential character. Technical or mechanical defects will not suffice, and the courts will be slow to reach such a “drastic conclusion”. It follows that even serious defects will be protected by s 379 of the CPA if, despite the impugned defect, the document nonetheless discloses a recognizable charge, a recognizable defendant, (where necessary) is in time and is supported by statutory consents. But if one or more of these elements is missing, “there is nothing before the Court capable of rectification”. That said, the dividing line between nullity and mere irregularity is not always a bright one. Whether the defect goes to the very heart of a charging document will sometimes be a matter of degree almost always informed by the risk of a miscarriage of justice.”

[25] In my respectful view, the failure to sign a charge is a statutory requirement by virtue of Form 1 to both the CPA and CPA 1972. To exacerbate the problem in this case, the document is also not sworn. The defect in the documents before the Court are so radical that it deprives the purported information of their essential character. With the information in such a state that they are unsigned and unsworn and I cannot be satisfied that they have been duly brought by the informant, “there is nothing before the Court capable of rectification”. It is a nullity.

[26] This conclusion in my view is also supported by section 28(2) of the CPA. Section 28(2) refers to specific examples where the Court may not invalidate or dismiss an information. These include that the information does not state the name of the owner of the property and similar omissions as well as the failure to have an information sworn. Relevantly however, section 28(2) does not provide that the Court may not invalidate or dismiss an information that has not been signed. That is because in my view, the failure to sign an information goes to the essential character of a charge. It is in my view a deliberate omission.

[27] Accordingly, I am not satisfied that a duly signed and sworn information was filed for the two documents that are now before the Court for my determination as to their validity as charges. I am also satisfied that these documents themselves are a nullity for the reasons that I have set out.

[28] I will now adjourn this matter for sentencing, Summary of Facts, Pre-Sentence Report and Victim Impact Report on the 16 August 2019 at 12.30pm.

[29] You are remanded on the same bail conditions to re-appear on the 16/8/2019 at 12.30pm.

Supreme Court of Samoa

Police v Foaga [2019] WSSC 57 (19 July 2019)