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Malietoa v Police [2022] WSSC 43 (14 October 2022)

SUPREME COURT OF SAMOA
Malietoa v Police [2022] WSSC 43 (14 October 2022)


Case name:
Malietoa v Police


Citation:


Decision date:
14 October 2022


Parties:
MALIETAU SAPATU-MOTU-PA MALIETOA, of Vaivase-Uta (Applicant) v POLICE (Respondent)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Lesātele Rapi Vaai


On appeal from:


Order:
The twelve informations filed against the applicant are stayed. Prosecution to pay the applicant costs of $1,000.


Representation:
I. Sapolu for the Applicant
I. Atoa for the Respondent


Catchwords:
Abuse of process – right to a fair trial – delays.


Words and phrases:
“application to stay permanently criminal charges”


Legislation cited:


Cases cited:
CT v The Queen (2014) NZSC 155;
Land and Titles Court and Taimalelagi Naotala & Ors v Moananu Fanolua [2020] WSCA 6;
Moevao v Department of Labour (1980) 1 NZLR 464;
R v O (1999) 1 NZLR 347;
Sione & Paulo v Police [2022], Unreported judgment of Perese Chief Justice: in the Supreme Court of Samoa, 15 July 2022;
United States v Lovasco, [1977] USSC 172; 431 US 783 (1977).


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


IN THE MATTER:


of the Constitution of Independent State of Samoa 1960 and the Criminal Procedure Act 2016


BETWEEN:


MALIETAU SAPATU-MOTU-PA MALIETOA of Vaivase-Uta


Applicant (Accused)


A N D:


P O L I C E


Respondent


Counsel: I. Sapolu for the Applicant

I. Atoa for the Respondent


Judgment: 14 October 2022


JUDGMENT OF THE COURT

Introduction.

  1. The applicant moves to stay permanently the twelve criminal charges filed against him on the 10th and 12th May 2019 for offences which are alleged to be committed in September 2014 and will not go to trial until 2023.
  2. In August 2014, the applicant who was then the Chief Electoral Commissioner and head of the Office of the Electoral Commissioner (OEC) received an email inviting two participants from his office to attend a workshop at Palau in October 2014. All expenses including economy travel, accommodation and allowance were to be met by the workshop sponsors. Target participants for the workshop were Electoral Commissioners, IT Managers, support staff, and electoral operations staff.
  3. The PDF invitation letter together with the attached travel itinerary was forwarded by the applicant to the principal IT officer of OEC to convert into WORD form. With the invitation letter and travel itinerary in WORD form, the applicant was able to make alterations to both documents before he prepared the submission to Cabinet to approve his participation, his travel upgrades to business class as well as his daily subsistence allowance (DSA).
  4. The submission dated 29th September 2014 for the seat upgrade to business class as well as DSA allowances for transit greater than eight hours for the intended two day trip transiting at Auckland, Sydney, Manilla and Guam, was approved by Cabinet.
  5. In a separate subsequent Cabinet directive dated 8th October 2014, Cabinet approved the applicants annual leave from the 12th to 17th October to enable him to attend a royal wedding in Tonga. The Palau workshop was changed from the 6th October to the 20th October.
  6. Immediately after the applicant’s departure in October the principal IT officer triggered investigations into the applicants alleged tampering with the invitation letter and travel itinerary. He was obviously hurt that he was not included in the trip to Palau. The Public Service Commission was alerted resulting in the appointment of the investigator in December 2014, to investigate the contents of the Cabinet submission.

Public Service Commission Investigation.

  1. Four charges were served on the applicant in December 2014. He was given time to respond and he did through his solicitor. Three charges relate to the alterations to the travel itinerary and one to the invitation letter. All charges allege that he breached sections 19 and or section 17 of the Public Service Act 2004 by failing to act with honesty and in a truthful manner and he failed to act with integrity and misuse his status or authority to seek or obtain a benefit for himself.
  2. Section 17 of the Public Service Act requires all Chief Executive Officers and employees of the Public Service to be honest, impartial, respectful, transparent, efficient and accountable. Section 19 requires them to be, inter alia, honest, impartial, comply with all laws, comply with all reasonable and lawful directions, disclose real or apparent conflicts and use government resources properly.
  3. The first three charges relate to the alleged alterations of the travel itinerary. They alleged that the alterations were made to justify claims for transit allowances at three transit ports of the journey by hiking the transit stop to more than eight hours when in fact the transit stops were less than eight hours.
  4. The fourth charge relates to the invitation letter and it is alleged that the applicant altered the invitation to justify his attendance at the workshop.
  5. All the four charges were denied by the applicant. He admitted he made changes to the travel itinerary out of necessity for several reasons. Some of these reasons were:
  6. In relation to the alteration of the invitation letter the applicant contended that he was qualified and was invited to attend the workshop. One of the topics for discussion of the workshop was:

As he was qualified as the chief electoral officer to attend, there was no need to deceive Cabinet. It was also his prerogative as CEO and he was invited to attend. The workshop was not exclusively for IT officers.

Findings by the PSC Investigator.

  1. The investigator in a forty four page report found all the four charges proved against the applicant. In relation to the alteration to the travel itinerary the investigator determined that the itinerary submitted to Cabinet was false and an attempt to act dishonestly or untruthfully[1]. Her determinations were made after dialoguing with the workshop sponsor and officers of the office of the Electoral Commission.
  2. Although the investigator accepted that the applicant was entitled to request changes to his travel itinerary on grounds of convenience and comfort she nonetheless concluded at page 14:
  3. By relying significantly on responses from the workshop sponsors to her queries, as well as a Cabinet directive issued in August 2013[2], the investigator concluded that the applicant was not entitled to the allowances he claimed in the Cabinet submission namely:
  4. Interestingly, the investigator, whether through her over enthusiasm or some other motive, extended her line of investigation, to the applicant’s other earlier overseas travels to other parts of the globe. At page 33 of her report she noted:
  5. In relation to the alteration of the invitation letter the Investigator also concluded that the alteration was deliberately done to convince cabinet to approve the applicant’s attendance at the workshop. The pre-requisite for attendance were[3]:
  6. Surprisingly despite the fact that the applicant was obviously qualified to attend, the investigator concluded, “That the content of the invitation already shows that it was for someone who is an IT officer[4]. Even more surprising is the fact that the investigator identified and named the person, (who was not an IT employee of the office of the OEC) who should have attended the Palau workshop[5].

Recommendations of the Investigator.

  1. The investigator recommended to the Public Service Commission to impose one of the following penalties:
  2. The investigating report was copied to the:

Criminal Charges against the Applicant.

  1. Twelve informations were filed by the police charging the applicant with:
  2. The first information 948/19 is dated the 12th April 2019, and the remaining eleven informations are dated 10th May 2019. The informations, according to the chronology of events produced by the prosecution were first mentioned in court on the 10th June 2019 and not guilty pleas entered on the 24th June 2019 and adjourned to 25/11/2019 for hearing.
  3. I set out the chronology of events since the 24th June 2019 when guilty pleas entered.
28/10/19
New hearing date given at bail variation application. Trial set for 13/7/2020
29/06/20
Applicant filed the stay application. Adjourned for prosecution to respond to stay.
13/07/20
Prosecution filed responses to the stay application. Adjourned to 17/8/2020 for applicant to respond.
17/08/20
Further adj to 7/9/2020 due to applicant’s mother’s death.
07/09/20
Further adjourned to 14/9/20 for mention.
14/09/20
Adj to 28/10/20 for hearing. Hearing did not proceed. Judge recused from hearing. Adjourned to criminal mentions on 2/11/20.
02/11/20
Neither parties have filed written submission. Adjourned 9/11/20.
09/11/20
Adj to 16/11/20 for counsels to liaise with Registrar on early hearing date of the stay application. Stay application was scheduled for hearing on 25/1/21.
25/01/21
Hearing dates vacated due to priority given to election qualifications petition cases.
01/02/21
Mention. Adj to 28/6/21 to await progress of election petition cases.
28/06/21
Election petitions still in progress.
22/02/22
Adj to 17/3/22 for hearing of stay application commenced. Adj part hearing for filing of memorandums and responses.
10/06/22
Chambers meeting witness Counsels. Prosecution counsel requested time to file reasons for the delay in filing criminal charges.
17/06/22
Prosecution filed explanation for delay in filing criminal charges.

The applicant’s amended motion to stay.

  1. The applicant advanced four principal grounds which briefly are:

All the four grounds can be condensed into two, namely, the right to a fair trial and abuse of process.

The right to a fair trial.

  1. Article 9 of the Constitution requires a criminal charge against any person to be heard and determined within a reasonable time.

Prejudice to the defence right to a fair trial caused by the delay.

  1. The applicant says there are significant prejudices to his defence caused by the lengthy delay. These are:
  2. In relation to the delay after the charges were laid the applicant contends the delay was not caused by the applicant or his counsel but that it was caused by the limited resources of the Court with insufficient judges to deal with the pre-general election petitions as well as the post-election petitions.
  3. It is the belief of the applicant that his constitutional rights have been unfairly violated by the Court prioritising the rights of the Parliamentary election candidates. He says in his supporting affidavit:
  4. It is also contended that the Prosecution contributed to the pre-trial delay through its delayed response in July 2020 to the stay application filed in 2019. This contention is factually incorrect. As noted in paragraph [23] the stay application was filed on 29th June 2020 and the response by the respondent was filed 13th July 2020.

Has the delay and prejudice breached the applicant’s right to a fair trial?

  1. Claims by the applicant that he has lost two witnesses, namely his late mother and former secretary; the diminished memories of those witnesses questioned during the PSC investigation, as well as the high chance of all relevant documents being lost or destroyed are very general, weak, irrelevant and speculative at best. The documentary evidence if lost or destroyed will benefit the applicant. Prosecution’s case against the applicant will rely heavily on the e-mails exchanged between the applicant and the workshop sponsors, cabinet submission, travel itinerary and other documents which the prosecution may consider relevant. The applicant’s late mother and secretary played no role and did not feature in the Public Service Commission investigation. Neither of them would have been able to give evidence which supports the applicant’s defence. Erosion of memory is of no significance. The documentary evidence, if the Prosecution is able to produce it, remains for the judge or assessor’s consideration and if desired for the applicant’s explanation. If the documentary evidence is lost or destroyed then obviously the Prosecution which bears the burden of proof will be confronted with significant difficulty.
  2. There is no limitation period and no presumption that after a particular time memories will be too unreliable for the purpose of a criminal trial. Whatever the length and cause of the delay, the central question is whether a fair trial can still take place in the particular circumstances.[9]
  3. Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the Courts. There is no scope for a presumption that after a particular time memories are too unreliable for purposes of a criminal trial.[10]
  4. The judgment of Young J speaking for the majority of the Supreme Court of New Zealand in CT v The Queen[11] contains an exposition of principles which addresses clearly most of the points which arise in Article 9 cases concerning delay. Although the judgment is concerned with section 25(b) of the NZ Bill of Rights Act 1990 which provides for, “The right to be tried without due delay,” it should be treated as authority of the principles applying to Samoa as well.
  5. As for institutional delay it is acknowledged and accepted that the demands for the resolution of pre-election and post-election disputes did result in the trial of this applicant and numerous other trials to be delayed. Parliamentary elections is a five yearly event and our relevant statute requires the Court to give priority to Parliamentary election petition cases. But measures were taken to alleviate the inconvenience to the public and for the Courts constitutional obligation to be fulfilled. Extra judges, local and overseas were appointed. Three Court benches were constituted to deal with election petitions. Government has in the past constantly amended the Electoral laws in an effort to inter alia, reduce and discourage the inception of election petitions, and to facilitate the prompt disposal by the Court of election challenges and petitions.
  6. The unforeseen constitutional challenges which engaged all judges of the Supreme Court following the General Elections significantly exacerbated the already burdened Court calendar contributing to further delays.
  7. While the remedy of stay of prosecution conveys the Court’s disapproval of the failure of other branches of Government to furnish the necessary resources to cope with speedy and efficient disposal of criminal trials, the Court must nonetheless assess the circumstances at the relevant time in judicially evaluating the reasonableness of the delay and its likely prejudicial effect. Obviously the starting point is the consideration of the question whether the delay is so prolonged that it is unreasonable in the circumstances. But as noted in a number of cases, unreasonable delay by itself, viewed in isolation, will not justify an order to stay. Unreasonable delay, or undue delay cannot be satisfactorily defined. It must always be the evaluation of the particular case which is determinative. What is an unreasonable lapse of time in one set of circumstances may not be reasonable in another.
  8. The effect of the delay was not such as to produce a situation where the trial would be unfair. The applicant claims no significant prejudice other than being subjected to anxiety, inconvenience, embarrassment and economic stress. Other than the loss of his mother and former secretary who did not feature in the Public Service Commission investigation he did not point convincingly to any particular aspect of the delay which prejudiced his defence.
  9. As a consequence I would naturally be reluctant to stay proceedings on the basis of systematic and institutional delay.
  10. The United States of America authority cited by the applicant’s counsel is obviously of very limited relevance because their statutes (State and Federal) are largely concerned with speedy trial, prescribing varying periods within which a trial must take place.

Abuse of process.

  1. Abuse of process is claimed by the applicant to arise in this case because the Public Service Investigation report had recommended in 2015 that the applicant be ordered to pay a fine and no further action be taken. The police were notified of the investigation[12] and a copy of the written report was given to the office of the Attorney General.[13] It is contended that it is an abuse of process for the police to file the charges some four years after the conclusion of the Public Service Commission investigation report.
  2. It is also contended that the filing of the charges was prompted by an ulterior motive. No explanation was given by the police as to why charges were not filed earlier. In his supporting affidavit the applicant argued that the charges were prompted by his active public protest against the Alaoa Dam Construction project, a multimillion joint venture by the Government and the Asian Development Bank. Since September 2018 when he commenced his public opposition against the project, the applicant joined forces with other organisations and entities. Local press, particularly the Samoa Observer and the social media also joined. Articles such as, “Alaoa Dam progressing despite objections,” were published. Public protest gained momentum. The applicant submits that as public support against the project gained momentum going into the year 2019 he was promptly slapped with 12 criminal charges.
  3. The focus of the objection was that the Government and the Asian Development Bank did not follow the required social safeguard policies and public consultations with families and villages likely to be affected particularly when the scoping work for the project had already commenced in the year 2016. Government was nonetheless determined to proceed with the project and was forecasted the construction work will commence in 2021. But this did not deter the applicant and others.
  4. He alleges at paragraph 16 of his affidavit:

Prosecution’s response.

  1. At the time of the hearing of submissions the Prosecution had not tendered or explained the reasons for delay in the filing of the informations. Neither did it respond to the allegations by the applicant as to the motive for the prosecution. In a subsequent chambers meeting, counsel for the Prosecution requested leave to file a response by the Investigating Officer. Counsel was granted leave but also reminded of the Court of Appeal decision in Land and Titles Court and Na’otala v Fanolua.[14]
  2. The Police Investigating Officer did not file a response. Instead, prosecution counsel gave to Court a copy of a letter from the office of the Attorney General dated 2nd February 2019 to the Commissioner of Police and signed by the then Attorney General. The letter is stamped Urgent. The first two sentences read:
    1. I refer to the above matter and advise that my office has finalised its review of the PSC investigation against the above-named.
    2. From our review, the conduct amounts to criminal liability and the criminal charges to be laid against the above-named are as follows.
  3. The letter then sets out 12 informations. It concludes by stating:
    1. The dates to be inserted in each charge is on or between 12th September 2014 and 02nd October 2014 and the place of offending to be at Mulinuu.
    2. We ask that a Senior Fraud Officer is allocated to handle this matter and to carry out the normal Police procedure of bringing in the suspect having him cautioned and made aware of the charges and then remanding him before a Registrar.
    3. In light of the date of offence of this matter the fact that charges have just been laid, we ask that this matter is treated on an urgent and priority basis.
  4. Since the letter was not disclosed to the applicant’s counsel prior to filing and hearing of submissions, applicant’s counsel was therefore of the view, albeit mistaken, that the police initiated investigations resulting in the filing of the charges. I considered unnecessary to seek applicant’s counsel submissions on the letter not only to avoid further delay, but also for the simple reason that the letter supports the applicant’s contention that there was ulterior motive for the filing of charges, some four years after the event.

Discussion.

  1. Obviously the initiative to lay the charges came from the office of the Attorney General which had all the relevant information for over four years. The Public Service Investigator was satisfied on the balance of probabilities that the applicant deliberately altered the invitation letter and travel itinerary for financial gain. Allegations which the applicant strongly denied. Cabinet directives, procedures and practices were at issue. In conclusion the investigator considered the applicant was not entitled to the allowances of:

which was claimed.[15] She also recommended despite her findings that no further action be taken which probably explains why nothing happened for over four years. In Samoan currency the amount of allowance involved is about $5,300. The investigator also raised several issues for Cabinet and the Public Service Commission to consider, and to put in place checks and balances to avoid the issues raised in the investigation.

  1. Common sense dictates that in or about February 2019 there was a reason or reasons for the report not only to re-appear but also to be treated with urgency by the Attorney General. The applicant has provided the reason. He filed a lengthy affidavit with annexures to support his contentions. The prosecution has remained silent. Its silence tips the balance.
  2. The applicant’s argument of abuse is reinforced by the twelve informations filed by the police. Obviously the police investigating officer obediently followed the written instructions of the Attorney General by bringing in the applicant to the police station, going through the motion of caution, made aware of the twelve charges and having him remanded before the deputy registrar. Witnesses interviewed by, and gave written statements to the Public Service Commission investigator, were also talked to and their written statements copied and pasted. When the twelve informations were sworn before the deputy registrar, the police investigating officer knew very well that the charges he laid were not the product of a police investigation, yet he willingly took oath “that he had reasonable cause to suspect and do suspect...”
  3. In addition to the two allegations of altering the invitation letter and travel itinerary, as well as using the altered documents for personal and financial gains, eight other informations were added. Two informations allege he made up the invitation letter and the itinerary and the other two allege he used those two false documents for financial and personal gain. Another information alleges deception by using the same travel itinerary to obtain AUD$3,500. This allegation was not revealed or the subject of the Public Service Commission investigation. If the Attorney General simply reviewed the PSC investigating report, and the police did not investigate, there is simply no evidential basis for this allegation.
  4. A glaring example of abuse is provided by informations 1000/19 and 1002/19. Information 1000/19 alleges knowingly uses the amended travel itinerary whilst information 1002/19 alleges using the altered travel itinerary. Two other informations alluded to in [51] are of the same vein. Information 1003 alleges using the travel itinerary to obtain AUD$3,500 and information 1004 alleges using the same travel itinerary to obtain AUD$794, NZ$994, and US$693.
  5. The time wasting exercise was obviously not for a legitimate or proper purpose. Police should prosecute, not persecute those whom it accuses of crime.
  6. Criminal charges were initiated at the time the applicant, together with other individuals and organisations featured prominently against the proposed Government multi million dollar project. Their protests had gained speed and popularity.

Conclusions.

  1. The inherent power of the Court to stay or dismiss a prosecution for abuse of process was observed recently by Perese CJ in Sione & Paulo v Police.[16] The rationale for the exercise of the Court’s power to protect its own process was explained by Richardson J in the New Zealand Court of Appeal in Moevao v Department of Labour:[17]
  2. The question is not whether the prosecution should have been brought but whether the Court should permit its processes to be employed in a manner which gives rise to unfairness. Obviously the purpose of criminal proceedings, generally, is to hear and determine whether the conduct of the accused constitutes an offence and therefore deserve of punishment. It is not abuse of process if the criminal process is used only for that purpose. Abuse of process occurs when the process of the Court is manipulated for a purpose which in the eye of the law, it is not intended to serve. This is best explained by Richardson J in Moevao v Department of Labour:[18]
  3. The initiation of the criminal charges against the applicant was for an ulterior motive, and if allowed to continue would lead to the misuse of the Court process. It will be inconsistent with the recognised purpose of the administration of criminal justice and will prejudice the integrity of the judicial system. It constitutes an abuse of process.
  4. The twelve informations filed against the applicant are stayed. Prosecution to pay the applicant costs of $1,000.

JUSTICE VAAI

[1]PSC Investigator’s Report, page 14.
[2] Cabinet Directive dated 2/8/2013 noted at page 39 Investigator’s Report, instructed all Ministries that government will no longer fund allowance (DSA, Incidental etc.) to employees on fully funded overseas trips.
[3] PSC Investigator’s Report, page 11.
[4] ibid., page 42.
[5] ibid., page 41. The nominee was an IT employee of a private IT company.
[6] United States v Lovasco, [1977] USSC 172; 431 US 783 (1977).
[7] Paragraph 5b(i) applicant’s affidavit dated 11/02/2022.
[8] ibid., at paragraph 11.
[9] R v O (1999) 1 NZLR 347 at 351.
[10] CT v The Queen (2014) NZSC 155 (30/10/2014) at 32(a).
[11] ibid., at 32.
[12] Public Service Investigation report, page 4.
[13] ibid., page 44.
[14] Lands and Titles Court and Taimalelagi Naotala & Ors v Moananu Fanolua [2020] WSCA 6.
[15] Paragraph [15] above.
[16] Sione & Paulo v Police [2022], Unreported judgment of Perese CJ in the Supreme Court of Samoa, 15 July 2022.
[17] Moevao v Department of Labour (1980) 1 NZLR 464 at 482.
[18] ibid., at 481.

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