IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of the Judicature Ordinance 1961.

AND

IN THE MATTER of an appeal pursuant to section 164H of the Criminal Procedure Act 1972

BETWEEN

JOSEPH LAFAELE FAULKNER,
of Vaitele-uta.
Appellant

AND

THE POLICE
Respondent

Coram: The Honourable Justice Ellis
The Honourable Justice Gallen
The Honourable Justice Salmon

Hearing: 20 April 2006

Counsel: Mr. R S To’ailoa for the Appellant
Miss P Chang for the Respondent

Judgment: 26 April 2006

JUDGMENT OF THE COURT

Introduction

[1].	This is a motion for leave to appeal and extension of time to appeal. No objection was taken to the application for leave or the extension of time. In view of the importance of the matters raised by the Appeal both applications are granted and the appeal will be considered on its merits.

Background

[2].	In April 2003 the appellant was charged with possession of methamphetamine and with possession of two unlawful firearms. In February 2005 the police filed seven new informations. One was later withdrawn, the others became the subject of two judgments by the Chief Justice on applications to dismiss. The first judgment dealt with two further charges under the Narcotics Acts 1967 relating to the possession of pipes for the purpose of administering prohibited narcotics. Those additional charges were dismissed.

[3].	The second judgment dealt with four further charges under the Arms Ordinance 1960. Three of those charges related to possession of ammunition and the fourth to possession of parts of an unlawful weapon. The Chief Justice refused to dismiss those charges. The second judgment also dealt with an objection to the admission of further witness statements. The Court refused to uphold that objection.

[4].	The appellant has appealed against the second judgment on the following grounds:

(a)	THAT the trial judge had erred in law in applying the judgments of the European Court of Human Rights in that the cases he referred to do not deal with the issue relating to the 'promptly' requirement under Article 9(4) (a) of the Constitution which was the main ground relied upon by the Appellant.

(b)	THAT the trial judge erred in law in applying s.11(a) of the Canadian Charter of Rights, which is differently worded from our Article 9(4)(a).

(c)	THAT the issue of informing a person charged 'promptly' had been dealt with by the Court of Appeal in Police v Danny Fiatagata and the trial judge had erred in law in not following Danny Fiatagata.

(d)	THAT the Trial Judge’s earlier ruling of 14 March 2005 followed Danny Fiatagata but a few weeks later, reversed his position, resulting in conflicting decisions of the Court.

(e)	THAT trial judge’s reasoning that the general right under Article 9(1) must take precedence over the specific right to be 'informed promptly' under Article 9(4) (a) is flawed and not legally correct.

(f)	THAT trial judge erred in his conclusion that there cannot be a violation of Article 9(4) (a) unless has been a trial. Such reasoning is flawed as Article 9(4) (a) refers specifically to pre-trial matters.

(g)	THE trial judge erred in his reasoning that the only avenue for the accused to take to counter any non-compliance with s.89(1) of the Criminal Procedure Act 1972, is to seek an adjournment. Such a reasoning would erode the specific requirements of s.89(1) (as well as the specific rights provisions under Article 9) and may place the Court in an awkward situation of not being able to secure to an accused the enjoyment of his rights which is the paramount duty of the Court. 

[5].	To fully understand the grounds of appeal some further factual information is necessary. The ammunition and the firearm parts were all found together with two firearms when the Police searched the appellant’s house on 17 April 2003. There can be no doubt that the police were in possession of all the information they needed to lay charges in respect of the ammunition and firearm parts on the 22 April when they filed the informations charging the appellant with possession of the two unlicensed firearms. The only explanation which Miss Chang for the Attorney General could give to explain the 22 month delay until the additional charges were brought was that the police did not think of bringing them earlier. Good practice would suggest that the charges should be reviewed by the prosecution at a much earlier stage than they were in this case.

[6].	The original charges, including the methamphetamine one, were originally set down for hearing in the week commencing 21 July 2003. There were a number of adjournments leading to a hearing scheduled for the week of 14 February 2005. There was no criticism of the police in relation to these delays nor was any prejudice claimed by the Appellant.

[7]. 	On the 18 February the appellant filed his motion to dismiss the additional informations. The trial was adjourned. In fact it would have been adjourned for another reason. Counsel for the accused had previously agreed to the production of a report by an ESR Scientist from New Zealand relating to the Narcotics Act charges without bringing the author to Samoa. Counsel withdrew consent to that course being followed.

[8].	The appellant does not claim any actual prejudice arising from the delays associated with bringing these matters to trial.

[9].	The appellant’s principal complaint in the Supreme Court and in this Court was that the additional informations infringed his rights under Article 9(4) (a) of the Constitution of the Independent State of Samoa which provides:

Every person charged with an offence has the following minimum rights:

(a)	To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

The Chief Justice concluded after an analysis of decisions relating to the almost identical provisions in the European Convention on Human Rights and a consideration of similar provisions in the Canadian Charter of Rights that there had been no infringement of the appellant’s rights.

The appellant’s submissions on appeal

[10].	Mr. To’ailoa for the appellant submitted that the Chief Justice was bound to follow the decision of the Court in Danny Fiatagata v Police (unreported 21 March 1994). He submitted too that the decision under appeal was inconsistent with the Chief Justice’s earlier decision relating to the additional Narcotics Act charges, where he had considered himself bound by the decision in Fiatagata. 

[11].	In Fiatagata charges of causing actual bodily harm were replaced some 13 months later with charges of causing grievous bodily harm. These charges carried much heavier maximum penalties. This Court said at p4 of that decision:

The defendant is entitled to be informed in detail of the nature and cause of the accusation against him. These words must extend to the alleged gravity of his conduct. Once the prosecution has specified the gravity, as was done here by the reference to actual bodily harm, substituted charges are no doubt still possible, but in our view it would violate the spirit of Art. 9(4)(a) and be contrary to the generous and purposive approach to allow a substitution that could not fairly be described as prompt.

Mr. To’ailoa submits that the present case is identical in all material respects with Fiatagata so that the same outcome should have resulted. Counsel also claims that the late filing of the additional informations constituted an abuse of process.

Submissions for the Attorney General

[12].	The Attorney General submitted that Fiatagata could be distinguished for a number of reasons the most important being that the decision in that case concerned a substituted charge rather than additional charges as in the present case. She submitted that in the light of the European jurisprudence Fiatagata might need to be revisited.

Discussion

[13].	 We have concluded that for the reasons set out at length and, with respect, compellingly in the Chief Justice’s decision this appeal should be dismissed. It would be superfluous for us to repeat the reasoning in that decision, suffice it to say that we adopt the reasoning and the conclusions he reached. In particular we endorse his conclusion that the specific right in article 9(4) (a) is a particular aspect of the more general right to a fair trial Article 9(1) and that its scope must be assessed in the light of that more general right.

[14].	We agree too with the conclusion that because Article 9(4) refers to 'minimum rights' the right to a fair trial may involve considerations other than those specific rights listed in Article 9(4) (a) – (e)

[15].	 We agree with the Attorney General that Fiatagata may be distinguished. The Court’s conclusion was based upon its view that the alleged gravity of the defendant’s conduct was an integral part of the nature and cause of the complaint against him. The present case is quite different – here new charges are in issue relying on different facts to those which support the original charges.

[16]	The European decisions to which the Chief Justice refers were all decided well after the decision in Fiatagata. It may well be that the decision in Fiatagata will require reconsideration in the light of those cases. In particular there was no consideration in that case of the impact of the amended charge on the general question of a right to a fair trial. However, it is not necessary in the present case to reach any conclusion as to the need to review the earlier decision.

[17]	Although not specifically raised in his written submission Mr To’ailoa advised the Court that he maintains his contention that the new charges should be dismissed because they constitute an abuse of process. Again we find ourselves in total agreement with the Chief Justice and for the reasons outlined by him. Abuse of process is a broader concept than the rights given and the appellant is of course entitled to rely on either the Constitution rights or abuse of process or both. 

[18]	The conclusions of the Chief Justice are in general accordance with those of the House of Lords in England. In Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 the Court was considering the right under the European Convention to a hearing within a reasonable time but the decision has application to the situation in this case as well. At paragraphs 24 & 25 Lord Bingham of Cornwall said:

If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail.

It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in a continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time. (Emphasis added)

The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.

Determination

[19]	For the above reasons the appeal is dismissed.

Honourable Justice Ellis
Honourable Justice Gallen
Honourable Justice Salmon

Solicitors

Toa Law for the Appellant
Attorney General’s Office, Apia, for the Respondent