IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

WAYNE TUPA’I
Defendant

Counsels: Attorney Generals Office for informant
TK Enari for defendant

Decision: 31 March 2005

RULING OF JUDGE NELSON ON COSTS

This is an application for costs by the defendant consequential upon the dismissal of certain criminal charges brought against him by the informant.

Background:

The court file reveals the history of this matter is as follows: a charge of burglary was filed against the defendant on or about 16th July 2000 and the defendant was remanded in custody on his guilty plea to 04th August 2000 for sentence. On that day, the police advised the defendant had escaped and a warrant was issued for the defendants arrest. There is a dispute as to whether this advice was correct and as to when and why the defendant was apprehended and taken into custody by the Police but that is a matter irrelevant to the present application. If the defendant wishes to pursue that issue further, he should do so by the appropriate proceedings.

What is relevant and clear from the records is that in May, June and July 2001, the defendant was brought back to court on further charges to which he pleaded not guilty. Leave was also granted following application by his counsel to vacate his original guilty pleas entered when he was not legally represented and substitute with not guilty pleas. Several adjournments were granted to defendants counsel for this application as counsel was at various times engaged in Supreme Court trials. All informations against the defendant were eventually consolidated and adjourned to 02nd August 2001 for hearing.

Unfortunately, by the scheduled hearing date the court was engaged in hearing election petitions arising out of the 2001 general elections and as there was only one District Court Judge in office, all District Court matters had to be assigned new hearing dates. This defendants matters were deferred by the Registrar to 04th September 2001 and subsequently 02nd October 2001 to set new hearing dates. On 2nd October 2001 the matter was adjourned by me to 13th February 2002 for hearing and all parties were advised this was a final adjournment as these matters had been too long outstanding.

On 13th February 2002, the informant advised their witnesses had failed to appear presumably in answer to witness summonses and they were not in a position to proceed. As it had been made clear to all the adjournment was a final adjournment, the court accordingly dismissed the charges for lack of evidence. Defence counsel sought costs on the dismissal and he was instructed to file and serve on the informant a written application for same. This he did on 15th February 2002 and on 19th February 2002, I ordered that if the informant wished to be heard they were to file submissions in reply within 14 days thereof.

Subsequently, unsigned and undated submissions were received from the informant under cover of a letter dated 05th April 2002. The Court requested through the Registrar that counsel sign his submissions and that a copy of the Court of Appeal decision cited and relied on by counsel be made available to the court. On 08th May 2002 defendants counsel without invitation filed a reply to the informants submissions. Defence counsel did sign and date his submissions but also failed to make available a copy of a certain Supreme Court decision cited and relied upon in his submissions.

It has long been the practice of the Samoan courts that if counsels cite and rely on the decisions of any court, they should as a matter of courtesy if for no other reason provide a copy of same. In the District Court where there is a substantial workload and limited resources, this practice has a real and practical effect. In-attention to these matters has further delayed rendering of this decision although counsel did respond promptly to a follow-up request from the court. I accept the Registrar may also have overlooked advising counsel of the courts many requests. Nevertheless the point must be stressed and the practice of making available copies of cited decisions reaffirmed. A copy of the relevant Supreme Court Practice Direction on this issue is attached as an appendum to this judgment for ease of reference.

As to the application itself, no objection has been taken by the defendant to the late filing of the informants submissions so I need say nothing further concerning that.

Award of costs in criminal cases:

The defendants application is essentially based on the fact that there have been many callings of these matters before the court and the informant has failed to prosecute its charges with due diligence and without delay. He also says costs have been incurred in preparing for a trial that never eventuated and given the final result, costs should be awarded against the informant.

The history of the matter however indicates that the delays were not solely if at all attributable to a failure by the informant to pursue its case diligently and expeditiously. Indeed, some delays were for the express purpose of accommodating defendants counsel. But the main delay was through no fault of either party. It was occasioned by the fact that at the time there was only one judge appointed and sitting in the District Court and for most of 2001, that judge was required to sit as a member of the Electoral Court hearing petitions arising out of the 2001 general elections. Pursuant to section 111(7) of the Electoral Act 1963, election petitions are by law accorded priority “over all matters before the Court which are not electoral petitions”. The delay in dealing with the defendants matters falls into the category of the “systemic delays caused by the court system” referred to by Justice Doherty on page 3 of his judgment in Police v. Sala Sale an unreported decision of the Supreme Court dated 21st October 2003, a case also concerned with an application for costs following dismissal of criminal charges. The informant cannot and should not be held responsible for the matter not proceeding to hearing during the latter part of 2001.

The only question left therefore is whether costs should be awarded for the informants failure to proceed with trial of these charges on the 13th February 2002. An award of costs in a criminal case is governed by section 35 subsection (2) and sections 167 and 168 of the Criminal Procedure Act 1972 which provide as follows:

“35. Withdrawal of information by informant – (1)……………….. 

(2) On the withdrawal of an information the Court may award to the defendant such costs as it thinks reasonable, and any costs awarded may be recovered pursuant to section 117 of this Act as if the costs were awarded on a conviction”.

“167. Costs – (1) Where the Court convicts a defendant, it may order him to pay to the informant such costs as it thinks just and reasonable for Court fees, witnesses’ and interpreters’ expenses, and solicitors fees.

(2) Where the Court dismisses any information, it may order the informant to pay to the defendant such costs as it thinks just and reasonable for Court fees, witnesses’ and interpreters’ expenses, and solicitors fees.

(3) Any order under subsection (1) or (2) of this section may include such costs as the Court thinks just and reasonable for the Court fees, witnesses’ and interpreters’ expenses, and solicitor’s fees of or in relation to any adjournment or the taking of evidence under section 26 or 28 of this Act.

(4) Where the Court convicts the defendant and the informant has not prepaid any fees of Court, the Court may order the defendant to pay the fees of Court.

(5) Costs allowed under this section shall in no case exceed the amount provided for in any scale prescribed by regulations or rules made under this or any other Act.

(6) Any costs allowed under this section shall be specified in the conviction or order for dismissal, and may be recovered in the same manner as a fine.”

“168. Witnesses’ expenses – (1) The Court may order any party at whose instance a witness appears at the Court to pay the costs and expenses of that witness, not exceeding the amount provided for in any scale prescribed by regulations or rules made under this or any other Act.

(2) Any such order may be enforced in the same manner as a fine.”

As laid down by many of the authorities cited by counsels, the courts discretion to award costs under section 167 (2) is an unfettered and unconfined discretion. However it must be exercised on the basis of what is considered “just and reasonable” in the circumstances of the particular case. Furthermore, the award of costs appears to be limited by section 167 (2) to costs for “court fees, witnesses and interpreters expenses and solicitors fees”; although it may include costs incurred in relation to any adjournment or the taking of evidence on deposition -section 167 (3). For a discussion of the sorts of circumstances where costs would and would not lie, see the Supreme Court judgment in Police v. Liu Lota and Puaa Vaa an unreported decision of Wilson, J dated 17 June 1999 at page 3 onwards; and the subsequent Supreme Court decisions in Police v. Maiava Safue and another (unreported) dated 30 May 2000, Police v. Maiava Naititi (unreported) dated 12 June 2000 and Police v. Sala Sale (supra).

The courts in this jurisdiction have also consistently declined to lay down any firm guidelines for costs awards preferring instead to leave the discretion unrestricted. Thus for example Wilson, J in Police v. Liu Lota at page 4 of his judgment:

“The court has an unfettered (or unconfined) discretion to award costs to a defendant in the circumstances of a withdrawal/dismissal of an information. The discretion is one to be exercised in each case according to its own circumstances. Beyond limiting the power to order such costs as to the Court seems “reasonable” or “just and reasonable”, as the case may be, the sub-sections do not otherwise circumscribe the discretion conferred.”

The learned judge went on to note however that:

“The day may come when an attempt will be made to formulate a principle or a guideline according to which the discretion should be exercised perhaps along the lines of the Australian Law Reform Commission report 1995 or the Costs in Criminal Cases Act 1967 New Zealand.”

See also the Court of Appeal judgment in the Maiava Safue and Maiava Naititi cases on appeal where in an unreported decision dated 18 August 2000 their Lordships at page 8 stated:

“As the appellants did not challenge the amount of costs awarded nor argue that on the merits costs were not warranted, we did not hear submissions on what should be guidelines in Samoa for the award of costs against the informant. We therefore refrain from laying down guidelines such as those in the New Zealand Costs in Criminal Cases Act 1967, section 5 subsection (2). Suffice it to say that costs do not follow the event as is usual in civil cases and that the Court in the exercise of its discretion (fettered only as to the maximum amount for costs) must have regard to all relevant circumstances.”

Along similar lines are the observations of Doherty, J. in the Sala Sale case at page 3:

“There is no fetter on the discretion of the Court. It must determine the matter on what is just and reasonable. That cuts both ways; just and reasonable to both defence and prosecution.”

Clearly the issue of whether or not to award costs must turn on the particular facts and circumstances of each and every case.

Quantum of an award:

These authorities and the wording of the empowering section also make it clear that any award is limited by section 167 subsection (5) to the amount “provided for in any scale prescribed by regulations or rules made under this or any other Act”. There are no scales of costs prescribed under the Criminal Procedure Act 1972 but there are scales prescribed by rules under other statutes (“any other Act”), most notably the District Court Act 1969.

Originally costs and like matters were provided for and governed by the Judicature Ordinance 1961 which set up the three-tier court structure of our jurisdiction: the Magistrates Court (in Part I) the Supreme Court (in Part II) and the Court of Appeal (in Part III). In 1969, the Magistrates Court was hived off and made the subject of separate legislation viz. the Magistrates Courts Act 1969, renamed the District Court Act 1969 by the District Courts Amendment Act 1992. Rules governing the scale of fees and costs payable in the various courts were also promulgated post 1961 under the Judicature Ordinance: for the Court of Appeal in 1964 with the Court of Appeal Rules 1961 Amendment No. , for the Supreme Court by the Supreme Court (Fees and Costs) Rules 1971 (as amended by the Supreme Court (Fees and Costs) Amendment Rules 1988), and for the District Court by the Magistrates Court Rules 1971.

It is apparent from a comparison of the Supreme Court Rules 1971 and the District Court Rules 1971 that substantial commonality exists between the two sets of Rules, no more evidenced than by the fact that both Rules were brought into force on the same day. In addition, identical provisions can be found in both Rules. For example rule 5 of the Supreme Court Rules and rule 31 of the District Court Rules. Both Rules also draw heavily from the same source being equivalent New Zealand rules of practice and procedure as contained in their Code of Civil Procedure and statutory rules and regulations. But there are areas of distinct difference and contrast between the Rules particularly in relation to their respective Second Schedules which contain the scales of costs. These differences necessarily reflect the disparate work and nature of the jurisdiction of the two courts.

The matter of costs is governed by rule 31 of the District Court Rules which provides:

“31. 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 or smaller 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.”

Insofar as rule 31 purports to confer a jurisdiction to award costs in excess of the scale set out in the Second Schedule, I agree with the conclusion of Wilson, J. in Maiava Safue page 7, who when considering the Supreme Court equivalent of rule 31 said:

“To the extent that there is inconsistency between rule 5 (of the Supreme Court Rules) and subsection (5) of section 5 (this must be a typographical error as clearly the context indicates the learned judge was referring to subsection (5) of section 167 and there being no subsection (5) of section 5 of the Criminal Procedure Act), the rule is ultra vires. The limit or ceiling upon the costs that may be awarded is unaffected by those parts of the rule which purport to provide the court with a discretion to fix a sum greater than the sum set out in the scale.”

As noted by the learned justice in his subsequent decision in Maiava Naititi at page 2–

“In the case of Police v Maiava Safue and another an unreported decision of this court dated 30th May 2000 I gave consideration to the statutory power to award costs in criminal proceedings. I held that the words “dismisses any information” mean and include the words “acquits a defendant”, and I decided that there is a discretionary power to award costs to a defendant when criminal proceedings are terminated in his favour by way of verdicts of acquittal.

I went on to consider the question of costs that may be awarded under section 8 of the Criminal Procedure Act (obviously another misprint as section 8 deals with withdrawal of a warrant of arrest) and the Supreme Court (Fees and Costs) Rules, and I held that sub-section (5) of section 167 of the Act places a limit or ceiling upon the costs that may be awarded.

I see no reason to depart from the conclusion that I reached in that case. The same principles as arose in that case arise in the instant case. I would simply add that I do not interpret the words “shall in no case exceed the amount provided for in the scale…..” as being directory; those words are, in my judgment, mandatory.”

This approach was accepted on appeal where the Court of Appeal in the passage quoted earlier stated “that the court in the exercise of its discretion (fettered only as to the maximum amount for costs) must have regard to all relevant circumstances”. The quantum of costs awardable appears accordingly to be limited to the maximums laid down by the Second Schedule to the 1971 District Court Rules.

The decision:

In a nutshell the question requiring determination is whether it is just and reasonable considering all the circumstances of the case that costs assessed pursuant to the Second Schedule of the District Court Rules 1971 should be awarded against the informant for its failure to proceed to trial on 13th February 2002? As noted in the case law unlike civil proceedings costs in criminal cases do not follow the event. I cannot agree with defendants counsel that there exists any legal presumption that where a defendant is acquitted he should expect some costs as a matter of course. The legal position appears instead to be that every case is to be determined in accordance with its own unique facts.

Neither should it be overlooked in assessing costs that the event we are dealing with here is not a full hearing such as occurred in the two Maiava cases cited supra. Furthermore, to again quote Wilson J in the Liu Lota case page 7:

“It should not be forgotten that the purpose of an award for costs such as may be ordered pursuant to section 35 (2) and section 167 (2) of the Criminal Procedure Act is to compensate the successful party. Such costs are not awarded to penalise the unsuccessful party.”

Taking all matters into consideration, I am of the view that it is just and reasonable in this case that the defendant be awarded some costs. I am not unsympathetic to the difficulties the informant always faces in securing witnesses attendance for court cases. But as constantly stated to prosecutors, electing to lay and pursue a criminal charge against any person brings with it a large measure of responsibility and requires professionalism of the highest order. It had been made clear to both sides the adjournment to 13th February 2002 was a final adjournment as it was in the interests of justice that the matter be finally disposed of. The informant as well as the defence had from 2nd October 2001 to 13th February 2002 or a period of over four months to adequately prepare for trial. The failure to proceed can only be laid at the doorstep of the informant as the defendant and his counsel appeared and were ready to play their roles. According to counsels submissions defence witnesses also appeared and were ready to sing their supporting song.

In their submissions both counsels have invited the court to also take into consideration such factors as the availability and adequacy of certain defences to the charges, an evaluation of the strength of the Police evidence, whether there was sufficient evidence to warrant charges in the first place and such like. The unsigned submission of the informant also refers to factors similar to what is contained in section 5 of the Costs in Criminal Cases Act 1967 (NZ) an Act of the New Zealand legislature. In the circumstances of this matter however, the court is not in a position to hold without hearing any evidence whether such factors were or were not present or whether they did or did not and if so how much of a part did they play in the proceedings. I am certainly not prepared to draw conclusions or inferences based on facts advanced in submissions especially anonymous ones. No doubt the position would have been different if the matter had proceeded to a full or some form of hearing.

In fixing the quantum of costs, the defendant submits this court should follow the approach and categories used by the Supreme Court in the afore-referenced Maiava Safue and Maiava Naititi cases. The difficulty with that submission (and I have not overlooked the recent decision of my brother judge in Police v Toetu Pau Faitala (unreported) dated 22nd October 2004) is those were decisions of the Supreme Court and it was entirely appropriate that Supreme Court scales be used. For District Court cases the only applicable scale is the Second Schedule to the District Court Rules. An examination of the Second Schedule however reveals it is designed to cater mainly if not exclusively for civil proceedings. Unlike its Supreme Court counterpart, it cannot readily be modified to suit a criminal costs award and for the moment, the Second Schedule appears to be all this court has. The amounts payable thereunder are best described as pitiful but if the defendant wishes to pursue this matter further, he must file and serve within 14 days hereof written submissions as to what costs are claimable and under what part or parts of the Second Schedule an award may be made. If indeed there is some other basis upon which costs can be assessed and awarded in this court I would also welcome counsels' submissions on same.

It is abundantly clear from this exercise that there is an urgent need to revise and update the District Court Rules 1971 in particular both the First and Second Schedules thereto. Similar concerns were expressed by the Supreme Court in the Maiava Safue decision on page 7 thereof in relation to the Supreme Court Rules. These concerns were referred to by the Court of Appeal at page 5 of its judgment in that case where it properly noted such matters rested within the purview of the State. Five years have elapsed since such concerns were raised in these our highest courts and it is disconcerting to say the least that the relevant authorities have seen fit to take no action. The District Court must also add its voice to the growing clamour and call for urgent action to bring these rules and scales into the 21st century. Until that is done a clear inequity will continue.

The court thanks counsel for their assistances in this matter notwithstanding that one of them was at one stage temporarily pendicapped.

DISTRICT COURT JUDGE