IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

STEPHEN GIBSON
of Vaoala and Melbourne Australia.
Defendant

Counsels:	R. Schuster for the Police
S. Toailoa for the Defendant

Hearing:	15th, 29th November & 13th December 2005
Decision:	22nd December 2005.

RULING OF VAAI, DCJ.

Background:

On the 12th of July 2005, the Defendant pleaded not guilty to 17 counts of theft through his then Counsel Mrs R. Drake.

All 17 charges were adjourned to the 17th – 21st October 2005 for hearing. The defendant was granted bail on the conditions that he surrenders his Travel Documents to the Registrar, and to report to the Police every Friday. On the 17th October 2005, (the date the trial was supposed to start):

- Mrs Drake sought and was granted leave to withdraw as Counsel for the Defendant.
- Mr Toailoa appeared as the new lawyer for the defendant and he filed a motion to quash all the informations (but without an affidavit to support his motion).
- Mr Schuster for the Prosecution also advised the court of its intention to amend the informations.

All charges were adjourned to the 25th of October 2005 for Mr Toailoa to file an Affidavit in support of the motion to quash, and the prosecution to file the amendments in writing to the 17 informations.

On the 25th October 2005, Mr Toailoa objected to the prosecution’s application to amend the charges and the prosecution were further required to file an affidavit in support of its application to amend the charges, setting out the grounds for it by 1st November 2005.

On the 1st of November 2005, the parties were required to file written submissions by 14th November 2005 and the submissions to be heard on 15th November 2005.

On the 15th November 2005, the prosecution’s written submissions had been filed, but these matters were further adjourned to the 29th November 2005 for hearing at 1:00pm, on Defence Counsel’s request to complete his written submissions.

On the 29th November 2005 at 1:00pm, submissions were heard and the court informed Counsel of the need for further supplementary submissions on the question of jurisdiction (i.e.) whether it was proper for the Court to peruse the witnesses’ statements before the trial proper. It was then further adjourned to 13th December 2005 at 9:00am for the completion of the oral submissions. 

On the 13th December 2005, supplementary written submissions were received from the defendant only, and oral submissions by Counsel were completed. Afterwards, I ruled as follows:

(i)	Informations D.1304/05, 1305/05, 1306/05, 1307/05, 1311/05 and 1314/05 were dismissed (after the prosecution sought their withdrawal) on the basis that according to Sergeant Paipai’s affidavit in support of the prosecution’s application to amend the charges, the allegations in the above 6 informations were not supported by the evidence, after the evidence had been reviewed by Sergeant Paipai. 
(ii)	The decision on the following remaining eleven (11) charges # D.1300/05, 1301/05, 1302/05, 1303/05, 1306/05, 1308/05, 1309/05, 1310/05, 1312/05, 1313/05, and 1315/05 all as amended, was reserved to the 22nd December 2005 for me to rule on Mr Toailoa’s motion to quash.
(iii)	The issue of costs raised by Mr Toailoa on the six (6) informations dismissed was also reserved to be dealt with together with the other remaining charges.

Submissions:

Defence Counsel’s motion to quash the remaining 11 charges against the defendant is based on the following grounds:

(i)	The informations do not state in substance a crime(s).
(ii)	There does not exist a reasonable cause for the Police in bringing the charges pursuant to S11 Criminal Procedure Act (CPA) 1972. If established, this would lead to an Abuse of the Courts process.
(iii)	There is no realistic prospect of a conviction on any of the remaining charges and if established, would lead to an abuse of the courts process.

The Defendant’s main argument is that the Police have no reasonable cause to bring the remaining charges. Hence, to proceed with the 11 remaining charges may be an abuse of process. In assessing whether or not the Police have reasonable cause to lay the charges; Mr Toailoa submitted that this court has a common law jurisdiction to peruse the witnesses’ statements and determine whether there is a realistic prospect of a conviction. The criteria he suggested for determining reasonable cause is that recommended by the English Code of Crown Prosecutors; which is, "the sufficiency of the evidence" to support all the ingredients of the offence charged.

Alternatively, even if it is found that the common law jurisdiction does not extend as far as argued by the defendant, S104 (2) CPA still empowers this Court with a discretion to view the prosecution witnesses’ statements after proceedings have commenced and if appropriate, discharge the defendant without trial.

Central to Mr Toailoa’s submission lies the question of whether in considering the sufficiency of the police evidence in support of the remaining 11 charges, is it appropriate for the court in exercising it’s discretion to discharge, to peruse the witnesses’ statements as a pre-trial procedure, without hearing the witnesses? 

Mr Schuster disputes these arguments. Firstly, he argued that the Defence motion to quash and/or stay based on the absence of reasonable cause to lay the informations, is essentially an evidential matter requiring the witnesses to give evidence on oath in a trial proper. He submitted that the decision to charge the defendant is one that is properly vested in the Executive branch of the state and not the Courts. He argued further that there is no risk of a miscarriage of justice here because the charges are laid based on the evidence available to the Police. Any risk of a miscarriage of justice is removed by the review of the evidence since the charges were initially laid, the subsequent amendments to the remaining 11 charges and dismissal of the six (6) charges on 13th December 2005.

Secondly he submitted that S104 (2) of the CPA is not akin to the Preliminary Hearing procedure in other jurisdictions, as argued by the defendant. There is no similar procedure in our jurisdiction to the Preliminary hearings in NZ for example, which is based on statute.

Mr Schuster strongly objected to the procedure suggested by the Defence. He said the proper and legally accepted procedure if insufficiency of evidence is the basis for discharging the defendant from the 11 remaining charges, is for Defence Counsel to make a no case to answer application after the witnesses have been heard.

He relied on Moevao v Dept of Labour, (1980) 1 NZLR 464 where the unanimous decision of the NZ Court of Appeal as quoted in the headnote at page 464 states:

"The Magistrate had no jurisdiction during the hearing of a criminal charge to examine the exercise of discretion by the Executive to bring the prosecution. In its criminal jurisdiction in relation to summary offences, the concern of the Magistrate’s Court was with the hearing of the charge contained in the information. It was not entitled in its criminal jurisdiction to assume a civil jurisdiction to review the exercise of the discretion to prosecute" (emphasis mine)

In Moevao (a case where the defendant was prosecuted for remaining in NZ after the expiry of his temporary permit), the defendant there argued that the Magistrate during the hearing of a criminal charge, had a jurisdiction to examine the discretion by the Executive (Minister) to bring the prosecution, whenever the Defence alleges unfairness and improper motivation as the reason for the charges. In agreeing with Richardson J, Woodhouse J at p 473 held that:

"this kind of review…." (examination by the magistrate of the minister’s discretion to prosecute) "…could not be undertaken by the Magistrate when exercising his criminal jurisdiction provided by the Summary Proceedings Act 1957. During the hearing of the charge brought against Moevao, the Magistrate was asked to deal with the matter as an issue of administrative law. That, the Magistrate could not do." (emphasis mine) 

The issue of abuse of process arose in that case during the trial. The Magistrate’s response to the Appellant’s lawyer on the discretion to prosecute (as cited by Woodhouse J. at p 472 of his decision) is as follows:

"I certainly cannot go as far as Mr Knowles would like me to and say that this was in any way an improper prosecution. It is unfortunate that the records were incomplete but it is a matter of discretion for the Minister through his Department and it is certainly not for me to say it has been exercised improperly."

Abuse of Process – Inherent Jurisdiction

It is not disputed that the District Court of Samoa has a jurisdiction to quash a charge or stay proceedings arising from it, if it is shown that the continuation of any criminal proceedings will lead to an abuse of its processes, as a Court of Law. (see Police v K Duffy).

To determine whether or not the continuation of the current 11 charges against Mr Gibson will lead to an abuse of this Court’s process, it is suggested by the defendant it is necessary for me to view the witnesses’ statements. 

The issue is, is it proper for me to peruse the witnesses’ statements before the trial, and on that basis alone, determine whether the Police have reasonable grounds to bring the remaining 11 charges?

With respect, I think not. I cannot accede to Mr Toailoa’s argument that this Court has a common law jurisdiction to view the witnesses’ statements in the context of a pre-trial procedure, to assess the sufficiency or otherwise of the evidence in order to determine whether laying the 11 remaining charges will lead to an abuse of process. I agree with Mr Schuster that the determination of whether there is an abuse of process based on the lack of reasonable cause by the Police in laying the 11 remaining charges, is procedurally a question of evidence in the usual way and in a trial proper.

My understanding of the authorities in this difficult area of the abuse of the Court’s processes, leads me to the view that for me to peruse the witnesses’ statements before the trial proper and without hearing the witnesses’ evidence in the normal trial process, would not only be incorrect from an evidential point of view procedurally, but also unfair from a natural justice perspective. 

Furthermore, it would also lead to an extension of this Court’s criminal jurisdiction into the Executive Branch’s administrative processes, in the particular circumstances of this case where I find no prima facie evidence of unfairness to the defendant or any risk of a miscarriage of justice if the remaining 11 charges proceed to trial. In my view, the proper procedure in the context of an abuse of process as suggested here based on absence of reasonable cause, is a no case to answer submission after the Prosecution evidence has been heard in a normal trial process.

Section 104 (2) Criminal Procedure Act (CPA) 1972

I now come to the S104 (2) submission by the defendant.

S.104 (2) CPA provides:

Where any proceedings have been commenced under section 10 of this Act, the Judge, Magistrate or Fa’amasino Fesoasoani may, in his discretion, after perusal of the statements of the witnesses for the prosecution and any evidence taken under sections 26 or 28 of this Act, and any statement made under section 27 of this Act, and any depositions, direct that the defendant be discharged without trial.

S.104 (5) CPA further provides:

A discharge under this section shall be deemed to be an acquittal.

The difficulty I faced with this submission was due to neither Counsel being able to provide any relevant authorities which could provide guidance not only in the interpretation of the S.104 (2) provision, but more importantly on the procedure for the Court to follow if the discretion provided in the section is to be exercised, as well as when it may be exercised.

The question posed in this case by the S.104 (2) argument is: Does it allow this Court to consider the sufficiency of the Police evidence in the context of a preliminary hearing as opposed to a trial proper?

Before answering that question, Section 347 of the NZ Crimes Act 1961 headed "Power to discharge accused", is similar to our S.104 CPA 1972.

S 347 (2) of the NZ Crimes Act 1961 provides:

Where an indictment is [filed] by the Attorney-General, or by any one with the consent of the Attorney-General, under subsection (3) of section 345 of this Act, the Judge may in his discretion, after perusal of the statements of the witnesses for the prosecution, or after hearing those witnesses, direct that the accused shall not be arraigned on the indictment, and direct that he be discharged. 

S 347 (4) also provides:

A discharge under this section shall be deemed to be an acquittal. 

I must say I cannot agree with Mr Toailoa’s submission that the legislative intention in the exercise of the discretion to discharge a defendant under our S104 (2) is that which is akin to the NZ Preliminary hearing procedure. In Flyger (2001) 2 NZLR 721 (CA) cited in Garrow and Turkingtons Criminal Law Issue # 64 at page 605/1, the NZ Court of Appeal had this to say about a S347 Crimes Act 1961 Application:

"We consider that the correct judicial approach to an application pursuant to s.347 based on alleged insufficiency of evidence is the same as dealing with an application of no case. The principle of no prima facie case, or no case to answer, is founded in common law.. It is not displaced by s 347 of the Crimes Act but is incorporated in it where the submission is based on alleged inadequacy of evidence." (emphasis mine)

Even though S347(2) NZ Crimes Act and S104(2) of our CPAct are not literally identical in wording, the analogy I draw from Flyger is that a S104(2) application to discharge a defendant based on an alleged insufficiency of evidence, may properly be exercised, only after hearing the evidence in open court, in an approach similar to a no case to answer application.

In addition, I take the view that the procedure for an application under our S104 (2) CPA properly requires the hearing of evidence in the normal way, because a discharge under S 104 (2), is deemed as an acquittal. 
Whilst a literal interpretation of S.104 (2) CPA may arguably support a legislative intention as suggested by Mr Toailoa, I am also convinced that interpreting the same subsection in the context of S104(5) of the CPA 1972 equally supports an intention to discharge (or acquit), only after hearing the prosecution evidence in a manner similar to a no case to answer procedure, and not before.

A discharge under S 104 (2) CPA based on the insufficiency of the evidence (which is really what the defendant here is urging me to do) is not legally proper, if it is arrived at without having heard the evidence in open Court in the normal way.

In this case, I have not found any evidence thus far to suggest that the remaining eleven (11) charges against the Defendant in this case as laid and if they proceeded to trial, would lead to an unfair treatment of him or a miscarriage of justice. Nor have I found any evidence to support the submission that to allow the proceedings to go to trial on the eleven (11) remaining informations as amended, would lead to an abuse of this Court’s processes.

There is furthermore no evidence here to warrant the exercise of the judicial discretion under S104 (2) CPA to discharge the defendant without first hearing the evidence in open court to determine its sufficiency, or otherwise.

It follows that I do not therefore consider it proper for me in exercise of the S104 (2) discretion to peruse the witnesses’ statements in the manner suggested by Mr Toailoa to determine the sufficiency of the police evidence in the remaining charges. Since an abuse of process by the Police has also not been established, the motion to quash the remaining 11 charges and/or to stay the proceedings against the defendant, is refused.

The defendant is further remanded on bail to 22nd – 26th May 2006 for hearing of the remaining charges. Bail conditions remain.

DISTRICT COURT JUDGE