IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MAIAVA SAFUE SIAU
aka SAFUE TITO aka SAFUE SIAU TITO (m)
of Salani & Utulaelae Falealili and
TULAGAMUA MAIAVA SAFUE
of Utulaelae Falealili
Defendants

Counsel: Mr G. Latu for the Prosecution
Mr S. Toailoa for the Defendants

Date of Hearing: 9, 10, 11, 12, 13, 16, 17, 18, 19, 30, 31 August 1999
1, 2, 5, 6 September 1999
Date of Ruling: 30 May 2000

REASONS FOR A DECISION (ON A QUESTION OF COSTS)
OF WILSON J.

THE TWO DEFENDANTS ACQUITTED OF THE CHARGES 
AFTER ASSESSOR TRIAL

The defendant Maiava Safue was charged with ‘attempted murder’. The defendant Tulagamua Maiava Safue, the wife of Maiava Safue, was charged with ‘having formed a common intention to commit the crime of attempted murder, assisting in such crime’. Each defendant pleaded not guilty. Their 15-day joint assessor trial concluded with each defendant being found not guilty of the crime which each faced; both defendants were then “acquitted” (pursuant to section 100 of the Criminal Procedure Act 1972 as amended) and discharged.

DEFENDANTS SEEK COSTS ORDER AGAINST PROSECUTION

Following that “acquittal”, application was made on behalf of both defendants for an order awarding them costs pursuant to section 167 (2) of the Criminal Procedure Act.

THE STATUTORY POWER TO AWARD COSTS IN CRIMINAL PROCEEDINGS

The power to award costs in criminal proceedings is conferred by sections 35(2) and 167 of the Criminal Procedure Act.

Section 35(2) provides:

“35	Withdrawal of information by informant -

(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.”

Section 167 provides:

“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 solicitor’s 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 solicitor’s 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 and 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. 

The Court has an unfettered (or unconfined) discretion to award costs to a defendant in the circumstances of a withdrawal of an information.

The Court has a fettered (or confined) discretion to award costs to a defendant in the circumstances of a dismissal of an information (see sub-section (5) of section 167).

THE MEANING OF ‘DISMISSES ANY INFORMATION’

The question arises for my determination as to whether the words “dismisses any information” mean and include the words “acquits a defendant.” That question may also be expressed in terms of whether the word “dismisses” is to be interpreted literally or widely. Prima facie the word “dismisses” would appear to mean what it says and only include those situations in which the Court has expressly “dismissed” the information but not include those situations in which the defendant has been “acquitted” and discharged or in which the information has been quashed, struck out, or made the subject of a stay order or the like termination of the proceedings.

The general rule of construction which applies in a situation like this is to be found in the Acts Interpretation Act 1974.

Section 5(i) of that Act provides:

“5.	General rules of construction -

to (h) ………..

(i)	Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit;

to (k) …………..”

Applying that statutory rule of construction, the answer to the question arising here is immediately apparent. The words “dismisses any information” shall receive “such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object” of the Criminal Procedure Act and of “the provision” as to costs (section 167) “according to its true intent, meaning, and spirit.”

The legislative intent behind the enactment of section 35 is to provide a defendant who has secured the withdrawal of an information with an opportunity to seek an award of costs in his favour. Likewise, the legislative intent behind the enactment of section 167 is to provide the prosecution, after having obtained a conviction, with an opportunity to seek an award of costs in its favour against the defendant [section 167(1] and to provide the defendant, after the dismissal of the information or termination of the proceedings in his favour, with an opportunity to seek an award of costs in his favour against the prosecution (the informant) [section 167(2)].

The legislature must have contemplated that a dismissal of the information would occur during or at the end of a trial and would not be restricted to technical or procedural dismissals, for otherwise there would have been no need to include a discretionary power for the Court to include in a costs order inter alia “witnesses’ and interpreters’ expenses”, which implies that witnesses have been called or summoned and that their evidence has been given or interpreted and, therefore, implies that a trial or part thereof has taken place.

To construe the words “dismisses any information” literally and narrowly would involve reaching the conclusion that Parliament, having intended that a defendant who has secured the termination of criminal proceedings against him by way of withdrawal of the information by the informant should not be deprived of an opportunity to seek an order for costs, intended that a defendant who has secured the termination of criminal proceedings against him, whether by way of acquittal of the charge or by way of quashing the information or by way of the striking out of the information or by way of a stay of proceedings or by any method of termination other than “dismissal”, should be deprived of an opportunity to seek an order for costs. Such would not, in my judgment, represent a fair or just outcome of this exercise in statutory interpretation.

In reaching this conclusion as to the meaning of “dismisses”, I am content to follow the persuasive decision of the King’s Bench Division of the High Court of Justice in England in Rex v Essex Justices; Ex parte Churchill (1933) 148 LT 499 in which Avery J held (at p.499) that the word “dismisses” in its literal or “strict technical sense (is not) its proper meaning”.

Mr Latu argued strongly that, if the legislature had been minded to include the notion of acquittal when the word “dismisses" was used, then the words "or the defendant is acquitted" would have been added. However, that begs the question of how wide a construction and interpretation is to be given to the word “dismisses”, and the further question as to whether “dismisses” means and includes “quashes”, “strikes out” and “stays”. I think that “dismisses” is an all-embracing word which means and includes all these well-recognised ways by which criminal proceedings may be terminated in favour of a defendant.

For all these reasons I consider that the defendants are entitled to an award of costs in their favour.

THE QUANTUM OF COSTS UNDER SECTION 5 OF THE CRIMINAL PROCEDURE ACT AND THE SUPREME COURT (FEES AND COSTS) RULES

The defendants have sought an order by way of costs in the sum of $55,660.00, which, it is assumed, represents the actual ‘solicitor and client’ costs of their defence, plus fees and allowances etc. I am not at all surprised that those actual costs are considerably more than a few thousand tala, bearing in mind the changes in the value of money (and inflation) in the period between 1971 [when the Supreme Court (Fees and Costs) Rules 1971 were made] and the present date.

The defendants’ claim for costs was obviously made upon the basis that there is no limitation or ceiling on the costs that may be awarded.

Sub-section (5) of section 167 of the Criminal Procedure Act 1972 places a limit or ceiling upon the costs that may be awarded and, to that extent, places a fetter upon the Court’s discretion. It provides:

“(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.”

It is a matter of some concern that the Supreme Court (Fees and Costs) Rules, which were made in 1971, do not appear to have been amended (as to the quantum of costs that may be awarded) since. It is recommended that a review be undertaken for the purpose of ensuring that awards of costs more closely approximate actual costs.

No submissions were made to me on the subject of what costs are allowed under the Supreme Court (Fees and Costs) Rules 1971 as amended.

Notwithstanding the absence of the assistance with which counsel might have provided me, I attempt to apply those Rules to the instant case.

Rule 5 provides:

“5. 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 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.”

To the extent that there is inconsistency between rule 5 and sub-section (5) of section 5, 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.”

I would allow the following costs according to the scale of costs set out in the Second Schedule:

5.	On a dismissal of action 						 4.00
8.	Preparing for trial-certified for having regard to the importance
of the case and the time reasonably spent in preparation, not
exceeding three times $90.00					 	 270.00
9.	Trial or hearing of an action, up to $2,000.00			 2,000.00
11.	Second and each succeeding date of hearing - certified for
15 day trial - 14 times $60.00						 840.00
29.	Witnesses’ fees paid 							1,020.00
Allowances paid							 340.00
Travelling expenses paid - as ordered					 420.00
30.	Costs to be fixed under the head for an “amount 
exceeding $5,000.00”
31.	Certified for the whole of the costs of the action 
(i.e. costs not limited to $1,000.00)						  _________

TOTAL  $4,894.00

I fix the costs of the defendants to be paid by the Prosecution at $4,894.00.

JUSTICE WILSON