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Teo v Attorney-General [2001] WSSC 25 (4 September 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

PURSUANT to Article 73(2) of
the Constitution of the Independent State of Samoa.

IN THE MATTER of an application by the Attorney-General
for an order under Article 41(2) to permanently stay proceedings.

IN THE MATTER of Information filed pursuant to
sections 96(3) and 97(2) of the Electoral Act 1963.

BETWEEN

AII TAITO GALU TEO
of Samatau, Matai.
Informant

AND

THE ATTORNEY GENERAL
Respondent

AND

MISA TELEFONI RETZLAFF
of Puipaa & Falelatai,
Honourable Minister of Finance
and Deputy Prime Minister.
Defendant

Counsel: Attorney-General BP Heather-Latu and R Schuster for the Attorney-General
AS Epati for the informant
Defendant in person

Hearing: 4 September 2001
Judgment: 4 September 2001

JUDGMENT

Factual Background

The Court’s judgment in these proceedings was delivered orally immediately after the submissions by counsel for the informant and by the Attorney-General, but I did indicate to both counsel and the defendant that the Court will prepare a written judgment with reasons for its decision. This is that written judgment.

The Court did not find it necessary to call on the defendant for submissions. The defendant had indicated early in these proceedings that he was not in a position to make submissions at this stage but should the Court find it necessary to call for submissions from him he would like to seek an adjournment to prepare. After hearing counsel for the informant and the Attorney-General the Court decided not to call on the defendant for submissions.

The relevant facts for the purpose of these proceedings, as may be gathered from the submissions by counsel for the informant, may be briefly stated as follows. The informant Aii Taito Galu Teo, a matai of the village of Samatau, filed in the District Court by way of private prosecution two charges against the defendant Misa Telefoni who is the current Member of Parliament for the territorial constituency of Falelatai and Samatau as well as Deputy Prime Minister and Minister of Finance in the present HRPP government. The said charges allege bribery and treating against the defendant under the provisions of the Electoral Act 1963. When these charges were called before the District Court together with the charges under the same Act against several other sitting Members of Parliament, the District Court Judge disqualified himself from hearing this particular matter as he is related to the defendant. As there is only one District Court Judge, the case was transferred to this Court for mention on 17 August. On 16 August the Attorney-General filed applications in this Court in respect of the private electoral prosecutions filed in the District Court for permanent stays of proceedings. The applications were filed pursuant to Article 41(2) of the Constitution which gives the Attorney-General the power to discontinue any proceedings for an offence alleged to have been committed. On 17 August when this case was called for mention before this Court at 12 noon, I advised counsel for the informant of the application for a permanent stay of proceedings filed by the Attorney-General on 16 August. Counsel for the applicant was at that stage not aware of the Attorney General’s application. A copy of the Attorney General’s application was then given to him in Court. The case was then stood down to 2:00pm to allow the Attorney-General to be present. At 2.00pm counsel for the informant advised the Court again, as he had done at 12 noon, that he intended to challenge the application for a permanent stay of proceedings by the Attorney-General but as he had only received a copy of the application at 12 noon from the Court, he would like to have time to consider the matter and make the necessary preparation. The Court then adjourned the case to 4 September for counsel for the informant to prepare and to file and serve by 31 August an appropriate application to challenge the application for permanent stay of proceedings by the Attorney-General. The informant’s application was duly filed and served on 31 August.

On 4 September when this matter came up for hearing, I pointed out to counsel for the informant and the Attorney-General the problems faced by the Court in respect of their applications. The application by the Attorney-General had been filed pursuant to Article 41(2) of the Constitution which gives the Attorney-General the power to discontinue any proceedings for an offence alleged to have been committed but it is seeking from the Court a permanent stay of proceedings. The Attorney-General then told the Court her real intention was to discontinue the prosecution against the defendant pursuant to Article 41(2) rather than to ask the Court to exercise its power to stay proceedings. An adjournment for one hour was then sought and granted for the Attorney-General to file a discontinuance of prosecution. A notice of discontinuance was subsequently filed. The Court would have discharged the defendant right there and then and leave it to the informant, if he wishes to do so, to challenge by appropriate proceedings at a later stage the exercise of the Attorney-General’s discretion to discontinue the prosecution. During the adjournment the Court had the opportunity to peruse the written submissions presented by counsel for the informant and the Attorney-General. One of the issues that is extensively addressed in those submissions is whether the power to discontinue proceedings for an alleged offence under Article 41(2) extends to a private prosecution. Counsel for the informant submitted it does not and the Attorney-General submitted it does. Given that the issue has been extensively addressed in the written submissions by both counsel and the first of the two grounds of the informant’s application is that the Attorney-General’s power under Article 41(2) does not extend to a private prosecution, the Court decided to deal with the issue then before deciding to discharge the defendant.

Law

Article 41(2) of the Constitution provides:

“The Attorney-General shall advise on legal matters referred to him by the “Head of State, Cabinet, the Prime Minister or a Minister and shall have power, “exercisable in his discretion, to institute, conduct or discontinue any proceedings for “an offence alleged to have been committed”. (italics mine)

In my view the words “discontinue any proceedings for an offence alleged to have been committed” are sufficiently wide in their ambit to encompass any prosecution including a private prosecution. The Attorney-General’s power of discontinuance is not restricted to any specific category of prosecutions, it is expressed in broad and general terms to apply to “any proceedings for an offence alleged to have been committed”. To adopt a construction which exempts private prosecutions from the all embracing words of Article 41(2) is to engraft onto that provision of the Constitution an exemption which does not appear from its face. The Attorney-General’s power under Article 41(2) to discontinue any prosecution applies to a private prosecution.

I have also considered those parts of the Constitutional Convention Debates 1960 cited on behalf of the informant and in my respectful view they do not alter the conclusion I have reached on the expressed words of Article 41(2). I have also looked at relevant authorities in other common law jurisdictions to see whether the jurisprudence on the power of the Attorney-General to discontinue a prosecution in those jurisdictions are consistent with the conclusion I have reached. In England in the case of Gouriet v Union of Post Office Workers and Others [1977] 3 A11 ER 70 Lord Wilberforce said at p.79:

“The individual..... who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority”.

In the same case, Viscount Dilhorne said at p.88:

“The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons”. (italics mine)

At p.107 Lord Edmund Davies said:

“[It] was urged that any change in the present law would open what were called ‘floodgates’ to a multiplicity of claims by busybodies. But it is difficult to see why such people should be more numerous or active than private prosecutors are at the present day, and they are few and far between though this fact may be attributable in part to the power of the Attorney-General to enter a nolle prosequi in any criminal case..... “(italics mine).

And at p.116 Lord Fraser of Tullybelton said:

“[A] private prosecution is always subject to the control of the Attorney-General through his power to enter a nolle prosequi, or to call in any private prosecution and then offer no evidence. By exercise of these powers the Attorney-General can prevent the right of private prosecution being effectively exercised in any particular case”.

I have cited these passages from the judgments of the English Law Lords in Gouriet to demonstrate that in England the power of the Attorney-General to discontinue a prosecution extends to a private prosecution.

In the Canadian case of Kostuch v Attorney-General for Alberta (1995) 128 DLR (4^th) 440 the Court of Appeal of Alberta rejected an argument that the Canadian bill of rights prevented the Attorney-General from interfering in a private prosecution. Kotuch was cited with approval by the Court of Appeal of Fiji in Director of Public Prosecutions v Livai Lila Matatulu et al (1999) (judgment delivered on 12 February 1999) where that Court said:

“The DPP’s constitutional powers include the taking over and staying of private prosecutions. The right of any person to lay a private prosecution is found in s.78(2) of the Criminal Procedure Code (Cap.21). Indeed, as stated by Lord Diplock in Gouriet v United Postal Workers [1977] UKHL 5; [1978] AC 435, 477, the right to lay a private prosecution ‘remains a valuable constitutional safeguard against inertia or partiality on the part of authority’ although Lord Diplock acknowledged the right of the Attorney-General in England to control the process. There is no requirement that a private prosecutor has to have the Police first investigate the alleged charge. One safeguard against irresponsible private prosecution other than the intervention of the DPP, lies in the tort of malicious prosecution”.

The reference to “Lord Diplock” in the above passage should have been to “Lord Wilberforce”.

I have referred to these authorities in other common law jurisdictions to see whether the conclusion I have reached on the construction of Article 41(2) is in step with the jurisprudence in those jurisdictions on the question of whether the power of the Attorney-General to discontinue a criminal prosecution extends to a private prosecution. The exercise I have undertaken confirms in my view that the conclusion I have reached is in tune with the state of the law in other common law jurisdictions notwithstanding that no Australian or New Zealand authority has been found which is directly on the question in issue.

Law applied to facts

The Attorney-General has filed a notice to discontinue the private prosecution filed by the informant. The power of the Attorney-General under Article 41(2) to discontinue any proceedings for an offence alleged to have been committed extends and applies to a private prosecution. That being so the defendant is discharged.

Related matter

The second question posed in the application by the informant is that if the Court finds that Article 41(2) does authorise the Attorney-General to discontinue the private prosecution by the informant, should the Attorney-General be allowed to discontinue the private prosecution against the defendant. The second question seems to be directed at the exercise of the Attorney-General’s discretion to discontinue under Article 41(2). This will necessarily involve going into questions of fact apart from any questions of law. Thus I indicated to counsel that if the informant wishes to question the exercise of discretion by the Attorney-General then appropriate proceedings should be filed. But the Court will not deal with that question at this stage.

All in all then, the defendant is discharged.

CHIEF JUSTICE

Solicitors:
Attorney-General BP Heather-Latu and R Schuster for the Attorney General
AS Epati for the informant