IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

SALA SALE,
male of Samalaeulu.
Defendant

Counsel: Ms L. Mulitalo for prosecution
Mr S Toailoa for the defendant

Hearing: 21 October 2003
Ruling: 21 October 2003

RULING OF JUSTICE DOHERTY ON COSTS

This morning when this case was called the prosecution sought leave to withdraw it.

Counsel for the defendant made an application that the charge be not withdrawn but dismissed so that it had some finality.

The Court agreed and the information was dismissed there being no evidence of it.

Counsel sought costs pursue to section 167(2) of the Criminal Procedure Act 1972. That subsection gives this Court a discretion to award costs and other expenses if the Court thinks it is just and reasonable. This is a case which has had a chequered at history. The information was sworn on the 2nd of April 2002 and the matter was set for hearing on that date but the Judge who commenced the hearing had to disqualify himself. Thereafter, the matter was adjourned on a number of occasions in the Tuasivi District Court to enable a new Judge to be allocated. It is clear from the Court information that these adjournments were sought pending the appointment of a new District Court Judge. In the event, no new District Court Judge was appointed and because there is only one District Court Judge who had disqualified himself, the matter was transferred to this Court. That happened in July of this year.

Counsel prepared for the hearing, to be faced this morning with the application by the prosecution. Counsel points out that the matter has necessitated several hearings in Savaii and now in Apia. This has necessitated him to re-brief the matter and for the defendants witnesses to travel to Upolu for that purpose. He says that the approximate cost to the defendant has been five and a half thousand tala ($5,500.00) and he seeks 75% of that as costs. He says that this is a matter that could have been withdrawn by at least July of this year. And this late withdrawal has shown a dilatoriness on the part of the prosecution.

Counsel for the prosecution says that the matter has been compounded by restructuring of the Lands & Titles Court administration with the Justice department. The result being that the new Chief Executive of the combined departments has only just had a fresh look at the matter and he has no doubt taken into account the fact that the original complainant, the village council has sought that the matter now not proceed.

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.

It is clear to me from the information on the file itself that the delays have been systemic delays caused by Court system. Caused, no doubt, in good faith on the assumption that an additional District Court Judge would soon be appointed and be able to hear the case. There is no information before me that those systemic delays are caused or were caused by the prosecution. Such delays and the need for numbers of appearances are indeed regrettable but sometimes do happen.

The fact that there has been a withdrawal of the charge at the 11th hour is also regrettable but sometimes those things happen.

When I assess the cause of the delays and the extra costs has been systemic delays rather than prosecution delays, it seems to me that it would not be just and reasonable for me to exercise my discretion and award costs to the defendant.

The application for costs is dismissed.

JUSTICE DOHERTY