[2006] 2 LRC 138

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

TOAILOA LAW OFFICE

v

DUFFY

Supreme Court
Sapolu CJ
11, 17 May 2005

(1) Constitutional law - Fundamental rights - Right to fair trial - Criminal proceedings - Disclosure - Court order for disclosure of trial documents to accused - Order not complied with - Whether breach of right to fair trial - Whether prosecution to be permanently stayed or dismissed - Whether adjournment a sufficient remedy - Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 6 - Constitution of Western Samoa 1960, art 9 - Constitution of Jamaica 1962, s 20.

(2) Criminal procedure - Abuse of process - Stay of proceedings - Disclosure - Non-compliance with court order for disclosure - Non-compliance due to fault of counsel - Whether abuse of process - Whether stay of proceedings appropriate - Relevant policy considerations.

(3) Court - Jurisdiction - District Court - Criminal trial - Right to fair trial - Power of court to control proceedings to prevent abuse of process - Whether District Court having jurisdiction to rule on alleged violations of right to fair trial - Relevant considerations.

On 4 March 2004 the appellant laid a criminal charge against the respondent. The presiding District Court judge set the case down for hearing on 23-24 August 2004 with an order that the appellant serve all of its documents on the respondent within 45 days, i e by 6 May 2004. However, the appellant did not serve copies of its trial documents on the respondent until 19-20 August and one of the statements was difficult to read. Counsel for the respondent applied to the court to dismiss the charge against the respondent on the grounds, inter alia, that: (a) the failure of the appellant to comply with the court's order as to service of the trial documents had resulted in a breach of his right to a fair trial under art 9(1) and (4) (b) of the Constitution and (b) the appellant's non-compliance with the court order was an abuse of process. Counsel for the appellant informed the District Court that the late service of the trial documents on the respondent's counsel as due to an oversight on his part and submitted that, in the circumstances, an adjournment rather than a dismissal was the appropriate course to take. The District Court judge held that the appellant's non-compliance with the court's order constituted an abuse of process. The judge also held that the appellant's failure to comply with the court's order had infringed the respondent's constitutional right to a fair trial and to have adequate time for the preparation of his trail. The charge was therefore dismissed. The appellant appealed to the Supreme Court to have the order of the District Court set aside and an order to be made for the respondent to be referred back to the District Court to stand trial. Counsel for the appellant also submitted that the District Court did not have jurisdiction to deal with alleged violations of constitutional rights.

HELD: Appeal allowed. Case remitted to District Court for trial.

(1) At common law, where there was, in a criminal proceeding, an obstacle in the way of a fair trial or a prejudice to the right to a fair trial had arisen, a stay of the prosecution or dismissal of the charge did not follow as a matter of course. The court would first have to determine whether any action could be taken to remove the obstacle or alleviate the prejudice in order to have a fair trial. That was part of the court's duty of ensuring a fair trial. If no action could be taken to ensure that a fair trial took place, then the prosecution had to be brought to an end by granting a permanent stay or dismissing the charge. If the impediment to a fair trial was that the defendant had not had adequate time to prepare his defence due to the failure of the prosecution to supply the defence with copies of its tria1 documents within a reasonable time before the trial, then an adjournment was the ordinary remedy to bring about a fair trial. Such an adjournment was to be accompanied by interlocutory express orders if necessary. In the instant case the late service of the trial documents was contrary to an order of the court that service was to be effected within a specified time which as well before the trial dates. The trial should have been adjourned in order to give the respondent adequate time to prepare his defence. That would have satisfied the respondent's specific right provided in art 9(4) (b) and at the same time safeguarded his primary right to a fair hearing provided in art 9(1). That would have been the appropriate course to have taken as there was no evidence that an adjournment would have been unduly prejudicial to the respondent. Such an adjournment could have been accompanied by an order to the appellant to serve on the respondent's counsel within one or two days a legible copy of the trial document which the respondent's counsel had found difficult to read. The instant case was not a case where it was impossible to achieve a fair trial. There was therefore no violation of the respondent's right to a fair hearing provided in art 9(1) (see pp 147, 151, 157-158, below). Barton v R (1980) 147 CLR 75, Jago v District Court (New South Wales) (1989) 168 CLR 23, Williams v Spautz [1993] 2 LRC 659 and Re Johannsen and Chambers (1996) 87 A Crim R 126 approved. Moevao v Department of Labour [1980] 1 NZLR 464, Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94 and Fox v A-G [2003] 3 LRC 69 considered.

Per curiam. (i) In New Zealand, on the question of the Crown's obligation to supply briefs of evidence to the defence and the action for the court to take when there is non-compliance with at obligation, it has been held that the ordinary remedy would be an adjournment or postponement of proceedings. The New Zealand statutory provisions on the right to a fair trial are similar to art 9 of the Constitution of Samoa and to s 20 of the Constitution of Jamaica, under which the Privy Council had held that, in the absence of reasons to the contrary, it was preferable to disclose prosecution evidence upon request, as a facility required for the preparation of the defence (see pp 148, 151-153, below). Comr of Police v Ombudsman [1988] 1 NZLR 385, R v Accused (CA 247/91) [1992] 2 NZLR 187, Herewini v Ministry of Transport [1992] 3 NZLR 495, Vincent v R; Franklyn v R [1993] 2 LRC 725 and R v Pahau (2001) 19 CRNZ 21 applied. R v Murray (6 March 1991, New Plymouth, T 17/90, unreported) considered. Allen v Police (1998) 16 CRNZ 23 distinguished.

(ii) In England, with regard to the provision of statements by the prosecution to the defence for the preparation of its case where the offence is one to be tried summarily, the court is required to adjourn proceedings where requirements for disclosure have not been complied with and the defendant may be substantially prejudiced by non-compliance (see pp 150-151, below). Vincent v R; Franklyn v R [1993]2 LRC 725 applied.

(iii) The approach which the European Court f Human Rights has adopted to a complaint of a violation of the right to a fair trial provided in art 6 of the European Convention on Human Rights after a trial had been held is to assess the fairness of the challenged proceedings by having regard to the proceedings as a whole. The general right to a fair hearing enshrined in art 6(1) is the primary right. The specific rights provided in art 6(3) (for example in sub-s (b) 'to have adequate time and facilities for the preparation of his defence') are particular aspects of the general right to a fair hearing in art 6(1). Article 6(1) of the European Convention is almost identical word for word to art 9(1) of the Constitution of Samoa and art 6(3) (a)-(e) of the European Convention is also almost identical word for word to art 9(4) (a)-(e) of the Constitution of Samoa. When consider an alleged violation of the specific right to have adequate time and facilities to prepare a defence provided in art 6(3) (b), the approach adopted by the European Court of Human Rights is to examine the allegation in the light of art 6(3) (b) and 6(1) taken together rather than just to examine he allegation on the basis of f art 6(3) (b) alone. Under art 6 a possible remedy to prevent the prospective violation from becoming an actual violation is an adjournment. If an adjournment can be granted without undue prejudice to the defendant, then that is the appropriate course to take (see pp 154-156, below). Mattoccia v Italy (25 July 2000, unreported), Condron v UK (2000) 8 BHRC 290, Zoon v Netherlands (7 December 2000, unreported), UK v France (2 January 2002, unreported) and Sipavicius v Lithuania (10 July 2002, unreported) applied. Sadak v Turkey (No 1) (17 July 2001, unreported) considered.

(2) The jurisdiction to grant a permanent stay of criminal proceedings on the ground of abuse of process was one which was not to be exercised except in the clearest of cases and was be exercised carefully and sparingly and only for very compelling reasons. In the instant case, non-compliance with the District Court's order that occurred due t an oversight on the part of counsel for the appellant did not amount to an abuse of process. Something much more serious than that was required. The non-compliance being due to a mere oversight could not, in the circumstances, be described as blatant or deliberate or abusive. It did not offend the court's sense of justice and propriety or undermine public confidence in the administration of justice. The public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime had to be weighed on the judicial scale. The public interest in fairness to the accused could have been satisfied by granting an adjournment to provide adequate time and facilities to the respondent to prepare his defence. The overall interests of justice did not justify the dismissal of the charge against the respondent without a trial (see pp 163-164, below).

Per curiam. (i) In the context of criminal proceedings, when there was a complaint of abuse of process, there were two fundamental policy considerations which the court had to take into account. First, the public interest in ensuring that court processes are used fairly by the state and all others in the administration of justice and, secondly, that unless the courts function in that manner public confidence will be eroded. The experience of other common law jurisdictions, for example England, Australia and New Zealand, showed that the circumstances which might constitute abuse of process were so varied that they could not be defined exhaustively. In the context of criminal proceedings, some of the situations which would constitute abuse of process included the bringing of a prosecution for an improper purpose or ulterior motive, conduct on the part of the prosecution which had made it impossible to achieve a fair trial or deliberate non-compliance with orders of the court which had tarnished the integrity of the court. Whether or not such circumstances would amount to abuse of process would depend on the facts of the case. Generally speaking, there was nothing more serious that offended the court's sense of justice and propriety in the context of criminal proceedings than to subject a defendant to a trial that would be unfair. The court would therefore employ all means available to it, including an adjournment, to prevent an unfair trial from being held (see pp 158-159, below). R v Sang [1979] 2 All R 1222, Williams v Spautz [1993] 2 LRC 659, R v Power [1994] 1 SCR 601, Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94, Fox v A-G [2003] 3 LRC 69 and Police v Joseph Lafaele Faulkner (No 2) (20 April 2005, unreported) applied.

(ii) In Australia, the approach which the courts have adopted to the question of whether criminal proceedings should be permanently stayed on the ground of abuse of process requires the court to embark on a balancing exercise of various factors and considerations. A similar approach has been applied in New Zealand (seep 163, below). Jago v District Court (NSW) (1989) 168 CLR 23, Walton v Gardiner (1993) 177 LCR 378, R v Pahau (2001) 19 CRNZ 21 and R v Harker [2002] QSC 61 applied. Allen v Police (1998) 16 CRNZ 23 distinguished.

(3) It was clear that the right to a fair hearing would apply to every criminal trial held before a court to determine a charge which had been laid against any person. That would include a criminal trial held in the District Court. It was elementary law that it was the duty of every court in criminal proceedings to ensure a fair trial. It followed that a court, including the District Court, had the necessary power to perform that duty in an effective manner in order to achieve a fair trial. To impose on the courts the duty to ensure a fair trial without the necessary back-up power could undermine the right to a fair trial and lead to unfairness. It followed that the District Court had power in a criminal proceeding to deal with alleged violations of the constitutional right to a fair trial made at any stage of the proceedings, including the pre-trial stage, and to make rulings on such alleged violations. The high number of criminal cases with which the District Court had to deal made it clearly necessary for that court to have such power. Decisions of the District Court were subject to appeal and review so that any person who was not satisfied with a ruling on an alleged violation of the constitutional right to a fair trial might appeal or apply for review, whichever was appropriate. It was also to be borne in mind that District Court judges were legally qualified, they were not lay judges. One of the recognised categories of abuse of process at common law was the prosecution of a criminal proceeding which would result in a trial which was unfair or conduct on the part of the prosecution which would make it impossible to give the defendant a fair trial. The power of the District Court to control and regulate its own proceedings to prevent abuse of process therefore had to include the power to ensure a fair trial and to determine and rule on any complaints or allegations, made in the course of criminal proceedings, that the right t a fair trial would be or was being violated (see pp 164-166, below). Williams v Spautz [1993] 2 LRC 659 and Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94 applied.

Per curiam. Even though Australia and New Zealand do not have a right to a fair trial guaranteed by a written Constitution, the authorities in those jurisdictions on the power of the District Court to deal with complaints of alleged violations of the right to a fair trial lend support to the view that the District Court has powers to deal with such alleged violations. In New Zealand the District Court has the necessary power to control its own proceedings to ensure fairness, determine preliminary questions of law and fact, and prevent abuse of process (see p 165, below). O'Toole v Scott [1965]2 All ER 240, Barton v R (1980) 147 CLR 75, Re J Mannix Ltd [1984] 1 NZLR 309, McMenamin v A-G [1985] 2 NZLR 274, Com of Police v Ombudsman [1988] 1 NZLR 385, Jago v District Court (NSW) (1989) 68 CLR 23, Williams v Spautz [1993] 2 LRC 659 and Rona v District Court of South Australia (1995) 63 SASR 223 applied. Grassby v R [1991] LRC (Crim) 32 and A-G v The District Court of Otahuhu [2001] 3 NZLR 740 considered.

[Editors' note: Article 9 of the Constitution of Western Samoa 1960, so far as material, is set out at p 151, below.

Section 20 of the Constitution of Jamaica 1962, so far as material, is set out at p 151-152, below.

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969), so far as material, is set out at p 154, below.]

Cases referred to in judgment

A-G v District Court of Otahuhu [2001] 3 NZLR 740
Allen v Police (1998) 16 CRNZ 23, NZ HC
Barton v R (1980) 147 CLR 75, 32 ALR 449, Aus HC
Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94, [1993] 3 All ER 138, [1994] 1 AC 42, UK HL
Berry v R [1992] LRC (Crim) 82, [1991] 3 All ER 881, [1992] 2 AC 364, Jam PC
Comr of Police v Ombudsman [1988] 1 NZLR 385, NZ CA
Condron v UK (2000) 8 BHRC 290, (2001) 31 EHRR 1, ECt HR
Fox v A-G [2003] 3 LRC 69, [2002] 3 NZLR 62, NZ CA
G J Mannis Ltd, Re [1984] 1 NZLR 309
Goldsmith v Sperrings Ltd [1977] 2 All ER 566, [1977] 1 WLR 478, UK CA
Grassby v R [1991] LRC (Crim) 32, (1989) 168 CLR 1, Aus HC
Herewini v Ministry of Transport [1992] 3 NZLR 495
Holloway v Police (1999) 16 CRNZ 647
Jago v District Court (New South Wales) (1989) 168 CLR 23, 87 ALR 577, Aus HC
Johannsen and Chambers, Re (1996) 87 A Crim R 126
King v R [1987] LRC (Crim) 153, (1986) 161 CLR 425, Aus HC
MacPherson v R (1981) 147 CLR 512, Aus HC
Mattoccia v Italy (25 July 2000, unreported), ECt HR
McInnis v R (1979) 143 CLR 575, Aus HC
McMenamin v A-G [1985] 2 NZLR 274, NZ CA
Moevao v Department of Labour [1980] 1 NZLR 464, NZ CA
Murphy v R (1989) 167 CLR 94, 86 ALR 35, Aus HC
O'Toole v Scott [1965] 2 All ER 240, [1965] AC 939, [1965] 2 WLR 1160, Aus PC
Police v Joseph Lafaele Faulkner (No 2) (20 April 2005, unreported), Samoa SC
R v Accused (CA 247/91) [1992] 2 NZLR 187, NZ CA
R v Bidwell (26 June 1991, Court of Appeal, unreported), Jam CA
R v Cooney (1987) 31 A Crim R 256, Aus C A
R v Cox (1997-8) 196 LSJS 3, Sth Aus CCA
R v Harker [2002] QSC 61, Queensland SC
R v Murray (6 March 1991, New Plymouth, T 17/90, unreported)
R v Pahau (2001) 19 CRNZ 21, NZ CA
R v Power [1994] 1 SCR 601, Can SC
R v Sang [1979] 2 All ER 46, [1980] AC 402, UK HL
Rona v District Court of South Australia (1995) 63 SASR 223, (1995) 77 A Crim R16
Sadak v Turkey (No 1) (17 July 2001, unreported), ECt HR
Sipavicius v Lithuania (10 July 2002, unreported), ECt HR
UK v France (2 January 2002, unreported), ECt HR
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 41 ALR 71, Aus HC
Vincent v R; Franklyn v R [1993] 2 LRC 725, [1993] 1 WLR 862, Jam PC
Walton v Gardiner (1993) 177 CLR 378, Aus HC
Williams v Spautz [1993] 2 LRC 659, (1992) 174 CLR 509, Aus HC 
Zoon v Netherlands (7 December 2000, unreported), ECt HR

Legislation referred to in judgment

Australia
District Court Act 1991, s 9 
Supreme Court Act 1935, s 17

Jamaica
Constitution of Jamaica 1962, s 20

New Zealand 
Crimes Act 1961, ss 354, 368
New Zealand Bill of Rights Act 1990, ss 24-25
Official Information Act 1982

Samoa
Constitution of Western Samoa 1960, art 9
Crimes Ordinance 1961, s 82

United Kingdom
Magistrates Courts (Advance Information) Rules 1985

Other sources referred to in judgment

Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969), art 6
European Commission on Human Rights Adolph Report (8 October 1980)
Lester et al Human Rights Law and Practice (1999), p 153
White Paper 'Bill of Rights for New Zealand', para 10.130

Appeal

The appellant, the Toailoa Law Office, appealed against the decision of the District Court on 25 January 2005 dismissing the criminal charge laid against the respondent, Kose Duffy, on the grounds that there had been a breach of the respondent's right to a fair trial and an abuse of process by the appellant. The facts are set out in the judgment.

T R S Toailoa for the appellant.
S Leung Wai for the respondent.

SAPOLU CJ.

NATURE OF PROCEEDINGS

This is an appeal from a decision of the District Court dated 25 January 2005 in which a private prosecution brought the appellant was dismissed due to the failure of the appellant to make available copies of all its trial documents to the respondent within a certain period as ordered by the court. In the District Court proceedings the appellant was the informant and the respondent was the defendant.

The appellant in his appeal seeks from this court three orders, namely (a) an order to set aside the decision of the District Court dismissing the charge against the respondent, (b) an order for the respondent to be referred back to the District Court to stand trial and (c) an order for costs to be awarded to the appellant. The grounds of the appeal are:

(a) the District Court had no jurisdiction deal with any allegation of violations of constitutional rights,

(b) the District Court had erred in law in its findings that the appellant's failure to comply with the disclosure order of the court had resulted in an abuse of the court's process,

(c) the District Court had erred in law in the exercise of its discretion by dismissing the charge against the respondent.

Even though it is indicated in the notice of appeal that there may be further grounds of appeal when the written decision of the District Court was made available to counsel, no further grounds of appeal have been filed.

FACTS

The relevant facts to this appeal may be briefly stated. On 4 March 2004 the appellant as informant laid a charge in the District Court of threatening to kill or do bodily harm against the respondent as defendant pursuant to s 82 of the Crimes Ordinance 1961. The charge carries a maximum penalty of three years' imprisonment. When the charge was called for first mention on 23 March 2004 it was amended by consent of counsel by deleting the words 'or do bodily harm' so that the charge became just one of threatening to kill. The respondent, through his counsel, then entered a not guilty plea to the charge as amended. The presiding District Court judge then set the case down for hearing on Monday and Tuesday, 23-24 August 2004. The learned judge also made the order that the appellant as to serve copies of all of its trial documents on the respondent's counsel within 45 days. This means the trial documents were to be served on the respondent's counsel by about 6 May 2004, which was just over three-and-a-half months before the dates set for the hearing of the case.

As it turned out, the appellant did not serve copies of its trial documents on counsel for the respondent until Thursday and Friday, 19-20 August 2004, which was about three-and-a half months after 6 May. One of the witnesses's statements served was found by the respondent's counsel to be difficult to read. On 23 August, the day on which the trial was to commence, counsel for the respondent applied to the court to dismiss the charge against the respondent on the grounds: (a) the failure of e appellant to comply with the court's order as to service of the trial documents had resulted in a breach of his right to a fair trial under art 9(1) and (4) (b) of the Constitution, (b) the appellant's non-compliance with the court's order was an abuse of process and (c) the prosecution was also an abuse of process as it arose out of a domestic dispute and the police had investigated the dispute and elected not to prosecute the defendant. I need not concern myself with ground (c) as a separate ground as it is embraced in the general ground of abuse of process.

Counsel for the appellant, on the other hand, as it appears from the submissions by the respondent's counsel, apologised and informed the court that the late service of the trial documents on the respondent's counsel was due to an oversight on his part. He submitted that the charge was a serious one and the respondent's counsel had had the weekend to peruse the trial documents. He further submitted that, in the circumstances, an adjournment rather than a dismissal was the appropriate course to take.

JUDGMENT UNDER APPEAL

In the judgment under appeal, the learned District Court judge accepted the explanation given by counsel for the appellant that the non-compliance with the court's order to serve the appellants trial documents on counsel for the respondent within 45 days from the day the order was made was due to an oversight on his part. However, His Honour held that, even though he accepted the appellant's explanation, it did not alter the fact that the court's order had not been complied with and that sanctions should be applied for non-compliance. His Honour further said that to take any other view would undermine the integrity of the court and would render its orders meaningless and of no value. In addition, the court would become judicially impotent if parties before it were permitted or encouraged to ignore its orders. The judge then held that the appellant's non-compliance with the court's order constituted an abuse of process 'because it offends the court's sense of justice and propriety to try the accused in the circumstances,' which is the second category of abuse of process enunciated by Lord Lowry in Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94 at 120. He went on to say that if the appellant's conduct was allowed to remain unchecked, it would, in the words of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482, 'strike at the public confidence in the Court's process and so diminish the Court's ability to fulfil its function as a Court of law' or in the words of McGrath J in delivering the judgment of the New Zealand Court of Appeal in Fox v A-G [2003] 3 LRC 69 at [37] 'for the court to proceed with the prosecution on its merits would tarnish the court's integrity and offend the court's sense of justice and propriety'. Essentially then, the view taken by the learned judge is that since the appellant failed to comply with the court's order, due to an oversight on the part of its counsel, that was an abuse of process. The reason being that such non-compliance if allowed to remain unchecked, would offend the court's sense of justice and propriety to try the accused, or would strike at the public confidence in the court's process and so diminish the court's ability to fulfil its function as a court of law, or would tarnish the court's integrity.

The judge also held that the appellant's failure to comply with the court's order had infringed the respondent's constitutional right to a fair trial and to have adequate time for the reparation of hi defence. However, the decision to dismiss the charge against the respondent was not based on the breach of the constitutional right to a fair trial. The decision to dismiss the charge was based solely on the appellant's non-compliance with the court's order to serve 9 copies of all its trial documents on the respondent's counsel within 45 days from the day the order was made.

At the hearing of the appeal, counsel for the respondent reiterated the submissions he had made to the lower court in relation to the alleged breach of the constitutional right to a fair trial and use of process. I will deal with these issues first before dealing with the first ground of appeal which is that the District Court has no jurisdiction to deal with any allegations of violations of constitutional rights.

ALLEGED BREACH OF THE RIGHT TO A FAIR TRIAL AS PROVIDED IN ART 9(1) AND (4) (B) OF THE CONSTITUTION

It was submitted for the respondent that the service by the appellant of copies of its trial documents on counsel for the respondent only two and three days before the trial in violation of t District Court's order that those documents should be served within 45 days which was about three-and-a-half months before the trial, had breached the respondent's right to a fair trial as provided in art 9(1) and (4) (b) of the Constitution. Before I deal with the approach to be adopted where there is an obstacle in the way of a fair trial or prejudice to the right to a fair trial in terms of art 9(1) and (4) (b) of the Constitution, it will be helpful to refer first to the common law approach.

At common law, where there is, in a criminal proceeding, an obstacle in the way of a fair trial or a prejudice to the right to a fair trial has arisen, a stay of the prosecution or dismissal of the charge does not follow as a matter of course. The court would have to see first whether any action can be taken to remove the obstacle or alleviate the prejudice in order to have a fair trial. This is part of the court's duty of ensuring a fair trial. If no action can be taken to ensure that a fair trial takes place, then the prosecution must be brought to an end by granting a permanent stay or dismissing the charge. These would appear to be the appropriate remedies in such a situation.

In the decision of the High Court of Australia in Jago v District Court (New South Wales) (1989) 168 CLR 23 at 34 Mason CJ said:

'To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton v R (1980) 147 CLR 75 at 111 per Wilson J.'

In the same case, Brennan J said (at 47):

'Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v R (1989) 167 CLR 94), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25), absence of competent representation (McInnis v R (1979) 143 CLR 575 and MacPherson v R (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the Court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury to counteract any prejudice which the accused might otherwise suffer.'

In Williams v Spautz [1993] 2 LRC 659 at 67, which was a case of a private prosecution, Mason CJ, Dawson, Toohey and McHugh JJ in a joint judgment said:

'The jurisdiction to grant a stay of criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair": Barton v R (1980) 147 CLR 75 at 95-96 ... if a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by a trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgements in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.'

In Johannsen and Chambers (1996) 87 A Crim R 126 at 135 Fitzgerald P said:

'…there is a strong predisposition toward permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial which produces a result free of the taint of risk of d miscarriage of justice ... A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted.'

In New Zealand, on the question of the Crown's obligation to supply briefs of evidence to the defence and the action for the court to take under s 368 of the Crimes Act 1961 (NZ) when there is non-compliance with that obligation, Cooke P (as he then was) said in R v Accused (CA 247/91) [1992] 2 NZLR 187 at 193:

'It is the standard and proper practice to supply the defence with a copy of the brief of the proposed new evidence: see Comr of Police v Ombudsman [1988] 1 NZLR 385 at 393-394, 399-400. If this practice is not followed the ordinary remedy of the defence is to ask for an adjournment or postponement. We accept, however, that there may be cases in which the inherent jurisdiction to ensure a fair trial the trial judge may rightly conclude that an adjournment or postponement would be unduly prejudicial to the accused, and may decline to allow the prosecution to add to the scope of the proposed evidence or to call an added witness. Some unreported rulings of that kind are collected in a ruling of Tompkins J in R v Murray (6 March 1991, New Plymouth, T 17/90, unreported). These rulings have been given on applications by the Crown for leave to call additional evidence. Such applications represent an appropriate practice, but the basic jurisdiction is the inherent one just mentioned.'

Of more direct relevance to the circumstances of this case is the judgment of the High Court of New Zealand in Herewini v Ministry of Transport [1992] 3 NZLR 495. The case was concerned with an appeal against conviction from a defended summary prosecution in the New Zealand District Court. One of the issues raised in the appeal was whether the prosecution should be required to provide to the defence briefs of evidence in advance. In dismissing the appeal, Fisher J said (at 496):

'The scope of procedural fairness therefore lies within the hands of the Courts. If thought appropriate, they have ample jurisdiction to direct that all or more of the existing practices relating to the advance provision of briefs on indictment should extend to all or some summary prosecutions. Nor would the Court be lacking sanctions to enforce such procedures if adopted. If a general practice for provision of briefs were to be promulgated and not complied with, the obvious sanction would be to adjourn, if necessary repeatedly and with costs, upon the broad ground that until briefs were produced in advance the defence would unreasonably be taken by surprise. That, for example, was seen by Cooke P in Ombudsman at 399-400 as the sanction for inadequate disclosure in terms of the Official Information Act. The power to adjourn could be accompanied by specific interlocutor orders to produce briefs. Persistent non-compliance in the face of express orders to that effect could eventually result in dismissal of the prosecution ... I therefore have no doubt that it lies within the powers f the Courts to bring about change in this area. The remaining questions whether they should do so.'

His Honour then went on (at 497-498) to give a qualified answer to the question he posed by saying:

'In my view there is a strong case for requiring advance copies of prosecution briefs in defended summary cases, at least where the defendant is in jeopardy of prison. In his case, for example, the appellant faced possible imprisonment for three months. The concept of differing standards for differing levels of seriousness is already observed by the ministry. If briefs for non-imprisonable cases are not thought to be practicable, it might at least be desirable to lower the level of seriousness at which they will customarily be prepared. On the other hand I do not think appropriate for one High Court Judge to legislate in the area. If change is to be achieved judicially, it should be affected by the High Court sitting as a Full Court or by the Court of Appeal.'

In R v Pahau (2001) 19 CRNZ 21 the New Zealand Court of Appeal dealt with a criminal appeal against conviction. One of the grounds of appeal was that the District Court judge should not have permitted the Crown to call certain witnesses at the trial due to the late disclosure of the evidence of those witnesses by the Crown to the defence. In dismissing the appeal, Thomas J, in delivering the judgment of he court, said (at 23):

'[19] Offering the defence an adjournment to meet any prejudice which Mr Pahau might have suffered was the obvious course. Such an adjournment was offered but refused. Mr Pahau cannot now be heard to complain of prejudice.'

'[20] As submitted by Mr France, Allen v Police (1998) 16 CRNZ 23 is readily distinguishable. The specific information requested by the defence had not been provided at all. In the present case, because of the way in which the Crown's case developed, delivery of the evidence to the defence occurred after the deposition hearing and prior to trial. In the course of preparation for trial developments in the Crown's case will at times inevitably occur. Following depositions, weaknesses or gaps in the prosecution evidence may be perceived and an attempt made to reinforce or provide that evidence. In such circumstances, and in the absence of any suggestion that the Crown was seeking to ambush the defence or otherwise acting in bad faith, an adjournment is the appropriate method of dealing with any prejudice to the accused. The interest of the community in ensuring that guilty persons are convicted outweighs any procedural defect or delay which can be rectified by granting an adjournment. To the extent that Allen v Police is inconsistent with this approach it is in error.'

Allen v Police (1998) 16 CRNZ 23 was a decision of the High Court of New Zealand. The approach adopted in that case has clearly been disapproved by the Court of Appeal of New Zealand. The approach in Allen also seems to be at odds with the Australian and other New Zealand authorities earlier referred to in this judgment.

The position in England, with regard to the provision of statements by the prosecution to the defence for the preparation of its case where the offence is one to be tried summarily, was explained in Vincent v R; Franklyn v R [1993] 2 LRC 725, where the Privy Council dealt with two criminal appeals against conviction which originated from the Resident Magistrate's Court of Jamaica. The common ground of the two appeals was that the appellants had been denied a fair trial, as guaranteed by s 20 of the Jamaica Constitution, in that the trial proceeded without the defence being provided with witnesses statements indicating the evidence to be called by the prosecution. In delivering the judgment of the Privy Council, Lord Woolf said (at 731-732):

'Undoubtedly a defendant will be assisted in preparing his defence if he is provided with copies of statements on which the prosecution proposed to rely prior to the commencement of his trial. It is therefore desirable, where this is practicable, for statements to be provided. Clearly the more serious and the more complex the proceedings the greater the desirability that statements should be provided and the more likely that it will be practicable to provide the statements. In the converse situation, where the offence is trivial, to be dealt with summarily, where the issues are simple, the provision of statements before trial is less important. In Jamaica as in England, in the case of offences which are triable only summarily when the offences are properly regarded a being "petty offences", it is not normally practical or necessary in order to obtain a fair trial for the defendant to be served in advance with copies of witnesses' statements. In cases where the offences are being tried on indictment before a jury, again in Jamaica the position is the same as in England and before the trial begins the defendant will receive copies of the depositions or statements of witnesses to be called on behalf of the prosecution. In England in the case of offences triable "either way", that is summarily or on indictment, the position is now covered by the Magistrates Courts (Advance Information) Rules 1985 (SI 1985 No 601). Under these the prosecution, on request, are required to furnish to a defendant as soon as practicable either a copy of those parts of every written statement which contain information as to the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings ... If the requirements are not complied with, then the court is required to adjourn the proceedings ... unless the court is satisfied that the conduct of the case for the accused will not be substantially prejudiced by non-compliance with the requirement.' (My emphasis.)

The position at common law as I see then, is that where there is an obstacle to a fair trial in a criminal proceeding and the court is faced with a motion from the defence to stay the proceeding or to dismiss the charge, the court must first satisfy itself that there are no other available means, such as adjournments or other interlocutory order, rulings on evidence, directions to the assessors if it is an assessor trial, of bringing about a fair trial. If there are no other means available of bringing about a fair trial, then the proceeding must be terminated by granting a permanent stay or dismissing the charge. If the impediment to a fair trial is that the defendant has not had adequate time to prepare his defence due to the failure of the prosecution to supply the defence with copies of its trial documents within a reasonable time before the trial, then to bring about a fair trial, the ordinary remedy is an adjournment. Such an adjournment is to be accompanied by interlocutory express orders if necessary. However, an adjournment would not be appropriate if it will prejudice a fair trial or otherwise be unduly prejudicial to the defendant. In such a situation, if there are no other means available of securing a fair trial, the appropriate course to take is to terminate the proceeding by granting a permanent stay or dismissing the charge.

In considering a pre-trial complaint that the defendant's constitutional right to have adequate time and facilities for the preparation of his defence has been violated, it is necessary to refer first to the relevant provisions of the Constitution. Article 9 of the Constitution, which is the right to a fair trial provision, provides, insofar as it is relevant:

'(1) In the determination of\... any charge against him for any offence, every person is entitled to a fair... hearing... by [a] tribunal established under the law ...

(4) Every person charged with an offence has the following minimum rights...

(b) To have adequate time and facilities for the preparation of his defence.'

Article 9 of the Samoa Constitution is very similar to s 20 of the Jamaica Constitution, which also provides for the right to a fair trial. Insofar as it is relevant, s 20 provides:

'(1) Whenever any person is charged with a criminal offence he shall... be afforded a fair hearing... by [a] court established by law...

(6) Every person who is charged with a criminal offence...

(b) shall be given adequate time and facilities for the preparation of his defence.'

In Vincent v R; Franklyn v R [1993] 2 LRC 725, already referred to, the Privy Council had to deal with two criminal appeals which originated from the Resident Magistrate's Court of Jamaica. One of the issues raised by the appellants was that notwithstanding the right to a fair hearing and the right to adequate facilities for the preparation of a defence provided in s 20 of the Jamaica Constitution, the statements of the prosecution witnesses were never disclosed to them. Lord Woolf who delivered the judgment of the Privy Council, referred in the course of the judgment to s 20(6) (b) of the Jamaica Constitution and then said (at 734-735):

'While the language of [s 20(6) (b)] does not require a defendant always to be provided with copies of the statements made by the prosecution witnesses, where the provision of a statement of a witness is reasonably necessary for such purpose, it should be provided as being a facility required for the preparation of his defence. This is in accord with the view of Forte JA expressed in the Court of Appeal in Jamaica in R v Bidwell (26 June 1991, unreported), where he indicated that "facilities" could include a statement of a particular witness and added that "facilities must relate to anything that will be required by the accused in order to aid him in getting his defence ready to answer the charge". It follows that the present practice of refusing to provide to the defence statements of proposed witnesses to the prosecution, as a matter of course, is inappropriate. Where a request is made for the disclosure of the statements in a case which is to be tried summarily, if it is not a case involving only petty offences, the request should be carefully considered. If there are no circumstances making this course undesirable, for example because of the need to protect the witness, then the preferable course in the interests of justice is to disclose the statement. The fact that a case is opened by the prosecution does assist the accused in knowing the case he has to meet. However, as was submitted on behalf of the appellants, if he is taken by surprise by anything containing the opening this can result in a defendant being in the undesirable situation of either having to seek an adjournment, which could affect the flow of the trial, or making do without an adjournment because of the delay which an adjournment would involve. This being the position, the Director of Public Prosecutions may like to consider whether or not he should give further guidance on this subject. Clearly it would be preferable if the need to consider each case in relation to its particular circumstances could be avoided by a general practice being promulgated which requires the disclosure of statements of witnesses or alternatively giving the defence a statement of the nature of the evidence, which will be relied upon by the prosecution, before trial (in the absence of special circumstances) to assist the defendant in the preparation of his defence. In making this suggestion, their Lordships have in mind the judgment delivered by Lord Lowry in Berry v R [1992] LRC (Crim) 82 at 91 where he said:"...in a civilised society the most suitable ways of achieving such fairness (which should not be immutable and require to be reconsidered from time to time) are best left to, and devise by, the legislature, the executive and the judiciary which serve that community and are familiar with its problems."'

In New Zealand there are statutory provisions on the right to a fair trial which are similar to art 9 of the Samoa Constitution and s 20 of the Jamaica Constitution. These are s 24(3) ands 25(a) of the New Zealand Bill of Rights Act 1990. Section 25(a) provides:

'Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: (a) The right to a fair... hearing... by... [a] Court.'

Section 24 (d) provides:

'Everyone who is charged with an offence... (d) Shall have the right to adequate time and facilities to prepare defence.'

In A-G v The District Court of Otahuhu [2001] 3 NZLR 740 at 753 Richardson P in delivering the judgment of the New Zealand Court of Appeal said:

'[47] The third consideration is that s 24(d)... while separately stated in the Bill of Rights, is in aid of the primary right to a fair trial (s 25(a)), just as the right to present a defence (s. 25 (e)) is also an aspect of fair trial. Thus, speaking of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, parallel to s 24 and including s 24(d), the European Commission on Human Rights said in its Adolph report of 8 October 1980… "They exemplify the notion of fair trial... but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Art 6(3) are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings".

[48] And s 24(d) is not a newly recognised right. The right to adequate facilities to prepare a defence is inherent in s 354 of the Crimes Act 1961, which provides that "Every person accused of any crime make his full defence thereto", and in fair trial at common law...

[49] In its terms s 24(d) is restricted by the language employed. The composite right is to "adequate time and facilities to prepare a defence". Governing both time and facilities, "adequate", in context, as a word of limitation is used in the sense of sufficient or necessary, not full or complete. And the expression "facilities" suggests an intended focus on the means of preparing a defence. The White Paper "A Bill of Rights for New Zealand" states (para 10.130): "The facts of each case will determine what constitutes an adequate time for the purposes of this provision. 'Facilities' to prepare the defence might include access to documents or other evidence required by the defence to prepare its case, the opportunity and the means for personal communication between the accused and counsel while the accused is in custody, and perhaps also access to a library and legal materials the accused wishes to act in his own defence."

Under the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969) ('the European Convention on Human Rights'), art 6, which is almost identical to art 9 of the Samoa Constitution, provides, insofar as relevant:

'(1) In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a] tribunal established by law...

(3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.

(b) to have adequate time and facilities for the preparation of his defence.'

The approach which the European Court of Human Rights (ECHR) has adopted to a complaint of a violation of the right to a fair trial provided in art 6 of the European Convention on Human Rights after a trial had been held is to assess the fairness of the challenged proceedings by having regard to the proceedings as a whole. For instance, in Sipavicius v Lithuania (10 July 2002, unreported) the ECHR when dealing with an alleged violation of art 6(3) (a)-(b) said:

'[27] The Court recalls that the fairness of proceedings must be assessed with regard to the proceedings as a whole.'

Further on, the ECHR said:

'[30] [The] Court reiterates that compliance with Article 6 must be determined in the light of the proceedings as a whole.'

In the Adolph report of 8 October 1980 by the European Commission on Human Rights, cited by Richardson P in A-G v The District Court of Otahuhu [2001] 3 NZLR 740, it is there stated in relation to the specific rights provided in art 6(3) of the Convention:

'They exemplify the notion of a fair trial... but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Art 6(3) are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings.'

The ECHR has also noted in a number of its judgments that the general right to a fair hearing enshrined in art 6(1) is the primary right. The specific rights provided in art 6(3) are particular aspects of the general right to a fair hearing provided in art 6(1). For instance, in Mattoccia v Italy (25 July 2000, unreported), the ECHR said of the application of art 6(1) and (3) (a)-(b) of the Convention:

'[58] The Court reiterates that the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1.'

In Condron v UK (2000) 8 BHRC 290 at 308 the ECHR said:

'[76] The Court recalls that the guarantees in art 6(3) are specific aspects of the right to a fair hearing set out in art 6(1).'

Many other judgments of the ECHR contain similar statements but it is unnecessary to refer to any more of them. Suffice in this connection to make one further reference to the commentary in Human Rights Law and Practice (1999) by Lord Lester of Herne Hill et al, were the learned authors state (at p 153):

'4.6.62. The minimum guarantees set out in Art 6(3) (a)-(e) are specific aspects of the general right to a fair trial, and are not therefore exhaustive. The relationship between art 6(1) and art 6(3) "is that of the general to the particular."'

It is to be noted here that art 6(1) of the European Convention on Human d Rights is almost identical word for word to art 9(1) of the Samoa Constitution and art 6(3) (a)-(e) of the Convention is also almost identical word for word to art 9(4) (a)-(e) of the Samoa Constitution.

When considering an alleged violation of the specific right to have adequate time and facilities to prepare a defence provided in art 6(3) (b), the approach adopted by the ECHR is to examine the allegation in the light of art 6(3) (b) and 6(1) taken together rather than to just examine the allegation on the basis of art 6(3) (b) alone. For instance, in Mattoccia v Italy (25 July 2000, unreported), the ECHR when dealing with a complaint for alleged violation of art 6(3) (b) said:

'[60] While the extent of the "detailed" information referred to in this provision varies depending on the particular circumstances of each case, the accused must at any rate be provided with sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence. In this respect, the adequacy of the information must be assessed in relation to sub-paragraph (b) of paragraph 3 of Article 6, which confer on everyone the right to have adequate time and facilities for the preparation of their defence, and in the light of the more general right to a fair hearing embodied in paragraph 1 of Article 6.'

In Zoon v Netherlands (7 December 2000, unreported) the ECHR was faced with an allegation of a violation of art 6(3) (b) in that the complainant had not been provided with a copy of the judgment of the Regional Court of Rotterdam by the time he had to decide whether to lodge an appeal. In dismissing the complaint, the ECHR said:

'[30] The applicant complained that he did not have available a copy of the complete written judgment of the first instance Court at the time when he had to decide whether or not lodge an appeal. He alleged a violation of Article 6(1) and (3) (b) of the Convention...

[31] As the requirements of Article 6(3) are to be seen as particular aspects of the right to be given a fair trial guaranteed by Article 6(1), the Court will examine the applicant's complaint under Article 6(1) and (3) (b) taken together.'

In UK v France (2 January 2002, unreported) the ECHR said:

'[57] Bearing in mind that the requirements of paragraph 3(b) of Article 6 of the Convention amount to specific elements of the right to a fair trial guaranteed under paragraph 1, the Court will examine all the complaints under both provisions taken together.'

One can go on citing passages from the relevant judgments of the ECHR, but, in my view, the point needed to be made has been made with sufficient emphasis and clarity. That is, if there is a complaint that a defendant did not have adequate time and facilities to prepare his defence, such a complaint has to be determined on the basis of art 6(1) and (3) (b) taken together to see whether there has been a violation of the right to fair trial. In the context of art 9 of the Samoa Constitution that would mean if there is a complaint of a violation of the constitutional right to a fair trial because a defendant did not have adequate time and facilities to prepare his defence, such complaint should be examined under art 6(1) and (3) (b) taken in conjunction.

It would appear then that where there is a complaint of a prospective violation of art 6(3) (b) as opposed to a violation that has actually occurred then such a complaint should be examined under art 6(1) and (3) (b) taken together. A possible remedy to prevent the prospective violation from becoming an actual violation is an adjournment. If an adjournment can be granted without undue prejudice to the defendant, then that is the appropriate course to take. In Sadak v Turkey (No 1) (17 July 2001, unreported), which was a case of actual violation of the right to a fair trial, the accused were charged with treason against the integrity of the state before the Ankara National Security Court. On the last day of the ensuing trial, and just before the court delivered its judgment, the prosecution sought to alter the charge from one of treason to one of belonging to an armed organisation set up for the purpose of destroying the integrity of the state. The elements of the two charges were different. The court granted the alteration sought by the prosecution. At that time the lawyers for the accused had already left the hearing. The accused who were then appearing by themselves applied for additional time to reorganise and prepare their defence to the new charge. That application was refused. The accused were then convicted of the new charge and sentenced to very lengthy terms of imprisonment. When the case came before the ECHR, one of the complaints by the accused was that their right under art 6(3) (b) of the European Convention on Human Rights, which requires that everyone charged with a criminal offence shall have adequate time for the preparation of his defence, had been violated. In holding, inter alia, that the accused's right under art 6(3) (b) had been violated, the ECHR said:

'[57] The Court therefore considers that, in using the right which it unquestionably had to recharacterise facts over which it properly had a jurisdiction, the Ankara National Security Court should have afforded the applicants the possibility of exercising their defence rights on that issue in a practical and effective manner, particularly by giving them the necessary time to do so. The case file shows that the National Security Court, which could, for example, have decided to adjourn the hearing once the facts had been recharacterised, did not give the applicants the opportunity to prepare their defence to the new charge, which they were not informed of until the last day of the trial, just before the judgment was delivered which was patently too late. In addition the applicant's lawyers were absent on the day of the last hearing. Whatever the reason for their absence, the fact is the applicants could not consult their lawyers on the recharacterisation of the facts by the prosecution and the National Security Court.

[58] Having regard to all the above considerations, the Court concludes that the applicants' right to be informed in detail of the nature and cause of the accusation against them and their right to have adequate time and facilities for the preparation of their defence were infringed.

[59] Consequently, there has been a violation of paragraph 3(a) and (b) of Article 6 of the Convention taken together with paragraph 1 of that Article, which requires a fair trial.'

Reports of the judgments of the ECH are not available in Samoa. The judgments of the ECHR referred to in this judgment were downloaded from the internet. I have no valid reason to doubt their veracity and accuracy.

LAW APPLIED TO FACTS

As earlier mentioned, what occurred in this case was that copies of trial documents by the appellant were only served on counsel for the respondent two and three days before the trial was to start due to an oversight on the part of the appellant's counsel. The late service of the trial documents was contrary to an order of the court that service was to be effected within a specified time which was well before the trial dates. One of the trial documents was also difficult to read. Thus, on the day the trial was to start, a pre-trial application was made on the respondent's behalf to dismiss the charge against the respondent on the grounds: (a) the failure of the appellant to comply with the court's order as to service of the trial documents within a specified time had resulted in a breach of the respondent's right to a fair trial under art 9(1) and (4) (b) of the Constitution and (b) the appellant's non-compliance with the court's order was an abuse of process. Even though a finding was made that the respondent's constitutional right to a fair trial had been infringed, the charge against the respondent was dismissed on the ground of abuse of process as a result of the appellant's non-compliance with the court's order.

In the circumstances of what occurred, I am of the opinion that the trial should have been adjourned in order to give the respondent adequate time to prepare his defence. That would have satisfied the respondent's specific right provided in art 9(4) (b) and at the same time safeguard his primary right to a fair hearing provided in art 9(1). This would have been the appropriate course to take as there was no evidence that an adjournment would have been unduly prejudicial to the respondent. Such an adjournment could have been accompanied by an order to the appellant to serve on the respondent's counsel within one or two days a legible copy of the trial document which the respondent's counsel found difficult to read.

I am also of the opinion that there was no violation of the respondent's right to a fair hearing provided in art 9(1). In the first place, this is not a case where it was impossible to achieve a fair trial. The obstacle in the way of a fair trial created by the late service of trial documents by the appellant on the respondent's counsel could have been overcome by an adjournment to give the respondent adequate time to prepare his defence. Such an adjournment, as I was informed from the bar, would have been for two months. There was, as already mentioned, no suggestion that such an adjournment would have been unduly prejudicial to the respondent. If it had been impossible to achieve a fair trial by any means available to the court then there would have been a violation of the respondent's right to a fair trial because it means that the respondent had been effectively denied the right to a fair trial which is given to him by art 9(1). Secondly, if the hearing had proceeded notwithstanding the late service of copies of the trial documents by the appellant, it would have been arguable that the respondent's right to a fair trial had been violated because he did not have adequate time to prepare his defence contrary to art 9(4) (b). But the hearing did not proceed. So the respondent did not have an unfair hearing. There is no other basis that I can see by which it can be said that the respondent's right to a fair trial had been violated. I have therefore come to the view that there had been no violation of the respondent's constitutional right to a fair trial.

ABUSE OF PROCESS

As mentioned earlier, on 23 March 2004 the respondent entered a not guilty plea in the District Court to the amended charge of threatening to kill which carries a maximum penalty of three years' imprisonment. The court then adjourned the case for hearing to 23-24 August 2004 and ordered the appellant to serve copies of all its trial documents on the respondent's counsel within 45 days. That was to be by about 6 May. The appellant only served copies of its trial documents on 19 and 20 August. There was, therefore, non-compliance by the appellant with the court's order in respect of the time period within which the trial documents should have been served. This non-compliance was due to an oversight on the part of the appellant's counsel, who is one of the most busy members of the Bar given the number of cases in which he appears as counsel before the courts. On 23 August, the day on which the hearing was to start, counsel for the respondent moved to dismiss the charge against the respondent. One of the grounds of that application was that the appellant's failure to comply with the court's order amounted to an abuse of process. The charge was dismissed on that ground.

In the context of criminal proceedings, when there is a complaint of abuse of process, there are two fundamental policy considerations which the court must take into account in dealing with such a complaint. This was explained in Williams v Spautz [1993] 2 LRC 659 at 667-668 in joint judgment delivered by Mason CJ, Dawson, Toohey and McHugh JJ where their Honours said:

'As Lord Scarman said in R v Sang [1979] 2 All ER 1222 at 1245, every court is "in duty bound to protect itself" against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464 at 481 in a passage which Mason CJ quoted in Jago v District Court (NSW) (1989) 168 CLR 23 at 30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by state and citizen alike. The second is that, unless the court protect its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.'

The experience of other common law jurisdictions, for example, England, Australia and New Zealand, has shown that the circumstances which may constitute abuse of process are so varied that the categories of circumstances which constitute abuse of process cannot be defined exhaustively. It is therefore often said that the categories of abuse of process are not closed. In the context of criminal proceedings, some of the situations which would constitute abuse of process include the bringing of a prosecution or an improper purpose or ulterior motive, conduct on the part of the prosecution which has made it impossible to achieve a fair trial or deliberate non-compliance with orders of the court which have tarnished the integrity of the court. Whether or not such circumstances would amount to abuse of process because they 'offend the court's s rise of justice and propriety' or 'strike at the public confidence in the court's processes and so diminish the court's ability to fulfil its function as a court of law' or 'tarnish the court's own integrity' will depend on the facts of ach case.

Generally speaking, there is nothing more serious that offends the court's sense of justice and propriety in the context of criminal proceedings than to subject a defendant to a trial that will be unfair. The court will therefore employ all the means available to it, including an adjournment, to prevent an unfair trial from being held, provided that a fair trial can still be achieved in the circumstances of the case. To put it another way, it is the duty of the court, as far as it is practicable, to ensure that a fair trial takes place and an unfair trial is avoided. If, in the circumstances, it is not possible to achieve a fair trial, then to appease the court's sense of justice and propriety, the usual remedy is to stay the prosecution or dismiss the charge. That will ensure that the defendant will not be subjected to an unfair trial. However, if the trial had already been held and completed and there was unfairness to the defendant which rendered the trial unfair, then to appease the court's sense of justice and propriety which has been offended, the ordinary remedy if the defendant had been convicted is to quash or set aside the conviction. In some cases it may also be appropriate, in addition to setting aside the conviction, to order a retrial. This would be done on appeal or on an application for a retrial.

As Samoa has a written Constitution which guarantees to every person charged with an offence the right to a fair trial under its art 9, one would expect that complaints about alleged violations of the right to a fair trial would be brought under art 9 and be dealt with under the Constitution. The courts, of course, still retain their jurisdiction to deal with such complaints under the common law doctrine of abuse of process.

The focal point of the judgment under appeal, as I understand it, is that the appellant's non-compliance with the court's order if allowed to remain unchecked will undermine the court's ability to function as a court of law or tarnish the integrity of the court's orders and its processes and thereby strike at the public confidence in the administration of justice. The court's order that the appellant failed to comply with was a pre-trial procedural order requiring the appellant to serve on counsel for the respondent copies of all of its trial documents within a certain period. It is obvious that the purpose behind the order was to ensure that the respondent had adequate time and facilities to prepare his defence before the trial. Compliance with the order was required to ensure that a fair trial could be held. Non-compliance with the order could have led to an unfair trial unless the trial was further adjourned to provide adequate time to the respondent to prepare his defence. The learned District Court Judge also saw the non-compliance in this case as undermining the court's ability to function as a court of law and as tarnishing the integrity of the court's processes and thereby undermining public confidence in the administration of justice f allowed to remain unchecked. The ultimate question I have to decide is whether in the circumstances of this case the appellant's non-compliance with the court's order constituted an abuse of process which justified a dismiss of the charge. To answer this question I have found it helpful to refer to some of the relevant Australian and New Zealand cases.

In R v Cox (1997-8) 196 LSJS 3 Cox J in the Court of Criminal Appeal of South Australia, with the concurrence of Prior and Williams JJ, said:

'But there is a more fundamental obstacle to the acceptance of Mr Shaw's general submission about procedural unfairness in this case. As a ground for staying or invalidating a trial, procedural fairness may take a number of different forms. The case law on the subject is growing. See, for example, King v R [1987] LRC (Crim) 153, Walton v Gardiner (1993) 177 CLR 378 and Rona v District Court of South Australia (1995) 63 SASR 223. Of course, the oppression or injustice or unfairness will have to be clearly established and instances of a conviction being set aside on broad principles of procedural unfairness are likely to be uncommon. It is necessary to remember that we live in an imperfect world and no accused is entitled to a flawless trial. Here much was made of the case management rules and the obligation of the Crown to conform with them. It failed to do so when it did not provide the defence with Garde's witness statement at the proper time and in a form that accorded fully with the evidence that he would eventually be asked to give, with the result, it was said, that the appellant did not have the trial to which he was entitled. So the submission ran, his conviction should be set aside, whether any actual prejudice or unfairness has been established or not. However, it is a regrettable but common feature of our trial practice that the Crown will produce new or supplementary witness statements up to the eve of the trial and sometimes during the trial itself. The lateness may be justifiable or it may not, and it will always be a matter for the trial judge, if the defence may be embarrassed, to decide whether the Crown should be permitted to call the late evidence. The Court makes every effort, through its status conferences and the undertakings it requires, to keep such occurrences to a minimum, but new counsel are briefed and counsel have second thoughts and additional witnesses simply turn up and so on, and it will tilt the scales of justice markedly and undesirably if the Court were to impose a blanket prohibition on late evidence. The Court must set its face against laxity or complacency in this area, and the normal sanction will be the exclusion of the evidence when it could be unfair in all the circumstances to admit it. If it can be allowed on just terms, most obviously by granting any necessary adjournment, sometimes by allowing the witness to be cross-examined on a voir dire, then that will ordinarily be the end of the matter. It will be a rare case indeed in which a defendant, although shown not to have been prejudiced by the lateness of the evidence, may nevertheless have his conviction set aside by reason of its introduction into the trial.'

In the Supreme Court of Queensland in R v Harker [2002] QSC 61 Mackenzie J, after referring to such cases as Jago v District Court (NSW) (1989) 168 CLR 23, Williams v Spautz [1993] 2 LRC 659 and Moevao v Department of Labour [1980] 1 NZLR 464, said:

'10] In R v Cooney (1987) 31 A Crim 256, where the facts were less meritworthy for the prosecution than in the present case, the Court of Criminal Appeal refused to stay a second indictment after a nolle prosequi had been entered on an identical indictment in circumstances which "frustrated the method of listing cases". Andrew CJ said the following (264): "There may be a rare case in which conduct by the prosecuting authority is so blatantly abusive as to call for a gesture on behalf of the Court resulting in a stay, the better to ensure that there will be no repetition of such behaviour."'

Mackenzie J then went on to say:

'[11] While superior Courts have the power to ensure that their process is not used as an instrument of oppression, it is not the proper approach to equate that power to one to punish the prosecuting authority for non-compliance with case management procedures (Rona v District Court of South Australia (1995) 77 A Crim R 16) or, in my opinion, a failure to indict within a prescribed time limit, if there is a clear explanation of the failure and such non-compliance or failure is not aggravated in some way by other factors. The kind of cases referred to in the passage quoted from Cooney should truly be rare.

[12]... [Mr East] submitted [this] was one of the rare cases where the prosecution's conduct was so blatant that a stay was justified to prevent the administration of justice being brought into disrepute and to prevent such misbehaviour in future.

[13]... To the extent that it is implicit in those submissions that it is appropriate to impose a sanction upon the Director of Public Prosecutions for not complying with the time limit, it is important to remember that the reason why compliance with s 590 was not achieved was an administrative malfunction or incompetence on the part of someone in that office. That is far removed from a case where there has been a deliberate attempt to avoid prescribed procedures. Administration incompetence on the part of a prosecuting authority is to be deplored, but it does not, without more, equate to an abuse of process, applying proper principles.'

In New Zealand in Allen v Police (1998) 16 CRNZ 23 at 31, which was relied upon by counsel for the respondent, Giles J, in the High Court of New Zealand, when dealing with an appeal from the District Court regarding the pre-trial failure of the prosecution to supply certain records requested by the defence, said:

'In my view, this Court has given previous indications to prosecutors that this kind of information must be provided upon request. If there is a blatant and/or unexplained failure or refusal so to do, then the defence is entitled to take that point and seek dismissal of the information. Although the trial judge would retain an overall discretion as to an adjournment application if same was forthcoming from the prosecutor, in the absence of a proper explanation for the delay, and bearing in mind that a person charged with an offence is entitled to have the matter determined without undue delay (s. 25(b) New Zealand Bill of Rights Act 1990) an unduly benevolent attitude to a prosecutor-originated adjournment application might be undeserved. The position will no doubt be different if the prosecutor seeks the adjournment and is able to justify the reasons for non-compliance with the request. But it cannot be right to place the onus on the defence to seek an adjournment to enable the prosecutor to discharge his or her duty, neither can it be right to require a defendant to proceed to trial with the obvious risks of so doing when disclosure has been sought and refused. If, upon a timely request the prosecution elects not to respond, then, in my view, there are fatal consequences for the prosecutor since, in most cases, a ground for dismissal for abuse of process or prejudice to the process of a fair trial will have been per se established. The abuse lies in deliberate failure/refusal to supply, the prejudice lies in denial of the ability to assess the history and reliability of the device in order to determine whether there is a defence point to be taken. I do not see the issue as one of discipline, rather one of fairness.'

It will be seen that the approach taken in Allen v Police is strict in the way it is framed as compared to the approach which was adopted by the New Zealand Court of Appeal in R v Pahau (2001) 19 CRNZ 21 or by the High Court of New Zealand in Herewini v Ministry of Transport [1992] 3 NZLR 495 at 496. The Allen approach is also inconsistent with the approach stated by Cooke P in R v Accused (CA 247/91) [1992] 2 NZLR 187 at 193 in relation to the ordinary remedy to be applied by the court under s 368 of the Crimes Act 1961 (NZ) when there is non-compliance by the Crown with its obligation to supply briefs of evidence to the defence. These New Zealand authorities have been referred to earlier in this judgment. In the other case of Holloway v Police (1999) 16 CRNZ 647 Chisholm J in the High Court of New Zealand, distinguished Allen and held that the failure of the police in that case to disclose all information to the defendant for the preparation of his defence in spite of a request from the defendant for information was not blatant, deliberate or unexplained and therefore dismissed the appeal from the District Court where the defence of abuse of process as rejected.

In Australia, the approach which the courts have adopted to the question of whether criminal proceedings should be permanently stayed on the ground of abuse of process requires the court to embark on a balancing exercise of various factors and considerations. This approach is set out in Walton v Gardiner (1993) 177 CLR 378 at 395-396, here Mason CJ, Deane and Dawson JJ in a joint judgment said:

'As was pointed out in Jago v District Court (NSW) (1989) 168 CLR 23, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.'

In R v Pahau (2001) 19 CRNZ 21 a similar approach to Walton v Gardiner which involves a weighing process and the balancing of a variety of factors and considerations was applied by the New Zealand Court of Appeal in rejecting a submission by counsel for the appellant, that due to the failure of the Crown in a District Court prosecution to disclose to the defence the evidence of certain witnesses in a timely fashion, those witnesses should not have been permitted to be called and that the trial should have been stayed. In delivering the judgment of the Court of Appal Thomas J said:

'[In] the absence of any suggestion that the Crown was seeking to ambush the defence or otherwise acting in bad faith, an adjournment is the appropriate method of dealing with any prejudice to the accused. The interest of the community in ensuring that guilty persons are convicted outweighs any procedural defect or delay which can be rectified by granting an adjournment. To the extent that Allen v Police is inconsistent with this approach it is in error.' (See (2001) 19 CRNZ 21 at 23.)

It is also to be noted that the jurisdiction to grant a permanent stay of criminal proceedings on the ground of abuse of process is one which is not to be exercised except in the clearest of cases: see, for example, R v Power [1994] 1 SCR 601 at 611 and Fox v A-G [2003] 3 LRC 69, which were referred to in a Police v Joseph Lafaele Faulkner (No 2) (20 April 2005, unreported). Other formulations of the same approach is that the jurisdiction to stay criminal proceedings on the ground of abuse of process is one to be exercised in the most exceptional circumstances: see Williams v Spautz [1993] 2 LRC 659 at 675, or is one which must be exercised carefully and sparingly and only for very compelling reasons: see Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94 at 120. The onus of establishing abuse of process is on the party alleging abuse and it is a heavy one: see Goldsmith v Sperrings Ltd [1977] 2 All ER 566 at 582.

In this case, I am of the view that non-compliance with the District Court's order that occurred due to an oversight on the part of counsel for the appellant does not amount to an abuse of process. Something much more serious than that is required. The non-compliance being due to mere oversight cannot, in the circumstances, be described as blatant or deliberate or abusive. I respectfully differ from the District Court judge that what occurred in this case would offend the court's sense of justice and propriety or undermine public confidence in the administration of justice and therefore amounts to abuse of process which justifies dismissal of a serious criminal charge. The public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime must also be weighed on the judicial scale. The public interest in fairness to the accused could have been satisfied by granting an adjournment to provide adequate time and facilities to the respondent to prepare his defence. On balance, I am of the view that the overall interests of justice did not justify the dismissal of the charge against the respondent without a trial. The appeal is therefore allowed.

JURISDICTION OF THE DISTRICT COURT TO DEAL WITH ALLEGED VIOLATIONS OF CONSTITUTIONAL RIGHTS

The remaining ground of appeal which is that the District Court does not have jurisdiction to deal with alleged violations of constitutional rights is too broadly stated, as there are several fundamental rights guaranteed by the Constitution. The only such right which is in issue here, and with which the court is concerned in this judgment, is the right to a fair trial. I will therefore restrict what I say in this part of my judgment to that right.

Article 9(1), which enshrines the right to a fair trial, provides, as far as relevant for this part of my judgment:

'In the determination of... any charge against him for any offence, every person is entitled to a fair... hearing... by [a] tribunal established under the law.'

It is clear that the right to a fair hearing would apply to every criminal trial held before a court to determine a charge which has been laid against any person. That would include a criminal trial held in the District Court, which is a subordinate court established by statute. Both counsel in this appeal appeared to accept that position. It is elementary law that it is the duty of every court in criminal proceeding to ensure a fair trial. It follows that a court, including the District Court, has the necessary power to perform that duty in an effective manner in order to achieve a fair trial. To impose on the courts the duty to ensure a fair trial without the necessary back-up power could undermine the right to a fair trial and lead to unfairness. It follows that the District Court has power in a criminal proceeding to deal with alleged violations of the constitutional right to a fair trial made at any stage of the proceedings, including the pre-trial stage, and to make rulings on such alleged violations. The very high number of criminal cases with which the District Court has to deal further makes it clearly necessary for that court to have such power. Decisions of the District Court are subject to appeal and review so that any person who is not satisfied with a ruling on an alleged violation of the constitutional right to a fair trial may appeal or apply for review whichever is appropriate. It is also to be borne in mind that District Court judges are legally qualified, they are not lay judges.

Even though Australia and New Zealand do not have a right to a fair trial guaranteed by a written Constitution, the authorities in those jurisdictions on the power of the District Court to deal with complaints of alleged violations of the right to a fair trial lend support to the view I have expressed. In Rona v District Court of South Australia (1995) 63 SASR 223 at 226 King CJ said in the Supreme Court of South Australia:

'The District Court is created by statute, namely the District Court Act 1991, and its jurisdiction and powers are conferred by the statute. It is unable to draw upon "the well of undefined powers which is available to the Supreme Court" (Grassby v R [1991] LRC (Crim) 32 at 44 per Dawson J) by reason of section 17 of the Supreme Court Act 1935. There is no doubt, however, that the District Court has power to stay criminal proceedings, permanently if necessary, to prevent abuse of its process: Jago v District Court of New South Wales (1989) 168 CLR 23, whether that power is regarded as inherent in the court by reason of its being a court of justice (Jago's case per Mason CJ at p 26) or as implied by the grant of jurisdiction in s 9 of the District Court Act (Grassby v R [1991] LRC (Crim) 32 at 44 per Dawson J). That the power of a court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled; Williams v Spautz [1993] 2 LRC 659 ... the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial, Barton v R (1980) 147 CLR 75... and with preventing the prosecution of proceedings brought for an improper purpose, Williams v Spautz...'

The distinction between an 'inherent power' and an 'implied power' alluded to by King CJ in Rona was explained as fundamental by Dawson J in Grassby v R [1991] LRC (Crim) 32 at 44. Anyone who is interested in being further enlightened on that distinction is advised to read Grassby [1991] LRC (Crim) 32 at 44.

In New Zealand the Court of Appeal has held that the New Zealand District Court has the necessary power to control its own proceedings to ensure fairness, determine preliminary questions of law and fact, and prevent abuse of process. In McMenamin v A-G [1985] 2 NZLR 274 at 276 it was said:

'An inferior Court has the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on it by statute. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of that process.'

In Comr of Police v Ombudsman [1988] 1 NZLR 385 at 399, which was a case under the Official Information Act 1982 (NZ), Cooke P said:

'In proceedings on indictment there is no reason why a High Court judge cannot determine a preliminary or incidental question as to whether the accused has received information to which he is entitled under the Official Information Act. In my opinion the same applies to a District Court Judge in relation to summary proceedings. Inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact: O'Toole v Scott [1965] 2 All ER 240 at 247, Re G J Mannix Ltd [1984] 1 NZLR 309 and McMenamin v A-G [1985] 2 NZLR 274 and the authorities there collected at p 276.'

In A-G v The District Court of Otahuhu [2001] 3 NZLR 740 Richardson J, when dealing with the powers of the District Court to make pre-trial rulings, cited with approval the above passages from McMenamin v A-G and Comr of Police v Ombudsman. His Honour also said (at 746):

'As a statutory Court of limited jurisdiction the District Court does not have an inherent jurisdiction to make an order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction.'

One of the recognised categories of abuse of process at common law is the prosecution of a criminal proceeding which will result in a trial which is unfair or conduct on the part of the prosecution which will make it impossible to give the defendant a fair trial: see Williams v Spautz [1993] 2 LRC 659 at 667 and Bennett v Horseferry Road Magistrates' Court [1993] 3 LRC 94 at 119. The power of the District Court to control and regulate its own proceedings to prevent abuse of process must therefore include the power to ensure a fair trial and to determine and rule on any complaints or allegations, made in the course of criminal proceedings, that the right to a fair trial will be or is being violated.

In view of this discussion, I reject that the District Court does not have the power to deal with allegations of violations of the constitutional right to a fair trial made in the course of criminal proceedings held before that court. The District Court has such power and may make rulings on alleged violations of the constitutional right to a fair trial raised in the course of criminal proceedings.

CONCLUSIONS

The appeal is allowed and the decision of the District Court dismissing the charge against the respondent as defendant is set aside. The case is referred back to the District Court for the respondent to stand trial. The District Court may make the appropriate order in respect of the trial document which counsel for the respondent has found difficult o read.

In the circumstances of this case, I make no order as to costs.

Before leaving this case, I am grateful to counsel for the respondent for his customary industry. His citation of authorities has been helpful in my preparation of certain parts of this judgment.

Solicitors:
Toailoa & Associates for the appellant.
Leung Wai for the respondent.