Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v A [2014] WSSC 60 (12 June 2014)

SUPREME COURT OF SAMOA

Police v A & B [2014] WSSC 60

Case name: Police v A & B

Citation: [2014] WSSC 60

Decision date: 12 June 2014

Parties: POLICE appellant AND A first respondent, a young male offender AND B second respondent, a young male offender.

Hearing date(s): 6 June 2014

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU

On appeal from: DISTRICT COURT

Order:
The appellant does not have a right of appeal from the Youth Court to this Court and dismissed the appeal.

Representation:
L Su’a-Mailo and B Faafiti-Lo Tam for appellant
S H Wallwork for first respondent
T Atoa for second respondent

Catchwords:
Young Persons, habeas corpus

Words and phrases:

Legislation cited:
Criminal Procedure Act 1972 s.133 (2)
Young Offenders Act 2007 s.6 (7), s.5 , s.2
Constitutional and Administrative Law in New Zealand

Cases cited:
Allbeury v Corruption and Crime Commission [2012] WASCA 84
Guy v Medical Council of New Zealand [1995] NZAR 67
Potter v Minaha [1908] HCA 63; (1908) 7 CLR 277
R v Snow [1915] HCA 90; (1915) 20 CLR 315
Smith v R (1994) 125 ALR 385
Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547
Wall v R; Ex parte King Won (No 1)(1927)39 CLR 245
Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Appellant

A N D

A who is a young male offender.
First Respondent

A N D

B who is a young male offender.
Second Respondent

Counsel
L Su’a-Mailo and B Faafiti-Lo Tam for appellant
S H Wallwork for first respondent
T Atoa for second respondent

Hearing: 6 June 2014
Judgment: 12 June 2014

Reasons for Judgment: 30 June 2014

REASONS FOR JUDGMENT

Introduction

1. When the hearing of this appeal was to start on 30 May 2014, I raised with counsel as a preliminary issue the question of whether the appellant has a right of appeal in this matter under the Young Offenders Act 2007. In consequence, the hearing of the appeal was adjourned to give counsel time to prepare submissions on that issue.
2. On 6 June 2014 I heard submissions from counsel for all parties and I am grateful to counsel for their well prepared submissions. On 12 June I delivered judgment orally dismissing the appeal essentially on the ground that in this case the appellant does not have a right of appeal. At the same time I indicated to counsel that I will prepare a written judgment with reasons which will be delivered to counsel in due course. This is that written judgment.

Background

3. I do not for present purposes need to traverse the history of these proceedings through this Court and the Youth Court. That is set out in detail in the submissions for the appellant which was the informant in the Youth Court proceedings and in the submissions for the first respondent who was the first defendant in the same proceedings. Essentially, the first respondent A who is 14 years of age and the second respondent B who is 16 years of age were alleged young offenders in terms of the definition of “Young Persons” in s.2 of the Act and the jurisdiction of the Youth Court in s.5 of the same. They were jointly charged with an adult offender with one charge of with intent to cause grievous bodily harm did wound the victim of the alleged offence and with one charge of assaulting the victim of the alleged offence thereby causing grievous bodily harm to the victim. The respondents pleaded not guilty to both charges in the Youth Court. Both offences with which the respondents were charged were triable in the Youth Court but because of their maximum penalties they were also triable in this Court.
4. Pursuant to s.6 (7) of the Young Offenders Act 2007, the appellant as the informant made application to Judge Tuatagaloa in the Youth Court for both charges to be transferred to the Supreme Court so that the respondents could be tried together with the adult co-accused. The reasons given in support of that application are set out in the submissions of counsel for the appellant. Judge Tuatagaloa on 18 October 2013 declined the appellant’s application. That decision by Her Honour is the subject of the first limb of the present appeal.
5. This matter was then set down for hearing in the Youth Court in December 2013. However, prior to the date of hearing, the appellant filed an appeal by way of case stated against the decision of Judge Tuatagaloa. By a decision dated 6 December 2013, Her Honour declined to state a case for the reasons she set out in that decision. One of those reasons is that the appellant has no right of appeal by way of case stated against the exercise of discretion under s.6 (7) of the Young Offenders Act 2007. That decision is the subject of an application by the appellant for an order to the Youth Court to state a case for the determination of this Court pursuant to s.131 (2) of the Criminal Procedure Act 1972.
6. Then on 16 December 2013 this matter proceeded to a hearing before Judge Vaai in the Youth Court. At the conclusion of the evidence called by the appellant as informant, His Honour upheld a submission of no prima facie case from counsel for the respondents and dismissed both charges against the respondents. That decision is the subject of the second limb of the present appeal.

The issues

7. For present purposes, there are three issues for determination in these preliminary proceedings. For convenience, I will set these out as follows. The first issue is whether the appellant has a right of appeal to this Court under the Young Offenders Act 2007 against the decisions of the Youth Court. The second issue is whether s.131 (1) of the Criminal Procedure Act 1972 applies to this case to give the appellant a right of appeal by way of case stated to this Court against the decisions of the Youth Court. The third issue is whether the appellant can make application to this Court under s.133 (2) of the Criminal Procedure Act 1972 requiring the District Court Judge to state a case for determination by this Court.
8. A right of appeal is a statutory right. It is a creature of statute. There is no such thing as a common law right of appeal. Thus, this Court does not have inherent jurisdiction to confer a right of appeal. That is for Parliament to do as it sees fit.
9. In the Western Australian case of Allbeury v Corruption and Crime Commission [2012] WASCA 84, McLure P said at para 80:

“A right of appeal is a creature of statute. It is not a common law remedy. See Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 435 – 436 (Dixon J); Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192, 201 – 202 (Windeyer J).

10. In the New Zealand case of Guy v Medical Council of New Zealand [1995] NZAR 67, Tipping J said at pp. 93-94:

“Appellate powers are purely statutory. There is no such thing as a common law right of appeal”.

11. An appeal involves adjudication by the Court on the merits of the decision which is the subject of the appeal and the Court may substitute its own decision for that of the decision-maker: Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph p.735, para 20.3.3.
12. As this case also involves an acquittal of the respondents when Judge Vaai held in the Youth Court that there was no prima facie case against them , I would refer to the presumption against the prosecution having a right of appeal where there has been an acquittal on a criminal charge and there is no express statutory provision giving the prosecution a right of appeal against an acquittal. In Statutory Interpretation in Australia (1996) 4th ed by DC Pearce and RS Geddes, the learned authors state at paragraph 5.21:

“[5.21] The Courts have shown a marked reluctance to concede that an Act permits a right of appeal from a decision favourable to the citizen. In Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547 the Federal Court ruled that the words conferring jurisdiction on the Court ‘to hear and determine appeals’ were not sufficient to override the general presumption that a person who has been acquitted of a criminal offence should not be liable to have that acquittal challenged on appeal. It needed the clearest possible terminology to achieve this effect. In R v Snow [1915] HCA 90; (1915) 20 CLR 315 the question arose whether an appeal lay to the High Court from a verdict of acquittal entered by a jury. Section 73 of the Constitution empowers the High Court to hear and determine appeals from all ‘judgments, decrees, orders and sentences’ of state Supreme Courts. Griffith CJ said at 322: ‘If it had been intended by the framers of the Constitution to abrogate that doctrine [that no appeal lay from verdicts of acquittal] in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any Court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language’. He then continued by quoting the passage from Maxwell set out in the judgment of O’Connor J in Potter v Minaha [1908] HCA 63; (1908) 7 CLR 277 . . . A similar approach to that taken by Griffith CJ was followed by the Full High Court in Wall v R; Ex parte King Won (No 1)(1927)39 CLR 245 in regard to the right of the Crown to appeal from an order of a Supreme Court issuing a writ of habeas corpus discharging a prisoner from custody. No such right of appeal existed at common law and the Court held that as the Act did not expressly allow such an appeal then it should not be taken that such an appeal was intended to be available. See also Smith v R (1994) 125 ALR 385 where the High Court in a somewhat different context held that no appeal lay against an order of a single Judge of the Supreme Court of Victoria permanently staying a prosecution.”

First issue:Does the appellant have a right of appeal to this Court under the Young Offenders Act 2007 against the decisions of Judges Vaai and Tuatagaloa in the Youth Court?

13. The Young Offenders Act 2007 is a special legislation. Section 4 of the Act establishes the Youth Court as a specialised Court and as a division of the District Court. The long title to the Act provides:

“An Act to provide a criminal justice system for Young Persons, their treatment by the Courts and related purposes”.

14. Section 5 which provides for the jurisdiction of the Court stipulates:

“(1) Subject to subsection (3), any criminal charge brought against a Young Person shall be laid in the Youth Court and the hearing of each charge will be subject to the provisions of this Act.

(2) Any Young Person who is charged with a criminal offence must be dealt with in accordance with the provisions of this Act.

(3) A charge of murder against a Young Person shall be laid in the Supreme Court and dealt with by the Supreme Court.

15. Section 24, which is the appeals provision, then provides:

“(1) Any Young Person convicted or sentenced in the District Court may appeal to the Supreme Court against his or her conviction and/or sentence.

“(2) Any Young Person convicted or sentenced in the Supreme Court may appeal to the Court of Appeal against his or her conviction and/or sentence”.

15. It is clear from s.24 that there is no right of appeal conferred on the informant or the prosecution under that provision. Only a “Young Person” is given a right of appeal. The appellant as the informant in the Youth Court proceedings is given no right of appeal under s.24. The decisions of Judges Vaai and Tuatagaloa in the Youth Court are therefore not subject to any appeal under s.24. In fairness to counsel for the appellant, they did not contend otherwise.
16. There is one other matter in relation to s.24 (1) that I wish to point out. Section 24 (1) refers to an appeal by a Young Person against conviction or sentence or both from the “District Court” and not from the “Youth Court”. It is not clear whether for the purposes of s.24 (1) the “District Court” means the “Youth Court” or includes the “Youth Court”. The point was not addressed in the submissions of counsel. Anyway, it does not affect the conclusion I have reached that the appellant does not have a right of appeal under the Young Offenders Act 2007 against the decisions of Judges Vaai and Tuatagaloa in the Youth Court.

Second issue: Does s.131(1) of the Criminal Procedure Act 1972 apply to this case to give the appellant a right of appeal by way of case stated to this Court against the decision of Judge Tuatagaloa in the Youth Court declining to transfer the charges against the respondents to the Supreme Court?

17. Section 131 (1) which is the relevant subsection of s.131 provides:
    

“(1) Where any information has been decided by a District Court Judge, either party may, if dissatisfied with the decision as being erroneous in point of law, appeal to the Supreme Court by way of case stated for the determination of that Court on a question of law only”.

18. It was argued by counsel for the appellant that s.131 (1) of the Criminal Procedure Act 1972 applies to the proceedings before Judge Tuatagaloa and therefore gives the appellant a right to appeal to this Court by way of case stated on a point of law against the decision of Her Honour declining the appellant’s application in the Youth Court to transfer the informations charging the respondents to the Supreme Court pursuant to s.6 (7) of the Young Offenders Act 2007 so that they could be tried together with an adult co-accused. Counsel for the respondents, on the other hand, argued that s.131 (1) does not confer a right of appeal by way of case stated on a point of law against Her Honour’s refusal to transfer the informations to the Supreme Court.
19. In my respectful view, s.131 (1) of the Criminal Procedure Act 1972 does not apply to the proceedings that were held before Judge Tuatagaloa so as to give the appellant a right of appeal by way of case stated against Her Honour’s decision made pursuant to s.6 (7) of the Young Offenders Act 2007 not to transfer the charges against the respondents to this Court. This is because Parliament could not have intended s.131 (1) to apply to the exercise of discretion under s.6 (7). I will now explain why.
20. It is clear from s.24 of the Young Offenders Act 2007 that in enacting that Act, Parliament did direct its mind to the question of appeals from decisions of the Youth Court as a division of the District Court. Parliament was not silent on the matter. It expressly provides for a right of appeal of a Young Person against conviction or sentence or both from the “District Court” to the Supreme Court. It also provides for a right of appeal of a Young Person against conviction or sentence or both from the Supreme Court to the Court of Appeal. There is no other right of appeal provided in the Young Offenders Act 2007. In particular, the Act does not provide for an appeal by way of case stated on a point of law from the Youth Court to the Supreme Court or any other Court. The Act also does not provide that s.131 (1) of the Criminal Procedure Act 1972 which is concerned with an appeal by way of case stated on a point of law from the District Court to the Supreme Court applies to a decision of the Youth Court. In my opinion, if that had been the intention of Parliament when it enacted the Young Offenders Act 2007, it could have easily said so in the Act. But it did not. There are also provisions of the Young Offenders Act which show that Parliament when enacting that Act did have the Criminal Procedure Act in mind. This is s.6(1) which provides that the rules of criminal procedure shall apply to defended hearings in the Youth Court and s.22 (5) which refers to action that may be taken when a Young Person is in breach of his or her bail conditions.
21. Counsel for the appellant argued that s.131 (1) of the Criminal Procedure Act 1972 applies to the Youth Court and therefore gives the appellant, as informant in the Youth Court, a right to appeal by way of case stated on a point of law against the decision of Judge Tuatagaloa declining the appellant’s application under s.6 (7) of the Young Offenders Act 2007 to transfer the informations charging the respondent in the Youth Court to the Supreme Court so that they could tried together with an adult co-accused. They relied on ss.3 (1) and 131 (1) of the Criminal Procedure Act.
22. Section 3(1) provides:

“This Act shall apply to all proceedings in any Court where a person is proceeded against for an offence.

“Provided that, as to any matter of criminal procedure for which no special provision has been made by this Act or by any other law for the time being in force in Samoa, the law as to criminal procedure in New Zealand shall be applied so far as it shall not conflict or be inconsistent with this Act or any other law for the time being in force in Samoa”

23. Section 131 (1) has already been set out in para 18 of these reasons for judgment and need not be set out again. I have to say that the proviso to s.3 (1) does not apply to these proceedings. This is because the proviso refers “to any matter of criminal procedure” but an appeal is not a matter of procedure; it is a matter of right. In the often-cited judgment of the High Court of Australia in Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, Barton J in delivering the judgment of the Court said at p.31:

“Procedure may and generally does surround it, but the central notion of an appeal is undoubtedly a right”

24. As to the main clause of s.3 (1), it is to be remembered that the Criminal Procedure Act was enacted in 1972 when there was no Youth Court which was only established under the Young Offenders Act 2007. I am conscious of the approach to statutory interpretation that an Act is to be regarded as always speaking. But that is only an approach to assist in the interpretation of a statutory provision. It can be displaced by Parliament by express words or clear implication when enacting a subsequent legislation. The real question is, therefore, what was the intention of Parliament when it enacted the subsequent legislation. In this case, the real question is, did Parliament when enacting the Young Offenders Act 2007 intend s.3 (1) of the Criminal Procedure Act 1972, which is a procedural legislation, to apply to the Youth Court and confer on an informant in that Court a right of appeal by way of case stated on a question of law pursuant to s.131 (1). In my opinion, the answer must be in the negative. As already explained, Parliament was not silent on the question of appeals from the Youth Court when it enacted the 2007 legislation. It did direct its mind to that very question and decided to restrict the right of appeal from the Youth Court to the Supreme Court to that of a Young Person against conviction or sentence or both as provided under s.24 (1) of the 2007 Act. No right of appeal was given to the informant. As also mentioned earlier, there are also references in ss.6(1) and 22 (5) of the Young Offenders Act 2007 to the rules of criminal procedure and the Criminal Procedure Act 1972 respectively. So Parliament also had the Criminal Procedure Act 1972 in mind when enacting the Young Offenders Act 2007. But it did not provide in the 2007 Act that s.131 (1) or any other appeal provision of the Criminal Procedure Act 1972 is to apply to proceedings in the Youth Court. In my opinion, if that had been the intention of Parliament, it could have easily said so in the 2007 Act as it had done with the question of bail under s.22 (5) of the Act. The fact that Parliament had not done so, is an indication that it did not intend s.131 (1) or any other appeal provision of the Criminal Procedure Act 1972 to apply to proceedings in the Youth Court.
25. As an alternative to their arguments that the appellant has no right of appeal from the decisions of the Youth Court to the Supreme Court, counsel for the respondents further argued that s.131 (1) of the Criminal Procedure 1972 does not apply to the decision of Judge Tuatagaloa not to transfer the informations charging the respondents in the Youth Court to the Supreme Court pursuant to s.6 (7) of the Young Offenders Act 2007 because Her Honour had not “decided” the informations in terms of s.131 (1). I agree with counsel for the respondents.
26. Section 6 (7) gives a discretion to the Youth Court Judge to determine whether it is in the interests of justice to transfer an information which jointly charges a Young Person with an adult co-accused for trial in the Supreme Court or whether the Young Person should be tried in the Youth Court. A determination made a Youth Court Judge on this question is a determination as to which is the appropriate Court or forum in which the Young Person is to be tried as required by the interests of justice. This does not involve the making of a decision on an information. It only involves the making of a decision as to which is the forum for trial of the information. To say that such a determination means that the “information has been decided” by the Youth Court Judge in terms of s.131 (1) of the Criminal Procedure Act 1972 would be stretching those words beyond their ordinary and natural meaning. So s.131 (1) does not apply to the determination made by Judge Tuatagaloa pursuant to s.6 (7).

Third issue: Can the appellant make application to this Court under s.133 (2) of the Criminal Procedure Act 1972 for an order to the District Court Judge to state a case for determination by this Court?

27. Section 133 (2) of the Criminal Procedure Act 1972 is concerned with the refusal by a District Court Judge to state a case for the determination of the Supreme Court where in his or her opinion the appeal is frivolous. Section 133 (2) provides:

“Where the District Court Judge refuses to state a case under section 131 of this Act, the appellant may, within 21 days of such refusal, apply to the Supreme Court for an order requiring the District Court Judge to state a case. A copy of the application shall be served on the District Court Judge and on the other party, and the District Court Judge and the other party shall be entitled to appear and be heard”.

28. I have already come to the view that s.131 (1) of the Criminal Procedure Act 1972 does not apply to the decision of Judge Tuatagaloa in the Youth Court. It follows that s.133 (2) which is concerned with the refusal by a District Court Judge to state a case under s.131 would also not apply to the decision of Judge Tuatagaloa. The order sought by the appellant for Her Honour to state a case for the determination of this Court is therefore denied.
29. Perhaps, it should also be mentioned that the Criminal Procedure Act 1972 provides for criminal procedure generally. The Young Offenders Act 2007 is a special legislation which establishes a specialised Court with its own special procedures as provided in ss.6-9.
30. It is for the foregoing reasons that I had decided that the appellant does not have a right of appeal from the Youth Court to this Court and dismissed the appeal.
31. I have referred to the first respondent as A and the second respondent as B because of the provisions of s.8 of the Young Offenders Act 2007 regarding non publication of the name and identifying details of a Young Person.

-----------------------------

CHIEF JUSTICE