IN THE SUPREME COURT OF SAMOA
Sapolu v Saaga [2018] WSSC 24

Case name: 	Sapolu v Saaga	
		
Citation: 	[2018] WSSC 24	
		
Decision date: 	28 February 2018	
		
Parties: 	UNASA IUNI SAPOLU (Plaintiff) and DCJ TALASA SAAGA ATOA (Defendant)	
		
Hearing date(s): 	20 December 2017	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	For the foregoing reasons the claim is struck out in its entirety.
Counsel for the Defendant to file memorandum as to costs within 21 days.	
		
Representation: 	D Shahtahmasebi for the Plaintiff
S Ainuu and A Seiuli for the Defendant	
		
Catchwords: 	judicial immunity – District Court Judge – alleged bias – judicial oath – alleged delays	
		
Words and phrases:		
		
Legislation cited:	District Courts Act 1969 s. 109.
District Courts Act 2016 ss. 13; 30; 64; 64(4); 65.
New Zealand Summary Proceedings Act 1957 ss. 193-197.
Police Offences Ordinance 1961 s.4(g).
Supreme Court (Civil Procedure) Rules 1980 r.70.	
		
Cases cited:	Attorney General v Chapman [2011] NZSC 110;
Enosa v Samoa Observer Ltd [2005] WSSC 6 (29 April 2005);
Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668
Harvey v Derrick [1995] 1 NZLR 314;
Lands and Titles Court v Kalavini (Unreported, CA08/17, 15 September 2017);
Nakhla v McGarthey
Olinda Woodroffe v Justice Fisher [2017]  WSCA (unreported, 15 September 2017);
Quinn v Leathem [1901] AC 495 (HL)
R v Morin (1992) 1 SCR 771 (Supreme Court of Canada)
Reupena v Senara [2015] WSSC 53;
Sirros v Moore [1975] QB 118
Tafililupetiamalie v Attorney General [2015] WSSC 62;	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

UNASA IUNI SAPOLU
Plaintiff

A N D:

DCJ TALASA SAAGA ATOA
Defendant

Presiding Judge:	Justice Mata Keli Tuatagaloa

Counsel:		D Shahtahmasebi for the Plaintiff
			S Ainuu and A Seiuli for the Defendant 
			
Date:			28 February 2018

DECISION OF TUATAGALOA J
Background facts:
1. 	The civil suit against Judge Saaga brought by the Plaintiff concerns a criminal matter in the District Court whereby Judge Saaga found the Plaintiff, Iuni Sapolu, guilty.
2. 	The Plaintiff was charged with uttering an insulting word (“bitch”) pursuant to section 4(g) of the Police Offences Ordinance 1961. 
3. 	The matter was heard before Judge Saaga on the following dates:
(i)	09 November 2016;
(ii)	11 November 2016;
(iii)	16 November 2016.
4. 	From the pleadings, the evidence was completed on 16 November 2016 and was then adjourned to 16 December 2016 for the transcript of evidence and counsels submissions. 
5. 	The Plaintiff (Defendant) filed her submissions by 16 February 2017; the Prosecution never filed any submissions.  
6. 	Judge Saaga on 05 May 2017 delivered her conclusion or decision orally and the full written decision with reasons was made available on 13 May 2017. 
7. 	The Plaintiff (Defendant) was found guilty and was discharged without conviction by Judge Saaga.
8. 	On 19 May 2017 the Plaintiff filed a civil claim against Judge Saaga resulting from the criminal matter.
Statement of Claim:
9. 	The Plaintiff sues Judge Saaga alleging the following breaches:
(i)	Articles 9(1) and (3) of the Constitution;
(ii)	Articles 14(1) and 3(c) of the International Covenant on Civil and Political Rights (ICCPR);
(iii)	Section 13 of the District Courts Act 2016 (Oath);
(iv)	Apparent Bias 
10. 	The Plaintiff claims the following damages (in SAT $):
(i)	$5000.00 for compensatory damages;
(ii)	$4000.00 for exemplary damages;
(iii)	$1000.00 for cost of the action. 
11. 	In response, the Attorney General’s Office representing Judge Saaga filed a motion to strike-out the claim by the Plaintiff on 03 July 2017.
The Motion to Strike-out:
12. 	The motion to strike-out is premised on the following grounds:
(i)	The principle of judicial immunity; 
(ii)	That there is no Constitutional remedy because Plaintiff fails to show a breach of Constitutional right; and
(iii)	The causes of action are untenable at law with no prospects of success.
13. 	The Defendant also advanced the argument premised on section 64 of the District Courts Act 2016 that:
(i)	Judge Saaga has jurisdiction to hear the matter and was acting within her jurisdiction; and
(ii)	Judge Saaga was acting bona fide in discharging her judicial function and therefore the principle of judicial immunity applies.
Plaintiff’s Response to Strike-out:
14. 	The Plaintiff filed their opposition to the motion to strike out upon the following grounds:
(i)	Strike-out not to be used in developing areas of law, referring to s.64 of District Courts Act 2016 (‘DCA 2016’);
(ii)	Judicial immunity is not absolute and does not apply to Judges of the District Courts pursuant to s.64; and
(iii)	The causes of action are maintainable.
Principles of Strike-Out:
15. 	The Supreme Courts’ jurisdiction to strike out a claim is both inherent and by way of Rule 70 of the Supreme Court (Civil Procedure) Rules 1980 which provides the Court with the jurisdiction to strike out where no cause of action is pleaded or disclosed. 
16. 	The principles to be applied on an application to strike out a proceeding are well settled as follows:
a)	The jurisdiction is to be sparingly exercised;
b)	Pleaded facts are assumed to be true and are capable of proof;
c)	The cause of action must be clearly untenable. The Court must be certain that it cannot succeed; and
d)	The Court should be particularly slow to strike out a claim in any developing area of the law. However, the Court’s jurisdiction is not excluded by the need to decide difficult questions of law requiring extensive argument
17. 	The threshold issue is whether judicial immunity applies to District Court Judges.  If so, is it absolute?
Judicial Immunity:
18. 	Judicial immunity is a common law principle and is applicable to Samoa as long as it is not inconsistent with any of its laws or excluded by the existing statutory laws. 
19. 	The case law overseas and in Samoa has now settled that judicial immunity applies to anyone who discharges or exercises judicial functions. A range of policy considerations and international jurisprudence on the principle of judicial immunity has been well canvassed and referred to in the case of Tafililupetiamalie v Attorney General which case was the first on the issue of judicial immunity in Samoa. Tafililupetiamalie recognizes and reaffirms that judicial immunity as a common law principle pursuant to Article 111 of the Constitution has not been excluded by statute, therefore extended it to Judges of the District Courts and the Lands and Titles Court. 
20. 	Judicial immunity was recently further extended by the Court of Appeal in the case of Lands and Titles Court v Kalavini to Registrar of the Courts who exercise judicial functions.  The Court of Appeal in Kalavini with reference to Attorney General v Chapman said: 
“It is well established that judicial immunity does not apply simply to shield judges from claims for damages but extends to any person exercising judicial functions.”
Is judicial immunity absolute to District Court Judges? 
21. 	The extent of judicial immunity (according to international jurisprudence) lies with the jurisdiction of the Courts. That is, Judges of superior courts have general jurisdiction or inherent jurisdiction while inferior courts are limited to that provided by statute. The case of Sirros v Moore at [135] said of the immunity of superior courts that:
...Superior Courts are possessed of authority to determine judicially and authoritatively what those limits are......... “A Superior Court is protected even though the judge has exceeded his jurisdiction, so long as he has acted judicially.
And then of inferior courts:
All other Courts [that’s the Supreme Court], save the Court of Appeal are, in absence of express statutory provision to the contrary, inferior Courts of special jurisdiction, which observe the limits of that jurisdiction, but have no power to determine judicially and with authority what those limits are. 
22. 	McGrath and William JJ in Attorney General v Chapmansaid:
[165] The Court of Appeal’s decision in Harvey v Derrick meant that the position of District Court Judges differed notably from that of the Judges of Courts above the District Court in the hierarchy. This was because, unlike the Judges of the higher Courts, they were not given authority to determine their jurisdiction. 
23. 	Judicial immunity applies to District Court Judges. However such immunity does not apply where the Judge of the District Court acts in excess or without jurisdiction. 
The District Courts of Samoa:
24. 	The jurisdiction of a District Court Judge is defined by statute, the District Courts Act 2016 (“DCA”). The scope of the District Court jurisdiction is to be found in Part 3 of  DCA 2016 (for present purposes) confers to the District Court Judges the jurisdiction to deal with criminal offences which penalty is maximum seven years imprisonment (section 30). 
25. 	Part 3 of the District Courts Act 2016 refers to the exercise of judicial powers where such powers must be exercised with and within its jurisdiction (s.64) and the judges are indemnified should it be found to have exercised its judicial powers without or in excess of jurisdiction (s.65).  The claim against a District Court Judge for exercising its judicial powers without or in excess of jurisdiction is not to be heard or tried in the District Court (s.64(4)). 
26. 	The immunity of District Court Judges from suit must be determined in the context of section 64 and section 65 of DCA 2016. The statutory provisions clearly means that District Court Judges may be civilly liable if act “in excess or without jurisdiction”. 
27. 	Section 64  states:
64. No action lies unless act is in excess of or without jurisdiction.
No party or person is entitled to take action against any Judge...in relation to any judicial act, unless the Judge...has exceeded his or her jurisdiction or has acted without jurisdiction.
If a conviction, judgment or order is entered or made by a Judge...and a warrant of any kind is granted in relation to the conviction, judgment or order by another Judge.....no action lies against the Judge...who granted the warrant by reason of any defect in the conviction, judgment or order, or of any want of jurisdiction in the Judge...who entered or made it. 
A person claiming to have been injured by an act done by a Judge...in excess of jurisdiction or without jurisdiction, is not entitled to take action in that regard in the District Court.
In any action brought against a Judge by a person claiming to have been injured by an act done in excess of jurisdiction or without jurisdiction, the onus of proving the excess or want of jurisdiction lies upon the person alleging it.
Section 65 provides:
65. Indemnity to Judges and Faamasino Fesoasoani – (1) A Judge or Faamasino Fesoasoani against whom a judgment has been entered to pay damages or costs to any person injured as a result of any act done in excess of jurisdiction or without jurisdiction, is to be indemnified by the State to the full amount of the judgment, if the Supreme court certifies both of the following:
That the Judge or Faamasino Fesoasoani acted in good faith and with the belief that the manner was within the applicable jurisdiction;
That the circumstances were such that the Judge or Faamasino Fesoasoani ought fairly and reasonably to be excused.
(2)The provisions of subsection (1) apply if a claim against a Judge or Faamasino Fesoasoani is settled at any stage of the proceedings, but in such case the Supreme Court has authority to certify that the indemnity should be for lesser sum than the amount of the settlement.
(3)Application for a certificate under this section may be made by a Judge or Faamasino Fesoasoani at any time to the Supreme Court in Chambers.
(4)A copy of the application must be served by the Judge or Faamasino Fesoasoani on the Attorney General, who is entitled to appear and oppose it.
28. 	Prior to the District Courts Act 2016 was the District Courts Act 1969 (repealed). The immunity and the indemnity which existed under DCA 1969 (repealed) lives on in DCA 2016 under  s64 & s65 summarised as follows: 
DCA 1969		DCA 2016
S109(1) -	s64(1): immunity unless in excess or without jurisdiction
S109(2) -		s64(2): no action for any defect in form
S110 -	s64(3): no action against DCJ to be brought in District Court
S111 -			s64(4): onus of proof
S113 -			s65: full indemnity by the State
29. 	Section 64 and section 65 of the District Courts Act 2016 therefore, are not new but existed under different provisions in the repealed DCA 1969. It is clear that immunity has always been available to Judges of the District Courts as long as they do not act ‘in excess or without jurisdiction’. The case of Tafililupetiamalie reaffirmed this position.
30. 	This may be the first civil suit for damages against a District Court Judge in Samoa pursuant to section 64 but this does not exclude the Court’s jurisdiction from striking out a claim.  This was certainly the position in Tafililupetiamalie where the issue of judicial immunity was raised for the first time. His Honour the Chief Justice looked to international jurisprudence for guidance.  This was also the approach of Cooke P in Harvey v Derrick where he looked at international jurisprudence to evolve – “...there being no decision binding on this Court, we have to evolve in the light of international jurisprudence”.   
31. 	As there are no decision of this Court in relation to the scope of the statutory immunity of District Court Judges (s.64) I follow the same approach and turned to overseas jurisprudence specifically to New Zealand whose laws are similar (if not the same) as ours.
The New Zealand context:
The New Zealand Summary Proceedings Act 1957, sections 193 – 197 is similar (if not the same) to sections 64 & 65 of the District Courts Act 2016 summarised as follows:

Summary Proceedings Act 1957	DCA 2016 
S193(1) -	s64(1): immunity unless in excess or without jurisdiction
S193(2) -				s64(2): no action for any defect in form
S194 -					s64(3): no action against DCJ in District Court
S195 -					s64(4): onus of proof
S196A	-				s64: full indemnity by the State
32. 	The issue as to what amounts to ‘excess or without jurisdiction’ under s193(1) was first discussed in the case of Harvey v Derrick. The case focused on the interpretation of ‘jurisdiction’ as to the meaning of the phrase “acting in excess or without jurisdiction” in regards to the issue of immunity to District Court Judges.
33. 	Harvey was falsely imprisoned under an erroneous committal warrant issued by a District Court Judge. The subject matter was within the civil jurisdiction of the Judge but the warrant of committal issued by the Judge was erroneous on the basis that the conditions precedent to the Judge exercising his power to direct the issue of the warrant (under the relevant provision) was not satisfied. The High Court dismissed the application to strike out the civil suit brought against the Judge and the matter was appealed to the Court of Appeal where the majority (Cooke P and Richardson J with Fisher J dissenting) also dismissed the appeal. The majority held that the Judge in issuing a warrant committing the Plaintiff (Harvey) to prison for breach of orders in respect of outstanding fines went outside his jurisdiction. 
34. 	The Court of Appeal in Harvey v Derrick recognized that the scope of the statutory immunity of District Court Judges turned on whether the Judge had acted in excess or without jurisdiction. Cooke P agreed to the restrictive two stage approach of Richardson J to whether the Judge acted in excess or without jurisdiction as follows:
(i)	Whether the Judge had jurisdiction over the subject matter; and
(ii)	The nature and degree of the wrongful act or conduct of the Judge (may take the acts of the Judge outside jurisdiction).
35. 	It was held in Harvey v Derrick that a Judge of the District Courts should not be held to have acted outside jurisdiction if acted in good faith and without gross negligence. Therefore, immunity applies even in excess or without jurisdiction where such acts were done in good faith and without gross negligence.
 The Approach in Harvey v Derrick: 
36. 	The Attorney General’s office representing the Judge submits that the two tier approach in Harvey should be adopted as a guideline to addressing whether the Judge had acted in excess or without jurisdiction. Counsel for the Plaintiff in their submissions maintain that the Judge acted in excess or without jurisdiction on the facts they have pleaded in paragraph 4 of the claim.   
37. 	The case of Harvey v Derrick is distinguished on the facts from the present case at hand. Harvey dealt with the fines enforcement of the District Court Judges in its civil jurisdiction. The present case deals with the hearing and determination of a criminal matter (finding of guilt) by the District Court Judge which the same Judge then discharged the Plaintiff without conviction. 
38. 	It is arguable then that the restrictive two stage approach adopted in Harvey v Derrick may not necessarily be applicable but the wide scope interpretation of Fisher J of ‘jurisdiction’ in the ‘generic’ sense would be more favourable and appropriate. That is if the Judge has legal authority and power (jurisdiction) over a matter then it also follows that the Judge has the legal authority to grant remedies of the type contemplated. If the Judge lacks the legal authority to deal with the subject matter right from the beginning, then it can be said that the Judge had acted in excess or without jurisdiction. As Fisher J puts it:
If they act without jurisdiction, s193 (s64) will not assist them in any event. But if they act within jurisdiction, I do not see any warrant for introducing a disqualifying element not apparent in the statute itself.
39. 	The disqualifying elements referred to is ‘good faith and without gross negligence’ that the majority in Harvey adopts.
40. 	I am also mindful that although s.64 and its former equivalent (s110) may have entirely mirrored off the New Zealand statutes nevertheless must be interpreted and adapted taking into consideration the Samoan context. Lord Halsbury LC famously said: 
“...every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found”.
41. 	If the interpretation of Fisher J is adopted then we are only looking at the first tier of the two tier approach of the majority in Harvey v Derrick. In any event I will address the two approaches. 
Fisher J’s interpretation
42. 	The legal authority of the Judge to deal with criminal matters is provided by section 30 (Part 3) of the District Courts Act 2016 to hear and determine criminal offences which penalty is not more than seven years imprisonment. The offence that was presided over by the Judge is under section 4(g) of the Police Offences Ordinance 1961 which attracts the penalty of not more than 3 months imprisonment or to a fine not exceeding 2 penalty units ($200). The finding of the Judge is the natural progression of the matter presided over. The sentence imposed is also a natural progression if the finding is one of ‘guilty’ which was in this case. The sentence of ‘discharge without conviction’ is within the legal authority of the Judge to impose and also pursuant to the Sentencing Act 2016. Of interest is the fact that the Plaintiff is not complaining of the sentence imposed to be in excess or without jurisdiction of the Judge.
43. 	The acts complained of were within jurisdiction and necessary for the Judge in dispensing her judicial functions regarding the criminal matter that involved the Plaintiff as a defendant. Adopting the interpretation of Fisher J; the Judge has jurisdiction. This means that immunity under section 64 applies and the claim is struck out. 
Richardson J’s (majority) two tier approach
44. 	The answer to tier one of Richardson J’s two tier approach to whether the Judge had the authority over the subject-matter (applying Fisher J’s approach) is a resounding ‘yes’. That is, Judge Saaga has jurisdiction pursuant to s30 of DCA 2016 to deal with the criminal matter that was before her, her finding of guilt and the sentence imposed. 
45. 	I turn now to consider the nature and degree of the acts or behaviour of the Judge complained of (pleaded in paragraph 4 of the claim) to address the second tier as to whether the Judge acted in “excess or without jurisdiction.” 
46. 	If such acts or behaviour complained of do not amount to excess or without jurisdiction, then immunity applies (under s64) and the claim is struck out. If such acts (according to the majority in Harvey) although in excess or without jurisdiction but were done in good faith and without gross negligence, immunity under section 64 of DCA 2016 applies and the claim is struck out.
47. 	The acts of the Judge complained of (paragraph 4 of the claim) are summarised as follows:
(i)	Defended hearing and its determination was not done within a reasonable time;
(ii)	The Defendant did not act impartially and independently as follows: 
a)	The Defendant deliberately delayed her decision several times in favour of the prosecution to file submissions to support her already preconceived decision of the case. 
b)	The Defendant did not fairly consider the evidence called by the defence. 
c)	The Defendant expressed a preference for the prosecution’s case and evidence. She believed the prosecution’s evidence over the Plaintiff’s evidence in defence. 
(iii)	The defendant applied the wrong test to the evidence by failing to say what standard of proof was applied and which party has the onus of proof in her decision. The written decision refers to the standard of proof. As to who has the onus of proof should be within knowledge of the Plaintiff who is a lawyer and her legal counsel if the standard of proof is beyond reasonable doubt. 
(iv)	The Defendant did not pronounce her judgment and sentence in public. She cleared the court room of the public before she pronounced her decision. 
(v)	The Defendant by saying after the prosecution’s evidence to counsels and the accused (Plaintiff) that the ‘defence has no case’ basically infers that the Defendant believed the evidence of the prosecution before hearing the defence evidence. I have read the transcript and found this to be inaccurate. There is nothing in the transcript recording such words being said by the Defendant after the prosecution’s evidence and in the tone seemed to be suggested by the Plaintiff.
(vi)	The Defendant’s expressed preference for the prosecution gives a clear impression that she has deemed the plaintiff guilty and shifted the burden of proof to the accused (Plaintiff). 
(vii)	The Defendant failed to give reasons for her decision convicting the Plaintiff and how she treated the evidence given by the defence witnesses. She continued to believe the evidence of the prosecution witnesses. This is not accurate as the Judge released her written decision with reasons eight (8) days after having delivered her finding of guilt orally. 
(viii)	The Defendant failed to decide the case on the merits and the evidence she heard in Court. She considered matters other than the evidence heard in Court by saying to the accused (Plaintiff) on 5th May 2017 “You are well known for what you said on line”.  
(ix)	The Defendant predetermined the case based on family connection with one of the prosecutors. The connection was disclosed by the Defendant before the hearing and Counsel for the accused (Plaintiff) or the accused had no objection.
(x)	Despite the defence having filed their submissions and none from the prosecutions the Defendant still ruled in favour of the prosecutions. 
48. 	The adjournments referred to as alleged delays by the Plaintiff were not deliberate on the part of the Judge but were necessary to await the availability of transcript of evidence, both the Plaintiff and the prosecution also contributed to the alleged delays. There is no rule that the prosecution is to file submissions first and serve upon the defendant before the defendant then files his submissions unless specifically ordered or directed by the Court. In this case, the allegations by the Plaintiff of the numerous adjournments by the Judge alleged to be in favour of the prosecution to be motivated by the hope of predetermined decision, other than a ‘not guilty’ verdict is fanciful and without a backbone.
49. 	The Defendant as the trial Judge is entitled to decide the case on the evidence she heard, who to believe and not to believe but not on whether the prosecution files submissions or not. In this case, without any submissions from the prosecution the Judge went ahead and made her decision. 
50. 	The matters complained of relating to witnesses and questioning the correctness of the Judge’s findings or decision are matters within the prerogative of the Defendant who was the trial Judge. They are matters that can become the subject of appeal but not matters to personally sue the Judge. Woodhouse J in Nakhla v Mc Carthy aptly puts it:
If in the course of his work (Judge) he should fall into error the matter can become the subject of appeal. If he should wrongly deprive a man of his freedom then altogether apart from appeal, there is the remedy of habeas corpus. But in relation to the performance of his judicial office, the Judge is immune from attack in civil proceedings. 
Eichelbaum CJ in Gazley v Lord Cooke of Thorndon said:
Judicial responsibilities are to be discharged with a complete sense of independence and fearlessness. It should not be undermined by concern at being drawn into litigation commenced with irresponsible allegations of malice by litigants not able to accept the finality of decisions against them.
51. 	The Plaintiff in their written submissions say that the Defendant was not presiding as a Judge dispensing her judicial duties at the times outlined in the Statement of Claim; paragraph 4 (summarised in paragraph 42 above). This view of the Plaintiff is too literal simplistic and vague. The actions or orders of the Judge complained of in paragraph 4 of the Claim are done in her capacity as a Judge and within her jurisdiction (criminal) as a Judge of the District Courts of Samoa. That is, at all relevant times the Defendant was discharging her judicial functions as a Judge. How the matters complained of can be said of the Judge acting in excess or without jurisdiction is beyond me. 
52. 	Even if the Judge acted in excess or without jurisdiction the Judge must not have acted in good faith or without gross negligence otherwise if she has immunity applies.   For reasons discussed earlier I am of the view that the Judge was acting in good faith and without gross negligence. 
53. 	Applying the two tier approach the claim is also struck out in its entirety for the following reasons:
(i)	The Judge has jurisdiction to preside over the criminal matter before her; and
(ii)	The acts of the Judge complained of did not amount to the Judge having acted outside her jurisdiction. In any event the acts complained of were done in good faith and without gross negligence.
54. 	It follows then from all of this that judicial immunity under the two tier approach also applies. The Plaintiff’s claim is plainly and obviously untenable and cannot possibly succeed.   The claim in its entirety is struck out.
55. 	Although, the statement of claim is struck out I still wish to address the causes of action raised by the Plaintiff. 
Causes of action:
56. 	The main cause of action is a breach of Article 9 of the Constitution as a result of the acts or behaviour of the Judge as pleaded in paragraph 4 of the claim. Earlier discussions in relation to the alleged acts of the Judge also apply to the discussion of the alleged breach of the Constitution.  
Breach of Article 9(1) & (3) of Constitution.
Breach of Article 14 and 3(c) of ICCPR. 
57. 	The conduct of Judges are amenable to the Constitution guarantees under Part II which includes the right to a fair and public hearing within a reasonable time (Art 9(1)) and crucial to the right to a fair trial is the presumption of innocence until proven guilty (Art 9(3)). Articles 14(1) and 14(3) of International Covenant on Civil and Political Rights (ICCPR) are similar to Article 9 of the Constitution. Any international convention that Samoa accedes to only has force if national laws endorse it. The ICCPR came into existence in 1966 after the Constitution of Samoa came into force in 1960. Neither Counsel mentions whether Samoa is a party to ICCPR.  
58. 	There are numerous cases on Article 9(1) as to what amounts to a delay in relation to ‘within reasonable time’. Those numerous cases refer to ‘trial’ or to ‘hearing’ of a matter. The hearing of the evidence (in the criminal matter) was over the course of three separate days – 9 November, 11 November & 16 November 2016. The Plaintiff was given the opportunity to be heard. The delays referred to in the pleadings (paragraph 4 of claim) have nothing to do with the ‘hearing’ of the criminal matter against the Plaintiff but the delay in the Judge issuing her decision; which decision was delivered orally on 5 May 2017 with the full written decision made available eight days later. It cannot therefore be said to have been a breach of Article 9(1). 
59. 	The length of the delay must be undeniably significant so as to amount to a breach of the right to fair hearing within a reasonable time under Article 9. The question is, at what point does the delay becomes unreasonable? The answer is to be found in a consideration of the facts in each case. The Supreme Court of Canada in R v Morin stated as follows:   
The general approach to a determination as to whether the right has been denied is not by application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to a delay or are otherwise the cause of delay.
60. 	I am of the view that subsections (2) – (4) of Article 9 do not give rise to a different right but are part and parcel of the right protected or guarantee under Article 9(1). Article 9 (3) on the presumption of innocence is a crucial ingredient to the right to a fair trial under Article 9(1). I struggle to connect how the facts pleaded could amount to undermining the presumption of innocence of the defendant until proven guilty which leads to a breach of his right to a fair trial.  
Breach of judicial oath pursuant to section 13 of the District Courts Act 2016 
Apparent bias
61. 	The Plaintiff claims that the Defendant breached her judicial oath in that she acted in favour of the prosecution against the constitutional rights under Article 9 that “every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law”. The adjournments by the Judge are interpreted by the Plaintiff as bias of the Judge towards the prosecution in the hope for them to file submissions to support her already preconceived decision of a finding of ‘guilty’. As I’ve already touched on this ground, it is the Judge’s duty to make a decision on the evidence she has heard as to a finding of ‘guilty’ or ‘not guilty’ but not conditional upon whether the prosecution (or the defence) filed submissions. 
62. 	However, the Judicial Oath under section 13 of the Districts Courts Act 2016 does not give rise to a justiciable right. The judicial oath is an administrative part of becoming a Judge before the person appointed can preside as a Judge. The Plaintiff is under a mistaken or convoluted view of how a judicial oath gives rise to a justiciable right under Article 9.
63. 	In the present matter, the delay refers to was necessary and the Plaintiff (defendant) and prosecution also contributed to the delay in the delivery of judgment complained of. The facts pleaded do not even amount to an unreasonable delay or significant delay that could amount to a breach of right under Article 9(1) of the Constitution.
64. 	These causes of action fails and are struck out.
A new or developing area of law.
65. 	The Plaintiff also put forward that this is a new or developing area of the law regarding section 64 and there has not been any authority on the section. Section 64 of District Courts Act 2016 is not new but had existed in the repealed District Courts Act 1969 under section 109.  
66. 	The Tafililupetiamalie case in 2015 was the first to have dealt with the issue of judicial immunity in Samoa which case (in light of international jurisprudence) extended judicial immunity to Judges of the District Courts and Lands and Titles Court. The judicial immunity that is absolute to Judges of superior courts is not absolute to Judges of the District Courts because its jurisdiction is limited only to what is provided for by statute, the District Courts Act 1969 then.  Also to be noted is that Tafililupetiamalie was an application to strike out and although was the first case on judicial immunity in Samoa, it did not stop the Court from exercising its jurisdiction to strike out the claim. Tafililupetiamalie was also the first case (in Samoa) to deal with the principle of judicial immunity but the principle of judicial immunity itself is not a new or developing area of the law because it has been in existence since the C17th. 
67. 	It follows then that, although the present matter is the first on section 64  it is not a reason for the Court to not exercise its jurisdiction to strike out because first, the issue is still of judicial immunity and second we can defer to overseas jurisprudence for guidance. Their Honours in the case of Woodroffe v Fisher at [16] said “That an application raises difficult and important questions of law requires extensive argument does not exclude the jurisdiction”.
68. 	The Chief Justice in Tafililupetiamalie because it was the first case in Samoa on judicial immunity did not, not strike out the claim on that basis but looked to international jurisprudence for guidance. 
69. 	I agree wholeheartedly with such an approach and I have done so with the present matter. This ground is frivolous and in the present matter is not a valid reason to survive the claim to a substantive hearing.
Observation/Recommendation
70. 	Since Harvey v Derrick the New Zealand District Courts by statutory amendments to the District Courts Act 1947 now have full immunity (section 23).  This amendment should also be made to the Samoan District Courts Act 2016 by repealing sections 64 and 65 and replacing it with a simple amendment that Judges of the District Courts have the same immunity as Judges of the Supreme Court affording them absolute immunity. I am mindful that since Tafililupetiamalie in 2015 three cases (two against Judges including the present and one against Registrar of Courts) have come before the Court within the period of three years.  The ‘floodgate’ concerns raised by overseas Judges (in my view) can never be exaggerated. Fisher J in Harvey v Derrick said there will be fashions in litigation. I agree. If section 64 remains, litigants will always find a way to bring a civil suit against Judges of the District Courts. The amendment will be consistent with policy reasons behind judicial immunity stated by the very wise Lord Denning MR in Sirros v Moore as follows:
“...as a matter of principle the judges of the superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land – from the highest to the lowest – should be degree, and liable to the same degree. If the reason underlying this immunity is to ensure ‘that they may be free in thought and independent in judgment’, it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself; ‘If I do this, shall I be liable in damages?’. So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction – in fact or in law – but so long as he honestly believes it’s to be within its jurisdiction, he should not be liable. Once he honestly entertains his belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind.”
Conclusion 
71. 	For the foregoing reasons the claim is struck out in its entirety.
72. 	Counsel for the Defendant to file memorandum as to costs within 21 days.

JUSTICE TUATAGALOA