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Police v Lafai [2020] WSSC 1 (14 January 2020)

SUPREME COURT OF SAMOA
Police v Lafai [2020] WSSC 1

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

A N D
ANOANOAI PEPE LAFAI, female of Moataa

Accused

Representation:
A. Matalasi for Prosecution
P. Fepuleai and S. Chan Chui for Accused

Hearing: 3^rd December 2019
Ruling: 14^th January 2020

RULING ON APPLICATION TO EXCUSE APPEARANCE

Introduction:

1. This is an application by the accused to be excused from appearing before the Supreme Court following the remittal of her matter back to the Supreme Court after a prosecution appeal was upheld. The application is opposed by prosecution.
2. The accused was an employee of the Land Transport Authority (LTA). In 2018, together with a co-worker, she was charged with various offences of alleged dishonesty arising from her alleged misuse of the LTA’s computer based records. In March 2019, the Supreme Court found the charges against the accused and her co-defendant to have not been proven beyond reasonable doubt and accordingly, the charges were dismissed.
3. The prosecution appealed the verdict of the Supreme Court and on the 19^th September 2019, the Court of Appeal upheld the prosecution appeal, set aside the verdict and remitted the matter back for a new trial.
4. The accused attended her Court of Appeal hearing. After the hearing, she left Samoa for New Zealand. For the first re-mention of her matter in the Supreme Court on the 28^th October 2019, through counsel, she applied for her attendance at mention to be excused.

Background:

5. In her affidavit, the accused deposes that when she was charged, she was the Legal Manager at the LTA. She was suspended from work in April 2018 with pay for one (1) month. After one (1) month, she was suspended without pay. Her contract with the LTA completed in February 2019.
6. As the accused was suspended without pay, she had no income to support herself and defaulted on her loan obligations. After the Supreme Court verdict, she found work in Wellington New Zealand and commenced employment there on the 19^th August 2019.
7. For the Court of Appeal hearing, she was permitted by her employer to travel to Samoa for that hearing. After the appeal was upheld and the matter remitted to the Supreme Court for re-trial, she returned to New Zealand. She has applied to be excused from appearing in the Supreme Court “as it would be unlikely that my employer would allow me further time off to attend a brief mention of my case to set a hearing date” (para. 13, Accused affidavit 3^rd October 2019). She offers two sureties for bail.

Relevant Law:

8. Both counsel have referred me to the Criminal Procedure Act 2016 (“CPA”) including section 60 and 61 dealing with an accused right to be at trial and to be represented and where an accused has been summonsed or bailed to appear and fails to appear. I have also been referred to the bail provisions including the bail provisions relating to appeals.
9. In terms of bail and how it is to be dealt with, the CPA does not provide for the situation where an accused has been acquitted and on appeal, the acquittal is set aside and the matter remitted to the lower Court for re-hearing.
10. In New Zealand however, the New Zealand Criminal Procedure Act 2011 provides through statute the mechanism by which an accused is brought back before the Courts on a re-trial following an acquittal. Section 156 of the Criminal Procedure Act 2011 for example provides:
    • “(1) If an order for a retrial is granted under section 151 or 154,—
    • ...

(b) the court that orders the retrial or the court before which the person was tried may—

(i) issue a summons to the person to attend at the court before which the person was tried (and the provisions of this Act apply as if it were a summons to attend a hearing); or

i) issue a wa a warrant to arrest the person and bring him or her before a court (and the provisions of this Act apply as if it were a warrant to arrest a defendant):

(c) if the person appears in court in accordance with a summons or is brought before a court under an arrest warrant, section 168(1) applies with any necessary modifications as if the proceeding was adjourned:

(d) the retrial must be conducted in the same manner as a retrial ordered following a successful appeal by a defendant against conviction.”

11. Section 168 of the New Zealand Criminal Procedure Act 2011 deals with the remand of an accused after an adjournment. It treats the re-call of the matter following the setting aside of an acquittal as if it had been an adjournment.
12. Section 156 is primarily concerned with bringing the accused before the Court after an appeal. It is a procedural provision with section 168 then dealing with questions of bail and remand when the matter is called before the trial Court.
13. Whilst the CPA does not contain these same provisions on how an accused is to be brought back before the Court when a retrial is ordered, the CPA does still provide for mechanisms by which the Court can compel attendance, either by way of issuing a warrant of arrest or by way of issuing a summons for the attendance of the accused. Section 33 of the CPA provides:
    • “31. Issue and withdrawal of warrant to arrest defendant - (1) When any information has been laid and whether or not any summons has been issued or served:

(a) a Judge may, if the Judge thinks fit, issue a warrant, in the prescribed form, to arrest the defendant and bring the defendant before a court; or

...”

14. Similarly, a summons may be issued out of the Court in which the information is laid for the accused to appear (section 37, CPA). The summons may be served on the accused in person (section 38, CPA) or as otherwise be permitted by section 39. Section 39 provides for service on the lawyer acting on behalf of the accused.
15. Section 31 of the Judicature Ordinance 1961 also relevantly provides:
    • “31. Jurisdiction of the Supreme Court – The Supreme Court shall possess and exercise all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa.”
16. In R v Potvin 2 SCR 1880, 1993, Supreme Court of Canada authority referred to by prosecution, the Court stated:
    • “Upon the appeal being filed there is a possibility that the acquittal will be set aside and the charge will be revived.
    • ...
    • “Where the court had found that once the judgment is set aside on appeal and that the matter is remitted for trial, the accused reverts to the status of a person charged.”

Discussion:

17. Prosecution submits that once the accused was acquitted on all charges on the 4^th March 2019, the defendant was free and discharged from all bail conditions earlier ordered by the Court. I accept that submission as correct. In Potter v R [2007] NZCA 156, the New Zealand Court of Appeal considered acquittals in the context of an appeal of a trial ruling denying cross-examination of prior offending for which the accused had been acquitted. In discussing acquittals, the Court of Appeal noted:
    • “[30] In its Consultation Paper No 156 Double Jeopardy the English Law Commission drew attention to the English tainted acquittals legislation, ss 54-55 of the Criminal Procedure and Investigation Act 1996, which in the case of perjury and like offences permits on stringent conditions the quashing of an acquittal. In Compensating the Wrongly Convicted (NZLC R49 1998), the New Zealand Law Commission stated:
      • 17 Unless set aside on appeal the verdict is, and is seen to be, a public proclamation of the result. Either the case is proved and the verdict is that of guilty, or the case is not proved and the verdict is that of not guilty. Issues of innocence, suspicion, and likelihood of guilt are not distinguished in the verdict and in a very practical sense the appellant is either convicted or cleared. This makes acquittal equivalent, in practical effect, to a finding of innocence, as the Supreme Court of Canada noted in Grdic v R ....
    • [31] The Commission drew attention to the very real distinction between those who are acquitted either because they are innocent or because the Crown case is inadequate, and others who are acquitted by reason of perjury or even interference with witnesses.
    • [32] In R v G (K R) (1991) 5 OR (3d) 406 the Court of Appeal for Ontario stated at 409:
    • [I]t is a well-established principle of the criminal law that an acquittal is the equivalent of a finding of innocence. It must be conclusively assumed, therefore, that the appellant was innocent of the allegations made against him by [a child on whose evidence he had previously been convicted].” (emphasis added)
18. Once acquitted, that acquittal remains unless set aside on appeal. The effect of this is as prosecution has submitted, the accused is free and discharged of all bail obligations. This is reflected also in the fact that once the verdict was delivered by the Supreme Court, as in any other verdict of not guilty, the accused no longer has to comply with any bail conditions, as they are then discharged by the acquittal. If the acquittal is set aside, the accused then however reverts to the status of a person charged. Prosecution submits that by virtue of the order for re-trial, the original bail conditions then resume.
19. In my respectful view, for the bail conditions to resume, that must be by order of the Court of Appeal or by operation of law. In this case, the Court of Appeal did not make such an order and there is no statutory provision that reinstates the earlier bail provisions. Furthermore, on appeal, the accused may not be present in Court at the hearing of the appeal and imposition of remand. Unless ordered by the Court of Appeal, the appropriate course is for the accused to be summonsed or on the re-mention date, for an application for a warrant of arrest to be issued. The accused must then appear before the Court either voluntarily (where no summons has been issued), by summons or under warrant of arrest if one is then issued by the Court.
20. I have been provided no authority that the bail conditions of a person charged can be made in the absence of an accused, particularly if they are overseas and outside of the jurisdiction of the Court. I have also not been provided with any authorities for the reverse, that is, that bail conditions cannot be so made.
21. In my view, the effect of the bail provisions of the CPA is that the start point is that an accused is required to appear before the Court when the Court is dealing with bail. That is the purpose of the bail provisions and it is for the Court to then determine whether to remand the accused in custody or on bail. Sections 98, 99 and 100 expressly refer to remands in custody and where the accused is not present for the purposes of dealing with his or her remand (as in this case), the accused is depriving the Court of its statutory role of determining the appropriate remand (whether in custody or on bail) and if on bail, what conditions are to apply.
22. There may however be circumstances where attendance of an accused for the determination of bail may be excused from appearing by the Court. Each case must be considered on a case by case basis. Without limiting the considerations that the Court may take into account, these considerations in my view may include whether the accused is represented by counsel, whether the application is with the consent of prosecution, whether bail conditions are agreed to, and only in exceptional circumstances. In this case, prosecution does not consent to the accused being excused from attending Court, bail conditions have not been agreed to and exceptional circumstances do not in my view exist to warrant her excusal from appearing. In her affidavit, the accused simply says that it is “unlikely” that her employer would allow her to come to Samoa. That is not exceptional circumstances such as to warrant excusing the accused from appearing.

Result:

23. Accordingly, this matter will be adjourned for mention to Monday 2^nd March 2020 at 10.00am for the accused to appear.
24. Between now and 2^nd March 2020, counsel for the accused and prosecution may wish to discuss bail conditions and it may be that the accused particular concern is that her bail conditions that will be sought by prosecution will include the surrender of her passport. If that is the prosecution position, counsel for the accused may wish to be prepared to apply for bail permitting her return to New Zealand for the purposes of her employment.

JUSTICE CLARKE