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Police v Tito [2000] WSCA 2; 01 2000, 07 2000, 02 2000 (15 August 2000)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA. 1/2000 CA. 7/2000 C.A. 2/2000

IN THE MATTER: The Judicature Ordinance 1961

AND

IN THE MATTER of an appeal pursuant to Section 164G of the Criminal Procedure Act 1972

BETWEEN

THE POLICE
Appellant

AND

MAIAVA SAFUE SIAU TITO and TULAGAMUA MAIAVA SAFUE
both of Salani, Falealili

MAIAVA NAITITI SENIO & MAIAVA NAITITI MAU'U SENIO
of Mulifanua

JUNIOR SIALE
of Leone
Respondents

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 15 August 2000

Counsel: Police v. Safue
G.M. Latu for Appellant
T.R.S. Toailoa for Respondents

Police v. Naititi
F. Tufuga for Appellant
Katalaina M. Sapolu for Respondent

Police v. Siale
R.J. Schuster for Appellant
T.K. Enari for Respondent

Judgment: 18 August 2000

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

The Acting Attorney-General (for the Police) has appealed against the order for costs made against the appellant in all three cases on the grounds in each case that,

(a) the award of costs in the circumstances wrong in law,

(b) that the award of costs is not authorised by the provisions of s 167 of the Criminal Procedure Act 1972.

All three counsel appearing for the appellants based their argument solely on the point that s 167(2) did not give the trial judge jurisdiction to award costs against the informant in these cases because in terms of s 167(2) the Court had not 'dismissed the information'. It was not argued that on the merits the orders made, if there were jurisdiction, could not be justified. Nor was there any appeal as to the quantum of costs awarded. Accordingly, we do not need to deal with the facts but a brief reference to the outcome in each case will suffice before dealing with the point of law raised in each appeal. The first of these three cases in which the judge fully considered the granting of costs under s 167(2) was,

Police v. Maiava Safue Siau Tito and Tulagamua Maiava Safue.

The information charged the defendant Maiava Safue with 'attempted murder', The information charged the defendant Tulagamua Maiava Safue, the wife of Maiava Safue, with 'having formed a common intention to commit the crime of attempted murder, assisting in such crime'. Each defendant pleaded not guilty. Their 15-day joint assessor trial in August 1999 concluded with each defendant being found not guilty of the crime which each faced, both defendants were then 'acquitted' (pursuant to section 100 of the Criminal Procedure Act 1972 as amended) and discharged.

"100. Concurrence of presiding Judge - If the presiding Judge is of the opinion that the defendant should not be convicted, or if less than 3 out of 4 or 4 out of 5, as the case may be, of the assessors concur in his conviction, the defendant shall be acquitted."

Following their acquittal, application was made on behalf of both defendants for an order for costs pursuant to s 167(2) of the Criminal Procedure Act. The judge gave his reasons on 30 May 2000 for holding that he had jurisdiction under that section to award costs in favour of the defendants. They sought costs of $55,660.00. The judge held that the maximum costs he had power to award was limited by s 167(5) (see post). He then set out costs as per scale amounting to $4894.00 which he fixed and ordered the prosecution to pay.

Police v Maiava Naititi

The information contained three charges of incest between the defendant and his daughter. At the close of the prosecution case before a judge alone, counsel for the defendant submitted that there was no case to answer as it had not been proved that the defendant knew that the complainant was his daughter. The judge gave his reasons in writing for upholding this submission and concluded,

"There will be a verdict of acquittal on each charge. The accused is discharged."

On an application for costs of $3657.50 the judge referred to his decision in Police v. Maiava Safue and saw no reason to depart from the conclusion in that case. He then set out costs according to scale, which he held was a mandatory maximum, and on 12 June 2000 fixed costs at $2434.00 to be paid by the prosecution.

Police v. Junior Siale

The information contained 3 charges of sexual offences. At the close, after 6 days, of the prosecution case the judge considered an argument that he should rule there was no case to answer. He gave a lengthy ruling in writing which concluded,

"For all these reasons, there will be verdicts of not guilty on each charge and the accused will be discharged."

An application by the defendant was heard 4 days later for costs of $3114.00 which were awarded on 23 June 2000. There is no record of how this amount was fixed nor on what grounds it was awarded, but it can be presumed that the judge applied his earlier decision in Maiava Safue.

We now set out s 167 in full,

167. Costs

(1) Where the Court convicts a defendant it may order him to pay to the informant such costs as it thinks just and reasonable for Court fees, witnesses' and interpreter's fees.

(2) Where the Court dismisses any information, it may order the informant to pay to the defendant such costs as it thinks just and reasonable for Court fees, witnesses' and interpreters' expenses and solicitor's fees.

(3) Any order under subsection (1) or (2) of this section may include such costs as the Court thinks just and reasonable for the Court fees, witnesses' and interpreters' expenses and solicitor's fees of an in relation to any adjournment or the taking of evidence under section 26 or 28 of this Act.

(4) Where the Court convicts the defendant and the informant has not prepaid any fees of Court, the Court may order the defendant to pay the fees of Court.

(5) Costs allowed under this section shall in no case exceed the amount provided for in any scale prescribed by regulations or rules made under this or any other Act.

(6) Any costs allowed under this section shall be specified in the conviction or order for dismissal, and may be recovered in the same manner as a fine.

In the case of Police v. Maiava Naititi, counsel for the appellant moved for a stay of execution in respect of the order for costs and deposed in support of the motion inter alia,

"5. THAT the execution of the order would cause tremendous and unnecessary strain on the State's resources and that I am entitled to make an application before this Honourable Court as a consequent (sic) thereof."

Mr Schuster also mentioned in this Court that the State had no budget to meet costs. We are not prepared to take into account in considering the interpretation of s 167(2) financial considerations of the State which has in any event under s 167(5) placed an upper limit on the amount of costs which the Court has a discretion to award. The State's finances are a matter for Parliament, not this Court, as is the review recommended by the judge in Safue,

"It is a matter of some concern that the Supreme Court (Fees and Costs) Rules, which were made in 1971, do not appear to have been amended (as to the quantum of costs that may be awarded) since. It is recommended that a review be undertaken for the purpose of ensuring that awards of costs more closely approximate actual costs."

In the case of Maiava Naititi Ms Sapolu filed in this Court an affidavit that she had, after perusing the trial documents prior to trial, advised the prosecution that given the evidence disclosed in the trial documents she would seek costs against the prosecution 'should the charges be dismissed'. The trial resulted in an acquittal which was tantamount to the charges being dismissed and costs were awarded against the prosecution.

The question before the Court is the correct interpretation of the words in s 167(2) 'Where the Court dismisses any information'. The judge applied the statutory rule of construction in s.5(1) of the Acts Interpretation Act 1974 holding that,

"The words 'dismisses any information' shall receive 'such fair, large, and liberal construction and interpretation as will ensure the attainment of the object' of the Criminal Procedure Act and of 'the provision' as to costs (section 167) 'according to its true intent, meaning and spirit."

Contrary to this approach the appellants have argued that the words in question should be interpreted narrowly because if Parliament had intended to include an acquittal it would have said so. It was pointed out that Parliament did not choose to adopt the wording of s 5(1) of the New Zealand Costs in Criminal Cases Act 1967 which expressly provides for an award of costs to a successful defendant on the acquittal of the defendant or where the information is dismissed. Unlike the procedure in New Zealand where some trials are on indictment and others on information, all trials in Samoa are on charges laid by information. Accordingly when a defendant is acquitted, the information is necessarily dismissed.

There is no definition of 'dismiss' in s 2 of The Criminal Procedure Act 1972. There is provision in s 18 for an information to be quashed and in s 35 for an information to be dismissed when it has been withdrawn by the informant by leave of the Court. There is also provision in ss 43(b), 44 and 45 for the Court to dismiss the information for want of prosecution. Under s 104(3) the Court may, in its discretion at any stage of the trial, direct that the defendant be discharged. Apart from these specific provisions there is no general provision as to how the Court may give its decision such as that in New Zealand in the Summary Proceedings Act 1957, s 68(1) as follows:

68. Decision of Court - (1) The Court, having heard what each party has to say and the evidence adduced by each, shall consider the matter and may conflict the defendant or dismiss the information, either on the merits or without prejudice to its again being laid, or deal with the defendant in any other manner authorised by law.

There the words 'dismiss the information' are used to cover an acquittal of the defendant as opposed to the conviction of the defendant. In our view the same distinction should apply in the interpretation of s 167. The words 'where the Court dismisses any information' in s 167(2) should in the same way cover an acquittal as opposed to a conviction under s 167(1). This is consistent with s 167(1) which provides that the costs may include such costs as witnesses' and interpreters' expenses. We agree with the judge's view in Maiava Safue that the inclusion of those costs in a case where 'the Court dismisses any information' implies that witnesses have been called or summoned and that their evidence has been given or interpreted and, therefore, implies that a trial or part thereof has taken place.

Section 167 appears in Part VIII of the Act headed 'Miscellaneous' and is not restricted in its application to any form of trial whether summary or in the Supreme Court with assessors. It is in furtherance to the provisions for an award of costs on the withdrawal of an information under s 35(2). The narrow interpretation of S 167(2) sought by the appellants could give rise to injustice and hardship if costs are denied to a successful defendant who has faced a prosecution without merit. Reading s 167 as a whole, we are satisfied that s 167(2) gives the Court a discretion to award costs in favour of a successful defendant.

As the appellants did not challenge the amount of costs awarded nor argue that on the merits costs were not warranted, we did not hear submissions on what should be guidelines in Samoa for the award of costs against the informant. We therefore refrain from laying down guidelines such as those in the New Zealand Costs in Criminal Cases Act 1967, s 5(2). Suffice it to say that costs do not follow the event as is usual in civil cases and that the Court in the exercise of its discretion (fettered only as to the maximum amount for costs) must have regard to all relevant circumstances.

For these reasons all appeals fail and are dismissed. The respondents have asked for costs. We order costs for $500 to be paid by the appellant in each case.

Solicitors:
Attorney-General's Office, Apia, for Appellant
T.R.S. Toialoa, Apia, for Respondents Safue
Katalaina Maka Sapolu for Respondent Naititi
Kruse, Enari & Barlow for Respondent Siale