COURT OF APPEAL OF SAMOA
Puni v Attorney General [2012] WSCA 12

Case name:  Puni v Attorney General
Citation: [2013] WSCA 12
Decision date: 
Parties: 
LEMAMEA EMOSI PUNI, male of Tiapapata, medical practitioner (Appellant) and ATTORNEY GENERAL
Hearing date(s): 31 May 2012
File number(s): CA09/12
Jurisdiction: Criminal 
Place of delivery: Mulinuu
Judge(s): 
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith
On appeal from: 2012
Order: 
(i)	our decision is that the application for stay is declined
(ii)	The Prosecution are not permitted at retrial to call the evidence of Ms A.
Representation: 
B Sellars for appellant
P Chang and T Toailoa for respondent
Catchwords: 
Words and phrases:
Legislation cited:
Article 9 and Article 4 of the Constitution of Samoa
European Convention for the Protection of Human Rights and Fundamental Freedoms
Cases cited:
Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72
Rahey v The Queen (1987) 39 DLR 481, 516
Barker v Wingo (1972) 407 US 514
Strunk v United States (1973) 412 US 434
R v Williams [2009] 2 NZLR 750 (SCNZ) at [20]
R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42
Darmalingum v The State [2000] 1 WLR 2303
Martin v Tauranga District Court [1995] 2 NZLR 419
Summary of decision:

ORDER SUPPRESSING TERMS OF ORDER AND REASONS FOR DECISION UNTIL AFTER CONCLUSION OF THE TRIAL

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO:  CA09/12

BETWEEN:

LEMAMEA EMOSI PUNI, male of Tiapapata, medical practitioner
Appellant

AND:

ATTORNEY GENERAL
Respondent

Coram:	Honourable Justice Baragwanath
		Honourable Justice Fisher
		Honourable Justice Galbraith
Counsel: 	B Sellars for appellant
	  	P Chang and T Toailoa for respondent
Hearing:	31 May 2012
Judgment:	1 June 2012

JUDGMENT OF THE COURT

1.	On 31 May 2012 we made orders:
(1) Our decision is that the application for stay is declined 
(2) The Prosecution are not permitted at retrial to call the evidence of Ms A.
2.	These are the reasons for these orders.
Context 
1.	The appellant (Dr Puni) is a senior and respected medical practitioner specialising in obstetrics.  On 29 July 2005 he was charged that on 18 July 2005 he indecently assaulted a patient.  The Attorney General contends that occurred in the course of what should have been a conventional internal examination.
2.	A trial took place from 3 – 10 October 2006.  At the conclusion of the hearing the Chief Justice upheld a defence submission that there was no case to answer and dismissed the charge.  On 14 September 2007 the Court of Appeal allowed an appeal by the Attorney General and ordered a retrial.  
3.	Because local judges were unable to conduct the retrial on account of conflict of interest, on 23 November 2007 the Court was advised that the Samoan Judicial Services Commission had approved the recruitment of an overseas Judge for the purpose.  That did not occur during 2008 and on 9 February 2009 the prosecution wrote to the Court seeking a date for the retrial.
4.	On 20 February 2009 counsel were advised that an overseas Judge, Justice Kellam, would be in Samoa in April and able to hear the case.  But defence counsel declined the fixture and advised “He will be available from September 2009 onwards.”
5.	A year later, on 30 September 2010, the prosecution wrote to the Court seeking a fixture before Justice Slicer, an overseas Judge now resident in Samoa.  On 23 February 2011 the prosecution wrote again to the Court asking that the case be put on the mentions list to set a new date of hearing.  The case was listed for mention on 28 February 2011 and again on 2 March 2011 when the appellant was in New Zealand assisting those responding to the Christchurch earthquake.  On 29 March counsel for the defence advised that an application to stay the proceeding would be filed because of unreasonable delays.  The case was adjourned for hearing of the trial commencing on 5 September 2011.  At call-over on 1 September defence counsel advised that the defence was not ready to proceed with the trial and the case was again adjourned.
6.	A hearing was scheduled for 13 February 2012.  But because Slicer J was overseas the fixture was vacated and a new fixture was made for 28 May 2012.
7.	On 27 February a fixture for the stay application was made for 16 March.  Overseas defence counsel was not available and the application was listed for the hearing in the week of the substantive trial, 28 May.
8.	On 29 May Slicer J dismissed the stay application.  The appeal was heard and determined on 31 May 2012.
Principles
9.	Article 9 of the Constitution of Samoa includes among the Fundamental Rights listed in Part II that of right to a fair trial.  The Article  states:
Right to a fair trial – In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.
...
	That right is given effect by Article 4:
Remedies for enforcement of rights – 
(1)	Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.
(2)	The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.
10.	In interpreting and applying Articles 9 and 4, while in the end the issue concerns the constitutional law of Samoa, regard may properly be had to the English common law which by Article 111 forms part of the law of Samoa, insofar as not excluded by any other law (which includes the Constitution).  It is permissible also to consider whether concepts developed in such sister jurisdictions as New Zealand, Australia and Canada are appropriate for Samoan conditions.  The parties agreed that the cases reveal three broad categories of delay.    
(1)	Mere delay
11.	The first is mere delay – the passing of time without particular consequences adverse to the defence.  That has been held not to infringe the accused’s right to fair trial, which is the focus of Article 9.
12.	In Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 Lord Bingham considered the right under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which is expressed in terms practically indistinguishable from the passage we have italicised in [11] above.  He stated:
Judges should not be vexed with applications based on lapses of time which, even if they should not have occurred, arouse no serious concern. There is, however, a very real risk that if proof of a breach is held to require automatic termination of the proceedings the judicial response will be to set the threshold unacceptably high since, as La Forest J put it in Rahey v The Queen (1987) 39 DLR 481, 516, "Few judges relish the prospect of unleashing dangerous criminals on the public". La Forest J drew attention to the compelling observation of Professor Amsterdam, written with reference to American experience following the Supreme Court's decisions interpreting the Sixth Amendment to the United States Constitution in Barker v Wingo (1972) 407 US 514 and Strunk v United States (1973) 412 US 434: 
"[T]he spectre of immunizing, of 'turning loose', persons proved guilty of serious criminal offenses has been thoroughly repugnant to judges, and they have accordingly held that shockingly long delays do not 'violate' the sixth amendment. The amendment has thereby been twisted totally out of shape - distorted from a guarantee that all accuseds will receive a speedy trial into a windfall benefit of criminal immunity for a very few accuseds in whose cases the pandemic failure of our courts to provide speedy trials has attained peculiarly outrageous proportions'": Anthony G Amsterdam, "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525, 539. 
Lord Bingham’s formulation has been adopted in New Zealand: R v Williams [2009] 2 NZLR 750 (SCNZ) at [20]. 
(2)  Prejudice to accused
13.	The second category is significant prejudice to the accused’s defence.  This is obvious: since the accused’s right to fair trial is absolute, delay that makes the trial unfair must result in stay.  
(3) Misconduct by public officials
14.	The third category is serious misconduct by public officials.  Here again, to avoid unfairness, the Court will be swift to interfere in exercise of its constitutional function of protecting the citizen against abuse of power.  As to that Lord Bingham said:
25  The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but [counsel] contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.
General
15.	Of course delay, prejudice or misconduct may fall at different points along the spectrum.  It is the obligation of both the Supreme Court and this Court to give effect to the Constitution’s policy of protecting the citizen against unreasonable delay.  They must interfere whenever there is delay that suggests something is wrong with the system or the way it is operated and find a proportionate response. 
This case
Delay
16.	Delay for good reason and at the behest of the defence may be disregarded.  Complaint of unreasonable delay can fairly be made during these periods:
(1) from 23 November 2007 until April 2010, some 16 months;
(2) from October 2010 until September 2011, a further 12 months;
(3) from February until May 2012, another three months.
That makes something over 30 months.  In comparing Samoa’s case with that of other jurisdictions regard may properly be had to the need to look off-shore for judicial assistance.  But the period is excessive.  It approaches the 33 months in R v Williams, there regarded as undue.  It is does not meet the standards laid down in Article 9.  
Prejudice
17.	The defence submit that the defence has suffered specific prejudice in two respects, both relating to a Ms A who is tendered by the prosecution to give propensity evidence of another alleged indecent assault by the appellant, in August 1998.  The complainant’s brief speaks of her being referred to him to check her abdomen by way of scan because of her pregnancy.  But rather than confining his conduct to the scan he instructed her to remove he underwear and inserted his fingers and thumb into her in a manner that caused her pain and felt as if she was being subjected to sexual intercourse.  But she made no complaint to the police for some eight years, on 30 August 2006 soon after a trial date of 3 August 2006 which was adjourned to the October 2006 trial date before the Chief Justice.  The defence to the allegation is alibi; the appellant performed no such test.  Defence counsel submits that the delay has deprived the defence of the evidence of Dr Koro, former head of the O & G Department at the hospital visited by Ms A,  who could have deposed that in August 2006 the appellant did not perform the kind of scan of which Ms A spoke.  But at the age of 79 he is suffering terminal illness and has serious memory problems.  As a result the delays have exposed the appellant to risk he cannot secure a fair trial by properly testing Ms A.
18.	The other witness is a relative of Ms A, a reported to whom she gave an interview in August 1998 about the very premature birth of her child.  But although speaking about other medical and nursing staff, the latter said to have mistreated her, she made mention of the appellant whose allegedly violent mistreatment would have been in the same month as the birth.  Later the relative is said to have been told by Ms A of the alleged offence, but in a manner she regarded as displaying lack of credibility.  The appellant deposes that the relative cannot be found.
19.	In addition counsel referred to a report by a consultant clinical psychologist who interviewed the appellant last December and January and advises that he suffers from depression.
Evaluation
20.	It is necessary to stand back and evaluate whether in all the circumstances the appellant can fairly be tried.
21.	We therefore take together the delays, the reasons for them, and the allegations of prejudice.  There is sliding scale: the longer the delay, the more there is to add to other grounds for apprehending unfairness: prejudice that by itself might not be enough to tip the scales might do so if added to significant delay.
22.	Here the delay, while excessive, was unaccompanied by governmental misconduct. Further, we are unimpressed by the contention of prejudice.  There is no statement by either Dr Koro or the relative, and indeed if there had been, if relevant it might well have been admitted under one of the exceptions to the hearsay rule which the common law has been developing.  We are however concerned that the evidence of Ms A would risk being more prejudicial than probative and therefore imperil the fairness of the trial.
23.	We therefore decided to order the exclusion of that evidence.  That will ensure the fairness of the trial.
24.	Moreover that decision, coupled with the remarks in this judgment about the obligation of the authorities to avoid delay, will in our judgment be a proportionate and adequate remedy in terms of Article 4.
25.	Hence both our dismissal of the appeal and the order that Ms A be not called to give propensity evidence.

Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith