IN THE DISTRICT COURT OF SAMOA
Police v Wendt [2018] WSDC

Case name: 	Police v Wendt	
		
Citation: 	[2018] WSDC	
		
Decision date: 	23 August 2018	
		
Parties: 	POLICE (Informant) and LUDWIG ANDREW WENDT, male of Vailoa, Faleata (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Alalatoa Rosella Viane Papalii	
		
On appeal from:		
		
Order:	The application to quash the information is dismissed. 
Given its protracted history, it is crucial this matter be set down for hearing immediately. This is the most practical remedy now.
This matter is adjourned for hearing before Judge Schuster on 12 September 2018 at 10am.
Prosecution in the meantime are to attend to full disclosure if it has not done so already.	
		
Representation: 	Ms L Sio for Prosecution
Mr L T Malifa for Defendant	
		
Catchwords: 		
		
Words and phrases:	Motion to quash information;
Miscarriage of justice and abuse of process;
Section 66 District Court Act 2016 and s191 Criminal Procedure Act 2016 re jurisdiction of District Court to quash an information for want of form;
Sections 28 Criminal Procedure Act 2016 relating to amending an information for a defect, irregularity, omission and want of form; 
Right to Counsel under Article 9(1) 
Nullifying an information not prescribed by law under Article 10(1) Constitution
Detention in custody of accused bailable as of right under Article 6(4) Constitution 	
		
Legislation cited:	Bill of Rights Act 1990 s. 23(1).
Constitution of the Independent State of Samoa Articles 6(2); 6(3); 6(4); 9(1); 10(1); 74.
Criminal Procedure Act 1972 ss. 16; 71; 170.
Criminal Procedure Act 2016 ss. 24; 28; 28(1)(a); 28(1)(b); 55(1)(b); 98; 98(1); 98(2); 104(b); 106; 191.
District Court Act 2016 ss.30; 66.
Road Traffic (Breathalyser) Amendment Act 2009 ss. 40(1); 40(2); 40(4); 40A; 40B; 40C; 40E; 40F; 40O.	
		
Cases cited:	Attorney-General v District Court at Otahuhu [2001] 3 NZLR 740;
Attorney General v U [1994] 1 HRNZ 286;
Asian Taste Company Ltd v Ah Sam [2017] WSDC 8;
Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583;
Duffy v Toailoa [2005] WSSC 7;
Littlejohn v MOT [1990-1992]  NZBORR 285; 
Mataafa v MOR [2017] WSDC 21;
McMenamin v AG [1985] 2 NZLR 274; 
Meredith Ainuu Lawyers v Muagututagata Peter Ah Him [2006] WSSC 55;
Noort v MOT; Curan v Police [1990 -1992] 1 NZBORR 97; 
P v Eteuati [2005] WSSC 10;
P v Fepuleai [2008] WSSC;
P v Gibson [2005] WSDC 6;
P v Tavaseu [2016] WSSC 182;
Police v Thomas [1977] 1 NZLR 109;
P v Vaasili Piula [1993] WSCA 2;
P v Wyatt [1966] NZLR 1118;
R v Burkett (1738) ANdr.230;
R v Butcher Burgess [1990-1992] NZBORR 59;
R v Kirifi [1990-1992] 1 NZBORR 29; 
R v McColl (1999) 17 CRNZ 136;
R v Narayan [1990-1992] 1 NZBORR, 89; 
R v Sanders (1994) 12 CRNZ 12;
R v Sarmon (1758) 1 Burr.136;
R v Te Kira (CA 280/92); 
R v Thomsen (1988) 40 CCC (3d) 411 (SCC)
Simpson v AG (Baigent’s case) (1993 1 HRNZ 42.	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

LUDWIG ANDREW WENDT male of Vailoa Faleata
Defendant

Representation:	Ms L Sio for Prosecution
			Mr L T Malifa for Defendant
Decision:		23 August 2018 

RULING ON MOTION TO QUASH INFORMATION
Introduction 
1.	This proceeding is concerned with an application by the accused, Mr Ludwig Wendt (“Mr Wendt”) to quash the information against him, having also entered a not guilty plea. Although six grounds are advanced in the Notice to Quash, Mr Malifa in their submission has helpfully reduced these to three main ones. I have succinctly summarized these as follows that:  
(i) 	Information number D933/16 (“the Information”) is not prescribed by section 40(1) (2) and (4) of the Road Traffic (Breathalyser) Amendment Act 2009 (“RTO”) and therefore violates Articles 9(1) and 10(1) of the Constitution;
(ii) 	The actions of Police from the time of Mr Wendt’s de-facto arrest to his overnight detainment in custody violated his fundamental right to counsel under Article 6(3) Constitution; and
(iii) 	There was an abuse of process in that Mr Wendt was bailable as of right under s71 of the repealed Criminal Procedure Act 1972 but instead was held in custody overnight.
2.	Prosecution strongly opposes the application on grounds that will be discussed later.
3.	I note here Mr Wendt actually faces two counts. The other one is for careless driving which is not covered in the Notice to Quash and he entered a not guilty plea to that charge as well.  
Brief factual background
4.	Both sides have filed affidavits in support which shed some light on the background of this matter. I note that both parties agreed in their affidavits that the year of the offending is 2016 but on the information (D933/16) it says 2015. Neither counsel picked up on this error. But I see from Mr Malifa’s submission that the bulk of their argument supporting what I have identified as ground (iii) in paragraph 1 above, is premised on that date. 
5.	However, the Defence’s version of the facts is canvassed in Mr Wendt’s affidavit and at paragraph 1.3 he deposed that the date of the offending is Friday 25 March 2016. The caution statement signed by Mr Wendt annexed as exhibit TT1 to the affidavit of Constable Teni Taamai is also dated the same. As it is obvious that there is no dispute to this material fact on the basis of the affidavits filed by both sides, the year on the information is therefore accordingly amended to reflect 2016 and not 2015. 
6.	Some key material facts are disputed. However, given this is a preliminary application and the deposed facts have not had the benefit of being tested under cross examination, I will therefore tread with caution here. For these purposes however, some undisputed facts include: the place, date and time of the alleged offending being at Matautu - tai, on 25 March 2016 at around about 12am to 1am; the vehicle in question is a Toyota Hilux Pick up registration number 7040 and the driver was Mr Wendt. 
7.	According to Mr Wendt’s affidavit, he was driving slowly whilst keeping a look out for an available parking lot when his vehicle swerved to the side due to a burst tyre. What he did not mention however was that his car had hit a stationary vehicle parked on the side of the road towards the seaside area which according to Prosecution formed the basis of the careless driving charge. The incident according to the Prosecution was brought to the attention of the traffic patrolling officers who then made their way to the scene in the Pol38 vehicle. 
8.	Without going too much here into the details of the process, according to the attending officer Corporal Samuelu Faaofo (“Faaofo”), he suspected alcohol in Mr Wendt’s breath when he spoke to him. So he immediately required him to undergo a breath screening test at the scene where it was alleged Mr Wendt failed to comply with directions. The second option was then administered using the passive breath testing device where the results showed the word ALCOHOL.  Mr Wendt was subsequently taken to the Apia Station where he was held in custody overnight. A caution statement was taken from him on the same date at around 7.55am. 
Submissions
Defence 
9.	The first ground as summarized in paragraph 1 above is that the offence alleged is not prescribed by law and therefore infringed Mr Wendt’s right to a fair trial under Article 9(1) Constitution as well as those in Article 10(1) which guarantees that no person is to be convicted of an offence other than one defined by law. 
10.	Mr Malifa argues here that section 40(1)(2)(4) RTO says nothing about an offence for failure to comply as alleged in information D933/16 and that Prosecution’s reference to s40O has no connection to s40(1) (4) as the former relates to ss40A, 40B, 40C, 40E and 40F. But even if it did apply, the breathalyzer test machine referred to in the affidavit of Faaofo, is meaningless without any specific naming or reference to any, or all of the prescribed breathalyzer tests.  
11.	The second ground, formed the bulk of Defence submissions. The contention being there was a breach of Mr Wendt’s right to Counsel under Article 6(3) Constitution during his de-facto arrest at Matautu when Faaofo made him undergo the breath screening test and that this alleged violation continued to the formal arrest. Mr Malifa argues that the proper process and procedure under ss40A, 40B, 40C, 40E & 40F RTO should have been followed but Police failed in that regard. 
12.	Mr Malifa also drew a comparative analysis of his understanding of the NZ provision in their s23 (1) Bill of Rights Act 1990. He relied mostly on a number of NZ cases and P v Vaasili Piula. In sum Mr Malifa submits that the supremacy of the Constitution guarantees the protection of fundamental rights such as the right to counsel and that where there is such a breach, then Article 4 kicks in as a remedy to quash the information otherwise Mr Wendt will suffer prejudice and unlikely to have a fair trial.
13.	For the third ground, it seems the gist of the argument is as there is no offence such as failure to comply prescribed under s40(1) (2) and (4), it means Mr Wendt should not have been held in custody overnight but because he was, it amounted to a breach of Article 10 (1) Constitution. It is further argued that even if there was such an offence, it would be a minor one so that Mr Wendt should have been released. According to Mr Malifa, at the time, meaning the year 2015, s71 of the repealed Criminal Procedure Act 1972 was still operable and it applied here which meant Mr Wendt was bailable as of right and his overnight detainment in custody was therefore unlawful and an abuse of process. 
14.	In terms of jurisdiction for this Court to quash an information, Mr Malifa submits inter alia this is by virtue of this Court’s inherent jurisdiction pursuant to its common law jurisdiction limited only by its discretionary authority. 
Prosecution
15.	Prosecution as I said above opposes the application saying that the charge is properly brought and prescribed by law and that they seek leave to have it amended to insert the correct provision being s40O RTO. They further argue there was no abuse of process or breach of constitutional rights as the Defence alleges. 
16.	In regards to the jurisdictional issue, Ms Sio for Prosecution submits that the District Court’s jurisdiction to quash a criminal information under s66 District Court Act 2016 (“DCA”) on the grounds of defect, irregularity, omission or want of form can only be exercised if the Court is satisfied there has been a miscarriage of justice. They rely on Meredith Ainuu Lawyers v Ah Him as authority for what may constitute miscarriage of justice which they argue is absent here. They also rely on P v Gibson, where a similar application as here was made. The Court there held there was no abuse of process and the application to quash was dismissed.   
Defence Submission in Response 
17.	In response Mr Malifa recorded their strong objection to the proposal for an amendment arguing this would be unfair to Mr Wendt as such amendment should have been done promptly. 
Discussion
Jurisdiction of District Court to Quash Information
18.	I will start by addressing the issue of whether this Court has inherent jurisdiction to quash the information. As I expressed in the civil cases of Asian Taste v Ah Sam and Mataafa v Ministry of Revenue, Article 74 Constitution establishes subordinate Courts such as this Court with its jurisdiction and powers conferred by statute namely the DCA. Section 30 DCA deals with the criminal jurisdiction of this Court, a non-issue here. 
19.	As I said in those two cases, this Court does not have inherent jurisdiction unlike the Supreme Court. Rather it is endowed with inherent powers necessary for it to act effectively within its jurisdiction. I had referred there to the NZ Court of Appeal case of AG v Otahuhu District Court adopted by the learned CJ Sapolu in Duffy v Toailoa where the learned Justices of that Court explained: 
	“As a statutory Court of limited jurisdiction, the District Court does not have an inherent jurisdiction to make any order necessary to enable it to act effectively as does the High Court. It is well settled, however, that as ancillary to its particular jurisdiction it has the powers necessary to enable it to act effectively within that jurisdiction. The most important of these inherent powers are the powers of a Court, subject to the rules of Court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures and to prevent an abuse of its process.”
20.	The learned CJ Sapolu in Duffy further observed that in Otahuhu, the Court of Appeal there had held that “the NZ District Court has the necessary power to control its own proceedings to ensure fairness, determine preliminary questions of law and fact, and prevent abuse of process.” The same principle applies here. CJ Sapolu also referred to McMenamin v AG where the Court there stated that:
	“An inferior Court has the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on it by state. This is implied as a matter of statutory construction. Such Court also has the duty to see that its process is used fairly. It is bound to prevent an abuse of process.”
21.	Another case that is also directly on point is NPO v Tavaseu which is a decision by Justice Tuala - Warren on an appeal from this Court against a ruling to dismiss charges by the then Judge (now Justice) Vaai. Tavaseu also reaffirms the position above that this Court is a creature of statute and that it does not have inherent jurisdiction like the Supreme Court.
22.	Section 66 DCA is the governing provision which explicitly provides for the statutory power of this Court to quash an information on the grounds of a defect, irregularity omission or want of form but only where the Court is satisfied there has been a miscarriage of justice. Section 66 is reproduced below to place it in its full context:
	“Proceedings not to be questioned for want of form – No…information…is to be quashed …by any Court on the grounds of any defect, irregularity, omission or want of form, unless the Court considering the question is satisfied that there has been a miscarriage of Justice.” 
23.	In Tavaseu Justice Tuala-Warren gave an analysis of s66DCA where she stated that this provision gives this Court statutory power to dismiss an information provided the Court is satisfied there has been a miscarriage of justice. I agree entirely.
24.	Section 28 Criminal Procedure Act 2016 (“CPA”) which provides that no information to be held invalid for want of form is equally applicable in respect of the extent to which this Court’s inherent power is to be exercised in situations of this nature.  At subsection 1 (a) and (b) it states that a Court may not quash, set aside or dismiss any information or a charging document:
	“…by reason only of the failure to comply with this Act unless the Court is satisfied that there has been a miscarriage of justice such that it would be contrary to the interests of justice to allow amendment, or any other correction available under this Act, or any other enactment or rule of law.” 
25.	Also relevant is s191 CPA which reflects the same intention as s28 CPA and s66 DCA. It requires that “no information…no process or proceeding is to be quashed, set aside, or held invalid by a Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.”
26.	This logically brings discussion to the next step. Do any of the situations anticipated under s66 DCA, ss28 and 191 CPA apply here? I will answer this next.
Analysis of Grounds to Quash 
First Ground: The Offence is not Prescribed by Law
27.	The first ground as summarized above argues that the information (D933/16) ought to be quashed as it is not prescribed by s40(1)(2) and (4) RTO and infringes Articles 9 (1) and (10) (1) Constitution.  At the outset I must say I really struggled to grasp and contextualize the Defence’s argument here. 
28.	As I understand the argument, as the offence is not prescribed by the enactment cited, it is therefore unconstitutional under Article 10(1) and should be quashed. But can I do that? Mr Malifa urges that this is a novel case that would one day make the world book of records. I admire his enthusiasm maybe that day will eventually come to fruition. But today is not “the day”. Here, as with all other cases, I am bound by the law and what is fair in the interest of justice. For the reasons canvassed below, this ground fails.  
29.	Information D933/16 reads as follows: 
	“I Teni Taamai – Police Constable of Apia says on oath that I have reasonable cause to suspect and do suspect that at Matautu – tai on 25th day of March 2015 the abovenamed defendant of Vailoa Faleata fails to comply with any lawful requirement, direction or request made by an enforcement officer for the purpose of a screening test”
30.	On the information, the charge is brought pursuant to s40(1) (2) (4) RTO which states:
	“40. Contravention of specified breath alcohol and blood alcohol limits and drugs – (1) A person commits an offence if the person drives or attempts to drive a motor vehicle while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by that person under section 40B exceeds 40 micrograms of alcohol per 100 millilitres of breath. 
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle while the proportion of alcohol in the person’s blood as ascertained by the analysis of a blood specimen subsequently taken from the person under section 40E or section 40F, exceeds 80 milligrams of alcohol per 100 millilitres of blood.”  
31.	At first blush, s40 (1) creates an offence for what is commonly referred to as driving under the influence (“DUI”). It captures a person who drives or attempts to drive a vehicle whilst under the influence of alcohol and where the proportion of alcohol in the breath or in the person’s blood specimen exceeds the legal limit of 40 micrograms of alcohol per 100 millimeters of breath. 
32.	Having regard to the specific particulars of information D933/16 charging Mr Wendt, the substance of the offence alleged there is commonly referred to as failure to comply with lawful requirements and directions by an Officer. This offence is expressly created by s40O (1) (2) and (4) which states where relevant:
	“40O. Drivers and other road users to comply with directions of enforcement officers, etc. – 
	(1) A person must comply with section 40A, 40B, 40C, 40 E and 40F (which relate to the administration of the breath screening test, evidential breath tests and blood tests)  
	(2) A person must comply with all lawful requirements, directions, and requests made by an enforcement officer under any of sections 40A, 40B, 40C, 40E and 40F. (3)… 
	(4) A person commits an offence punishable by a fine not exceeding 10 penalty units or 6 months imprisonment, if the person fails to comply with any lawful requirement or direction given by an enforcement officer, to which this section applies.
33.	It is therefore glaring that the current charging enactment of s40 (1) (2) and (4) deals with a separate offence of DUI. However, where someone who is required by Police to undertake the breath screening test fails to comply with how to do it as directed by an officer, then it becomes an offence under s40(O) which is the substance of the offence particularized in the information here.  
34.	So it is arguable that there is some merit to the contention by the Defence that this provision does not prescribe the offence alleged. It is a technical mooting point. But that is as far as it goes because according to s66 DCA and s191 Criminal Procedure Act 2016 (“CPA”), I cannot quash an information, a process or procedure for a defect, irregularity, omission or want of form unless I am satisfied there has been a miscarriage of justice. It would have been different if it was not an offence prescribed by law rendering it a nullity. But that is not the case here.  
35.	Then there is s28 CPA echoing the same statutory scheme that a Court may not quash an information for failure to comply with that Act unless it is satisfied there has been a miscarriage of justice such that an amendment or any other remedial provisions under the CPA, or any other enactments or rule of law would be contrary to the interest of justice. This enactment is almost identical to s170 of the repealed CPA 1972.
36.	The existence of these three enactments connotes that a motion to quash an information is not to be taken lightly where situations stipulated there applies. In fact, s28 CPA encourages an amendment or any other remedial action to rescue an information where justice requires. The test is clear. Unless this Court is satisfied there has been a miscarriage of justice, it cannot quash the information where those situations apply, as it does here.     
37.	This naturally brings discussion at this juncture to the next stage. The key question I must consider is has there been a miscarriage of justice here? What is a miscarriage of justice? The learned CJ Sapolu explained this in Meredith Ainuu v Ah Him where he stated:
	“There will be a miscarriage of justice if the defect has caused the defendant significant prejudice or has rendered the information an abuse of process: R v McColl (1999) 17 CRNZ 136 at p.143. The onus of showing a miscarriage of justice lies on the person raising such miscarriage and the standard of proof is on the balance of probabilities. If, however, the defect is so serious so as to result in a nullity, then s.170 will not apply to rescue the information from invalidity: Police v Thomas [1977] 1 NZLR 109, 121, which was concerned with the validity of a notice to prosecute; Mathieson v Allan [1979] 2 NZLR 200, 202, which was concerned with the validity of a summons; R v Sanders (1994) 12 CRNZ 12, 14-15, which was concerned with the validity of a search warrant; and R v McColl (1999) 17 CRNZ 136 which was also concerned with the validity of a search warrant.
38.	In R v McColl Tipping J referred with approval to the above passage cited by CJ Sapolu from R v Sanders  and at p143 he said the following which is useful for these purposes:
	"If the defect is such as to nullify the application [for a search warrant], s.204 will not come to the rescue. But if the defect falls short of nullification, the question will be whether there has been a miscarriage of justice. The onus of proving such a miscarriage rests on the proponent and the standard of proof is the balance of probabilities.
	A miscarriage will arise if the defect has caused significant prejudice to the person affected, here Mr McColl…There would also be a miscarriage of justice if we were satisfied that the defects rendered the application an abuse of process…"
39.	Applying the above principle here, in my respectful view, the Defence has not shown at all on the facts and documents before me that there has been a miscarriage of justice let alone an abuse of process. To contextualize this, I ask the crucial question; did Prosecution’s omission or error to correctly cite the charging enactment cause prejudice or embarrassment to the Defence sufficient to nullify it?
40.	According to Cooke J in P v Thomas “nullity or otherwise is apt to be a question of degree…In practice the question of miscarriage of justice and nullity will often tend to merge”.   Then in R v Sanders Cooke P had this to say on his behalf and Casey J: 
	“In the end it is always a question of the relative seriousness or otherwise of an error. If the error is so serious as to attract the description nullity, s.204 will not assist. Inevitably questions of degree and judgment arise." (emphasis CJ Sapolu in Meredith Ainuu v Ah Him at p7).
41.	With respect to the Defence, I am of the view the omission or error by the Prosecution is very minor. It does not in the slightest nullify the information which in every respect was properly brought as prescribed by law. Nor does it cause significant prejudice or embarrassment to Mr Wendt as to render it an abuse of process leading to a miscarriage of justice.
42.	Section 24 CPA provides for the sufficiency of particulars in an information which must also where practical and applicable use the words of the enactment creating the offence. In Meredith Ainuu v Ah Him CJ Sapolu had this to say about the function of an information under s16 of the repealed CPA 1972 which is almost identical to s24 of our current CPA:
	“It is clear from s.16 that an essential function which an information is supposed to perform is to fairly inform the defendant of the substance of the offence with which he is charged. This is necessary to enable the defendant to prepare and present his defence. But that is not the only function of an information. At common law, the information must also fairly inform the Court in which it is laid of the nature of the offence charged.”
43.	Then at page 5 the learned CJ Sapolu referred to the case of Police v Wyatt where McCarthy J said: 
	"[All] this does not mean that when a person charged is left in doubt as to what really is the allegation against him, he is not entitled to further details. If he is embarrassed, he is entitled to an order for those necessary to inform him adequately; and I would expect that Magistrates will freely order such particulars. A refusal by a Magistrate to order additional particulars, when the justice of the case requires them, would, in my mind be reviewable on appeal."
44.	A close examination of the information here reveals that it does include the name of the accused Mr Wendt, his village, the place, date and nature of the offence. In fact, as I expressed above, the words used to describe the substance of the offence reflect those of the correct enactment that the charge should have been brought under namely s40O (4).  Also it charges one offence so it meets s20 CPA. 
45.	So there is no doubt in my mind, that the information conforms with s24 CPA and that the Defence and equally the Court were fairly informed of the nature of the offence disclosed being one of failure to comply with directions of the Officer in carrying out the breath screening test.    
46.	This is not an extreme case where the information does not disclose in substance a crime as to declare it a nullity under Article 10(1) or the relevant provisions of the CPA and common law principles. On the contrary, a prima facie crime is disclosed. But it appears to be an inadvertent error on the part of the Prosecution that the charging enactment under s40(O) is not inserted which is the only missing particular. This however is not fatal. In my view, the omission in the circumstances is not of the slightest practical significance that there cannot possibly have been any actual miscarriage of justice or even an abuse of process.    
47.	Given there is no miscarriage of justice, the appropriate remedy as recognised by law is an amendment. Section 28 CPA kicks in as clearly an amendment under another enactment in the CPA is required in the interest of justice to rescue the information and prevent any material irregularity in the course of the trial. In Meredith Ainuu v Ah Him, the Court there quoted the following self - explanatory extract from Broome v Chenoweth about when an amendment to an information might be suitable. As explained by Dixon J at p601:
	"Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. Some Victorian cases will be found discussed by Cussen J in Knox v Bible (1907) VLR 485 at pp.498-500, and the matter is very fully examined by Clark J in Davies v Andrews (1930) 25 Tas, L.R 84 at pp.91-110, where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment."
48.	Section 55 (1) (b) CPA allows a Court to amend the particulars of a charge at any time during the trial. The phrase “during the trial” has been judicially held to include the time a judge reserves a decision. Prosecution has sought an amendment to insert s40O to the information. Mr Malifa opposes.
49.	I can understand Mr Malifa’s qualm that the amendment should have been done promptly. But all this could have been resolved by his writing to or emailing the Prosecution to clarify if the correct enactment is cited as opposed to filing a notice to quash. Certainly in my day as defence counsel I normally do this as it is in the best interest of the client. After all, Mr Malifa would have known from the instructions obtained from his client, Mr Wendt that he was not charged with DUI. This is also obvious from the particulars of the offence which does not disclose such an offence.
50.	It could have been resolved too by Prosecution taking immediate steps to seek an amendment rather than being side-tracked by the Notice to Quash. After all this matter has a protracted history and has been through a number of adjournments before it was even heard. So there was plenty of time to seek an amendment.    
51.	But even if the amendment was not done promptly, the fact of the matter is, by the first mention of this matter on 19/04/16, Mr Malifa, his client Mr Wendt and equally the Court were well informed of the nature of the offence; after all not guilty pleas were entered to both offences.  Prosecution have been flagging an amendment since they filed their response to the application to quash. This is not a case of the Defence being ambushed or caught by surprise as they knew all along about the proposal for an amendment. As I expressed above, there is no prejudice or embarrassment to Mr Wendt. The amendment will allow the insertion of the correct charging provision and ensure a fair trial.   
52.	In sum by operation of s66 DCA, ss28 and 191 CPA, an information, process or procedure cannot be quashed or set aside by reason of a failure to comply with the CPA or for an irregularity, omission, want of form or defect unless this Court is satisfied there has been a miscarriage of justice in allowing an amendment or any other correction available under the CPA or any other enactment or rule of law. This Court is bound by those provisions also bearing in mind the principles of law in case authorities such as Dufffy, Meredith Aunuu and Broome. In the circumstances, I therefore grant the amendment sought by inserting s40O. 
53.	Given this conclusion, it is therefore unnecessary for me to consider the alleged constitutional infringements under Articles (9)(1) and 10(1) as they simply do not apply here.         
54.	For these reasons, this ground fails and is dismissed. 
Second Ground: Breach of Constitutional Right to Counsel 
55.	In regards to this ground, Defence placed great emphasis on this arguing as summarized above that there was a breach of Mr Wendt’s constitutional right to counsel when he was not cautioned or warned of this fundamental right during his de – facto arrest and later his formal arrest; and as there was such a breach it also rendered the process which followed soon after a nullity.
56.	Mr Malifa submits that at the very least, Mr Wendt was under defacto arrest at Matautu – tai when Faaofo started questioning him and was formally arrested when “brought to the vehicle” to wait in it whilst Faaofo returns to the scene to complete his investigation. At that point Mr Malifa argues, Mr Wendt should have been informed of his right to counsel given his apprehensions. This was not done. 
57.	Prosecution contends there was no such breach as the right to counsel was exercised when Mr Wendt was interviewed the next morning as evident in the caution statement and that Police were entitled by law to hold him in custody.   
58.	I concede the concerns raised by Defence are crucial as it goes to an alleged violation of the constitutional right to counsel and abuse of process. There is also the legal issue evident from Defence submissions and their reliance on overseas authorities of whether the caution as to the right to counsel should be exercised once an officer requires a person to undertake the breath screening test on the road side or where ever.
59.	A corollary to this is another question of whether it is necessary to caution a person at this stage of this right or should this give way to the purpose of the scheme of s40A RTO to require without delay a driver of a vehicle suspected to have consumed alcohol to undergo a breath screening test in the interest of road safety.  
60.	Be that as it may, in my respectful view these arguments are prematurely made at this preliminary stage by way of a Notice to Quash. I say this because the challenge goes to matters of facts pertinent to the admissibility of evidence under the Evidence Act 2016, other legislations as well as common law principles. The evidence has not even been heard or tested yet in a trial proper for me to form a view whether there has been an infringement of this fundamental right or even to draw conclusions as to the admissibility or exclusion of evidence (if any). 
61.	In fact in Noort v MOT, a case Defence relies on heavily, there the NZ Court of Appeal  referred to the Canadian case of R v Thomsen where the accused suspected of DUI was stopped at a spot check and required to undertake the breath screening test. However, he refused. He was asked by the Officer to accompany him to the Police vehicle where he remained for some 15 minutes whilst the Officer recorded his notes in his notebook. The Officer explained the demand but did not caution the accused of his right to retain or instruct counsel without delay. 
62.	The Canadian Provincial Court dismissed the charge on the ground that the right of the accused to retain and instruct counsel without delay had been infringed. On appeal, the acquittal was set aside and a new trial ordered on the grounds that the finding as to the unlawful detention had been made before the evidence was complete. It was also doubted if the accused had been detained at all during that brief time. This case substantiates what I said at paragraph 60 that the full evidence should be heard first. 
63.	As mentioned earlier, a number of case authorities were cited to support the Defence’s position. I do not intend to traverse those in detail suffice to say I have perused and analysed those cases. I note those cases all went to trial where challenges were raised at the voir dire to admissibility on the grounds the evidence at stake was unfairly obtained being in breach of Article 6(3) Constitution;  in regards to the NZ situation s23 (1) of their Bill of Rights Act 1990. 
64.	As expressed above, I simply cannot make a ruling to quash the information on the basis of affidavits. This in my view would not be conducive to justice or a fair trial for either side. It is prudent to a fair trial that the proper process of having a voir dire or any other as the trial judge sees fit during a trial proper should be followed. 
65.	Defence suggests that where there is a Constitutional infringement of this fundamental right, then the only remedy is to quash the information. With respect I disagree. I am not satisfied on the material before me at this stage that quashing the information is the only remedy. It may well be that the proper remedy to achieve overall fairness is to exclude or place no weight on such evidence if it is established it was in fact unfairly obtained. But then again the trial judge may find otherwise. Also if the trial judge makes a finding that the right to counsel overrides the scheme of the enactment at stake here, then that finding should be properly made after hearing the evidence and both parties on the issue. I cannot pre-empt that decision at this stage.  
66.	The key issue that must always be remembered at a criminal trial is has the Prosecution discharged their job of proving the charge beyond a reasonable doubt? I reiterate that where a challenge on the admissibility of evidence and of this nature is put forth in criminal cases, it is incumbent in the interest of justice and fair trial to firstly hear the evidence in its totality before a trial judge draw conclusions. Defence also has the option of making a submission of a no case to answer at the conclusion of Prosecution evidence should they feel that the evidence taken at its highest cannot possibly sustain a conviction.
67.	In the circumstances, this ground also fails and is dismissed.
Third Ground: Abuse of Process
68.	For the abuse of process contention, the gist of the argument is as there was no known offence of the nature that Mr Wendt was charged with at the date of the offending being 25 March 2015, this meant the provisions of the repealed CPA still applied meaning Mr Wendt was bailable as of right and his detention overnight in custody was therefore unconstitutional and unlawful.  It appears the argument borders on false imprisonment.  Prosecution opposes saying due process was followed and Mr Wendt was lawfully detained. I will briefly deal with this ground. 
69.	Given what I said above in paragraphs 27 to 53, this ground similarly fails. Defence Counsel should really check the contents of the documents he files to ensure details marry. In the submission the date relied upon is 25 March 2015 and I assume this is from the particulars of the information. Whereas in Mr Wendt’s affidavit drafted by Mr Malifa himself, he admitted to the date being 25 March 2016 which matches the date of the incident in Prosecution’s documents even Mr Wendt’s caution statement.
70.	As I said in paragraphs 4 and 5 above, on the basis of the affidavits there is no dispute as to the year of the offending being 2016 and not 2015. So that material particular on the information was accordingly amended. This basically renders the argument under this ground unmeritorious and futile. 
71.	In any event even if the year of the incident was 2015, I would still dismiss this ground for the reasons stated in the next paragraphs. At the end of the day, the argument here is speculative and misconceived because the fact of the matter is the correct year of the offending is 2016 and not 2015 which meant by that time, the new CPA 2016 was already enforced.   
72.	Section 98 CPA deals with rules as to the granting of bail. At subsection (1) it provides that an accused is bailable as of right who is charged with an offence that is not punishable by imprisonment. At subsection (2) it states that an accused is also bailable as of right if charged with an offence for which the maximum penalty is less than 3 years’ imprisonment unless the offence involves assault on a child or by a male on a female.   
73.	The charge of failure to comply attracts a maximum fine of 10 penalty units ($1000) or 6 months’ imprisonment. The careless driving one is liable to a maximum fine of 2 penalty units ($200). Mr Malifa is correct in saying that at the time of the offence Mr Wendt was bailable as of right. But whether an accused is bailable as of right it does not necessarily follow as a matter of course that he or she will be automatically released without being held in custody overnight. Where a person who drives a vehicle is suspected to be under the influence of alcohol, then detainment in custody is perhaps the best call to make for the safety of the accused and other road users.       
74.	At this juncture, I draw counsel’s attention to Article 6(4) Constitution which allows for every person arrested or detained to be held in lawful custody for a period of up to 24 hours. It further requires that such a person must be brought before a Supreme Court registrar or remanding officer within that timeframe. Any detainment beyond that time must be authorized by the remanding officer.
75.	The use of the word “every” in this Article is self-explanatory. It connotes that it does not matter if an accused is bailable as of right because according to this Article every person is liable to be held in custody provided that person is brought before a remanding officer within 24 hours from the time of custody. 
76.	Then there is also s104 (b) CPA which allows an accused bailable as of right to seek bail from the Court if such a request was not made at the time of remand. Section 106 CPA is also relevant which deals with the conditions of bail that a remanding officer may impose on an accused. Mr Wendt was remanded on bail on the condition that he reports every Friday to the Apia station. 
77.	Generously interpreted, these enactments in the CPA allows for the lawful detention of those bailable as of right which is in line with the spirit of Article 6(4) Constitution. This further seals my view I expressed above that an accused bailable as of right can be lawfully detained by Police in custody overnight provided he or she is taken before a remanding officer within 24 hours. If such a person is not granted bail by the remanding officer then the provisions under ss98, 99, 104, 105 and 106 CPA applies.
78.	In my respectful view a detainment in custody of an accused bailable as of right or not is a lawful and reasonable restriction to the right to personal liberty unless of course a complaint is made to the Supreme Court that it is unlawful under Article 6(2). As the Constitution is the supreme law of the land, Article 6 (4) therefore applies here and it supersedes any other enactment or common law principle to do with remands in custody.  
79.	In the circumstances, it therefore follows there was no abuse of process of the kind alleged by the Defence as Mr Wendt was lawfully held in custody under Article 6(4) Constitution. This ground is therefore also dismissed.
CONCLUSION
80.	For the reasons canvassed above, the application to quash is dismissed. 
81.	Given its protracted history, it is crucial this matter be set down for hearing immediately. This is the most practical remedy now.
82.	This matter is adjourned for hearing before Judge Schuster on 12 September 2018 at 10am.
83.	Prosecution in the meantime are to attend to full disclosure if it has not done so already.

JUDGE ALALATOA ROSELLA VIANE PAPALII