IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

MAIAVA NAITITI SENIO
aka MAIAVA NAITITI MAU’U SENIO TUSA
of Mulifanua
Defendant

Counsel: Mr R. Schuster for the Prosecution
Ms K. Sapolu for the Defendant

Dates of Hearing: 22, 23, & 24 May 2000
Date of Ruling: 12 June 2000

REASONS FOR A DECISION (ON A QUESTION OF COSTS)
OF WILSON J.

The defendant Maiava Naititi Senio was charged with three (3) counts of incest. He pleaded not guilty to all counts. A trial was held. It was a trial by judge alone. At the close of the prosecution case, a submission of no case to answer was made by Mrs Katalaina Sapolu, counsel for the defendant. As my reasons published on 24 May 2000 show, I upheld that submission in relation to the count in each information and I entered verdicts of acquittal on all charges. The accused was discharged.

Application was then made on behalf of the defendant for an order awarding him costs pursued to section 167(2) of the Criminal Procedure Act 1972. The sum of ST$3,657.50 was claimed as per a letter to the Attorney-General dated 7 June 2000.

In the case of Police v Maiava Safue Siau and Another [2000] WSSC 10, an unreported decision of this Court dated 30 May 2000, I gave consideration to the statutory power to award costs in criminal proceedings. I held that the words “dismisses any information” mean and include the words “acquits a defendant”, and I decided that there is a discretionary power to award costs to a defendant when criminal proceedings are terminated in his favour by way of verdicts of acquittal.

I went on to consider the question of costs that may be awarded under section 8 of the Criminal Procedure Act and the Supreme Court (Fees and Costs) Rules, and I held that sub-section (5) of section 167 of the Act places a limit or ceiling upon the costs that may be awarded.

I see no reason to depart from the conclusion that I reached in that case. The same principles as arose in that case arise in the instant case. I would simply add that I do not interpret the words “shall in no case exceed the amount provided for in the scale ……” as being directory; those words are, in my judgment, mandatory.

I allow the following costs according to the scale of costs set out in the Second Schedule:

5.	On a dismissal of action						   4.00
8.	Preparing for trial-certified for having regard to the
importance of the case and the time reasonably spent
in preparation, not exceeding three times $90.00		 	 270.00
9.	Trial or hearing of an action, up to $2,000.00			2,000.00
11.	Second and each succeeding date of hearing - certified
for 3 day trial - 2 times $60.00					 120.00
29.	Travelling expenses paid - as ordered					  40.00
30.	Costs to be fixed under the head for an “amount
exceeding $5,000.00”
31.	Certified for the whole of the costs of the action
(i.e. costs not limited to $1,000.00).					________
				TOTAL				$2,434.00

I fix the costs of the defendants to be paid by the Prosecution at $2,434.00.

JUSTICE WILSON