IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TOETU UNASA aka TOETU FIAALII male of Faga Savaii and Vaivase tai
Defendant

Counsels: Ms Chang for prosecution
Ms Va’a for defendant

Hearing: 22 March 2007

Judgment: 27 August 2007

ORDER AS TO COSTS

The defendant was originally charged with having sexual intercourse with a girl over the age of 12 years and under the age 16 years, not being his wife. He pleaded not guilty on the 18th December 2006 and the defended hearing was scheduled for the 2nd March 2007. On the 16th February 2007 the police presumably on instructions of an enthusiastic officer of the office of the Attorney General filed a charge of rape so that the unlawful sexual intercourse charge became the alternative. At the conclusion of the case for the prosecution counsel for the defence naturally moved for a no case to answer submission on the charge of rape which was granted. On the charge of unlawful sexual intercourse the assessors after a very brief deliberation of less than two hours returned a not guilty verdict.

Counsel for the defence filed an application for costs pursuant to section 167(2) Criminal Procedure Act which provides:

167 (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, or in relation to any adjournment or the taking of evidence under section 26 or 28 of this Act.

(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.

It follows from the wording of subsection (5) that the court has a fettered discretion to award costs to a defendant in the circumstances of a dismissal of the information. Dismissal of an information includes the termination of criminal proceedings against a defendant, either by way of acquittal, or by way of quashing an information or striking out an information, or by way of a stay or by any other method of termination. See R v Essex Justices; Ex parte Churchill (1933 148 LT 499; and Police v Siau Safue & others 8unreported, Court of Appeal of Samoa, 15/8/2000.

Exercise of discretion to grant costs

(a) The accused and the complainant were caught by the father of the complainant lying on the ground near the complainant’s family toilet. The father said in his police statement:

"I walked to the toilet to urinate, I didn’t go inside the toilet, I saw someone lying beside the toilet while I was urinating I was still observing this person who is lying because he is tall. I walked over and I noticed it was my daughter Laina who wore her towel around under her arms while Toetu on one of her legs. I said to him "Man" he stood up and ran but I followed him and I caught up with him … I punched him …"

When the complainant laid a complain of rape with the police her version of what took place when compared to what the father told the police and the results of the medical examination obviously led the police to discard her rape complaint. To lay a charge of rape close to trial date based on witnesses statements with very limited value to support even an act of sexual intercourse was in all circumstances unwarranted. The medical evidence alone ruled out any possibility of rape. 

The accused’s explanation to the police in his written statement that he and the complainant were caught by the father near the house where he lay on top of her and they kissed is largely substantiated by the father’s written statement to the police. So that even with the charge of unlawful sexual intercourse alone the prosecution had an almost impossible hurdle to overcome to prove that charge.

Quantum of Costs

Subsection 5 of Section 167 Criminal Procedure Act 1972 as already referred to above places a ceiling upon the costs which the court may order and limits the amounts which the court may order so as not to exceed the amount provided for in any scale prescribed by regulations or rules made under the Criminal Procedure Act 1972 or any other Act. In compliance with the very obsolete scale of costs set out in the Second Schedule of the 1971 Supreme Court (Fees & Costs) Rules I allow the following costs:

Rule 5: On dismissal of action: $4.00

Rule 8: Preparing for trial (must not exceed 3 times the amount
 in the appropriate scale).$90 x 3 $270.00

Rule 9: Trial or hearing of an action up to $2,000 $2,000.00

Rule 11: Second and each succeeding day of hearing if certified 
 for not exceeding $20.00, $40.00 or $60.00	 $60.00

Total: $2,334.00

Order

I fix the costs of the defendant at the maximum scale allowed by the rules at $2,334.00.

JUSTICE VAAI