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Ogabe v Attorney General [2013] WSSC 144 (15 November 2013)

SUPREME COURT OF SAMOA

Ogabe v Attorney General [2013] WSSC 144

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FUATINO OGABE female of Vaie’e.
Appellant

AND:

ATTORNEY GENERAL

Respondent

Counsel: L T Malifa for appellant
L Su’a-Mailo for respondent
Decision: 15 November 2013

DECISION OF NELSON J

[1] On 27 February 2013 the appellant appeared in the Fa’amasino Fesoasoani Court and pleaded not guilty to a charge that at Vaie’e Safata between 31 July and 01 September 2012 the appellant used insulting words namely “Tuiā laumei” whereby a breach of the peace may be occasioned. The charge was brought by the Police pursuant to section 4(g) of the Police Offence Ordinance 1961 and carries a maximum penalty of 3 months in prison or a fine not exceeding $200.

[2] After a number of adjournments the matter went to trial before Fa’amasino Fesoasoani Judge Va’aelua on 23 May 2013. The appellant represented herself. It is not known what happened at the trial as the Judges notes of the evidence and his decision are not on the court file. It is not known whether he in fact made notes as he should have. The police prosecutors notes of the evidence are insufficient as they are the notes of the prosecution and they appear in any event to be incomplete as they make no reference to witnesses the appellant says she called. The information goes on to record the judges verdict of “found guilty, convicted and fined $250 payable forthwith in default 2 months imprisonment, signed Fa’amasino Fesoasoani Va’aelua, 23 May 2013.”

[3] In addition to the absence of the judges notes the appellant argues her constitutional right to a fair trial has been infringed as she advised the trial judge she had five witnesses to call. But he ruled only two witnesses would be permitted to testify. Article 9(1) of the Constitution guarantees to every person charged with an offence “a fair and public hearing” and article 9(4)(d) the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

[4] The High Court of Australia in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 has said that it was right to describe the giving of reasons as “an incident of the judicial process.” In Soulemezis v Dudley Holdings Limited (1987) 10 NSWLR 247 at page 281 Justice McHugh of the New South Wales Court said “that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.”

[5] Similar sentiments have been expressed in the New Zealand courts - see for example Chilwell, J in Connell v Auckland City Council [1977] 1 NZLR 630 where he held:

“It is my judgment that the duty to provide reasons is fundamental and unless there is specific statutory provision to the contrary all judicial persons are obliged to give reasons, particularly where rights of appeal are involved.

I have come to the conclusion that the justices erred in law by failing to supply any reasons whatsoever for their decision. Accordingly, their decision is a nullity and hereby quashed.”

The learned judge went on to add:

“I would not like the justices to think that this court does not appreciate the difficulties and circumstances under which they work and the pressure of business in their courts and the thoroughly successful way in which they carry out their judicial responsibilities. I am sure that when it is pointed out to the justices, as I have endeavoured to do, the importance of reasons, that in future, reasons will in all cases involving defended hearings, be given.”

[6] A full bench of the Court of Appeal of New Zealand in Lewis v Wilson and Horton Limited [2000] NZCA 175; [2000] 3 NZLR 546 said that while there is no invariable rule established in New Zealand that courts must give reasons for their decisions there are three main reasons why the provision of reasons is desirable. Firstly it is “an important part of openness in the administration of justice.” Secondly “failure to do so means that the lawfulness of what is done cannot be assessed by a court exercising supervisory jurisdiction.” And thirdly “they provide a discipline for the judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice.”

[7] As explained by the court in Connell:

“Every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty’s subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system.”

[8] Our own Court of Appeal in dealing with a case under section 100 of the Criminal Procedure Act 1972 and the exercise of a judges discretion to set aside a verdict of assessors said that the reasons for a decision-

“Need not be elaborate. But they must identify and deal with the essential issues and contentions in the case.

That is for several overlapping reasons. First is the discipline the requirement places on the judge to ensure that the process of reasoning covers all necessary bases and does so convincingly. Secondly and vitally, the parties and especially the losing party, are entitled to know how their contentions have been dealt with and why the decision is as it is. Thirdly, the assessors are entitled to know why the judge has disagreed with them. Fourthly, not only are the parties entitled to reasons to determine whether to appeal but without reasons the appellate court cannot properly perform its functions. Finally, confidence in the rule of law depends upon the judges acting transparently. Reasons are an essential element of the same open justice that requires public access to the courtroom”: Attorney General v Sefo [2009] WSCA 7.”

[9] Quite clearly the preponderance of judicial opinion is judges should give reasons for their decision. Not necessarily complex or lengthy ones but it must meet the basic criteria of explaining how and why the judge came to a particular decision. If the practice in the Fa’amasino Fesoasoani Court is to the contrary then this should be rectified immediately. On this ground alone as properly conceded by the prosecution the appeal should be allowed.

[10] The appeal should also be allowed on the basis that the trial judge again as conceded by the prosecution by way of the affidavit of the prosecuting police sergeant in the Fa’amasino Fesoasoani Court proceeding. Because the trial judge refused permission for the appellant to call all her witnesses. The constitutional requirements are clear. A fair trial requires full opportunity be given to a defendant to present his/her defence. Where he/she is not represented by counsel, he/she should be given the fullest latitude.

[11] The words of article 9(4)(d) are also plain enough. Any objection based on the fact that the defence evidence or the evidence of defence witnesses was not put to the prosecution witnesses in cross examination could have been dealt with as each witness testified. It is important to note that in this case the defendant was representing herself. She is not a trained lawyer. And further the rule in Browne v Dunne is not so stultifying that it requires that therefore defence witnesses in a case where a defendant is representing himself must necessarily be excluded from giving evidence for this reason.

[12] A further ground on which the appeal should be allowed is that the trial judge acted in excess of jurisdiction in fining the defendant higher than the prescribed maximum for the offence.

[13] The appeal is allowed. The case is remitted back to the Fa’amasino Fesoasoani Court for a retrial and for this purpose the defendant will be remanded at liberty to appear before that court on 20 November 2013.

[14] Ona o tulaga lea ua tolaulau atu e le fa’amasinoga i lana fa’aiuga Fuatino, o lea ua fa’ata’atia ese le fa’aiuga lea sa fai e le Fa’amasinoga Fesoasoani i le aso 23 o Me tausaga nei. Ma ua toe poloaiga le fa’amasinoga e toe silasila i ai ma toe su’esu’e le mataupu lenei. O lea ua tolopo lau mataupu e toe valaau i luma o le Fa’amasinoga Fesoasoani i le aso 20 o Novema le aso Lulu o le vaiaso lea.

[15] (Defence counsel indicated the defendants fine has already been paid). In view of the fact the appeal has succeeded there will be a further order that the fine paid by the appellant is to be refunded forthwith.

JUSTICE NELSON