THE SUPREME COURT OF SAMOA
Faatoafe Saufau & Ors v Alipia Siaosi II & Ors [2019] WSSC 89

Case name: 	Faatoafe Saufau & Ors v Alipia Siaosi II & Ors	
		
Citation: 	[2019] WSSC 89	
		
Decision date: 	09 August 2019	
		
Parties: 	FA’ATOAFE SAUFAU, LEOLI SANELE, and VAITOGI SEFO (Applicants) and ALIPIA SIAOSI II, SAMOA PITA, NIUAPU FAAUI LEIATAUA, TOLOFUAVAELELEI FALEMOE LEIATAUA, PU’EMAITAILO PAULO LEUTELE, TIATIA VAILIGA UMAGA, TAUALOFA’I LOLESIO LEIATAUA, TUA’ENA LOMAU PAULI, MAOGA KASIPALE AIONO, SINAIFOA MOANA, PILIA’E KOSE, ONO TALOSAGA FONOMAITU FALANIKO, and TUIMAUNEI SIO (First Respondents) and THE ATTORNEY GENERAL (Second Respondent).	
		
Hearing date(s): 	15 May 2019	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:	Lands and Titles Court	
		
Order:	The Notice of Application under Article 73(2) and supporting affidavit are struck out. 

The Attorney General has the discretion under Article 41(2) of the Constitution to discontinue any criminal proceedings.

There was no flagrant impropriety in the exercise of the Attorney General’s discretion to discontinue the private prosecution brought by the Applicants/Informants in the District Court.

The private prosecution brought by the Applicants/Informants in the District Courts against the First Respondents/Defendants is discontinued.

The First Respondents are discharged as defendants in the prosecution matter against them by the Applicants as Informants.

The Applicants to pay the following costs for this application: 
(i) 	$2,500 to the First Respondents; and 
(ii) 	$2,500 to the Second Respondent.	
		
Representation: 	Leulua’iali’i T Malifa for Applicants
Tufuga F Tufuga & E Peters for First Respondents
S Ainuu & C Te’o for Second Respondent	
		
Catchwords: 	chiefs banished – contempt of Court – Lands and Titles Court order  Lands and Titles Court appeal – flagrant impropriety – judicial review.	
		
Words and phrases:	certificate issued to discontinue criminal proceedings – breach of natural justice.	
		
Legislation cited:	Attorney General’s Office Act 2013, s. 7(2);
Constitution of the Independent State of Samoa, Articles 9; 41(2); 73(2);
Criminal Procedure Act 2016, s.26;	
		
Cases cited:	Balderstone v R and Manitoba (Attorney General) [1983] 2 S.C.R. V;
Gouriet v Union of Post Office Workers and Others [1977] 3 All E.R;
Gouriet v United Postal Workers [1978] AC 435;
R v Power(E) [1994];
Kostuch v Alberta (1991) 66 C.C.C. (3d) 201 (Q.B.) per Miller, A.C.J;
McMenamin v Attorney General [1985] 2 NZLR 274; 
Samoa Party v Attorney General [2009] WSSC 23;
Teó v Attorney General [2001] WSCA (23 November 2001); [2001] WSSC 25 (4 September 2001);
Toailoa Law Office v Duffy [2005] WSSC 7 (17 May 2005).	
		
Summary of decision:		

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER:

OF THE CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA

BETWEEN:

FA’ATOAFE SAUFAU, LEOLI SANELE, and VAITOGI SEFO of Leulumoega in Upolu, Matai

Applicants

AND:

ALIPIA SIAOSI II, SAMOA PITA, NIUAPU FAAUI LEIATAUA, TOLOFUAVAELELEI FALEMOE LEIATAUA, PU’EMAITAILO PAULO LEUTELE, TIATIA VAILIGA UMAGA, TAUALOFA’I LOLESIO LEIATAUA, TUA’ENA LOMAU PAULI, MAOGA KASIPALE AIONO, SINAIFOA MOANA, PILIA’E KOSE, ONO TALOSAGA FONOMAITU FALANIKO, and TUIMAUNEI SIO, all matai and Alii ma Faipule of Leulumoega

First Respondents

AND:

THE ATTORNEY GENERAL

Second Respondent

Counsels:	Leulua’iali’i T Malifa for Applicants
		Tufuga F Tufuga & E Peters for First Respondents
		S Ainuu & C Te’o for Second Respondent

Hearing:	15 May 2019

Judgment:	9 August 2019

judgement of justice tuatagaloa
1. 	This judgment concerns the Notice of Application under Article 73(2) of the Constitution filed by the Applicants.
Parties
2. 	The Applicants are matai of the village of Leulumoega who were banished. 
3. 	The First Respondents are also matai of the village of Leulumoega who made the order banishing the Applicants.
4. 	The Second Respondent is the Attorney General of Samoa who issued a Certificate to Discontinue criminal proceedings brought by the Applicants by way of private prosecution against the First Respondents in the District Court.
History of Proceedings (from chronology provided by the Second Respondent)
5. 	The Applicants as Informants by way of private prosecution filed Information charging the First Respondents in the District Court for contempt of court on 9th June 2017. 
6. 	On 19 February 2018 the Attorney General filed a Notice to Discontinue the private prosecution brought by the Applicants.
7. 	On 13 March 2018 the Applicants filed a Notice of Application under Article 73(2) of the Constitution in the Supreme Court.
8. 	On 18 March 2018 Judge Saaga of the District Court transferred the matter to the Supreme Court for determination as to whether the District Court has jurisdiction to hear the application for discontinuance pursuant to Article 73(2). 
9. 	The First Respondents filed Notice of Opposition dated 26 November 2018.
10. 	 On 10 December 2018, the Second Respondents filed Notice of Motion seeking leave to be joined as Second Respondents.
Background 
11. 	The Applicants and First Respondents were parties to a Land and Titles Court (“LTC”) decision LC.15083 P2-P3 dated 6 November 2015 which decision says: (in translation)
(i) 	The Applicants are ordered to apologise to the village (Leulumoega) and perform the usual traditional ways of Leulumoega without any further words which would cause dispute in the village;
(ii) 	The Alii ma Faipule of Leulumoega (represented by the First Respondents) to accept the apology of the Applicants;
(iii) 	The Applicants to be accepted back to internal village affairs (faiganuu) of Leulumoega if the Alii ma Faipule are satisfied.
12. 	The Applicants claim that immediately after the delivery of LTC decision on 6 November 2015, they sought to meet and apologise to the First Respondents the following day.  However, they were informed by a matai on behalf of the First Respondents that the village of Leulumoega needed to meet first to discuss the process of the apology to be carried out and what is required of the Applicants.
13. 	On 15 December 2015, by way of letter, the Applicants were informed by the village of the conditions they are to comply with or what is required of them in carrying out their apology to the village. 
14. 	On 12 February 2016 the Applicants wrote and in the same letter apologised to the First Respondents on behalf of the village of Leulumoega. On the same day, the Applicants wrote to the Registrar of LTC seeking their assistance to investigate and to charge the First Respondents for contempt of court pursuant to the LTC decision.
15. 	By letter of 24 February 2016, the Registrar advised the Applicants to maintain the peace and status quo within the village and reminded them to comply with the decision of LTC. The Applicants responded in a letter dated 26 February 2016 to the Registrar stating that they wish to continue with their case of contempt of court against the First Respondents.
16. 	The conditions imposed by the village pertaining to the Applicants apology that the Applicants must comply with in their view amounts to contempt of court. 
17. 	The First Respondents say that the conditions are in accordance with the ‘traditional ways of the village of Leulumoega’ and are consistent with the LTC decision specifically paragraph 11(ii). 
18. 	As a result, the Applicants by way of private prosecution pursuant to section 23 of the Criminal Procedure Act 2016 filed contempt of court charges against the First Respondents.
Notice of Application under Article 73(2) of Constitution
19. 	The Application is filed pursuant to Article 73(2) which authorizes the Supreme Court to deal with any questions arising as to the interpretation or effect of any provisions of the Constitution to determine that question and either dispose of the case or remit it to that other Court to be disposed of in accordance with the determination.
20. 	The following grounds are advanced by the Applicants:
(i) 	The District Court has no jurisdiction in respect of the Attorney General’s Certificate to Discontinue private prosecution against the First Respondents/Defendants, as it raises issues of the interpretation of Article 41 of the Constitution;
(ii) 	At no time in the private prosecution was the Attorney General involved, or his consent sought or required either at the investigatory level, the prosecutorial level or as legal advisor to the Defence whereupon the Attorney General intervenes in the course of justice;
(iii) 	As legal advisor to the State, the Attorney General cannot be advisor also to anyone else including the Defence in the private prosecution; the Attorney General advises only the State; and
(iv) 	The power under Article 41(2) of the Constitution, is discretionary and is of the Executive arm of the State, therefore:
(a) 	The Executive by the Attorney General cannot encroach onto the Judiciary in the latter’s power to enforce the law. In the very least “leave” should have been sought and obtained before the certificate was issued. No such leave was sought or granted, either of the court below or of this Court. There was not even consultation with the Informants (Applicants) or their counsel;
(b) 	The Attorney General’s executive authority is subject to review, more particularly by and of the “scrutiny” of this Court. Accordingly, his Certificate to Discontinue private prosecution against the First Respondents/Defendants made without such “scrutiny” or without leave, is an illegal exercise of discretion and is unconstitutional;
(c) 	Absent such ‘scrutiny’ and ‘leave’, the Attorney General in the exercise of the power under Article 41(2) is above the law that does not comport with the Constitution; and
(d) 	The Certificate is illegal, irrational and procedurally improper. 
21. 	The Certificate to Discontinue:
I.	Impinges upon the Applicants/Informants’ right and duty to lay their information as prescribed by law; and
II.	Violates the Applicants/Informants’ right to a fair trial guaranteed by the Constitution.
The Respondents Response to the Application
First Respondents 
22. 	The First Respondents oppose the Application upon the following grounds:
(i) 	The interpretation of Articles 41(2) and 73(2) of the Constitution has already been decided by the Supreme Court and Court of Appeal and therefore the District Court, is bound by such decision.
(ii) 	The District Court is competent to make a decision and accept the Attorney General’s Certificate to Discontinue proceedings.
(iii) 	The Attorney General has discretionary power to intervene and discontinue any criminal proceedings pursuant to section 7(2) of the Attorney General’s Office Act 2013 and Article 41(2) of the Constitution.
(iv) 	Furthermore, under the common law the Attorney General has a right to discontinue private prosecutions even in the absence of any statutory provision.
(v) 	There is no violation of the Applicants right under Article 9.
23. 	The First Respondents submit that the Attorney General has authority to discontinue or stay any criminal proceedings under the law and that he not give any reasons when he exercised his discretion.
Second Respondents
24. 	The Second Respondent submits that the Notice of Application under Article 73(2) and supporting affidavit be dismissed in its entirety on the following grounds: 
(i) 	The Attorney General has discretion to conduct or discontinue any criminal procedure pursuant to section 7(2) of Attorney General Office Act 2013 and Article 41(2) of Constitution;
(ii) 	The Notice of Application is not the right procedure but that of Judicial Review. That is, the Applicants/Informants are only seeking the interpretation or effect of Article 41(2) but they are not seeking judicial review of the issuance of the Certificate of Discontinuance dated 19 February 2018;
(iii) 	Article 41(2) has been interpreted by the Court in the case of Te’o v Attorney General to mean that the Attorney General has the authority or discretion to discontinue any criminal proceedings and that such discretion extends to private prosecutions;
(iv) 	The Applicants/Informants overall claim for relief is incapable of succeeding and has no prospect of success for the following reasons:
(a) 	The Applicants did not carry out an apology in accordance with the usual customs of the village of Leulumoega as per decision of LTC. They attempted to apologise by way of letter but that is not in accordance with tradition and customs of the village of Leulumoega; 
(b) 	The matter of laying a criminal charge of contempt of court against the First Respondents was initiated by the Applicants on 29 March 2016 with the Registrar of LTC who referred it to the Police on 21 April 2016for investigation and possible laying of a charge or charges. The Ministry of Police carried out an investigation and on 1 August 2016 advised the Registrar of LTC by way of letter that there was no evidence of contempt against the First Respondents in relation to the LTC decision. The Police did not lay any charge of contempt against the First Respondents. Despite the advice by the Police, the Applicants proceeded with a private prosecution against the First Defendants;
(c) 	Counsel for the First Defendants sought the assistance of the Second Defendant, the Attorney General who considered all relevant evidence and information relating to this particular case and confirmed that there is no prospect of a successful prosecution or conviction against the First Defendants for contempt of court.  Furthermore, it is not in the public interest that the matter be prosecuted;
(d) 	Therefore, the continuation of the private prosecution is a clear abuse of process. 
(v) 	The Certificate to Discontinue issued by the Second Defendant was properly made and not flagrantly improper.
The Orders sought
25. 	The Applicants/Informants seek the following orders:
(a) 	To remove or transfer the private prosecution from the jurisdiction of the District Court to the Supreme Court; and
(b) 	The Supreme Court to determine the interpretation or effect of Article 41(2) and the issuance of the Certificate to Discontinue by the Attorney of the criminal proceedings in the District Courts.
The Issues
26. 	Counsel for the Applicants conceded during oral submissions that the Attorney General or Second Respondent has authority or discretion under the law to discontinue any criminal proceedings but said that the exercise of such discretion was “flagrantly improper” for the following reasons:
(i) 	That no such leave was sought to file its Certificate of Discontinuance; and
(ii) 	There was breach of natural justice because the Applicants/Informants were not given the opportunity to be heard.
27. 	It is the issuance of the Certificate to Discontinue by the Attorney General that is the issue. The question therefore seems to be directed at the exercise of the Attorney-General’s discretion to discontinue under Article 41(2). 
Discussion
28. 	In the course of this decision I will be discussing some of the issues that arise in the course of submissions by Counsels as follows:
	Is the Notice of Application pursuant to Article 73(2) the right procedure to bring the matter from the District Courts to the Supreme Court or should it be by Judicial Review?
29. 	The Applicants filed their Notice of Application under Article 73(2) to allow for their application to be heard in the Supreme Court instead of in the District Court. Article 73(2) gives the Supreme Court jurisdiction to interpret or determine any questions that arise relating to the provisions of the Constitution to which the District Courts don’t have the jurisdiction to deal with. The Applicants/Informants by Notice of Application seeks the interpretation of Article 41(2) giving the discretion to the Attorney General to discontinue any criminal proceedings.
30. 	I agree with Counsels for the First and Second Respondents that Article 41(2) has been interpreted by the Court in the case of Te’o v Attorney General which decision is that the Attorney General has the authority or discretion to discontinue any criminal proceedings and that such discretion extends to private prosecutions. The Notice of Application then (in a way) is null and void.
Can a decision to discontinue by the Attorney General be, judicially reviewed?
31. 	The Attorney General’s discretion to discontinue criminal proceedings is a prosecutorial discretion. By the provisions of Attorney General Office Act 2013 and the Constitution, the Attorney General is given a discretionary power to intervene in criminal proceedings including private prosecutions. 
32. 	This issue has also already been decided by the Court of Appeal in Te’o v Attorney General that the Attorney General’s decision to discontinue is subject to review by the Court but only upon the ground of ‘flagrant impropriety’ in the exercise of discretion. Although their Honors did not say as to what form that review might take it is my view that such review includes judicial review. This would involve questions of fact or the evidence leading or which resulted in the exercise of the Attorney General’s discretion to discontinue the private prosecution by the Applicants/Informants.
The courts have understandably been very hesitant to intervene in the exercise of such discretion for the reasons provided in the following cases. In the Canadian Court of Appeal case of Balderstone v R and Manitoba (Attorney General) Monnin, C.J.M., stated as follows:
	“The judicial and executive must not mix. These are two separate and distinct functions. The accusatorial officers lay informations or in some cases prefer indictments. Courts or the curia listen to cases brought to their attention and decide them on their merits or on meritorious preliminary matters. If a judge should attempt to review the actions or conduct of the Attorney General – barring flagrant impropriety – he could be falling into the field which is not his and interfering with the administrative and accusatorial function of the Attorney General or his officers. That, a judge must not do.” (my emphasis)
	In R v Power:
	“That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.”
	Furthermore, their Honours in the Court of Appeal case in Te’o v Attorney General stated:
	“The integrity of the judicial process – particularly its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”
33. 	Apart from the case law, it appears that textbook writers and commentators accept that certain decisions involved in the prosecution process cannot be judicially reviewed. That is, the Attorney General can authorize the entering of a nolle prosequi in criminal proceedings or discontinue any criminal proceedings pending in any court and that such decision cannot be questioned in court (unless flagrantly improper) and the Attorney General need not give any reasons when he exercised his discretion. 
Was there flagrant impropriety on the Attorney General in the exercise of his discretion to discontinue the private prosecution by the Applicants/Informants?
34. 	Flagrant impropriety can only be established by proof of misconduct bordering on corruption, violation of the law, bias against or for a particular individual or offence. Therefore the grounds advanced by Counsel for the Applicants/Informants [paragraph 24] above cannot be sustained to establish or prove ‘flagrant impropriety’.
35. 	In deciding whether to prosecute, the Attorney General must have regard not only for the interests of the person laying the charge, but also to the rights of the persons charged with an offence and to the public interest.
36. 	There is no requirement that a private prosecutor has to have the Police first investigate the alleged charge. In any event, the evidence is that the Ministry of Police investigated the matter to see if there is evidence to justify laying a contempt of court charge against the First Respondents. The Police found there was no evidence of contempt of court on the part of the First Respondents and therefore they did not lay any charge.
37. 	The Attorney General did not just discontinue the private prosecution when assistance was sought by Counsel for the First Respondents. According to the evidence of prosecutor, Ms Lucymaria Sio-Ofoia they reviewed and analysed all the relevant evidence and jurisprudence in relation to the matter according to the Prosecutorial Guidelines. Ms Sio-Ofoia advised the Attorney General himself by way of Memorandum that there is no prospect of a successful prosecution or conviction against the First Defendants for contempt of court. She concluded that a continuation of the private prosecution would clearly amount to abuse of process and is therefore, not in the public interest that the matter be prosecuted.
38. 	I fail to see any contempt of court of the LTC decision LC 15083 P2-P3 (6th November 2015) committed by the First Respondents/Defendants.  The Applicants/Informants did not carry out an apology in accordance with the usual customs of the village of Leulumoega as per decision of LTC. 
39. 	The village of Leulumoega which the First Respondents/Defendants represent gave to the Applicants conditions of their apology to the village in accordance with the traditional ways of the village of Leulumoega but the Applicants/Informants refused to comply or adhere to those conditions to effect their apology to the village.  They attempted to apologise by way of letter but that is not in accordance with tradition and customs of the village of Leulumoega.  
Does the discretion to discontinue violate the Applicants/Informants rights to a fair trial under Article 9?
40. 	Section 26 of the Criminal Procedure Act 2016 provides for private prosecutions, in that, any person of or over 21 years can lay information for an offence. 
41. 	 The Applicants say that the Attorney General’s intervention by discontinuing its private prosecution breaches their right to a fair trial. The rights under Article 9 are (i) right of access to a Court; (ii) right to a fair trial within a reasonable time and (iii) right to be heard by a fair, impartial and independent Court. 
42. 	The Attorney General under the Constitution is provided with the authority or the discretion to institute, conduct or discontinue any criminal proceeding. This authority or discretion is not to be impeded or subject to scrutiny by the court but for flagrant impropriety. As I do not find that the Attorney General in exercising his discretion to discontinue was flagrantly improper the right to a fair trial under Article 9 therefore cannot be sustained.
43. 	The right to a fair trial cannot (in my view) include the unrestricted right on the part of the Applicants/Informants to continue with their private prosecution in the face of an intervention by the Attorney General for the following reason (and I quote):
	“The criminal process is not the preserve of the private individual. The fundamental consideration in any decision regarding prosecutions must be the public interest. The function of protecting the public interest in prosecution matters has been granted by Parliament to the Attorney General..”
44. 	The right to a fair trial under Article 9 cannot be sustained because it cannot be said it would be a fair trial when the evidence is that the Police investigated and there was no evidence to justify laying a criminal charge for contempt of court. 
45. 	Furthermore, there cannot be any breach of natural justice as the Applicants/Informants are given the right to be heard on the issuance of the Certificate to Discontinue. The issues canvassed or raised by Counsel for the Applicants are no doubt the same if they were put on notice of the Attorney General exercising its discretion prior to issuing the Certificate to discontinue the criminal proceedings in the District Courts.  As mentioned before, the Attorney General’s decision cannot be questioned in court (unless flagrantly improper) and he need not give any reasons when he exercised his discretion.
46. 	Before I leave this decision I would like to again address the issue of the District Courts in relation to constitutional issues. Counsels when they raise constitutional issues in the District Courts expect their matters to be transferred to the Supreme Courts to be dealt with. This was the case in the present matter, Counsel for the Applicants filed their Application in the Supreme Court without first having their application heard in the District Court.
Could the District Court have dealt with the issue even though it involves questions on the interpretation of the Constitution?   Can the District Courts deal with constitutional issues?
47. 	The jurisdiction to deal with constitutional issues rests with the Supreme Courts (apart from Court of Appeal) by virtue of Article 73(2).
48. 	It is well settled that the District Courts as ancillary to its particular jurisdiction has the powers necessary to enable it to act effectively within that jurisdiction. It therefore follows that the District Courts has power in a criminal proceeding to deal with alleged violations of constitutional right to a fair trial made at any stage of the proceedings and to make rulings on such alleged violations. 
49. 	Although, the case of Toailoa Law Office v Attorney General was only in relation to violation of right to fair trial guaranteed by the Constitution. It is my view that the District Courts should be able to deal with any issues regarding the Constitution provided that such issues had already been interpreted and dealt with by the Supreme Courts. In this case, Article 41(2) has already been interpreted and dealt with by the Supreme Court in the case of Te’o v Attorney General which decision or interpretation was confirmed by the Court of Appeal and has become precedent; therefore, the District Courts could have dealt with the application in relation to Article 41(2). 
Conclusion:
50. 	The Notice of Application under Article 73(2) and supporting affidavit are struck out. 
51. 	The Attorney General has the discretion under Article 41(2) of the Constitution to discontinue any criminal proceedings.
52. 	There was no flagrant impropriety in the exercise of the Attorney General’s discretion to discontinue the private prosecution brought by the Applicants/Informants in the District Court.
53. 	The private prosecution brought by the Applicants/Informants in the District Courts against the First Respondents/Defendants is discontinued.
54. 	The First Respondents are discharged as defendants in the prosecution matter against them by the Applicants as Informants.
55. 	The Applicants to pay the following costs for this application: 
(i) 	$2,500 to the First Respondents; and 
(ii) 	$2,500 to the Second Respondent.

JUSTICE TUATAGALOA