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Police v FG [2015] WSYC 2 (3 July 2015)

SAMOA YOUTH COURT
Police v FG [2015] WSYC 2

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

F.G of Satuimalufilufi
Young Person

Counsel:
Ms L Su’a-Mailo of Attorney General’s Office for the Informant
Mr A Su’a for the Young Person

Date: 3 June 2015

DECISION OF JUDGE TUATAGALOA
[Reasons for Declining Transfer of Proceedings to Supreme Court]

Background:

1. F.G a young person within the definition of the Young Offenders Act 2007 ('the Act'), is charged in the Youth Court with two counts of sexual connection pursuant to section 58(1) of the Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment and two counts of indecent assault in the alternative pursuant to section 58(3) of the same Act an offence which carries a maximum penalty of 5 years imprisonment.
2. In the morning of the trial, 27 May 2015 Ms Su’a-Mailo for the Informant filed a Memorandum seeking Transfer of Proceedings to the Supreme Court. I denied the application and these are my reasons.

The Application:

3. The Memorandum to the Court sought to have the proceedings transferred to the Supreme Court because the offence by which the young person is charged with under section 58(1) carries a penalty of life imprisonment and by virtue of s.86 of the Criminal Procedure Act 1972 the trial should be by way of assessor trial. It was argued in effect, that transfer is an inevitable procedural requirement, rather than the exercise of a discretion.

Discussion:

4. That argument is rejected. The Criminal Procedure Act does not apply to proceedings in the Youth Court, except where expressly adopted as in s.22(5) of the
   Young Offenders Act.
5. The Court has a discretion pursuant to s.6(5) to transfer proceedings upon application by either Prosecution or Defence Counsel and if the Court is satisfied that (i) the alleged offence(s) is of such seriousness, and (ii) the circumstances of the young person such that s/he should be treated as an adult.
6. The Chief Justice in P v B [2008] WSSC 85 at para.15:

“ If having regard to the seriousness of the offences and the circumstances of the accused the presiding Judge is of the opinion that the accused as a Young Person should be transferred to the Supreme Court to be treated as an adult or to be sentenced as an adult then the accused can be transferred to the Supreme Court. But the process for the transfer of a Young Person to the Supreme Court must start by first laying the charges in the Youth Court.”

7. I deal first with the specific matter before me. The offence is obviously a serious offence as it carries a maximum penalty of 14 years imprisonment and the victims are two young children. What are the circumstances of this young person that he be treated as an adult? The young person is 13 years old. He is still a child and has no prior convictions. These are the circumstances of this young person, none of which persuade me that he should be transferred to the Supreme Court and be treated as an adult; and in particular have his matter dealt with by way of assessor trial with all the formality that, that involves and who will not be a group of his peers.
8. In general terms, the Youth Court was established by legislation with the necessary jurisdiction for the very purpose of dealing with young persons in a manner that would accommodate and address the needs and special circumstances of the young persons. I consider this jurisdiction is better placed to deal with this matter.
9. The Young Offenders Act which came into effect in 2007 was specifically enacted “to provide a criminal justice system for young persons, their treatment by the courts, and related purposes.”
10. To give effect to the above words, a specialised court for the young people was established with a wide jurisdiction (s.5) to deal with every offence (except murder) and that such offence must be dealt with ‘in accordance with the provisions of this Act.’ For example, the Act provides for the procedure (s.6) of the Youth Court, that is, the Court must apply the criminal standard of beyond reasonable doubt and shall adopt the rules of criminal procedure in defended hearings. Rules of criminal procedure in a hearing are: prosecution witnesses first give evidence before the defence, opening and closing submissions, examination in-chief, cross examination, re-examination and the like. The words ‘rules of criminal procedure’ does not mean the Criminal Procedure Act.
11. The Act especially provides the procedure required, confers power and jurisdiction to deal with every offence other than murder. The Young Offenders Act is a stand-alone legislation except where there is a breach of bail conditions by the young person. In those circumstances, section 22(5) provides that action may be taken under the Criminal Procedure Act.
12. This is not the first time that the Attorney General for the Informant has sought to have proceedings transferred from the Youth Court to the Supreme Court. The first of these applications was in regards to P v J.S & T.L two young offenders who were charged with an adult co-offender whose matter was before the Supreme Court. The second application was P v L.T, (unreported 20 March 2014) where the young offender was charged with attempted sexual violation under s.53 of the Crimes Act 2013 which carries a maximum of 14 years imprisonment. The Attorney General in P v L.T sought direction as to procedure. The grounds of the second application are the same with the grounds of this application or Memorandum filed by Ms Su’a-Mailo.
13. The Criminal Procedure Act 1972 by way of section 3(1) applies to “all proceedings in any Court where a person is proceeded against for an offence” but where it is not provided for in that Act or by any other law at the time the Act came in to force, the criminal procedure of New Zealand at the time shall be applied as long as it is not inconsistent with this Act or any other law at the time enforce in Samoa. The Criminal Procedure Act was enacted years before the Young Offenders Act which only came in to force in 2007.
14. His Honour, Chief Justice in Police v B [2008] WSSC 85 (6 October 2008) at
    paragraph 17 said:

“In consequence, some of the criminal offences which presently can only be dealt with under the jurisdiction of the Supreme Court can now be dealt with by the Youth Court if those offences are committed by Young Persons. The exception is the offence of murder which must be dealt with in the Supreme Court even if it is committed by a Young Person.”

15. Section 86 of the Criminal Procedure Act 1972 provides the Supreme Court with the jurisdiction to sit with assessors or without assessors. Section 87 is very clear that Supreme Court sits with assessors where the offence is punishable with more than 10 years imprisonment, where it is less than 10 years, the defendant has the right to elect.
16. Section 87 of the Criminal Procedure Act 1972 relates to persons charged in the Supreme Court. It would have applied to this young person if he was charged in the Supreme Court as it is clear that the offence of sexual connection by which he is charged with carries a life imprisonment term is an assessor trial offence. But this offence cannot be laid in the Supreme Court. Further, section 87 would have applied to the young person if the proceeding had been transferred to the Supreme Court.
17. The Youth Court does not have the jurisdiction to sit with assessors or to conduct assessor trials which means that trials within the Youth Court are by Judge alone.
18. Returning to the matter before me, F.G is a young person rightly charged in the Youth Court pursuant to section 5 of the Young Offenders Act and as such he must be dealt with according to the provisions of the Act, for example:
    • (i) Proceedings may be conducted accordingly with Samoan customs and tradition;
    • (ii) Proceedings will be conducted in Samoan unless...;
    • (iii) The criminal standard of proof must be applied and must adopt rules of criminal procedure;
    • (iv) Parents may be required to attend;
    • (v) Proceedings closed to the public unless...;

(vi) Young person is entitled to independent legal advice etc

19. Since the young person, F.G is rightly charged in the Youth Court and his circumstances do not warrant a transfer to the Supreme Court, he, therefore is not entitled to be tried by assessors pursuant to section 87(1) of the Criminal Procedure Act 1972 nor has the right to elect as in section 87(2).
20. Given that the trial before the Youth Court was set to commence (and delay being a particular enemy of trials involving alleged sexual offending), the nature of the alleged offending, and the age and interests of the young victims who are 6 and 7 years old I was even more persuaded not to have this matter transferred to the Supreme Court.
21. While that some amendments to the Young Offenders Act may be helpful in terms of clarification until then I am of the view that this young person’s matter is better dealt with in the Youth Court and therefore will remain in the Youth Court.
22. Should the Attorney General be not satisfied with this decision, they can refer it to the Supreme Court by way of judicial review.
    

JUDGE MATA KELI TUATAGALOA