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Attorney General v Lafaele [2014] WSCA 12 (7 November 2014)

IN THE COURT OF APPEAL OF SAMOA
Attorney General v Lafaele and Sikoti [2014] WSCA 12

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN

ATTORNEY GENERAL

Appellant

AND

TAEAO LAFAELE
First Respondent

AND

JASON SIKOTI
Second Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Vaai

Counsel: P Chang and L Su’a-Mailo for appellant

S H Wallwork for first respondent

T Atoa for second respondent

Hearing: 3 November 2014
Judgment: 7 November 2014

JUDGMENT OF THE COURT

Introduction

1. The Attorney General seeks to appeal against a judgment of the Chief Justice which held that the prosecution has no right of appeal against decisions given in the Youth Court. One of the Youth Court decisions was a refusal to transfer the hearing of charges into the Supreme Court. The other was the dismissal of charges on the ground that no prima facie case had been made against the respondents. In this Court the threshold question is whether there is any right to bring a second appeal to the Court of Appeal.

Factual background

2. The respondents were jointly charged with wounding with intent to cause grievous bodily harm and grievous bodily harm. At the material time they aged 14 years and 16 years respectively. It is not disputed that they were “young persons” for the purpose of the Young Offenders Act 2007 or that the charges were properly brought in the Youth Court.
1. The Youth Court has a discretionary power to transfer charges to the Supreme Court pursuant to s 6 of the Young Offenders Act. The prosecution sought to have that power exercised in the present case. In a decision of 18 October 2013 the Youth Court declined the application to transfer. It also declined to state a case to the Supreme Court, holding that there was no right of appeal by way of case stated. That is the first decision against which the prosecution seeks to appeal.
2. On 16 December 2013 the matter came before the Youth Court for the hearing of the charges on the merits. At the conclusion of the prosecution evidence the Youth Court dismissed all charges on the ground that there was no case to answer. That is the second decision against which the prosecution seeks to appeal.

Supreme Court Proceedings

3. The prosecution appealed to the Supreme Court against the Youth Court decisions. In the Supreme Court the Chief Justice found that the prosecution had no right of appeal against either decision. He held that appeals were a creature of statute; that the prosecution could appeal only if legislation conferring the right to do so was specifically conferred; that the Young Offenders Act 2007 did not provide for any prosecution right of appeal; that the appeals provision in s 24 of the Young Offenders Act confined the right of appeal to young persons convicted or sentenced in that Court; that the provision for prosecution appeals by way of case stated in s 131 of the Criminal Procedure Act 1972 was confined to prosecutions brought in the District Court acting in its general jurisdiction; that this did not extend to the Youth Court which was a special division of the District Court; and that in consequence there was no prosecution right of appeal to the Supreme Court.

Second appeals to this Court

4. The Attorney seeks to bring a second appeal to this Court. It is trite law that appeals are a creature of statute. An appeal is not possible unless an appellant can point to an enabling provision which positively confers a right of appeal on the appellant.^[1]
5. For the right to appeal to the Court of Appeal in this case the Attorney relies upon s 45(1) of the Judicature Ordinance 1961. It provides:
   • “45. Jurisdiction – (1) The Court of Appeal shall have power and jurisdiction to hear and determine all appeals from any judgment, decree, or order of the Supreme Court whether in its civil or criminal jurisdiction, subject to the provisions of this Ordinance and of the Criminal Procedure Act 1972, and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Ordinance or pursuant to the Criminal Procedure Act 1972.”
6. It will be seen that in broad terms this gives the Court of Appeal the jurisdiction to determine appeals from civil and criminal judgments given in the Supreme Court. However in relation to second appeals from the District Court, s 63 of the same Ordinance provides:
   • “63. No appeal on appeals from District Court without leave – The determination of the Supreme Court sitting on appeal from the District Court shall be final unless leave to appeal to the Court of Appeal is given: PROVIDED THAT no such leave shall be given with respect to a criminal proceeding.”
7. For present purposes the effect of s 63 is that following an appeal from the District Court to the Supreme Court a second appeal to the Court of Appeal is possible only in relation to civil appeals and even then only with leave. Its wording negates any jurisdiction to bring a second appeal to the Court of Appeal with respect to a criminal proceeding. In such cases the decision of the Supreme Court on appeal from the District Court is said to be final.
8. The barrier presented by s 63 arises where (i) the original proceeding was in the District Court and (ii) it was a criminal proceeding. As to (i), the Youth Court was created as a division of the District Court pursuant to s 4 of the Young Offenders Act 2007. Ms Chang appropriately conceded that the Youth Court is to be treated as the District Court for the purposes of s 63 of Judicature Ordinance. As to (ii), it could not be disputed that the proceeding in question was a criminal one. It follows that unless there is some means of escaping the application of s 63, there could be no right of appeal to this Court in the present case.

Potential answers to the barrier posed by s 63

9. Ms Chang sought to meet the difficulty posed by s 63 in a number of ways. First, she argued that s 45 of the Judicature Ordinance was an independent source of the right to appeal. But where a provision conferring jurisdiction in very broad terms (s 45) is followed by a provision limiting that jurisdiction in specific terms (s 63) the latter is bound to prevail. As s 63 places a specific limit upon the apparent scope of s 45, it is bound to prevail in any comparison between the two.
10. Secondly Ms Chang sought to rely upon ss 3(1), 131 and 138A of the Criminal Procedure Act 1972. These provisions give the prosecution rights of appeal in relation to criminal proceedings in general. They might well be relevant to prosecution rights of appeal from the Youth Court to the Supreme Court. As the Chief Justice pointed out, they would need to be compared with ss 4 and 24 of the Young Offenders Act 2007. On that issue we make no comment. What matters for present purposes is whether there is a right to bring a second appeal to the Court of Appeal. Sections 131 and 138A of the Criminal Procedure Act do not assist. They are clearly confined to appeals to the Supreme Court.
11. Thirdly Ms Chang sought to rely upon ss 164B, 164J(1) and 164L of the Criminal Procedure Act. Sections 164B and 164L give the prosecution pre-trial and post-trial rights of appeal. Section 164J(1) gives the Court of Appeal the power to restate a question of law reserved to it under s 164G. But the definition of “Judge” in s 164A of that Act makes it plain that the whole of Part VIIA is confined to criminal appeals from the Supreme Court, as is confirmed by the heading to Part VIIA.
12. Ms Chang responded to the last point by referring to associated proceedings in the Supreme Court. At various points the two respondents appeared before the Supreme Court for mentions hearings along with their adult co-accused. An application was also made to the Supreme Court for an order under s 133 of the Criminal Procedure Act to require the Youth Court to state a case to the Supreme Court under s 131 of that Act.
13. However the subject of the appeal which the appellant wishes to bring to the Court of Appeal is not an appeal against any decision of the Supreme Court at first instance. The Supreme Court’s power under s 133 is merely ancillary to an appeal from the Youth Court. The Attorney’s object is to challenge the two decisions given in the Youth Court, one declining to transfer the case into the Supreme Court and the other dismissing the charges. Both were appealed to the Supreme Court. The Attorney now seeks to bring a second appeal to the Court of Appeal on those matters. Part VIIA of the Criminal Procedure Act cannot assist. It is confined to appeals from the Supreme Court sitting at first instance, not the Supreme Court sitting on appeal.
14. Our conclusion is that there is no second right of appeal from decisions of the District Court in criminal proceedings. For this purpose the Youth Court forms part of the District Court. Section 63 of the Judicature Ordinance is a bar to such appeals. It cannot be outflanked by reliance upon provisions in the Criminal Procedure Act.

Result

15. The appeal is dismissed. The respondents being legally aided, there will be no order as to costs.
    

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Vaai

^[1] Shotover Gorge Jetboats Ltd v Jamieson [1987] 1 NZLR 437 (CA) at 441.