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Police v Phillips [2018] WSCA 8 (25 October 2018)

IN THE COURT OF APPEAL OF SAMOA
Police v Phillips [2018] WSCA 8

CA 05/18

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Appellant

AND:

PAUL JOSEPH PHILIPS
Respondent

Coram: Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke

Hearing: 16 October 2018

Counsel: Tafailagi Peniamina for Appellant
Su’a Hellene Wallwork for Respondent

Judgment: 25 October 2018

JUDGMENT OF THE COURT

Introduction

1. The respondent faced a series of charges in the Supreme Court. Some were withdrawn at a mentions hearing. At the defended hearing that followed, further charges were withdrawn in the course of the hearing. The remainder were dismissed at the end of the hearing. The Supreme Court awarded costs to the defendant. From that decision the Attorney General has appealed.
2. Pursuant to s 188 of Criminal Procedure Act 2016 costs can be awarded to the defence only if there had been no evidence to support the charges and no reasonable grounds to suspect. We have concluded that those requirements were not met in this case. Consequently, we have allowed the appeal.

Factual Background

3. The respondent and his wife were owners and operators of a shop at Levili. A van driven by a Chinese national, Mr Jia Xiang Sun, accidentally drove into the shop. The respondent ran up with a machete. Jia Xiang Sun and two bystanders alleged that the respondent threatened Mr Sun with the machete, held the machete to his throat, punched him, and damaged the van.
4. The police took statements from Mr Sun and the two bystanders, Leo Li and Qiao Li. They also took photos of the vehicle and Mr Sun. They then laid 12 charges against the respondent in the Supreme Court.

Supreme Court Proceedings

5. The case was called for mention in the Supreme Court on 6 February 2017. It was adjourned to 13 February 2017 for the police to finalise charges. On 13 February 2017 the police withdrew six of the charges. The respondent pleaded not guilty to the remaining six. The matter then proceeded to a defended hearing on 20 July 2017. The outstanding charges were as follows:
   • (i) Endangering transport under s 185 of Crimes Act 2013;
   • (ii) Assault under s 123 of Crimes Act 2013;
   • (iii) Intentional damage under s 184(1) of Crimes Act 2013;
   • (iv) Attempting to cause serious bodily injury under ss 118(1) & 39 of Crimes Act 2013;
   • (v) Threatening to kill under s 188 of Crimes Act 2013; and
   • (vi) Being armed with a dangerous weapon under s 25 of Police Offences Ordinance 1961
6. Shortly before the trial the prosecution discovered that their chief witness, Mr Sun, had returned to China. On the first day of the hearing the prosecution applied to have his evidence given by video link. The application was refused. In consequence the prosecution withdrew the more serious charges of attempting to cause serious bodily injury, threatening to kill and endangering transport [at the end of the Prosecution case]?
7. That left only the three charges of assault, intentional damage and being armed with a dangerous weapon. They remained to be determined on the evidence.
8. The prosecution called four witnesses. The most significant was the bystander Leo Li. His evidence included the statement “I saw Paul [the respondent] come out with a knife in his hand and suddenly broke the window and beat Jia Xiang Sun”. The Judge summarised his evidence in this way:
   • ... he saw the defendant inside the shop using the machete to hit the top of the passenger door, used one of the wooden handicrafts and hit the front of the van, the defendant also broke the window next to the driver and threatened the older driver by placing the machete first to his throat and then to his chest while he was still sitting in the van.
9. The next prosecution witness was Qiao Li. The Judge summarised his evidence as basically the same as that of Mr Leo Li. Among other things Mr Qiao Li said “I saw a man come out with a bush knife and starting to hit the body of the van and glass windows with the bush knife he was holding in his right hand.”
10. The other two prosecution witnesses were police officers. They produced photos said to show damage to the van and injury to the complainant Mr Sun.
11. The defence called the respondent and another witness. Their evidence contradicted that of the two main prosecution witnesses, Leo Li and Qiao Li.
12. In her judgment dismissing the three outstanding charges the Supreme Court Judge said that she did not believe the evidence of Leo Li and Qiao Li. She therefore dismissed the last three charges.
13. Following his success at the hearing, the respondent applied for costs. Costs could be awarded only if he could satisfy the requirements of s 188(2) of the Criminal Procedure Act 2016. It provides:
    • 188. Costs –
    • ...(2) If an information is withdrawn or dismissed, the Court may only order the informant to pay to the defendant costs, as the Court thinks just and reasonable, for fees for the defendant’s lawyer and expert witnesses if there was no evidence to support the information and no evidence to cause a reasonable person to suspect the defendant, and not otherwise.
14. The Judge summarised the effect of that section as follows:
    • Section 188(2) of CPA 2016 gives the same discretion to award costs to the defendant except that it now provides for a two limb requirement that the Court must be satisfied of and only then it could exercise discretion to award costs to the defendant (applicant). The two limbs are:
    • (a) There is no evidence to support the information; and
    • (b) There is no evidence to cause a reasonable person to suspect the Defendant and not otherwise.
15. We agree with that formulation subject only to the minor nuance that the location of the last comma in s 188(2) indicates that the words “and not otherwise” colour the whole subsection and not merely the second limb. Nothing turns on that. It simply emphasises the point already made in the same subsection that costs can be awarded to a defendant “only” where both limbs are satisfied.
16. The Judge continued:
    • Was there evidence to support the filing of information? That is, was there prima facie evidence of an offence or offences? There may have been prima facie evidence of an offence or offences which support the filing of information as in the photos taken by Constable Frank Fuaava, of the van (EXH P1) and the victim himself (EXH P2) and the evidence of Mr Xiang Sun (driver of the van) and Mr Leo Li and that such evidence identified the defendant is not enough. If there is evidence to support the filing of information, such evidence must be capable of proving the charges. This is where the prosecutorial role to review the evidence comes in to play.
17. The Judge reviewed the many respects in which the conduct of the police and prosecution fell short of the standards she expected. These included the criticisms that they ought to have discovered earlier that Mr Sun had left Samoa, that the chief remaining witness, Leo Li, was the partner of Mr Sun’s daughter, that insufficient photos were taken or produced, that the interviewing of witnesses was unsatisfactory, and that the application to have the evidence by video link ought to have been made earlier. She then continued:
    • In my view, the prosecution should have never continued with the three remaining charges because there was no prospect of succeeding on the evidence there was. Counsel for the Applicant had put the prosecution on notice that should they not withdraw the charges against the applicant when their application for video link evidence was denied, the applicant would claim for costs. Even though the prosecution may have reviewed the evidence, they left it too late. Such review should have been done within a reasonable time before the trial.
    • I consider that this is the proper case for the award of costs to the defendant. As said earlier, I must exercise my discretion having regard to the combined effect of all matters which I have heard and observed.

The Appeal

18. A preliminary matter in this Court concerned the appellant’s belated application to adduce fresh evidence. The fresh evidence was the set of signed prosecution witness statements. These statements ought to have been produced to the trial Judge after dismissal of the charges and before hearing the defence application for costs. They were relevant at that stage because one of the statutory grounds for refusing costs is that the prosecution had evidence to cause a reasonable person to suspect the defendant.
19. Ms Wallwork was right to object to the appellant’s inclusion of the statements in the record of appeal without discussion. As the appellant had overlooked producing the statements in the Supreme Court, the correct procedure was to apply to this Court to adduce fresh evidence. However, we ascertained that these statements had been provided to the defence as part of normal prosecution disclosure before the trial began. There being no possible prejudice to the respondent, we have allowed the appellant to produce the statements in this Court.
20. The Attorney General advanced a number of arguments but the only one that matters concerns the preconditions for an award of costs under s 188(2). Ms Peniamina submitted that there was either evidence to support the informations, or evidence to cause a reasonable person to suspect the respondent, or both. Either would be sufficient to preclude an award of costs to the respondent.
21. Under s 188(2) the first condition was that “there was no evidence to support the information”. We have already set out the critical evidence heard at the trial. It is not disputed that if that evidence were believed, and if certain inferences were drawn from the photographs, it would have been a sufficient basis for a conviction on the three charges which remained by the end of the trial.
22. The Judge did not believe that evidence. We have no cause to question her views in that regard. But the fact that evidence is rejected as a matter of credibility does not mean that there was no evidence to support the charges. All it means is that the prosecution evidence had insufficient probative force to satisfy the Court beyond reasonable doubt.
23. In technical terms to say that there is “evidence to support the information” is to say that the prosecution has satisfied an evidential burden of proof. There is a critical difference between an evidential burden of proof and a legal burden of proof. An evidential burden is satisfied where a party offers sufficient evidence to put a matter in issue. A legal burden is satisfied where the evidence is of sufficient weight or quality to persuade the Tribunal of fact to the required standard of proof.^[1]
24. The distinction is more readily understood by reference to a trial by assessors. The Judge will withdraw an issue from the assessors if the party with the evidential burden of proof has failed to offer sufficient evidence to make the issue a live one in the trial. But once the evidential burden of proof has been satisfied, the legal burden of proof is solely for the assessors. It is for the assessors alone to assess the weight of that evidence, and in particular, whether they believe the evidence given by particular witnesses.^[2]
25. In this case the prosecution did satisfy the evidential burden. There was evidence to support the three charges that remained by the end of the trial. It was entirely open to the Judge to disbelieve that evidence, and further to criticise the way in which the case had been investigated and prosecuted. But that did not mean that there was no evidence to support the prosecution of the outstanding charges.
26. It would be open to the appellant to argue that the evidence given at trial also supported the three charges that were withdrawn in the course of the trial. Ms Wallwork did not argue otherwise. But in case there were any doubt on that score, the prosecution were also entitled to rely on the alternative ground that there had been reasonable cause to suspect. Ms Peniamina produced a very helpful table setting out the elements of each of the charges and the allegations made by witnesses in relation to each of those elements. There can be no doubt that all elements were supported by witness allegations.
27. The witness allegations were contained in the signed witness statements of the driver, Mr Sun, the two Mr Li’s and the photographs. The Police were entitled to treat these as a basis for reasonable cause to suspect. When the Court ruled against receiving the evidence of Mr Sun by video-link, the charges which rested largely on his evidence were withdrawn.
28. Our conclusion is that there was no jurisdiction to award costs to the respondent. For the purposes of s 188(2) the defence was unable to show lack of evidence to support the information and lack of evidence to cause a reasonable person to suspect the respondent.

Result

29. The appeal is allowed. The order for payment of costs to the respondent in the Supreme Court is quashed.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE

^[1] See further Cross on Evidence 4^th NZ Ed, D L Mathieson (ed), Butteworths 1989 at 98-102; M Downs Cross on Evidence 10^th Ed Lexis Nexis 2017 at 62.
^[2] Timm v R [1981] 2 SCR 315; Auckland City Council v Wotherspoon [1989] NZHC 705; [1990] 1 NZLR 76 at 89 and 90.