Chief Justice, His Honour Patu Tiava’asu’e Falefatu Sapolu, believes that it would be a “retrograde step for Samoa” if an overseas Judge is to reside over an appeal against the decision to discharge the President of the Land and Titles Court without conviction.
Chief Justice Patu made the point when he provided his reasons for his decision to dismiss an application by the Office of the Attorney General, for an overseas Judge to preside over the hearing of an appeal, against a decision by the District Court.
The decision in question involves the suspended President of the Land and Titles Court, Fepulea’i Attila Ropati, who has been discharged without conviction by District Court Judge, Alalatoa Rosella Papali’i.
A copy of Chief Justice Patu’s decision highlights the reasons.
“The first reason for my ruling to dismiss the application by the appellant for an overseas Judge to hear its appeal is abuse of process,” His Honour Patu rules.
“As pointed out by counsel for the respondent in his submissions, when this case was before the District Court for the first time, the appellant did not apply for an overseas Judge to hear the case."
“Subsequently, after the charge of causing grievous bodily harm with intent was filed and the case was transferred to this Court, the appellant made an oral application for an overseas Judge to hear the case but the application was denied."
“The case was then set down for hearing on the 25h April 2018 before this Court by a local Judge after the respondent had pleaded not guilty to the charges."
According to Chief Justice Patu, on the date of this particular hearing, the charge of causing grievous bodily harm with intent was withdrawn together with the alternative charges.
The charge of causing actual bodily harm with intent was transferred to the District Court where the respondent pleaded guilty and was sentenced by Judge Alalatoa
“Again, the appellant did not apply for an overseas Judge to deal with the matter in the District Court."
“Now that the appellant has appealed to this Court against the sentence passed in the District Court, the appellant has again made an application for an overseas Judge to hear and determine the appeal.”
Fepulea’i’s lawyer, Aumua Ming Leung Wai, argued that this was an abuse of process.
“Given that background, counsel for the respondent submitted that the effect of the appellant’s application is to undermine confidence in this Court as it presupposes that the Judges of this Court cannot be impartial to deal with the appellant’s appeal."
“Counsel further submitted that the effect of the application is to offend against this Court’s sense of justice and tarnishes its integrity. It is therefore an abuse of process."
“Counsel relied on a statement of principles from Williams V Spautz (1992) HCA 34; (1992) 174 CLR 509 at p 502 in the joint judgement of Mason CJ, Dawson, Toohey and McHugh JJ which is cited in the judgement of this Court in Toailoa Law Office V Duffy (2005) WSSC 52. "
“I accept the submissions by counsel for the respondent.”
Secondly, Chief Justice Patu says the weight of relevant authorities is overwhelmingly against the application by the appellant.
“In the case of Woodroffe V Fisher (2017) WSSC 100, a litigant brought a civil claim against a Judge at the Court of Appeal arising out of civil proceedings before that Court. The Attorney general was cited as second defendant in those proceedings."
“The claim was heard and determine by Justice Tuatagaloa in this Court. There was no application by the Office of the Attorney General for an overseas Judge to deal with that case."
“On appeal to the Court of Appeal, the appeal was heard by Panckhurst J, a regular member of the Court of Appeal and two local Judges. There was again no application by the Office of the Attorney General for different Judges from overseas to hear and determine the appeal."
“In the case of Sapolu V Saaga (2018) WSSC 24 which was concerned with a civil claim against a District Court Judge arising from the hearing of criminal proceedings, the case was heard before Justice Tuatagaloa in this Court and the defendant was represented by the Office of the Attorney General."
“There was no application by the Office of the Attorney General to engage an overseas Judge to hear that case.”
Chief Justice Patu also touched on the “doctrine of necessity which creates an exception to the principle that not only must justice be done but it must also manifestly be seen to be done which is relied upon by the counsel for the appellant.”
“I have not been able from my research to find any case where such a thing has happened in a foreign country. If, however, there is such a case then it must be very rare,” His Honour Patu said.
“It would be taking a retrograde step for Samoa if we are to engage an overseas Judge because all the local Judges are said to be disqualified from hearing a case on the ground of apparent or perceived bias."
“It would also be an unnecessary surrender of our judicial sovereignty to an outsider when we have our own Judges to deal with these cases.”
“Counsel for the appellant tried to distinguish on the facts that the cases of Nakhal V McCarthy (1978) 1 NZLR 291 and R V Murphy (1985) HCA 50; (1985) 158 CLR from the present case in order to support the appellant’s application for an overseas Judge.
“In my respectful view, the factual distinctions drawn on behalf of the appellant do not prevent the application of the principle of necessity to this case.”