Legal citation alarms Judge

Supreme Court Justice Lei’ataualesa Darryl Clarke has expressed concerns about the poor effort being made with regards to legal citation among lawyers appearing before his Court.

Legal citation is the practice where lawyers credit authoritative documents and sources, such as Court decisions (cases), statutes, regulations, government documents, treaties, and scholarly writing.

From the bench last week, Justice Leiataualesa reminded lawyers about their vital role when they appear before the Court. 

His concerns were expressed during the incest case of the father and daughter, whose identity has been suppressed by the Court. 

Lupematasila Iliganoa Atoa prosecuted the matter; Diana Roma represented the father, while the daughter was represented by Maiava Visekota Peteru. 

Justice Leiataualesa said there is a growing practice amongst lawyers who do not to cite any authority at all. 

“This is of no assistance at all or to cite authorities drawn from earlier submissions not particularly relevant to the matter before the Court,” he said. 

He said in submissions for the incest case “no counsel could refer the Court to any authorities involving sentencing on a single charge of incest”. 

“More importantly no counsel referred to the relevant Court of Appeal judgment in Attorney General v Mr. A [2012] W.S.C.A. 2 (31 May 2012) where the Court of Appeal asked itself the essential question relevant to this matter, what approach should be taken by the courts of Samoa to sentencing the parties to incest between a father and his mature daughter.”

Justice Leiataualesa reminded: “I want to reiterate that sentencing is a critical part of the criminal justice system and in which counsel have an important role to play.” 

He then cited the case of Copland v Smith & Anor [2000] 1 All ER 457, Buxton LJ stated at p.459: “I cannot draw back from expressing my very great concern that the judge was permitted by those professional advocates to approach the matter as if it were free from authority when there was a recently reported case in this Court directly on point, which was reported not in some obscure quarter but in the official law reports. 

“It is not only extremely discourteous to the judge not to inform him properly about the law, but it has also been extremely wasteful of time and money in this case because not only did the judge have to deal with the matter, but it has also formed an issue in the appeal to this Court.” 

“In that same judgment at p. 462 - 463, Brooke LJ stated: The English system of justice has always been dependent on the quality of the assistance that advocates give to the bench.” 

“This is one of the reasons why in contrast to systems of justice in other countries, English judges are almost invariably in a position to give judgment at the end of a straightforward hearing without having to do their own research and without the state having to incur the cost of legal assistance for judges because they cannot rely on the advocates to show them the law that they need to apply.” 

Justice Leiataualesa then pointed out the Justice system is derived from and based on the English system of justice also dependent on the quality of the assistance advocates give to the bench. 

“Counsel appearing therefore should cite relevant authorities for the reasons referred to in Copland v Smith & Anor.” 

“I raise this because there is a growing practice amongst lawyers not to cite any authorities at all, which of course is of no assistance at all or to cite authorities drawn from earlier submissions not particularly relevant to the matter before the Court.” 

“Such a practice from the bar, if it were to become enshrined, would be a disservice to clients, the Courts, the profession and the community.” 

Justice Leiataualesa also urged the Samoa Law Society to utilise their advocate mandates. 

“The Law Society can and should also play an active role in this area of advocate’s duties that I have raised by way of continuing legal education.”

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