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Police v B [2008] WSSC 85 (6 October 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

B
Accused

Counsel: R Titi for prosecution
Accused in person

Ruling: 6 October 2008

RULING OF SAPOLU CJ

Introduction

[1] The accused appeared before this Court on 29 September 2008 on one charge of theft and one charge of possession of narcotics. He is 15 years of age.

[2] I then told counsel for the prosecution and the accused that the charges against the accused would be adjourned without plea to 6 October 2008 for the Court to consider the provisions of the newly enacted Young Offenders Act 2007 in order to determine whether the charges against the accused were property laid in this Court or should have been laid in the Youth Court.

[3] I have here used the word "accused" because the charges are currently before the Supreme Court, but I have noticed that neither the word "accused" nor the word "defendant" is used in the Young Offenders Act 2007.

Which Court should the charges have been laid in

[4] This is only the second occasion I have had to consider the provisions of the Young Offenders Act 2007 in relation to criminal charges laid by the police in this Court.

[5] As already mentioned, I have to consider whether in this case the charges against the accused have been properly laid in this Court or whether they should have been laid in the Youth Court.

[5] Section 2 of the Act defines a "Young Person" for the purposes of the Act by providing:

" ‘Young Person’ means any person of or over the age of 10 years and under the age of 17 years".

[6] Section 2 also defines an "adult" by providing:

" ‘adult’ means a person of our over the age of 17 years"

[7] Section 3 then provides that no person under the age of 10 years shall be charged with any criminal offence.

[8] So in terms of the Act no person under the age of 10 years can be criminally liable. A person of or over the age of 10 years and under the age of 17 years would be a "Young Person", and a person of or over the age of 17 years would be an "adult".

[9] Under s.4 of the Act, a Youth Court is established as a division of the District Court. Section 4 also provides the manner in which the proceedings of the Youth Court are to be conducted.

[10] Section 5 which provides for the jurisdiction of the Youth Court then provides in s.5(1) that, except for a charge of murder which shall be laid in the Supreme Court and dealt with by the Supreme Court, any criminal charge brought against a Young Person shall be laid in the Youth Court and the hearing of each charge will be subject to the provisions of the Act. Section 5 (2) provides that a Young Person who is charged with a criminal offence shall be dealt with in accordance with the provisions of the Act.

[11] So s.5 is clear that except for a charge of murder which shall be laid in the Supreme Court, any other criminal charge brought against a Young Person shall be laid in the Youth Court. The other provisions of the Act, insofar as relevant, would then apply as to how the Young Person is to be dealt with and, if there is a not guilty plea, how the hearing is to be conducted.

[12] Section 6 of the Act then provides for the procedure of the Youth Court where a Young Person admits or pleads not guilty to any charge. It also gives a discretionary power to the Youth Court to transfer a Young Person to the Supreme Court to be treated as an adult (s.6(5)) or to be sentenced as an adult (s.6(6)).

[13] Section 6(5) and (6) provide:

"(5) The Court may transfer a Young Person to the Supreme Court, if in the opinion of the presiding Judge, the offence is of such seriousness and the circumstances of the Young Person are such that such Young Person should be treated as an adult".

"(6) The Court may transfer a Young Person to the Supreme Court for sentence, if in the opinion of the presiding Judge, the offence is of such seriousness and the circumstances of the Young Person are such that such Young Person should be sentenced as an adult".

Discussion

[14] The accused is 15 years of age. He is therefore a Young Person in terms of the definition of a "Young Person" in s.2 of the Act. The charges against the accused should therefore have been laid in the Youth Court in terms of s.5 as they are not charges of murder.

[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.

[16] In the case of a transfer under s.6 of the Act, it would be helpful for the Supreme Court if the presiding Judge sets out in writing the reasons for his opinion to transfer a Young Person from the Youth Court to the Supreme Court.

[17] The principal purpose of the Act as it appears from its long title and a number of its provisions is to provide a special criminal justice system whose primary objective is the reformation and rehabilitation of Young Persons who commit criminal offences. The primary focus of the Act is on the rehabilitation of Young Persons who commit criminal offences and not on the types of criminal offences committed. 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.

[18] In line with the primary objective of the Act which is the rehabilitation of Young Persons who commit criminal offences, the Supreme Court would be interested to know why a Young Person is transferred to it to be treated as an adult or to be sentenced as an adult when a Young Person is not in point of fact an adult in terms of the Act.

Suppression of the accused’s name

[19] I have not referred to the accused by name or mention any details that may assist in identifying him because of the provisions of s.8 of the Act. Insofar as relevant, s.8 provides:

"(1) Unless the Court determines otherwise, any proceedings conducted in the Youth Court will be closed to the general public and to the media.

(2) Unless the Court is of the opinion that the public interest requires it, the name and identifying details of a Young Person may not be published by the media or any other person.

[20] It would be for the presiding Judge of the Youth Court to decide on how s.8(1) and (2) are to apply to this case when fresh charges are laid in the Youth Court.

Ruling

[21] The proper Court in which the present charges should have been laid is the Youth Court. The prosecution, which has indicated through counsel its willingness to withdraw the present charges is to lay fresh charges in the Youth Court in seven days. At the end of seven days, the present charges will be deemed to have been withdrawn by leave irrespective of whether fresh charges have been laid in the Youth Court or not.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution