IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 823/97 and 879/97

R

v

Lavakei’aho

Finnigan J
16 June 1998; 17 June 1998

Practice and procedure — one charge replaced with another — same evidence 

The two accused were charged initially upon summons in the magistrates’ court and faced three charges. The third charge in each case was a charge alleging an offence against s 105 of the Customs and Excise Act (Cap 67). Each accused elected the procedure of committal to the Supreme Court without witnesses under s 42 of the Magistrates’ Courts Act. Each was duly served with the statements of evidence and was committed to the Supreme Court for trial. Upon arraignment, each faced an indictment containing three counts as before, but the third count in the indictment was no longer a charge of an offence against s 105 of the Customs and Excise Act, but rather a charge of an offence against s 210. The Crown undertook to prove the charge with the same evidence. The accused brought a pre-trial motion that the third count in the indictment of each should be struck out. 

Held: 

1. In laying the third count against each accused, the Crown had acted as it is empowered to do, and had not caused a breach of any statutory or constitutional right of either accused. 

2. As for miscarriage of justice, there may have been cause to consider that if the Crown had intended to introduce new evidence, but to proceed as the Crown had done, using the same evidence, was not a miscarriage of justice. 

3. The third count was directed to remain in the indictments and the motion to strike out was declined. 

Statutes considered: 
Constitution of Tonga Cap 2 
Customs and Excise Act Cap 67
Interpretation Act Cap 1
Magistrates’ Courts Act Cap 11
Supreme Court Act Cap 10 

Judgment

The question here is whether the Crown may upon arraignment after a preliminary inquiry lay a charge different from that upon which the accused was committed for trial. 

By consent, the two accused are being tried together. The indictments in respect of each were presented on 14 November 1997, and on that date each accused pleaded Not Guilty. There is a pre-trial motion that the third count in the indictment of each should be struck out. 

Each accused was charged initially upon summons in the Magistrates’ Court, and faced three charges. The third charge in each case was a charge alleging an offence against s 105 of the Customs and Excise Act, Cap 67. Each accused elected the procedure of committal to the Supreme Court without witnesses under s 42 of the Magistrates’ Courts Act, Cap 11. Each was duly served with the statements of evidence and was committed to the Supreme Court for trial. Upon arraignment, each faced an indictment containing three counts as before, but the third count in the indictment was no longer a charge of an offence against s 105 of Cap 67, but rather a charge of an offence against s 210.

Counsel for each defendant have both submitted that the third count should be struck out, as something new. They argue that the new charge has not been through the statutory process of preliminary inquiry. They suggest that the Crown must, on the new charge, adduce new evidence, of which they do not have notice. They submit that the accused are entitled to be tried upon the charges for which they were summoned, and upon which they exercised their statutory election to be committed for trial without testing the evidence. They submit that the accused have been deprived of their statutory entitlement to a prescribed procedure, which they say is unfair and prejudicial, and deprived of a constitutional right to be tried only on the charges which were initially presented. For the statutory entitlement, they rely upon the detailed provisions in Part II and Part III of Cap 11, and for the constitutional right they rely upon Clauses 11 and 13 of the Constitution, Cap 2. All of their submissions have been of high quality, thought provoking and detailed. In response, I have heard submissions of equal measure on behalf of the Crown. 

It is simpler to deal first with the claim of breach of a constitutional right. Tied in with this is a claim that the Tongan versions of the relevant statutory provisions should prevail over the English versions, pursuant to s 21 of The Interpretation Act Cap 1. This argument is directed to the effect that, there being a single Tongan expression for both “indictment” and “summons” in the English, the procedure for indictable offences should be held to commence upon the issue of a summons. At the hearing I called this an argument of last resort, and expressed doubt that s 21 applies in the present circumstances. Upon reading the Tongan version of cl 13 of the constitution in any event, I have found the two concepts are expressed differently in Tongan, just as they are in English, so I reject that argument. 

As for the constitutional right, I read cl 11 of the constitution to provide that where a person is to be tried, that person must first have a written indictment, except for summary offences where a summons is to be issued, and the indictment must clearly state the offence. Whoever may be indicted has a right to elect trial by jury. For the two present accused, the trial has not yet commenced but the indictment has been prepared. Before the indictment was prepared, there was a preliminary inquiry upon summonses issued by a Magistrate, as Cap 11 provides. Now, as it happens, the third charge for which the third summons in each case was issued was not an indictable offence; s 105 of Cap 67 prescribes an offence which was not subject to preliminary inquiry, because it is not one on which the accused could be tried only in the Supreme Court. It was not an offence which, pursuant to s 25 of Cap 11, the Magistrate should have committed the accused for trial. The accused at that time, in my opinion, could have taken the point and required a hearing of the third charge in the lower court. They did not, and the Magistrate wrongly offered them under s 12 of Cap 11 an election of trial by jury, and committed them for trial by jury. That charge was replaced by the present third count, and this count, by reason of the alleged value of the goods, carries a potential penalty outside the jurisdiction of the magistrate, and is thus triable by indictment. In my opinion, this is not contrary to the constitutional rights of the accused, because those rights under cl 11 and cl 13 entitle them first, to a clear statement of the offence and the grounds before trial, which they have, and second, to a fair trial on that offence and those grounds, which is not yet in question. In my opinion, the constitutional rights of the accused are not in the present situation under threat. 

The question at issue then is whether what has occurred is a breach of statutory rights. The accused now face a charge which was not a charge considered by the Magistrate in his decision to commit them for trial. After they were committed for trial, they were not aware that they would be tried on this charge. They were committed for trial on another charge. They were aware of the evidence to be relied on for that charge, and chose not to test it in the preliminary inquiry. Rather they chose their right to remain silent. Now, in their submission, they are at risk of facing new evidence that they have not seen or heard, and which they could have chosen to test had there been a preliminary inquiry into the new charge. In their submission, they have been deprived of the statutory procedure which in their submission must precede the presentation of their indictments, and that is a miscarriage of justice. 

The Crown, through senior crown counsel, advises the court and the accused that no new evidence is contemplated. Rather, the situation is said to have arisen from consideration of the evidence that was presented in the lower court, and which will be presented at the trial. In the opinion of crown counsel preparing the indictment, an indictment for an offence under s 105 is not possible, and the evidence supports a charge of an offence under s 210. Therefore he has laid that charge. It is not the Crown’s intention to preserve the earlier charge for later hearing in the Magistrates’ Court. That charge has been replaced with an indictable charge that contains some of the elements of the earlier charge and more besides, all of which the Crown undertakes to prove on the same evidence of which the accused are already aware.

I found attractive the arguments presented by counsel for the accused, but on consideration of the constitution Cap 2, Parts II and III of Cap 11 and the Supreme Court Act Cap 10, I am unable to accept their invitation to hold that the legislation provides one mandatory path, commenced by summons in the Magistrates’ Court, for all indictable charges without exception. Section 8 of Cap 11 is a jurisdiction section, and what s 8(c) provides is only a jurisdiction to conduct preliminary inquiries. How that jurisdiction is to be exercised is then provided (mostly) at Part III, ss 32 to 50. Section 32 does not provide that every charge for an indictable offence must be commenced by summons in the Magistrates’ Court as counsel submitted, but rather it empowers a Magistrate by saying that he may issue a summons for the purpose of a preliminary inquiry into an indictable charge. Once that has occurred, the succeeding sections provide many things which must thereupon happen. These mandatory steps are the prescribed way of carrying out a preliminary inquiry, but a preliminary inquiry into indictable offences is not itself mandatory. Neither is it mandatory that the Crown, in presenting an indictment, must reproduce the charges that were laid by summons in the Magistrates’ Court. What is mandatory for the Crown is laid down by cl 11 and cl 13 of the constitution; the Crown may not place any person on trial for an indictable offence until it has given the person a written indictment which clearly states the offence and the grounds, and the charges stated in the indictments which it presents must be the charges upon which the accused is tried. 

The words “may issue a summons” in s 32 (Part III of Cap 11) are a sharp contrast to the words “shall make out a summons” in s 14 and the word “shall” used twice in s 16. The summary procedure to be followed under those sections in Part II of Cap 11 is clearly mandatory. The summary procedure for a preliminary inquiry is not. 

The only provision I have found which might tend to support a mandatory procedure of preliminary inquiry is s 12 of the Supreme Court Act Cap 10, which makes jury trial in the Supreme Court subject to s 12 of the Magistrates’ Court Act Cap 11. That latter section is a mandatory requirement requiring a Magistrate to give an accused the jury election before committing him for trial. I am unable to accept this solitary provision as establishing that all indictable charges must pass before a Magistrate, particularly since s 5 of Cap 10 gives the Supreme Court the power to issue warrants, writs and summonses, and the power to exercise all the powers of the Magistrates’ Court. 

None of this is to say that there is a free choice to decide whether or not there will be a preliminary inquiry into charges of indictable offences. There is no free choice. Clearly the provisions in Cap 11 are enacted to provide the normal way of processing charges for indictable offences. The normal way must normally be followed. There must be good reason to depart from it. 

The other submissions placed before me by all three parties are worthy submissions, but they do not add to or alter the conclusions I have set out. For that reason only I stop here without further reference to them. After considering them all, I am satisfied that in laying the third count against each accused, the Crown has acted as it is empowered to do, and has not caused a breach of any statutory or constitutional right of either accused. As for miscarriage of justice, there may have been cause to consider that if the Crown had intended to introduce new evidence, but to proceed as the Crown has done, using the same evidence, is not a miscarriage of justice. I direct accordingly that the third count remain in the indictments, and I decline counsels’ motion to strike out.