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R v Tauelangi [2001] TOLawRp 49; [2001] Tonga LR 266 (29 October 2001)

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

Cr 85/2001

R

v

Tauelangi

Ford J
4 September, 23 October 2001; 29 October 2001

Practice and procedure – no case submission – accused was discharged
Criminal law – perjury – insufficient evidence

On 19 February 2001 the accused, Sione Tauelangi, went to the office of the Ministry of Lands to get a replacement Deed of Grant (a "map") so that he could mortgage his land to the Bank of Tonga. He was attended by a long serving officer of the Ministry, Mr Samisone Pone ("Soni"), who told him that it would be necessary for him to swear an affidavit. There was a typed standard form of affidavit used by the Ministry of Lands in lost deed of grant situations and the deponent was only required to fill in his name, address, age and occupation. Soni proceeded to fill in the blanks based on information which he said that the accused supplied to him and he then asked the accused to take the form to the Magistrates' Court and swear it. The document was in the name of Finau Havelu. The accused took the document to the Magistrates' Court and swore the affidavit before police magistrate Lokotui. He then took it back to Soni at the Ministry's office. When the accused later returned the completed affidavit to the Ministry's office, Soni proceeded to check the register book under the name Finau Havelu and he found that Finau Havelu had passed away on 6 September 1978 and on 29 January 1972 the allotment had been transferred into the name of Sione Tauelangi. Mr Pone then asked the accused who Sione Tauelangi was and he replied, "myself". Mr Pone asked him why he had sworn the affidavit in the name of Finau Havelu and he responded, "because I thought it was like that". Mr Pone filled in a fresh affidavit of loss of deed of grant with the accused's correct name at the top and he then asked him to have it re-sworn before a magistrate. The accused did so and he was subsequently charged with perjury contrary to section 63(1) of the Criminal Offences Act (Cap 18). He pleaded not guilty and at the end of the Crown's case, his counsel, Mr Veikoso, made a "no case" submission.

Held:

1. The Crown did not call the magistrate before whom the affidavit was taken and so the court had no idea of exactly how the oath was administered or what statements were made upon oath. Nowhere in the body of the affidavit did the accused swear that his name was Finau Havelu. If the person who administered the oath was not called as a witness in a perjury trial then the court was not able to speculate and reasonable doubt inevitably arose.

2. The threshold for determining whether or not a "no case" submission was made out was satisfied when the judge came to the conclusion that the Crown's evidence taken at its highest was such that a jury properly directed could not properly convict on it. At that point it was the judge's duty to stop the proceedings.

3. The Court upheld the "no case" submission and discharged the accused.

Statutes considered:

Criminal Offences Act (Cap 18)

Magistrates' Courts Act (Cap 11)

Counsel for Crown : Mr Pouono
Counsel for accused : Mr Veikoso

Judgment

The accused is charged with one count of perjury contrary to section 63(1) of the Criminal Offences Act (Cap 18). He pleaded not guilty and at the end of the Crown's case, his counsel, Mr Veikoso, made a "no case" submission.

The particulars of the offence contained in the indictment allege:

"Sione L. Tauelangi, did on or about 19th February, 01, at Nuku'alofa make an oath in a solemn declaration relating to a town and tax allotment in Pea, in which you know that such statement is false."

The Crown case was that on or about the 19th of February 2001, the accused went to the office of the Ministry of Lands and said that he had lost his map. (The court was told that most Tongans refer to a Deed of Grant as a "map"). The accused said that he wanted another map so that he could mortgage his land to the Bank of Tonga. He was attended by a long serving officer of the Ministry, Mr Samisone Pone who the accused referred to as "Soni". Mr Pone told him that it would be necessary for him to swear an affidavit.

It appears that there is a typed standard form of affidavit used by the Ministry of Lands in lost deed of grant situations. The deponent is only required to fill in his name, address, age and occupation. In this case Mr Pone proceeded to fill in the blanks based on information which he said that the accused supplied to him and he then asked the accused to take the form to the Magistrates' Court and swear it. The accused took the document to the Magistrates' Court and swore the affidavit before police magistrate Lokotui. He then took it back to Mr Pone at the Ministry's office.

The affidavit reads as follows:

"I, Finau Havelu of Pea, age 54, planter by occupation.

I hereby swear and say.

A deed of grant for my tax allotment that I had kept as proof of registration of my tax allotment in Pea is lost and I cannot find it now and I have thoroughly searched in my bookshelves at home but to no avail.

It is not mortgaged or used as security for any financial loan or agreement in any bank in Tonga or overseas but is lost as I have explained in paragraph one."

The words in bold type together with two crossed out references to town allotments which appeared on the printed form were inserted by Mr Pone.

When the accused later returned the completed affidavit to the Ministry's office, Mr Pone proceeded to check the register book under the name Finau Havelu and he found that Finau Havelu had passed away on 6 September 1978 and on 29 January 1972 the allotment had been transferred into the name of Sione Tauelangi. Mr Pone then asked the accused who Sione Tauelangi was and he replied, "myself". Mr Pone asked him why he had sworn the affidavit in the name of Finau Havelu and he responded, "because I thought it was like that".

Mr Pone filled in a fresh affidavit of loss of deed of grant with the accused's correct name at the top and he then asked him to have it re-sworn before a magistrate. The accused did so and he was subsequently charged with perjury in relation to the first affidavit.

A photocopy of the original deed of grant for the allotment in question was produced to the court. That was in the name of the original owner Finau Havelu. Finau Havelu was the accused's father. Mr Pone told the court that as from 25 January 1979 the land had been owned by the accused but the missing deed of grant in his name has apparently never been located.

In cross-examination, Mr Pone said that he did not believe that the accused had any intention to mislead the court or the Ministry of lands in signing the first affidavit in the name of his father. He said that he didn't think that the accused was aware of what to do.

That concession is consistent with the statement the accused gave to the police when he was questioned about the matter. He said that he had taken out a loan with the bank to finish his house and when his wife took the photocopy of the map which he had along to the bank someone in the bank had told her that they do not accept photocopies and they required the original. It was for this reason that the accused had gone to see "Soni" at the Ministry of lands.

The police asked the accused if he had told Soni his name. He replied, "no, I gave Soni the map (the photocopy) with Finau Havelu Tauelangi's name on it and Soni filled in the form."

The police officer then asked the accused why he didn't tell the magistrate that his name was not Finau Havelu but Sione Tauelangi. He replied: "I'm sorry police but I thought to use the name Finau Havelu which shows on the map that I went with from the Ministry of Survey. I only knew today from Soni that my name is on the map and he said to come and swear my full name Sione Likutau Tauelangi which is on the map ..."

Against that background Mr Veikoso has made his "no case" submission. His application was based on the fact that the Crown had not called the magistrate who took the affidavit but instead had called as a witness a clerk from the Magistrates' Court. She gave evidence of having attended the accused when he went to the court office to have the affidavit sworn and she said in evidence that she was present when the accused swore the affidavit.

As I indicated to Crown counsel at the end of his oral submissions, the difficulty the Crown faces in not calling the magistrate before whom the affidavit was taken is that the court has no idea of exactly how the oath was administered or what statements were made upon oath. The translated version of the affidavit has the preamble or introductory part setting out the deponent's name, address, age and occupation followed by the words, "I hereby swear and say ..."

In other words, the deponent is swearing as to the accuracy of the statements which then follow. Nowhere in the body of the affidavit, however, does the accused swear that his name is Finau Havelu.

In his statement to the police, the accused admitted that in response to a question he told the magistrate his name was Finau Havelu but he does not say at what point in the discussion that question was asked and he does not say whether the answer was given on oath.

The magistrate who took the affidavit may well simply have followed the format in section 93 of the Magistrates' Courts Act (Cap 11) or he may have administered the oath requiring the deponent not only to swear that the contents of the affidavit were true and correct but also that the name shown in the affidavit was the deponent's true and correct name. That is the format followed in New Zealand, for example, and under that same format the deponent is specifically required to swear that the signature which appears in the jurat is his true and correct signature. But the court cannot act on assumptions. If the person administering the oath is not called as a witness to confirm these things in a perjury trial then the court is not able to speculate and reasonable doubt inevitably arises.

The threshold for determining whether or not a "no case" submission is made out is satisfied when the judge comes to the conclusion that the Crown's evidence taken at its highest is such that a jury properly directed could not properly convict on it. At that point it is the judge's duty to stop the proceedings.

For the reasons mentioned, I have reached that conclusion in the present case and accordingly I uphold the "no case" submission and discharge the accused.