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

Cr 99/00

R

v

Tangata'iloa

Ford J 
12, 14 March 2001; 14 March 2001 

Criminal procedure – indictment limited to five counts – onus on prosecutor to comply 

The accused was arraigned on 1 June 2000 on a total of 14 counts - 7 counts of embezzlement and 7 counts of falsification of accounts. On the morning of the scheduled trial counsel for the accused raised a legal issue as to whether the Crown was able to proceed to trial upon an indictment containing 14 counts given the provisions of section 160 of the Criminal Offences Act (Cap 18) as amended by section 5 of the Criminal Offences (Amendment) Act 1997. The Court heard argument and gave an immediate oral informal ruling in favour of the counsel for the accused's interpretation of section 160 and directed that the Crown could proceed to trial on five only out of the 14 counts set out in the indictment. Crown counsel were advised that the Crown would have to make an election as to what five charges out of the 14 it was going to proceed with. Subsequently Crown counsel made application to the Court and said that he disagreed with the Court's interpretation of section 160. He maintained that the Crown should be able to proceed to trial on the 14 counts set out in the indictment without amendment. He requested a directions hearing and one was arranged. At the directions hearing counsel for the accused took the position that it was inappropriate for the Court to be asked to reconsider its Ruling which had been confirmed in open Court and the Crown's remedy, if it wished to challenge the Ruling was to appeal to the Court of Appeal. The Court agreed and indicated to counsel that it would not reconsider the previous Ruling but would take the opportunity to set out the reasons in writing. 

Held: 

1. Each count in an indictment, for the purposes of evidence and judgment, constituted a separate offence and the rationale behind the legislator's decision to restrict any one trial on the type of offences listed in section 160 to no more than 5 offences is to counter the difficulties which may arise from the jury having to deal with a number of issues or a great volume of evidence or both. 

2. The onus was on the prosecutor to take the necessary compliance steps. 

3. The original Orders made were to stand. The Crown, pursuant to its own request, was given leave to file a fresh indictment confined to five counts and the accused would then be re-arraigned. 

Cases considered: 
R v Hudson and Hagan (1952) 36 Cr App Rep 94 
R v Novac (1977) 65 Cr App Rep 107 

Statutes considered: 
 Criminal Offences Act (Cap 18) 
 Criminal Offences (Amendment) Act 1997 

Counsel for Crown: Mr Sisifa 
Counsel for accused: Mr Veikoso 

Ruling

The accused was arraigned on 1 June 2000 on a total of 14 counts - 7 counts of embezzlement and 7 counts of falsification of accounts. He pleaded not guilty and elected trial by jury. The trial was set down to commence on Monday of this week. At the pre-trial conference held in February, Mr Veikoso had confirmed that the accused wished to change his election to trial by Judge alone. 

On the morning of the scheduled hearing last Monday, Mr Veikoso raised a legal issue which should, in the proper course, have been dealt with at the pre-trial conference but it was a valid issue and it required an immediate decision. The point was whether the Crown was able to proceed to trial upon an indictment containing 14 counts given the provisions of section 160 of the Criminal Offences Act (Cap 18) as amended by section 5 of the Criminal Offences (Amendment) Act 1997. 

I heard argument and I gave an immediate oral informal ruling in Chambers in favour of Mr Veikoso's interpretation of section 160 and I directed that the Crown could proceed to trial on five only out of the 14 counts set out in the indictment. I advised Crown counsel that the Crown would have to make an election as to what five charges out of the 14 it was going to proceed with. Crown counsel then sought an adjournment so that a fresh indictment could be laid containing only five counts and the accused could be re-arraigned. Whether that procedure was appropriate or necessary is something that I did not have to address because Mr Veikoso readily consented to the application. I, therefore, granted a one week adjournment until next Monday, 19 March. Mr Veikoso, for his part, indicated that on that basis, it was likely that his client would be pleading guilty when he was re-arraigned on the five charges. 

All that happened last Monday. Subsequently Crown counsel made application to the Court and said in his submissions that he had reconsidered the point raised by Mr Veikoso and he disagreed with the Court's interpretation of section 160. He maintained that the Crown should be able to proceed to trial on the 14 counts set out in the indictment without amendment. He requested a directions hearing and I arranged one for this morning (Thursday 14 March). 

At the directions hearing Mr Veikoso took the position, quite rightly in my view, that it was inappropriate for the Court to be asked to reconsider its Ruling which had been confirmed in open Court and the Crown's remedy, if it wished to challenge the Ruling was to appeal to the Court of Appeal. I indicated to counsel that I was not prepared to reconsider my previous Ruling but I would take the opportunity of setting out of my reasons in writing and I now do so. 

Section 160 of the Criminal Offences Act (as amended) reads as follows: 

"160. In the case of any person intended to be tried in the Supreme Court for embezzlement, falsification of accounts or fraudulent conversion respectively unless there are special reasons, no order shall be made preventing the trial at the same time of any number of such offences not exceeding 5, whether alleged to have been committed within 6 months from the first to the last of such offences against the same person or not. Nothing in this section shall prevent an indictment containing more than five counts from being presented." 

Crown counsel submitted: 

"That the true meaning of this section is that: 

1. The accused cannot be charged with 5 different offences against the same person. 

2. Nothing under section 160 of the Criminal Offences Act shall prevent an indictment containing more than 5 counts from being presented." (emphasis added) 

Whilst I have no problem with the second part of that suggested interpretation of section 160, I cannot accept point 1. The words which I have underlined do not appear in section 160. The first part of section 160 is directed, not at preventing more than 5 charges being laid against an accused, as counsel submits, but at preventing an accused person from being "tried" at the same time on more than 5 offences and the section does not speak about them having to be "different" offences as counsel submits. On the contrary, it states the very opposite. It uses the term "such offences" which means that an accused can be tried at the same time on up to 5 offences only if the offences are of the same generic class. 

Each count in an indictment, for the purposes of evidence and judgment, constitutes a separate offence and the rationale behind the legislator's decision to restrict any one trial on the type of offences listed in section 160 to no more than 5 offences is explained by Archbold, Criminal Pleading Evidence & Practice (1993) vol 1, 1-175, as follows: 

"The desirability of … trying counts together which are properly joined in one indictment according to the rules, may often be outweighed by the difficulties which may arise from the jury having to deal with a number of issues or a great volume of evidence or both." 

In R v Hudson and Hagan (1952) 36 Cr App Rep 94, Lord Goddard CJ addressed the undesirability of unnecessarily long indictments and the desirability of the prosecution being put to its election if an unduly large number of counts is contained in the one indictment. In that case two appellants were indicted on an indictment that contained 38 counts; some were in the alternative. The Lord Chief Justice said: 

"The court has on many occasions pointed out how undesirable it is that a large number of counts should be contained in one indictment. Where prisoners are on trial and have a variety of offences alleged against them, the prosecution ought to be put on their election and compelled to proceed on a certain number only. Quite a reasonable number of counts can be proceeded on, say, three, four, five or six, and then, if there is no conviction on any of those, counsel for the prosecution can consider whether he will proceed with any other counts in the indictment. If there is a conviction, the other counts can remain on the file and need not necessarily be dealt with unless this court should for any reason quash the conviction and order the others to be tried. 

Section 160 of the Criminal Offences Act and section 150, which contains an identical provision in relation to theft offences, are clearly designed to overcome the problem which Lord Goddard identified in the Hudson and Hagan case and the decision of the Court of Appeal in R v Novac (1977) 65 Cr App Rep 107, makes it very clear that the onus is on the prosecutor to take the necessary compliance steps. At page 118, Bridge LJ delivering the judgment of the Court said: 

"It must always be the responsibility of those who have the conduct of a prosecution of any magnitude to consider those wider questions. It is quite wrong for prosecuting authorities to charge, in a single indictment, numerous offenders and offences, simply because some nexus may be discoverable between them, leaving it to the Court to determine any application to sever which may be made by the defence. If multiplicity of defendants and charges threatens undue length and complexity of trial then a heavy responsibility must rest on the prosecution in the first place to consider whether joinder is essential in the interests of justice or whether the case can reasonably be sub-divided or otherwise abbreviated and simplified. In jury trial brevity and simplicity are the hand-maidens of justice, length and complexity its enemies." 

The original Orders made on Monday will stand. The Crown, pursuant to its own request, is given leave to file a fresh indictment confined to five counts and the accused will then be re-arraigned.