IN THE SUPREME COURT OF TONGA

Tau'atevalu

v

Police

Supreme Court, Ha'apai
Ford J 
AM 8/2005

12 May 2006; 12 June 2006 

Criminal law – appeal against conviction – summons process not complied with – de novo trial ordered 

The appellant had been convicted in the Magistrates' Court on 3 December 2004 on one charge of assault. He was sentenced to one month's imprisonment and ordered to pay compensation of $50. On 6 December 2004 the sentence was "amended" and the term was increased to seven month's imprisonment when the one-month sentence was ordered to be served consecutively with two other earlier imposed suspended sentences of three months each. The appellant appealed against both his conviction and sentence. The appeal against conviction was on the basis that his conviction was a nullity because, in breach of the proviso to section 14 of the Magistrates' Courts Act, the summons had not been served on the appellant more than 24 hours prior to the hearing and there was no record that the appellant had consented to his case being heard within 24 hours of service of the summons. The second ground of appeal relating to sentence was that the earlier suspended sentences should have been regarded as concurrent rather than consecutive sentences.

Held: 

1. Compliance with the procedural provisions in section 14 of the Magistrates' Court Act relating to service of the summons was mandatory. Non-compliance had resulted in a miscarriage of justice and the matter was referred back to the Magistrates' Court to be tried de novo. 

2. Obiter: the earlier convictions either arose out of the same incident or were dealt with at the same court session and as a general rule where sentences were so interrelated, unless a contrary intention was stated, the sentences would be presumed to be concurrent. 

Cases considered: 
R v Blackmore [1994] 1 NZLR 268 
Tone anors v Police [2004] TUSC 36 (28 June 2004) 

Statutes considered: 
Criminal Offences Act (Cap 18) 
Magistrates' Courts Act (Cap 11) 
Summary Proceedings Act 1957 (NZ) 

Counsel for appellant: Mr Tu'utafaiva 
Counsel for respondent: Mr Kefu 

Judgment

Background

[1] On 3 December 2004 the appellant was convicted in the Magistrates' Court at Ha'apai on one charge of assault contrary to section 112(a) of the Criminal Offences Act (Cap 18). It was alleged in the summons that on 25 November 2004, inside the Mormon Church compound at Ha'afeva, the accused punched Unaloto Tanginoa's mouth causing swellings. He was convicted and sentenced to one month's imprisonment and ordered to pay compensation of $50. 

[2] On 6 December 2004 the sentence was 'amended'. The term was increased to seven month's imprisonment when it was ordered to be served consecutively with two other earlier imposed suspended sentences of three month's imprisonment which, on that same day, were ordered to be served consecutively with each other and with the new one-month sentence. 

[3] The appellant has appealed against both his conviction and sentence. At the beginning of the hearing, counsel for the appellant informed the court that the grounds of appeal would be confined to two issues only and, of those, the principal ground would be the first ground of appeal, namely, that the conviction was a nullity because in breach of the proviso to section 14 of the Magistrates' Courts Act, the summons had not been served on the appellant more than 24 hours before the hearing nor was there any record that the appellant had consented to his case being heard within 24 hours of service of the summons. 

[4] The second ground of appeal related to the decision of the magistrate on 6 December 2004 to invoke the two previous suspended sentences of three month's imprisonment each and then order that they be served consecutively although there is no evidence that they were ordered to be consecutive sentences at the time they were imposed. The appellant contends, therefore, that the earlier suspended sentences should be regarded as concurrent sentences making a total suspended sentence of three month's imprisonment instead of the six month's ordered on the 6th of December. 

[5] The appeal was initially scheduled to be heard during the March 2005 circuit of this court in Ha'apai but, unfortunately, the appellant was not then available and so the hearing had to be adjourned until the session which has just concluded.

The hearing before the magistrate 

[6] When the case was first called before the magistrate on 3 December 2004, the appellant appeared and entered a plea of not guilty. He was at that stage represented by an unqualified law practitioner who held a licence to practise in the Magistrate's Court only. The case proceeded as a defended hearing on that same day. In normal circumstances the court should be commended for being able to dispose of a case in such short order. In any jurisdiction, it would have to be a remarkable achievement indeed for a court to be able to have a defended hearing within five days of the incident giving rise to the charge. 

[7] The attributes of speed and efficiency, however, sometimes come at a cost and they must never be seen as an acceptable substitute for a failure to comply with the procedural requirements set out in the Magistrates' Courts Act. Unlike the situation in the Supreme Court, magistrates have no inherent jurisdiction. Their powers and jurisdiction are creatures of statute and the provisions in the Act defining and prescribing those procedures must be strictly adhered to. Any non-compliance, such as is alleged in the present case, will almost inevitably expose the proceedings to a jurisdictional challenge. 

[8] At the hearing, the prosecutor called the 19-year-old complainant and two other witnesses. He then sought leave from the magistrate to tender a doctor's report as evidence without having to call the doctor who was at another village. Defence counsel objected upon the perfectly valid grounds that he required the doctor to be present for cross-examination. The magistrate, therefore, adjourned the case until 6 December 2004 for the taking of the doctor's evidence. At the same time, he ordered that the appellant was to be kept in custody until the resumed hearing. 

[9] It appears from the transcript that at that point the appellant decided to change his plea to guilty. After listening to submissions on penalty, the magistrate imposed the sentence of 1 month's imprisonment and compensation of $50. On 6 December, as stated above, the case was recalled and the penalty was increased to seven month's imprisonment along with compensation of $50. 

Case for the appellant

[10] I will deal at this point with the appellant's principal ground of appeal. There was no dispute between the parties that the summons was not served on the appellant more than 24 hours prior to his appearance in court as required by section 14 of the Magistrates' Courts Act. That section deals with the preparation and issue of summonses. The relevant provisions read as follows: 

'14 . . . Such a summons shall state concisely the offence with which the defendant is charged and the time and place at which it was committed and shall require the defendant to appear at a specified time before the Magistrate's Court to answer the charge in the summons and to be dealt with according to law:

Provided that if it appears at the hearing that the summons has not been served on the accused more than 24 hours before the time and date stated in the summons . . . the case shall not proceed without the express consent of the accused, which consent shall be recorded in the record of the proceedings.' 

[11] In the present case, the summons was issued on 2 December 2004 and it required the appellant to appear before the magistrate at 10 a.m. the following day. It was not served more than 24 hours prior to the hearing nor had the accused recorded his consent in the record of proceedings for the case to proceed. Mr Tu'utafaiva submitted that the requirements relating to service of the summons were mandatory and, as they had not been complied with, that is really the end of the matter - the conviction and sentence should be set aside as a nullity. 

Case for the prosecution 

[12] Whilst accepting that the service requirements of section 14 had not been complied with, Crown counsel submitted that the non-compliance did not result in a nullity but in a technical defect which the court, in its discretion, could put to one side unless it considered that a miscarriage of justice had resulted. 

[13] Mr Kefu made the point that the appellant had been represented by counsel and counsel had cross-examined the three prosecution witnesses before, as Mr Kefu put it, 'the appellant and his counsel reconsidered the position and changed the plea. In other words, there had been a breach of section 14 but no injustice to the appellant had resulted.' 

The law 

[14] Crown counsel referred the court to an unreported decision of Ward C.J. in Tone anors v Police [2004] TUSC 36 (28 June 2004) where, in addition to other procedural irregularities, there had been a similar failure to comply with the service provisions of section 14. The four young accused had nevertheless appeared, pleaded guilty and been sentenced. The former Chief Justice described the requirements in section 14 relating to service of the summons as a 'vital matter' and he held that prosecutor's failure to serve the summons at least 24 hours prior to the hearing, along with the other procedural defects, were sufficient grounds to allow the appeal and have the case referred back to the Magistrates' Court. 

[15] In the comparable legislation in New Zealand, there is a specific statutory provision giving effect to the proposition Crown counsel has put forward in the present case. Thus, section 204 of the Summary Proceedings Act 1957 provides: 

'204 - Proceedings not to be questioned for want of form - No information, complaint, summons, conviction, sentence, order, bond, warrant or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.' 

[16] In R v Blackmore [1994] 1 NZLR 268, the Court of Appeal referred to, 'the expansive language of section 204 with its obvious purpose of saving proceedings from unmeritorious challenge' but it went on to state that where a procedural requirement is 'so fundamental a safeguard to the accused that non-compliance goes beyond a mere defect or irregularity' non-compliance renders a guilty plea and subsequent committal and conviction a nullity to which s204 can have no application.' 

[17] The absence of any similar provision in the Magistrates' Court Act to section 204 of the New Zealand legislation does not assist Mr Kefu in establishing his principal contention in the present case which in effect, is that this court should infer such a provision. 

Conclusions 

[18] Non-compliance with the procedural provisions in section 14 of the Magistrates' Court Act is a matter going beyond a mere technicality. The issuance and service of a summons is an originating process. It is the first step in a criminal prosecution. Prior to his appearance in court, an accused person is entitled to be fully informed of the charge made against him and he must be given fair notice of the hearing date. 

[19] If the purpose of the requirement for giving not less than 24 hours notice was solely to ensure that the accused turned up for the hearing then one can see some merit in Crown counsel's submission. After all, the appellant did appear in court with his counsel at the nominated time and date and, in these circumstances, Mr Kefu asks rhetorically where is the prejudice in his not having been given the requisite 24 hours notice? 

[20] It seems to me, however, that the object of the proviso to section 14 goes further than that. The proviso is designed not only to ensure that an accused is given adequate time to arrange his affairs so that he can be present in court to answer the charge made against him but it is also to ensure that he has been given reasonable time in which to prepare for the hearing. 

[21] The final words to the proviso, 'the case shall not proceed without the express consent of the accused, which consent shall be recorded in the record of proceedings' make it clear that it is not sufficient simply to have the accused present in court (with or without his counsel) but if service of the summons was effected within the previous 24 hours then the accused must expressly acknowledge that he is ready to proceed and it would be implicit in such an acknowledgement that the accused considered that he had had reasonable time to prepare for the hearing. In this case, of course, there was no such acknowledgement. 

[22] The court was told that the local practitioner who represented the appellant at the Magistrates' Court hearing was unaware of the provisions of section 14 of the Magistrates' Courts Act. The fact, however, that the appellant entered a change of plea at the end of the evidence of the prosecution's third witness indicates that the case was ill-prepared. It is impossible to avoid the conclusion that had the accused and his counsel been given more time to prepare for the hearing and perhaps interview potential witnesses the conduct of the defence may have taken a different course -- one less prejudicial to the appellant. 

[23] In short, I am satisfied that not only has there been non-compliance with the mandatory provisions of the proviso to section 14 of the Magistrates' Courts Act but that a miscarriage of justice has also resulted. In either case, the conviction cannot be allowed to stand. 

[24] Although there is no need for me to deal with the second ground of appeal, I simply observe that I do not have sufficient information before me relating to the two previous convictions to ascertain whether the magistrate erred in treating the sentences as consecutive. I have no knowledge, for example, of the date of the offending or the date the sentences were imposed. I observe, however, that the summons numbers for the two prosecutions were 8/04 and 9/04 which would indicate that the charges either arose out of the same incident or were dealt with at the same court session. It should have been expressly stated in the record of proceedings whether the sentences were to be concurrent or consecutive and as a general rule where sentences are so interrelated, unless a contrary intention is stated, the sentences will be presumed to be concurrent.

Order 

[25] For the reasons mentioned above, I allow the first ground of appeal. Counsel agreed at the hearing that should I reach such a conclusion then the matter should be referred back to the Magistrates' Court to be tried de novo and I order accordingly.