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Pohiva v R [2008] TOLawRp 52; [2008] Tonga LR 266 (3 October 2008)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 07/2007

Pohiva anors

v

R

Burchett, Salmon, and Moore JJ
23 July 2008; 3 October 2008

Criminal procedure – appeal against order allowing amendment of indictment – appeal allowed

For the full facts and the decision of the Supreme Court, see R v Pohiva anors [2007] Tonga LR 238. The Supreme Court granted leave to the Crown to amend indictments filed alleging offences said to have been committed during the disturbances of November 2006. The appellants appealed on the grounds that the ruling was wrong in fact and law.

Held:

1. In deciding whether to amend the indictment the judge was exercising a discretion and to do so without having access to the evidence which it was said disclosed a prima facie case, could not be a correct exercise of that discretion. It was essential for the judge's discretion to be exercised on the basis of being able to form his own judgment as to whether a prima facie case existed, rather than rely on the assurance of the Crown that that was so.

2. The appeal was allowed. The decision of the Supreme Court that granted the application to add the additional two counts to the indictment was quashed. The question of whether or not the indictment should be amended was remitted to the Supreme Court for reconsideration in the light of the findings made.

Cases considered:

Ministry of Police v Moala [2001] NZAR 917; [1997] TOCA 1

Ofori & Tackie (No 2) [1994-99] Cr App R 223

R v Adams & Davie [2001] EWCACrim 1509

R v Osieh [1996] 2 Cr App R 144 (CA)

Touliki Trading v Fakafanua and Kingdom of Tonga (No 2) [1996] Tonga LR 145

Statutes considered:

Crimes Act 1961 (NZ)

Criminal Offences Act (Cap 18)

Indictments Act 1915 (UK)

Magistrates' Courts Act (Cap 11)

Counsel for the first and fourth appellants : Mr Harrison QC 40
Counsel for the respondent : Mr Kefu

Judgment

[1] The appellants appeal against the ruling of Ford CJ granting leave to the Crown to amend indictments filed alleging offences said to have been committed during the disturbances of November 2006. The appeal is brought on the grounds that the ruling was wrong in fact and law.

[2] As noted above, Mr Rodney Harriscn QC appears for just two of the appellants. Mr Edwards, one of the appellants, was present in court. He advised us that on behalf of himself, Mr Pulu and Mr Taunisila he supported the submission of Mr Harrison and did not wish to make any submissions either on his own behalf or on behalf of the other two appellants.

[3] Leave to appeal to this court was granted by the Chief Justice.

[4] The Notice of Appeal set out 7 grounds. However, in his submissions to us Mr Harrison advised that the grounds of appeal which he wished to advance were those set out in a draft Notice of Appeal in respect of which leave to appeal out of time was granted by the Chief Justice on 9th July 2008. The three grounds raised in that Notice are:

—

(1) The Learned Chief Justice erred in law in holding that those counts in the proposed amended indictment being proposed counts 2-7 inclusive which had not been the 60 subject of the preliminary inquiry in the Magistrates' Court could be included in the indictment;

(2) Alternatively, the Learned Chief Justice erred in law in holding that, on an application by the Crown to amend an indictment other than with the consent of the accused, the Crown was not required to establish, and/or the Supreme Court Judge dealing with the application to amend was not required to satisfy himself, that the evidence taken at the preliminary inquiry established a prima facie case in respect of the counts in the proposed amended indictment in their entirety (or in the alternative, those counts in the proposed amended indictment which differed from those contained in the original indictment);

(3) Alternatively, the learned Chief Justice erred in law in concluding that it was not open to a trial Judge to rule, prior to the conclusion of the prosecution case, that an accused had no case to answer on indictment having regard to the evidence taken at the preliminary inquiry.

Procedural background

[5] The five accused were initially each charged with conspiracy to commit sedition in connection with the civil disturbance in Tonga on 16 November 2006. Following a preliminary inquiry, the accused were committed to the Supreme Court for trial and when the indictments were filed they included 6 additional counts of abetment to being riotously assembled and destroying, or in the alternative damaging, 5 buildings in Nuku'alofa. The Crown subsequently revised its position on the additional counts and filed new indictments on 5 September 2007 containing only counts of conspiracy to commit sedition. The position once again changed on instructions from the Attorney-General, and on 11 September 2007 new indictments were filed containing the conspiracy to commit sedition count, a count of abetment of a riotous assembly, and a count of abetment of a riotous assembly causing damage to an unspecified building in Nuku'alofa. The Supreme Court declined to accept these indictments without leave, so an application for leave was filed, and the resultant ruling is the one under appeal.

Supreme Court ruling

[6] In his ruling Ford CJ accepted as correct the concession of one of defence counsel that the Crown is able to seek leave to amend the indictment by adding additional counts even after the casa has been set down for trial. The remaining issues were said to be the establishment of a prima facie case and whether the grant of leave would result in an injustice.

[7] In relation to the first issue the Chief Justice noted the Crown's acceptance that the evidence presented at the preliminary inquiry would need to establish a prima face case for the abetment counts and the Crown's submission that it was not appropriate for the Court to assess the evidence from the preliminary inquiry. His Honour noted the practical difficulty of the trial Judge being required to satisfy himself of the existence of a prima facie case on the basis of the evidence from the preliminary inquiry, given the need to translate the evidence from Tongan into English. He then turned to look at English authorities, in particular R v Osieh [1996] 2 Cr App R 144 (CA) and s 5 of the Indictments Act 1915 (UK), on the issue. There being no legislative provision on the matter in Tonga and the English approach being a commonsense one, he adopted the approach taken in R v Osieh that the power to amend an indictment extends to the addition of a count or counts charging offences that are not disclosed in the preliminary inquiry evidence but which are disclosed on evidence subsequently served, provided the amendment does not result in an injustice. Adopting this approach, Ford CJ said that it was unnecessary for the Court to spend time considering the preliminary inquiry evidence, the Crown having made an assessment that the various charges are based on the evidence already disclosed to the defence. His Honour also noted that there is authority at common law for the inherent power of the Court to accept amended indictments without the need for a preliminary inquiry.

Appellants' submissions

[8] Mr Harrison for the appellants relied upon the fair trial guarantees of the Constitution of Tonga and the decisions of this court in Touliki Trading v Fakafanua and Kingdom of Tonga (No 2) [1996] Tonga LR 145 and Ministry of Police v Moala [2001] NZAR 917: [1997] TOCA 1, to support the proposition that it was the duty of the courts and the judiciary to ensure that the Constitution's various fair trial guarantees are made available to those to whom they are owed. He submitted that it was implicit in clauses 11, 13 and 14 of the Constitution that no one should be placed on trial and in jeopardy of conviction "other than according to law's. That must include the safeguard of judicial confirmation before standing trial that the accused has a case to answer. He submitted that in that context it is wrong in principle to defer as the Chief Justice did, to an assessment made by the Attorney General, that sufficient evidence exists in relation to the additional charges sought to be included in the indictment to place an accused on trial. He submitted that there is nothing to inform the court's discretionary power to grant leave, if preliminary evidence is not available. He submitted that the Judge's ruling does not set out any ground for the exercise of his discretion other than reliance on the Crown's assurance. He further submitted that the constitutional fair trial guarantees, and/or the Supreme Court's jurisdiction over the laying of indictments, requires that the presentment or amendment of an indictment to incorporate charges on which the accused was not committed for trial can occur only by leave of the Supreme Court and — if the accused does not consent - upon scrutiny of the evidence presented at the preliminary enquiry to determine whether it raises a prima facie case against the accused in respect of the proposed new or amended indictment.

[9] Finally, Mr Harrison submitted that the constitutional fair trial guarantees or the court's inherent jurisdiction conferred power on the court to entertain an application that no indictment be presented on the grounds that the evidence taken at the preliminary enquiry fails to show a prima facie case against the accused. More generally, Mr Harrison argued that it was open to a trial judge to rule prior to the conclusion of the prosecution case, that an accused had no case to answer on indictment having regard to the evidence taken at the preliminary enquiry. The distinction being made in this last submission was between the prima facie test and the no case to answer test which exists in New Zealand as a consequence of provisions of s 347 of the Crimes Act 1961.

[10] For the Crown, Mr Kefu argued that it is well established practice in Tonga that the Crown may lay other charges on which n accused was not committed for trial if supported on the evidence from the committal hearing or even upon the discovery of new evidence. He submitted that the Crown has always exercised this right with objectivity, transparency and independence. He submitted that the evidence disclosed at the preliminary enquiry and in the committal papers, supports the laying of the 2 additional charges. He submitted further that there had been no injustice to the accused in the laying of the further indictment.

[11] Mr Kefu further submitted that it is consistent with the law regulating Tonga's criminal justice system that the Supreme Court should not have to satisfy itself that the evidence taken at the preliminary enquiry established a prima facie case in respect of new counts not charged at that enquiry. He relied in support of this submission on s 37 of the Magistrates' Courts Act which allows the Attorney General to review a magistrate's decision after a preliminary enquiry to discharge an accused. If the Attorney General follows that procedure the matter is referred to the Chief Justice to make a final decision on whether there is a prima facie case. With respect, this provision does not provide support for the proposition that the Supreme Court does not have to satisfy itself that a prima facie case is established in respect of new counts.

[12] Mr Kefu argued that it was against public policy for the Supreme Court to have and exercise a power to intervene in the criminal process after a positive ruling of a prima facie case by the magistrate and before the laying of an indictment. He accepted however, that an accused person has the right to submit a no case to answer submission after the indictment is laid and before trial. Finally, he submitted that for very practical: reasons the Court of Appeal could not make a ruling on the complaint unless it had a copy of the transcript from the lower court. If by this submission it is meant that it would not be appropriate for this court to determine whether or not the depositions disclosed a prima facie case supporting the additional charges, we would agree.

[13] Mr Kefu made a further submission which, in our view, does not arise on this appeal. He said that the 2 new counts are alternative charges to conspiracy to commit sedition and that by virtue of s 42(3) of the Criminal Offences Act, a verdict on those charges is open for the trial court. It would not be appropriate for us to rule on this submission.

Discussion

[14] The first ground of appeal refers to proposed counts 2—7. It must mean proposed counts 2 and 3 because of course, there are only 2 additional counts contained in the amended indictment. The first charge is that in respect of which the appellants were committed for trial.

[15] The first ground of appeal begs the question as to whether grounds exist which would justify the addition of the additional counts. Mr Harrison did not argue that there were no circumstances, in which an amended indictment could be filed.

[16] The second ground raises the crucial issue. The important question in this case is whether or not the Chief Justice was entitled to rely on the assurance from Crown counsel that a prima facie case had been made out at the deposition hearings in respect of the 2 additional charges. In our view, for the reasons that follow, the Chief Justice was wrong in coming to this conclusion.

[17] The Chief Justice relied on the decision of the English Court of Appeal in R v Osieh in his determination that it was unnecessary for the court to spend time considering the preliminary evidence. In making this finding the Chief Justice seems to have overlooked the fact that in the Osieh case the additional offences while not being disclosed in the preliminary enquiry evidence, were disclosed by evidence subsequently served. No such evidence has been provided by the Crown in the present case.

[18] While Osieh has not been specifically overruled in England it was in our view, placed appropriately in context by the Court of Appeal in R v Adams & Davie [2001] EWCACrim 1509, 14 June 2001. An earlier decision of Ofori & Tackie (No 2) [1994-99] Cr App R 223 had taken a more limited view of the power to amend indictments. At para 17 the Court of Appeal in Adams & Davie questioned the difference between these 2 cases in practice when it said:

Clearly a prosecutor acting in good faith will not apply to the court to add a charge which is not supported by evidence which he has already disclosed to the defence. If the whole of any evidence relied on is entirely new quite separate and different from the material before the Magistrates Court, as likely as not that only could only [sic] give rise to a different case altogether against a defendant, and whether by strict application of Ofori or as a matter of general fairness, in principle the court may be likely to rule that the indictment should not be amended and the Crown should, if it chose, institute separate proceedings. But if the application to amend the indictment really does no more than take forward a case already laid on the evidence, reformulating, it possibly with the assistance of some additional evidence, we doubt whether that would be improper. There are two principles here: one broad, one narrow. The broad principle is that at trial a defendant should face essentially the case on which he has been committed even though it may be modified one way or another. The narrow principle is that an amendment to an indictment, like any other procedural step in the law of crime, should not be allowed if it is unfair to the defendant to allow it."

[19] We accept the submission of Mr Harrison to the effect that the fair trial guarantees of the Constitution should inform the court's approach to issues of this nature.

[20] We also accept the proposition that in deciding whether to amend the indictment the judge is exercising a discretion and to do so without having access to the evidence which it is said discloses a prima facie case, cannot be a correct exercise of that discretion. In this regard, we do not accept that unacceptable delays would result as a consequence of the need to translate the depositions because it was common ground that this would have to be done prior to the trial in any case. But even if this were not so, it is in our view essential for the judge's discretion to be exercised on the basis of being able to form his own judgment as to whether a prima facie case exists, rather than relying on the assurance of the Crown that that is so.

[21] Mr Harrison's final submission was to the effect that the Chief Justice erred in law in concluding that it was not open to a trial judge to rule prior to the conclusion of the Prosecution case that an accused had no case to answer on indictment having regard to the evidence taken at the preliminary enquiry. In fact the Chief Justice made no such ruling. What he said was that it would be open at the conclusion of the Crown case for such an application to be made. In this particular regard, the Crown has conceded that there is power to apply to quash an indictment prior to trial on the grounds of insufficiency of evidence. This seems an appropriate concession. It is consistent with the position in New Zealand which in our view would provide an appropriate guide to the Tonga Supreme Court.

[22] For the reasons set out above the appeal must be allowed. The decision of the Supreme Court granting the application to add the additional 2 counts to the indictment is quashed. The question of whether or not the indictment should be amended is remitted to the Supreme Court for reconsideration in the light of the findings made by this court.