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

AM 30/2009

Hekeheke

v

Police

Ford CJ 
14 May 2010; 20 May 2010 

Magistrates Court – power to amend summons for offence under Order in Public Places Act – interpretation of "criminal case" 

On 9 September 2009 the appellant was convicted in the Magistrates' Court on a charge of being found drunk in a public place in front of 'Alisi Tu'aefe's property contrary to section 3(j) of the Order in Public Places Act (Cap 22). He had advanced two grounds of defence. First he claimed that he was not intoxicated and the police officers had lied. Secondly, he said that he was not arrested in front of 'Alisi Tu'aefe's property but approximately 50 meters further along Wellington Road in front of 'Ofa 'Ilavalu's property. The Magistrate noted the location error in the summons but he relied on section 90 of the Magistrates Courts Act and amended the charge to show the correct location noting that the amendment did not mislead the appellant. The appellant appealed against his conviction and cited three grounds of appeal. The principal ground of appeal raised the issue of whether a magistrate was entitled to amend at the hearing a summons issued for an offence under the Order in Public Places Act.

Held: 

1. The second ground of appeal was that the magistrate "failed to consider the discrepancies between the witnesses for the police as to whether the defendant was found drinking a bottle of rum ". There was no substance in this ground of appeal and there was no discrepancy between the police witnesses as to what the appellant had been drinking. The first police officer told the court that the appellant had been drinking from a bottle of Crown Rum. The second police officer did not say what the appellant had been drinking but she confirmed quite graphically that he was drunk. The magistrate made no finding as to what the appellant had been drinking and so it was not an issue but there was ample evidence to support his conclusion that the appellant was, indeed, drunk and that was the important finding. 

2. The first and third grounds of appeal related to the same issue and that was whether the magistrate had power to amend the charge under section 90. The point taken on appeal was that the reference in section 90 to "criminal case" was a reference to a case under the Criminal Offences Act (Cap 18) and it could not be said that a charge under the Order in Public Places Act was a "criminal case". The expression "criminal case" should be given a broad construction and not confined to the technical meaning of an offence for which the offender may be proceeded against by indictment. Proceedings under the Order in Public Places Act were commenced by way of summons and the prescribed penalties were a fine or imprisonment. Any charge laid under the Order in Public Places Act amounted to a criminal case and, as such, a magistrate had power to amend the summons in the manner provided for under section 90 of the Magistrates Court Act. 

3. The appeal was dismissed. 

Case considered: 

 Amand v Secretary of State [1942] 2 All ER 381

Statutes considered: 

Criminal Offences Act (Cap 18) 
Magistrates Courts Act (Cap 11) 
Order in Public Places Act (Cap 22) 

Counsel for the appellant : Ms Mangisi 
Counsel for the respondent : Ms 'Atiola 

Judgment

The appeal

[1] On 9 September 2009 the appellant was convicted in the Magistrates' Court on a charge of being found drunk in a public place contrary to section 3(j) of the Order in Public Places Act (Cap 22). He has appealed against his conviction citing three grounds of appeal. 

[2] The principal ground of appeal raises the issue of whether a magistrate is entitled by virtue of section 90 of the Magistrates Courts Act (Cap 11) to amend at the hearing a summons issued for an offence under the Order in Public Places Act. 

The case in the Magistrates' Court 

[3] The summons issued against the 24-year-old appellant alleged that on 22 August 2009 at Kolofo'ou he was found drunk in a public place contrary to section 3(j) of the Order in Public Places Act in that he was drunk "at Wellington Road in front of 'Alisi Tu'aefe's property". 

[4] The case was heard on 11 September 2009. The appellant represented himself. He was found guilty and was ordered to pay $80 immediately and in default two weeks imprisonment. 

[5] The appellant had advanced two grounds of defence. First he claimed that he was not intoxicated and the police officers had lied. Secondly, he said that he was not arrested in front of 'Alisi Tu'aefe's property but approximately 50 meters further along Wellington Road in front of 'Ofa 'Ilavalu's property. 

[6] The evidence given by the two prosecution witnesses, who were both police officers, confirmed that the appellant had been apprehended in front of 'Ofa 'Ilavalu's property rather than 'Alisi Tu'aefe's property. Dealing with this error in the summons, the magistrate noted that the arrest had occurred approximately 50 meters along Wellington Road from the place stated in the summons but, relying on section 90 of the Magistrates Courts Act, as amended by amendment No.24/90, he amended the charge to show the correct location noting that the amendment did not mislead the appellant. 

[7] There was no challenge to the magistrate's finding that the area in question was a "public place" as that term is defined in the Act. It is also quite clear from the transcript that there was ample evidence on which the magistrate was able to reach the conclusion that the appellant was drunk. Counsel for the appellant submitted in the course of the appeal hearing that the transcript was either inaccurate or incomplete but if that was the situation then counsel should have filed affidavit evidence prior to the hearing pinpointing the alleged inaccuracy and allowing the respondent the opportunity to respond. That was not done. 

The grounds of appeal 

[8] I deal first with the second ground of appeal which was that the magistrate "failed to consider the discrepancies between the witnesses for the police as to whether the defendant was found drinking a bottle of rum ". There is no substance in this ground of appeal and, in any event, there was no discrepancy between the police witnesses as to what the appellant had been drinking. The first police officer told the court that the appellant had been drinking from a bottle of Crown Rum. The second police officer did not say what the appellant had been drinking but she confirmed quite graphically that he was drunk. The magistrate made no finding as to what the appellant had been drinking and so it was not an issue but, as noted above, there was ample evidence to support his conclusion that the appellant was, indeed, drunk and that was the important finding. 

[8] The first and third grounds of appeal relate to the same issue and that was whether the magistrate had power to amend the charge under section 90. Section 90, as amended, reads as follows: 

"90. Where at the hearing of any criminal case the evidence discloses a distinct offence from that charged in the summons or warrant, the magistrate shall dismiss the charge, but where there is merely a variance between the summons or warrant and the evidence as to the time or place at which the offence charged was committed or some other minor error or discrepancy in the summons or warrant which may be amended without injustice to the defendant, the magistrate shall amend the charge and if it appears to him that the defendant has been misled by the charge as originally stated, he may adjourn the further hearing of the case to some future day." 

[9] The point taken on appeal is that the reference in section 90 to "criminal case" was a reference to a case under the Criminal Offences Act (Cap 18) and it could not be said that a charge under the Order in Public Places Act was a "criminal case". The written grounds of appeal also allege that it was prejudicial and unfair for the magistrate to make the change to the charge "without giving an opportunity for counsel to make submissions on the issue". As already noted, the appellant was not represented by counsel at the magistrate's court hearing but before me counsel was unable to satisfactorily explain how the amendment allowed by the magistrate was prejudicial and unfair to the appellant. I therefore reject that allegation.

[10] That leaves the issue of whether a charge under the Order in Public Places Act can be said to be a "criminal case" within the meaning of that term in section 90. The term "criminal case" is not defined. "Crime" is defined in Butterworth's New Zealand Law Dictionary (1995) as:  

"In its widest sense, a crime, as opposed to a civil injury, is an act which is forbidden, or the omission to perform an act which is commanded, by statute or by regulations made by a subordinate authority, the remedy for which is the punishment of the offender at the instance of the State." 

[11] In the House of Lords decision in Amand v Secretary of State [1942] 2 All ER 381 at 388, Lord Wright said this: 

"If the cause or matter is one which, if carried to its conclusion, may result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a criminal cause or matter. The person charged is thus put in jeopardy." 

[12] The expression "criminal case" should be given a broad construction and not confined to the technical meaning argued for by the appellant of an offence for which the offender may be proceeded against by indictment. Proceedings under the Order in Public Places Act are commenced by way of summons and the prescribed penalties are a fine or imprisonment. I see no distinction between a criminal case and a criminal cause or matter as defined by Lord Wright. In my view, any charge laid under the Order in Public Places Act amounts to a criminal case and, as such, a magistrate has power to amend the summons in the manner provided for under section 90 of the Magistrates Court Act. 

[13] The appeal is dismissed.