IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR. 300/2003

BETWEEN:

REX
Prosecution

AND:

HENELI SAAFI
Accused

BEFORE THE HON MR JUSTICE McELREA

Counsels:
Mr. Kefu for Prosecution
Mr. Veikoso for the Accused

Dates of trial: 9-13 August 2004
Date of Ruling: 12 August 2004 

Ruling on defence applications

The accused faces two charges of manslaughter by negligence arising from the driving of a motor vehicle on 18 January 2003. Two of the passengers in that vehicle were killed following an impact between that motor vehicle and a Toa tree beside the road.

At the closing of the Crown case, Mr Veikoso made two submissions upon which he sought my rulings. The first was that the Indictment is defective and second, that there is no case for the accused to answer.

The second submission can be disposed of simply. Mr Veikoso's submission was that the Crown's own evidence shows that the accused when he drove the vehicle, was too drunk to understand anything and did not know what he was doing and he did not consent that it would happen – which I take to mean that the accused's driving was not intentional. He therefore relies on the defence of "intoxication". Under s 21(4) of the Criminal Offences Act, intoxication can be one element taking into account in deciding whether there is necessary intention. Here the intention that the Crown has to prove is the intention to drive the motor.

Mr. Veikoso referred to some of the witnesses' evidence to the effect that the accused was so drunk that he was not in control of himself or able to know what he was doing. For the Crown Mr Kefu pointed to other evidence, for example the fact that he had walked around the vehicle to the driver's seat before he started driving and that he had succeeded in driving the vehicle for some 5 miles before losing control and this accident occurred. I agree with the Crown that the evidence is not clearly in the favour of the Accused on this point and it is a matter for the jury to decide when they weigh up all the evidence. So there is a case to answer and I rule accordingly.

I turn now to the first submission made, namely that the Indictment is defective. Mr. Veikoso's submission was primarily that the statement of offence in the Indictment refers to s 86(1)(b) of the Criminal Offences Act which is culpable homicide, and it is different from manslaughter by negligence which is s 92 of that Act.

It is important to record the form of the Indictment. It contains 2 counts, each identical to the other except that the name of the deceased differs. I therefore will set out the details in respect of count 1 only. The Indictment reads as follows:

"Heneli Saafi is charged with the following offences:

STATEMENT OF OFFENCE

(Count 1)

Manslaughter by negligence, contrary to section 86 (1) (b) and 93, Criminal Offence Act (Cap 18)

PARTICULARS OF OFFENCE

(Count 1)

Heneli Saafi, did on or about 18th January, 03 at 'Utulau Area, drive motor vehicle J4316 on the road between Ha'alao and 'Utulau and by your negligence, caused the said vehicle to sway off the road and it an iron tree nearby beside the road causing the death of Latu Moimoi."

Mr. Veikoso's submission is primarily that the "statement of offence" refers to s 86(1)(b) and s 93 and not to s 92. I now set out the relevant sections:

Here set out s 85 and s 86.

I note that s 87 defines the situations in which culpable homicide is murder, ss 88 to 90 deal with defences to murder, and s 91 deals with the penalty for murder.

Here set out s 92 to s 95.

Mr. Veikoso submits that culpable homicide is different from manslaughter by negligence driving. He submits that section 95 "highlights" s 86(1)(b), by which I assume that he means s 95 defines the scope of omissions to perform a legal duty that can be the subject of s 86 (1) (b). I asked Mr Veikoso whether he meant that the Indictment should have referred to s 86(1)(a) - killing "by an unlawful act" - and he said, No, it should have referred  to s 92 which specifically deal with manslaughter by negligence. Mr Veikoso submitted that s 86(1)(b) would have covered a charge against Latu Moimoi had he not died in the accident as it was his duty to his passengers that Mr. Veikoso said he had breached - he supplied the vehicle and had the license to drive the vehicle, and the accused told him that he was not capable of driving and yet he insisted he do so.

Mr Kefu was not responsible for drawing up the Indictment but conceded that the usual practice of the Crown Law Office was to lay a charge of manslaughter by negligence under ss 92 and 93 of the Act. I hope that the Crown Law office will revert to that practice in all future cases and avoid the debate we have had today. Nevertheless Mr Kefu submitted that the reference to s 86(1)(b) was not inappropriate - i.e. that there was indeed a death as a result of an omission without lawful excuse to perform or observe a legal duty towards the deceased, and that duty was a duty of care to all passengers and to other persons using the road.

I agree with that submission. Such a duty is established for example by s 25 of the Traffic Act dealing with driving without due care and attention, or driving dangerously, which are stated to be offences. And in my view the prosecution must bring any case of manslaughter, including manslaughter by negligence, within one or more of the five limbs of s 86(1). Section 86 defines culpable homicide, so whether it is murder or manslaughter that is alleged, the killing must come within at least one of those five limbs. One would think that driving cases might more naturally come within paragraph (a) – an unlawful act - than paragraph (b) - breaches of duties to other persons, but in my view both paragraphs are open on the facts on this case.

I reject the submission by Mr Veikoso that ss 95 and 96 are the only possible applications of s 86 (1) (b). That is not what the statute says.

The question then is whether it is fatal to the Crown's position, that s 92 is not referred to in the Indictment. Certainly s 92 is the only section that creates the separate offence of manslaughter by negligence, which is a sub-set of the wider category of manslaughter. Nevertheless, as Mr Kefu submitted, the test is whether the Indictment clearly identifies the offence with which the accused is charged.  Mr. Veikoso did not take issue with that proposition and I accept it. 

In his submission developing that general proposition Mr Kefu submitted:

that the Indictment states the offence as "manslaughter by negligence" and refers to s 86 (1) (b) and s 93, and he pointed out that section 93 gives a different penalty for manslaughter by negligence than for other cases of manslaughter, and accordingly the accused knew what the charge was and what penalty he would face.

The particulars of the offence clearly state that the Accused was driving at a particular place and time and by his negligence caused the vehicle to leave the road and hit the tree thereby cause the deaths of the deceased. Thus again it was made clear that manslaughter by negligence was alleged.

Mr Kefu submitted that there was no prejudice alleged or possible as the Indictment clearly shows the offence, and the statement of offence and the particulars both refer to manslaughter by negligence. I agree, and indeed as I will mention shortly, the fact that the application was made after the Crown case had closed shows Mr Veikoso was able to conduct the accused’s defence without any confusion as to the charge that he faced.

Mr Kefu referred me also to clause 13 of the Constitution, which states that no-one shall be tried on any charge except that which appears in the indictment. (That is beyond argument of course, but for myself I doubt the accuracy of the draftsman's marginal note, "Charge cannot be altered"). Mr Kefu presumably also had in mind clause 11, which requires every indictment to be in writing and to "clearly state the offence charged against him and the grounds for the charge". It was his submission that this indictment did clearly state the charge of manslaughter by negligence, and the ground for the charge.

Mr Kefu also referred to the requirement of s 94 of the Criminal Offences Act, that an accused who is not guilty of manslaughter in connection with the driving of a motor vehicle may nevertheless be found guilty of one of the lesser offences set out in s 25 of the Traffic Act, even though he was not charged with such offence. I understood Mr Kefu's point to relate to the "No Case to Answer" submission, and not to the alleged defect in the indictment. If there is a problem with the indictment, such that it does not clearly state the offence charged, I assume (though the point was not argued) that the whole basis of the trial is affected and the jury does not get to the point of finding the accused not guilty of manslaughter by negligence and considering the statutory alternatives.

(For completeness I note Mr Veikoso's submission that s 94 is invalid as in breach of clause 13 of the Constitution, but this overlooks paragraph (d) of the savings to clause 13 – "Any Act may provide that a person charged with an offence may be convicted of another offence (not being a more serious offence) arising out of the same circumstances").

I have not been referred to any case law, except the case which Mr Veikoso recalled upon sighting yesterday the former Webster J now returned to Tonga as Chief Justice. Mr Veikoso's recollection of the case may be amiss as the report of the case when found – Kitekei'aho & Tonga v R [1991] Tonga LR 46 - shows that the Court of Appeal confirmed Webster J’s approach to s 86 (1) (b). Further, the case does not decide whether that provision can be applied to manslaughter by negligence, which was the point being made by Mr Veikoso.

Mr Veikoso submitted that it was too late for the Crown to cure any problem by an amendment of the indictment because the Crown had closed its case. Mr Kefu neither responded to this submission nor sought leave to amend the indictment. That still leaves the Court however with the question whether an amendment is necessary in the first place.

In my view the essential question in this case is whether the indictment "clearly state[s]" the offence charged, as required by clause 11 of the Constitution. There is no requirement that I am aware of in the statutes or regulations of Tonga for the charge to include a reference to the statute creating the offence, or to the section of the statute, which creates the offence. The position may be contrasted on the one hand with the position in the United Kingdom, where rule 6 of the Indictment Rules 1971 expressly requires that the statement of offence in the indictment shall contain a reference to the section of an Act creating the offence. On the other hand in New Zealand s 328 of the Crimes Act 1961 refers to form 4 of the Second Schedule to that Act which contains specimen charges and none of these contain any reference to the statutes or sections creating the offences.

The case law from any country must be approached with caution taking into account the legislative framework in that country governing the laying of charges or form of indictments. Nevertheless some guidance can be obtained from some of the cases that I have been able to locate in the time available.

In Sayer v Police [1963] NZLR 221 it was held by McCarthy J that the statutory reference in an information charging an offence is not strictly part of the charge, even though the form of an information in the Second Schedule to the Summary Proceedings Act 1957 calls for a reference to the section on which the charge is based. The learned Judge considered that the defendants were fairly informed of the substance of the charge against them, but went on to say (page 223) that the question remains whether the mistake in the statutory reference is fatal. The judgment then states that "in many cases unless there is an amendment, a conviction would not be warranted", but it stopped short of saying "that in all cases there must be an amendment". The Court then went on to apply s 204 of the Summary Proceedings Act dealing with defects, irregularities, omissions and want of form.

It seems therefore that McCarthy J considered that a statutory reference is not part of the charge and if it was incorrectly stated and no prejudice was caused it could be cured under s 204. He did not agree however that amendment of the information was necessarily required.

From the opposite side of the world, the House of Lords dealt with the form of an indictment in R v Mandair [1995] 1 AC 208. Although the focus in that case was on the issue of indictments charging offences that do not exist, the opinion of Lord Mustill at page 229 draws the distinction between defects that render the count a nullity, and those which render it defective. The latter, he points out, may be cured by an amendment. I gather that the very power to amend an indictment is in some doubt following Tonga’s repeal of the reference to general UK legislation, but the point does not arise as there has been no application to amend.

The opinion of Lord Mackay of Clashfern LC at page 216 refers to rule 6 of the Indictment Rules 1971 noted above and describes the requirement that the statement of offence in the indictment shall contain a reference to the section of the Act creating the offence as "an essential part of the indictment and must be so since it is guilt of a contravention of the statute that gives the court power to impose punishment."

Another case dealing with the rule 6 of the Indictment Rules 1971 is R v Clifford Nelson (1977) 65 Cr. App. R. The Court of Appeal held that an indictment, which failed to state the statute which the accused was alleged to have contravened was merely defective and was not a nullity. That case however also does not assist the Crown here, because the defect still required to be remedied – either by applying some statutory proviso, or by amendment. However, again it is a case based on an express rule that the statutory provision be stated in the indictment.

Archbold Criminal Pleading, Evidence and Practice (2001, and Supplement 2003) suggests a slightly broader approach. Under the heading "Defects in the indictment" there is a section at para 7-78 headed "(iv) Duplicity and other defects of form". Here it is said that a conviction will not be quashed unless it is "unsafe", and further that "a conviction will not be rendered unsafe on account of some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice."

Standing back from the cases and returning to the requirement of the Constitution, the question is whether the offence with which the accused is charged is clearly stated in the indictment. In my view it is. I note that the alleged defect has not prevented the accused through his counsel from conducting his defence to the charge. After discussions between counsel it was indicated by Mr Kefu in his opening address to the jury that it was conceded by the defence that the two deceased had died as a result of a motor vehicle accident in which the accused was the driver. It was not disputed during the examination of witnesses that death occurred following the vehicle in which the deceased were passengers leaving the road and hitting a Toa tree. Mr Veikoso put to several prosecution witnesses that his client was so drunk that he did not know what he was doing, and further that he had been required to take over the driving despite his protests that he was too drunk and did not know how to drive a vehicle with a manual gear shift. There was a degree of acceptance of these propositions, and this in turn enabled Mr Veikoso to advance the "No case" submission based on a defence of lack of intention to drive the vehicle due to extreme intoxication – referring to s 21(4) of the Criminal Offences Act.

All of this demonstrates that the defence has understood completely that the charge here was one of manslaughter by negligence in relation to the driving of the accused, and counsel has conducted himself accordingly. There can be no suggestion that the accused has not understood the charge, or that any prejudice has been suffered by the alleged defect – certainly none was suggested by Mr Veikoso.

It is pertinent also to examine the structure of the legislation concerning manslaughter by negligence. Its logical framework in my view is as follows:

There is no such crime committed unless first there is a culpable homicide as defined in s 86.

Unless the Crown alleges and proves the additional requirements for murder, the crime is no more than manslaughter. – ss 87 – 92.

Manslaughter by negligence, although a separate offence (s 92), is a subset of manslaughter cases distinguished only by the fact that a lesser maximum penalty applies – see s 93.

This indictment refers to the relevant sections dealing with the first and third steps, but not the second. If a reference to s 92 had been added it would have been complete. I regard this therefore as a case of an incomplete reference rather than an erroneous one, and it is for this further reason that I consider that the charge has been clearly stated and no confusion or prejudice caused. The words "manslaughter by negligence" are clearly stated in the charge, and the particulars of the charge refer to all the necessary factual ingredients to support such charge. The omission of one of three sections does not alter or detract from that in any way. As a result no amendment is required to the indictment.

My conclusion is that the alleged defect is a mere technicality of no merit or substance, and it would be quite wrong for the trial of the driver of the vehicle in which two young people tragically died on this day to be abandoned on such a basis. The requirements of justice do not support that result but suggest that the trial should proceed.

NUKU’ALOFA: 12 August 2004

JUDGE