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

NO. CR.124-8 of 2007

REX

-V-

1.	‘AKILISI POHIVA
2.	CLIVE EDWARDS
3.	‘ISILELI PULU
4.	‘ULITI UATA
5.	LEPOLO TAUNISILA

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel:
Mr A. Kefu and Mr P. Little for the Crown and 
Mr C. Harder for Uata and Pohiva; 
Mr M. Paasi for Taunisila; 
Mr M. Kaufusi for Edwards and Pulu. 

Date of written submissions: 	24 August; 1 and 9 October 2007.
Date of Ruling:	12 October 2007.

RULING

The application

[1] The application before the Court is one filed by the Crown seeking leave to amend an indictment for the second time by adding additional counts. The application was filed after arraignment and after the trial date had been fixed. The application is opposed by the various accused upon the grounds that the additional counts relate to new charges which were not the subject of the preliminary inquiry in the Magistrate's Court.

[2] The trial is fixed to commence on 12 November 2007. Whether it will still be able to proceed on that day is likely to depend upon the outcome of this Ruling.

The background 

[3] The five accused are representatives of the people in the Legislative Assembly. They were each charged with conspiracy to commit sedition in connection with the civil disturbance in Tonga on 16 November 2006. Following a preliminary inquiry in the Magistrate's Court they were duly committed for trial in this Court. When the indictments were filed in this Court, however, the accused learned for the first time that they were being charged with six other counts in addition to the charge of conspiracy to commit sedition. The six other counts were charges of abetment to being riotously assembled and destroying, or in the alternative damaging, five buildings in Nuku'alofa each of which was specifically identified in the particulars of the respective counts. 

[4] Upon arraignment in this Court on 18 July 2007, which was the same day that the Crown had filed the original indictments, each accused pleaded not guilty to the various counts. Four of them then proceeded to elect trial by jury with Mr Edwards electing trial by Judge alone. The accused subsequently filed an application to strike out counts 2 to 7 of the indictments, which were various charges of abetment to being riotously assembled, essentially upon the grounds that they had not been committed for trial by the Learned Magistrate on those counts and the evidence taken at the preliminary inquiry did not support such charges.

[5] After hearing counsel in Chambers on 7 August 2007 I issued an order requiring defence counsel to file written submissions by 24 August 2007 as to whether the prosecution were entitled to include additional counts 2 to 7 in the indictments and the Crown were given until 4 September 2007 in which to file submissions in response.

[6] Written submissions were duly received from defence counsel within the time limit prescribed. On 5 September 2007 a letter was received from "Mr Little for the Solicitor General". I set out the relevant passage in full:

" I refer to the orders made by you on 18 July 2007.

Having thought over the position and having discussed it with trial co-counsel Mr Kefu, it has been decided in order to simplify the case on trial not to indict the accused on trial on the various abetment to riotous destruction and damage counts. As a result there is no need to consider this issue.

I will arrange to file fresh indictments this week."

[7] The new indictments were filed on 5 September and they each contained one count only, namely, "conspiracy to commit sedition". The accused were duly re-arraigned on 7 September 2007 and the trial date of 12 November 2007 was confirmed. At that stage the only issue outstanding was a challenge by the Crown to Mr Edward's right to be tried before a Judge alone and a timetable was fixed for dealing with that matter.

[8] The next development came in the form of another letter from "Mr Little for the Solicitor General" dated 11 September 2007 the relevant part of which states:

"I refer to the arraignment on Friday 7 September 2007.

On Monday 10 September 2007 I was instructed by the Attorney General to file a fresh indictment adding two counts.

Indictments will be delivered for filing at the same time as this letter. Added is a count of abet (sic) riotous assembly causing damage to buildings."

[9] The new indictments were filed on 11 September 2007 and in addition to the original count of "conspiracy to commit sedition" they contained two other counts, namely, "abetment of a riotous assembly" and "abetment of a riotous assembly causing damage to buildings". The particulars did not refer to any particular buildings but simply to "buildings in Nuku'alofa".

[10] On 17 September I issued an order directing that, as the case had been set down for trial, the new indictments would not be accepted without leave of the Court. Application for leave was duly filed by the Crown and I then issued a further order fixing another timetable in which the prosecutor and defence counsel were to file submissions as to whether suche leave should be granted. That is the point that has now been reached.

Submissions on behalf of the Crown

[11] The thrust of Crown counsel's written submissions were that there is no constitutional or statutory provision that prohibits the Crown from laying charges in an indictment which were not charges upon which the accused had been committed for trial after a preliminary inquiry. Counsel submitted that it was a well-established practice in Tonga that the Crown may lay other such charges and he made the point that it would result in "an administrative complexity" if that was not the position because otherwise the Crown in this Court would be bound by the charges laid in the Magistrate's Court by police prosecutors who were unqualified in the law. The prosecutor claimed that such right is always exercised "with objectivity, transparency and independence". In his words:

"24 Such a role is a constitutional role and is seen as semi-judicial, and is always exercised objectively without any sort of interference whatsoever, whether political, cultural or social."

[12] Crown counsel accepted that any such new charge would have to be based upon the evidence disclosed at the preliminary inquiry and that evidence would need to disclose a "prima facie case" supporting the new charge but he respectfully submitted: "it is not appropriate for Your Honour to assess the evidence as recorded from the transcript of the committal hearing as that may prejudice Your Honour's view of evidence during the trial." No authorities was cited in support of that particular submission.

[13] Anticipating the defence submission that the Crown had not disclosed the names of the principal offenders the accused are alleged to have abetted, Crown counsel submitted:

"49 The Crown respectfully submits that it does not have to identify the exact names of the persons the accused had abetted. It is well accepted that there was a riotous assembly shortly after the speeches of the accused. The accused cannot dispute that there was no (sic) riotous assembly as it goes against the wave and weight of the evidence.

50 The Crown respectfully submits that it is sufficient that the indictment states that the riotous assembly occurred in Nuku'alofa. The Crown also respectfully submits that it is sufficient that the indictment states that the riotous assembly occurred on 16 November 2006."

[14] Finally, Crown counsel submitted that the accused had not been able to raise any issue of prejudice in support of their objection to the application and, even if there was prejudice, the situation could be remedied by an adjournment of the trial. 

Submissions on behalf of the defence

[15] Counsel for the accused differed in their opposition to the Crown's application. Mr Harder took the approach that, in the absence of any legislative provisions governing the matter, the Crown had no power to circumvent the committal procedure so as to include counts 2-7 of the third indictment which had not been the subject of the preliminary inquiry. Mr Kaufusi, on the other hand, did not take issue with the fact that the Crown is able to amend an indictment after a preliminary inquiry. As Mr Kaufusi expressed it:

"5.2 The common law does allow for an amendment to indictments after a preliminary inquiry, after arraignment and after a plea has been entered. However, it is the particular circumstances in which the Crown can amend an indictment (which) is the critical issue. It is accepted by the accused that before any trial or at any stage of the trial, the court may allow for an amendment to the indictment unless the required amendment cannot be made without injustice." 

[16] Mr Kaufusi, however, took issue with the prosecutor's submission that the evidence given at the preliminary inquiry had disclosed a prima facie case supporting the additional charges of abetment of a riotous assembly and they took issue with the prosecutor's contention that the Crown did not have to give the names of the persons the accused are alleged to have abetted in causing damage to buildings. Defence counsel alleged that the prosecutor in his submissions had misstated the facts presented at the preliminary inquiry to try and make out that a prima facie case had been established. It was further submitted:

"It is a critical part of the submissions for the accused that (they) do not know the names of the principal offenders and that there was no evidence of this in the preliminary inquiry. The accused cannot present a defence prior to the hearing because the Crown has failed to provide evidence of these fundamental elements of the charge in the preliminary hearing. In this way the accused is severely prejudiced by the manner in which the Crown has sought to amend the indictments to include these new charges. . . . If the Crown does not disclose the identities of the said person is, how can the accused determine whether or not those alleged offenders heard any or all of their speeches, whether those offenders had been to Pangi Si'i (the park where the accused allegedly made their seditious speeches), and whether or not those offenders were encouraged by the accused's speeches to destroy buildings? If the persons who were responsible for destroying buildings had never heard any or all of the speeches from the accused, there can be no abetment. As such, the Crown is likely to have caused a serious injustice to the accused by not divulging such evidence in the preliminary inquiry."

Discussion

[17] The concession made by Mr Kaufusi is clearly correct. By sensibly accepting that the Crown is able to seek leave to amend an indictment by adding additional counts even after the case has been set down for trial, defence counsel, as I see it, has effectively narrowed the issues down to the establishment of a prima facie case and as to whether the grant of leave would result in an injustice to the accused.

[18] Crown counsel seemed to accept that the evidence presented at the preliminary inquiry would need to establish a prima facie case that the accused abetted a riotous assembly and also abetted unlawful damage of buildings by rioters. He submitted that in the present cases a prima facie case had been made out. He further submitted that the causal connection between the speeches made to the public by the accused on the one hand and the riotous assembly and the damage of buildings on the other, "can be strongly inferred by a properly directed jury from the evidence that has been disclosed to the accused after the committal hearing." That evidence, presumably, comprised the particulars of the overt acts the Crown relies upon which were set out in a letter to defence counsel from Mr Little dated 30 July 2007.

[19] As noted above, Crown counsel submitted that it was not appropriate for the Court to have to assess the evidence as recorded from the transcript of the committal hearing in order to satisfy itself that a prima facie case had been made out but it is sufficient for the Court to accept that the Crown will exercise its right to add new counts "with objectivity, transparency and independence" and in a "semi-judicial manner". 

[20] Defence counsel submitted in general that it was necessary for the prosecution to prove a prima facie case of abetment at the preliminary hearing but they did not address the point whether such a prima facie case had to be made out to the satisfaction of the trial judge or whether it could be left to the discretion of the Crown..

[21] From a practical point of view, if the trial Judge in this jurisdiction was required to satisfy himself that the evidence taken at the preliminary inquiry established a prima facie case in support of a new count before granting leave to include such count in the indictment then inevitably there would be significant resulting delays because of the need to have the evidence that had been taken in Tongan in the Magistrate's Court translated into the English language. The preliminary inquiry in the present cases, for example, took place over a number of weeks.

[22] Although no cases were cited on this particular point, there is English authority (admittedly obiter) which goes even further than Crown counsel's contention and concludes that the power to amend an indictment extends to the addition of a count or counts charging offences that are not even disclosed in the preliminary inquiry evidence but which are disclosed by evidence subsequently served, provided that the amendment does not result in an injustice. That decision, R v Osieh [1996] 2 Cr.App.R 144, C.A., was based on section 5 of the (UK) Indictments Act 1915 which relates to the amendment of indictments. The section provides that if at any time before trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as it thinks necessary unless, having regard to the merits of the case, the required amendment cannot be made without injustice. 

[23] An earlier authority, Regina v Hall [1968] 2 QB 788, had held that an indictment was defective not only if it charged offences not disclosed in the depositions but equally if it failed to charge an offence which was disclosed in the depositions. In other words, the court in that case concluded that an amendment not supported by evidence given at the preliminary inquiry would be invalid. Osieh, however, concluded that an amendment would be valid whether or not it was supported by evidence given at the preliminary inquiry.

[24] The correctness of the dictum in Osieh was questioned in Archbold 2000 but in the 2005 edition of that work, the following is stated (1-149):

"In the 2000 edition of this work the correctness of the above-mentioned dictum in R v Osieh was doubted and it was submitted that it was inconsistent with decisions in certain other authorities that were there identified. The question was posed as to how an indictment can be properly described as "defective", so as to give jurisdiction for the Court to allow an amendment, where the alleged defect is that the indictment does not include certain charges that could not lawfully have been included in it at the time when it was originally preferred. In R v Hemmings [2007] 1 Cr App.R. 360, CA, the court rejected this criticism, saying of the question posed in that criticism (which also arose on the facts under consideration in Hemmings itself) simply that "the interest of justice and fairness (and in particular the interest of the defendants) required that [the indictment] should be amended".

[25] The same reference in Archbold notes: "The appellate courts have shown an increasing willingness to allow amendments of substance to be made (to indictments), and the more recent decisions cannot be reconciled with certain of the earlier ones." 

[26] There is no similar legislative provision in Tonga to the (UK) Indictments Act dealing with amendments to indictments but in the absence of any legislative guiding principles, this Court has an inherent jurisdiction to regulate its own procedure to such extent as may be necessary to best meet the interests of justice. Section 5 of the (UK) Indictments Act sets out what can only be regarded as a commonsense formula for dealing with amendments to indictments and the way that that particular provision has been approached by the English Court of Appeal in Osieh would overcome the translation problem I touched upon earlier. Adopting that approach in the present case, it is unnecessary for this Court to spend any time considering the evidence adduced at the preliminary inquiry. Crown counsel has made an assessment that the various charges can be established on the basis of the evidence already disclosed to the defence. If his assessment in this regard proves to be incorrect then no doubt he is likely to face a "No Case" submission at the end of the Crown case.

[27] That brings me, therefore, to the issue of prejudice and whether the amendments sought can properly be made without resulting injustice to the accused. Both Mr Harder and Mr Kaufusi claimed prejudice. One of the points made forcefully by Mr Harder was that, as the additional two counts were not the subject of the preliminary inquiry, the accused had been denied the opportunity that would otherwise have been available to them to adduce evidence at the preliminary inquiry which would have negated or weakened the prosecution case. There is some substance in counsel's submission but the point made is an inevitable consequence once it is accepted, as I have held, that indictments can be amended to include counts upon which there was no evidence presented at the preliminary inquiry. At the same time, of course, there is no suggestion of the Crown wishing to adduce further evidence that was not called at the preliminary inquiry. On the contrary, Crown counsel specifically undertakes in his submissions that the Crown, "has disclosed all the evidence that it has in its possession in relation to the charges against the accused in this trial."

[28] One of the points Mr Kaufusi made in relation to prejudice is that the new count 3 refers to "damage to buildings" but Crown counsel in his submissions refers to one building only, namely, the Prime Minister's Office. Counsel made the point that in the original indictment, which had also referred to "buildings", six particular buildings had been identified but no specific building is identified in the third indictment.

[29] It would be inappropriate for me to comment in any greater detail on the wording of the charges. To do so might well encroach upon areas that could be the subject of specific defences. Suffice it to say that I am not persuaded that the amendments sought will result in an injustice to the accused. I do accept, however, that defence counsel may wish to take time to reassess their respective positions in the light of this Ruling and they may also wish to seek further particulars from the Crown, for example, in relation to the identification of the specific buildings referred to in count 3. For these reasons, the court would, if requested, look favourably upon any application for an adjournment of the trial date.

[30] For the foregoing reasons, the Crown's application to vary the indictments in the manner sought is granted. The Chief Registrar will be instructed to convene an early pre-trial conference to deal with any outstanding issues.

NUKU'ALOFA: 12 OCTOBER 2007

CHIEF JUSTICE