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R v Kauapa [2009] TVHC 5; Criminal Case 05 of 2009 (26 October 2009)

Crim. Case No. 5/09

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Criminal Jurisdiction

Between:

R
Applicant

V

Sei Kauapa
Respondent

BEFORE THE CHIEF JUSTICE

F Niko for Applicant
S Kofe for respondent

Hearing: 22 October 2009
Judgment: 26 October 2009

JUDGMENT

1. The applicant seeks, by originating summons, a declaration of the meaning and effect of sections 304 and 272 of the Criminal Procedure Code and section 67 of the Magistrates Courts Act. It is convenient first to set out the background to this request. It is taken from the affidavit of Saaga Talu filed in support of the summons.

2. The respondent was charged with an offence of attempted rape of an eight year old girl. He first appeared before the Senior Magistrate’s Court on 12 January 2009 and was bailed to appear on 6 February 2009. It appears that, at that first appearance, the learned Senior Magistrate ordered that the police should provide, at the next sitting, an explanation in writing of why the respondent had been held in custody following his arrest for longer than the permitted time. No explanation was provided on 6 February 2009 nor any reasons why it was not. It has no bearing on this application except that it may provide some explanation for the events which took place.

3. On that date, the police officer who was appearing for the prosecution sought an adjournment because he was not the officer in charge of the case and the officer with carriage of it was, in the time worn and overworked phrase, "on his way". The defence was present and ready to proceed and resisted the application. The Senior Magistrate thereupon denied the adjournment. Exactly what happened then is not clear. Counsel for the respondent, who was present in the lower court, says the accused was acquitted. The record, which I have been given, states somewhat ambiguously, "...the court will acquit the charge and dismiss the accused on the failure of the police to obey the court order."

4. Later that day, the Commissioner of Police wrote to the Senior Magistrate saying that he understood the accused had been acquitted and requesting, "a written copy of your decision to acquit the accused and the legal process stage within which you make the decision."

5. He received no response and so Mr. Talu, then acting Attorney General, wrote on 23 February 2009 repeating the request to transmit "a written copy of your decision and other notes that assists you in reaching your decision acquitting Sei Kauapa of that allegation."

6. The learned Senior Magistrate replied on 25 February and pointed out; " I acknowledge receiving that letter on the same date of the letter and I have made a minute on it to put it away as there will be no minutes of the court proceedings to be supplied until a Petition of Appeal is filed." He then referred to sections 272, 274 and 279 of the Criminal Procedure Code and section 67 of the Magistrate’s Courts Act.

7. The next day, the acting Attorney General tried again pointing out that the references the Senior Magistrate had supplied referred to the record and the prosecution was only seeking a copy of the order made on 6 February and the reasons for it. He repeated the request for a copy of the court’s decision and referred the court to section 273(8) of the Code. Hearing nothing, he wrote on 2 March 2009 asking for an extension of time within which to appeal.

8. The Senior Magistrate responded to the letter of 6 February 2009 on the same day acknowledging the misunderstanding (stated as a ‘misreading’) and continued:

"...but that does not change the position at all. This court in the past used to give out its written, signed and seal orders or decisions upon the request made in court either by the prosecution or defence. For this charge, there is nor formal request being made in court on that day. A subsequent letter is not considered an appropriate mode of this nature until an appeal is filed. Lastly, with regard to the application of section 273(8) of the Criminal Procedure Code. That subsection is discretionary. This court has made its position known that only a formal request is made in court or an appeal is filed, the court can give it written orders or decisions."

9. The next day, he wrote again refusing the request to enlarge the time to appeal. The Notice of Appeal was subsequently returned.

10. The problem in this case appears to have arisen from the misunderstanding of what the prosecution was actually requesting. Once that had occurred, it seemed there were possible conflicts between the various statutory provisions. It is correct that there are discrepancies between section 302 and 67 but the general position is clear. Section 67 of the Magistrates Courts Act provides:

"67. No person shall be entitled, as of right, at any time or for any purpose, to inspect the record of evidence given in any case before any magistrates court, or to receive a copy of the notes of such court, save as may be expressly provided by any rules of court, or, in the absence of any such rules, unless the leave of a magistrate to make such inspection or receive such copy has been first had and obtained."

11. Section 304 of the Criminal Procedure Code provides:

"304. If any person affected by any judgment or order passed in any proceedings under this Code desires to have a copy of the judgment or order or any deposition or other part of the record, he shall, on applying for such copy, be furnished therewith provided he pays for the same, unless the court for some special reason thinks to furnish it free of cost."

12. Looked at together, it is apparent that section 67 is a restriction on claims as of right to inspect the records or to receive copies of the record unless such a right is provided elsewhere in the rules or the magistrate gives leave. Section 204 gives any person affected by a judgment or order the right to have a copy of the order or any other part of the record which affects him. This right is not subject to the filing of a notice of appeal first.

13. I would also refer to section 151 of the Code which is in Part IV and therefore applies to all criminal proceedings:

"151. On the application of the accused person a copy of the judgment, or, when he so desires, a translation in his own language, if practicable, shall be given to him without delay; and such copy shall be given free of cost."

14. It is clear that section refers only to the accused person but is a further qualification to section 67 which applies in all criminal courts including the Magistrates Court.

15. I am satisfied that the general principle is that any person who has been affected by an order of the court must be entitled to a copy. It is only in that way that either prosecutor or accused can be sure of the terms of that order. Whether or not the practice has grown up of requiring a formal request at the time the judgment is delivered or order made, it is neither necessary nor practical. Many an accused person leaves court with little more than a general idea of what was said when he was being sentenced. Later he may wish to consider whether to appeal and the actual words of the sentencing judgment may be critical. I do not accept he must make some kind of formal request in court.

16. Similarly the prosecution, as the other party in the case, should have the same right.

17. In the present case, the Commissioner of Police was clearly affected by a decision which had possibly resulted in the acquittal of a man accused of a very serious offence. It was a perfectly proper approach to write a letter to the court and I see no good reason for the Senior Magistrate’s refusal. If, as possibly appears to be the case, the Magistrate reacted to the inefficiency of the police prosecutor in failing both to supply the explanation ordered or being ready for a prearranged court fixture, it is in the court’s interest that the police should have full details of what happened. Without them, it is hard to know how such conduct will be corrected.

18. The suggestion by the Senior Magistrate that it was necessary to appeal the decision before a copy of his order could be supplied is illogical and undesirable. It is better for the court to provide the order so a reasoned decision can be made whether to appeal. If a copy of the order is only to be available after an appeal is filed, it will encourage automatic filing of appeals simply to obtain the decision in order to decide whether it is actually worth appealing. Such a procedure will waste the time and resources of court staff and the appellant and his lawyers.

19. In the present case, the result of the Senior Magistrate’s refusal was that the time for appealing expired. In any criminal case, the time to appeal an order runs from the time the order is made and so it requires prompt action. That is precisely what the Commissioner did but the dispute resulted in the time running out unnoticed. It is correct, as the Senior Magistrate stated, that the time to appeal may only be enlarged if application is made before the time expires. Once the fourteen days has expired there is no period to appeal left to enlarge.

20. The prosecution was seeking the details of the decision in order to decide whether it could or should appeal. Despite the Senior Magistrate’s insistence they needed to appeal first in order to see the record, it was illogical to file an appeal until the decision had been seen but, in the meantime, the time expired and the Senior Magistrate can no longer enlarge it.

21. If, once the prosecution has seen the order and the Senior Magistrate’s reasons, it wishes to appeal, it would be unconscionable if they were to be denied that right because of the difference of opinion with the court. I direct that any such application, if pursued, shall be made to the High Court on fourteen days notice.

22. Finally, the suggestion by the Senior Magistrate when deciding that section 272(2) provides an exhaustive list of the circumstances which can show good cause appears to ignore the fact that the subsection specifically acknowledges the generality of the phrase and provides that good cause ‘includes’ those set out.

23. To avoid any doubt in future, I direct that the parties to a criminal case and anyone else affected by the decision shall have the right to a copy of the order and the written reasons for it. To allow less flies in the face of open justice. The application may be made by the parties orally at the hearing or in writing subsequently for which a letter will suffice. It may also be made orally subsequently to the Senior Magistrate by an unrepresented person as any more formal requirement may discourage him seeking his right.

Dated 26th day of October 2009

Hon. Gordon Ward
CHIEF JUSTICE