Police v Ngau [1992] CKHC 3; CR 727-730.1991 & 757.1991 (24 June 1992)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
Cr. Nos 727-730/91 inclusive & Cr. No. 757/91

BETWEEN

THE COOK ISLANDS POLICE
Appellant

AND

LAURENCE NGAU
Defendant

Counsel: Mr Appleby for the Appellant
Mr Mitchell for the Defendant

Date of Judgment: 24th day of June 1992

JUDGMENT OF DILLON J

The Appellant has filed a Notice of Application for Leave to Appeal in respect of a decision by three Justices of the Peace made in the High Court on 6 November 1991 where as a result of such hearing the charges against the Defendant were dismissed.

This appeal is brought pursuant to Section 76 of the Judicature Act 1980-81 which provides that:

"... where on the determination of any proceedings civil or criminal .... by Justices sitting together (where) any party thereto is not satisfied with the decision therein he may appeal from that decision to a Judge."

There is no doubt that Section 76 does entitle the Appellant to appeal against the dismissal subject always to the inherent rights of very long standing relative to the principles of "double jeopardy". That is, no person should be required to stand trial a second time for the same offence in circumstances where the charge against him has been dismissed on the merits at the first hearing. So the short question to be considered is while the Appellant may in effect lodge an appeal pursuant to those provisions to the Judicature Act referred to above, should that right or entitlement override principles of long standing related to the question of double jeopardy. Mr Appleby's submissions are brief and to the point. He relies on Section 76 which entitles "any party" to a proceeding to appeal. On that basis and that jurisdiction he says that the Appellant is entitled to appeal as a party who "is not satisfied with the decision". I accept that that is an interpretation which can be derived from Section 76 and on its own leave could be granted to an Appellant in such circumstances.

Mr Mitchell quite rightly takes the matter further and explains that the Defendant has stood trial; after a full hearing before three Justices a unanimous decision was given dismissing the charges. He says that the Appellant now wishes to have a second opportunity by way of rehearing based on the same charges and the same facts. In other words his client has made an election; he has selected trial by three Justices; he has had a trial at the end of which the charges were dismissed; and now the Crown, because it requires a rehearing, is seeking a change of forum for a second trial not before Justices but rather before a Judge but on the same facts supported by the same evidence and related to the same charges and allegations. Mr Mitchell says that that on its own is contrary to natural justice and the perceived objective of providing a defendant with an election either of three Justices or a Judge, and that the course of action now proposed by way of rehearing is a course of action never intended by the legislature itself.

Apart from those considerations, however, I must also consider the rule against double jeopardy. In the Criminal Law this rule refers to the principle that no person shall be twice charged for one and the same offence. The purpose of the rule is obvious. It is to ensure fairness to the accused. Non-compliance with that rule would create a situation which was oppressive and unfair. It cannot be fair and it must be oppressive if the Appellant in this case can say "not satisfied" with the decision of the three Justices and so apply to go before another Court on the same evidence and facts for another trial.

Mr Appleby suggests that the statutory provisions of Section 76 override all principles associated with the rule against double jeopardy. However it is a fundamental principle of interpretation that no statute should be so construed as to abrogate a fundamental principle of the common law. For that to happen there must be a clear and unequivocal expression of intention in any statutory provision that that should be so construed.

I refer to two cases with an Irish background (what better authority is there to support my observations?) - Benson v Northern Ireland Road Transport Board (1942) A.C. 520; and R. v Tyrone County Justices (1906) 40 Ir.L.T. 181; which cases support the view that the common law rule against double jeopardy would be impinged by allowing an appeal from an acquittal since that common law rule requires that a verdict of acquittal must be treated as final.

The question of double jeopardy is reasonably recently being considered by the High Court of Australia in the case of Davern v Messel [1984] HCA 34; (1983) 155 C.L.R. 21; and by the Court of Appeal of New South Wales in the even more recent case of Cooke v Purcell (1988) 14 N.S.W.L.R. 51. In the Davern v Messel decision the Judgment of Deane J. sets out the principles as follows:

"Any statement of the rationale of common law rule against double jeopardy is incomplete, however, unless it also takes account of the fact that, at least in common law countries and apart from the exceptional case of a private prosecution, both the prosecutor and the court in a criminal case are essentially emanations of the same entity. Regardless of whether it be seen or described in terms of the sovereign or the people, that entity is the State. It is the State that establishes and maintains the judicial system. It is the State that brings an accused person before that judicial system on a charge of an offence against the law of the State. It is in the State's favour that the overwhelming balance of power and resources will ordinarily be. If in that context a competent Court in the State's own system rules that the State charge should be dismissed and makes an order that the person against whom the State has brought proceedings is acquitted and discharged, there is plainly much to be said for the view that, as a matter of ordinary fairness, that person should be entitled to be released both from custody and jeopardy on that charge. Put another way, the citizen who is told by a competent court of the State that the State's proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the State of new proceedings against him or by reason of an appeal by the State against its own court's decision."

In the New South Wales case the question of double jeopardy arose because the Crown appealed against sentence only. The unjustness of exposing a Defendant to double jeopardy was further fully canvassed by the Court of Appeal and particular reference was made to the decision of R. v Tait & Bartley [1979] FCA 32; (1979) 46 F.L.R. 386.

All those very authoritative decisions clearly expound the principles applicable and the necessity of preserving the long established principles which relate to not exposing an accused person to the risk of the rule known as Double Jeopardy.

In this particular case we are not dealing with the Appellant appealing against sentence. Rather we are dealing with an Appellant who is dissatisfied with the unanimous decision of three Justices and wants a second attempt at due process based on the same evidence, the same facts and the same charges. The only difference from the earlier hearing is that the Appellant is in effect saying that I was not satisfied with the decision of the three Justices and I would like another try please before a Judge, which, as Mr Mitchell has said, could have been the person that the Defendant did not want to adjudicate when the selection to be tried by three Justices was made.

I therefore have no difficulty in refusing Leave to Appeal. The Appellant is not entitled to such leave and there is no justification whatsoever for granting leave. Mr Appleby presented no information or details as to why the Appellant was not satisfied. That bald statement of "not being satisfied" should not be the platform with which to, in effect, attack the unanimous decision of the Justices. If the decision of the three Justices was based on sound principles and reached after hearing all the evidence and all the witnesses, then one must ask - why is the Appellant entitled to an appeal for in effect a second trial? That observation of course reverts back to the question of fairness and whether such an application can be regarded as oppressive. I do not have to go into that aspect of the application since I have no evidence before me as to why the Appellant says he is not satisfied.

I am perfectly satisfied however on the principle of double jeopardy as applying in this case. Leave to Appeal is refused.

The Defendant, I believe, is entitled to costs. The Crown is to pay to the Defendant the sum of $200.00.

DILLON J