Pera v Tangiiti [2010] CKHC 5; CRC 115-116 of 2010 (10 September 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR. 115-116/2010 &CR. 130-131/2010

UNDER

The Crimes Act 1969 ss 242, 249, 316 and 321(4) and the Criminal Procedure Act 1980-81 ss16 and 18

AND

IN THE MATTER of an Application to strike out this private prosecution for want of form and substance

BETWEEN

TINIURA PERA of Rarotonga
Informant

AND

TEREMOANA PERA TANGIITI and VAEVAE TANGIITI of Rarotonga
Defendants

Hearing: 10 September 2010
Counsel: Charles Little for Informant, to oppose

Norman George for Defendants, in support
Judgment: 15 September 2010

RESERVED JUDGMENT OF HUGH WILLIAMS J.

Solicitors:
Charles Little P.C., Avarua Rarotonga, Cook Islands
Norman George & Associates, Avarua, Rarotonga, Cook Islands

Issue

[1] In two pairs of informations laid privately, the informant, Mr Tiniura Pera, alleges against the defendants, Teremoana Pera Tangiiti and Vaevae Tangiiti that between 15 and 17 February 2010, at Rarotonga, they:

a) Committed wilful damage by way of wilfully damaging the house owned by Tiniura Pera; and

b) Committed theft by way of intentionally and dishonestly taking a kitchen sink and cupboards, kitchen shelving, a vanity unit, a water tank and/or roofing iron, being the property of Tiniura Pera with the intention of depriving Tiniura Pera, being the owner of the said items, permanently of such items without the consent of Tiniura Pera.

[2] The informations were all served on the defendants on 19 February 2010.

[3] On 21 April 2010 the defendants filed an application to strike out the informations and on 10 June 2010 the Justice of the Peace before whom the informations had been called, Ms Manarangi JP, directed the applications to strike out be determined in the High Court because of the complexity of the issues involved.

[4] The applications were heard in this Court on 10 September 2010 and forms the basis of this judgment.

Law

[5] Initially, Mr George, counsel for the defendants submitted the informations should be struck out as they had been privately laid, not laid by the Police or Crown Law, but was constrained to acknowledge that a citizen's right to issue private informations and conduct private prosecutions against those whom they allege to have committed criminal offending is an ancient right which, though infrequently exercised, remains in full force and effect.

[6] He accordingly abandoned that ground and submitted the informations should be struck out on the basis of alleged non-compliance with ss 16 and 18 of the Criminal Procedure Act 1980-81. Those sections - plus s 17 which is also germane to these applications - read:

16. Information to contain sufficient particulars –

(1) Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.

(2) The particulars of the nature of the alleged offence shall, so far as is possible, use the words of the enactment creating the offence, and may refer to any portion of that enactment, and, in estimating the sufficiency of any such information, the Court shall have regard to such words or reference.

(3) The particulars shall include the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed.

(4) Except as hereinbefore provided, no information shall be held to be defective for want of form or substance.

17. Further particulars

The Court may, before ruling upon the sufficiency of any information, and at any time if satisfied that it is necessary for a fair trial, order that further particulars in writing be furnished by the informant or prosecutor.

18. Objections to information

(1) No objection to an information shall be taken by way of demurrer, but, if an information does not state in substance an offence, the prosecutor or the defendant may move the Court to amend it, or the defendant may move the Court to quash it or in arrest of judgment, as provided in this section.

(2) If the motion is made before the defendant pleads, the Court shall in its discretion either quash the information or amend it.

(3) If the defect in the information appears to the Court during the trial, the Court may, if it thinks fit, amend it, or may in its discretion quash the information or leave the objection to be taken in arrest of judgment.

[7) The charges of wilful damage are laid under ss 316 and 321 of the Crimes Act 1969 which relevantly read:

316 What constitutes criminal damage

(1) For the purposes of ss 317 to 328 of this Act, every one who causes any event by an act which he knew would probably cause it, being reckless whether that event happens or not, shall be deemed to have caused it wilfully.

(2) Nothing shall be an offence against any of the provisions of those sections unless it is done without lawful justification or excuse, and without colour of right.

(3) Where the act done results in the destruction of or any damage to anything in which the person charged has an interest, whether total or partial, the existence of that interest shall not prevent his act being a crime if it is done with intent to defraud or to cause loss to any other person. For the purposes of this subsection, where any property is subject to any mortgage or charge, each of the parties to the mortgage or charge shall be deemed to have a partial interest in that property.

.........

321 Wilful Damage

...........

(4) Everyone who wilfully destroys or damage any property in any case not provided for elsewhere in this Act, shall be liable to –

(a) Imprisonment for a term not exceeding one year where the value of the property destroyed or damage done, does not exceed fifty dollars;

(b) Imprisonment for a term not exceeding three years where the value of the property destroyed or damage done, exceeds fifty dollars.

[8j The informations for theft are laid under s 242 and 249 of the Crimes Act 1969 but only s 242 needs to be recounted. It relevantly reads:

242 Theft defined

(1) Theft or stealing is the act of intentionally and dishonestly taking, or intentionally and dishonestly converting to the use of any person, anything capable of being stolen, with intent-

(a) To deprive the owner, or any person having any special property or interest therein, permanently of such thing or of such property or interest....

[9] Section 16(1) of the Criminal Procedure Act 1980-81 is in identical terms to s 17 of the Summary Proceedings Act 1957 (NZ) but though the absence from s 17 of the New Zealand statute of provisions comparable to s 16(2)-(4) means the New Zealand provisions are not directly applicable, the construction accorded s 17 by the New Zealand Court of Appeal in the leading case of Police v Wyatt^[1] remains helpful.

[10] The appeal concerned the particulars required to be provided in a driving charge but nonetheless North P held^[2]

As in England, the general question has been considered in a number of Australian cases. The ones which I have considered are: Ex parte O'Sullivan, re Craig [1944] NSWStRp 28; (1944) 44 S.R. (N.S.W.) 291; O'Sullivan v De Young [1949] SAStRp 11; [1949] S.A.S.R. 159; and Ex parte Grinham, Re Sneddon [1961] S.R. (N.S.W.) 862. In O'Sullivan v De Young Napier C.J. said: "The accused must be told what law he is alleged to have broken, and, with reasonable particularity, how he is alleged to have broken it. . . ., but the right is to reasonable particularity, and 'reasonable' excludes the idea of any hard and fast rule. It connotes a sense of proportion, and a judgment which takes into account all the circumstances of the particular case. What is 'reasonable particularity' must necessarily depend on the nature of the charge, and take into account the means by which the prosecution is entitled to discharge the burden of proof' (ibid., 164).

[11] McCarthy J dealt with the appeal somewhat more extensively when he held:^[3]

What s. 17 sets out to do, I believe, is to make two things clear:

1. That it is not obligatory to state an offence in the ipsissima verba of the section creating the offence; and

2. That sufficient particulars must be given reasonably to inform the person charged of the act or omission alleged and to identify the transaction.

A requirement stated in the general terms of s. 17 cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one, such as it was for example in Robertson v Rosenberg (1951) 67 T.L.R. 417, and in Stephenson v Johnson [1954) 1 W.L.R. 375; [1954] 1 All ER 369, more will be required.

...

...For a long time now the requirements of the criminal Courts in relation to pleadings have been very much less formal and detailed than those of the civil Courts. In the Supreme Court, the position has been thus since the introduction of our Criminal Code in 1893. In the Magistrate's Court, the dispensation from formality in the description of the offence goes back at least to the Justices of the Peace Act of 1882, and possibly earlier. Section 17 of the 1957 Act was inserted, I believe, to maintain the rejection of formality in pleading, and to ensure that summary charges would continue to be dealt with by the Police in their preparation of the necessary documents, and by the Magistrates in their hearings in the Magistrate's Court, in a way which would not clog the machinery of justice but would allow charges to be brought and disposed of with reasonable expedition, though ensuring that the accused would be adequately aware of the matter charged against him. ...

But all this does not mean that when a person charged is left in doubt as to what really is the allegation against him, he is not entitled to further details. If he is embarrassed, he is entitled to an order for those necessary to inform him adequately; and I would expect that Magistrates will freely order such particulars. ...

[12] A comparison between those requirements and s 16(2)-(4) and ss 17 and 18 shows that the position in the Cook Islands, in large part, codifies the New Zealand interpretation of s 17.

Submissions

[13] In their submissions, both counsel made extensive reference to the facts underlying the informations but, given the possibility of trial, it would not be appropriate to recount all that material.

[14] It is sufficient to say that there is apparently an ongoing land dispute which underlies the informations. A house on the land was altered and renovated, partly, it seems, by the defendants and Mr George said the items that the defendants are said to have taken from the house were in fact supplied by them.

[15] There has also, it seems, been a dispute over who is entitled to the Occupation Right of the house or the site - the distinction seems critical to the defendants' case - but the informant has had the Occupation Right since December 2009.

[16] Mr Little's submissions also dealt extensively with the facts, particularly that the items taken from the house by the defendants were their property and what is comprised within an Occupation Right. His submissions dealt at some length with the well-settled distinction between what items in a house are chattels and what comprise part of the house and land because they are a fixture having been annexed.

[17] Mr George submitted the informations were deficient by not saying what parts of the house were alleged to have been wilfully damaged and the value of the damage caused; the value of the things alleged to have been stolen did not appear in the informations - something, he submitted, was an element of the charge; and that ownership of the items taken by the informant was not alleged.

[181 In that last submission, Mr George appears to have overlooked the recital in the theft informations that the informant was "the owner of the said items".

[19] Mr George submitted the deficiencies were of such an extent that the informations should be quashed rather than leave being given to amend the same. He also asserted that this was a civil rather than a criminal matter and said that, if the informations proceed, the defendants would raise the defence of having a claim of right or colour of right to the property.

[20] Mr Little, while accepting the wilful damage charges might, with advantage, state whether the damage exceeded or was less than $50, nonetheless submitted that the balance of the informations complied with what was legally required. He submitted that, while it may have been open to the informant to issue civil proceedings, it was similarly open to him to proceed by way of criminal informations.

Discussion and Decision

[21] First looking at the matter in an overall fashion, Wyatt and ss 16-18 of the Criminal Procedure Act 1980-81 show that all informations are required to state sufficient material to inform defendants fully of the substance of the offence charged in the words of the statute, including the time and place of the alleged offence and the person against whom it was committed. Defendants are, however, entitled to apply for further particulars under s 17 and, if application is made, courts can be expected to be reasonably liberal in requiring further particulars to be given.

[22] It is of importance, however, to bear in mind that once s 16(1)-(3) and s 17 have been complied with then, save for the power to amend or quash in s 18, the bar in s 16(4) comes into force.

[23] Looking first at the wilful damage informations in the light of the statutory requirements and Wyatt, the view to be taken is that further particulars should be given by way of amendment of the informations to state at least the broad details of the damage allegedly done to the informants house. Without that, the defendants in their preparation, and the Court in hearing the informations, might be hampered in preparing and adjudicating on the issues, particularly any defences raised and especially the forecast defence that the defendants have an interest in the property. The value of the property should also be included to satisfy s 321(4).

[24] Turning to the theft charges, one of the submissions raised orally by Mr George was that the charge may have been bad for duplicity^[4] because it included some five separate items, but he resiled from the logical consequence of that submission, namely that five informations be substituted for one.

[25] Beyond that, it appears the theft informations fully comply with the statutory requirements and with Wyatt. The particularity of the informations is reasonably capable of informing the defendants of the gist of the offence charged and, in what would appear to be a relatively straightforward matter such as this, the Court concludes no further particularisation is required.

[26] In the result, therefore, the informant is to have 14 days from the date of delivery of this judgment to amend the wilful damage charges as directed but, apart from that, the defendants' application to quash or strike out all the informations in this matter is dismissed.

[27] The Registrar is to set these informations down for hearing on the first practicable date. It is for the parties to decide whether they wish that hearing to continue to be in the High Court or whether they wish to have the informations remitted to the Justices of the Peace Court. If, within the period of 14 days previously allocated, they both indicate for the latter option, this judgment can be taken as a direction that remittance of the cases to the Justices of the Peace Court is to be effected.

HUGH WILLIAMS J.

____________________________

1. Police v Wyatt [1966] NZPoliceLawRp 10; [1966] NZLR 1118.
2. At 1130.
3. At 1133-1134. [See also Brookers Summary Proceedings looseleaf ed. para SA.17.04-07 pp 1-158-159.
4. Section 15 Criminal Procedure Act 1980-81.

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^[1] Police v Wyatt [1966] NZLR 1118.
^[2] At 1130
^[3] At 1133-1134. [See also Brookers Summary Proceedings looseleaf ed. para SA.17.04-07 pp 1-158-159
^[4] Section 15 Criminal Procedure Act 1980 - 81