Taufa v Police Department [2001] TOCA 9; CA 09 2000 (27 July 2001)

IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE
SUPREME COURT OF TONGA

APPEAL NO. 9/2000

BETWEEN:

PAMINI FINAU TAUFA
Appellant

AND:

POLICE DEPARTMENT
LOPAUKAMEA MAGISTRATE
Respondents

Coram:
Burchett J, Tompkins J, Spender J

Counsel: Mr Taufa, in person
Mr 'miniasi Kefu for the respondents

Date of hearing: 19 July 2001.
Date of judgment: 27 July 2001.

JUDGMENT OF THE COURT DELIVERED BY SPENDER J

[1] In the circumstances detailed below, the Court of Appeal granted Mr Taufa ('the appellant') an extension of time within which to appeal from the dismissal by Justice Finnigan on 4 February 1999 of the appeal against the appellant's conviction by Police Magistrate P. Tatafu in the Magistrates Court at Lopaukamea on 3 November 1998 on one count of theft. The appellant was sentenced to probation for six months.

The summons leading to that conviction was No.453/98, which translated, is in the following terms:

Because of the charge brought against you on what you did in 1997 at Kolofo'ou you did [commit] theft contrary to Sec 145(A) of the CDA in which you stole one (1) shotgun number 12 worth $400 but that is Moala Taufa's property. You are, therefore, summoned to appear before me at Lopaukamea Hall on the 20th day of October 1998 at the hour of 10:00am.

Sgd. P. TATAFU

Magistrate for the above mentioned district.

[2] At the outset of the hearing in the Magistrates Court, counsel for the appellant sought to have the summons struck out, on the ground that the summons was "incomplete", in that it omitted the date and month of the commission of the offence. It was said that the omission "makes it difficult for the accused to defend". It was submitted that the summons should be struck out on the further ground of non-compliance with s.13 and s.14 of the Magistrates Court Act. It was said that s13 directs the clerk of the Court to "write the summons", or "fill in the form 1 of the Court", and "the Police are not allowed to do it". The submission was that the clerk did not make out the summons, with the consequence that the summons was unlawful.

[3] These objections were overruled.

[4] Moala Taufa gave evidence that he had, in February 1997, delivered his number 12 firearm to the appellant, then armourer for the Police Department, for licence renewal. The appellant told Mr Taufa to leave the firearm with him to be repaired. Mr Taufa on several later occasions sought to collect his firearm from the appellant, but was not successful. Mr Viliami Lapale gave evidence that he took his number 16 firearm to the appellant, because it was broken. The appellant told him it couldn't be repaired, and gave him a number 12 firearm. That firearm was identified as the firearm of Mr Taufa.

[5] The magistrate rejected a defence submission that the respondent "had no criminal intention when he gave the gun of Moala Taufa to Viliami Lapale". The magistrate in convicting the appellant said to him: "Moala Taufa came many times but you lied to him. Why didn't you tell him that you've already given the arms to Viliami Lapale." While the respondent has on various occasions advanced a number of grounds for challenging this conviction, no challenge had ever been directed to the correctness of the findings by the magistrate about the elements of the charge of theft of Moala Taufa's firearm.

[6] The appellant appealed to the Supreme Court against his conviction. The appeal was heard by Justice Finnigan on 4 February 1999, when his Honour dismissed the appeal and gave oral reasons for that dismissal. Both the appellant and the respondent to that appeal were represented by counsel.

[7] On 15 March 1999, the appellant filed an application for judicial review of the magistrate's decision, to relying on O27 of the Supreme Court Rules. In that application, the appellant sought:

"Declaration that the summons issued against the Applicant are null and void.

Writ of Certiorari to quash the decision of the Learned Magistrate.

Declaration that the summons were unfair and uncertain.

Declaration that the accused arrest was unlawful.

Costs."

That application was given number C306/99.

[8] The file shows that on 1 December 1999, Justice Finnigan, after hearing Mr Fifita for the appellant and Mr Tapueluelu for the Crown, made the following orders in chambers:

1. Leave is granted.

2. Mr Fifita is directed to take the proper steps and have all the challenged proceedings removed into Supreme Court for hearing.
   
3. Direction hearing is fixed for Friday, 10 December, 1999 to set a hearing date and timetable.
   

[9] A Writ of Summons in that application was issued on behalf of the appellant on 3 January 2000. A statement of claim dated 8 December 1999 seeks:

"Declaration that (specified summonses) were unfair and uncertain. Writ of Certiorari to quash the decision the finding of the Learned Magistrate in appeal of Criminal Case No. 53/98 and his decision to entertain the proceedings.

Declaration that section 16 of the Magistrate Court Act is Unconstitutional.

Declaration that the Arrest (second arrest of the Plaintiff) was unlawful and in fact an unlawful imprisonment.

Damages for unlawful imprisonment $5000.00.

Writ of Prohibition against the Defendants for they acted ultra vires.

Declaration that the Magistrate clerks are unlawfully holding their office;

and costs."

[10] A Statement of Defence in that application refers to the Statement of Claim being filed on 18 December 1999.

[11] On 12 April 2000, Justice Finnigan heard counsel for the parties in proceedings C306/99, and gave judgment on 28 April 2000. That judgment commences

"The applicant has filed an application for leave to bring a claim against a Magistrate and against the Ministry of Police. Against those defendants he claims four separate prerogative remedies and damages. He claims also a declaration that s 16 of the Magistrates' Courts Act cap 11 is unconstitutional and a further declaration that the clerks in the Magistrates' Courts are not validly appointed. It must be said that these extensive claims are not well drafted."

His Honour referred to his dismissal of the appeal against conviction of the charge laid in the Summons 453/98, and to the fact that he gave reasons for that dismissal. Finnigan J said in his reasons published on 28 April 2000: "The record of my reasons is not on the file of that appeal, so I shall state them briefly here". His Honour then proceeded to give reasons rejecting the contentions that a precise date is a necessary precondition to a valid summons or a valid charge, and that the summons had been prepared by a police officer and not by clerk as set out in S 14 of Cap 11. His Honour then said:

"From these rulings there was no appeal. Instead, the present application was filed for a variety of administrative remedies. Counsel has placed some fine distinctions before me to justify re-litigating the subject matter of the appeal and for avoiding the effect of that appeal on the other similar summonses.

I have not found anything new in the argument which would justify accepting counsel's invitation to rehear the matters that I have already decided. Those are the decisions of the Court on those two issues. I could only re-state them, in the present case as the decisions of the Court and I must refuse leave for the application, insofar as it relates to the two issues I decided in the appeal."

[12] His Honour then addressed the other issues, rejected the appellant's counsel's submissions, and concluded that "leave therefore must be refused for the other aspects of the application as well."

[13] A notice of appeal from the orders of Finnigan J of 28 April 2000 dated 8 June 2000 was filed. On 15 August 2000, the Chief Justice ordered:

"1. Appellant to decide whether he is appealing the dismissal of his appeal from the Magistrate or the refusal of leave to seek judicial review or both.

2. If the former he must file clear grounds. If latter, he must seek leave and file clear grounds with it.
   

3. All to be filed within 2 months. I shall then fix another chamber hearing."

[14] On 13th October 2000, the appellant filed a document advising "that he is appealing both the 1) Dismissal of his appeal from the Magistrate and the 2) Refusal of leave to seek judicial review. Further grounds of appeal for the former is filed herewith and also appeal on refusal of leave and its ground."

Two documents setting out grounds of appeal, and grounds on the refusal of leave to seek judicial review^-, each dated 13^th October 2000 were filed, as referred to by the appellant in that advice.

[15] On 1 June 2001, the Chief Justice in Chambers refused leave to appeal against Finnigan J's refusal of leave to apply for judicial review. The Chief Justice noted in the Chambers Minute Book that he told the appellant:

"You have a right to appeal against his finding on a matter of law. I shall advise Crown Law the appeal is to proceed and arrange for the magistrates' court record to be typed and copied and both of Finnigan J's judgments."

[16] Finnigan J appears to have granted leave to apply for judicial review on 1 December 1999, and refused leave on 28 April 2000. Leave to appeal from that refusal was refused by the Chief Justice on 1 June 2001. Having regard to the history of the matter, the Court granted an extension of time within which to appeal the decision of Finnigan J of 4 February 1999 refusing the appellant's appeal against conviction. The court permitted him to argue all of the grounds of challenge he had sought to rely on in all of the various proceedings.

[17] This course is preferable, as a matter of principle. Judicial Review is seldom appropriate as a mechanism to challenge findings and conclusions in criminal proceedings, and even more so when the challenge is collateral to proceedings by way of appeal. Sir John Donaldson M.R. said in R v Epping and Harlow General Commissioners ex p. Goldstraw [1983] 3 All E.R. 257 at 262:

"It is a cardinal principle that, save in the most exceptional circumstances [the jurisdiction to grant judicial review] will not be exercised where other remedies were available and have not been used."

[18] Further, the learned authors of the 1997 White Practice observe at par 1 - 14/ 13 in the annotations to O53, r. 14, at page 856:

"Where there is an avenue of appeal from an inferior court or tribunal to the Court of Appeal ... or to the High Court ... and the applicant has already followed that avenue, but his appeal has been dismissed or he has been refused leave to appeal, he will not be permitted to re-litigate the matter by way of an application for judicial review because that would be an abuse of the process of the court. Aliter, if the point is one which he could not (rather than merely did not) take on the appeal."

[19] We turn now to consider the appellant's grounds of appeal, as set out in his document of 13 October 2000, and the further grounds referred to in a document dated 17 July 2001.

[20] The appellant has repeatedly argued that the summons 453/98, (and other summonses that have been addressed to him) are "invalid and/or void for uncertainty, as there were no specific dates and month on them". It was said that "the summonses were unfair as they leave no opportunity for defence of alibi for the appellant."

Section 13 of the Magistrates Court Act, Cap 11, provides:

"13. Every person desiring to institute a prosecution in a Magistrate's Court for any offence which such Court has jurisdiction to try shall apply in person to the clerk for a summons and shall at the time of such application state clearly the nature of the offence complained of and the time and place at which it was committed."

Section 14 of that Act relevantly provides:

"14. Whenever upon any application to the clerk for a summons it appears that any person has committed or is reasonably suspected to have committed within the district of the magistrate any offence triable by such magistrate, the clerk shall make out a summons in Form 1 contained in the Schedule hereto. Such summons shall state concisely the offences with which the defendant is charged and the time and place at which it was committed and shall require the defendant to appear at a specified time before the Magistrate's Court to answer the charge in the summons and to be dealt with according to law..."

[21] It is thus a requirement that the time of the commission of the offence be stated. It would be a sufficient compliance with that requirement, if the Summons stated that the offence was committed in 1997, provided that one specific offence was alleged, and no prejudice was caused to the appellant. If time is of the essence of the offence, or if the conduct of the trial (including any particularisation of the time of the offence) makes it plain that the offence is alleged to have been committed at that time and no other, then the time of the offence becomes a material element of the offence. Ordinarily, however, neither the time nor the place of the commission of the offence is material to the charge.

[22] Here, there can be no doubt that one specific offence was being charged, that being the offence which arose out of the appellant's dealings with Mr Taufa's firearm. No further particularisation of the time of the offence was sought by counsel for the appellant before the magistrate, and no possible prejudice or embarrassment to the appellant arose from the allegation that the time of the theft of Mr Taufa's firearm was in 1997.

[23] The materiality of an averment as to time and place is dealt with generally at Para 1-136 to Para 1-141, in Volume 1 of the 1993 edition of Archbold.

[24] The next ground of appeal alleges that "Police Officers are not authorised by any statute to make out the Summonses in the Magistrates Court." Section 14 of the Magistrates Courts Act, set out above, provides that "the clerk shall make out a summons in Form 1 contained in the Schedule ..."

[25] Evidence was given by Fa'one Halapua, Assistant Chief Inspector of Police of the Tonga Police Force as to the usual procedure used when a summons is obtained. That procedure was followed in respect of the summonses issued to the appellant. The Police Prosecutor fills out in duplicate the summons form in the Magistrates Court Summons Book, by filling in the Magistrates Court district, the name of the accused, his residence, the date of the alleged offence, the place where the alleged offence took place, the alleged offence charged and its particulars. He also fills out which Magistrate's Court the accused must appear before, and at what time and date. Each summons and its duplicate in the book has a printed number on it, the numbers in the Summons Book being sequential. Assistant Chief Inspector Halapua swears: "The usual procedure is that the Police Prosecutor gives the summons to the clerk to pass on to the Magistrate to sign and stamp with the Magistrates' Court Seal."

[26] S 16 of the Magistrates Court Act provides:

"Every summons before being issued for service shall be read by the magistrate who shall affix his signature and seal thereto."

[27] While it is true that the clerk does not insert the details in the Summons form when the usual procedure is followed, the Summons book is under his control and is his responsibility. In our view, when the clerk takes the filled-in Summons form to the Magistrate to sign, he or she is adopting as his or her own form the form which has been "written up" by another. That clerk provides the Summons book to the Police Prosecutor so that the details of the Summons can be filled in in order to be so adopted by the clerk.

[28] S14 does not, in our opinion, require that the clerk physically write out the summons in Form 1, and the adoption by the clerk in presenting the summons to the Magistrate is sufficient compliance with the requirement that "the clerk shall make out the summons in Form 1 contained in the Schedule."

[29] The appellant next complains that "the witnesses for the prosecution were not put under oath as clearly stated in the record of the proceedings from the Magistrates Court." If the record is silent as to whether the witnesses were sworn, then affidavit evidence of what in fact occurred should be supplied. In this case, there is no such evidence to suggest that in fact the witnesses were not sworn. In the absence of such evidence, in our opinion it is not to be supposed, or assumed, that the requirements of s71 of the Magistrates Court Act have not been complied with. We respectfully disagree with observations to the contrary in Fakatele Taufa v 'One Ma'u, 349/99 a judgment of the Supreme Court of Tonga of 5 September 1994, and in R v Kwatepena 29/83, a judgment of the High Court of the Solomon Islands of 28 April 1983.

[30] In this case however, both the record of the Magistrates Court in Tongan, and its English translation clearly show that each witness, including the appellant, was sworn before giving evidence.

[31] The final matter of complaint by the appellant is that Finnigan J "gave no reasons why the appeal was dismissed at the time of judgment", and "at the hearing of the judicial review Case No C 306/99 the learned judge cannot give reasons for another case. He can only give reasons for the case at hand."

[32] The position is that Finnigan J on 4 February 1999 gave oral reasons for dismissing the appellant's appeal. Whether the statement by Finnigan J on 28 April 2000 of what those reasons were is an accurate statement is not a relevant matter on this appeal. This appeal is concerned with whether any of the grounds advanced by the appellant for setting aside his conviction for theft, being grounds argued before Finnigan J or otherwise, has been made out.

[33] For the reasons given above, none of those grounds has been made out. The appeal from the dismissal by Finnigan J of the appellant's appeal against his conviction is dismissed, with costs.

Burchett J
Tompkins J
Spender J