IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CrA 06/01

Police

v

Tapueluelu

Ford J 
7 May 2001; 18 May 2001 

Criminal procedure – whether defendant entitled to jury trial

On 1 February 2001 a summons was issued against the defendant, Mateni Tapueluelu, charging him with criminal defamation contrary to section 5 of the Defamation Act (Cap 33) and requiring him to appear before the Magistrates' Court. It was alleged in the summons that on or about 21 November 2000, as assistant editor of the "Taimi 'O Tonga" newspaper, he published a letter in the newspaper defaming the Hon Minister of Police, William Clive Edwards. When the defendant appeared before the Learned Magistrate on 27 February 2001 his counsel made a submission that his client was entitled under clause 99 of the Constitution to be tried by a jury and he made an application to that effect. The police prosecutor opposed the application. He argued that a recent amendment to section 8 of the Defamation Act (No 27 of 2000) meant that the case could only be dealt with in the Magistrates' Court and that the defendant was not, therefore, entitled to a jury trial in the Supreme Court. The Learned Magistrate made a Ruling that the defendant was indeed entitled to a jury trial in the Supreme Court and he proposed to hold a preliminary inquiry to ascertain whether the Crown could make out a sufficient case to put the defendant on trial in the Supreme Court. At that point the Crown applied for, and was granted, an adjournment in which to appeal the Learned Magistrate's Ruling.

Held: 

1. The leading authorities made it clear that whether or not a case was indictable depended on the nature and gravity of the offence committed, irrespective of the procedural manner in which it might subsequently be dealt with by the Crown. 

2. Whilst it was true that "on the face of it" a section 5 offence was a hybrid offence which could be dealt with either summarily or on indictment, in reality that option was never available because clause 99 of the Constitution provided that any such offence was, in fact, an indictable offence triable in the Supreme Court and clause 11 enshrined that right. Once that proposition of principle was accepted then everything else fell into place and the jury trial guarantee was safeguarded. 

3. The Learned Magistrate was correct in his Ruling in that clause 99 guarantees to a defendant charged with any offence carrying a punishment exceeding two years imprisonment or a fine exceeding $500 the right to trial by jury. 

4. The appeal was dismissed. 

Cases considered: 
Pedras v R (Court of Appeal, CA 10/00, 21 July 2000) 
R v Guildhall Justices [1976] 1 All ER 767 

Statutes considered: 
Constitution of Tonga (Cap 2) 
Defamation Act (Cap 33) 
Defamation Amendment Act (No 27 of 2000) 

Counsel for appellant: Mr Kefu 
Counsel for respondent: Mr Tu'utafaiva 

Judgment

When a person is charged with a criminal offence, it is important for the proper administration of justice that the procedures to be followed should be clearly understood. Unfortunately, that does not appear to be the situation in the Kingdom when a person is charged with criminal defamation. The Court was told that this was one of several cases awaiting clarification of the law. 

On 1 February 2001 a summons was issued against the defendant, Mateni Tapueluelu, charging him with criminal defamation contrary to section 5 of the Defamation Act (Cap 33) and requiring him to appear before the Magistrates' Court. It is alleged in the summons that on or about 21 November 2000, as assistant editor of the "Taimi 'O Tonga" newspaper, he published a letter in the newspaper defaming the Hon. Minister of Police, William Clive Edwards. 

When the defendant appeared before the Learned Magistrate on 27 February 2001 his counsel made a submission that his client was entitled under clause 99 of the Constitution to be tried by a jury and he made an application to that effect. The police prosecutor opposed the application. He argued that a recent amendment passed last year to section 8 of the Defamation Act (No 27 of 2000) meant that the case could only be dealt with in the Magistrates' Court and that the defendant was not, therefore, entitled to a jury trial in the Supreme Court. 

The Learned Magistrate made a Ruling that the defendant was indeed entitled to a jury trial in the Supreme Court and he proposed to hold a preliminary inquiry to ascertain whether the Crown could make out a sufficient case to put the defendant on trial in the Supreme Court. At that point the Crown applied for, and was granted, an adjournment in which to appeal the Learned Magistrate's Ruling. 

In this Court, Crown counsel submitted that there should be no preliminary inquiry but the matter should be dealt with solely in the Magistrates' Court. He argued that an accused was only entitled to a jury trial if a case was referred to the Supreme Court and the Magistrate was not bound to refer a case to the Supreme Court unless it fell outside the jurisdiction of the Magistrates' Court. 

Counsel for the Crown then went on to submit that while there appeared to be an overlap in jurisdiction in relation to a charge under section 5 of the Defamation Act in that an offence under that section can be tried in either the Magistrates' Court or the Supreme Court at the Crown's election, last year's amendment to section 8 of the Defamation Act provided that a charge under section 5 could now only be heard in the Magistrates' Court. Relying on that amendment, Crown counsel argued that the Learned Magistrate was wrong in proposing to conduct a preliminary inquiry with a view to having the case referred to the Supreme Court for trial. 

For his part, counsel for the defendant agreed that, on the face of it, there was an overlap and that a charge of criminal defamation under section 5 of the Act came within the jurisdiction of both the Magistrates' Court and the Supreme Court, but he argued that in such a situation the case could be tried summarily in the Magistrates' Court only with the consent of the defendant. If the defendant did not consent to the charge being tried summarily then the Crown had no option in the matter - the case had to be tried on indictment in the Supreme Court which meant that the defendant had the right to elect trial by jury. Going on from there, counsel submitted that the amendment last year to section 8 of the Defamation Act, which the Crown submitted took away the jurisdiction of the Supreme Court to hear a charge under section 5, was unconstitutional and therefore void because it removed the right of an accused person, guaranteed under clauses 11 and 99 of the Constitution, to have a charge under section 5 of the Defamation Act tried by a jury. 

Section 5 of the Defamation Act reads as follows: 

"5. Every person who shall defame the character of any person not occupying any of the positions enumerated in section 3 hereof (a reference to His Majesty the King and Her Majesty the Queen) shall on conviction thereof be liable to a fine not exceeding $1000 and in default of payment to imprisonment for any term not exceeding one-year." 

It has long been recognised that criminal offences fall into three categories of offence, namely, those triable on indictment only, those triable only summarily in the Magistrates' Court and the so-called hybrid offences which can be tried either way. Prior to last year's amendment to section 8 of the Defamation Act which came into force on 7 November 2000, a charge under section 5 of the Defamation Act was a hybrid offence which, on the face of it, could have been tried either summarily or on indictment. The reason for this overlap of jurisdiction relates back to the penalty that can be imposed for criminal defamation under section 5 of the Act, namely a fine of up to $1000. 

The Magistrates' Court has jurisdiction to hear criminal cases where the punishment does not exceed a fine of $1000 or three year's imprisonment. The Supreme Court has jurisdiction to hear all criminal cases where the maximum penalty exceeds $500 or two year's imprisonment. In other words, the $1000 maximum fine that could be imposed for a section 5 offence appeared to mean that the case could be dealt with either summarily in the Magistrates' Court or by jury on indictment in the Supreme Court. Last year's amendment to section 8 of the Act, however, purported to take away the jurisdiction of the Supreme Court in relation to criminal defamation charges under section 5. The Amendment provides: 

"8(2) All criminal proceedings for violation of sections 5 and 6 of this Act shall be by summons and determined in the magistrate's (sic) court". 

The question that now arises in the context of the present appeal is whether last year's amendment to s 8 of the Act is consistent with clauses 11 and 99 of the Constitution. As the Court of Appeal observed in the recent unreported decision of Pedras v R (Court of Appeal, CA 10/00, 21 July 2000): 

"The right to elect trial by jury is set out in clauses 11 and 99 of the Constitution. 

Clause 11 provides that no person shall be tried for an indictable offence unless he has first received an indictment and continues: 

"But whoever shall be indicted for any offence if he shall so elect shall be tried by jury …" 

Clause 99 states: 

"Any person committed for trial before the Supreme Court … shall if he shall so elect be tried by jury …" 

The full relevant passage from clause 99 of the Constitution reads as follows: 

"99. Any person committed for trial before the Supreme Court on a charge of having committed any criminal offence punishable by a term of imprisonment exceeding two years or a fine of five hundred pa'anga or both such penalties shall if he shall so elect be tried by a jury … and the law of trial by jury shall never be repealed." 

The Crown submits that as clause 99 has application only where an accused person is committed for trial in the Supreme Court and as section 8(2) of the Defamation Act now precludes an offence under section 5 from ever being referred to the Supreme Court, that is really the end of the matter - a person facing a charge of criminal defamation can never have an entitlement to a jury trial. 

Taken to its logical conclusion, however, the Crown's approach would mean that it would be possible for Parliament to pass a law increasing the jurisdiction of the Magistrates' Court and then decreeing that every criminal offence, apart from murder for example, shall be tried summarily and such legislation would not infringe against clause 99 of the Constitution because clause 99, so the argument would run, guarantees a jury trial only where a case was referred to the Supreme Court in the first place. The objective could even be achieved in a more subtle way by taking criminal defamation cases out of the loop one year, assault cases another year, theft cases after that and so on. Such an outcome would, of course, be completely inconsistent with the behest in the final part of clause 99 that, "the law of trial by jury shall never be repealed" and the even stronger direction in clause 11 of the Constitution that, "But whoever shall be indicted for any offence if he shall so elect shall be tried by jury and this law shall never be repealed." 

It seems to me that clause 99, in guaranteeing the right to a jury trial in the circumstances prescribed, also sets in place a process for giving effect to the guarantee. The process is that the clause makes every offence punishable by a term of imprisonment exceeding two years or a fine exceeding five hundred pa'anga ($500) an indictable offence. Although the clause does not spell that proposition out in so many words, it does state that a person charged with having committed an offence subject to those penalties shall upon committal for trial before the Supreme Court, if he so elects, be entitled to trial by jury. A person can be committed for trial in the Supreme Court only on an indictable offence and what the clause is saying therefore is that any offence which carries a punishment of the type defined in the clause is an indictable offence. 

The Crown's argument is that an offence does not become an indictable offence until the point in time when the Crown elects to proceed by way of indictment and if that point is never reached because the Crown (dealing with a hybrid offence situation) elects to proceed summarily then clause 99 will never have any application. In the same way, the Crown says that if legislation prescribes that a certain type of offence is to be dealt with summarily (as in the case of section 8(2) of the Defamation Act) then it can never be referred to the Supreme Court for trial and so, again, clause 99 would have no application. 

In my opinion, that approach is wrong. Not only would it allow Parliament to circumvent the provisions of clause 99 of the Constitution altogether by passing amending legislation along the lines that I have hypothesised, it also pre-supposes that whether or not an offence is indictable is determined by whether the Crown elects to proceed on indictment whereas the leading authorities make it clear that whether or not a case is indictable depends on the nature and gravity of the offence committed, irrespective of the procedural manner in which it might subsequently be dealt with by the Crown - R v Guildhall Justices [1976] 1 All ER 767 at 769. If, at the time an offence was committed, it was capable of being tried on indictment then it is classified as an indictable offence even though it may have subsequently been dealt with summarily. 

Whilst the analysis in the Guildhall Justices case would be of relevance when dealing with the so-called hybrid type of offence, the effect of clause 99 of the Constitution is to remove from the category of hybrid offence any offence punishable by a term of imprisonment exceeding two years or a fine of $500. That is why, earlier in this Judgment, when referring to the effect of section 5 of the Defamation Act, I used the expression "on the face of it". Whilst it is true that "on the face of it" a section 5 offence is a hybrid offence which can be dealt with either summarily or on indictment, in reality that option is never available because clause 99 of the Constitution provides that any such offence is, in fact, an indictable offence triable in the Supreme Court and clause 11 enshrines that right. Once that proposition of principle is accepted then everything else falls into place and the jury trial guarantee is safeguarded. 

I find that the Learned Magistrate was correct in his Ruling in that clause 99 guarantees to a defendant charged with any offence carrying a punishment exceeding two years imprisonment or a fine exceeding $500 the right to trial by jury. Section 35 of the Magistrates' Courts Act provides that in certain circumstances an indictable offence may end up being dealt with summarily in the Magistrates' Court but that situation could only ever come about with the defendant's consent. 

In the present case, the defendant does not consent to the case being dealt with summarily. He is entitled under clause 99 of the Constitution to have the case tried by a jury (assuming that upon preliminary inquiry the Magistrate finds that a case to answer has been made out) and section 8(2) of the Defamation Act must be read subject to the important constitutional safeguards contained in clause 99. 

The appeal is, therefore, dismissed. 

The Court was advised by counsel for the defendant, without any demur by counsel for the Crown, that there is a similar case to the present appeal awaiting a fixture where the only relevant factual difference is that the alleged defamation of the Hon Minister of Police occurred prior to the passing last year of the amendment to section 8 of the Defamation Act. 

I can indicate that it follows from what I have said above, if such advice regarding the other case is correct, then my analysis of the legal situation would apply a fortiori to that case also and the defendant will be entitled to be tried by a jury in the Supreme Court in the event, of course, that the Magistrate is satisfied that the Crown has made out a case to answer.