Pohiva v Police [2009] TOLawRp 3; [2009] Tonga LR 41 (13 February 2009)

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

AM 22 and 23/2008

Pohiva anor

v

Police

Shuster J
23 January 2009; 13 February 2009

Appeal from Magistrates court – against fine imposed – must be means enquiry before fine imposed – fine substituted with lesser one – conviction confirmed

This was an appeal from the Magistrates Court, Fasi and concerned a decision in two criminal defamation cases. The two cases were tried together in the lower court and on the 9th September 2008 the presiding Magistrate convicted the Appellants and sentenced each Appellant to pay a fine of $1,000 within two months or to serve six months imprisonment in default of payment. Both Appellants appealed on the grounds that the Magistrate's sentence was at the top end of the scale and that the Magistrate had already made up his mind and was biased when he heard the case.

Held:

1. The Court found that there was no hostility or pre-determination of the case against the two appellants by the Magistrate.

2. There must a means enquiry conducted before a Magistrate imposed a fine. Fines must be based upon the ability to pay. It was wrong in principle for the Magistrate to impose the maximum sentence upon conviction.

3. The Court set aside the sentence of $l,000 against each of the defendants and substituted a sentence of a fine of $500 to be paid within three months or in default of payment four months imprisonment.

4. To that extent the appeal against sentence succeeded. The Magistrate's conviction however was confirmed.

Statute considered:

Magistrates' Courts Act (Cap 11)

Counsel for the appellants : Mr Tu'utafaiva 30
Counsel for the respondent : Mr Little

Judgment

This is an appeal from the Magistrates Court, Fasi and concerns a decision in two criminal cases: - 816 & 851- 2007. These two cases were tried together in the lower court and on the 9th September 2008 the presiding Magistrate convicted the Appellants and sentenced each Appellant to pay a fine of $1,000 within two months- or to serve six months imprisonment in default of payment. The offence tried was a case of Defamation. The Defamation charge had been remitted from the Nuku'alofa Supreme Court; back to the Magistrates court for trial in the Magistrates Court, by Ford CJ in 2008. After trial, subsequent conviction and sentence, the Appellant's Notices of Appeal, were filed in the Supreme Court on the 17th September 2008.

The initial hearing of the Appeal; had been set by the Supreme Court for hearing on 21st November 2008 but, on that date the case was adjourned to obtain a "full transcript" of the lower court records; at the request of the respondent's counsel. The substantive hearing of the Appeal took place on Friday 23 January 2009. On that date Mr. Tu'utafaiva appeared and indicated he represented both Appellants at the Appeal. Mr Tupou had been represented during the trial in the lower court, by Mr Clive Edwards Mr Pohiva had been unrepresented.

There are Ten Grounds of Appeal

The Grounds of Appeal are as Follows

The First and Second appellants; appeal to the Supreme Court for the Order made in the Fasi Magistrates Court on 9th September 2008, to be set aside-on the following grounds.

1. The Appellants believe that the decision of the Magistrates Court fell short in that it did not allow them (the appellants) sufficient time to call witnesses to testify during the course of this case.

2. The Appellants had thought this trial was a preliminary inquiry only, and only took the opportunity to examine the case of the plaintiff and consequently were unprepared to arrange for witnesses for the trial.

3. The Appellants believed that if their intended proposition for a No Case To Answer would be rejected, at least they may have had the chance to study the case of the Plaintiff and will alternatively allow ample time to arrange witnesses to the stand when the accused will chose how their trail will be heard.

4. During the course of the trial the Appellants felt that there was already a sense of bigotry in the Magistrate.

5. This was indicative in the phrase of words of the Magistrate just, after the plaintiff had finished calling his witnesses (and the Appellants had not yet responded to the charges) which were the following words or words to the effect ... What then will you do next. You can speak from where you are, or make statements under oath from the stand or call witnesses.

6. Whilst under pressure with the above propositions from the Magistrate; the magistrate went on further and said the following words or words to the effect...This case trial is a petty and simple case, and the court is already prepared with the verdict.

7. The Appellants were astonished as they had thought this trial was only a Preliminary Inquiry, and was unprepared to call witnesses as they needed good time to identify the whereabouts of their key witness to ask him to come to provide evidence on oath.

8. Consequently, the Appellants especially the first Appellant unprepared took the bitter opinion of making their (his) closing submission.

9. During the course of the trial, the Appellants felt that the Magistrate repeated unfavourable remarks and high tone of his words, to the Appellants, were too much and over, reflecting prejudice.

10. Although the Prosecutor had said in court that the Accused had no prior criminal records the Magistrate charged (my emphasis- imposed) the full amount of the .penalty

The Appellants Request

1. That the ruling of the Magistrate be set aside.

2. Should the Court see fit that the case be reopened in the Higher. Court to allow sufficient time for the Appellants to call their key witness to provide evidence.

3. That the identity of the Appellants key witness be kept anonymous-until he appears in court.

4. Any other orders the court deems necessary.

Conviction and Sentence

Both Appellants were convicted by the Magistrate after trial on 9th September 2008, both Appellants were ordered to pay a fine of $1,000 (the maximum fine) within two months- or serve six months imprisonment; in default of payment. Both Appellants- subsequently argue that the Magistrate's sentence - a fine of $1,000 PA is (and was) at the top end of the scale. They argue that level of fine is unfair. The argument (point) on the imposition of the maximum fine for this offence is contained in ground 10 of the Appellant's Notice of Appeal.

Supreme Court Hearing

At the hearing of the Appeal on the 23rd January 2009, counsel for the Appellants Mr Tu'utafaiva conceded the Appellants were abandoning grounds 2 and 3, and this point was duly noted by the court.

Analysis of Documentation
The Supreme Court has access to a certified court record of the Magistrates' Court at Fasi, for the dates in question, covering criminal case numbers 816-07 and; 851-08; together with an Affidavit from the presiding Magistrate Latu MOHENOA which was dated 19th January 2009, and two other affidavits which I will address in due course.

In his Affidavit the Magistrate deposed he was the presiding Magistrate who determined a single charge of defamation against the Appellants, Falisi Toupou and Siosiua Po'oi Pohiva in the lower court in May concluding the trial in September 2008.

The Magistrate deposed - oral evidence was given by Assistant Police Commissioner Unga Fa'aoa on the 12th May 2008 and following that hearing in May, the Magistrate deposed the defamation case was then adjourned to 2nd September 2008 for the continuance of the joint trial.

The Issue of a Substantial Delay

As an Appellant Judge, I am obliged to consider the issue of delay. In effect I have to question why there was such a long adjournment of this case from the 12th May to the 2nd September 2008. Why would the Magistrate adjourn a part heard trial for 113 days, especially if he had said and if he had accepted this was a simple case?

Unfortunately there is no reason recorded, either in the lower courts record, or any reason provided by the Magistrate in his affidavit dated 19th January 2009 explaining a 113 day adjournment, or, the reason for the delay, in the resumption of this trial, was it due to court commitments, lack of witness, illness or what.

Surely the right to a fair trial includes and encompasses the right to a speedy trial; and to a trial and a verdict within a reasonable period.

I have been left asking myself the question, why on earth did this trial take 120 days? I note this delay has not been listed as a ground of appeal, but in my view the issue of such a long delay in the lower court- in a part heard case, certainly needs addressing- and of necessity- it needs some comment.

The Appellants' Submission

In his address to the court Mr Tu'utafaiva indicated the case should be remitted back for trial before a different Magistrate for the reasons enunciated in the grounds of Appeal- except for grounds 2/3 which were abandoned on the 23rd January 2009. Counsel for the Appellants stated that the Respondents would not suffer any real prejudice with a retrial in the lower court.

Counsel also indicated the Appellants felt strongly that the fine imposed by the Magistrate in September 2008 was at the top end of the scale and that the Magistrate had already made up his mind, and that he was biased when he heard the case.

The Evidence in the Lower Court

The Magistrate's Affidavit and the lower court record, both indicate the defamation trial resumed on 2nd September and the prosecution closed its case, that same day.

The Magistrates court record, there appears to be some general confusion at page 9 over the submissions made at the close of the prosecution's case.

At page 9 the court record states "Clive will you take an oath for your evidence, or without the oath, or just make a speech. Does that comment mean the Appellant or Clive Edwards himself?"

Clive replies, if the Prosecutor's party is closing, I will continue.

To my mind it is quite clear that the prosecution had closed its case. The record is unclear as to the submission indicated and made by Clive Edwards on page 9 of the court record- on a point.

For example- was, in the Appellants (or in counsels) view – THERE NO CASE TO ANSWER, based upon the totality of the evidence heard, or in witnesses credibility being largely undermined- as in the case of R v GALBRAITH, or was this just a case of the Magistrate explaining in inadequate words to the Appellants, their options at the close of the prosecution case- coupled with some inadequate court recording at the material time?

To my mind it appears quite clear- that Mr Edwards was making some form of submission, albeit that might have been somewhat difficult for him, because he had not been present in court on the 2nd September 2008, however the court record indicates counsel Mr Edwards had been present at the hearing of the evidence on the day of the 12th May 2008.

Because the court record is unclear on certain points, I will have to go on to rely upon further evidence, that is to say to look at the Affidavits provided for the substantive appeal, from the Magistrate, Mr LITTLE and Mrs KULI.

Closing of the Prosecutions Case 02-09-2008

Under the law-

At the close of the prosecution's case: - each of these two Appellants would have clear; defined and legally decided options- as a matter of course, The options are set out as follows:-

• First- they can either singly or; each Appellant could submit that there was NO CASE TO ANSWER. Following the leading case of (Galbraith)

• If the Magistrate finds there is no case to answer the accused is (or they are) discharged- and that would generally be an end of the matter, but the Magistrates decision may be subject to a review by the Attorney General more particularly so if the case was a PI.

• If the Magistrate finds there is a case to answer then the Magistrate says so and in open court, but the Magistrate does not have to give ANY reasons for finding that there is a case to answer.

• The second option- if the Magistrate finds and says there is a case to answer; then each of the Appellant has the right to go into the witness box, and give evidence- usually in the order shown in the indictment or charge.

• If he does he can be cross examined and also can be asked questions from the bench. His evidence must be given on oath or by affirmation- and from the witness box.

• The third option is they can each remain silent because the prosecution bring the case and they must prove their case beyond reasonable doubt.

• The fourth option is he / or they can make a statement from the well of the court and if they do so, they cannot be cross examined or asked questions by the court on what they say from the well of the court- but the statement will be recorded and considered by the court.

• The fifth option is they can each call witnesses in their defence, but, it is important to note that the court does not have to adjourn for them to bring their witness, however- generally speaking a court will adjourn, in the interest of fairness; if necessary the court will issue witness subpoenas if there is a sufficient reason to do so.

These are fundamental principles; which have been enshrined in the law, in order to ensure each and every person, receives a fair trial. Though it might be argued that a Magistrate in Tonga has no duty to advise anyone of his options, under the Tonga Magistrates Courts Act, the right of any accused person to a fair trial- provides a moral duty for any Judge or a Magistrate to assist each accused in his election, at the close of the prosecution's case-by explaining these options in a clear and simple manner. In my view it is particularly important to do this, if the defendant is unrepresented, or, perhaps he /she is a youth or a young person, in order to ensure a fair trial.

(This is a fundamental right under International Human Rights Legislation which Judges Magistrates are obliged to note and act upon- even in the absence of domestic enacting Human Rights Legislation.)

The Magistrate's Affidavit

The Magistrate in his Affidavit dated 19th January 2009 deposes that...after the prosecution closed its case on 2 September 2008, he says- "He said quite definitely--I did say to both defendants in Tongan words to the effect.

• "What do you wish to do; you can make a statement from where you are, give evidence under oath, or call witnesses."

• The Magistrate deposes that in response to what he said on the 2nd September 2008 to the appellants, he adjourned the case to allow time for the Appellants to prepare and present their case and the Magistrate adjourned the case for one week to the 9th September 2008.

In my view this one week adjournment which was granted was fair and the time frame of one week was sufficient time for anyone, to decide on his / her strategy- that is to say to give evidence on oath, or to make a statement from the well of the court, or to remain silent or to call witnesses and either bring them to court voluntarily, or to apply to the court for a witness subpoena-in the case of any reluctant witness. I accept this was done by the Magistrate.

Further Analysis

In this Appeal I have had sight of two further Affidavits from Mr. Peter LITTLE and the Court Recorder, Ms KULI who deposes she was a very experienced Court Recorder and I accept she was having worked for many Supreme Court Judges. Mr. Little also deposes that the Magistrate told the defendant Mr. POHVIA his options at the close of the prosecution's case and in effect Mr Little's evidence confirms the Magistrate's Affidavit.

Mr. Little also deposes the Appellant Mr. Pohiva requested an adjournment to consider his options, and that the Appellant Tupou also requested an adjournment so that his lawyer Mr Edwards would be available on the next date. That adjournment was granted; and by anyone's standard that one week adjournment is and was sufficient time for any person to have fully considered all of his options more particularly educated persons like these appellants who work in the news industry.

I fully accept the truthfulness of the Magistrate's Affidavit, comparing the evidence contained in the affidavit of as I have said, a very experienced Court interpreter Ms Loupua KULI.
I am further convinced by my believing and accepting the truthfulness of these affidavits, that there was no hostility or pre determination of the case against either of these two Appellants by the Magistrate.

In my opinion the court record and the various Affidavits indicate quite clearly both of these Appellants were informed of their rights under the law by the Magistrate. That is to say they were both informed of their right to give evidence on oath, to remain silent or make a statement from the well of the court.

The court record however, is silent on the calling of witnesses- but I can and then must go on- in order to consider the Appellants own Notice of Appeal, which at paragraph 5 at line 7 indicates- the Magistrate used Tongan words to the effect of "You can speak from where you are, or make statements under oath from the stand, or call witnesses."

So with the Tongan statement, or translation of words in the Notice of Appeal. in mind, I am fully satisfied that both of the Appellants knew their rights at the conclusion of the trial, and that their rights included the calling any witness(s) in their defence and I have to conclude they chose not to.

I also take the view from studying the court record and the three Affidavits provided to each of the parties, they indicate Clive Edwards was not making a submission of; "NO CASE TO ANSWER".

Ruling and Order

For all the above reasons I have come to the conclusion that the appeals ought to be dismissed. I also conclude I have to reject the Appellants assertion that no prejudice would come from my ordering a retrial, because I accept that the main witness is now living and is working studying overseas and the cost of transporting him back to give evidence again would be far too high and would be a waste of taxpayers' money.

Looking at all the evidence reading the Affidavits and hearing the oral submissions on the 23rd January 2009, I am satisfied the trial in the lower court was fair, I conclude the Magistrate considered all the evidence- and he reached a sound conclusion.

However, I would wish to comment this was an apparently unnecessarily protracted trial, but the issue of the unexplained delay was not contained in any specific ground of appeal by either of the two appellants.

The Sentence

However insofar as the sentence is concerned; that is to say the imposition of a $1,000 PA fine against both Appellants, it is evident to me that there was no enquiry into the means of either of the Appellants in this case.

I say yet again, there must a means enquiry conducted before a Magistrate imposes a fine. Fines must be based upon the ability to pay. In my view it was wrong in principle for the Magistrate to impose the maximum sentence, upon conviction in this case.

Considering all the circumstances of this particular case, I set aside the sentence of $l,000 PA against each of the defendants and I substitute a sentence of a fine of $500.00 PA to be paid within three months of today, or in default of payment 4 months imprisonment.

To that extent their appeal against sentence succeeds. The Magistrates conviction on the 9th September 2008 however- is confirmed.