'Ilavalu v Police [2002] TOSC 30; CR APP 014 2002 (18 October 2002)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR. APP. 14/2002

BETWEEN:

PAULIASI ‘ILAVALU
Appellant

AND:

POLICE
Respondent

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr Kaufusi for appellant
Mr Pouono for respondent

Date of Hearing: 16 October 2002
Date of Judgment: 18 October 2002

JUDGMENT

The appellant appeared before the Magistrates’ Court on 9 July 2002 and was convicted of an offence of common assault, contrary to section 112(a) of the Criminal Offences Act. He was sentenced to one month imprisonment suspended for 6 months.

He appeals against that conviction on five grounds of which the first three challenge the magistrate’s findings of fact. The fourth ground is that the magistrate was wrong to admit hearsay in the evidence of one witness and that the conversation reported by that witness should have been under caution. The last ground is that the magistrate wrongly transferred the burden of proof to the appellant by expecting him to call the person who committed the assault.

The complainant, a police officer who was off duty and not in uniform at the time of the alleged offence, gave evidence in which he described how he was standing at Sia Leka’s takeaway when the appellant came up to him, grabbed him by the collar and lead him to his vehicle. He then drove him to the appellant’s home and from there to the police station. During that time, he punched the complainant the face causing his mouth to bleed.

The prosecution called two other eye witnesses who both described the approach of the appellant and how he took the complainant by the collar and lead him to the van but neither of which saw any punching by the appellant. The appellant gave evidence in which he also admitted he had grabbed the complainant by the collar and taken him home and then to the police station and called a further eye witness who gave evidence similar to that given by the prosecution witnesses other than the complainant. He also called his daughter who told the court, as did her father, that the complainant were punched by people other than the appellant.

It came out in the evidence that the reason the appellant grabbed the complainant was that, earlier that night, the complainant had broken into the appellant’s home and entered the room of his 18 year old daughter. When he saw the complainant at the takeaway, he noticed he had a towel the appellant suspected had been taken from his daughter’s room. He had taken him to his house to confirm with his daughter that it was her towel before he took the complainant to the police station.

This court was told that the complainant has, as a result of the appellant’s complaint, since been convicted at the magistrates’ court for the trespass. There is no reference to this in the record of the lower court.

In a short judgment, the magistrate repeated the allegation of the complaint but made no reference to the other eyewitnesses except to say that one referred to the appellant having an angry face.

It has been stated many times that the trial judge has the advantage of hearing ad seeing the witnesses and is therefore in a far better position to assess the credibility of the witnesses than an appellate court. It is only in rare cases that it will interfere with the trial judge’s finding of fact and then only if there is no evidence upon which he could have based his conclusions. In this case, the magistrate clearly accepted the evidence of the complainant. Bearing in mind the burden on the prosecution to prove the charge, he must therefore have rejected the evidence of the other eyewitnesses and of the complainant’s daughter. That is a conclusion he could reach but, in such a case, any judge should give some account of his reasons.

In the recent case of Kapeli v R [unreported] 22 July 2002, the Court of Appeal accepted that a trial judge is not required to set out in detail every matter to which he had regard in reaching his verdict. The Court quoted with approval the statement from the judgment of Cooke J in R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 that a judge sitting alone does not have to support his decision by elaborate reasons. That applies particularly to summary trial in the magistrates’ court but there must be enough to allow the defendant and, when there is an appeal, the appellate court, to know the trial judge has considered the evidence before him.

Cooke J went on to explain:

“...no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.” (my emphasis)

In the present case the magistrate failed to do that. Apart from a repetition of the complainant’s evidence and a clear acceptance of it, he makes no reference to the differences from the other witnesses nor his reasons for accepting the former or rejecting the latter. The record gives no indicating of any of those witnesses having been shaken in their accounts and, in the absence of any explanation from the magistrate, I cannot accept that he can have considered their evidence properly.

The second ground of appeal refers to the evidence of a police officer who was present when the appellant brought the complainant in this case to the police station. The officer described a number of comments made by the obviously angry appellant. Mr Kaufusi for the appellant, suggests those comments were inadmissible because the appellant should have been cautioned before he made them.

That arises from a misconception of the situation at the time. When those remarks were made by the appellant, he was the complainant; not an accused. There was no suggestion he was to be charged or that any complaint had been made against him. There was no evidence to suggest the officer suspected the appellant had committed an offence. In those circumstances, the question of a caution does not arise.

The last ground of appeal stems from the evidence of the appellant’s daughter. She stated that the complainant had been attacked by others when he was at the appellant’s house.

In his judgment, the magistrate stated:

“[The accused] brought his daughter to give evidence saying that it was someone else who was punching the complainant. Are those people being brought to give evidence, No. When [the police officer] gave evidence, he said he walked in and police Ohi was sitting with blood on his mouth. Although he did not actually see what happened, the complainant was brought to the police station. Therefore the accused in guilty of common assault.”

A trial court is always entitled to take note of a lack of vital evidence but the passage quoted above appears to be doing more than that. It appears to suggesting that the appellant should have brought the witnesses, did not and, as a result, the accused is guilty.

It is fundamental to our system of criminal justice that the prosecution must prove every element of the charge unless there is some statutory exception. The defence bears no burden to prove anything. I consider the magistrate was reversing those roles and as a consequence (“Therefore the accused is guilty...”) found the failure of the defence to call that evidence proof of the appellant’s guilt.

On the first and last grounds this appeal must be allowed, the conviction in the lower court quashed and a verdict of acquittal entered.

NUKU’ALOFA: 18 October, 2002.

CHIEF JUSTICE