Rex v Talia'uli [2003] TOSC 16; CR 232 2003 (13 March 2003)

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

NO. CR. 232/2003

BETWEEN:

REX
Prosecution

AND:

TUIPULOTU TALIA'ULI
Accused

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr Sisifa for prosecution
Accused in person.

Date of Hearing: 13 March, 2003
Date of Ruling: 13 March, 2003

JUDGMENT

The accused appeared in the Magistrates' Court on 5 February 2003 on a charge of grievous harm, stated to be contrary to section 27 of the Criminal Offences Act (by which I can only assume it meant section 106). The allegation was that he stabbed another man with a knife.

At the Magistrates' Court hearing, the prosecution told the magistrate that both he and the accused considered this to be a suitable case for summary trial. The magistrate confirmed that was the wish of the accused and pointed out, as the accused was unrepresented, that it was a very serious offence. Grievous harm is a undoubtedly a serious offence and is one which carries a maximum penalty of 10 years imprisonment. Whenever a magistrate is asked to try such a case summarily he should be especially careful to check the nature of the allegation before acceding to the request.

In this case, the accused still wished to proceed and pleaded guilty. The prosecutor then outlined the facts and sought to call the complainant. The record shows that the magistrate asked him how was his injury and was told it had healed. The record continues:

"Court: Which part did you have injuries on?

Complainant: On my back

Court: Please come forward so that I can have a look. It is a big injury; it shows that it has healed. It is beyond my jurisdiction for compensation on this injury. I would forward for sentence in this case to the Supreme Court. I don't know how long this case will be because other cases have been listed in the Supreme Court but I will adjourn your case to 18 March at 9:30 for sentencing."

I listed the case for today.

It has been stated by this court numerous times that magistrates must ensure they understand the requirements of section 35 of the Magistrates' Courts Act. Once again, the provisions of the section have been misunderstood or ignored. Once again, I shall set out the section to try and ensure it is read.

"35. (1) If at any time during the preliminary [i]nquiry into the offence it appears to the Magistrate, having regard to any representations made in the presence of the accused by the prosecutor or made by the accused, and to the nature and circumstances of the case, that the punishment that the Magistrate has power to inflict under [t]his Act would be adequate, the Magistrate may, subject to the provisions of Sub-sections (2) and (3) hereof, proceed to deal with the case summarily in the manner provided by section 24.

(2) For the purpose of proceeding as aforesaid, the Magistrate shall tell the accused that he may, if he consents be tried summarily instead of being tried by a Judge of the Supreme Court or by a jury if he were so to elect and, if the Magistrate thinks it desirable for his information shall explain to him what is meant by being tried summarily.

(3) Where on the summary trial as herein provided the accused is convicted of the offence, then, if on obtaining information about this character and anteced[e]nts the Magistrate is of opinion that they are such that greater punishment should be inflicted for the offence than the Magistrate has power to inflict, the Magistrate may commit him in custody to the Supreme Court for sentence."

Grievous harm is clearly an offence within the jurisdiction of the Supreme Court and so the normal course would be to hold a preliminary enquiry. I assume that was the intention of the magistrate when this case was called.

Having, however, received representations from both the prosecutor and the accused he passed to the next step, which should have been to decide whether the nature and circumstances of the case were such that his powers of punishment would be adequate. It has been said before that any inquiry the magistrate needs to make in order to decide whether his powers are sufficient should be made before he takes any step to hear the case summarily. That must mean that inquiry should be made before the plea is taken.

In this case the magistrate took the plea first which suggests he had already made the decision that his powers were sufficient. However, when he heard the facts of the case, he clearly then considered his powers were inadequate because he purported to commit the accused to the Supreme Court for sentence.

That power, as has been pointed out so many times, arises, when the case is being dealt with summarily under section 35, only after conviction and only if the magistrate, having heard about the character and antecedents of the accused, then forms the opinion that, in view of those, his powers of sentence are inadequate.

Unfortunately the magistrate, having decided to proceed summarily, did not follow that course. He did not check that the accused agreed the facts that had been opened by the prosecution, he did not give the accused any opportunity to address the court, he did not proceed to a conviction and he did not hear anything about the accused's antecedents. He simply bypassed all those steps and committed the accused for sentence.

When the magistrate decides, following a request for summary trial of an indictable offence, that his powers will not be adequate and, therefore, summary trial is inappropriate, he must continue with the preliminary inquiry. In this case, the magistrate decided at the point when he saw the nature of the healed wound on the complainant. Had he then continued to hold a preliminary inquiry despite having already taken the plea, there could have been little complaint. However, the fact that he then committed the accused for sentence showed that he had clearly decided to deal with the case summarily and, as a result, it must continue as such a hearing.

The case is remitted to the magistrate with a direction that he must continue to hear it summarily and sentence within his powers unless the provisions of section 35(3) apply.

NUKU'ALOFA: 13^th March, 2003

CHIEF JUSTICE