Rex v Nusi [2006] TOSC 21; CR 028-2006 (16 June 2006)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 28/06

REX
-V-
SIONE PETONI NUSI

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 12 – 14 June 2006.

EDITED TRANSCRIPT OF ORAL DECISION GIVEN ON 14 JUNE 2006.

Counsel: Prosecution: Mr Sisifa
Defence: Mr Tu’utafaiva

Preliminary

Sione Petoni Nusi was charged with 2 counts of the attempted murder of his 11-year old stepdaughter [in this transcript referred to as A to preserve her privacy] under sections 4(1) and 87(1) of the Criminal Offences Act; and one count of common assault of A under section 112 of that Act as follows:

(Count 1)

Sione Petoni Nusi, on or about the 11th January 2006, at Kolonga, you attempted to cause the death of A, in that you tied a rope around her neck intending to hang her.

(Count 2)

Sione Petoni Nusi, on or about the 11th January 2006, at Kolonga, you attempted to cause death of A, in that you put a knife to her chest intending to stab her.

(Count 3)

Sione Petoni Nusi, on or about the 11th January 2006, at Kolonga, you assaulted A in that you beat her with a stick, and slapped her on her head.

Record of interview etc

I shall start with the Record of Interview, Answers to the Statement of Charges and the so-called Confession.

I regret that I did not accept Acting Inspector Ika, who conducted the interview, as a credible and reliable witness. He contradicted himself in relation to when he got the rope and the knife. He also gave incorrect evidence about holding a person for 48 hours. These are minor examples, but they are only part of the picture and Inspector Ika was contradicted on a crucial part of his evidence by Constable Lelea.

On that ground alone, I would not accept these documents as reliable. But I also found that it was not proved beyond reasonable doubt that there was no threat to the defendant under section 21 of the Evidence Act.

For the same reason I would exercise my discretion under section 22 of the Evidence Act and refuse to admit these statements.

As I do not require to do so, I am not giving a decision on the point raised by Mr Tu’utafaiva in relation to R v Pailate [1989] Tonga LR 109 about the open exercise of that discretion - although my intuition is that section 22 of the Act gives the Court a discretion which is not to be fettered, and the Court should take into account all relevant circumstances.

In addition, I have to say that on the evidence as a whole I had doubts about whether the answers allegedly given by the defendant were genuine.

Attempted murder

On the principal charges, first I have to say that I was not entirely sure that the complainant A was a reliable witness in relation to all her evidence. I am sure she was doing her best to tell the truth, but her evidence did waiver in places; and I had a feeling, at least at the start of her evidence, that she had been programmed as to what to say. The alleged incident was only witnessed by her and the defendant, so I did not regard her grandmother Simaima as a crucial witness, as her evidence on the key parts was essentially hearsay.

I believe that A was put into a very difficult position between 2 adults and I shall have more to say about that.

Next I can say that, in particular as a result of the evidence of the defendant Sione Nusi, I formed a reasonable doubt as to whether he had the required intent for these counts. For a charge of attempted murder the intention required is an intention to kill: Archbold 2005 para 19-91; R v Whybrow 35 Cr App R 141,147 (CCA).

In this case I would go further and say that on the evidence, on the balance of probabilities, I consider that the defendant did not intent to kill A, he was just trying to scare her.

On that basis I would find the defendant Not Guilty and acquit him on Counts 1 and 2.

Law on attempts

I can say that I share some of the difficulties of Counsel in relation to the legal position on attempts, but as I do not have to, I am not going to give any decided views on them, except as follows. I would say that proving an attempt is often not at all easy and I take on board the passages in Smith and Hogan’s Criminal Law (10th Ed) to which I was referred (at pages 328-338). It seems to me that a charge of attempt is much more likely to succeed if the act done is immediately and principally referable to the attempted offence alleged: eg on a charge of attempted murder if a person is stabbed in the neck or chest but survives; or on a charge of attempted rape if there is some kind of sexual act but no proof of penetration. I do not think that this case came into that category where the incidents were immediately and solely referable to the attempted offence alleged.

Alternative offences – jurisdiction of Supreme Court

I have considered whether the defendant should be convicted of an alternative offence of assault on these 2 charges in terms of section 42(3) of the Criminal Offences Act. It seemed to me to be established beyond reasonable doubt that the facts in these charges were assaults in terms of section 112 (f) and (g) of the Criminal Offences Act:

112. Every person who wilfully and without lawful justification -

......

(f) applies or attempts to apply force to another person directly or indirectly; or

(g) threatens by any act or gesture to apply force to another person if he person making the threat has or causes the other to believe on reasonable grounds that he has present ability to effect his purpose,

is guilty of an offence ... .

However, that is not within the jurisdiction of this Court, considering section 4 of the Supreme Court Act and sections 8 and 11 of the Magistrates’ Courts Act. I could not accept the submission by Crown Counsel that section 5 of the Supreme Court Act somehow, in contradiction to section 4, extended the jurisdiction of the Supreme Court. I follow the views of Mr Justice Ford in R v Aumua [2005] TOSC 9, CR 209/04, 9 March 2005.

Common assault

That leaves Count 3, and again I accept that this Court has no jurisdiction, so I find the defendant Not Guilty and acquit him of Count 3.

Position of the defendant

However, I wish to talk to you, Sione Nusi. It is very clear, even on your evidence, that something sinister happened between you and A on the beach that day - something that went well beyond your position as her stepfather. It was not attempted murder, but I take the view that it was against the law and you are very lucky not to be found guilty for the assault of A. I have to make it clear to you that nothing like that must ever happen again, but that if it does you may not be so fortunate. Do you understand?

The complainant A

I now wish to speak about A. It seems to me she was put in an impossible position by these 2 adults, Sione and Simaima, feuding over her. I have been shocked, as it is not a position a child of 12 should be placed in.

As these facts have been brought to the attention of the Court, I propose to exercise my inherent jurisdiction to make her a ward of Court (see eg Halsbury’s Laws (4th Ed reissue) Vol 5(2) para 760) to ensure that someone is looking after her interests and welfare. As feelings may still be high after this decision, I propose to make her a ward of Court on an interim basis immediately and appoint the Solicitor-General as her Guardian-ad-Litem (but not Mr Sisifa because he has been involved in this criminal prosecution). I shall ask the Guardian-ad-Litem to have a report and recommendations for the future prepared by a social worker such as Tanya Beynon of the Women and Children Centre. This may not need to be a permanent wardship, but I want to get a satisfactory stable position established.

Subject to anything you wish to say, Mr Tu’utafaiva, I shall make a direction that Sione Nusi is to have no contact with A until further order of the Court.

I also have to thank Counsel for their careful and thoughtful submissions, which have been of great assistance in this case.

Recommendations arising

This case has thrown up a number of issues and I think it may he helpful if I say something about these. Starting from the beginning:

1. On reflection, I accept that an arrest on reasonable suspicion on the hearsay evidence of the grandmother was right in this case, due to the serious nature of the alleged offence.
   
2. But I believe that first-hand evidence should have been obtained from the complainant A herself before the defendant Mr Nusi was questioned.
   
3. I have said many times before that successful cases are more likely to be founded on hard, independent evidence, rather than confessions which may be successfully challenged - and I say it again now.
   
4. I was frankly shocked that an experienced Police Inspector thought that he had 48 hours to hold a suspect. The law has been clear for years and years – and I have been saying for years and years - that a person arrested should be taken to a Magistrate without unnecessary delay, or at the latest within 24 hours. As Mr Tu’utafaiva submitted this is vital for the liberty of the subject. I refer again to Fifita v Fakafanua [1998] Tonga LR 127 (CA).
   
5. I believe that on a charge of attempted murder it is quite inappropriate to rush the whole process through within 3 hours and release an accused person into the community. That is not giving proper time to deal with serious issues seriously.
   
6. It seemed unwise to release the defendant before A was interviewed, in case her evidence was interfered with.
   
7. It is unthinkable in my view that a man on an attempted murder charge is released by the Police without taking him before a Magistrate.
   
8. Arising from all these points, I seriously believe that in serious matters such as this the Crown Law office should be in at the beginning, because there are questions about what charges should be preferred and in what court, which can best be decided by an independent prosecution lawyer, and not the Police.
   
9. I now accept that Practice Direction 1/1991 by Martin CJ and myself is incorrect in view of the Supreme Court having no jurisdiction under its lower limits. But I believe that the Practice Direction sets out a common sense approach about hearing all matters connected with the same incident at the one time, to ensure justice. I suggest that the Hon Attorney-General should give consideration to amending the law to allow all the charges connected with the same incident to be heard before the Supreme Court. Results like those today do not achieve justice, which, as well as protecting the innocent, involves ensuring that the guilty are convicted.
   
10. As I have said earlier, I accept that the legal position on attempts is not as clear as it might be and the Hon Attorney-General may also wish to consider amending the law in the interest of clarity.
    

Sione Mr Nusi, as I have already made clear, I find you Not Guilty on all 3 counts and I dismiss the charges.

16 June 2006

R M Webster
Chief Justice