Rex v 'Ahotau [2007] TOSC 6; CR 13-2006 (8 August 2007)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY NO. CR.13 of 2006

BETWEEN:

R E X
Plaintiff

AND:

TOLUHAMA ‘AHOTAU
Defendant

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr Kefu for the Crown and Mr Pouono for the accused

Dates of written submissions: 5, 25 June and 6 July 2007

Date of Ruling: 8 August 2007

RULING

Issue

[1] A preliminary point of law has arisen in this case which counsel agreed could be dealt with on the papers. The court is obliged to both counsel for the quality and succinctness of their written submissions.

[2] On 7 March 2007 the accused was indicted on one count of murder and an alternative count of manslaughter. He pleaded not guilty to the murder charge but guilty to the lesser charge of manslaughter. The short point at issue now is whether the Crown is precluded from pursuing the prosecution on the murder charge.

Defence submissions

[3] Mr Pouono made two submissions. The first is based on section 42 of the Criminal Offences Act (Cap 18). The relevant provisions, subsections (2) and (5) state:

"(2) On an indictment for murder a person found not guilty of murder may be found guilty

(a) of manslaughter, or of causing grievous bodily harm with intent to do so, or of wounding with that intent;

(b) of an offence of which he may be found guilty under a written law specifically so providing; or

(c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty.

(5) Where a person arraigned on an indictment pleads not guilty of an offence charged in the indictment but guilty of some other offence (whether an offence of which he might be found guilty on that charge or an offence separately charged), and he is convicted on that plea of guilty without trial for the offence of which he has pleaded not guilty, his conviction of the one offence shall be an acquittal of the other."

[4] Defence counsel submitted that in drafting an indictment for an offence of murder, the prosecution has a choice. He can either rely on section 42 (2) and not include an alternative count of manslaughter or he can rely on section 42 (5) and include an alternative count of manslaughter. When manslaughter is charged in the alternative, however, and the defendant elects to plead guilty to that lesser offence then defence counsel contends, if the court accepts that plea, section 42 (5) precludes the accused from being prosecuted on the murder count.

[5] The second submission made by Mr Pouono was that at a Chambers hearing on 21 May 2007 I made a Ruling that the Crown was precluded by section 42 (5) from pursuing the murder count and I am unable to now review that earlier alleged ruling. It is claimed that the Crown's only remedy is to appeal.

[6] I can dispose of that second submission briefly. Up until now, no Ruling has been made on the issue in question.

Chronology

[7] At this point I need to say something about the history of the case before the court. When the accused was first arraigned back on 7 March 2006 he was unrepresented by legal counsel and he entered a plea of guilty to the murder charge. Given the serious nature of the charge, however, I refused to accept the plea until the accused had had an opportunity of obtaining legal advice and I, therefore, adjourned the arraignment until 9 March 2006.

[8] When the case was next called on 9 March 2006 the accused appeared and told the court that his legal counsel refused to act for him in this matter. Another lawyer who was present in court that particular morning, Mr Siosifa Tu'utafaiva, did, however, agree to take instructions in the matter. Mr Pouono is employed by Mr Tu'utafaiva.

[9] The arraignment was then further adjourned until 28 March 2006 and on that day the accused pleaded not guilty to the murder count but guilty to the alternative count of manslaughter. The matter was then further adjourned until 5 April 2006 (later changed to 26 April) to enable Crown counsel to take instructions from the Attorney General as to whether the prosecution would be proceeding on the murder count.

[10] On 26 April 2006 Mr Kefu appeared and advised the court that the Crown would be proceeding with the murder charge. The accused elected trial by jury and the trial date was fixed for 21 May 2007 with a pre-trial conference set for 13 April 2007.

[11] At the pre-trial conference on 13 April 2007 Mr Kefu explained that the Crown Law Office file had been destroyed by fire in the events of 16 November 2006 and I, therefore, made an order allowing the prosecutor to take a copy of the Court file and I ordered a further directions hearing for 30 April 2007 (changed to 1 May 2007) to confirm whether the Crown would still be proceeding with the murder charge.

[12] On 21 May 2007 Mr Sisifa appeared for the Crown and again confirmed that the prosecution on the murder count would be proceeding. On the scheduled trial date, 21 May 2007, I saw Mr Kefu and Mr Pouono in my Chambers and raised with them for the first time the issue of section 42(5) of the Criminal Offences Act. I invited Crown counsel to consider that subsection and I drew his attention to a relevant passage from a late edition of Blackstone's, Criminal Law. It is fair to say that I also rather forcefully invited Crown counsel to consider whether it was worthwhile proceeding with the murder charge given the guilty plea on the manslaughter count and the considerable pressure for court fixtures these days resulting from prosecutions arising out of the events of 16/11/2006.

[13] At the Chambers hearing on 21 May it was agreed that counsel would be given the opportunity to file written submissions in relation to the relevance of section 42 (5) and I would then give a Ruling in the matter which is the position we have now reached.

Crown submissions

[14] I return to Mr Pouono's first submission relating to the application of section 42 and Mr Kefu's response.

[15] Mr Kefu presented a detailed analysis of section 42. He stressed that the prosecution had never accepted the plea of guilty to the lesser charge of manslaughter and he said that the Crown had strong evidence which justified the decision to want to proceed to trial on the murder count. His principal submission to the court was that where an accused person pleads not guilty to the offence charged but guilty to some lesser offence, charged in the alternative, and the prosecution is unwilling to accept the guilty plea to the lesser offence then the trial must proceed on the more serious offence only.

Authorities

[16] Section 42 of the Criminal Offences Act would appear to be based on the English equivalent provision which is section 6 of the (English) Criminal Law Act 1967. In R v Hazeltine [1967] 2 QB 857, 861, Salmon L.J. explained the purpose and effect of the forerunner of section 6 (1) (section 39 (1) of the Criminal Justice Administration Act 1914) in these terms:

"Prior to that statutory provision, it was not possible for an accused to plead guilty to unlawful wounding when charged with wounding with intent but it was and always has been possible for a jury, when a man is charged with wounding with intent, to return a verdict of unlawful wounding; so before the Act of 1914 the position was that an accused man might be saying, "Of course I am guilty of unlawful wounding but I had no intention of doing grievous bodily harm," the prosecution might be satisfied that a plea of that kind ought to be accepted, and the judge might be so satisfied, yet a great deal of unnecessary time and money had to be wasted by holding a full-dress trial in order to obtain a verdict from the jury which the prosecution, the defence and the judge was satisfied was the only proper verdict in the circumstances.

This court has no doubt but that section 39 (1) of the Act of 1914 was introduced so as to remove this anomaly which resulted in the great waste of time and money to which I have referred. In the the view of this court, however, that statutory provision did not get rid of the rule that there can be but one plea to one count should the trial proceed on that count. Accordingly if an accused pleads not guilty to wounding with intent but guilty to unlawful wounding and counsel for the prosecution or the judge takes the view that the plea ought not to be accepted and the trial proceeds, the plea of guilty to unlawful wounding is deemed to be withdrawn and the only plea is the plea of not guilty to wounding with intent. It is then for the jury to consider the evidence and at the end of the case to say either quite simply that the man is not guilty or that he is guilty of wounding with intent or that he is not guilty of wounding with intent but guilty to unlawful wounding.

A case such as this is quite different from the case such as Reg v Cole [1965] 2 QB 388 where there were two counts in the indictment, one charging a serious offence, one a lesser offence. That case lays down the correct procedure to be followed where a prisoner pleads guilty to the count charging the lesser offence and not guilty to the count charging the more serious offence. If the plea to the less serious offence is not accepted, the prisoner will then be in the charge of the jury only on the more serious count. If he is acquitted on that count he will then be sentenced on the count to which he has pleaded guilty. If, on the other hand, he is convicted on the more serious count, the proper course is for the judge to allow the count to which he has pleaded guilty to remain on the file and not to proceed to sentence him on that count."

[17] Emmins on Criminal Procedure, 7th ed p.240, states in reference to the English section:

"Halfway between a plea of guilty and not guilty is the plea of guilty to a lesser offence. It is a corollary of the option given to jurys in certain cases by section 6 of the Criminal Law Act 1967 to return a verdict of "not guilty as charged but guilty of some other (lesser) offence" . . . Whenever a count is put to the accused on which the jury could find him guilty of a lesser offence, he may offer a plea of not guilty as charged but guilty of the lesser offence. If the plea is accepted, he stands acquitted of the offence charged, and the court proceeds to sentence him for the lesser matter. The prosecution are not, of course, obliged to accept a proffered plea of guilty of a lesser offence. If they consider that the evidence will clearly prove the accused guilty as charged, they can insist on the trial proceeding. The court then enters a straightforward not guilty plea on behalf of the accused; the plea to the lesser offence is impliedly withdrawn, and the jury is empanelled. The evidence is then called in the normal way. At the end of the case, the jury can either convict as charged, convict of the lesser offence, or even simply acquit. Even if the prosecution are willing to accept a plea of guilty to a lesser offence, the judge may indicate that it is not an appropriate course to adopt: R v Soanes [1948] 1 All ER 289. That case in fact suggests that the judge's consent to the plea is essential as a matter of law but, in the light of analogous later cases, the true position appears to be that the final decision is for the prosecution, although in practice they would rarely if ever act against the judge's expressed wishes. Strictly speaking, there should be something in the evidence on the committal statement or in the general circumstances of the case to suggest that the accused may not be guilty as charged -- otherwise the trial ought to proceed. In practice, however, the savings in time and money to be derived from not having to hold a jury trial may make it fairly easy to persuade both prosecution and judge that a plea of guilty to a lesser offence is appropriate."

[18] The rather lengthy passage just cited from Emmins is, with respect, a helpful summary of the principles applicable to a case like the present.

Discussion

[19] The first point which can be made in relation to this case, which seems to me to be decisive, is that it must be acknowledged, as Mr Kefu submitted, that the prosecution has never accepted the accused's plea of guilty to the lesser offence. As the above chronology shows, the Crown has persistently sought trial on the murder count.

[20] As I have indicated, I do hold reservations which I have conveyed to counsel about the appropriateness of the prosecutor's decision to proceed given the obvious savings in time and money to be derived from not having to hold a jury trial. I accept, however, that unless it is apparent on the face of it that his decision is perverse or untenable, the final decision as to whether or not to proceed is always going to be one for the prosecutor to make and not the trial judge.

[21] Mr Kefu has advanced his reasons for wishing to proceed with the murder count. Without going into them, I have no difficulty in accepting the force of the submissions he has advanced under this head. I am also comforted by a passage Mr Kefu cited to the court from the UK Attorney General's Guidelines on the Acceptance of Pleas which he confirms he has taken into account and which I respectfully endorse. The particular passage cited states:

"Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possible less serious, charge because they are admitting only part of the crime. Crown Prosecutors should only accept the defendant's plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are are aggravating features. Crown Prosecutors must never accept a guilty plea just because it is convenient. In considering whether the pleas offered are acceptable, Crown Prosecutors should ensure that the interests of the victim and, where possible, any views expressed by the victim or victim's family, are taken into account when deciding whether it is in the public interest to accept the plea. However the decision rests with the Crown Prosecutor."

[22] Another possible submission that would have been opened to the Crown to make is that section 42 (5) only comes into play if the person is "convicted" on the lesser offence and, as stated in Archbold 2005, p 4-109: "a plea of guilty ranks as a conviction not when it is recorded but when the defendant is sentenced." The accused in the present case has, of course, never been sentenced. I heard no argument on this issue, however, and it is not essential to my decision.

[23] For the foregoing reasons, I rule that the jury trial on the murder count is to proceed. A notice convening a directions hearing to fix the trial date will be issued by the Registrar.

NUKU'ALOFA: 8 AUGUST 2007

CHIEF JUSTICE