Rex v Tonga [2013] TOSC 18; CR66 of 2013 (24 September 2013)

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

CR 66 of 2013

REX

-V-

LESILI TONGA

Ms S. 'Atiola for the Crown
'O. Pouono for the accused

RULING

1. On 5 March 2013 the accused was charged with one offence of bodily harm contrary to Section 107(1), 2(c), 5(a) and (b) of the Criminal Offences Act (as amended by the Criminal Offences (Amendment) Act 2012).

2. As will be seem from an examination of Section 107, the allegation was that the accused unlawfully (subsection (1)) caused a "wound which is not severe" (subsection 2(c)) contrary to subsections 5(a) and (b) which provide that this offence:

"(a) is punishable by a term of imprisonment for any period nor exceeding three years: and

(b) shall be heard and determined by the Magistrate's Court." (emphasis added).

3. On 25 March 2013 the prosecutor filed forms 19 and 20 in the Magistrate's Court. These forms are notices to the magistrate and to the accused that upon the appearance of the accused before the Court to answer to the charge, the prosecutor will apply to have the accused committed for trial to the Supreme Court. In view of the fact that the charge faced by the accused was, by virtue of subsection 5(b) required to be tried in the Magistrate's Court, these notices were filed in error. The error was not spotted either by the magistrate or by defence counsel and the accused was committed for trial to the Supreme Court on 24 June 2013.

4. On 6 September 2013 an indictment was presented. The offence was described as "Bodily Harm" contrary to Section 107(1)(2) and (4) of the Criminal Offences Act. It will be noted that the section contained in the indictment was not the same section as was included in the charge. The particulars were that the accused "did cause bodily harm" to the complainant Pualani 'Ahokovi when he "repeatedly punched her causing injuries to her face.

5. The medical report describes the complainant as suffering from swelling, tenderness and bruising to her face.

6. In view of Subsection 5(b) the magistrate had no power to commit the accused to the Supreme Court for the offence with which he was charged. Accordingly, the committal was a nullity as was the indictment subsequently filed. Where there is no jurisdiction to commit the error cannot be cured by filing an indictment within the jurisdiction of the Supreme Court.

7. The wide-ranging amendments to the Criminal Offences Act made by the amendment Acts of 2012 were designed, among other objectives, to reserve the trial of less serious matters to the Magistrate's Courts while sending more serious matters to the Supreme Court. For the avoidance of confusion, where an offence may be either "Simple" or "Serious", depending on the circumstances, the word "Simple" or "Serious" should always be included in the charge or indictment. Had this been done in this case the procedural errors which occurred might will have been avoided.

8. It is a matter of concern that so many mistakes were made in this case. The Attorney General may wish to consider whether further workshops may be needed to ensure that all concerned properly understand the substantive and procedural changes brought about by the 2012 amendments to the Magistrate's Court Act and to the Criminal Offences Act.

9. The matter is remitted to the Magistrate's Court for disposal of the charge dated 5 March 2013. A fresh summons to the accused is to issue.

Dated: 24 September 2013.

CHIEF JUSTICE