Police v Liava'a [2013] TOSC 9; AM13.2013 (1 July 2013)

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

AM 13 of 2013
MC, CR 135 & 136 of 2013

BETWEEN:

THE POLICE
Appellant

AND:

LATU PILIMILOSE LIAVA'A
Respondent

'A. Kefu (Solicitor General) for the Appellant
Respondent in person

JUDGMENT

1. On 15 June 2013 the Respondent was summoned to appear at the Nukunuku Magistrates' Court to face two charges: the first of being drunk in a public place contrary to section 3 (j) of the Order in Public Places Act (Cap 37) (MC 135 of 2013), the second of "obstruction" of a police officer, contrary to section 113 of the Criminal Offences Act (Cap 18)(MC 136 of 2013).
   
2. According to the record of the proceedings before the Court on 18 June 2013 the Respondent pleaded guilty to both charges. After hearing the facts and the Respondent's mitigation the Magistrate delivered the following judgment:
   

"Charge 135/2013: Fine $100 to be paid now in default imprisonment for one month;

Charge 136/2013: the accused will be acquitted, the summons was not good because the amended Act was not included in the summons."

This is an appeal against that acquittal.

3. The grounds of appeal are:
   

"(i) The summons was correctly written out, the amended Act was not required to be written onto the summons as well;

(ii) The Court's decision to acquit is not right."

4. The material parts of the summons in question read as follows (translated):
   

"Complaint has been made to me that you on the 9th day of April 2013 at Ha'avakatolo, you assaulted and obstructed a police officer while on duty contrary to section 113 (b)(c) Criminal Offences Act Cap. 18 whereby you punched with your right hand the shoulder of Police Officer Vaha Taufa without his consent."

5. Section 14 of the Magistrates' Courts Act provides that every summons:
   

"shall state concisely the offence with which the defendant is charged...."

Section 15 specifies that:

"every summons shall be for one offence only..."

Section 16 (i) requires:

"Every summons before being issued for service shall be read by the magistrate who shall affix his signature and seal thereto."

6. Both the police, before requesting this summons to be issued and the Magistrate, before signing the summons should have noticed that there is no such offence as section "113(b) (c)". Subsections (b) and (c) are distinct and different subsections of section 113; either section (b) should have been relied upon or subsection (c). To include both sub sections in one summons was a breach of section 15 of the Act.
   
7. It is evident from the facts that sub-section 113 (c) has no application to the case against the Respondent and accordingly only subsection 113 (b) should have been included in the summons. Subsection 113 (b) reads as follows:
   

"Every person who assaults, obstructs or resists any police officer acting in the execution of his duty...is guilty of an offence and is liable on summary conviction to a fine not exceeding $500 and in default of payment thereof to imprisonment for any period not exceeding one year".

8. It will have been observed that three distinct types of conduct are referred to in subsection 113 (b):-
   
   1. assaults;
   2. obstructs;
   3. resists;
      

When charging a breach of this subsection only one of these types of conduct should be included in a single charge, otherwise the charge will violate section 15.

9. The charge 136/2013 was defective:
   
   • (i) Because there is no such subsection as 113 (b) (c); and
   • (ii) Because the Respondent was charged with two types of conduct, namely "assaulted and obstructed", rather than one.
     
10. It is not every charge which is technically defective that will be held to be a nullity. Obviously if a person is charged with an offence that does not exist (eg because it has been repealed) then that charge will be a nullity. Where, however, the error is purely technical and the facts of the charge as pleaded clearly reveal the nature of the conduct complained of, a charge will not be bad. In the present case, after mistakenly referring to both "assaulted" and "obstructed", and mistakenly referring to "Section 113 (b) (c)" the wording of the charge was perfectly clear and can have left the Respondent in no doubt of the conduct alleged against him.
    

"... you punched with your right hand the shoulder of Police Officer Vaha Taufa without his consent"

11. The Magistrate gave as his reason for acquitting the Respondent on this charge the fact that no reference to the amendment of the Act was made in the charge. The Criminal Offences Act (Cap 18) was amended by the Criminal Offences (Amendment) Act 2012 (Act 19 of 12) however section 113 was not affected by the amendments. There was no requirement for the amending Act to be referred to in the charge and the Magistrate erred in dismissing this charge on that ground.
    
12. As a general rule, any objection to the form of a charge should be taken before the plea is taken. If the error in the charge is slight then the prosecution must be given an opportunity to amend. If the defendant is placed in a difficulty by the amendment he may be granted an adjournment to consider his position. The overall aim must be justice both to the prosecution and the defence.
    
13. During the hearing of this appeal the Solicitor General told me that in some quarters a charge is regarded as defective if the maximum penalty is not specified; this is incorrect, a charge does not have to state the maximum penalty. A magistrate does, of course, have to satisfy himself that the maximum penalty for the offence does not take it beyond his jurisdiction.
    
14. I wish to refer to three other matters which arise in this appeal. The first is that, according to the record, the Magistrate made no enquiry into the Respondent's means before imposing a penalty of $100. This is incorrect; a Magistrate should never impose a financial penalty without at least making some enquiries to establish that the offender has the means to pay the fine. Secondly, the default period, one month, is the maximum allowed by section 28 of the Act, as amended, for fines up to $500. On the face of it a default period of 1 month for a fine of $100 seems very high. Thirdly, no time was given to the Respondent to pay the fine imposed, indeed the sentence specified that the fine was to be paid "now" i.e immediately. In fact, it is understood that the fine has been paid and therefore no harm has been done. It is better practice for the Magistrate to enquire whether the fine can be paid immediately and, if not, to allow a reasonable time for payment to be made. It is not good sentencing to impose a fine which has to be paid immediately, but, because the offender has no, or not enough money on his person, results in imprisonment instead. Offenders should not be sent to prison merely for non-payment of fines; imprisonment is only appropriate when an offender, who had the means to pay the fine within a reasonable period of time allowed to him, has nevertheless failed to pay.
    
15. The appeal is allowed. The matter will be remitted to the Magistrates Court. The prosecution should be given an opportunity to correct the defects in the charge to which I have referred. The corrected charge should then be put to the Respondent and his plea taken. The matter should then proceed to conclusion according to law.
    

M.D. Scott
CHIEF JUSTICE

DATED: 1 July 2013

E. Takataka
1/7/2013