Police v Talamai [2018] TOSC 84; [2018] Tonga LR 250; AM 7 of 2018 (13 July 2018)

IN THE SUPREME COURT
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY

AM 7 of 2018

BETWEEN: POLICE

- Appellant

AND: SILA KI VAI TALAMAI

- Respondent
BEFORE THE HON. JUSTICE CATO

Mr Aho for the Appellant
Mr Tu’utafaiva for the Respondent

J U D G M E N T

1. This was a Crown Appeal against a decision of Principal Magistrate Mafi dismissing information of armed robbery against the Respondent at the end of a preliminary hearing on the 9th April 2018. The Learned Magistrate had dismissed the information for lack of sufficiency in the evidence. A preliminary objection had been raised by Mr Tu’utafaiva that the Magistrate had already struck out an earlier summons on the 28th January 2018, after the Appellant had failed to provide documents by that date pursuant to an order of the Magistrate and after a delay of about 7 months in providing the documentation. He submitted that to recommence proceedings was a violation of clause 12 of the Constitution which provides;
   

“No one shall be tried again for any offence for which he has already been tried whether he was acquitted or convicted.”

2. The dismissal of an information, however, which has not involved a trial on the merits, but is only a discharge pursuant to a preliminary inquiry does not constitute a bar to the prosecution commencing afresh so long as there is no time limitation on prosecution. Issue estoppel does not arise from such a discharge. Nor in my view can it be said there has been any violation of the Constitution because there has been no acquittal. All that happened here was that the information was dismissed because of the Prosecution’s failure to abide by the Magistrate’s order. Even if an accused was discharged for lack of sufficiency in the prosecution case and the accused discharged at the preliminary hearing that discharge is not an acquittal. R v Johnston [1958] NZPoliceLawRp 25; [1959] NZLR 271, Bosch v MOT [1979] 1 NZLR 502. In New South Wales, ex officio indictments can be laid by the prosecution after a magistrate has discharged a defendant, although this should not be lightly taken because the committal process was said to act as a sieve against unwarranted prosecution Grassby v The Queen 91989) [1989] HCA 45; 168 CLR 1 at 14-15 per Dawson J. A similar procedure is available in New Zealand under section 347 of the Crimes Act where leave to proceed is required to file the indictment, although leave will not normally be given if it has followed a discharge at a preliminary hearing Daemar v Gilliand [1981] 1 NZLR 61. A discharge at a preliminary hearing or inquiry is not, however, a bar or estoppel for further prosecution.
   
3. In Tonga, under legislation passed in 2012 which I discussed in Police v Hala’ufia and others AM 08/2013 5th July 2013 committal proceedings became paper committals only with the consequence that, under the new procedure, witnesses will not be called and there can be no assessment of the weight of the evidence or sufficiency in that sense which arises when witnesses give their evidence at trial. This raises the point of this important Crown appeal on procedure. The Crown submitted that, on the charge of armed robbery, the Magistrate should not have discharged the Respondent because there were two Crown witnesses who were police officers who knew the Respondent also at the time a serving police officer and saw him inside what was later identified as a getaway car near the scene of the robbery shortly before it occurred. The Respondent, in a record of interview, denied being in the car. One of the other defendants who was in the car in his record of interview had asserted that the Respondent was not present. On the basis of this evidence, the Magistrate declined to commit the Respondent for trial for insufficiency.
   
4. The test for sufficiency as I explained in Police v Hala’ufia and others, was whether the evidence called by the prosecution reached the threshold of; at its highest, would allow a properly directed jury could convict. If there is evidence of this quality then the case should be committed. Galbraith (1981) 73 Cr App R 124 The Magistrate himself should not attempt to evaluate the evidence and, indeed, cannot do so in the absence of the witnesses being called to give their evidence with their reliability assessed after cross-examination and considered with all the other evidence adduced. Here, the witnesses whose evidence placed the accused at the scene knew the accused as a fellow police officer. If their evidence at trial were accepted by the trier of fact as reliable, then the Respondent’s denial of being present could be regarded as a lie and if found to be made deliberately to avoid his presence at the scene of the robbery, a lie as to opportunity. A circumstantial item of evidence pointing to consciousness of guilt could be advanced in support of the Crown’s case that he was present other than for some innocent reason. In order to qualify as an item of evidence based on a deliberate lie, the factors mentioned in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 would have to be satisfied. This can only be made after a trial assessment of the evidence. Similarly, assuming it is admissible in favour of the Respondent, the out of court assertion of a co-accused that the Respondent was not present can only be evaluated at trial. I have considered all that Mr Tu’utafaiva has had to say in his written memorandum but whether any alibi can be maintained for example is an issue for trial assessment.
   
5. In my view, Mr Aho was correct in his submission that the Learned Principal Magistrate had wrongly discharged the accused. For the reasons I have given, I consider that the Magistrate erred in not committing the Respondent for trial and in my view; he ought to have done so following the approach in Galbraith. I do not propose to remit the matter back to the Magistrate but I exercise my power under section 80 of the Magistrates’ Court Act and commit the Respondent for trial in this Court, on an appropriate date to be fixed.
   

6. I have informed his counsel, Mr Tu’utafaiva that he is to appear for arraignment next Monday 16^th July, 2018 at 9am. The Crown is to ensure the case for the Respondent’s arraignment is ready for his case to proceed in this Court on the 16^th July, 2018. The Respondent is to be placed on the no flight list and is to have bail on terms set originally in the Magistrates Court pending his appearance on the 16^th July, 2018.

C. B. Cato
DATED: 13 JULY 2018 J U D G E