- Subject to that, his Honour, on an examination of the authorities, made a number of observations on questions of joinder, be they of offences or of offenders. Firstly, “they are matters of practice on which the court has, unless restrained by statute,
inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice. Secondly,
joinder of counts being a matter of practice, any error in the application of relevant rules would normally amount to an irregularity
and would not result in the trial court having no jurisdiction. Thirdly, there had never had been a clear, settled and general practice
based on principle as to the occasions when joinder of offenders is in practice correct; moreover, there may well have been wide
fluctuations as to what might be called the terminal limits at any one time of the application of the practice then in force.”
- Sachs J concluded with the following passage, referred to in the Prosecution submissions on this application:[28]
"As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual
offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that
had nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related,
whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such
cases".
[bold emphasis as per submission; underlining per my emphasis.]
- That approach has been affirmed in:
- (a) subsequent English decisions, e.g.: R v Camberwell Green Justices: Ex Parte Christie (1978) 2 All ER 377 and by the House of Lords in In re Clayton (1983) 1 All ER 984;[29]
- (b) Australia, e.g.: Annakin v R (1988) 17 NSWLR 260 at 20; The Queen v Hogan, Walters, Rusu, Hadley, Faulkner, Savaglia and Hutchinson (Unted, Supreme Cou South outh Australia Court of Criminal Appeal, 725 of 1990, 31 October 1990, 19 December 1990) 990) and R v Ita [2003] NSWCCA 174; and<
- (c) New Zealand, e.g.: R v D & S [1996] 2 NZLR 513; R v F [2012] NZCA 37i>
- In The Queen v Rigney (1975) 12 SASR 30, Bray CJ was not convinced that the conclusion in Assim's case was historically sound. Notwithstanding, he concluded:[30]
“.... that instead of pursuing these independent historical enquiries we ought to acknowledge the authority of Assim's case
and accept the view that, apart from exceptions like the rule in Crane's case1) 2 AC 299C 299, questions of joinder, be they of offences or of offenders, are matters of practice on which the court has, unless
restrained by statute, inherower both to formulate its own rules and to vary them in thin the light of current experience and the
needs of justice' ...”
- I pause there to make two observations about the statements in Assim:
- (a) Firstly, they are confined to considerations of joinder in the usual sense, that is, whether multiple counts are sufficiently
connected that they can properly be the subject of one indictment.
- (b) Secondly, and in any event, not only did the Court of Criminal Appeal not seek to overturn or depart from the rule in Crane, it expressly affirmed it as an established definite principle.
- The Prosecution also relies on the decision in R v Clayton [1983] 2 AC 473 (HL). A husband and wife had been separately charged on summons in respect of a number of informations and a third alleged a similar offence
jointly committed. Both cases involving all five informations were heard by the justices at the same time. No consent was given.
The consolidated appeals in that case were said to have raised important questions of practice and procedure in the Magistrates
Courts in England and Wales.
- Lord Roskill canvassed a number of previous decisions as authority for the principle that justices should never proceed to hear informations
at the same time without the defendant's consent, and that to do otherwise, was without jurisdiction and contrary to law. His Lordship
said:[31]
"... by 1947 a rule of practice and procedure had evolved, whether or not it was correctly based upon section 10 of the Magistrates
Court Act of 1848, which made it irregular for any Magistrates' Court to try more than one information at the same time in the absence
of consent.... Any rule of practice or procedure which makes their task more difficult or demands of subservience to technicalities
is to be deprecated and your Lordships may think that this House should now encourage the adoption of rules of procedure and practice
which encourage the better attainment of justice, which includes the interests of the prosecution as well as of defendants, so long
as the necessary safeguards are maintained to prevent any risk of injustice to defendants."
- At 490, his Lordship referred to Assim, for the circumstances in which it was proper to join separate offenders charged on separate counts in the same indictment. At 491, his Lordship held:
"... the practical difficulties which arise from rigid adherence to the rule of practice enunciated in Edwards v Jones [1947] K.B. 659 and in the later cases to which I have referred are indeed manifest. Common sense today dictates that in the interests of justice
as a whole Magistrates should have a discretion in what manner they deal with these problems. ... Obstruction by a defendant is put at a premium. Today I see no compelling reason
why your Lordships should not say that the practice in Magistrates’ Courts in these matters should henceforth be analogous to the practice prescribed in [Assim] in
relation to trial on indictment. Where a defendant is charged on several informations and the facts are connected, ... I can see
no reason why those informations should not, if the justices think fit, be heard together. Similarly, if two or more defendants
are charged on separate informations but the facts are connected, I can see no reason why they should not, if the justices think
fit, be heard together. ... Of course, when this question arises, as from time to time it will arise, justices will be well advised to enquire both of
the prosecution and of the defence whether either side has any objection to all the informations being heard together. If consent
is forthcoming on both sides there is no problem. If such consent is not forthcoming, the justices should then consider the rival
submissions and, under any necessary advice from their clerks, rule as they think right in the overall interest of justice.... Absence
of consent, ... should no longer in practice be regarded as a complete and automatic bar to hearing more than one information at
the same time or informations against more than one defendant charged on separate informations at the same time when in the justices'
view the facts are sufficiently closely connected to justify this course and there is no risk of injustice to defendants by its adoption.
Accordingly the justices should always ask themselves whether it would be fair and just to the defendant or defendants to allow
a joint trial. Only if the answer is clearly in the affirmative should they order a joint trial in the absence of consent by or
on behalf of the defendant.”
[emphasis added]
- I pause again to note here that:
- (a) Firstly, Clayton is limited to the practice at the time within the English Magistrates Court. In Tonga, that is governed by the relevant corresponding
Act.
- (b) Secondly, the decision imports considerations of consent which, according to Dennis, are not relevant to the prohibition against joint trials of separate indictments.
- (c) Thirdly, for the reasons identified in Munday v Gill above, different considerations apply to procedures applicable to trials of multiple counts and accused on summary offences compared
to trials before jury on indictment.
For those reasons, in my view, Clayton does not assist the present application.
- The third supplementary authority relied upon by the prosecution is the NSW decision in R v Rogerson; McNamara [2015] NSWSC 965. There, Rogerson and McNamara were indicted for murder and supply of methylamphetamine.[32] Each applied for separate trials and Rogerson also applied to have the counts against him heard separately. Bellew J considered the
authorities establishing general principles which govern the discretion to make an order for separate trials, which may be summarised
(citations omitted) as follows:[33]
- (a) As a general proposition, crimes which are alleged to have been committed jointly should be prosecuted in a joint trial: Assim. Webb and Hay. Ther administrative factors too such as consideration by the sahe same jury at the same trial is likely to avoid inconsistent verdicts,
particularly when each accused tries to cast the blame on the other or others.
- (b) Any dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of
one accused must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as
it concerns each accused: Harbach.
- (c) In determining whether a separate trial should be granted the Court must carry out a balancing process between the community interest
and the question of undue prejudice to an accused. An exception to the general rule arises where there is a real risk of positive
injustice to an accused. The existence of such a risk is “the critical question”: Fernando; Amos; Collie.
- (d) Strong reasons for a joint trial may be further strengthened where each accused deploys a “cutthroat” defence: ; BeBedford; Destanostanovic.
- (e) It is contrary to the ints ofice that there be inconsistent verdicts. Those inse interests generally require that where here the
accounts of accused persons differ, such differences should be resolved by the same jury at the same trial. Consideration by the
same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the
other or others: Dem/i>.
- (f) It is also in the interests of justice that hole picture, or a conspectus of the respective roles of each accused in the crimes
with whth which they are charged, is presented to the members of the jury: ; Ali.
/li> - (g) Questions of cost and inconvenience are not irrelevant in determining whether separate trials ought be ordered: Oliver.
- (h) Some prejudice to one or other accused is inevitable in any joint trial. That is a factor which must be taken into account in
striking the necessary balance: Dellapatrona; Duf. /i>.
- (i) In that regard, the common law proceeds onassumption that the jury will obey any direction which is given by a trial judge: K;Kearne.
- Mr Edwards submitted that Rogerson does not t the Prosecution here as it ‘involved joint charges rges and a refusal to order separate trials.’ I agree. It
is distinguishable by that feature alone. Moreover, none of the principles discussed have any application to the circumstances of
the instant case, or to the question of whether it is permitted by established common law to order a joint trial of separate indictments
against three accused, where none have been charged jointly with any offence. I do not understand, nor was it submitted, that Rogerson & McNamara is or could be authority for a departure from the rule in Crane.
- But for the rule in Crane, the principles governing applications for severance may have been instructive on this application. However, in my view, they cannot
simply be inverted to apply to converse applications for a joint trial of a number of accused on separate indictments.
- The severance decisions generally involve starting with one indictment, albeit containing more than one count against one accused
or joint counts against more than accused. If the application is refused, the one indictment would proceed before one jury thereby
not contravening the rule in Crane. If severance of counts and/or accused is ordered, the resulting separate indictments will be heard separately by different juries,
thereby again not contravening the rule in Crane. By contrast, the present application, if granted, would contravene the rule in Crane.
Result: ‘Crane’ is determinative
- For the foregoing reasons, I consider that the Court is bound by the longstanding English common law rule in Crane.
- It has been consistently applied in Australia where statute has not otherwise intervened or altered the rule.
- New Zealand’s procedure is governed by statute.
- Canada’s jurisprudence on the issue has developed in a different direction to England, Australia or New Zealand. Canada’s
position is also subject to a statutory Criminal Code. Mr Edwards’ submissions in relation to Clunas must be accepted. Whatever might be thought of the merit or persuasiveness of the reasoning in Clunas for modern criminal procedure and case management, the position in Canada cannot usurp this Court’s statutory directive to
apply the common law of England to this application.
- Any preference for the Canadian approach or an extension of Assim to other than charges properly joined in a single indictment, thereby seeking to displace the rule in Crane, can only be achieved, in Tonga, by legislation, such as amendments to the Criminal Offences Act or dedicated Criminal Procedure Rules as seen in the other jurisdictions referred to above.
- In those circumstances, it is unnecessary to consider further the other submissions concerning, for instance, whether ordering a
joint trial on economic grounds of cost and time would ‘open a flood gate to the holding of joint trials of defendants indicted
separately’; or whether in any joint trial, Tu'ivakano would be "duty-bound to question the witnesses” called against
Taulua and Tu'akoi to ensure that he is not prejudiced by the evidence; or whether it is essential in the interests of justice that
the matters are combined to give a jury a holistic view of the alleged offending; or the public interest in avoiding the risk of
inconsistent verdicts; or the length and complexity of a joint trial; or issues of cost, time, court resources or inconvenience to
witnesses; or the warnings in Novac. For by this ruling, the merit or otherwise of any such discretionary matters to be weighed in the balance between the interests
of justice and possible prejudice to Tu’ivakano, do not arise.
- Put simply, the prohibition in Crane, against more than one indictment being heard before one jury, is determinative. The Court does not have power to alter or depart
from that rule whether by means of purported (but erroneous) application of the principles from the severance cases, the above discretionary
considerations which fall from those principles, or otherwise.
Orders
- The Prosecution’s application for a joint trial of the indictments in proceedings CR 7, 73 and 74 of 2019 is refused.
|
|
| NUKU’ALOFA | M.H. Whitten QC |
| 3 December 2019 | LORD CHIEF JUSTICE |
[1] Who, for the sake of brevity, and with respect, is hereafter referred to simply as ‘Tu'ivakano’.
[2] Following my ruling dated 25 October 2019.
[3] [1966] 2 Q.B. 249 at 261.
[4] [2001] Tonga LR 44.
[5] (1977) 65 Cr App 107 at 118.
[6] Which apply only to civil actions and not criminal proceedings.
[7] Tupou v Saulala [2004] Tonga LR 158; Percy v Tonga Expeditions Limited [2013] TOSC 47 at [16].
[8] At least in the 9th edition, Sweet & Maxwell, 4-198.
[9] Rule 3.21.
[10] Criminal Procedure (Volume 27 (2015), paras 1–434; Volume 28 (2015), paras 435–957 at 326.
[11] Criminal Procedure Rules 2015, SI 2015/1490, r 10.2(3), which applies equally where the counts in question relate to different defendants as it does to a single defendant.
[12] R v Assim.
[13">[13] R v Assim.
[14] R v Hooley, R v Macdonald, R v Wallis ( 92 LJKB 78, 16 Cr Appr App Rep 171, CCA.
[15] R v Shaw [1942] 2 All ER 34 Cr A Cr App Rep 138, CCA;&R v Greenberg [1942] 2 All ER 28 Cr A Cr App Repp Rep 160, CA (citing R v Carless, R v Stap160 (1934) 25pp Rep 43, CCA).
[16">[16] R v Thorne (1977) 66 Cr Ap 6, CA; CA; and see&#ara.
[17]] Ibid, at 327, citing Crane rane and Dennis.
[18] Nor any guidance from the the Criminal Practice Directions 2015.
[19] (1924) 1 K.B. 867 at 869 per Avory J.
[20] NSW Court of Criminal Appeal, 9 April 1974, unred.
[21] At 409 [11], 411 [26], 412 [35]; 418 [83]; 421 [104]; 430 [151]; 435 [182].
[22] R v Henry; R v Swansson [2007] HCATrans 312.
[23] R v Leslie [1989] 2 Qd R 673.
[24] The Queen v Rigney (1975) 12 SASR 30 Bray CJ, with whom Jacobs J agreed.
[25] Per Lord Atkinson in that case at p. 321.
[26] Sections 589 to 593.
[27] At 257.
[28] At 261.
[29] Also known as Clayton v Chief Constable of Norfolk.
[30] At 46.
[31] At 489.
[32] A later amended indictment against Rogerson, pleaded (as an alternative to the first count) a count alleging an offence of being
an accessory after the fact to murder.
[33] At [60] ff.
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