IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION AC 14 of 2013
NUKU'ALOFA REGISTRY [CR186 of 2012]

BETWEEN:

REX
Appellant

AND:

MAKA LATU
Respondent

Coram: Salmon J
Moore J
Blanchard J 
Tupou J

Counsel: Mr S. Sisifa SG for the Appellant
 Respondent in Person

Date of Hearing: 23March 2015
Date of Judgment: 31March 2015

JUDGMENT OF THE COURT

[1] The question before this Court is whether in the particular circumstances the Crown has a right of appeal against a decision by the Hon. Justice Catoin the Supreme Court discharging the respondent on a charge of possession of stolen property contrary to s.153 of the Criminal Offences Act (Cap 18).

[2] The circumstances in which that decision was made are these. Mr. Latu was charged on indictment with housebreaking contrary to s.173 (b) of the Act and theft contrary to ss 143 and 145 (b). The charge of possession of stolen property was expressed to be in the alternative to the other two charges. Cato J acquitted Mr. Latu on the housebreaking and theft charges.

[3] In relation to the possession charge, Cato J said only that it was not triable on indictment. Section 153 expressly said that proceedings were to be commenced by summons to a Magistrate's Court and determined by a Magistrate. Therefore, the Judge said, the offence was not triable before him in the Supreme Court and the charge had to be dismissed.

[4] The application for leave to appeal was made out of time but the Lord Chief Justice has granted leave.

[5] In support of its appeal the Crown refers to s.4 of the Supreme Court Act:

 "4. Jurisdiction
(1) The Supreme Court shall have jurisdiction to hear any proceedings, other than proceedings which –

(a) are excluded from the jurisdiction of the Supreme Court by the Act of Constitution of Tonga; or

(b) by law, are within the exclusive jurisdiction of another court or tribunal:

Provided that a summary offence arising from the same facts of an offence triable in the Supreme Court may be heard together in the Supreme Court."

and to s.42(3) of the Criminal Offences Act:

"(3) Where on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
 
[6] It is apparent that Cato J was not referred to either of these provisions. As it happens, in a later case, R v Hala'ufia & Ors Cr 35, 36, 91, 92, 93/2013, to which the Crown has referred in its submissions, the same Judge (at [18] – [21]) addressed whether he could find verdicts on an unindicted offence (common assault as an alternative to manslaughter and wilfully causing death) and accepted the submission for the Crown that s.4 and s.42(3) gave him the power. He said: 

[21] In my view, section 4 is sufficiently broad a provision for me to infer that Parliament intended this Court to be able to enter verdicts for charges which, although being summary charges, were available as an alternative to the indictment because of the operation of section 42 (3) of the Criminal Offences Act. Had the provision been limited to the determination of summary offences that had been the subject of a charge and formal committal by the magistrate under the Magistrates' Court Act, then the section would have provided for this limitation. I am satisfied that this interpretation enables this Court to sensibly resolve cases on their merits. This means that I regard myself as able where appropriate to return verdicts of common assault under section 12 of the Criminal Offences Act, as an alternative.

[7] We consider that the Judge was correct in Hala'ufia and erred in the present case. The proviso to s.4 states that a summary offence arising from the same facts as an offence triable in the Supreme Court may be heard together, in the Supreme Court. In other words, a non–indictable offence can be heard together in that Court with an indictable offence where both arise from the same facts.

[8] Section s.42(3) confirms that where someone is tried on indictment for an offence (except treason or murder) and is found not guilty by the Jury (or by the Judge where trial by Judge alone has been elected under s.12 of the Magistrates' Courts Act (Cap 11)) but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Court of trial (which is a reference to s.4) the Jury or the Judge may find the person guilty of that other offence (or of an offence of which the person could be found guilty on an indictment specifically charging that other offence).

[9] The summary offence of possession of stolen property could be tried in the Supreme Court if, as appears, it arose from the same facts as the charges of housebreaking and theft. The summary offence then, in terms of s.42(3), was one "falling within the jurisdiction of the Court of trial". Provided, as also appears, that the allegations in Counts 1 and 2 of the indictment amounted to or included (expressly or by implication) the allegation made in the alternative count of possession of stolen property, it would follow that the Judge could find Mr. Latu guilty of that possession. He therefore should not have discharged Mr.Latu without considering whether in light of the evidence the requirements of s.4 and s.42(3) were met and, if so, whether Mr. Latu was guilty of that offence.

[10] We accordingly set aside the discharge on count 3 and remit the case to the Supreme Court for the trial Judge to decide:

(a) whether the requirements of s.4 and s.42(3) are in fact met and, if so,

(b) whether the Crown has proved Mr.Latu's guilt on the charge of possession of stolen property.

Salmon J

Moore J

Blanchard J

Tupou J