[1994] Tonga LR 122

Halalupe

v

Police

Supreme Court, Neiafu, Vava'u
Ward CJ
Criminal Appeal No.824/94

25 October, 1994
Appeal against conviction - credibility - intervention by magistrate
Criminal law - appeal - intervention by magistrate 
Magistrates - role in trial - conduct
The appellant appealed against his conviction for theft on the grounds of insufficiency of, and inconsistencies within, the trial by the magistrate.
Held:
	1. Matters of credibility and analysis of evidence are much better assessed by the magistrate who has had the advantage of seeing and hearing the witnesses evidence.
	2. Although the magistrate had undoubtedly taken too much part in the examination of witnesses including the appellant (a magistrate should ask questions to clarify matters he considers unclear or to clear up apparent ambiguities) the test was whether a reasonable and uninformed bystander would think the court was not fair.
	3. If so, whether or not it was in fact fair, the appeal must be allowed. But on the facts here no one would have been likely to form the view the court was biased either way, but may have had an inpression of over earnest but confused thinking by the magistrate.
	4. Appeal dismissed.
	5. (Obiter) Magistrates have a duty to discover the facts and should always strive to have relevant statements repeated in direct speech using, as far as possible, the actual words.
Counsel for appellant: Mr Piukala
Counsel for respondents: Mrs Taumoepeau

Judgment
The appellant appeared before the Magistrates Court in Vava'u on 5th July 1994 and pleaded not guilty to a single charge of theft of vanilla beans. The trial continued over three days and he was convicted and sentenced to six months imprisonment.
He now appeals against his conviction on four grounds:
	1. That the learned Magistrate was wrong in his decision that the appellant was guilty of the charges laid against him.
	2. That the learned Magistrate was wrong in reaching the decision he did because so the evidence adduced was insufficient.
	3. That the learned Magistrate was wrong in procedure when he put too many questions and harassed the appellant.
	4. That the learned Magistrate was wrong when he stopped the accused repeating and expressing the condition of the prison where he was locked in and the abusive words used to him by the Police.
Plainly paragraphs 1 and 2 raise a single ground of appeal and paragraph 4, whilst a substantial complaint, does not present any ground for challenging the magistrate's finding. Counsel for the appellant agrees and the hearing has proceeded on that basis.
In relation to the first ground, counsel for the appellant points to a number of inconsistencies between the evidence of the various prosecution witnesses and between them and the appellant' witnesses.
It has been stated all too frequently in this Court that matters of credibility and analysis of the evidence of the various witnesses are matters that are much better assessed by the magistrate who has had the advantage of seeing and hearing their evidence. This Court will only interfere if it is satisfied there has been an injustice. This case falls far short of that. Inconsistencies there are but the prosecution evidence is consistent on the principal points of the evidence and the magistrate preferred those witnesses. Much of their evidence was, a fact, confirmed by the defence witnesses. The Magistrate had principal points of the evidence and the magistrate preferred those witnesses. Much of evidence upon which he could properly base his decision and the first ground fails.
The second ground refers to the manner in which the magistrate conducted the trial. It is only too apparent from the record that he examined every witness and in many cases in greater detail and at greater length than had either counsel. In the case of the appellant, the questioning went into more detail than the prosecutor's cross examination. Counsel for the appellant suggests this could have given rise to a feeling that the case had been prejudged.
It was a most unfortunate way to conduct the trial. The magistrate may and should ask questions to clarify matters which he considers unclear or to clear up apparent ambiguities. In a criminal case he should ensure the accused has been able to put his case fully but, where the accused is represented, he should assume the lawyer is doing so. He should not ask more that is necessary and should certainly not "descend into the arena", or there is a danger, as has been stated by one judge, that he will have his vision obscured by the dust of the conflict.
In this case the magistrate undoubtedly took too much part in the examination of witnesses. That was the function and duty of counsel and he should, in the main, have left it to them. The appellant suggests it gives an impression of partiality. I have studied the questions carefully and I cannot accept they show that at all. What they amount to is a wide ranging, undirected and disorganised series of questions largely repeating the topics raised by both counsel. The accused fares no better and no worse in that respect than the rest of the witnesses.
It is important that cases are not conducted in this way. The courts must always be seen to be fair. Such an involvement may only too easily suggest partiality. In this case I must ask myself whether there is a chance a reasonable and uninformed bystander would like the court was not fair. If so, whether or not it was in fact fair, the appeal must be allowed.
I do not consider that anyone would have been likely to form the view the court was biased either way. What they would have been left with was, I fear, an impression of over earnest but confused thinking by the magistrate.
This ground fails.
Before leaving the case one other matter should be mentioned that is raised in the last paragraph of the grounds of appeal.
The appellant when giving evidence told the court about threats made to him by one of the police officers. The threat, if made, was clearly in crude and obscene language. The magistrate prevented the appellant from repeating the actual words used. Similarly, when describing the cell in which he was detained the appellant complained that there was human faeces on the floor and there was an overwhelming stench of urine. The words he wanted to use to describe this were considered unaccceptable by the magistrate.
Magistrates should remember in all trials that, whilst they have a duty to maintain the status and respect of the court, they equally have a duty to discover the facts. The court should always strive to have relevant statements repeated in evidence in direct speech using, as far as possible, the actual words. If a witness is telling of obscene language used by another and it is relevant to the case, he should be encouraged to state it exactly.
Similarly it should always be remembered that witnesses are not chosen because they have a good standard of education. Many people have limited vocabularies. When dealing with matters they find embarrassing on topics they would not normally talk about, they may only be able to describe them in words that are considered offensive by many people. Even when, with a few moments reflection they may think of a more felicitous term or phrase, the strain of appearing in a public court may leave them unable to think of any alternative. Refusal to allow them to use the words they find easy may well stifle the evidence they wish to give.
Of course the court must be on guard against people "playing to the gallery" or being obscene for obscenity's sake or mocking the court. But such situations are rare in Tonga and certainly far more rare than relatively inarticulate, ill educated and nervous witnesses who have given up their time to help the court by giving truthful evidence of relevant matters albeit in unfortunate language.