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Filipe v R [1998] TOLawRp 28; [1998] Tonga LR 232 (22 October 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 1259/98

Filipe

v

R

Finnigan J
20 October 1998; 22 October 1998

Criminal procedure ⎯ non-appearance of defendant before Magistrate

The appellant was charged with travelling at 52 kilometers per hour. The magistrate made an order requiring the appearance in court of the appellant in an undefended traffic summons. The appellant appealed against that order.

Held:

1. A charge of travelling at 52 kms per hour was not one that would clearly warrant a term of imprisonment, so it may not warrant arresting an absent defendant who is represented by a lawyer, just to have him before the court.

2. Pursuant to ss 74 and 80 of the Magistrates’ Courts Act (Cap 11) the matter was remitted to the Magistrate so that he could consider again, with reasons, the decision whether to hear and determine the charge in the absence of the defendant.

Statutes considered:

Magistrates’ Courts Act Cap 11

Traffic Act Cap 156

Counsel for appellant: Mr Hola
Counsel for respondent: Ms Tupou

Judgment

This is an appeal against a Magistrate’s order requiring the appearance in court of a defendant in an undefended traffic summons. The order was made under s 21(1) of the Magistrates’ Courts Act Cap 11. While considering s 21, it is important to be aware of s 20, which provides that in summary jurisdiction criminal cases, “[b]oth the complainant and the defendant shall be entitled to conduct their cases in person or by a law practitioner [as amended by No 24/1990]”. The relevant part of s 21 is as follows:

21. (1) If on the date for the hearing specified in the summons the defendant does not appear before the Court when his name is called the magistrate may either:

(a) adjourn the hearing of the case to a later date; or

(b) after proof of service of the summons, hear and determine the case in the absence of the defendant; or

(c) after proof of service of the summons, issue a warrant for the arrest of the defendant and adjourn the hearing.

(2) When the defendant is arrested under any such warrant as aforesaid he shall be brought forthwith before a magistrate who may either admit him to bail or order him to be remanded in custody until the next sitting of the Court.

That is the statutory prescribed procedure to be followed in summary jurisdiction criminal cases “... on non-appearance of defendant” (marginal note). It is appropriate to mention also ss 22 and 23, which are the prescribed procedures for non-appearance of the complainant and non-appearance of both parties, respectively, in summary jurisdiction criminal cases.

There is as well s 24, which prescribes the procedure for the court to follow 50 where both parties appear. It includes the provisions at subs (2) and (3):

(2) At the outset of the hearing the magistrate shall state to the defendant the offence charged in the summons and shall ask him whether he is guilty or not guilty.

(3) If the defendant says that he is guilty the magistrate shall make such order against him as the justice of the case requires.

It is fundamental that the court may require any person who is liable to imprisonment to be present in court at the time of sentence, so that the person may be taken into custody if the court should pronounce a sentence of imprisonment. That is the reason for providing a power to issue a warrant of arrest (after proof of service of the summons) at s 21(1)(c) (above). However, the power is discretionary, because another option is provided. Section 21(1)(b) allows the court, after proof of service, to hear and determine the case in the absence of the defendant.

This summary procedure in criminal cases contrasts with the procedure provided for the civil jurisdiction at ss 64 to 66 of Cap 11. There, the procedure commences (at s 64) by providing, in almost the same words as s 20, that “[b]oth the plaintiff and the defendant shall be entitled to conduct their case in person or by a licensed lawyer”. Both s 65 and s 66 make provision for where a party may be “absent and unrepresented by a lawyer” (s 65), or may “appear either personally or by 70 a lawyer” (s 66).

It seems clear from these civil provisions that the legislature intended that parties in civil cases may be absent but represented, and may appear by having a lawyer appear for them. From the criminal provisions it is clear that the legislature intended to require that defendants in criminal cases tried summarily will be present when charges against them are called before a Magistrate. But not always, because the legislature also clearly intended to permit a Magistrate to proceed with a case, “after proof of service of the summons ... in the absence of the defendant.” (s 21(1)(b)).

Both Mr Hola and Ms Tupou made excellent submissions to me. This is clearly a matter of some importance in disposal of cases in the Magistrates’ Courts. I shall not refer to these submissions in detail, but they have been of great help to me in reaching my decision. I shall mention specifically only one. Ms Tupou submitted that the appellant had not complied with the new procedure established by the legislature in1990 when it enacted amendments to the Magistrates’ Courts Act Cap 11 and allowed “Pleas of Guilty in Absence”. However, I find that procedure does not apply in the present case, because it is for offences under the Traffic Act “... which do not carry a sentence of imprisonment ...”(s 20A(1)), and the appellant in the present case was charged under s 41(2) which provides for imprisonment up to one year.

In s 21(1)(b) the legislature enacted a power that is intended to be used. This means there must be cases where the court is entitled to “hear and determine the case in the absence of the defendant”. Mr Hola’s submission in this regard is correct. The court is provided with two distinct powers to use when a defendant “does not appear before the court”(s 21(1)), and “after proof of service of the summons”. It must choose one, at its discretion. Its discretion must be exercised according to principle and according to justice. According to principle, it must act openly, with reasons, and with the purpose of justly disposing of its cases with reasonable speed. It must not require more of complainant or defendant than the statute empowers it to require. According to justice, it must be seen openly treating both sides fairly. The ultimate decision is for the individual Magistrate, but there must certainly be times when principle and justice require the Magistrate to proceed under s 21(1)(b) and hear the case without the defendant being present.

In the present case, the Magistrate misdirected himself in the law. He said (in translation), “It is not right to do the case without the presence of the defendant.” That is clearly contrary to s 21(1), which says that it is right to hear and determine the case in the absence of the defendant. He said, “You are putting down this court. You should have an understanding with the prosecution before you made that request ... the defendant should come to the prosecution because there is a form to fill in and to sign, that he pleads guilty and consents for counsel to represent him, and the prosecution should bring that to court before the court starts.” That judgment is wrong in law, because the defendant was entitled to employ a lawyer to come before the court without advising the prosecution and submit that his case came within s 21(1)(b). The reference to a form, if it was a reference to S20A, was incorrect because that procedure applies only to charges that do not carry sentence of imprisonment.

The Magistrate in the present case must turn his mind to the question put before him by counsel, and decide that question according to justice and to principle. In that way he is exercising correctly the discretion given to him by s 21(1). He must decide, on firm grounds, whether to proceed without the presence of the defendant or whether to issue a warrant for his arrest and, if so, adjourn the hearing. The discretion to issue a warrant of arrest must itself rest on firm reasons that justify an arrest. The history of a particular defendant’s appearances before the court may be a factor. The penalty provided for the offence charged, and the likely penalties for the particular defendant, are important factors. Prima facie, a charge of travelling at 52 kilometers per hour, as in the present case, is not one that would clearly warrant a term of imprisonment, so it may not warrant arresting an absent defendant who is represented by a lawyer, just to have him before the court.

Pursuant to ss 74 and 80 of the Magistrates’ Courts Act I remit this matter to the Magistrate so that he may consider again, with reasons, the decision whether to hear and determine the charge in the absence of the defendant.