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Sefo v R [2004] TOLawRp 83; [2005] Tonga LR 485 (24 November 2004)

IN THE SUPREME COURT OF TONGA

Sefo anor

v

R

Supreme Court, Nuku'alofa
Ford J
CR 171/04 and CR 172/04

12 and 22 November 2004; 24 November 2004

Criminal procedure – application for bail pending hearing of appeal – had to have reasonable prospect of success

The two applicants were former employees of the ANZ Bank in Neiafu, Vava'u. Following a three week jury trial in October 2004 they were convicted on dishonesty type charges and sentenced to six years and five years imprisonment, respectively. The last 12 months of the sentence in each case was suspended for two years from the date of their release from prison. The applicants appealed against both conviction and sentence and they made application to be released on bail pending the hearing of their appeals by the Court of Appeal in July 2005. The first application for bail was filed on 3 November 2004 on behalf of Sefo. At the same time, she filed a notice of appeal. Her appeal to the Court of Appeal was comprehensive. The appeal was against the finding that the Crown had established a case to be answered and the summing up to the jury. It was also alleged that the jury's verdict was against the weight of evidence and that the sentence imposed was excessive. Counsel was heard in Chambers in connection with that application on 12 November and the Judge's decision was reserved. Later on 12 November a notice of appeal and application for bail was filed on behalf of Tu'ipulotu. The grounds of appeal, with two exceptions, were identical to Sefo's application. Counsel was heard at another Chamber's hearing on 22 November.

Held:

1. The granting of bail after conviction was a totally different proposition from the granting of bail pending trial, at which point the presumption of innocence still prevailed. A convicted person's right of appeal did not revive the pre-conviction presumption of innocence.

2. Under 4B(1)(a) of the Bail Act 1990 the Court could grant bail to a person who had appealed or applied for leave to appeal against conviction or sentence if the Court was satisfied that there were reasonable prospects of the appeal succeeding. That required a consideration of the grounds of each appeal.

3. The applicants had an onus to establish at least a prima facie basis for the Court being able to hold that the appeals had a reasonable, as distinct from a meagre or fanciful, prospect of success. In the absence of such authorities, the Court did not see that the first ground of appeal had a reasonable prospect of success.

4. The Court made an assessment of the merits of the appeals based upon the material before it. The applicants failed to persuade the Court that there were reasonable prospects of their appeals succeeding and their applications were, accordingly, refused.

Cases considered:

Giordano, Application by 6 A.Crim. R 397

Kafoa v R (App No 347,348,743/1996, 20 June 1997, Court of Appeal)

Mahera, ex parte [1986] 1 Qd R 303

Moananui v R (1984) 1 CRNZ 231

R v Roads [1967] 2 All ER 84

Statutes considered:

Bail Act 1990

Criminal Offences Act (Cap 18)

Evidence Act (Cap 15)

Supreme Court Act (Cap 10)

Counsel for the Crown: Miss Simiki and Ms Raasch
Counsel for the first applicant: Mr Tu'utafaiva
Counsel for the second applicant: Mr Fakahua

Judgment

The two applicants are former employees of the ANZ Bank in Neiafu, Vava'u. Following a three weeks jury trial in October 2004 they were convicted on dishonesty type charges and sentenced to six years and five years imprisonment, respectively. The last 12 months of the sentence in each case was suspended for two years from the date of their release from prison.

The applicants have now appealed against both conviction and sentence and they have made application to be released on bail pending the hearing of their appeals by the Court of Appeal in July 2005. Not surprisingly, perhaps, there appears to have been very few occasions in the past when this Court has been called upon to consider the provisions of section 4B of the Bail Act 1990 which provides for the granting of bail pending an appeal.

The first applicant, Sefo, was the Manager of the Vava'u branch of the ANZ Bank and during the relevant period, the second applicant, Tu'ipulotu, was the bank's Reconciliation Officer. Originally, there were four accused in total, the two present applicants along with 'Alilia Guttenbeil and Siniola Leleifi. The jury heard how, over a period of many months, a large amount of money had been misappropriated from the bank. Approximately $170,000 had been misappropriated from the ATM machine funds alone, $20,000 from the creation of a false mortgage by Sefo and there were obviously other defalcations as well. The total loss suffered by the bank is unlikely to ever be known.

The evidence was that around the second half of 2003 suspicions began to be aroused in the Vava'u community. One witness referred to a story circulating around town to the effect that, "the ANZ girls were rich with money."

The manager and a senior staff member from the local "Look Sharp" store that sells T-shirts and CDs gave evidence about large purchases made by Tu'ipulotu and Leleifi. One of the young women drew attention to herself by buying in one order more CDs from the shop than anyone else had ever purchased. Large purchases of T-shirts were also described by the witnesses. They told how the girls paid for the goods in cash and how one unravelled a bundle of notes, which had been wrapped up like a bundle of notes one sees in a bank. The witnesses from Look Sharp became so concerned about what was happening that one of them decided to go and see the manager of the bank, Sefo, and alert her to the fact that her employees seemed to be spending significant amounts of money around the place. Sefo told her that she would look into it but little did the lady from Look Sharp realise that the bank manager she was making her complaint to was the worst offender of them all.

All that was circumstantial evidence, of course, but, coupled with the other direct evidence, the case against the two applicants and Leleifi was a strong one and I am satisfied that the jury's findings were correct. I said that at the time of sentencing.

The position in relation to Guttenbeil appeared to be different. She gave an explanation to the police, which would tend to exculpate herself from blame. Her explanation related to the false mortgage document which Sefo created in the name of her (Guttenbeil's) parents without the parents' knowledge. I need not go into the transaction but, suffice it to say, Guttenbeil's explanation appeared to have the ring of truth about it. Guttenbeil was not one of the staff identified as a big spender around Vava'u.

In all events, as it turned out, the jury never heard from Guttenbeil. Following a voir dire hearing I upheld her counsel's submissions and, for what might be described as legal, but important, technicalities, I struck out all of the counts against her. Guttenbeil was accordingly discharged. I only mention her involvement because an aspect of her discharge has been made one of the grounds of appeal.

The other accused, Leleifi, was a relatively new ANZ employee. She appeared on the scene only a month or two before the offending was detected but she soon became caught up in the dishonest machinations of the bank's more senior officers. In the end, she was charged and convicted of one offence of embezzlement and sentenced to two years imprisonment with the final 12 months being suspended for two years from the date of her release. She has not appealed.

Originally, Sefo faced eleven counts, Tu'ipulotu and Guttenbeil ten counts each and Leleifi two counts. During the trial there were two hearings on the voir dire upon which I gave rulings and then at the end of the Crown case, all defence counsel made a submission that the evidence did not disclose a case to answer against their respective clients. The submission involved a number of legal issues.

Following on from the no case to answer submission, I discharged Guttenbeil completely and struck out other counts against the remaining accused. Sefo ended up facing four counts of falsification of accounts and one of forgery; Tu'ipulotu five counts of falsification of accounts and Leleifi one count of embezzlement. On 28 October 2004, after a short retirement of less than half an hour, the jury brought in verdicts of guilty against all three accused on each count. They were sentenced the following morning.

The first application for bail was filed on 3 November 2004 on behalf of Sefo. In a supporting affidavit she explained that she was studying towards a law degree and she had two examinations coming up the following week. At the same time, she filed a notice of appeal. Her appeal to the Court of Appeal is comprehensive. The appeal is against my finding that the Crown had established a case to be answered and my summing up to the jury. It is also alleged that the jury's verdict was against the weight of evidence and that the sentence imposed was excessive.

I heard counsel in Chambers in connection with that application on 12 November and reserved my decision. Later that same day a notice of appeal and application for bail was filed by Mr Fakahua behalf of Tu'ipulotu. The grounds of appeal, with two exceptions, were identical to Sefo's application. I heard counsel again at another Chamber's hearing on 22 November.

The granting of bail after conviction is a totally different proposition from the granting of bail pending trial, at which point the presumption of innocence still prevails. A convicted person's right of appeal does not revive the pre-conviction presumption of innocence.

In most other jurisdictions, admission to bail pending appeal is unusual and exceptional circumstances must be shown to exist before bail will be granted. In those jurisdictions, as is noted in Halsbury Vol 11(2), para 904, it is a power "rarely exercised."

The common-law principle has been considered in a number of cases and is probably best summed up in the following extract from Hall's Sentencing, LexisNexis NZ Ltd, 2004, para VI.14.3:

"The inveterate practice in the Court of Criminal Appeal in England has been to refuse bail unless there are exceptional circumstances . . . The true question is, are there exceptional circumstances, which would drive the Court to the conclusion that justice can only be done by the granting of bail. The High Court of Australia has adopted a similar approach . . . In this country the Court of Appeal observed in R v Hartstone (CA 261/87, 6 January 1988) 11 TCL 2/5 that different considerations apply to the granting of bail to a person who has been found guilty of an offence than those that apply where it is sought pending trial. In the first case, a determination of guilt has been reached; in the second, the presumption of innocence still applies. For these reasons, the Court said (per McMullin J.) that, while the issue of whether bail is granted will depend on the circumstances of the particular case, "the grant of bail to convicted persons should be regarded as very much the exception rather than the rule. Moreover, if bail is granted pending the outcome of an appeal which proves to be unsuccessful . . . the appellant has to be recalled from the community, possibly months after his conviction, to serve the sentence imposed".

In the Application by Giordano 6 A.Crim. R 397 at 398, the Court of Criminal Appeal of South Australia speculated on what the situation might be if a more relaxed approach was taken to applications for bail pending appeal:

"There is the serious risk of availability of bail pending appeal leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leave the future to take care of itself. Appeals would be launched irrespective of the prospects of success simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison."

In ex parte Mahera [1986] 1 Qd R 303, 310, Thomas J. observed:

"The spectacle of a recently sentenced man walking free may be seen by the public as equivocation by the courts, and does not tend to foster respect for the system."

In Tonga, the position is governed by section 4B of the Bail Act 1990 which reads as follows:

"4B(1) A person who has been convicted of and sentenced to imprisonment for a criminal offence and who has appealed or applied for leave to appeal against that conviction or sentence may be granted bail if the Court is satisfied that –

(a) there is a reasonable prospect of the appeal succeeding; or

(b) the appeal is unlikely to be heard before the whole or a substantial portion of the sentence has been served; and

(c) there are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will surrender to custody without committing any offence while on bail.

(2) In taking the decision required by subsection (1), the Court shall have regard to all the relevant circumstances and in particular –

(a) the nature of the offence and length of the sentence;

(b) the grounds of appeal;

(c) the character, antecedents, associations and community ties of the person; and

(d) his record in surrendering to custody at the trial and on other occasions."

Although, with reservation, some guidance can no doubt be obtained from decisions in other jurisdictions, section 4B really contains a comprehensive code for dealing with applications for bail pending appeal. Neither application comes within the category of case envisaged in subsection (1)(b) where the appeal is unlikely to be heard before a substantial part of the sentence has been served. The present applications, therefore, are made pursuant to subsection 1(a) which requires the Court to have regard to the prospects of the appeal succeeding. The Court needs to be satisfied that there are reasonable prospects of the appeal succeeding and that element in turn requires a consideration of the grounds of each appeal.

I say at once that such a task puts me, as the trial judge, in a rather invidious position. For obvious reasons, I would prefer not to have to deal with grounds of appeal involving my own trial rulings or directions to the jury. A similar situation faced Eichaelbaum J. (as he then was) in Moananui v R (1984) 1 CRNZ 231. His Honour, in dealing with a bail application pending appeal, had to consider the force of a ground of appeal, which alleged that he had misdirected the jury on evidentiary matters. The learned Judge opined:

"Although I have to respond to Mr Mills' submission, it would be presumptuous of me to endeavour to deal in any depth with any of these issues."

The Court's obligation under the Bail Act is less equivocal. As I see it, I am obliged by the statutory provisions to give proper consideration to the grounds of appeal and the prospects of the appeal succeeding. With some diffidence, therefore, I now turn to consider the grounds and merits of the appeals.

On an application for bail pending appeal there is a reversal of the usual onus of proof obligation in criminal cases. The onus is on the applicant to show cause, by reference to the relevant statutory criteria, why bail should be granted.

At the Chambers hearings, counsel were given the opportunity to present any additional submissions they wished to make over and above the information that was already before the Court but both Mr Tu'utafaiva and Mr Fakahua indicated that they were content to rest their applications on the contents of the written grounds of appeal already filed.

The first ground of appeal relates to my finding on the no case submission. It is alleged that I erred in finding that the remaining counts in the indictment were not defective and in ruling that there was sufficient evidence to go to the jury.

As indicated, the legal arguments raised on the no case submission involved issues of some complexity. I recall, for example, in relation to the theft charges that were included in the original indictments that an issue arose as to whether computer generated false computerised credit entries in a bank account could be held to come within the definition of theft. In the end, I struck out all the theft charges. I also recall making the observation at the time that some of the legal issues raised were difficult for the Court to have to deal with at short notice given the paucity of research facilities available at the Vava'u Court house. I accept, of course, that counsel no doubt found themselves in similar difficulties.

I mention these matters because, against that background, I would have thought that it behoved counsel, upon their return to Tongatapu, to carry out whatever research was needed so that in support of the bail applications they could refer the Court to some authority whether it be from reported cases or legal textbooks in support of their bald assertion that my ruling on the no case submission was wrong. They have not done so. I would not expect to hear argument on any such authorities, that would be encroaching into the Court of Appeal's territory but it seems to me that the applicants do have an onus to establish at least a prima facie basis for me being able to hold that the appeals have a reasonable, as distinct from a meagre or fanciful, prospect of success. In the absence of such authorities, I cannot see that the first ground of appeal has a reasonable prospect of success.

The second ground of appeal is more complex to deal with in this ruling. It is against six issues arising out of my summing up. The first two grounds relate to remarks made to the jury by the prosecutor in the course of her address to the jury. The first remark was her comment that there were other charges that could have been brought against the accused apart from those before the Court. This was a reference to a pre-trial ruling, which I had given as to the number of counts that the Crown was able to include in the various indictments. As I understood it at the time, originally, when the case was before the Magistrates' Court, the prosecution was contemplating some 400 or 500 charges against all the accused.

In this court, I gave a ruling, based on section 150 of the Criminal Offences Act (Cap 18) and other authorities, restricting the number of counts that could be laid on the indictment to no more than five in respect of any one particular type of offence. That was no doubt the point Crown counsel was alluding to.

The other remark to which exception is taken in the grounds of appeal was the comment by Crown counsel to the effect that in Tongatapu the general public perception is that the prosecution never wins a jury trial in Vava'u. The ground of appeal in both cases is that I failed to firmly and sufficiently direct the jury to disregard the comments.

In my summing up I directed the attention of the jury to both comments. I told them that, unfortunately, because I had to wait for the remarks to be translated into English, there was nothing I could have done at the time to prevent the jury from hearing them. No objection was raised at the time by defence counsel. I went on to tell the jury that the comments should not have been made and that Crown counsel should have known better. I then directed the jury to ignore them and put them out of their minds.

I cannot see any force in this ground of appeal. If I had ignored the remarks and said nothing to the jury about them then the position would have been different but I gave the jury a clear direction in relation to them.

The next two grounds of appeal relate to the reduction in the counts in the indictment, which I ordered at the end of the no case submission and the discharge of Alilia Guttenbeil. It is alleged that I did not explain the reason adequately in each case and the jury could draw the inference, therefore, that they should convict on the remaining counts and, likewise, convict the remaining accused.

Again, no authority has been cited to the Court in support of this ground of appeal. Because of the nature of the charges and the complexity of the legal issues involved, I deemed it appropriate to say as little to the jury as possible about the reduction in the counts and the discharge of Guttenbeil. I concluded that to explain the situation adequately with reference to the legal issues involved could well simply confuse the jury in relation to what they had to know about the law in respect of the remaining counts in the indictment which was a difficult enough matter for them to have to deal with anyway.

Archbold 2001 ed. para 4.292 states:

"If the submission of no case is rejected, there should be no comment of the jury . . . However, it being generally desirable, and especially so in long cases, that the judge keeps a jury informed as to what is happening, it is proper for him to give a brief explanation for upholding one or more submissions of no case, so long as he says nothing which might be construed as indicating a belief on his part that any remaining counts are well-founded".

That passage sets out the converse argument to the point raised in this particular ground of appeal. I do not see it as stipulating a requirement that reasons for upholding part of a no case submission must be explained to the jury. Instead, the learned authors simply seem to be saying that the trial judge is at liberty to give a brief explanation to the jury if he so desires provided that he does nothing to convey suspicion of a belief on his part that the remaining counts are well founded or that the remaining accused should be found guilty. In the absence of any reference by counsel for the applicants to any authority to the contrary, I do not see any substance in these two grounds of appeal.

The next ground of appeal is that I failed to direct the jury that they contents of documents certain witnesses referred to, that did not produce a court, must be proved by primary evidence. No other details are provided of this ground of appeal.

There were a great number of documents before the jury. Of the 46 documents produced by the Crown as exhibits, many run into numerous pages. The contents of some of the documentation was extremely complicated and, in this regard, I refer in particular to documentation relating to the workings of the ATM machine.

The specific documents referred to in this ground of appeal, which apparently were not produced, have not been identified nor has the evidence attributable to the named witnesses. Moreover, I cannot recall any objection having been raised by defence counsel at the time to the admissibility of the evidence in question.

In these circumstances, I cannot attribute any weight to this ground of appeal.

The final ground of appeal in relation to my summing up is that I failed to direct the jury that two of the witnesses, Tangitau Puloka and Leilani Uhi Va'enuku, "in certain aspects of their respective evidence were not expert witnesses."

The evidence in question is not identified but I perceive that it was evidence relating to the forgery charge against Sefo. The evidence was that she, through the use of a photocopier, transposed the Villa's signature of the bank's loan manager in Nuku'alofa, Mr Tim Valente, from a genuine loan approval document onto the fictitious loan documents, which she had drawn up in the name of Guttenbeil's parents. The fraud was detected when another bank official realised that Mr Valente had left Tonga and return to Australia at the time he was supposed to have signed his approval to the false loan documents.

Puloka and Va'enuku worked in the ANZ Bank in the Nuku'alofa and they were very familiar with Mr Valente's writing and signature. They identified his signature to the jury.

In his address, Mr Tu'utafaiva reminded the jury that neither witness was a handwriting expert nor were they are able to give expert evidence about the supposed use of a photocopier to transpose Mr Valente's signature.

Under section 26(1) of the Evidence Act (Cap 15) any person acquainted with the handwriting of another person is able to express an opinion as to whether or not the writing or signature is genuine. He or she does not have to be a handwriting expert.

The Crown's case in relation to the photocopier was that because the original document containing the loan approval notation signed by Mr Valente had been produced and it contained a unique line running through it and because that same unique line also appeared running through the approval notation signed by Mr Valente which appeared on the false loan documents, one did not need expert evidence to detect the fraud.

That seemed a common sense proposition and that is how I left it with the jury. I see no substance in this ground of appeal.

There then further grounds of appeal in Sefo's application, which were not duplicated in Tu'ipulotu's application. First, but I failed to tell the jury that the Crown prosecutor was wrong when she said that the evidence of Inspector Tu'ihalagingie about an alleged statement made by the accused Leleifi in the absence of Sefo, could be used as evidence against Sefo.

In my summing up, I reminded the jury, and I stressed that it was "important" for them to understand that a statement made by one accused to the police could not be used against another accused mentioned in it and it must be totally disregarded when considering the evidence against that other accused.

In other words, there is no substance to this ground of appeal.

The other ground of appeal relied upon by Sefo is that I told the jury that the verdict had to be unanimous and I, therefore, let them to believe that they had no choice in the matter other then to return a unanimous verdict. In the same paragraph, the additional allegation is made that on the day after the jury's verdict had been given, two of the juryman went to see another lawyer in Neiafu and indicated to him that one of their number (not one of the two men who attended the lawyer) did not agree with the jury's decision.

I do not see any substance in this ground of appeal. Under section 14(8) of the Supreme Court Act the verdict is required to be unanimous. The authorities are also clear that if a verdict is rightly delivered in court by the former in the presence of all the jurors, then their assent will be resumed. A juror cannot later give evidence of a lack of unanimity with the verdict was returned in his presence and hearing --see R v Roads [1967] 2 All ER 84.

In other words, again, I see no substance in this ground of appeal.

I do not see any need to refer to the grounds of appeal against sentence. Even if the Court of Appeal would vary the terms of imprisonment, I do not consider it likely that they would reduce the terms to such an extent as to bring section 4B(1)(b) into play. In other words, so that it could be claimed that a substantial portion of the sentence would have been served before they appeal hearing next July.

I stress that I do not wish to be seen in any way as appearing to pre-empt the ultimate decision the Court of Appeal will need to make after it has heard full argument on the matter. Under the Bail Act, however, I am clearly required to make an assessment of the merits of the appeals at this stage based upon the material I have before me. Having carried out that exercise and made my assessment all I can say is that, for the reasons stated, the appeals have only meagre prospects of success.

Having reached that conclusion, it would be quite inappropriate for me to grant bail. In this regard I am unmindful of the admonition of the Court of Appeal in Kafoa v R (App No 347,348,743/1996, 20 June 1997, Court of Appeal) where the Court was critical of the Judge's decision to grant bail to three appellants in a rape case pending appeal having regard, in particular, to the gravity of the offences and the appellants' meagre prospects of success. The court went on to make the following additional observation:

"The fact that the appellants were admitted to bail and have lived in the community for nearly a year since they were convicted has complicated the task of deciding what orders should be made in disposing of the appeals."

The applicants have failed to persuade me that there are reasonable prospects of their appeals succeeding and their applications are, accordingly, refused.