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R v Dalgety [2010] TOLawRp 29; [2010] Tonga LR 186 (1 November 2010)

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

CR 64/2010

R

v

Dalgety QC

Shuster J
1 November 2010

Judicial review – indictment unsigned and undated – indictment a nullity and therefore quashed

It was alleged that on or about 19th January 2010 Lord Ramsay Robertson Dalgety QC made under affirmation in judicial proceedings, before the Royal Commission of Inquiry into the sinking of the MV Princess Ashika, a material statement relating to a matter of fact which he knew to be false. The defendant was charged with one count of perjury contrary to section 63(1) of the Criminal Offences Act (Cap 18). The defendant sought to quash the indictment.

The judgment was successfully appealed by the Crown and the Court of Appeal judgment is at page 195.

Held:

1. The court found that the Tongan Indictment contained in the file was undated and was unsigned. Also, the Tongan Indictment was not stamped by staff using the Supreme Court Seal.

2. The indictment was a nullity which could not be cured with an amended indictment and it was therefore quashed.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mr Kefu
Counsel for the defendant : Mr Hirchfield, Mr Baron Afeaki, Mr T Afeaki

Clarification of the reasons for quashing the indictment in file CR 64-2010

On Monday1st November 2010 this Court heard a pre-trial application to quash the indictment preferred against the defendant Ramsay Robertson Dalgety on 23rd April 2010, alleging a crime of perjury.

The charge alleged: -

LORD RAMSAY ROBERTSON DALGETY QC had been charged with a single count of perjury, contrary to section 63(1) of the Criminal Offences Act (Cap 18) of the Laws of Tonga.

The charge relates to an allegation - that on or about 19th January 2010 at Kolofo'ou Lord Ramsay Robertson Dalgety QC did make under affirmation in judicial proceedings; before the Royal Commission of Inquiry into the sinking of the MV Princess Ashika, a material statement relating to a matter of fact which he knew to be false, which is recorded in the official transcript of that judicial proceedings as follows.

MR VARITIMOS, Well, do you know what the shareholding in Ocean Pacific Limited is?

Lord Dalgety, I-I can't remember that. It was – it was organized out- I wasn't involved in the organization of that company.

In the light of my oral ruling on the 1st November 2010 I have decided to clarify and expand upon my oral decision as it relates to file CR64-2010.

Chronology of the file reference CR 64-2010

In perusing the front of the court record it shows the following to have occurred in relation to file CR 64/2010 – the case of R v Dalgety

On15th April 2010 the file was assigned to Ford CJ with the words "hold for arraignment" written in Ford CJ's own hand, on the file cover.

On 27th April 2010 the record indicates the defendant appeared for arraignment. The Crown was represented by Mr. Kefu; the defendant was represented by Mr. Afiaki.

From perusing the Court file there is no record on this file of an Indictment being filed in this court on or after the 23rd April 2010.
A stamp placed and identified as entry 8 - on the file cover, reveals the defendant pleaded not guilty to the charge, he elected to be tried by a judge sitting alone. The stamped record was completed in Ford CJ's own hand.

The record indicates the trial was fixed for 26th October 2010 and a pre trial conference [PTC] was fixed for 29 September 2010 bail was extended to that date.

The cover reveals on 30th June 2010, a directions hearing was fixed for 23rd July 2010 before Ford CJ that hearing was attended by Mr. Kefu and the defendant in person

The hearing of 30th June 2010 was adjourned to 4th August 2010 - no reason is recorded on the cover as to why the hearing was adjourned, on that day.

On the cover, dated 23rd July 2010 is a note stating as follows - at the directions hearing on 4th August 2010, a fixture will be made for dealing with the defence pre trial application, QUERY – was this the application to quash the indictment?

On 4th August 2010 the record indicates Mr. Afeaki Mr. Kefu and the Court, agreed to deal with what the Chief Justice called, 'the application' - by way of written submissions timetabled as follows.

• Mr. Afeaki was to file his submissions by 11th August 2010

• Mr. Kefu was to file his submission in response by18th August 2010

• Mr. Afeaki was to file submissions in reply by 25th August 2010.

On 5th August 2010 the Court file record indicates the file was administratively reassigned by Ford CJ, to Shuster J.

On Monday16th August 2010 Shuster as Acting Chief Justice saw the Dalgety file CR64/2010 for the first time, and asked court staff where the submissions were?

The Crown had filed their submissions on 16th August 2010. Final submissions appear to have been served on the Court on 9th September 2010.

On 22nd September 2010 the defendant appeared before the court requesting the court's permission to travel out of the jurisdiction, on official business.

Before granting the request, the Court requested Crown Law's opinion and ordered their attendance in chambers that same afternoon.

The request by the defendant to travel abroad was agreed to, by the Crown Law Office. Accordingly the defendant was allowed to travel.

Commentary

This court recognizes in determining the outcome of a trial of ANY person involving trial before a judge sitting alone, the case file will require handling with utmost care.

In a trial where the defendant has elected trial by a Judge sitting alone, the Judge cannot just simply look inside the case file, because he may see evidence he should not see or something which might sway him one way or the other in his decision making process.

I certify that on checking the contents of our court file CR64 / 2010 on the 29th September 2010 in chambers, whilst considering the defence motion to quash the Indictment, that this Court found the following documents on file.

Contained in the file was an Indictment relating to file CR64/10 - written in the Tongan language. Tongan is the official language of the Kingdom – it is apparent to this court that Mr. Dalgety speaks and understands English as his first language.

The Tongan Indictment, contained in file CR64/10 is undated and is unsigned FURTHER and of particular importance to this court; was the fact the Tongan Indictment had not been stamped by staff using our Supreme Court Seal.

My finding is that the Tongan Indictment had not been dated and or signed by a court official - on its front page in the top right hand corner, as is our usual practice.

That single Tongan Indictment was the only Indictment contained in our court file, and this finding - is in my view extremely important to the outcome of the defence application to quash the indictment which was said to have been filed on the 23rd April 2010.

Request for a copy of the indictment

At a pre trial conference which took place in Chambers on 29th September 2010, present was Mr. Sisifa representing the Crown, and, Mr. Hirschfeld for the defendant who was abroad and my associate.

I explained that I had inherited this case from the former Chief Justice and that I was unable to proceed to trial on the 26th October 2010 because of other court commitments.

At the PTC I was handed a letter dated 17th September 2010 and an English copy of the defence counsels Indictment by counsel for the defendant - Mr. Hirschfeld. He indicated this indictment had been supplied to him by the Crown – in response to his letter of the 17th September 2010,

I certify this was the first time; as the trial judge that I had seen an English translation of the Tongan Indictment against Lord Ramsay Robertson Dalgety QC.

At the PTC defence counsel drew the Courts attention to their letter dated 17th September 2010 the letter requested a copy of the Indictment laid against the accused it was addressed to the Solicitor General, the letter is self explanatory and the court was furnished - a copy.

At that PTC, the court was assured by the representative of the Crown Mr. Sisifa that full disclosure of their case had been made to the defence

The pre trial conference 29th September 2010

At the PTC 29th September 2010 - it was decided as follows.

The trial listed by Ford CJ for the 26th October 2010 would be vacated and moved to the week commencing 1st November 2010 because the Court had other fixtures on the 26th October 2010.

The Court agreed that the defence motion to quash the indictment would be heard pre-trial, and be based on the parties written submissions as previously agreed.

Effectively the Court confirmed the party's agreement with Ford CJ made on 4th August 2010 that submissions were to be on paper and, the Court agreed that agreement would be honoured.

Defence request for a copy of the indictment
In my view it is necessary for me to set out the contents of the letter dated 17th September 2010, handed to the Court by defence counsel, addressed to the Solicitor General

The letter reads as follows,

TU'INUKUTAVAKE BARON AFEAKI

Lawyer Kingdom of Tonga Barrister [New Zealand]

17th September 2010

The Solicitor General

Crown Law

Nuku'alofa

Dear Solicitor General

Could you please supply this office [within seven days] with a copy of the indictment to be presented in the above case?

Form 19 being a notice to Magistrate of Application for Committal does not constitute an indictment

The matter is urgent so I would ask for your immediate attention to this matter. The next judicial event is the Pre Trial set down for the 29th September 2010.

Signed T Baron-Afeaki

The letter to the Solicitor General indicates on its face, that officials from the Crown Law Office received the letter at 2.50 pm the same day. I heard from counsel that in response to that letter a copy of the Indictment was served upon them.

The timing of the letter dated 17th September 2010 requesting a copy of the Indictment is important because as it says clearly in the Constitution.

The Constitution

11 Procedure on indictment

No one shall be tried or summoned to appear before any court or punished for failing to appear unless he have first received a written indictment (except in cases of impeachment or for offences within the jurisdiction of the magistrate or for contempt of court while the court is sitting). Such written indictment shall clearly state the offence charged against him and the grounds for the charge. And at his trial the witnesses against him shall be brought face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them and to bring forward any witness of his own and to make his own statement regarding the charge preferred against him. But whoever shall be indicted for any offence if he shall so elect shall be tried by jury and this law shall never be repealed. And all claims for large amounts shall be decided by a jury and the Legislative Assembly shall determine what shall be the amount of claim that may be decided without a jury.

A central question for determination is this- why would the defence on the 17th September 2010 write a letter to the Solicitor General if they had previously received a copy of the Indictment at or before the purported arraignment before the Chief Justice on 27th April 2010 more particularly on or around the 23rd April 2010?

The defence letter requesting a copy of the Indictment is dated 17th September 2010 and that period is one hundred and forty three days - after the arraignment [143 days] or [147] days from when the indictment is said to have been filed in this court.

Having had my first sight of the English translation of the Tongan Indictment which was found on the on file on the 29th September 2010, the Court of its own volition commented that the indictment should have showed - the first name[s] and the surname of the accused, and the Indictment should not have contained the title Lord or shown the defendant's qualification – or standing as a Queens Counsel

It is well established that an indictment should not show a defendants title more particularly his qualification as a Queens Counsel - ostensibly because all men are equal - before the law.

Authority - Tongan Constitution

Section 4 Same law, for all classes

There shall be but one law in Tonga for chiefs and commoners for non-Tongans and Tongans. No laws shall be enacted for one class and not for another class but the law shall be the same for all the people of this land.

AND see 2 Hale 175

Constitution

Section 89 Powers

The judges shall have power to direct the form of indictments to control the procedure of the lower Courts, and to make rules of procedure.

On 27th October 2010 this court received submissions from counsel for the defendant, together with authorities supporting their motion to quash the Indictment laid against the accused. There were approximately 300 pages of counsel's submission filed on that date in their attempt to quash the indictment against the defendant.

Discussion

A bill of indictment is a written or printed accusation of a crime, made at the suit of the Crown, against one or more persons. Halsbury's Vol 11 193 page 118.

In other words the indictment is the formal method of bringing a person before a Supreme or Higher Court for trial, but an indictment cannot be preferred unless there has been a valid committal by a Magistrate, that is well established and is according to law. In this case there was a valid committal.

In essence a criminal trial cannot start until there is a valid indictment before the court.. The law says if an indictment is invalid then all proceedings therein, including guilty pleas are a nullity authority -R v Newland [1988] QB Cr App. R 118 CA, R v Morias 87 Cr App. R 9 CA

This court clearly recognizes that not every defect in an indictment will render the Indictment invalid. Indictments can be cured per Archbold

Constitution

11 Procedure on indictment

No one shall be tried or summoned to appear before any court or punished for failing to appear unless he have first received a written indictment (except in cases of impeachment or for offences within the jurisdiction of the magistrate or for contempt of court while the court is sitting). Such written indictment shall clearly state the offence charged against him and the grounds for the charge. And at his trial the witnesses against him shall be brought face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them and to bring forward any witness of his own and to make his own statement regarding the charge preferred against him. But whoever shall be indicted for any offence if he shall so elect shall be tried by jury and this law shall never be repealed. And all claims for large amounts shall be decided by a jury and the Legislative Assembly shall determine what shall be the amount of claim that may be decided without a jury.

This court accepts the fact the defendant was arraigned before Ford CJ and that the defendant elected trial by a Judge sitting alone. This is evidenced by my looking at the front cover of the file containing the evidence in file CR 64/2010. This court recognizes the writing of former Chief Justice Ford's hand.

This court is certain of the following that the Tongan Indictment found and contained in the file CR64/2010 was not signed or dated or stamped as being filed in this court.

This court is certain that the former Chief Justice had not recorded - the defendant's election or the defendant's plea, or, dated or signed the Tongan indictment himself as an officer of the court, as was his usual practice.

Perhaps there was another indictment but this court cannot be sure because – there is no other copy, contained in this file.

This court is certain that there is no stamp on the top right hand corner of the Tongan Indictment in file CR64/2010 showing receipt or dating by our Court staff and that I find as a fact.

It has never been the practice as it may be in other jurisdictions to record and keep separate from the evidence file – the Indictment. In my view this should be done the indictment should be separately filed and properly recorded, away from the file containing the evidence upon which a defendant is committed.

At the PTC on 29th September 2010 this Court said - if there was to be an amended indictment in this case, then it must be served on the other party and filed properly and the amended indictment must be dated, and it must be signed prior to the trial date.

On the 12th October 2010 18 days before the pre- trial application to be heard on the1st November 2010 this Court received an amended Indictment STAMPED as received on the 12th October 2010.

That amended Indictment I certify is now on this file and was considered in court on the 1st November 2010

The status of all other indictments filed in the Supreme Court

Crown Counsel argued forcefully, that the practice had always been in Tonga that Indictments were neither signed nor dated, Counsel said there were hundreds of such cases and this is a Sovereign State which of course this Court fully accepts.

It may well be – that in the past that the validity of an Indictment had not been challenged; however in this case CR 64/2010 the defendant has challenged the validity of the Indictment against him, as is his legal right or, the right of any other man.

For a Court to ignore a challenge to an indictment against any man saying it's always been done in that way would in my respectful view be completely wrong. All sides in this case and particularly the Crown were on notice of such a challenge to the indictment because they had all the papers

The law applies to everyone. In arraigning a person, be it in Tonga or anywhere else in the world – the presiding Judge has a duty to ensure fairness to every accused.

On arraignment it is essential to ensure [1] that there has been a valid committal from a duly constituted Magistrates Court to the Supreme or a higher court. [2] That the Indictment is valid and that [3] the defendant clearly understands the nature of the charge or charges against him.

A judge's duty is essentially to uphold the law, apply the constitution and all relevant laws and to decide cases according to the evidence

It is trite law that in every jurisdiction in the world – most legal documents will have no validity if they are not signed and dated.

For example for a will to be valid, it must be signed and dated.

For an affidavit to be valid it must be signed dated and witnesses by a Commissioner for Oaths JP or other judicial officer.

For a summons to be valid it must be signed and dated

For a warrant to be valid be it a search warrant or an arrest warrant -it must be signed and it must be dated

For a Civil Court of Appeal Judgment to be valid, it must be dated and signed. Statute says so Parliament addressed that here in the Kingdom of Tonga.

Court of Appeal Act Cap 7 Section 15 D

(6) Notwithstanding anything contained in subsection (3) of this section, the effective date of a judgment signed and dated in pursuance of that subsection shall be the date upon which it is read in open court.

Turning to the necessity for the signing of Indictments

In the case of R v Laming 90 CR App R 450 the CA said an appropriate officer of the court had departed from the usual practice, and that he had signed the indictment on the front page, rather that at the end.

It was held by the CA that the officer had signed the indictment, therefore intending to validate it, thus the indictment was valid. The CA said departure from the normal practice of signing the Indictment at the end was however to be, strongly discouraged.

Mr. Kefu stated he would sign the Indictment in open court and in response to that argument for signing an amended indictment, defence counsel Mr. Hirschfeld objected on the grounds that the Indictment dated 23rd April 2010 was not dated and or signed and in his view the trial was from that date - and is a nullity and one cannot cure that nullity - with an amended Indictment

This court agreed with Mr. Hirschfeld and because it had not been able to sight a signed and dated indictment on the file for the 27th April 2010 – the court quashed the Indictment.

The court also refused leave to re-arraign the defendant on the amended indictment which had been filed on the 12th October 2010

I wish to make it plain and for the sake of clarity. This ruling applies only to case file CR64/1010.

This is the only file where I as a trial judge have found an Indictment on file - with no stamp, no date and no signature on the Indictment or a record of the defendant's election and plea recorded with the Judges signature and date appended to that Indictment.

The case file cover is not an Indictment. The stamp used by the former Chief Justice - should have or could have been recorded on the Tongan Indictment BUT it was not.

It is accepted practice in Commonwealth Jurisdictions that if an Indictment is quashed the defendant may be committed again for trial by going through the committal procedure again from start,, but I stress that is entirely a matter for the Crown.

Quashing an Indictment - is NOT the same as acquitting a defendant

For the avoidance of doubt

In relation to any other pending case before the Supreme Court for trial, I confirm that all other Indictments to my knowledge; have been properly filed in the Supreme Court Registry

I confirm further, that they have all been stamped dated and signed by a member of the Supreme Court Staff who I deem is - the appropriate Officer of the Court.

As I indicated in my Oral Ruling on Monday the 1st November my ruling quashing the Unsigned and Undated Indictment put on 27th April 2010 - applies to file CR64/2010 only that is the case of R v Dalgety.

However from 20th October 2010 Practice Directive No 1 of 2010 applies to all future Indictments presented in the Supreme Court of Tonga and as I indicated in my oral Ruling that Practice is not and cannot be applied retroactively.