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Penitusi v R; Mate v R [2004] TVHC 2; Appeal Case 10 of 2003; Appeal Case 11 of 2003 (7 April 2004)

IN THE HIGH COURT OF TUVALU
APPELLATE JURISDICTION

Case No:10/03

Between:

Anisi Penitusi
Appellant

v

Regina
Respondent

Case No:11/03

Between

Peseli Mate
Appellant

v

Regina
Respondent

Seluka for appellants
Talu for respondents

Hearing: 1 April 2004
Judgment: 7 April 2004

Judgment

These are criminal appeals from the Senior Magistrate. In each case, the appellant entered a plea of guilty but, when asked if he agreed with the prosecution facts, disputed them. The learned Senior Magistrate entered a plea of not guilty and adjourned the case for trial.

The appeals were heard in this court together. The issue in both is whether the learned Senior Magistrate was correct to enter the plea of not guilty instead of either accepting the appellant’s version of the facts or hearing sufficient evidence to determine the issues in dispute and then still proceeding to sentence on the plea of guilty.

The facts in relation to each case are different and may be set out first.

Penitusi v R

The appellant was charged with one offence of obstructing a police officer, contrary to section 48 of the Public Order Act, Cap 9.

The facts outlined by the prosecution were that, during a function being held at the Vailiki hall, a police officer ejected a person about whose behaviour complaints had been received. He took hold of the man and led him out but, whilst doing so, was approached by the appellant who grabbed the officer by the shirt and told him to treat the other man properly. Some witnesses had also suggested that the appellant tried to punch the officer but missed.

When the appellant was asked if he agreed with the prosecution account, he challenged the suggestion that he had pulled the officer’s shirt or that he had attempted to punch him.

Mate v R

This appellant was charged with common assault, contrary to section 237 of the Penal Code, Cap 8. The victim again was a police officer who had been taking a statement from a third party when the appellant appeared and told him he should not do so. The officer warned the appellant to go away but, instead, the appellant came closer, slapped the officer’s head and challenged him to a fight. The officer got off his motorcycle, grabbed the appellant and the two men struggled and fell to the ground

The appellant did not accept that he had hit the officer on the head. On the contrary, he told the court that the officer punched the appellant but missed and the appellant responded by attempting to punch the officer but also missed. They then struggled and fell to the ground.

Counsel for the appellants who originally filed the appeals (who was not counsel appearing at the appeals) purported to bring them under the terms of sections 270, 271, 272 and 285 of the Criminal Procedure Code, Cap 7. The latter section gives the right to apply to the Senior Magistrate to state a case and, despite the reference to the earlier sections, the case had been presented as an application to state a case under section 285.

Unfortunately I do not accept that is a proper course when the challenge is to an interlocutory order. Section 285 gives the right to apply for a case to be stated "After the hearing and determination (my emphasis) by any magistrate’s court of any summons, charge or complaint..." In this case there had been no determination of the charge and so the right had not arisen.

The right of appeal is given in section 270 to "any person who is dissatisfied with any judgment, sentence or order of a magistrates court in any criminal cause or matter..." Similarly, section 39 (1)(b) of the Magistrates’ Courts Act, Cap 2, allows appeals from all interlocutory orders and decisions of any magistrate’s court and the proviso extends the provision to the Senior Magistrate’s Court. The present cases should simply have been brought as normal appeals.

Counsel will assist the court much more and serve his clients interests better if he decides the appropriate remedy and confines himself to that. The multiplication of possible courses of action or the attempted invocation of any and every possible remedy irrespective of the chances of success - or even of relevance - does not assist justice. This has been seen in many recent cases where counsel (again not counsel appearing in these appeals) has unnecessarily invoked the protective provisions of the Constitution in cases where they are irrelevant to the issues the court must decide. In the present case, it has meant that the whole issue has been presented in an incorrect manner, the learned Senior Magistrate has been involved in unnecessary work and the appeals could well have been struck out.

However, the appeals raise an important issue and so I shall proceed to determine them as appeals. Although his work was not necessary, I am grateful to the learned Senior Magistrate for the clarity of his stated case and have gratefully drawn from it my statement of facts of the case and of events in the lower court.

The document headed "Grounds of Appeal" traverses the facts of the case but raises only two grounds in paragraphs 4 and 5, which can be summarised:

4. that the learned Senior Magistrate erred in law in failing to hold a Newton hearing;

5. that the charge was under section 48 of the Public Order Act in Penitusi’s case and section 237 of the Penal Code in Mate’s case and "not under the more usual charge pursuant to section 240 (b) of the Penal Code of assaulting a police officer. If those facts could be proved then a higher charge could have been proceeded with".

The second ground was, understandably, not pursued by counsel at the hearing and I can dispose of it shortly. The prosecution is entitled to decide which charge it wishes to bring. If the charge is less serious than the facts could have proved, the court can only sentence on the basis of the charge of which the accused is convicted. The more serious facts may place it at the upper end of the range of sentences available but it cannot exceed the sentence prescribed by law for the offence charged. I fail to understand the purpose of this ground. The learned Senior Magistrate had not reached that point in the hearing and so the issue had not arisen.

I would also add that the offence under section 240 (b) is assaulting, resisting or wilfully obstructing a police officer "in the due execution of his duty". In order to prove that offence the prosecution must prove that the officer was in the execution of his duty and, if there may be any doubt about that, the prosecution will be wise to charge a lesser offence.

The first ground raises the question whether the court has the power to hold a ‘Newton hearing’ and, if so, the circumstances in which it may be held. A ‘Newton hearing’ is a procedure which arose from the English case of R v Newton; 77 Cr App R 13 CA, in which Lord Lane CJ suggested three ways in which the court might deal with a case where a plea of guilty had been entered but the admissions of the accused did not match the Crown case as outlined to the court by counsel for the prosecution.

The first procedure has no application here but the second of Lord Lane’s suggestions was that the judge should hear the evidence from both sides in relation only to the area of dispute and come to his own conclusion as to the extent of the dispute and where the truth lies in relation to it - the so-called Newton hearing.

I accept that, in Tuvalu, a Newton hearing may be an appropriate method of dealing with a case where there is a limited but important dispute over the prosecution facts. However, the courts should use the procedure with caution. Experience shows that frequently an accused person, when asked if he accepts the prosecution case as outlined, may challenge only a small detail or a single facet of the overall case but, when it is investigated in more depth, it becomes clear that he is in fact challenging much more. In such as case, a plea of not guilty will then have to be entered and the case tried.

The risk, where the court orders a Newton hearing, is that, once the witnesses have been called to deal with the specific area of challenge, it will become apparent that the accused, in reality, should have pleaded not guilty from the outset. The result will be that the case will again have to be adjourned in order to start afresh with all the prosecution witnesses attending.

Where the court intends to hold a Newton hearing but before ordering it, therefore, the accused should be carefully questioned by the court to ascertain whether he clearly admits the remaining elements of the Crown case and that such parts as he does admit are sufficient to prove the elements of the offence.

The court should also be aware of the possible further problem, especially in a jurisdiction with limited alternative tribunals, that, by the time the accused has been questioned to that extent, he may justifiably feel that particular court will not be able to try him impartially.

Where the accused in such cases is represented by counsel, the magistrate may like to consider Lord Lane’s third alternative suggestion that it may be appropriate to call no further evidence and just hear counsel’s submissions on the disputed part. Having done so, the court can form his own opinion of the true facts. However, if there is still any dispute of substance, he must accept, and sentence on the basis of, the accused’s version.

Therefore, I would suggest that, unless there is some special feature apparent in the case, whenever there is equivocation by the accused over any of the important facts of the Crown case, the magistrate should simply enter a plea of not guilty and set the case for hearing.

Returning to the present appeals, the Newton hearing is not relevant because, in neither of them, would such a hearing have been appropriate.

In the Penitusi case, despite his plea, the appellant effectively denied the offence entirely. He denied that he had either pulled the officer’s shirt or had attempted to punch him, a situation which amounted to a plea of not guilty.

In Mate’s case, the appellant denied that he did more than touch the officer’s head and he certainly denied that he slapped him. Furthermore, he said the officer got off his motorcycle and attempted to punch the appellant. The officer missed and the appellant then punched the officer. That was a clear suggestion that he may have been acting in self defence which, if not disproved by the prosecution, would be a complete defence to the charge and had to be tried.

Section 194 (1) of the Criminal Procedure Code provides:

"If the accused person does not admit the truth of the charge, the court shall proceed to hear the witnesses for the prosecution and the other evidence (if any) ..."

The Senior Magistrate considered that was the procedure to follow. The appellants’ comments to the court demonstrated they did not admit the truth of the charge and so he entered a plea of not guilty and ordered that the case proceed to trial. He was correct to do so.

Both appeals are dismissed and the cases are remitted to the Senior Magistrate’s Court for trial as pleas of not guilty.

Dated: 7th day of April 2004

CHIEF JUSTICE