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Seluini v R [2010] TOLawRp 15; [2010] Tonga LR 114 (14 July 2010)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 4/2010

Seluini

v

R

Ford CJ, Salmon and Moore JJ
9 July 2010; 14 July 2010

Criminal appeal – against perjury conviction – charge not proved beyond reasonable doubt – appeal allowed

This was an appeal against conviction and sentence for perjury. The trial judge preferred the evidence of the Crown witnesses and the Court witness and did not accept the evidence of the appellant. The appeal raised for consideration two fundamental elements of the Justice system. One was the vitally important requirement that witnesses did not give deliberately false evidence in proceedings before a Court. The other was that in criminal proceedings the Crown must prove its case beyond reasonable doubt.

Held:

1. The Crown's evidence on the critical question of whether the appellant made the statement was substantially the written record and that record was demonstrably deficient. The fact that words containing part of the statement in the handwritten record were added later immediately raised suspicions.

2. It was not open to the trial judge to be satisfied beyond reasonable doubt that the statement in the indictment or something close to the statement in the indictment was made by the appellant at the hearing in the Magistrate's Court in February 2007. Something was probably said by the appellant about the disk at a point in his evidence when he said something about giving things to the Auditor-General. However the Crown bore the burden of proving beyond reasonable doubt that the statement (or something very similar) was made.

3. The appeal was allowed and the sentence and conviction were quashed.

Case considered:

R v Archer [2003] 1 CR. APP. R 86

Statute considered:

Order in Public Places Act (Cap 37)

Counsel for the appellant: Mr Kaufusi
Counsel for the respondent: Mr Kefu and Ms Finau

Judgment

[1] This is an appeal against conviction and sentence for perjury. The appeal raises for consideration two fundamental elements of the Justice system. One is the vitally important requirement that witnesses do not give deliberately false evidence in proceedings before a Court. The other is that in criminal proceedings the Crown must prove its case beyond reasonable doubt.

FACTS AND BACKGROUND

[2] The appellant runs a computer components shop. In February 2006 he took possession of the possibly corrupted hard disk of the main server of a computer used by the Auditor-General, Mr Pohiva Tui'onetoa, and his staff with a view to repairing it. The hard drive contained many and significant records of the Auditor-General's office. The appellant had been given the hard disk by Mr Lisiate Teulilo, also involved in the computer industry and a person with whom the appellant had jointly conducted a business.

[3] The appellant sent the hard disk to New Zealand in late February 2006 where another computer company concluded that it was irretrievably corrupted and destroyed it. It is unnecessary to detail the events which followed. It is sufficient to note that the relationship between the Auditor-General and the appellant deteriorated with the Auditor-General (then unaware of the hard disk had been destroyed) writing a letter of complaint to a computer company in New Zealand and sending a copy to the New Zealand High Commission in Tonga. In May 2006 the appellant threatened to take defamation proceedings against the Auditor-General. Also the appellant's relationship with Mr Lisiate Teulilo deteriorated.

[4] Events came to a head in March 2007. Mr Lisiate Teulilo visited the appellant's home on probably 17 March 2007 with two letters concerning the hard drive which he wanted returned. The appellant and Mr Lisiate Teulilo had an argument. This led to the appellant initiating summary criminal proceedings against Mr Lisiate Teulilo alleging trespass and causing a disturbance in a public place. It appears the second charge was based on s 3(g) of the Order in Public Places Act (Cap 37).

[5] Those charges were heard by a Magistrate on 5 February 2008. The appellant and Mr Lisiate Teulilo gave evidence. There were some differences in their accounts of what occurred though in his account Mr Lisiate Teulilo's acknowledged that he had shouted. Another and independent witness, a neighbour, gave evidence that Mr Lisiate Teulilo had shouted. He was acquitted on the trespass charge but convicted of causing a disturbance in a public place.

[6] A central factual issue in the subsequent trial for perjury was whether the appellant said the following words when giving evidence before the Magistrate:

Your Worship, the hard disk was returned to the Department and the Auditor General, Pohiva Tui'onetoa wrote and apologise to me regarding the hard disk. I'm keeping the letter, and I'll produce it if you want.

(these are the words allegedly said as set out in the indictment)

[7] As a result of a complaint by Mr Lisiate Teulilo, the appellant was charged with perjury on 25 February 2008. There was a preliminary hearing on 27 May 2008 and the matter went to trial in February and March 2010.

[8] The trial was conducted by Shuster J. The Crown called four witnesses. The first was Mr Lisiate Teulilo. He gave evidence in chief that at the hearing before the Magistrate the appellant "made the statement that the hard drive had been returned and the Auditor has written and apologised to him". He said this statement was made during the appellant's cross examination. The second witness was Mr Pohiva Tui'onetoa. His evidence did not concern, directly, what had been said by the appellant at the hearing before the Magistrate in February 2008 as he had not been at the hearing.

[9] The third witness was a police officer who had conducted a record of interview with the appellant. No adverse admissions were made by the appellant during the interview. The fourth Crown witness was the Magistrate's clerk who had been acting in that capacity at the hearing on 5 February 2008. In her evidence in chief she said, incorrectly, that witnesses were the appellant and his wife though the Trial Judge intervened noting that it was not a test of memory as it was many years ago. This led to the witness being taken to her workbook (a clerk's minute book) in which she had recorded in handwriting what had been said. She gave an explanation of why some additional handwriting in a different pen appeared in the minutes of what the appellant had said.

[10] Of critical importance in this appeal, the additional writing contained some of the statement which is alleged to be the evidence of the appellant before the Magistrate which was deliberately false. That is, the additional writing was of part of the statement in the indictment said to constitute perjury. We will return to discuss the contents of this book later in these reasons. The clerk then gave evidence explaining the additional writing which appears to have been more about her usual practice rather than what happened at the hearing on 5 February 2008. The usual practice was to return to the office and write down things that she had been unable to record at the hearing because the witness had been talking too fast.

[11] The clerk gave evidence that she was later approached by Mr Lisiate Teulilo for a copy of the record of the questioning of the appellant, and she indicated to him that she had to type it. It was common ground in this appeal that that occurred much later in February 2008. She did type it and Mr Lisiate Teulilo returned and was given a copy. In her evidence in chief her attention was drawn to the fact that in the handwritten notes the statement said to constitute perjury appeared at the beginning of the hearing when the appellant was giving evidence in chief but in the typewritten version that statement is recorded as having been made during cross examination. No credible or satisfactory explanation was given by her, she simply asserted it was a statement made by the appellant at the hearing. Speaking generally, her cross-examination was focused on small discrepancies between the typed transcript and the hand written record in the clerk's minute book.

[12] The next witness at the trial was the appellant. His evidence was that during the hearing before the Magistrate he was asked a question by Mr Lisiate Teulilo's lawyer and in response he said that everything concerning the hard drive had been given to Mr Pohiva. He denied that the words written down in the transcript was what he said and he observed that it would have been foolish for him to have said those words because he had given him the letter from the New Zealand computer company recording that the Hard Drive had been destroyed. As to the statement he allegedly made about an apology, he denied having said that. He gave evidence that what he said was that Mr Pohiva had written a letter to the New High Commission saying that "he has already dropped everything all legal proceedings against me". As a matter of fact, it was true such a letter had been and it was dated 11 January 2007.

[13] One further witness was called and was called by the Court. It was the secretary to the Auditor-General.

[14] The trial judge gave ex tempore reasons for judgment convicting the appellant. We do not have the transcript of those reasons. However the trial judge later published detailed written reasons on 18 March 2010 recounting the charges, the applicable law and the evidence that had been given. In the result, his Honour preferred the evidence of the Crown witnesses and the Court witness and did not accept the evidence of the appellant.

[15] What is, in our opinion, of great significance is that his Honour did not undertake any analysis of an obvious aspect of the Crown's evidence. It was that one part of the statement on which the charge of perjury was based, was not recorded by the Magistrate's clerk during the hearing, but was added later and in the typed transcript appeared at a different point in the hearing. These features of the record were an obvious problem in the Crown's evidentiary case because, as his Honour had observed at one point in the hearing, it was unlikely the clerk (and probably anyone else) would have remembered at the perjury trial what had been said in court proceedings two years earlier. The accuracy of the written record was of fundamental importance to the Crown's case.

[16] The appellant was sentenced by the trial judge to 30 months in prison on 18 March 2010. This sentence was suspended for 3 years. He was fined $10,000 and in default of payment within 60 days he was to be sentenced to 18 months imprisonment. The appellant was ordered to pay $100 as a contribution to the Court costs within 60 days. In default of this payment he would be sentenced to 7 days imprisonment. In his sentencing remarks, Shuster J explained, correctly, that "people who commit the crime of perjury commit a very serious offence, as they undermined the whole basis of the administration of justice": ref R v Archer [2003] 1 CR. APP. R 86. His Honour observed the activities of the appellant affected others and someone was convicted on "his blatant lies". With respect, this is almost certainly not true or at least cannot be put as emphatically as it was by his Honour. Mr Lisiate Teulilo's own evidence before the Magistrate that he shouted (evidence also given by a neighbour) could have justified his conviction on the disorderly conduct charge. Whether the defence of reasonable cause could have been made out in the circumstances remains an unresolved question.

CONSIDERATION

[17] It is convenient to begin by focusing on the evidence before the trial judge concerning the various written versions of the evidence the appellant gave before the Magistrate. There are the handwritten notes in the clerk's minute book. They are in Tongan. There is a typewritten version prepared by the clerk which is also in Tongan. We have, as did the trial judge, a translation of the critical parts of the handwritten notes. We also have a translation of the critical parts of the typewritten version. The trial judge did not have the benefit of this translation though its main significance is that the typewritten version records that the statement upon which the perjury charge is based, appears at an entirely different point in the evidence to the point does in the handwritten notes.

[18] It seems to us that the Crown's evidence on the critical question of whether the appellant made the statement is substantially the written record and that record is demonstrably deficient. The fact that words containing part of the statement in the handwritten record were added later immediately raises suspicions. That is all the more so when that is the only occasion in the entire minute book (an exercise book of probably a hundred pages) where that is apparent.

[19] Of course the clerk gave an explanation as to her general practice, that if she was unable to record something because the evidence was being given too quickly then she would add it later. What she recorded at the time was (in the English translation before the trial judge) "the disk I went and give to the auditor general". If, on the clerk's thesis, the witness was speaking too quickly at this point, then it is quite possible that she did not record correctly the words immediately preceding her abandoning (temporarily) making a written record of what was being said. There is not a great difference between what she recorded at the time and the appellant's account. The critical difference is that the appellant said "everything concerning the disk" had been given to Mr Pohiva. The clerk's account is that the appellant said the disk was given to Mr Pohiva. The words "everything concerning" obviously adds an entirely different complexion on the statement. It is quite conceivable that, on the appellant's account, if the clerk was having trouble keeping up, then she either didn't hear these words ("everything concerning") or failed to record them.

[20] What is recorded in the typed version is even more problematic. The typed version places the statement on which the perjury charge is based at an entirely different point in the course of the hearing. Accepting, that the words apparently written during the hearing in the clerk's minute book were actually written then (irrespective of whether they were an accurate record of what was actually said) it is an entirely unexplained and greatly damaging feature of the typed transcript that the contentious statement does not appear where it should.

[21] We accept that the trial judge had the advantage of seeing the witnesses give evidence. In some cases this can be important and an appeal court has to give due weight to that advantage. This is not such a case. The Crown's case necessarily depended in substantial part on the written record. There are, as we have discussed, significant deficiencies in that evidence. Those deficiencies raise in our mind, and should have raised in the mind of the trial judge, real doubts about the evidentiary case against the appellant.

[22] We accept that Mr Lisiate Teulilo gave evidence at the perjury trial and the trial judge thought he was a credible witness. But he said that the appellant made the perjurious statement in cross examination. Having regard to the clerk's written notes, this is wrong. Whatever was said, it was said by the appellant in evidence in chief. It is true that within a few weeks of the hearing before the Magistrate, Mr Lisiate Teulilo took the matter up with the police. There are a number of possible explanations. One is that he misheard what was said by the appellant but genuinely believed the appellant said the words in the indictment. However his evidence, even if he appeared a credible witness, does not overcome the deficiencies in the documentary evidence.

[23] In our view it was not open to the trial judge to be satisfied beyond reasonable doubt that the statement in the indictment or something close to the statement in the indictment was made by the appellant at the hearing in the Magistrate's Court in February 2007. Something was probably said by the appellant about the disk at a point in his evidence when he said something about giving things to the Auditor-General. However in a case such as the present the Crown bears the burden of proving beyond reasonable doubt that the statement (or something very similar) was made. As noted in Archbold: Criminal Pleading, Evidence and Practice (2009) at 28-173 in relation to perjury:

The substance of what is set out in the indictment must be proved substantially or literally: R v Leefe [1809] EngR 268; (1809) 2 Camp 134; and the evidence must be clear and precise: R v Bird (1891) 17 Cox 387.

These requirements have not been satisfied in this matter.

[24] For the preceding reasons, we allow the appeal and quash the sentence and conviction.