Assault case returned for trial at lower court [1]
Monday, October 26, 2020 - 17:21. Updated on Tuesday, October 27, 2020 - 09:26.
An assault case was remitted back for trial at the Magistrate's Court, after the Lord Chief Justice quashed a decision by a Senior Magistrate to withdraw the charge.
This was an appeal by the Crown in a case, Police vs Lose Hansen (respondent) who was charged with common assault.
Police alleged that the accused assaulted the victim, Lini Koloa, including that she used her hand, punched the head of the victim, hit her head with a garden watering can, and then hit her face on the edge of a table causing swelling.
Lord Chief Justice Whitten in a judgment on October 22 allowed the appeal, at the Nuku'alofa Supreme Court.
He quashed the decision of Senior Magistrate Pahulu-Kuli on February 12 to withdraw the criminal summons, and remitted it back to the Magistrate's Court for trial before a different Magistrate.
Duplicity
The Court heard that the Senior Magistrate accepted a submission by the respondent's counsel that each of the assaults particularised (under the one charge) were different offences, which should have each been the subject of separate summonses.
Section 15 of the Magistrate's Court provides summons to be for one offence only.
The Senior Magistrate also found that the provision did not contain any offence in the terms as stated in the particulars.
However, the Crown counsel submitted that the summons was not duplicitous and that the Magistrate erred in many reasons.
“It would be absurd to assume that it was Parliament's intention to require separate summonses for separate assaults on the same person arising out of the same incident. Rather than focusing on the use of the disjunctive or, the Magistrate should have interpreted the entire text of s.112 (a) in accordance with its plain and ordinary meaning,” he said.
Decision
The Chief Justice said, the general principle in respect of what has come to be known as the rule against duplicity is that no one count of an indictment or summons should charge the accused with having committed two or more separate offences.
The purpose of the rule is to enable an accused to know the case he or she is required to meet. It is a rule of elementary fairness but also necessary for the purpose of such matters as a submission of no case to answer or a plea in mitigation, he said.
"In my opinion, the learned Magistrate misdirected herself in the interpretation of s.112 (a) by focusing (it would appear exclusively) on the use of the disjunctive "or" between the various actions described therein to conclude that they must constitute three separate offences."
“To illustrate, if A is charged with punching B six times in quick succession, could it seriously be suggested that six summonses must be presented, one for each punch? Conversely, if A punched B once each day for six-days, it would clearly be expected that separate summonses would be appropriate for that protracted and temporally disparate offending,” he said.
"I agree with the appellant that having regard to the nature of the alleged conduct, the three sequential hits were part of a single activity or transaction."
In any one of the three alleged strikes, if proved to the requisite standard, could constitute a common assault. If more than one of them are proved, they will still constitute one common assault; the likely difference then being as to penalty.
It was appropriate to charge them as one count of common assault. As such, the summons was not bad for duplicity, said the Lord Chief Justice.