Rex v Simiki [2002] TOCA 1; CA 49-50 2002 (12 March 2002)

IN THE COURT OF APPEAL OF TONGA
On Appeal from the Supreme Court of Tonga

APPEAL NO. CR. 49-50/02

BETWEEN:

REX
Applicant

AND

1. ‘OFA SIMIKI
2. VIKA PULINI
Respondents

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Kefu for the prosecution
Mr Tu’utafaiva for the First Respondent
Mr Fakahua for the Second Respondent

Date of Ruling: 12th March, 2002

Ruling

This is an application by the prosecution for leave to appeal out of time.

The defendants were jointly charged with one count of Criminal Defamation arising from statements made during a public meeting on 13 September 2000. Those statements were part of the contents of a petition being prepared for presentation to the King in the person, at the time, of the Prince Regent.

The case was tried by jury and took five days. On the sixth day I ruled that the statements were absolutely privileged under section 9 (a) of the Defamation Act, Cap 33, and directed the jury to return a verdict of not guilty.

That verdict was returned on 6 December 2001 and the defendants acquitted.

Nearly twelve weeks later, on 27 February 2002, the prosecution has filed an “application for leave to file appeal out of time and for leave to appeal”. No reason is given for such an inordinate delay and I would have been reluctant to grant leave in those circumstances. However, there is no right of the prosecution to appeal against an acquittal in a criminal trial and the application for leave to appeal must be refused on that ground.

I would add that the application set out the grounds for leave to appeal and then concludes with the words:

“AND upon section 17C of the Court of Appeal Act...”

If by that it is intended that this should be considered as a submission of a point of law for determination by the Court of Appeal under that section, it is totally inadequate.

NUKU’ALOFA: 12 March, 2002

CHIEF JUSTICE