Rex v Pedras [2016] TOCA 9; AC 8 of 2016 (8 September 2016)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION AC 8 of 2016

NUKU’ALOFA REGISTRY [CR63 of 2016]
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BETWEEN: REX

- Appellant

AND : ANTONE THOMAS PEDRAS a.k.a CHRIS PEDRAS

a.k.a CHRISTOPHER A. T. PEDRAS

- Respondent

Coram : Moore J

Blanchard J

Hansen J

Tupou J

Counsel : Mr. A. Kefu SC for the Appellant

Mr. L. M. Niu SC for the Respondent

Date of Hearing : 6 September 2016

MINUTE OF THE COURT

[1] In the course of argument at the hearing of this appeal on 6 September 2016 members of the Court suggested that, in two respects, the issues could be analysed on a different basis from that adopted in the courts below and by counsel in argument.

[2] First it was suggested that, contrary to the view taken, for example by the Chief Justice (see para. [61] – [63] of his judgment), the conduct constituting the offence in terms of the charge actually laid against the respondent in the United States, involved his obtaining money for himself and others pursuant to the alleged fraud, which is an element of the offence of false pretences under section 164 of the Criminal Offences Act.

[3] Secondly, it was put to counsel that even if that is wrong and obtaining a benefit is not a constituent element of the offence which the respondent is alleged to have committed in the United States, the requirement of double criminality may be satisfied if the relevant conduct amounts to an attempt to commit an offence under s.164.

[4] As counsel had only a limited opportunity to consider these propositions, they were given a further opportunity to address us later on 6 September and did so. At the conclusion of that hearing counsel were given a further opportunity to make written submissions. In response, Mr Niu SC for the respondent has filed a memorandum submitting that, in the circumstances, the matter should be remitted back to the Supreme Court for rehearing.

[5] We do not see that as the appropriate course. The appeal is properly before this Court and there is not basis on which this Court could decline to deal with it. However, in order to give counsel a further opportunity to address the issues, we will reconvene the hearing at 2:00pm on 9 September 2016.

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Dated: 8 September 2016 Moore J