Fonua v Rex [2018] TOCA 9; AC 07 of 2018 (11 April 2018)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

AC 7 of 2018

[CR 97 of 2016]

BETWEEN: SELEMANA FONUA

Appellant

AND: REX

Respondent

Counsel: Mrs. P Tupou for the appellant
Mr. ‘A Kefu SC for the respondent

Hearing: 10 April 2018
Decision 10 April 2018
Reasons: 11 April 2018

REASONS FOR GRANTING BAIL PENDING APPEAL

[1] The appellant was convicted of one count of falsification of accounts and one count of theft after a judge alone trial before Cato J. She was sentenced on 29 March 2018 to 2 year’s imprisonment for both offences. The sentences were to be served concurrently and the last six months was suspended.

[2] The appellant has appealed against her conviction and sentence and now seeks bail pending the hearing of her appeal. The application for bail was originally opposed by the Crown and set down for hearing on an urgent basis.

[3] The appeal is likely to be heard in the second session of the court in September 2018.

[4] Section 4B of the Bail Act provides:

4B Bail whilst awaiting appeal

(1) A person who has been convicted of and sentenced to imprisonment for a criminal offence and who has appealed or applied for leave to appeal against that conviction or sentence shall be granted bail if the Court is satisfied that —

(a) there is a reasonable prospect of the appeal succeeding;

(b) the appeal is unlikely to be heard before the whole or a substantial portion of the sentence has been served; and

(c) there are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will surrender to custody without committing any offence whilst on bail.

(2) In taking the decision required by subsection (1), the Court shall have regard to all the relevant circumstances and in particular —

(a) the nature of the offence and length of the sentence;

(b) the grounds of appeal;

(c) the character, antecedents, associations and community ties of the person; and

(d) his record in surrendering to custody at the trial and on other occasions.

[5] The appellant relied on s 4B(1)(a) and (c) arguing that her appeal has a real prospect of success and that given her previous good record and ties to the community there is little risk that she will not, if granted bail, surrender herself to custody or commit any other offences whilst on bail.

[6] Mrs. Tupou addressed me on the merits of the appeal. The appellant’s primary challenge to the decision of Cato J is that he wrongly accepted spreadsheets as secondary evidence of the originals in reliance upon section 64(b) of the Evidence Act.

[7] In my opinion the argument is not strong. The counter argument is that the ‘original’ documents for the purposes of section 64(b) are the ones created on and printed from the appellant’s computer. Viewed in this way the spreadsheets produced at the trial were indeed copies made by a mechanical process (printing from the computer) and would almost certainly have been accurate copies.

[8] Furthermore, given the evidence of Mr. Hunt that the spreadsheets produced were true copies of those that were sent to Fiji s 64(e) of the Evidence Act would also seem to have been a valid basis to admit the spreadsheets into evidence.

[9] The appellant also argues that on the state of the evidence Cato J was wrong to find that the elements of the offences had been proved beyond a reasonable doubt. That will be a difficult case to advance on appeal. An appeal court will usually defer to the trial Judge’s findings on the facts where there is evidence to support them.

[10] For those reasons I suggested to Mrs. Tupou that she might have been better to rely on s 4B(1)(b) of the Bail Act as the appellant is facing 18 months imprisonment but a six month wait before her appeal will be heard. I am told that with remission the appellant will likely serve just 12 months of her sentence. In those circumstances it appears to me that the appeal will not be heard before ‘a substantial portion’ of the sentence has been served.

[9] Mr. Kefu advised me that the Crown’s opposition to bail was based on the grounds advanced challenging the decision of Cato J but that it would not oppose bail if it was granted on the basis of s 4B(1)(b) and (c) only and provided conditions were imposed. Mrs Tupou advised that the appellant would accept conditions.

[10] I am satisfied that the grounds for granting bail in s 4B(1)(b) and (c) of the Bail Act are made out. By consent the appellant is granted bail pending the hearing of her appeal. She must surrender to the custody of the court on 3 September 2018 at 10am subject to conditions as follows:

(a) She is to surrender her passport to the Registrar of the Supreme Court.

(b) She is not to leave Tongatapu without permission of the court.

(c) She must report to the Nuku’alofa Central Police Station fortnightly between the hours of 10am and 5pm commencing on Friday 20 April 2018.

(d) She is to provide two sureties in the sum of T$500 and must also provide her bond in the sum of T$1,000 to secure her surrender to custody.

(e) She is to be entered on the no fly list.

O.G. Paulsen
NUKU’ALOFA: 11 April 2018. PRESIDENT