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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY
AC 2 of 2023
[AM 7 of 2022]
BETWEEN
MELE TEUSIVI ‘AMANAKI Appellant
AND
POLICE Respondent
Court: Randerson J
Heath J
Counsel: Appellant in person
Mr J Fifita for Respondent
Hearing: 29 September 2023
Introduction
[1] The appellant Ms ‘Amanaki was a candidate in the 2021 General Election. She was found guilty in the Magistrates Court of one charge of failing to deliver a signed statement of her election expenses within 14 days from the date of the election pursuant to s 24(4) and (5) of the Electoral Act.
[2] She accepted that she was required to file the statement by 4.00pm on 2 December 2021 and that she did not deliver it until the following day, 3 December 2021. Ms ‘Amanaki pleaded not guilty and gave evidence that she had tried to lodge the statement at the Election Commission offices on 2 December, but the office was closed. Ms ‘Amanaki also relies on the admitted fact that the Election Commission had accepted the late filing of election expenses by two other candidates in the election at 4.30 pm or after the same day but they had not been charged.
[3] The prosecution submitted at sentencing that a fine of $1000 should be imposed but Senior Magistrate Ma’u ultimately discharged Ms ‘Amanaki without conviction or any further penalty. He reasoned that Ms ‘Amanaki should be treated in a similar fashion to the two candidates who filed late statements of their expenses but were not charged.
[4] On 11 January 2023, Tupou J allowed an appeal by the Police and quashed the order discharging Ms ‘Amanaki without conviction. She entered a conviction and fined Ms ‘Amanaki $200 to be paid within a period of one month or on failure to pay, one month’s imprisonment.
[5] Leave to appeal was granted on 4 April 2023. The appeal was called initially on 25 September but adjourned to 29 September due to an unstable AVL connection with the appellant who is currently studying in Sydney. She has since filed written submissions and consented to the appeal being dealt with on the papers if the AVL connection proved to be unstable again. That proved to be the case as we discuss further below.
The judgment below
[6] Tupou J began her admirably succinct decision in the Court below by citing s 24(4) and (5) of the Electoral Act:
- (4) Within 14 days of an election, every candidate shall deliver to the Supervisor a signed statement of his election expenses in Form 7 of the Schedule, itemized and complete in all respects.
- (5) It is an offence for any candidate to spend on an election campaign more than the sum of $20,000 or to fail to deliver the statement referred to in sub-section (4) or to deliver a false statement, and any person found guilty shall be liable to a fine not exceeding $10,000.
[7] Her Honour went on to set out the relevant factual background which was not materially disputed before us. The 2021 General Election was the fifth occasion on which Ms ‘Amanaki had been a candidate for office. She admitted she was familiar with the requirements for filing statements of expenses. The deadline for the relevant statement was 4.00pm on 2 December 2021. Ms ‘Amanaki accepted it was not filed until 3 December 2021 and that it was late in terms of the statutory requirements. Tupou J recorded that Ms ‘Amanaki had relied in the Magistrates Court on these circumstances:
- (a) She submitted documents to the Supreme Court in another matter at 2.00pm on 2 December 2022;
- (b) She had a meeting at 4.00pm on the same day;
- (c) She went to submit her expenses statement, but the office had closed;
- (d) At 6.02pm that day she emailed the Election Supervisor to inform him that her report was late because the office was closed; and
- (e) On that same date, two other candidates had submitted their statements at 4.30pm and were accepted by the Supervisor.
[8] Ms ‘Amanaki added that one of the reasons for the delay was the failure by a local radio station to provide her with details of the expenses she had incurred.
[9] After summarising the submissions made, Tupou J determined that the question for her to decide was whether the learned Magistrate was wrong to grant the discharge without conviction. Her Honour cited s 204 of the Criminal Offences Act:
Discharge without conviction
(1) Where a court is of the opinion, having regard to the circumstances including the nature of the offence and character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may make an order discharging him absolutely or alternatively discharging him subject to the condition that he commits no offence during such period, not exceeding 3 years from the date of the order, as may be specified therein.
(2) A discharge under this section is deemed to be an acquittal.
(3) A court discharging an offender under this section may –
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered –
(i) loss of, or damage to, property;
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.
[10] The learned Judge rejected the submission that the decision by the Supervisor of Elections not to charge the other two candidates was a relevant consideration and found it should not have been given any weight in sentencing the respondent. The Judge considered that, to do so, would set an undesirable precedent. However, she did accept there were inconsistencies in the decision made to prosecute two other candidates for failing to file their statements of expenses in the same election.[1]
- [11] Summarising her reasons, Tupou J said:
- (a) Neither party had proposed the application of s.204 in their sentencing submissions;
- (b) At no point did the Learned Magistrate raise with the parties the possibility that he might discharge the Respondent under s.204. I reject the Respondent’s insistence that he did because during her submissions on this appeal, she was asked if the Learned Magistrate indicated application of s.204, she said;
“Not in those words but he kept repeating that we should address the reduction of my sentence. He said I was guilty – but determination of reduction of sentence, so I submitted a fine of $0.00.”
(c) the Learned Magistrate did not refer to the relevant authorities available on applying s.204 such as Tu’iha’ateiho, ‘Ala or Maile. Had he raised the possibility with the parties and invited submissions, his attention would have been drawn to those cases.
(d) Accordingly, he fell short of observing the proper approach set out under s.204 and [the relevant authorities we discuss below].
[12] In determining the appropriate sentence, Tupou J said[2] :
- In Supervisor of Elections & ors v Tupouniua,[3] the Court of Appeal had this to say,
“The representatives of the people who are involved in the making of the laws, must themselves comply, and be clearly seen to comply with the fundamental law of Tonga.”
[13] As noted, Her Honour quashed the order discharging Ms ‘Amanaki without conviction and substituted a conviction and fine of $200.
Consideration
[14] The written submissions initially advanced on each side in this Court essentially canvassed the same issues discussed in the Court below. Ms ‘Amanaki emphasised the unfairness she saw in the acceptance of late filing of expenses by other candidates without prosecution and submitted that the discharge granted to her in the first instance was an appropriate and just outcome. She compared the fines imposed in the other instances discussed below and submitted that by applying a mathematical approach to the length of lateness in filing, the outcome in her case should have been a fine of $1.95. The delay was short and she had tried her best to file her expenses on the final day.
[15] Ms ‘Amanaki also provided us with material directed to previous good character, her academic qualifications and her experience in prominent government and other roles in Tonga. Just prior to the adjourned date of hearing, matters took a most unexpected turn. Part of the material provided by Ms ‘Amanaki earlier in the week included a copy of a scholarship contract she had entered into with the Australian Department of Foreign Affairs and Trade (DFAT) on 12 September 2022. This was after the hearing in the Magistrates Court and before the hearing of the appeal in the Supreme Court.
[16] The contract was produced to this Court to show that Ms ‘Amanaki was engaged in an important course of education at Sydney University over a four year period. It had not been produced in the Supreme Court and it was not until this Court raised the issue on 29 September (the adjourned date of hearing) that Ms ‘Amanaki appreciated that the terms of the contract could be very relevant to the outcome of this appeal.
[17] The Court noted that a clause in the contract empowered DFAT to terminate the contract if she were convicted of a crime. The consequences of this could be severe as the value of the contract was AUD 295,271 over a four year period. Ms ‘Amanaki has completed only the first year of PhD research designing a legislative model to reduce rates of Non-Communicable Diseases and youth unemployment in the Pacific with a focus on Tonga.
[18] Despite objection by Mr. Fifita we grant leave to introduce the scholarship contract under Order 8 r1(3) of the Court of Appeal Rules which permits, in special circumstances, the introduction of evidence on questions of fact occurring after the proceedings in the court below. Given the significance of this contract and the potential consequences for Ms ‘Amanaki of a conviction, we are satisfied special circumstance exist. Ms ‘Amanaki was permitted to file further written submissions about the contract and Mr Fifita made brief oral submissions.
[19] The correct approach to the application of s 204 of the Criminal Offences Act is well settled. In R v ‘Ala[4] this court stated:[5]
- Before it may grant a discharge without conviction under section 204 [of the Criminal Offences Act] the Court must be of the opinion that “it is inexpedient to inflict punishment and that a probation order is not appropriate”. The case law demonstrates that the Courts have considered it inexpedient to enter a conviction in a range of circumstances, such as where the offender is morally blameless, the offending is merely technical, minor or trivial, or exceptionally, where special circumstances exist justifying the Court exercising mercy to an offender. The aspect that all such cases share is that the direct or indirect consequences of the entry of a conviction is not proportionate to the gravity of the offending.
- The correct approach that the Court must take in considering whether to grant a discharge without conviction under section 204 is as follows. First, the Court must assess the seriousness of the offending including the gravity with which it is viewed by Parliament along with all aggravating and mitigating factors relevant to the particular case before it. Secondly, the Court must consider the character and circumstances of the offender which will include any previous offending, the effect of the entry of a conviction on his career, his finances, his reputation, any civil disabilities that flow from the entry of a conviction as well as any indirect consequences. Thirdly, the Court must be satisfied that the consequences of entering a conviction are out of all proportion to the gravity of the offending. Finally, the Court must stand back and consider whether in all the circumstances of the case the granting of a discharge without conviction is the appropriate result.
- The circumstances where it will be appropriate to grant a discharge without conviction will rarely arise and the Court should exercise its discretion sparingly. It will not be sufficient that an offender is generally a person of good character, has no prior convictions, is a young person or that the victim has forgiven them. If it were otherwise discharges without conviction would be routinely given.
- The court will not accept mere speculation about the consequences of the entry of a conviction. It can only act upon evidence and the offender will need to provide proof to satisfy the court that there is a real and appreciable risk that adverse consequences will ensue (DC (CA47/13 v R [2013] NZCA 255 at para [43] referred to in Edwards (supra) at para [25]).[6]
[20] But for the late realisation of the consequences of a conviction for Ms ‘Amanaki’s scholarship, we would have upheld the conviction for the reasons given by Tupou J. Before the Magistrate neither side had sought or suggested that a discharge without conviction was appropriate. In consequence, the parties did not address the relevant authorities and the Magistrate did not refer to or apply the principles applicable under s 204 of the Criminal Offences Act. We would have agreed with Tupou J that an order for discharge without conviction was not appropriate. Despite a lack of previous convictions, Ms ‘Amanaki was no stranger to the electoral process and was well aware of its requirements. She ought to have made it her priority to deliver the statement of election expenses within time on 2 December 2021 but did not do so. We agree with the Judge below that strict compliance with electoral law is important in the public interest given the constitutional significance of the electoral process.
[21] While we agree that compliance with the requirements of the Electoral Act is important, the breach in this case was relatively minor. Ms ‘Amanaki had tried to file her expenses statement on due date but in the end this did not occur until the following day. She has no prior convictions and is now engaged in high level research which is intended to benefit the Pacific and the Kingdom of Tonga in particular. While, as Mr Fifita submitted, the risk of DFAT terminating her scholarship contract is difficult to assess and may be relatively low in the circumstances, the consequences for Ms ‘Amanaki both financially and for her career would be severe if the contract were terminated.
[22] We are satisfied that these consequences would be wholly disproportionate to the seriousness of the offending and that the proper course is to grant a discharge without conviction under s.204 of the Criminal Offences Act. We are confident that if the consequences of a conviction in terms of the scholarship contract had been drawn to the attention of Tupou J in the Court below, she would likely have reached the same conclusion.
[23] Ms ‘Amanaki points to some inconsistency in the way other candidates were treated in respect of late filing of election expenses but we agree with the learned Judge below that differential treatment of this kind is not a valid ground for ordering a discharge without conviction. Rather, the focus must be on applying the statutory considerations and the accepted principles to the case before the Court.
Result
Randerson J
Heath J
Dalton J
[1] R v Saulala CR 84 of 2022 (pleaded guilty and was fined $400) and Queen v Filimoehala CR 89 of 2022 (pleaded guilty and fined $300).
[2] Judgment at [33]
[3] Citing Attorney-General v Fuko [2002] TLR 184.
[4] R v ‘Ala AC 19 of 2018.
[5] At paras 9–12.
[6] This Court confirmed these principles in R v Maile AC 23 of 2018 at para [9].
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URL: http://www.paclii.org/to/cases/TOCA/2023/16.html