Angilau v R [2024] TOCA 18; AC 8 of 2024 (20 November 2024)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

[AC 8 /2024]
[CR 65/2023]

BETWEEN

TU’IFUA ANGILAU
Appellant

AND
REX
Respondent

Hearing: 12 November 2024
Court: Randerson J, Harrison J and Dalton J
Counsel: David Corbett for the Appellant (originally)
: David Garrett SC for the Appellant (subsequently)
: Joe Fifita for the Respondent
Judgment: 20 November 2024

JUDGMENT OF THE COURT

[1] This appeal against conviction came on for hearing on 12 November 2024. It had to be adjourned in circumstances we will describe.
[2] On 5 March 2024 Langi J gave a verdict of guilty on one count of possessing illicit drugs contrary to s 4(a)(iii) of the Illicit Drugs Control Act 2003. In the notice of appeal the appellant raises two points. The first relates to the procedure adopted by police when the appellant was arrested, and the second relies on fresh evidence. It was possible to deal with the first of those points on 12 November 2024, but not the second.
[3] The appeal was filed in April 2024 by Mr Corbett. The Crown promptly gave notice that the appellant needed to make an application to adduce the fresh evidence on appeal. Mr Corbett did nothing to progress this aspect of his client’s case. The fresh

evidence which the notice of appeal seeks to rely upon will, if it is ever obtained, take the form of an affidavit from a man who is presently incarcerated with the appellant. Counsel for the appellant did not even take a statement from him, let alone assess the creditworthiness of his account, prepare an affidavit, or file an application to adduce the evidence on appeal.

[4] Days before the appeal, the appellant briefed new counsel to appear on the appeal, Mr Garrett. He was not able to progress the matter in the time available to him, and that may be accepted as reasonable. He submitted that the hearing of the appeal should be adjourned to enable him to prepare an application to adduce fresh evidence. While the delay in taking necessary steps on behalf of the appellant had been great, this was not the fault of the appellant, and the fault of Mr Corbett should not be visited on the appellant. If the foreshadowed fresh evidence was obtained, and leave was granted to rely on it, it would undermine the Crown case and there would need to be a retrial. Looking past Mr Corbett’s neglect of his client to the appellant’s interests, that argument was accepted.
[5] Mr Corbett sought leave to withdraw a day or two before the appeal was due to be heard. As well as the injury to his client’s interests, we note that his conduct has caused disruption to the Court of Appeal listings, and waste of public money in having the DPP prepare to respond to the appeal on 12 November 2024.
[6] When the appeal was mentioned on 12 November 2024, the following orders were made:

• (a) Mr Corbett is granted leave to withdraw.
• (b) The appeal is adjourned until the April 2025 sittings.
• (c) Within 21 days of 12 November 2025 the appellant is to file and serve any application to adduce further evidence on this appeal, together with supporting affidavits from the appellant and the witness he asserts reliance upon.
• (d) The Crown is to file and serve any responsive affidavits by 31 January 2025.
• (e) Notices to cross-examine are to be filed and served within 14 days thereafter.
• (f) The application for leave to adduce fresh evidence and the substantive appeal are to be heard together in the April 2025 sittings.
• (g) Half a sitting day is to be set aside for that hearing.
  

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Randerson J

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Harrison J

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Dalton J