To'aho v R [2024] TOCA 25; AC 29 of 2023 (20 November 2024)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

[AC 29 /2023]

[CR 17/2023]

BETWEEN

FILIMONE TO’AHO

Appellant

AND

REX

Respondent

Hearing: 11 November 2024

Court: Randerson J, Harrison J and Dalton J

Counsel: Davit Corbett for the Appellant

: Tupou Vainikolo for the Respondent

Judgment: 20 November 2024

JUDGMENT OF THE COURT

[1] This appeal against conviction on eight counts of obtaining money by false pretences contrary to s 164 of the Criminal Offences Act was listed for hearing on 11 November, 2024. The Court adjourned the appeal until the April 2025 sittings.
[2] Two difficulties presented themselves. First, all the grounds of appeal concerned the evidence at the trial. The trial was conducted in Tongan and the transcripts had not been translated into English, as they should have been, for the appeal. This may not have been insurmountable: it may have been possible for the appeal to go ahead if, with the co-operation of counsel and Registry staff, the relevant parts of the transcript were read to the Court in English.
[3] However, the second difficulty was that counsel for the appellant sought leave to withdraw. This had been foreshadowed a day or two before. Apparently it was not that there was any professional reason for the withdrawal; counsel had not been put in funds. Counsel was given leave to withdraw. However, this made the prospects of having a fair hearing without an English transcript most unlikely.
[4] The Court adjourned the matter. After this, the appellant sent a message through the Registrar, asking for the appeal to go ahead without counsel, and without the transcript. The Court was prepared to accommodate this request. However, while the Court was attending to other matters, the appellant thought better of this and when the matter was mentioned again, he asked that the appeal be heard in the April 2025 sittings. The Court was content with this, and the matter remained adjourned.
[5] We note that the Crown was at all times ready to argue the appeal.
[6] We record, as we made clear at the mention of the appeal, that it is most unsatisfactory professional behaviour to file an appeal, file the outline of argument and then, at the last minute, seek to withdraw, not for any professional reason, but because adequate arrangements as to fees have not been made. Any lawyer who acts in an appeal must ensure that the arrangement they make with their client about fees means that an application for withdrawal is made well in advance of the hearing date. This means that their client has the chance to seek another lawyer, or properly prepare to argue the appeal themselves. It also means that the Court’s listing arrangements are not disrupted and that the Crown does not waste public money preparing for an appeal that does not go ahead. In the future, lawyers who apply to withdraw at the last minute only because they have not made proper arrangements as to fees may well find that the Court does not allow them to do so.

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Randerson J

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Harrison J

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Dalton J