R v Sosefo [2008] TOLawRp 22; [2008] Tonga LR 108 (1 May 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 13, 87, 252 of 2007 and 49/2008

R

v

Sosefo

Andrew J
29 April 2008; 1 May 2008

Practice and procedure – application for stay – overseas counsel needed for representation – fair trial obtainable with Tongan counsel – dismissed

The four accused were charged with eight counts of murder and two counts of arson arising out of the civil disturbance and riots in Nuku'alofa on 16 November 2006. Overseas counsel applied for a stay of proceedings on the basis that three New Zealand counsel would be required to defend the accused and their costs would amount to NZ$255,675. Counsel submitted that until they received those funds, the accused would be unable to obtain a fair trial.

Held:

1. The applicant's argument was akin to saying that the accused could not get a fair trial unless they represented them and they could not represent them until they were paid substantial funds by someone and until that happened the matter must be stayed. The court did not accept that argument.

2. The issue was whether the accused could obtain a fair trial. They were represented on the stay argument by able and senior Tongan counsel. In those circumstances, the court was not satisfied that it could be said that the accused could not obtain a fair trial.

Counsel for the prosecution: Mr Kefu
Counsel for the first and second accused: Mr Tu'utafaiva
Counsel for the third accused: Mr Kaufusi
Counsel for the fourth accused: Mr Edwards

Judgment

The four accused are charged with eight counts of murder and two counts of arson. The trial of these matters is set down for hearing at Nuku'alofa commencing on the 9th June 2008 and is listed for a hearing of three weeks.

Overseas counsel have applied for a stay of these proceedings on the basis it is said that:

"The applicants face charges that carry sentence of death or life imprisonment, are in pauperism with no means of affording counsel and the Crown and prosecution is represented by a team of legal practitioners from the Crown Solicitor's Office of New Zealand and the Kingdom of Tonga and upon the legal principle of equality of arms and on the grounds that disclosure is in the interest of justice and on further grounds that the rights of the accused persons are protected by the Constitution of Tonga and further as evidenced on the affidavit of Nalesoni Tu'inauvai Tupou".

Counsel who are based in New Zealand say that they would require three counsel to defend the accused and their costs would amount to NZ$255,675.00. Their argument is that until they receive these finds the accused would be unable to obtain a fair trial.

I think two matters need to be said from the outset. Firstly the accused are not unrepresented. They currently have three lawyers acting on their behalf. Those lawyers represent three of the most senior of defence counsel of Tonga. It is not correct to say that they can't afford counsel implying that they do not have counsel. Secondly on the ground that disclosure of the Crown material has not been made available to the defence, that is really not an issue. The Crown have undertaken to provide all the material to the defence that they will rely upon at trial. It is really conceded that there is very little that is yet to be disclosed and that consists only of matters such as photographic evidence which is not yet available. The question of disclosure is hardly in issue on the question of obtaining a fair trial. The Crown have advised that they shall not be relying on alleged Records of Interview or alleged confessional statements.

This application was foreshadowed many months ago. The trial was adjourned on 11 February 2008 so that the applicants could resolve their funding issues. It is apparent that no agency has provided funds to the applicants. It is fairly clear that it will not be forthcoming. If any stay were granted on the basis that it was dependant on the applicants being financed, practically, that would amount to a permanent stay.

The issue is whether the accused can obtain a fair trial. The Court must act in fairness to both the Crown and the defence.

This is not, as said, a case in which the accused are unrepresented and in fact are represented by some of the most senior of defence counsel in Tonga. This is a trial in Tonga not in New Zealand. The so called notion of equality of arms does not involve some subjective assessment of who has the best lawyer. But one would expect the present defence counsel to be move experienced and knowledgeable of the law and circumstances of Tonga. I do not consider that two or three lawyers from another jurisdiction necessarily shifts the so called equality of arms.

The issue here is whether the accused can obtain a fair trial. They are represented by able and senior counsel, who appear day in and day out in the majority of serious criminal matters in Tonga. I am not satisfied that in these circumstances it can be said that the accused cannot obtain a fair trial.

The applicant's argument is akin to saying that the accused cannot get a fair trial unless we represent them and we can't represent them until we are paid substantial funds by someone and until that happens the matter must be stayed. I do not accept that argument.

I am satisfied that the accused can and will obtain a fair trial. The application for a stay is dismissed.