Rex v Tupou [2000] TOSC 35; CR 008 2000 (4 September 2000)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR.8/00.

REX

-v-

TONGA TUPOU

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Pouono for the Crown and
Mr Fifita for the accused.

Date of submissions: 1 Sept 2000
Date of Ruling: 4 Sept 2000

RULING ON APPLICATION FOR ADJOURNMENT

This case was set down for a two-day trial commencing last Friday and continuing today. When the case was called on Friday morning, Mr Pouono for the Crown said that he was not in a position to go ahead and he asked for an adjournment. He said that the reason he was seeking an adjournment was because of the unavailability of a key witness. As I understand it, the position is that the Crown proposed calling five witnesses. Of these five, there were two who were critical witnesses to the Crown's case. One was a Mr Peter Corbett and the other was Pungato Latu. Mr Pouono said, ideally he would have wanted to have both witnesses available but he certainly would want one or the other and if neither was available then the case could not go ahead.

Mr Pouono said that Mr Latu had gone to New Zealand and he was not now available. He went on to say that Mr Corbett had been involved in an accident and he was not able to give evidence for probably at least another two months. I asked Mr Pouono if he was able to provide the Court with a medical certificate and he said that he had tried to get one from a local doctor, Dr Heinz, but he had not been successful so far.

Mr Fifita is acting for the accused who is facing charges of embezzlement, theft, and obtaining credit by false pretences which relate to some 80 cartons of beer in total which were allegedly converted to his own use whilst he was employed by the Nuku'alofa Club in about October 1998 and then a count of forgery and another of knowingly dealing with forged documents which, as I understand it, relate to delivery of the same beer supply I have mentioned.

Mr Fifita opposes the Crown's application and submitted that if the case was not able to proceed then it should be struck out. He pointed out that he had been working on the case with his client on Thursday night between 7 and 10 p.m. and then he went on to carry out further work on the case until 3 a.m. on Friday morning. Before going on, I want to say a word just in relation to that aspect of the case. I knew on the Thursday afternoon, because the Court had received advice through the Registrar, that the Crown was having problems with a witness and there may be difficulties in having the case going ahead on the Friday. Whilst I appreciated that indication of the position, this is a small Bar in Tonga and out of common courtesy, the Crown should have contacted counsel for the accused at the same time that it advised the Court and it should have alerted him to the fact that the case might not be going ahead. As it was, he incurred expense in working until 3 a.m. in the morning and that expense could have been avoided by a simple communication.

Mr Fifita submitted that his client had now had this case hanging over his head since October 1998 and it was unfair to the accused to allow it to drag on any further. He pointed out that this was the second time it had been adjourned. On the first occasion when it had been set down for trial in May of this year it had also been adjourned at the request of the Crown and on that occasion Mr Fifita had asked for costs on the adjournment from Mr Justice Finnigan because his client had incurred unnecessary expense in preparation but the Judge reserved the question of costs.

Mr Fifita stressed quite forcefully that, his client was not responsible for the delays and he made the point that if the Crown had acted promptly it could have taken Mr Latu's evidence on commission or made some other appropriate arrangement as soon as it became aware that he was leaving, or had left, for New Zealand.

There is some substance in this submission. I have not been given any explanation as to why the Crown could not have tracked Mr Latu down in New Zealand and had his evidence taken on commission. This process is followed in other similar situations that confront parties before this Court.

In response Mr Pouono said that the adjournment in May was not the fault of Crown Law but of the Court itself because it had failed to issue subpoenas as requested by the Crown. The position does not appear to be quite that straightforward from the Court file but I nevertheless accept what Mr Pouono says. In all events, the adjournment did not result from any action on the part of the accused. After hearing the submissions from counsel last Friday I adjourned the matter until 10 a.m. this morning and I asked the Crown to obtain a medical report in the meantime in relation to Mr Corbett. The Crown has now produced a report from Dr Heinz. It reads as follows:

"According to my examination of Peter Corbett on August 31st, 2000 -- I believe that Mr Corbett will be able to give evidence at court within at least two months time.

He's recovering from his total hip replacement and additionally suffering from a vertigo which should be stabilised within the next weeks."

In other words, Mr Corbett will not be available until November - just over two years since the factual matters occurred giving rise to the charges. Halsbury's Laws of England, 4th edition, vol.11 (1), para 786 states:

"Prolonged delay in starting or conducting criminal proceedings may be an abuse of process as, for example, when substantial delay has been caused by some improper use of procedure by, or inefficiency on the part of, the prosecution and the accused has not himself caused or contributed to it and has been prejudiced by it."

That is the situation here. The accused has not caused or contributed to the delay. I find this very much a borderline case and I have given it some careful thought. I note, however, that the accused was not arraigned until 20 January 2000 and so, despite the abortive hearing in May, the case has, in fact, proceeded in this Court with reasonable dispatch. The quotation from Halsbury referred to above concludes with the following statement:

"The jurisdiction to decline to allow criminal proceedings to continue should be used sparingly."

The Crown, it seems, was not responsible for the first adjournment and the Court has now been presented with sound medical reasons why the key witness, Mr Corbett, is not available to give evidence at the present time.

In all the circumstances, I am prepared to grant the further adjournment the Crown seeks. The trial will now take place on 11 and 12 Dec 2000. The accused is entitled to costs on this adjournment application which I fix at $150.

NUKU'ALOFA: 4 September, 2000.

JUDGE