Rex v Pohiva [2003] TOSC 5; CR 114-117 2002 (21 February 2003)

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

NO. CR. 114-117/2002

BETWEEN:

REX
Prosecution

AND:

1. SIOSIUA PO’OI POHIVA
2. SAMIUELA ‘AKILISI POHIVA
3. ‘ISILELI PULU
4. MATENI TAPUELUELU
Accused

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr Kefu for prosecution
First accused in person
Mr Tu’utafaiva for second and third accused

Chambers Hearing: 19 and 21 February 2003
Date of Ruling: 21 February 2003

RULING

This is a case of sedition, conspiracy and forgery. The accused have all pleaded not guilty to all counts and elected jury trial. The first and third accused are currently members of the Legislative Assembly as the first and third Peoples’ Representatives for Tongatapu respectively.

At the arraignment, the prosecution asked for an early hearing date because of the importance of the case. The estimate for the hearing was five weeks and the first such period available commenced on 12 January 2004. An additional difficulty was the undesirability of listing it for hearing during the sitting of the Legislative Assembly. That left only the period between late November and late May available for trial.

The alleged offences occurred generally between September 2001 and February 2002. The police started interviewing the accused soon afterwards and they were arrested and charged on 25 and 27 February 2002. The preliminary inquiry in the magistrates’ court went from 7 May to 16 August 2002 and the accused were committed for trial in the Supreme Court.

The procedure now followed in all indictable cases is that the arraignment date is fixed to take place approximately six weeks after the committal in order to give the prosecuting authorities ample time to prepare and file the indictment. This case was listed for arraignment on 4 October 2002..

However, the prosecution was not ready with the indictment and so it was adjourned to 15 November 2002. On that day, the prosecution was still not ready and it was further adjourned to 13 December 2002 – a total of 17 weeks from the date of committal to prepare the indictment in what is stated to be an urgent case.

By the time the accused were arraigned, my court list was filled, except for 6 separate days, until early January 2004. In view of the rather leisurely progress of the case up to then, I did not consider there were sufficient grounds to move other cases in which the parties had already been given court dates after, no doubt, waiting their turn.

A short while ago, whilst I was in Fiji, I was advised by the Attorney General over the telephone that he had asked a judge in New Zealand if he would come to Tonga to hear this case. The judge had agreed and the case could therefore be brought forward. I did not consider that was a proper approach and advised the Attorney General that I could only act on proper application by one of the parties.

Application has now been made by the prosecution for an early trial date. They seek to have the case tried before the next session of the Legislative Assembly which is due to start in the latter half of May.

Their grounds are:

“1. There is significant public interest in expediting the hearing of the trial due to the following factors:

(a) Two of the three accused are sitting members of parliament.

(b) The trial raises issues concerning false allegations about the reigning monarch, His Majesty Taufa’ahau Tupou IV.

(c) The subversive nature of the offences and the alleged conduct generates discontent and uncertainty with the public unless and until the issues are resolved.

(d) The issues are very much in the public arena and adversely affect the perception of the monarchy by the general public.

2. The allegations of sedition and the circumstances of this case makes the trial of significant constitutional importance.
   
3. The trial of sitting members of parliament whilst parliament on indictable charges is sitting is not precluded under clause 71 of the Constitution but is highly undesirable. Parliament is not scheduled to sit again until late May 2003.
   
4. Any delay until January 2004 will adversely affect the ability of the Crown to present its case due to the potential unavailability of witnesses and the effect of the lapse of time on witnesses’ recollections.
   
5. Additional facilities will be available to accommodate a trial in the period of April and/or May 2003 so other court fixtures scheduled for that period will not necessarily be disrupted.
   
6. It is in the interests of justice to have this trial heard at the earliest available opportunity.”
   

The Solicitor General has sworn an affidavit in support. It includes the statement in paragraph 6:

“6. The Solicitor-General’s office has received advice that Cabinet has now approved the appointment of a third Judge for the period April and May 2003 to deal with any scheduling difficulties. The Judge would be appointed at the disposal of the Chief Justice to either take up duties of sitting Judges or alternatively to preside over this trial.”

She then deposes: “The Crown is ready to proceed on a date in April/May 2003. There is no reason the Crown is aware of as to why the trial should not be able to proceed in April and/or May 2003.”

At the first hearing of the application in chambers, I made it clear that I did not consider the original approach by the Attorney General or any decisions by Cabinet were relevant.

I accept that there are strong grounds for considering a case such as this should have some priority if at all possible. In order to decide, the court must consider the claims of litigants in other cases who have already had to wait for their trials to take place but who would have to wait longer because of the priority given to this case. I must also bear I mind any objections the other side may raise.

However, at the hearing, the first accused, who appeared in person, and Mr Tu’utafaiva, for the second and third accused, indicated that they were also equally anxious to have the trial brought forward if that meant it could be tried before the next session of Parliament.

I have therefore advised the parties that I shall fix the case for hearing from 22 April to 21 May 2003 inclusive. That is on the assurance by Mr Tu’utafaiva that his clients in Criminal cases nos 102/01, 116/02, 47/02 and 125-131/02 have no objection to their cases being further adjourned. He has also agreed that he will advise his clients in civil cases 527/02, 802/02 and 27/01 that they must instruct different counsel if those cases are to be heard on the dates to which they have been assigned at present.

I also note the advice of counsel for the prosecution that he does not expect the prosecution case to take more than two weeks at the most.

I order that the present case be fixed for trial commencing on 22 April 2003 at 9.30 am by judge and jury. There will be a pre-trial conference on 20 March at 9.0 am and counsel shall raise any preliminary points of law or procedure at that time.

I would finally add that, with only two judges, it is always difficult to re-arrange fixtures in order to give priority to a particular case. Whilst the court will always view any such application sympathetically, I make it plain that, in future, any such application must be made only by the parties or their counsel.

NUKU’ALOFA: 21^st February, 2003

CHIEF JUSTICE