Tu'ivai v Lokotui [2005] TOSC 46; CV 741 2004 (9 February 2005)

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

NO CV 741/2004

BETWEEN:

‘AMINI TU’IVAI
Plaintiff

AND:

MAGISTRATE FOLAU LOKOTUI
Defendant

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 1 & 2 February 2005.

Counsel: Plaintiff: In person
Defendant: Ms Simiki

RESERVED DECISION ON APPLICATION FOR JUDICIAL REVIEW

Preliminary

The Plaintiff, ‘Amini Tu’ivai, applied for judicial review of the Defendant, Magistrate Lokotui’s, decision on 20 October 2004 to allow the prosecution a further adjournment of the Preliminary Inquiry [PI] in the criminal cases against the Plaintiff and others (Nos 692-6/03). The Plaintiff claims that the PI has been adjourned several times since December 2003. He seeks an order of certiorari quashing that decision.

On 18 November 2004 I granted the Plaintiff leave to make this application, but I refused leave for the Plaintiff’s accompanying application to strike out and/or dismiss all the charges in the criminal proceedings against the Plaintiff and his 2 co-accused.

This is an important case because I am not aware of a decision by a Magistrate in relation to adjournment of a PI having previously been challenged in Tonga by way of judicial review, yet it is very clear from the authorities that challenges of such decisions of the lower courts in Britain have been frequent: see eg the cases cited in Gordon, Judicial Review: Law & Procedure (2nd Ed), para 10-010 - Applications for adjournments.

Evidence and submissions

The Plaintiff relied on his affidavit dated 25 January and supplementary affidavit in reply dated 31 January. The Defendant relied on his affidavit dated 25 January with annexures.

Although I had made it clear that this hearing would be on affidavit evidence only, at the start of the hearing the Plaintiff also sought to call a witness, but subsequently withdrew that application.

I heard submissions for both parties and was referred by each to various legal authorities.

Primary facts

The principal relevant primary facts in relation to this application are as follows:

By way of background, the criminal proceedings in question have been brought against the Plaintiff and 2 other accused, Hon Veikune and Mr ‘Aisea To’a, arising out of goods imported from Fiji. The offences are alleged to have taken place in September 2003 and the charges, which include allegations of bribery of a Government servant, conspiracy and knowingly dealing with forged documents, were brought on 2 December 2003.

The matter was set down for a PI before Magistrate Mafi early in 2004, but adjourned to 9 June 2004, when it came before Magistrate Tatafu and the Police prosecutor sought an adjournment. The record of that hearing showed that on that occasion the Police prosecutor said:

"Chairman, if by the 20/10/04 and that the works on these cases are not yet completed and the charges shall all be withdrawn."

In reply Magistrate Tatafu had stated:

"... it is fair that these cases are to be adjourned to the 20/10/04 as to the request of the prosecutor and if by that time comes and the prosecutor's works are not yet ready, and it is for him to withdraw the charges."

The hearing on 20 October 2004 was before the Defendant, who had not previously been involved in these cases. The Plaintiff states in Para 21 of his affidavit of 25 January:

"21. I submit that when entered the court and found out that the defendant is the chairman for that day I thought my prayer is answered as I know that he is one of the Magistrates that always straightening the police prosecutors when they abuse the process and I hope that he will do the same thing that day. The Magistrate was sitting in the last hearing is an ex-police officer and even he is a Magistrate now but I did know for sure that he was to rule in favour of the Police."

At the hearing the Defendant had before him 2 letters, one from the Counsel for the co-accused Hon Veikune, Mr Tu’utafaiva, who was at that time engaged in a lengthy jury trial at Vava’u. The translation of that letter is:

"Re: Hon Veikune

We act for the above mentioned accused.

The reason for this request is if you could convey to the Magistrate my application to adjourn the matter to a date which is convenient to the Prosecution and its witnesses due to a trial which is heard before the Supreme Court in Vava'u.

Yours sincerely

Siosifa T Tu'utafaiva"

The other letter was from the Police prosecutor. The translation of that letter is:

"Re: Letter of Application to Adjourn the matter between the Crown and Hon Veikune and Amini Tu'ivai, 'Aisea To'a

With respect I would like to convey this request.

The reason of this request is to ask to again adjourn the court case that is mentioned above to the month of February 2005 so that the inquiry can be carried out. The reasons for this request.

1. the request for assistance through the Mutual Assistance in Criminal Matters 2003 to Fiji to obtain the original documentary evidence to become evidence in this trial. There was a problem due to the changes in the portfolio of Attorney General (AG) for the request must be made by the Attorney General.

2. The status of this request is that the AG has approved the request and it has been forwarded to the Government of Fiji so work can proceed. I hereby attach a letter from the Solicitor General for your reference to see the status of this request.

3. The accused appealed to the Supreme Court about the matter due to the long delay of this matter and the appeal was not granted because it is still at the inquiry stage.

4. The nature of this offence was that it started in a different jurisdiction and the offence was completed here in Tonga. Due to this it is quite difficult to obtain evidence about this matter. There is a request as stated in paragraph 1 to the authorities in Fiji if evidence can be obtained from there.

5. The way in which this offence was carried out makes the investigation difficult in this type of case.

The prosecution due to the reasons that are mentioned above requests that the inquiry of the matter be adjourned for 3 months so that the evidence for the matter be confirmed.

Hope you will accept this request.

Sgt Mema Latu

Prosecutor CC: Sifa Tu’utafaiva

‘Amini Tu’ivai

‘Aisea To’a"

The letter (Savingram) referred to in Para 2 of that letter and attached to the Police prosecutor’s letter was:

"To: Acting Secretary for Foreign Affairs

From: Acting Solicitor General

Date: 18th October 2004

RE: Request for Mutual Assistance in Criminal Matters

1. Pursuant to sections 4(1) and (3) of the Mutual Assistance in Criminal Matters Act 2000, the Hon Attorney General and Minister of Justice has the authority to make requests on behalf of Tonga to a foreign state for mutual assistance in any investigation commenced or proceeding instituted in Tonga, relating to any serious offence.

2. Accordingly, please find attached a request from the Hon Attorney General and Minister of Justice seeking the assistance of the Attorney General of the Fiji Islands regarding a case pending before the Magistrates Court.

3. We seek your assistance in urgently forwarding the attached original request and two copies, to the relevant authority in Fiji and any further necessary action to expedite the request.

Respectfully

For Acting Solicitor General"

The Plaintiff queried the authenticity of Para 2 of that letter, as the request referred to was not attached, but at this hearing there was produced for the Defendant an earlier Savingram about the request showing that the request had been signed by the Hon Attorney General on 14 October (the full request being a bulky document which was confidential and not made available to the Plaintiff). That Savingram stated:

"To: Hon Attorney General and Minister of Justice

From: Solicitor General

Date: 12th October 2004

RE: Mutual Assistance in Criminal Matters.

1. Pursuant to sections 4(1) and (3) of the Mutual Assistance in Criminal Matters Act 17 of 2000, the Attorney General has the authority to make requests on behalf of Tonga to a foreign state for mutual assistance in any investigation commenced or proceeding instituted in Tonga, relating to any serious offence.

2. Accordingly, please find attached a letter from Assistant Police Commander Viliami ‘Unga Fa'aoa, Officer Commanding Crime & Operation, Ministry of Police requesting the Hon Attorney General's approval of a Request for Mutual Assistance in Criminal Matters, dated 10 August 2004.

3. The application relates to a case pending before the Magistrates Court and the request for assistance from the relevant authorities in the Republic of Fiji, as attached, and if obtained will assist in establishing a prima facie case.

4. The matter is to be heard again in the Nuku'alofa Magistrate's Court on October 20th, 2004 and due to the urgency, your favourable consideration and approval is hereby sought.

‘Alisi N Taumoepeau

Solicitor General

Have signed request

(AG initials) 14/10"

At the hearing on 20 October the Defendant gave the Plaintiff the opportunity to make submissions, which were recorded in the transcript, the translation of which is:

" ‘Amini: Sir, Teisina [Mr Teisina Fifita, who is acting for Mr To’a] asked if I could say something on behalf of myself and 'Aisea To'a because he will be late due to matters in the Supreme Court. Sir, since December, 2003 this matter was adjourned for the police to go to Fiji and bring evidence to the trial the Magistrate at the time was Salesi Mafi and it was adjourned to June 9th and that was Paula Tatafu, and it was said that the money will be obtained in July (new financial year) so that the 2 police can go and the tickets were confirmed which was an application made by the Prosecutor. There are 4 things that I would like to submit.

Submission 1 The record of the Court in which the Prosecutor (Mema) on the 9th of June that if the evidence were not obtained all summons would be struck out.

Submission 2 In Law Report 1997 p 140 between the Crown v Filimoehala before CJ Hamilton [Hampton] in which Lewis continuously adjourned for 7-8 months after 6 months for the matter was not ready, and it was submitted that the PI was completed. So I submit that you make a decision.

Submission 3 The accused is in difficulty in trying to obtain a visa to travel overseas and things of that sort.

Submission 4 'Aisea To'a should be heard separately from Veikune and I, because he has been bribed.

Ct: Is your Law Report here, 'Amini?

‘Amini No Sir"

Although the Plaintiff submitted that there were very few points on which he agreed with the Defendant’s account, I did not find that there was any substantial difference of relevance to the issues between the facts set out in the affidavits of the parties which would affect the basis of this decision.

In my view there was only one substantial matter on which there was a difference, the issue of whether the Plaintiff made submissions to the Defendant that the Police should have completed their investigation before bringing the charges. In Para 14 of the Statement of Claim the Plaintiff stated:

"The defendant was wrong when he ignored and/or did not accept the submission of the Plaintiff that the Police should have conducted their full investigation on these charges to get all their evidence needed before charging the accused and not to charge the accused first without any evidence then do the investigation later ..."

Then in his affidavit of 25 January the Plaintiff stated at Para 16:

"16. The reasonable procedure is that when a complaint is lodge the police will then make their first move is to investigate the matter to get evidence. The next thing when there is sufficient evidence is to charge the suspect or the accused. When the preliminary inquiry hearing is heard ie the police must be ready to give to this court sufficient evidence to prove their case but this case, the police do the charge first then dated the preliminary inquiry hearings for so many hearings now then they start their investigations and we adjourned so long so many times for eleven months now still the investigations are not yet done."

In response in Para 13 of the Statement of Defence it was stated for the Defendant:

"13. The Defendant denies paragraph 14, and says in response that the Plaintiff never made a submission that the police should have completed their investigation before charging the Plaintiff."

While I am inclined to accept the transcript record of the Plaintiff’s submissions as being correct, especially as in more than one place it refers to him making 4 points of submission, I am aware that the Plaintiff has a habit of making long, complex submissions which are not always easy to follow, and I suspect he may have added something along these lines in relation to his submissions on the case of Filimoehala, which has been taken as being part of his submissions on that case. But in any event, while I am prepared to consider the Plaintiff’s submission on the matter, as set out below it seems to me that due to the limited scope for Magistrates to dismiss cases for abuse of process, the matter cannot be of great relevance.

The decision of the Defendant appears in detail in the translation of the transcript of the hearing as follows:

"Ct: In this matter the Prosecution has submitted a letter to the Court, and distributed copies to the accused. There are ground for the application to adjourn the trial which is stated in the letter of the Prosecution. And attached is a letter from Solicitor General to the Acting Secretary to Foreign Affairs. And there is letter from counsel Sifa Tu'utafaiva for an adjournment to a date which this matter will be ready from the prosecutor for he is still at a trial in the Supreme Court in Vava'u. I would like to emphasise the Prosecution has no authority to strike out a criminal matter. There are submissions made by the accused 1, 'Amini Tu'ivai together with submissions on behalf of Teisina Fifita that he submits will be late because he is at the Supreme Court. And I will refer to this.

First, there was a promise from the Prosecutor (M Latu) on the last trial date 9 June, that by today if they have not obtained the evidence they will strike out the matter. The Court will only accept this if the Prosecutor did state those things. But today the Prosecution submits documents that supports its application, that work has commenced for the financial year has started to carry out the work. The requests for adjournment in the past it was clear that work had not commenced to carry out work in a foreign country and money is needed for that. Another reason is that stated in the letter from the Prosecutor prompt work could not be carried out because something happened in government that is relating directly to the Attorney General, Minister of Justice and Solicitor General. They were dismissed, another person was appointed than suddenly another new Minister appointed, short while, another Minister was appointed now, and it appears that things are stable that the work commenced.

Secondly, it has been submitted a case from the Law Report, and unfortunately, counsel does not have the Law Report for me to refer to because I did not bring my Law Report, but despite that I will use the working documents that the Court has now.

Thirdly, it is submitted that he is in difficulty in trying to travel overseas including asking for a visa. The Court does not believe this because it is still available to the accused to ask for a visa to any place he wants to apply for. To travel, the Court believes that the accused can apply to the Court to allow him to travel overseas and I believe the accused has done this before and the Court accepted and this is available at any time he wants to travel overseas to apply. It is not prevented or made difficult because of this matter.

Fourthly, it is submitted that the accused 'Aisea To'a should and may have separated from them Veikune and his case. The Court accepts what you submit, but that submission should be made by 'Aisea To'a's counsel. Even though the Court accepted you to speak on behalf on Teisina Fifita because he will be late but you are limited to the application for adjournment. In relation to other matters that you have submitted the Court MUST receive a request from Teisina Fifita that you will be representing him in the matter. Maybe that is my answers to the submissions made by 'Amini. So, I have considered all the matters in the application that came in this morning, and I order:-

i) The application made by the Prosecution to adjourn there is support that work has commenced according to the letter from the Acting Solicitor General to the Acting Secretary for Foreign Affairs.

ii) The Court has received a letter from counsel Sifa Tu'utafaiva for the 2nd accused for the matter to be adjourned for a time in which the Prosecution will be ready for he is at a case in the Supreme Court at Vava'u.

iii) And other reasons I have referred to in the submissions made by 'Amini Tu'ivai.

The Court believes that there are sufficient reasons why it should grant the application made by the Prosecution. If I agree to have the matter heard according to the application made by 'Amini, how about Veikune whose counsel has requested an adjournment?

Teisina still has not arrived yet and he said he is going to be late. So I order that I grant the application made by the Prosecution for this matter. Submit some dates.

C/Pros: The 26/2/05 is this date convenient?

Ct: i) This matter adjourned to the 26 February 2005 for Inquiry.

2. During the period from today to 26 February 2005 the Prosecution to bring evidence in Tonga and from overseas to be ready.
3. This is the final adjournment granted because work has commenced and there is ample time for it to be ready for 26 February 2005.
4. The accuseds will be continue to be on bail on the same conditions granted."
   

The next date for the PI is in fact 23 February.

Grounds of application

The Plaintiff’s application was brought on 4 grounds, set out at para 8 of his Statement of Claim: that the Defendant’s ruling allowing an adjournment was void and invalid and/or ultra vires and having no legal effect, as it was (1) unreasonable; and/or (2) in breach of the principles of natural justice and fairness; and/or (3) it was made on wrong points of law; and/or (4) it was also based on wrong points of fact.

In addition at the start of the hearing the Plaintiff sought to add a further ground (that the Police Prosecutor had been acting fraudulently in relation to the letter dated 19 October) to his application, but Counsel for the Defendant objected. I refused that motion on the grounds that it came too late, especially for a serious allegation of fraud. It also appeared to me that the basis of the additional ground sought to be added was misconceived; and in any event the matter was likely to be covered under the Plaintiff’s ground of wrong facts.

Plaintiff’s submissions

The Plaintiff claimed (at Paras 25 and 26 of his affidavit of 25 January) that, as mentioned above, there had been a promise by the Police prosecutor on 9 June to Magistrate Tatafu that if by 20 October the cases were not ready the charges would be withdrawn. The Plaintiff submitted that the Defendant should have taken the promise of the prosecutor seriously, to keep him to his promise.

The Plaintiff also submitted that he had made detailed submissions to the Defendant in relation to R v Filimoehala [1997] Tonga LR 140, as described at Paras 14-16 of his affidavit. In that case the prosecution had sought an adjournment of the trial because of the absence of the complainant and other witnesses, but that had been refused (except to the following day). The Plaintiff submitted that in that case the PI had already been completed and the adjournment had only been to the following day, but the present case was more serious, as there had been no evidence at all put to the court to show that there was a prima facie case, yet an adjournment of 4 months had been allowed. The Plaintiff submitted that the first duty of the Police was to investigate a complaint to make sure that they had evidence, then when they had evidence they had to charge the suspect, and at the PI they had to be ready to produce sufficient evidence to prove the case. He submitted that in the current case the Police had first prepared the charges and had then come to the court for the PI before they had done their investigation, and they were still doing their investigation while the accused were waiting for the PI.

The Plaintiff further submitted that he had made submissions to the Defendant about the conditions of bail, as he required 2 sureties, travel overseas was restricted without leave of the court, and overseas visa applications were restricted.

The Plaintiff’s next submission related to Para 8 of his Statement of Claim, ie that the Defendant’s ruling had been unreasonable or unfair or made on the wrong point of law. He submitted that it had been unreasonable for the Defendant to reach the decision he did because in a normal criminal case there was investigation of evidence before the charge, then the PI and then the trial – but in this case the complaint had been lodged, then the charges made and the PI scheduled before the investigation.

With reference to Para 13 of the Statement of Defence (already referred to above), where the Defendant said that the Plaintiff had never made a submission that the Police should have competed their investigation before charging him, the Plaintiff submitted that he had made such a submission (see Para 16 of his affidavit), but in any event the Defendant should have known the principles of criminal procedure.

The Plaintiff further submitted that the acceptance by the Defendant of the prosecutor’s letter dated 19 October only 1 day before the hearing was unfair, as it had not given the other parties fair time to receive the letter. As the previous hearing had been on 9 June, the prosecutor should not have waited until the last moment. The Plaintiff submitted that the Defendant was unreasonable, unfair and wrong in law when he accepted that application by the prosecutor while he had the report of the previous hearing with the promise made by the prosecutor, as the adjournment on 9 June had been based on that promise by the prosecutor.

The Plaintiff also submitted that it would have been a more reasonable alternative for the Defendant to have made a ruling and he should have dismissed the case, because no evidence had been presented by the prosecutor, who had to bring a prima facie case.

The Plaintiff submitted that the Defendant had been wrong to deny him the opportunity of speaking for his co-accused, Hon Veikune, as the latter had instructed the Plaintiff that he had had no contact with his own lawyer, Mr Tu’utafaiva, about the hearing.

The Plaintiff also referred to the following authorities:

Mahon v Air New Zealand Ltd [1984] 3 All ER 201 (PC)

Murdoch v New Zealand Milk Board (1982) 2 NZLR 108

Russell v Duke of Norfolk [1949] 1 All ER 109,118 (CA)

Stevenson v United Road Transport Union [1977] 2 All ER 941 (CA)

Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 (PC)

R v Home Secretary ex p Zamir [1980] UKHL 14; [1980] 2 All ER 768 (HL)

In re HK (an infant) [1967] 1 All ER 226 (DC)

Counsel for the Defendant made detailed submissions in reply.

Legal framework for judicial review

It is important to set out the legal framework at the start, and I do so by first making it clear that the law has now developed and the generally understood grounds for judicial review are those set out by Lord Diplock in CCSU Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935,950-1 (HL):

"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1955] 3 All ER 48, [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all."

I shall deal with the Plaintiff’s grounds in turn, but I shall leave the ground of unreasonableness until last as it is more complex.

Was the Defendant in breach of the principles of natural justice and fairness?

[Procedural impropriety]

In relation to the alleged denial of natural justice, Counsel for the Defendant referred to Para 2-013 of Gordon and the observation of Lord Denning MR in Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322,337 (PC):

"The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: nemo judex in causa sua, and audi alteram partem. They had recently been put in the two words, impartiality and fairness. But they are separate concepts and are governed by separate considerations."

It was also submitted that Defendant had given a fair opportunity to the Plaintiff to give his views in relation to the application for adjournment; and that the Defendant had applied the test emphasised by Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66,71 (HL), ie what a reasonable man would considered to be fair in the particular circumstances (Gordon Para 2-021). As stated in Paras 14-17 of the Defendant’s affidavit and the transcript of the hearing, there had been an opportunity for the Plaintiff to make submissions and all submissions had been carefully considered, so that a fair hearing had been given to the Plaintiff and he had been granted natural justice.

In relation to procedural fairness, Counsel for the Defendant referred to Para 10-008 of Gordon and the words of Lord Roskill in Clayton v Chief Constable of Norfolk [1983] 1 All ER 984,992 (HL) explaining the rule audi alteram partem:

" ... it is impossible to lay down general rules applicable to every case which may arise but if justices ask themselves, before finally ruling, the single question what is the fairest thing to do in all the circumstances in the interest of everyone concerned? - they are unlikely to err in their conclusion, for the aim of judicial process is to secure a fair trial and rules of practice and procedure are designed to that end and not otherwise."

Looking at both the translation of the transcript of the hearing and the Plaintiff’s own affidavits, there are no signs that the Plaintiff was not afforded natural justice at the hearing in relation to his own case. He knew that the Police prosecutor was seeking an adjournment and why, and he had ample opportunity to make submissions about that to the Defendant, and did so, submitting 4 separate points. There was no suggestion in the Plaintiff’s affidavits that he was refused an opportunity to speak on his own behalf.

While the Defendant did refuse the Plaintiff an opportunity of speaking for Hon Veikune, that was because Hon Veikune’s own Counsel had already written to the Court seeking an adjournment because he could not attend the PI that day to represent his client Hon Veikune. Likewise the Defendant refused the Plaintiff an opportunity of speaking for Mr To’a in the absence of his Counsel, and that was because in those circumstances the Defendant - in my view properly - did not consider he should hear the Plaintiff as stand-in counsel on a substantive new issue about separation of the trials. Both these instances concerned the Plaintiff’s co-accused, who are not parties to this application, so they are not strictly relevant to this case.

However the Plaintiff’s affidavits do appear to show that at the hearing he raised some other issues - eg about men of Folaha - which appear completely irrelevant to the issues before the Defendant and can only have served to confuse the situation. If the Clerk or the Defendant decided not to record them for that reason, and the Defendant did not take them into account, I can fully understand that decision.

I found that it was quite clear from the transcript of the hearing on 20 October that the points of substance raised by the Plaintiff with the Defendant were considered and accurately reflected in the transcript. I therefore found that the Defendant had properly considered the points submitted by the Plaintiff before coming to a decision

I did not consider that there were any signs from the Defendant’s conduct of the hearing that he might have been biased. I also noted that the Plaintiff had been pleased to find that the Defendant was to be taking the hearing on 20 October (as mentioned above, in Para 21 of his affidavit of 25 January) and that he considered that, in his words, the Defendant "is one of the Magistrates that always straightening the police prosecutors when they abuse the process".

While I understand the Plaintiff’s annoyance at receiving the letter from the Police prosecutor requesting an adjournment only the day before the trial, he did by that have prior notice of the application and I do not consider that it can be said to have been so late that it amounted to a breach of natural justice.

Overall therefore I did not find that the Defendant had been in breach of the principles of natural justice or procedural fairness, so as to amount to a procedural impropriety.

Was the Defendant’s decision made on wrong points of law?

[Illegality]

I understood that by this submission the Plaintiff contended that the Defendant, in reaching his decision, did not follow R v Filimoehala [1997] Tonga LR 140, the case which the Plaintiff referred to in his submissions to the Defendant, as described at Paras 14-16 of his affidavit of 25 January. The Defendant clearly noted that case reference (the translation of the transcript and Para 15.b of his affidavit), but was unable to rely on the case as he was sitting at Maseia Plaza away from the main Court building and the Plaintiff did not have a copy for him. However in my view Filimoehala simply states - I believe as a reminder to those concerned in the criminal justice system - what must always be understood in dealing with a criminal case, that it is in the interest of everyone in the criminal justice system that prosecutions proceed as soon as possible. I find that it is clear from the actual ruling given by the Defendant (ie that the prosecution has to be ready by February and this was to be the final adjournment because there was ample time for the prosecution to be ready by February) that the Defendant had that principle in mind. That view also is emphasised by the belief held by the Plaintiff that the Defendant was always straightening the Police prosecutors.

The Plaintiff also submitted (to me) that the first duty of the Police was to investigate a complaint to make sure that they had evidence, then when they had evidence they had to charge the suspect, and at the PI they had to be ready to produce sufficient evidence to prove the case. He submitted that in the current case the Police had first prepared the charges and had then come to the court for the PI before they had done their investigation, and they were still doing their investigation while the accused were waiting for the PI.

As mentioned above, the Defendant disputed that the Plaintiff had made such a submission, but in any event I take the view that this is a point that must always be understood in criminal procedure: see eg R v Vaiangina [1990] Tonga LR 118. But this issue is not really of prime relevance in this application, because the Plaintiff’s belief that the Defendant should then have dismissed the whole case is not borne out by the authorities.

It is made clear in Gordon Para 10-003 that magistrates may, in limited circumstances, stop a prosecution on the basis that it is an abuse of process. But in this case I accepted the submissions for the Defendant that there had been no evidence to prove that the prosecution had manipulated or misused the process and there had not been unjustifiable delay, as due to the circumstances peculiar to the matter more time was required for the reasons given in the application by the prosecutor; and that had come about because, while evidence was available, it had been considered that principals of documents were required (though no submissions detailing that information had been made to the Defendant).

I also accepted that no serious prejudice to the Plaintiff had been caused by the delay, as his only submissions were that there would be problems in relation to travelling overseas and visas, but, as indicated in Para 17(c) of the Defendant's affidavit, it was open to the Plaintiff to apply to the court for permission to travel, which he had done in the past. I myself am aware that, despite being on bail, the Plaintiff appears to travel regularly.

In particular in relation to abuse of process in committal proceedings, the powers of magistrates must be exercised very sparingly and only in the most obvious circumstances which disclose blatant injustice: R v Canterbury and St Augustine's Justices, ex p Klisiak [1981] 2 All ER 129,136 (QBD) per Lord Lane CJ; R v Canterbury and St Augustine's Justices, ex p Turner (1983) Crim LR 478; R v Telford Justices ex p Badhan [1991] 2 All ER 854,859 (QBD). While it is certainly unfortunate and unsatisfactory that the PI has been so delayed in this case, the circumstances are very unusual and I did not find that there was blatant injustice in this case.

There had therefore been no abuse of process by the Defendant in arriving at his decision.

Overall I therefore found that there had been no illegality, as the defendant had not made his decision on wrong points of law.

Was the Defendant’s decision based on wrong facts?

[Irrationality]

Traditionally, courts have been reluctant to examine alleged factual errors by way of judicial review; and generally such errors will be reviewed only on a basis analogous to abuse of discretion, namely, that the evidence does not reasonably support the decision or that no reasonable tribunal could have reached the same conclusion: Gordon Para 10-005.

In all cases it is important to determine the conceptual basis on which the application for judicial review is brought. A purported exercise of discretion may be a conventional error of law if not permitted by statute. Similarly, the disregarding by a magistrate of evidence is an error of law rather than one of fact where, for example, he wrongfully rejects admissible evidence; and conversely, it is an error of law to consider inadmissible hearsay evidence. The division between errors of fact and of law is not always easy to discern. (Gordon Para 10-005)

As I understood it, this head was based on the Crown Law Office letter of 18 October and the Plaintiff’s perhaps understandable but mistaken belief that because the Attorney-General’s request was not attached and copied to the Plaintiff it did not exist. As it was made clear at this hearing that the Attorney-General had by 20 October signed the request (on 14 October), then there was no mistake of fact in the decision, so this ground of challenge on irrationality does not succeed.

Was the Defendant’s decision unreasonable?

[Irrationality]

As set out above, in the CCSU case Lord Diplock explained ‘irrationality’:

"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1947] 2 All ER 680 (CA)). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

The famous passage of Lord Greene MR in the Wednesbury case at 682-3 was:

".. a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority."

As mentioned above, the Plaintiff claimed (at Paras 25 and 26 of his affidavit of 25 January) that there had been a promise by the Police prosecutor on 9 June to Magistrate Tatafu that if by 20 October the cases were not ready the charges would be withdrawn. The Plaintiff submitted that the Defendant should have taken the promise of the prosecutor seriously, to keep him to his promise.

In relation to those submissions, Counsel for the Defendant submitted that there was no clear reference to any promise at the previous hearing and it would have been up to the Police prosecutor to withdraw the charges in October, but he had applied for an adjournment instead of doing so. That hearing had also been before a different Magistrate.

While I understand the Plaintiff’s point - that the Police prosecutor should have been held to what could be read as a promise, even though it may not have been expressed as such - the essential point about this matter is that, as mentioned above in relation to wrong points of law, except in the most obvious circumstances which disclose blatant injustice, any inherent powers of magistrates at PIs in relation to abuse of process must be exercised very sparingly: Gordon Para 10-003. As I have said above, while it is certainly unfortunate and unsatisfactory that the PI has been so delayed in this case, the circumstances are very unusual and I did not find that there was blatant injustice in this case.

In addition, as Counsel for the Defendant submitted, in relation to applications for adjournments, the fundamental principle of natural justice is that a party has to be given a reasonable opportunity to prepare his case, which applies to both prosecution and defence. A Magistrate has to exercise his discretion in a judicial manner; and is not entitled to punish the prosecution for delays or inefficiency by dismissing the information: R v Sutton Justices ex p DPP [1992] 2 All ER 129. (Gordon 10-010)

I did not find that the circumstances in this case amounted to such blatant injustice that it could be said that the Defendant had been unreasonable to allow the adjournment. As stated in Para 4 of the letter of 19 October from the Police prosecutor to the Defendant, the nature of these alleged offences was that they started in a different jurisdiction, but were allegedly completed in Tonga, so that there were difficulties obtaining evidence and a request had been made to the authorities in Fiji. That request had unfortunately been delayed with 2 changes in the position of Attorney-General in quick succession. Thus it was reasonable for the Defendant to take these new factors into account, despite what may have amounted to a promise by the prosecutor at an earlier hearing; and it would have been unreasonable for him not to have done so and to punish the prosecution for the delays.

In addition the case is not against the Plaintiff alone and there are 2 other co-accused. The Defendant also had before him another letter from Hon Veikune’s Counsel Mr Tu’utafaiva, who was occupied at the Supreme Court in Vava'u and had consented to the adjournment to a date convenient to the prosecutor and witnesses. So in fairness to Hon Veikune, another possible alternative, that of proceeding with the PI on that day with the available evidence, was not open to the Defendant: cf Harrington v Roots [1984] 2 All ER 474 (HL).

As mentioned earlier, the Defendant did consider the Plaintiff’s submission about difficulties in travelling overseas, but did not accept it for stated reasons as he had not been prejudiced in applying for visas and his bail had been varied earlier to allow him to travel overseas. I did not consider the Defendant’s view on that unreasonable.

Overall I therefore found that in reaching his decision on 20 October the Defendant had taken into account all relevant factors and had not taken into account any irrelevant factors, so on that basis his decision could not be said to be unreasonable. Nor could it be said that his decision was so absurd that no sensible person could ever dream that it lay within the powers of his authority, nor that it was so outrageous that no sensible person could have arrived at it - especially as the decision included the injunction that it was the final adjournment and there was ample time for the case to be ready by the hearing later this month.

Conclusion

As the Plaintiff has not succeeded in establishing any of the 3 heads for control by judicial review (ie illegality, irrationality or procedural impropriety), his claim must fail and his application for certiorari is refused.

However in all the circumstances I understand his feelings and I do not criticise him for bringing this application. I hope that some of the guidelines which I have set out above, particularly in relation to the inherent powers of Magistrates in respect of adjournments and potential abuses of process, may be of use in this and other cases.

NUKU’ALOFA: 9 February 2005

R M Webster MBE
Chief Justice