Dalgety v Crown [2012] TOSC 40; CR 64 of 2012 (28 September 2012)

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

CR 64 of 2012

RAMSAY ROBERTSON DALGETY
(Applicant)

V

THE CROWN
(Respondent)

JUDGMENT

(Rulings on Application to Discharge Indictment)

K Barron-Afeaki SC and T B Afeaki for the Applicant
Mr A Kefu SG SC and Ms Macomber for the Respondent

Background

Prior to coming to Tonga, in 1991, the applicant, Lord Dalgety, was a barrister and had appointed been a Queen's counsel in Scotland in 1986.

He was appointed a Supreme Court Judge in Tonga in 1991, and after ceasing to hold this appointment in 1994, became associated with a number of commercial and other organisations including chairman of the Electricity Commission and corporate secretary of the Shipping Corporation, a part-time appointment he had held since 2003 and at the time of the tragedy. He had also been made a member of the Privy Council by the late King George Tupou the Fifth, in 2008. He is also a Tongan citizen.

On the 5th August, 2009, MV Princess Ashika departed Nuku'alofa with 96 passengers, 32 crew, and 1100 tons of cargo. Later that evening, the ship tragically sank and there was a large loss of life. Having investigated the tragedy for several months, the Royal Commission delivered a lengthy report on the 31st March 2010.

Its terms of reference were broad. Essentially, they were to inquire and report into;

(1) the facts about the disaster and the accompanying search, rescue, and recovery of the disaster victim;

(2) the cause of the disaster;

(3) evidence leading to a criminal act contributing to the disaster;

(4) evidence leading to any civil responsibility for the disaster;

(5) the reason why the loss of lives attained such magnitude; and

(6) any measures that would help prevent a future occurrence of a similar disaster or may assist in future search, rescue, and recovery of disaster victims.

The report was critical of many aspects of the purchase and operation of the Ashika and allowing it to proceed to sea at all. The Commissioner, Justice Andrew, said;

"There were many causes of the disaster. The tragedy is that they were all easily preventable, and the deaths were completely senseless. It was scandalous that such a maritime disaster could ever have been allowed to occur. It was a result of systemic and individual failure."

Criminal prosecutions followed and a lengthy trial was presided over by Justice Shuster with a jury, the principal charge being manslaughter by negligence. Lord Dalgety was not, however, one of those who were arraigned and tried before Justice Shuster. He had been independently charged with perjury associated with one aspect of the lengthy evidence he gave before the Royal Commission shortly after he completed his evidence on the 26th February 2010, the day before the Commission's hearings ended.

The indictment for perjury

The indictment against Lord Dalgety alleges a single count of perjury under section 63(1) of the Criminal Offences Act (Cap 18).

Perjury is defined in section 63(1) as;

"Perjury is the making by any person upon oath or affirmation, either in a judicial proceeding or in any affidavit or solemn declaration, of any material statement relating to a matter of fact, opinion, belief or knowledge which the person making such statement knows to be false."

Further, perjury is an offence that requires independent substantiation of the falsity of the allegation. Section 124 of the Evidence Act provides;

"In trials for perjury no person shall be liable to be convicted unless the falsity of the statement alleged to have been sworn to by such a person is proved by two witnesses or by a witness corroborated by material and independent circumstances. "

The particulars of perjury alleged by the Crown are in these terms;

"Ramsay Robertson Dalgety of Ha'ateiho on or about the 19th January 2010 at Kolofo'ou you did make under affirmation in a judicial proceeding before the Royal Commission of Inquiry into the sinking of the MV Princess Ashika, a material statement of fact which you knew to be false which is recorded in the official transcript of that Judicial proceeding as follows;

Mr Varitimos: Well do you know what the shareholding in Ocean Pacific is?

Lord Dalgety: I can't remember that. It was organised out – as I wasn't involved in the organisation of that company."

These particulars constitute the entirety of the allegation of perjury alleged against Lord Dalgety arising out of the evidence he gave before the Commission.

I raised with counsel before the hearing commenced whether I had jurisdiction to consider and discharge the indictment at this stage rather than at trial and both agreed that I did. In any event, the applications were referred back to this Court for determination by the Court of Appeal.

I read Lord Dalgety's evidence before the Commission in its entirety with the knowledge and consent of both counsel. In all, Lord Dalgety was in the witness box for a lengthy period of time. His evidence commenced on the 29th October, 2009, and proceeded on the 30th October, 2009, the 11th December 2010, and continued on the 19th, 20th, 21st and 22nd of January 2010. The final day of his evidence was the 26th February 2010. On some of those days, other witnesses were interposed or he was not called for any lengthy period; however, in the week commencing the 19th January, the questioning of him was intense. I mention also, after the hearing ended on the 22nd January 2010, Lord Dalgety was admitted to hospital and had only been discharged shortly before he gave evidence on the final day of his evidence, the 26th February 2010.

Mr Kefu also provided me with a copy of the Commission's lengthy report and findings and both counsel encouraged me to read the relevant parts of it, being the observations of the Commissioner concerning Lord Dalgety, and that part of the report relating Ocean (Pacific) Ltd which is relevant to the perjury charge. I welcomed this as enabling me to better understand the issues that the Commission was involved with and how the allegation of perjury was material, if at all, to those matters.

Shortly, after ending his evidence, Lord Dalgety was arrested by the police and charged. I inquired of Mr Kefu, the Solicitor – General, who represented the Crown, how this had occurred and when the decision to arrest Lord Dalgety had been made. I was advised by him that the Commission had referred certain documentation to him which he had passed on to the Police. He had not, however, been asked and did not give any advice concerning whether Lord Dalgety should be arrested or charged. He simply referred the matter with the documentation for the Police to consider.

Mr Kefu also informed me that a decision had been made by a senior police officer associated with the Ashika police inquiry to arrest Lord Dalgety after he had completed his evidence on the 26th February, 2010. The decision to arrest him was made before Lord Dalgety gave evidence on the 26th February. On the 26th February, Lord Dalgety was questioned at length about his involvement with Ocean (Pacific), and he explained what he had meant by "organisation" which is the foundation of this charge. Those questions and his answers to them were in my view of vital importance.

Lord Dalgety had initiated the present application to discharge which was heard by Justice Shuster on the 5th November 2010. Schuster J dismissed the indictment on the ground that the indictment was irregular in its form, and he did not permit the Crown to amend it. That decision was appealed successfully by the Crown and on the 15th April 2011 the Court of Appeal ruled that the prosecution had been regularly commenced and referred the case back to the Supreme Court so that the remaining pre-trial matters could be heard and determined.

Lord Dalgety's evidence before the Commission

The relevant passages of the evidence are set out below. On the 19th January 2010, having volunteered information that the modest sponsorship of Tongan archers prior to the Athens Olympics came from Ocean (Pacific) Ltd a company which up until that stage does not appear to have featured in the inquiry, there followed this exchange between Mr Varitimos, counsel for the Commission and Lord Dalgety at pg 3178 of the evidence.

MR VARITIMOS: Lord Dalgety, is Ocean Pacific Limited a subsidiary of Shipping Corporation?

LORD DALGETY: Pardon?

MR. VARITIMOS: Is Ocean Pacific Limited a subsidiary of Shipping Corporation?

LORD DALGETY: I don't think it's a subsidiary; I think it's an associate. Shipping Corporation has a certain – has a certain stake in it and - - -

MR. VARITIMOS: You say it is - - -

LORD DALGETY: - - - a German company has the balance.

MR VARITIMOS: You say it's an associated company.

LORD DALGETY: It's an associate.

MR. VARITIMOS: Could it be a subsidiary?

LORD DALGETY: I thought for subsidiary, it had to be in excess of 50 per cent.

MR. VARITIMOS: Well, do you know what the shareholding in Ocean Pacific Limited is?

LORD DALGETY: I can't remember that. It was – it was organised out – I wasn't involved in the organisation of that company.

MR. VARITIMOS: Lord Dalgety, did you go to the Athens Olympics?

LORD DALGETY: I did

MR. VARITIMOS: the funds that – I suggest to you that funds from Shipping Corporation were used.

LORD DALGETY: No, I've told you there was $3,000 paid out of Ocean Pacific and that wasn't in – that was not in July. That was some months before to send two of our archers to a training event for competition purposes.

MR. VARITIMOS: Lord Dalgety, you accept that Shipping Corporation have a significant interest, at the very least, in Ocean Pacific Limited.

LORD DALGETY: Yes

MR. VARITIMOS: Is that right?

LORD DALGETY: That's right.

There was further questioning of Lord Dalgety about Ocean (Pacific) Ltd on the 26th February 2010 at pages 6141 – 6142.

MR. VARITIMOS: Now, Shipping Corporation has always held a 40 per cent interest in Ocean Pacific Limited. Is that right?

LORD DALGETY: They're a minority shareholder, yes. It's an associate company.

MR. VARITIMOS: Yes. But had a – always had a 40 per cent interest in Ocean Pacific Limited. Is that correct?

LORD DALGETY: To the best of my recollection, it's 40 per cent.

Further, at pages 6144 – 6145, on the 26th February 2010, the exchange continues;

MR. VARITIMOS: Lord Dalgety, look at page 3178 of the transcript on 19 January 2010. Do you see I asked you some questions about the Ocean Pacific Limited? Lord Dalgety, I asked a question, "Is Ocean Pacific Limited a subsidiary of Shipping Corporation?"

LORD DALGETY: Yes. Yes

MR. VARITIMOS: That's on line – this page 3178.

LORD DALGETY: That's all right. Yes.

MR. VARITIMOS: Line D. Then, "I don't think it's a subsidiary; I think it's an associate." Do you see that reference?

LORD DALGETY: Yes. Yes

MR. VARITIMOS: And then I asked a question at line K: "Well, do you know what the shareholding in Ocean Pacific is." Lord Dalgety, you answered, "I – I can't remember that – it was – it was organised out. I wasn't involved in the organisation of that company."

MR. VARITIMOS: Do you see that?

LORD DALGETY: Yes

MR. VARITIMOS: Now, I suggest you were involved in the organisation of the company.

LORD DALGETY: No, the – it was organised in Cyprus at a meeting when I wasn't there. I mean, that – organised in the sense of it was set up and there was an agreement to set it up.

MR. VARITIMOS: You were the company secretary of the organisation when it was established.

LORD DALGETY: No, I – you are misunderstanding the use of the word "organised." When I said "organised", I meant there was a meeting in Cyprus at which I was not and decided that there would be this company. That's where it was organised to have the company and when they came back, they told me, "Right. This is what's happened. These are going to be the directors. You are the secretary now. Fill in the right forms and get it registered.

MR. VARITIMOS: Well, do you accept that - - -

LORD DALGETY: Sorry, I should have maybe said "formation" but – rather than "organisation" but that's what I meant.

MR. VARITIMOS: You – you meant to say that you weren't involved in the formation, do you?

LORD DALGETY: All I did was the decision to form the company and the agreement to do it and how it was going to work was agreed in Cyprus without any knowledge and I was rather surprised when they came back and said, "This is what we've agreed." And all I did was fill in the necessary forms and the staff – the staff at Shipping Corporation then went and paid the fees and formally registered the company.

MR. VARITIMOS: Well, I suggest, Lord Dalgety that, you formulated and prepared directors' resolutions in relation to the establishment of the company.

LORD DALGETY: That was after the decision. It was after – it was after they decided to set it up, yes. There was all – there was that sort of thing – all the formalities to – all the formalities afterwards. Yes, I attended to that.

Further, at page 6156;

MR. VARITIMOS: Lord Dalgety, do you accept that those documents indicate that you were intimately involved in the establishment of the company Ocean Pacific Limited?

LORD DALGETY: Once the decision had been made in Cyrus I implemented it, yes.
MR. VARITIMOS: Well, I suggest that you organised or participated in the organisation of Ocean Pacific Limited, do you agree with that?

LORD DALGETY: I did all the work; it's shown there, yes.

MR. VARITIMOS: Well, I'm suggesting that what that work shows is that you were involved in the organisation of Ocean Pacific Limited, would you agree with that?

LORD DALGETY: Organising its formal setup in Tonga and getting the bareboat charter party registered, yes.

MR. VARITIMOS: And if you didn't do that work the company would never have been registered in Tonga.

LORD DALGETY: True

MR. VARITIMOS: Is that correct? And never been able to operate in Tonga.

LORD DALGETY: Correct.

The applications before this Court.

Mr Afeaki advanced three grounds for consideration on his application that Lord Dalgety should be discharged from the indictment.

1. That there is immunity afforded to him under the provisions of sections 9 and 11 of the Royal Commissions Act (cap 41 of 1988, Laws of Tonga). In that regard, Mr Afeaki submitted that section 9 of the Act precludes the evidence taken before the Commission being adduced in either criminal or civil proceedings and in particular in these proceedings for perjury.
   
2. The evidence does not sufficiently establish a prima facie case for Lord Dalgety to answer, that is at its highest for the Crown, the answer given by Lord Dalgety to the question put by counsel for the Commission, Mr Varitimos, concerning his denial of being involved in the organisation of Ocean Pacific does not reach the level of sufficiency required for him to stand trial.
   
3. The third application is that the prosecution amounts to an abuse of process and I should issue a stay of proceedings. The basis for this application is that the prosecution did not have a reasonable basis to proceed with this prosecution and it was not commenced in good faith.
   

Abuse of Process

I indicated, during the course of argument that I did not consider that the third ground was necessary should I find there was an insufficient prima facie case. In certain circumstances, but rarely, courts have entertained stays of prosecution where proceedings have been commenced for some collateral reason and in bad faith. For example, in Williams v Spautze [1992] HCA 34; (1992) 174 CLR 509, a decision of the High Court of Australia, a stay of proceedings was successful where a lecturer had initiated a prosecution against a University in order to primarily secure reinstatement.

Although a reading of the lengthy evidence of Lord Dalgety before the Royal Commission suggests that he was cross-examined by Mr Varitimos in a trenchant manner, it would in my view be a very long bow to draw from this and any criticism of him by the Commissioner that his prosecution for perjury was pursued for some improper, collateral or malicious reason.

In Jago v District Court for New South Wales [1989] HCA 46; (1989) 168 CLR 23, at 34, Mason CJ, in the High Court of Australia, said the remedy of stay should only be used in exceptional circumstances because otherwise public confidence in the administration of justice would be diminished. In R v Latif [1966] 1 WLR 104, at p 113, Lord Steyn posed the question whether the prosecution was so "unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed."

Mr Afeaki cited a number of authorities in support of his able argument, but each involved very serious breaches or irregularities of due process which in my view are not present here. Regina v Horseferry Road Magistrates Court, ex parte Bennet [1993] UKHL 10; [1994] 1 AC 42 and R v Mullen [2000] EWCA Crim 36; [2000] QB 520, cited by Mr Afeaki were cases which involved collusive arrangements between police and authorities to forcibly and illegally return or deport defendants to England to face proceedings. There is, in my view, nothing of this kind here.

Suffice it to say, were my decision that there was sufficient evidence on the perjury count to stand trial, I would not have invoked this exceptional jurisdiction to grant the relief sought.

Immunity under section 9 of the Royal Commissions Act.

Mr Afeaki further submitted that Section 9 of the Royal Commissions Act affords an immunity to Lord Dalgety against the evidence he gave being used in a criminal proceeding. Section 9 of the Act reads;

"No evidence taken under this Act shall be admissible against any person in any civil or criminal proceeding whatever, except in the case of a person charged under s 11 with false interpretation, or with giving false evidence before the Commissioners."

Mr Afeaki argued that perjury was not covered by section 9 because express reference is not made to include section 63 of the Criminal Offences Act. Nor, he submitted, was it by implication because section 9 related to false interpretation and although it referred also to false evidence, this did not mean perjury because perjury was a more closely defined offence.

He submitted that section 9 was a penal provision, and so required the section to be interpreted according to the well known cannon of statutory interpretation that penal statutes be construed most favourably to the defendant if ambiguous in scope. Binns v Wardale [1946] KB 451, at 457; and IRC v Hinchy [1960] AC 748 were cited in support. Applying this cannon, he argued that at best the scope of section 9 and its application to perjury was unclear and accordingly the evidence Lord Dalgety gave at the Commission could not be admitted in evidence to found this prosecution.

Mr Kefu submitted that the answer to this objection was plain. A construction which effectively excluded perjury from the ambit of the section would be absurd. The plain purpose, he submitted, of section 9 was to encourage candour so that a Commissioner was able to make reliable findings. The protection afforded by the section was not intended to apply to those who engaged in providing false translations nor those who engaged in perjury. He submitted that perjury was an offence in substance concerning the giving of false evidence and Parliament plainly intended it to be included in section 9. He contended that section 9 was procedural or directive rather than a penal provision and hence the cannon of construction argued for Lord Dalgety did not apply.

I agree with Mr Kefu. Whilst, as Mr Afeaki pointed out, modern Acts are defined more clearly to include perjury – see s 62 Anti-corruption Commissioner Act, 2007, which refers to false statement inclusive of the words material particular, that is as perjury is defined in section 63 of the Criminal Offences Act, and section 15 of the Commissioner for Public Relations Act 2001, which expressly refers to perjury, the intention of Parliament is clear. It would amount to driving a horse and cart through the Act if the immunity provided by section 9 did not include perjury. It would undermine the object and effectiveness of inquiries if a Commissioner could not rely on the reliability of the evidence. The immunity under section 9 is only afforded to those who give truthful evidence before the Commission. This interpretation is consistent with maintaining and encouraging candour before Commissions.

I agree also that section 9 is a procedural or directory provision as Mr Kefu suggested rather than a penal provision. The penal provision intended to be covered by section 9 is section 11 which creates an offence under the Act directed at false interpretations and translations, and perjury under the Criminal Offences Act. I agree, however, that the Act should be amended to bring it more in line with more recent statutory drafting. To construe section 9 to exclude perjury would be to render that part of the section relating to false evidence meaningless.

Insufficiency of Evidence – No Prima facie case.

What remains to consider however, is the second ground of the application; namely whether there is sufficient evidence for Lord Dalgety to stand trial?

On this point, the proper approach to applications of this kind, was clearly set out by Lord Lane CJ in R v Galbraith [1981] 2 All ER 1060, at 1062. He said:

"How then should a Judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case. (2)The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown's evidence, taken at its highest, is such that a jury properly convicted could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matters to be tried by the jury."

Lord Lane CJ it should be noted also said, in concluding his statement;

"There will be of course as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

These principles have been followed elsewhere, and it is the approach also adopted in Tonga. Practice Note of Chief Justice Hampton (1992) Tonga LR 1; also, R v Kupu [2002] Tonga LR 255, Ward CJ. In approaching the issue of sufficiency, I must ask myself does the case go beyond there being no evidence or evidence that is tenuous? If it does not, then it is my duty to halt the case, at this stage, rather than allow it to proceed to trial.

In this case, the Crown alleges Lord Dalgety deliberately and falsely said that he had not been involved in the "organisation" of the company Ocean (Pacific) Ltd which was incorporated in 2003 when he was the secretary, and documents obtained subsequently by the Commission show that he had facilitated the incorporation and registration of the company in Tonga. The Crown submitted he did this to avoid any further questioning about his role in the company which was associated with the Shipping Corporation, and legitimately fell within the scope of the Commission's terms of reference.

Accordingly, I have to first determine whether in the context of all that Lord Dalgety said in evidence on the issue of organisation, it could be said there was evidence from it could be inferred beyond any reasonable doubt that what he said was false and deliberately so. I suggested there had to be much more than an equivocal position arising from an interpretation of the word "organise" before there was a case against Lord Dalgety of deliberately uttering a falsehood to the sufficiency level required. Mr Kefu seemed to agree with me in principle but did not concede on the facts that the evidence fell into that category. I will return to that issue later.

Even if, however, there was sufficient evidence from which a jury could infer that his evidence was deliberately false that is insufficient to constitute a prima facie case of perjury because the statute requires the falsehood to be one that is material. Inconsequential falsehoods, even if deliberately said, do not constitute perjury under section 63 of the Criminal Offences Act. The second case of importance is R v Millward (1985) 1 All ER 859, a decision of the English Court of Criminal Appeal.
Lord Lane CJ said at page 863;

"Whatever may have been the true reason for that request, the lies told effectively brought to a halt that line of cross-examination, which undoubtedly went to the heart of the case, namely the appellant's expressed belief that the driver had been Manjit. The fact that further cross-examination was prevented might well it is clear have affected the outcome of the case."

In my view, materiality must mean that the lie is more than of tenuous relevance to the issue or issues under consideration but be one which is of some real importance that is one that goes to "the heart of the case". That must in my view also apply to a lie as it might affect the general credibility or assessment of a witness.

On the issue of materiality, Mr Afeaki submitted that, if Lord Dalgety's evidence was false, which he, in any event, denied, it could not be material because it could not have affected the outcome of the inquiry and was collateral to any of the main issues; the central issue being the cause of the sinking of the Ashika and other matters set out in the Royal Commission's terms of reference.

Mr Kefu submitted it could be. He said, if the effect of the lie was to halt a legitimate line of inquiry for the Commission, then in law it could be material. Because one of the objects of the inquiry was the efficiency of the Shipping Corporation and the role of its secretary, Lord Dalgety in that Corporation, an inquiry into his activities with an associate company was a legitimate inquiry. If the effect of his answer was to deflect the company from examining further his relationship with that company and in effect to minimise his role in it, then that would satisfy materiality. Further, such a lie could affect his credibility and be material in that sense, also. Lord Campbell said in R v Lavey (1850) 3 Carr & Kir 26, at 30; [1850] EngR 934; 175 ER 448, at 450 a lie could be material if it "influenced the mind of the judge in believing or disbelieving the other statement she made in giving her evidence." However, I consider that the lie still has to be related to an issue of importance rather than a minor or collateral matter before it could be said to be capable of affecting credibility and material in the Lavey sense.

Reasons for judgment on the issue of whether there is a prima facie case

(1) Falsehood

Having said that the company had provided sponsorship for intended Olympians in about 2003, Lord Dalgety said that he could not remember what the shareholding of Ocean (Pacific) Ltd was because it was "organised out". He further said he was not involved in the organisation of that company, which is the subject of the charge of perjury.

It should be noted that, when the topic of the Shipping Corporation's shareholding in Ocean Pacific was first considered, at pages 3178, Lord Dalgety had already informed Mr Varitimos that he thought it was an associate rather than a subsidiary of the Shipping Corporation because the shareholding was less than 50%. The answer Lord Dalgety gave did not diminish the existence of any relationship that Ocean (Pacific) Ltd had with the Shipping Corporation or attempt to avoid the Commission making further inquiry of this company and its relationship with the Shipping Corporation. Rather, he confirmed the existence of the relationship.

Subsequent questioning by the Commission would suggest that the answer given by Lord Dalgety were correct; the company was in fact an associate, with a shareholding held by Shipping Corporation of 40%, a matter which the Commission had in the period between the 19th January and the 26th February 2010, ascertained.

It is not surprising that Lord Dalgety when he was cross-examined on the issue of the shareholding could not recall the precise shareholding of Ocean (Pacific) Ltd because the company was incorporated in 2003. In documentation produced to the Commission and further exhibited in this Court, it appears plain that Ocean (Pacific) Ltd was the corporate vehicle by which the owner of a vessel "Captain Trader", Ocean Royal Shipping Corporation, a company incorporated in Cyprus, entered into a bareboat charter for that vessel; the bareboat charterer being Ocean (Pacific) Ltd the company being incorporated for that purpose. The charter was one in which the Government of Tonga had an interest.

The directors of Ocean (Pacific) Ltd were a Tongan who was the company secretary of the time of the Shipping Corporation of Polynesia, and two Cypriots one, who was also employed by Ocean Royal Shipping Corporation the owner of the ship; the other, by Internship Navigation Company Ltd the builder, a company that was also incorporated in Cyprus. It is unnecessary here to go further and discuss the complex relationship and purpose of the bareboat charter and the various parties involved. What is plain for present purposes is that arrangements had been effected which involved foreign entities and personalities, and more particularly Ocean Royal, the owner, and other companies such as Internship Navigation Company Ltd, the builder, in relation to the building and financing of the ship and its charter in 2003.

The Commission obtained documents prior to Lord Dalgety resuming his evidence on the 26th February, 2010 which established that, at the time of the formation of Ocean (Pacific) Ltd, he had been instrumental in incorporating the company and registering it in Tonga. The inference can be drawn from the nature of the further questioning by Mr Varitimos of Lord Dalgety on the 26th February 2010 that he considered Lord Dalgety had been untruthful when he had said he was not responsible for "organising" the company. Prior to the 26th February, 2010, the Commission had, it will be recalled, referred the matter and documentation to the Police.

On the 26th February, 2010, before a further exchange concerning his role in organising the company, Mr Varitimos put to Lord Dalgety that he was in fact the secretary of Ocean Pacific Ltd. Lord Dalgety admitted this, but he said he had resigned some years ago. There was no indication, given to Lord Dalgety at that stage that the Commission had access to documents which established that he had been involved with the incorporation and registration of Ocean (Pacific) Ltd in Tonga, in 2003, before Mr Varitimos resumed questioning of him on the issue of organisation and suggested to him that he was in fact involved in the "organisation" of the company.

Lord Dalgety answered when this was suggested to him, "No it was organised in Cyprus at a meeting. I mean organised in the sense of, it was set up and there was an agreement to set it up." It was a meeting he said he did not attend and he was simply given instructions to form the company. Lord Dalgety said, "Sorry, I should have maybe said formation but rather than organisation but that is what I meant." He admitted to being surprised at the decision and was told what they had agreed and essentially he said he had attended to the formalities.

He was then taken to the various documents by Mr Varitimos that evidenced his incorporating and registering the company in Tonga, a fact which Lord Dalgety had already accepted. After this, he was questioned again for some time about his being closely involved in the establishment of Ocean (Pacific) Ltd to which he replied, "once the decision has been made I implemented it." Mr Varitimos once more suggested to him that what that work shows is that he was involved in the organisation of Ocean Pacific, to which Lord Dalgety responded, "organising its formal set up in Tonga and getting the bareboat charter party registered."

It is clear that Lord Dalgety, on the 26th February 2010, explained what he meant by "organise out" as being the decision making process engaged in by foreign entities involved in the construction and charter party of the ship "Captain Trader", and the decision to form a company Ocean (Pacific) Ltd to advance and act as the charterer of the ship as opposed to the mechanics of later incorporating the company and registering it in Tonga.

Although it may have been intended by Mr Varitimos to relate to the Shipping Corporations' interest in Ocean Pacific Ltd, in my view the initial question concerning what the shareholding of Ocean Pacific was, is wider than that and would constitute not only the interests of the Shipping Corporation but that of any foreign or other entities, as well. Plainly, foreign entities were involved in Ocean Pacific Ltd. None of the documents produced to me, however, record what the actual shareholding of the various foreign parties were, although the Register of interests produced by Mr Varitimos to Lord Dalgety and produced to this Court indicate that both of the Cypriot directors who were employees of different foreign companies; Ocean Royal, the owner, and Internship Navigation Company Ltd, the builder, were interested in the transaction.

It is, in my view, plain from reading the documents produced by the Crown to this Court relating to the charter party that Ocean Pacific was indeed conceived by overseas principals for the purpose of facilitating the charter party in which the Tonga Government and the Shipping Corporation also were interested. Just what the actual shareholdings in Ocean Pacific were remains unclear. It certainly includes the Shipping Corporation shareholding as 40% but as I have said the balance does not seem to have featured in any of the documentation that has been produced to the Court.

The responses Lord Dalgety gave by way of explanation as to what he meant by "organise out" are important, and the context in which that answer was given in relation to what the shareholding of Ocean (Pacific) Ltd is also important. The totality of his evidence on this point must be considered. It would be unfair to judge the matter devoid of the explanation he gave on the last day of his evidence when questioned on what he meant by "organise out."

I refer in this regard to the comment by Turner J in R v Shippey, Jedynak and Jedynak as reported in [1988] Crim LR 767, which was considered with approval by Ward CJ in R v Kupu [2002] Tonga L R 255, at 257-259.

There, Turner J was reported as stating that "he did not interpret the judgment in ... Galbraith... as intending to say if there are parts of the evidence which go to support the charge then no matter what the state of the rest of the evidence that is enough to leave the matter to the jury". In Shippey, the report writer states that the judge considered he had to make an assessment of the evidence as a whole. In that case, whilst the Court was concerned with inconsistencies in witness testimony, I consider the same approach must be taken in regard to my assessment.

I asked Mr Kefu if there would be any evidence produced to say that Lord Dalgety was in fact at the Cyprus meeting and participated in the decision to form the company in that sense of the meaning of organise, that is its conception, and I was informed by Mr Kefu that there was not.

Lord Dalgety's explanation cannot simply be put to one side in my consideration as to whether there is a prima facie case of falsehood. Perjury is a serious crime and only where it is plain that the communicator intended to convey information in a certain sense that is plainly capable of being regarded as false and is also materially untrue, should proceedings for perjury be commenced. Prosecutions for perjury should not turn on semantics. Had there been evidence that Lord Dalgety had attended the meeting in Cyprus and had been involved in the organisation of Ocean (Pacific) Ltd in the sense of its conception, the Crown would have been on stronger ground in asserting that his evidence was deliberately false.

Corroboration of falsehood is also required under section 124 of the Evidence Act before a charge of perjury can be substantiated in law. Mr Kefu said he would produce a witness to produce the documents which plainly implicated Lord Dalgety as the company secretary in arranging the incorporation of the company in Tonga and its registration here as corroboration. That does not, however, assist the Crown unless the explanation Lord Dalgety gave is put to one side. In my view, the Crown had to demonstrate and adduce evidence that the explanation Lord Dalgety gave for organisation was false or untenable and that could only be inferred if evidence was available that contradicted his explanation that he meant organisation in the sense of conception rather than formation.

2. Materiality

On the assumption that I am wrong and the word organise can be said for the purpose of prosecution to be formation in the more narrow sense of incorporation and registration – in short disregarding Lord Dalgety's explanation as to what he meant, the further question is; could that constitute a material falsehood? Lord Dalgety had already testified that Ocean (Pacific) Ltd, the existence of which he had volunteered, was an associate company. If the Commission were interested in examining companies that were associated with Shipping Corporation, then Lord Dalgety had confirmed the relationship and not denied it. His answers on this point could not be considered obstructive.

The point was asked of him what was the shareholding? He said he could not remember that. Even if his words could be construed to narrowly mean formation of the company in the sense the Crown alleges of incorporation and registration that could not in my view have affected the outcome on any material aspect of the inquiry. The shareholding could have been confirmed by public record, and, in so far as the Shipping Corporation' s interest is concerned, Mr Varitimos seems to have obtained information from some undisclosed source as to it being 40%. That is consistent with Lord Dalgety's recall that Ocean (Pacific) Ltd was an associate and not a subsidiary.

The evidence of Lord Dalgety was given in relation to 2003 events. I do not see that whatever meaning is given to "organisation" has very much, if anything, to do with the sinking of the Ashika, and the role of the Shipping Corporation or Lord Dalgety in its acquisition in 2009. The point about materiality is that it is a limiting factor in regard to perjury prosecutions. Parliament intended to exclude falsehoods, even deliberate falsehoods, if they were immaterial in the sense that that could not have affected the outcome in a relevant way.

In my judgment, the answers given, even adopting the Crown's interpretation of organisation, could not be regarded as material. Even if it could be said that his answers might have affected his credit in a general sense, that is not, in my view, sufficient to found a successful perjury prosecution. In the context of Commission's terms of reference, and affording them a broad application, I do not think that answers given concerning the incorporation of Ocean (Pacific) Ltd in 2003, the shareholding and whether organised out or not are materially relevant to the sinking of the Ashika, and the Shipping Corporation's involvement, or Lord Dalgety's role in the purchase of the ship in 2009. In other words, his evidence that Ocean (Pacific) Ltd was "organised out", whether true or not, could have no material bearing in my judgment on the outcome of the central matters of concern to the Commission. However, for reasons I have given, I do not consider when the evidence is considered in its entirety inclusive of Lord Dalgety's explanation on the 26th February 2010, that it could be said to be false.

3. Discretion
   

Finally, Lord Lane C J in R v Galbraith (1981) 2 ALL ER 1060 at 1062 said there would be always in this branch of the law borderline cases. In his opinion, "they could safely be left to the discretion of the judge." I do not consider this a borderline case. If, however, I am wrong either on falsehood or materiality, and there is a case to answer, then, in my view, it is a borderline case. It is so plainly involved with the meaning or sense in which Lord Dalgety used the term " organised out" and is so far removed from the vital issues the Commission had to consider concerning Ashika and the tragic events of 2009 that I do not think a guilty verdict could ever be regarded as a safe verdict. Hence, I exercise my discretion under Galbraith in favour of a discharge. I refer also in this regard to the approach taken by Ward CJ in R v Kupu [2002] Tonga LR 255, in that case. It is my view that charges of perjury must be made out plainly and that is not the case here.

Accordingly I rule that there is insufficient evidence of perjury to go forward for trial. I discharge Lord Dalgety from the indictment.

I acknowledge the care with which the case has been argued by both counsel.

DATED: 28 SEPTEMBER 2012

JUDGE