Pohiva v Tu'ivakano [2014] TOSC 1; AM20.2013 (17 January 2014)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY
CRIMINAL APPEAL NO.AM 20 of 2013

BETWEEN:

SAMIUELA 'AKILISI POHIVA
Appellant

AND:

1. LORD TU'IVAKANO
2. WILLIAM CLIVE EDWARDS
3. TONGASAT (FRIENDLY ISLANDS SATELLITE COMMUNICATIONS LTD)
4. HRH PRINCESS SALOTE PILOLEVU TUITA
Respondents

Appellant in Person
S.J. Stanton SC with W.C. Edwards for the First, Third & Fourth Respondents
Second Respondent in Person

JUDGMENT

[1] For ease of reference all documents referred to will, if included in the Respondents' appeal book, be identified by the page at which they appear.

[2] On 19 April 2011 representatives of the Governments of the Kingdom of Tonga and the People's Republic of China signed a document (page 111) which recorded that it had been agreed that the Government of the People's Republic would provide the Government of Tonga with "grant aid" amounting to USD$25,450,000.00 (the funds) "with a view to further developing the friendly relations and economic and technical cooperation between the two countries".

[3] According to the affidavit evidence of Sunia Manu Fili sworn on 17 April 2013 paragraphs 10 and 15 (106) the funds were received by the Government of Tonga on about 25 May 2011. On about 30 May TOP$11.56 million was paid to the Ministry of Revenue in respect of tax liabilities of the Third Defendant, Tongasat, "and its staff" while the whole of the balance remaining was paid to Tongasat.

[4] The Appellant, Mr Pohiva, is the distinguished No.1 Peoples Representative for Tongatapu in the Legislative Assembly. He was first elected to Parliament in 1987. He is the leader of the Tonga Democratic Party. He recently received the 2013 award of Defender of Democracy from the NGO Parliamentarians for Global Action. According to his affidavit sworn on 17 April 2013 (102) between January 2000 and April 2013 he received various documents which together suggested to him that the payment made to Tongasat in 2011 was not in accordance with an agreement earlier reached between Tongasat and the Government and that it was a misuse of public funds.

[5] During September and October 2012 correspondence was exchanged between a colleague of Mr Pohiva, Mr 'Isileli Pulu and the Prime Minister, the First Respondent. Mr Pulu had been a Cabinet Minister between January 2011 and June 2012. He asked the Prime Minister various questions about the amount of money received under the agreement and about the authority to make the payment to Tongasat. The questions and answers are included in the Respondents' Appeal Book at pages 163 to 175. On 2 November 2012 a statement was released to the media in which the Government rejected the allegations of wrongdoing by the Appellant as "false and irresponsible". The statement is at page 161. A previous and rather more detailed Press Release dated 22 October 2012 is at pages 281 and 283 of the Appeal Book. Several of the questions raised by Mr. Pohiva appear to receive detailed answers in this document however it is not clear that it was before the Magistrate. In these circumstances, even though it does not seem to assist the Appellant, I propose to disregard it.

[6] The Appellant and his Parliamentary supporters did not accept the explanation offered by the Government. According to paragraph 26 of Mr. Pohiva's affidavit, in about October 2012 a motion of no confidence was tabled in the Legislative Assembly. A copy of a resolution no.1/2001 dated 9 May 2011 is in the Respondent's Appeal Book. Apparently the motion, after debate, was lost. Whether this is the motion referred to by Mr. Pohiva is not clear. Part of the difficulty in precisely following the sequence of the events arises from the fact that paragraphs 12 to 25 of the Appellant's affidavit were missing from the bundles of documents given to me. Although this was pointed out to the Appellant quite early during the hearing, the omission was not made good.

[7] Mr Pohiva told me that after the motion of no confidence was lost he decided to take the matter to Court as he had nowhere else to turn. On 12 February 2013 he launched private criminal prosecutions against the four Respondents in the Kolofo'ou Magistrates' Court. Copies of most of the charges may be found at pages 82 to 96.

Lord Tu'ivakano was charged:

(i) With theft of TOP$18.45 million on 20 May 2011, contrary to sections 143(a) (b) of the Criminal Offences Act, Cap 18 and contrary to Clause 19 of the Constitution; (82)

(ii) With being an accessory to the theft of TOP$18.45 million on 20 May 2011 contrary to sections 143(a) and (b) of Cap 18 and Clause 19 of the Constitution; (84) and

(iii) With "concurring" (conspiring?) with Tongasat to steal TOP$18.45 million on 20 May 2011 contrary to sections 143(a) (b) of Cap 18 and Clause 19 of the Constitution (86).

William Clive Edwards was charged:

(i) With abetting theft of TOP$18.45 million on 20 May 2011 contrary to sections 12 and 143 (a) and (b) of Cap 18 and Clause 19 of the Constitution; (88) and

(ii) With "agreeing" (conspiring?) with Lord Tu'ivakano on 20 May 2011 to commit theft of TOP$18.45 million by giving the money to Tongasat contrary to sections 15 and 145 (a) and (b) of Cap 18 (90).

Tongasat was, according to page 36 charged with two offences of conspiracy and receiving stolen goods contrary to sections 143 (a)(b) and sections 148 (1) and (5) of Cap 18, however copies of these charges were not included in the Appeal Book.

Princess Salote Pilolevu Tuita was charged:

(i) With agreeing (conspiring?) with Lord Tu'ivakano to steal TOP$18.45 million on 20 May 2011 contrary to sections 15 and 145 (a) and (b) of Cap 18 (92); and

(ii) With dishonestly receiving TOP$18.45 million on 20 May 2011 contrary to sections 148 (1) and (5) of Cap 18.

[8] In view of the amount of money alleged to have been stolen or received, the maximum penalty for these alleged offences was seven years imprisonment (Sections 145 (b) and 148 (1)) and accordingly were beyond the jurisdiction of the Magistrates' Court. Committal proceedings were held on 26 April before Magistrate Salesi Mafi. A transcript of the proceedings is at pages 65 to 73. An interim judgment was delivered on the same day (pages 26 to 29) and a final judgment, unfortunately undated, was probably delivered on or about 17 May (34 to 47). All four accused Respondents were discharged by the Magistrate on the ground that he was of the opinion that no sufficient case had been made out to warrant putting the accused upon trial before the Supreme Court (Cap 11- Sections 32 (4) (d)). This is an appeal against those orders of discharge.

[9] The committal proceedings were held according to the new procedure set out in section 9 of the Magistrates' Courts (Amendment) Act 2012. This new procedure is a slight variation of the committal procedures now typical thoroughout the Commonwealth and replaces the outmoded, cumbersome, costly and time wasting procedure which was previously in place. It requires the prosecutor to lodge copies of the statements and other documents upon which reliance is placed with the Court five days before the hearing. On the day of the hearing, after considering the documents filed and any submissions, a decision is taken by the Magistrate whether or not to commit. No oral evidence is placed before the Court and no cross-examination takes place: these are reserved for the Supreme Court, should an accused be committed for trial.

[10] It was suggested by Mr Pohiva that the Amendment Act, when it received the Royal Assent, was not in the form in which it was actually approved by Parliament. Whether or not this was the case, the Act as published is in the form assented to. The Magistrate was correct to take the judicial notice of the Act as published (Evidence Act, section 36).

[11] Mr Pohiva filed a "Summary of Prosecution Case" in the Magistrates' Court (96-101) however it should be noted that pages 100 and 97 have been misnumbered. In clear reference to the wording of section 145 Mr Pohiva identified the four elements of which proof was required:

(a) Dishonest taking, and

(b) Without any colour of right; and

(c) With the intention permanently to deprive the owner (or?);

(d) With the intention of converting the thing taken to the use of another without the consent of the owner.

[12] On the first page of the Summary Mr Pohiva provided a list of prosecution witnesses whom he wished to call. Unfortunately, only the first three, Pohiva, Sunia Manu Fili and 'Isileli Pulu had provided statements in compliance with Section 32(3) of the Magistrates' Courts Act. In respect of the first element the evidence of Sunia Manu Fili was relied upon. This evidence is contained in his affidavit of 17 April (105 to 107) from which it may be gathered:

(a) that the sum of USD$25,450,000.00 referred to in the 19 April Agreement (III) was the second installment of a total package agreed between Tonga and China in 2008;

(b) that it had then been agreed that the payments would be split 50/50 between Tongasat and the Tonga Government;

(c) that a request received from Tongasat on 18 April 2011 (158) was not consistent with this 50/50 agreement;

(d) that when the First Respondent, Lord Tu'ivakano was advised that this was the case, Fili, who was then Minister of Finance was instructed by the First Respondent to make payment to Tongasat as requested on 18 April;

(e) that Tongasat's request for payment (including payment of outstanding taxes owed) was met;

(f) that the associated waiver of tax penalties was agreed by the Second Respondent; and

(g) that no members of Cabinet were consulted apart from the First and Second Respondents and the affiant.

[13] Although the Summary stated (page 100) that 'Aisake Eke would also "be called to prove" the first element, as (as well as the Second and Third) no statement by Eke can be found in the appeal books.

[14] According to the Summary (page 100) the element of dishonesty was made out by it being proved that the payments to Tongasat and in respect of tax "did not follow the proper legal procedures set down by the law [and were made] without the knowledge of Cabinet and without the knowledge and approval of Parliament." No particulars of the breaches were given.

[15] In the second page of the Summary (page 100) it was stated that the second element would be satisfied by it being proved that the funds were public money which required, but had not received, compliance with the requirements of section 9 of the Public Finance Management Act (27 of 2002) before disbursement (in this case to Tongasat) was made. The evidence in support of this element was again to be that of Sunia Fili.

[16] This third element, permanent deprivation, would be proved by Sunia Fili while the fourth (alternative?) element, conversion, would be proved by 'Isileli Pulu "and MPs from Parliament".

[17] 'Isileli Pulu's affidavit is at pages 108 to 110. Mr Pulu was Minister of Tourism from January to August 2011. According to his evidence, Cabinet did not discuss the China/Tonga Technical Cooperation Agreement while he was a member. Paragraphs 7, 8, 9 and 10 are hearsay and inadmissible. Paragraphs 11 and 12 refer to a copy of an email (160) dated 25 May 2011 from one Paula P. Ma'u, then Secretary for Information and Communications, suggesting that the request from Tongasat (158) was not consistent with the Agreement reached in July 2008. After sighting this email, Pulu wrote to the First Respondent seeking an explanation. After an exchange of letters and other communications the First Respondent clarified his position: his predecessor, Lord Sevele, had agreed to vary the Agreement after receiving a request from the Fourth Respondent (112) on 16 November 2010. As for the terms of the full 2008 Agreement itself these related to grant aid from a foreign government and were, by virtue of "section 16.1 of the Freedom of Information Policy" (sic) confidential (see pages 171 and 174).

[18] [On 1 November 2013 (after the proceedings in the Magistrates Court had concluded and before the appeal was heard) Mr Pohiva filed a document in the Supreme Court purporting to be a notice of additional evidence, namely an undated and an unwitnessed affidavit by Mr Ma'u which he wished to have included in the appeal papers. Mr Stanton objected to this document being admitted. Mr Pohiva revealed that Mr Ma'u had been unwilling to provide evidence in the Magistrates' Court but had now changed his mind. After examining the document I allowed it to be admitted. In my view the affidavit does little more than repeat assertions and opinions already contained in the materials filed in the Magistrates' Court

On 11 November 2013 Mr. Pohiva filed an application for leave to file a further affidavit by Deputy Auditor General Kolopeaua "out of time". Despite no order being made on this application (which in any event has no place in criminal proceedings) the affidavit, sworn on 31 October 2013, was included in the Appellant's appeal book. This was improper and ignored the advice given earlier to Mr. Pohiva that as a general rule, evidence which was available, or could have been available, but was not produced in the lower Court was not admissible at the hearing of an appeal. The Auditor's evidence was that for "the last 10 months we have been attempting to obtain documents regarding Tongasat from the Prime Minister's Office but they have not been provided". In my view this evidence does not assist the Appellant.]

[19] After setting out the elements of the offences and the manner in which they were to be proved, the Summary continues (page 97) with "further witness summary". This consists of 14 paragraphs of assertions some unsupported by evidence and some repetitive. The summary concludes:

"The payment of the whole proceeds of the 2011 Tonga-China Economic and Technical Cooperation Agreement to Tongasat was dishonestly made under a direction which was locked in by a previous agreement between HRH Princess Pilolevu Tuita and former Prime Minister, Dr Feleti Sevele in 2010. Of this Agreement, neither Sunia Fili, the Minister of Finance, nor the Cabinet, nor the Parliament of Tonga, nor the people of Tonga were aware".

[20] It will be seen from page 28 that the Magistrate took the view that:

"All the charges come under the main offence of theft or is in relation to actions by Lord Tu'ivakano that he gave the second tranche of the grant aid from the Chinese Government to Tonga which was proven as being an agreement which is marked annexure A (111) ... the charges are all based on those actions which the prosecution alleges is unlawful because the money belong to the Government and the first Defendant had no legal right to give this money to the fourth Defendant."

The Magistrate (29) took the view that from the documents presented by the prosecution, and especially annexure B (112) "there was an agreement between Tongasat and Government, whether it was right or not, there is a colour of right to note here". The Magistrate arrived at the conclusion that there was an absence of evidence to show dishonesty and accordingly he discharged all four accused.

[21] In his second judgment, the Magistrate further explained his reasons for discharging the accused Respondents. At page 42 he wrote:

"The defendants do not deny giving the money to Tongasat. At the same time the prosecution has submitted annex B (112) J (158) and T (288) which shows Tongasat's claim of right over this grant. The defence submits that this money was received by the Tongan Government as a trustee for Tongasat and it is not public funds in accordance with the definition of public funds [which] means all money other than trust money". The defendant submits through counsel that there was no dishonesty as the [First] Defendant acted in the knowledge or belief that Tongasat has an interest to have the money paid to it, according to Exhibits B and T of the prosecution's list of documents".

[22] Put very simply, the Magistrate took the view that for him to commit any of the accused Respondents on any of the charges that they faced he would have to be satisfied that there was a prima facie case that they had acted dishonestly, this being the central element common to all the charges. In view of the documentary evidence presented by the prosecution, the Magistrate took the view that the payment of the funds to Tongasat was apparently made pursuant to previous agreements and was not, therefore, dishonest. He accepted the defence submission that none of the accused had a case to answer.

[23] In Practice Direction (submission of no case) [1962] 1 WLR 227 Lord Chief Justice Parker explained that:

"A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element of the alleged offence; (b) when the evidence ..... is so manifestly unreliable that no reasonable tribunal could safely convict upon it".

It is clear, from his judgments, that Magistrate Mafi took the view that both limbs of this test had been satisfied.

[24] Before again examining the grounds of appeal, the evidence and arguments advanced by Mr Pohiva it is perhaps worth making two fundamental points:

(a) In a preliminary enquiry (also known as committal proceedings) it is not the task of the Magistrate to determine guilt or innocence; it is to decide whether the defendant has a case to answer;

(b) The burden of satisfying this requirement rests entirely on the prosecution; there is no duty imposed on a defendant to prove anything.

[25] The notice and grounds of appeal are at pages 1 to 25 of the Respondent's Appeal Book. The notice is in two parts, apparently drafted by two different persons. The grounds set out in the first part run to ten paragraphs while the grounds included in the second part run to no less than 58 paragraphs. Some of the grounds are repetitive, prolix, and not altogether easy to understand. It seems likely that they were not drafted by a qualified lawyer. In summary, the principal grounds seem to be as follows:

(a) The Magistrate wrongly applied the provisions of the Magistrates' Court Act as amended by the Magistrates' Courts (Amendment) Act 2012, in particular he dealt with the charges by way of committal rather than exercising the powers conferred on him to deal with matter summarily and refused the Appellant's request to call his witnesses.

(b) The Magistrate was biased and the proceedings were unfair;

(c) The Magistrate failed to require the Attorney General to conduct the prosecutions;

(d) The Magistrate should have committed the Defendants for trial in the Supreme Court which alone has jurisdiction in all prosecutions brought under the provisions of the Official Secrets Act;

(e) The Magistrate, by failing to take into account that document 112 was not signed by the former Prime Minister, wrongly concluded that a claim of right had been established;

(f) The Magistrate failed to give sufficient weight to the fact that the funds were transferred to Tongasat "in secrecy and with the knowledge of only a few in government. This was done dishonestly because it did not follow proper legal procedures set down by the law without the knowledge of Cabinet and without the knowledge and approval of Parliament";

(g) The Magistrate erred in finding insufficient evidence of collaboration between the accused;

(h) The Magistrate failed to take into account the First Respondent's refusal to disclose the full terms of the agreement between the Tongan and Chinese Governments; and

(i) By refusing to admit all the evidence that the Appellant wished to place before the Court the Magistrate failed "to satisfy the curiosity and special interest of the people and Governments pertinent to the case.".

[26] On the day of the hearing of this appeal, the Appellant handed up a further written submission running to seven pages. A number of points raised were already covered in the grounds of appeal and need not be repeated. The submissions did however re-emphasise Mr Pohiva's belief that he should have been allowed to call his witnesses and that the first Respondent, in particular, had failed to provide either Parliament or the Auditor or the Court with such documentary evidence as he claimed to have available. Mr Pohiva submitted:

"Lord Tu'ivakano has to be called to reply to the allegations raised against him ... all evidence must be allowed to be placed before this Honorable Court to decide the merits and legal validity of what the witnesses would say in Court in relation to the matter in question".

[27] In my view, Mr Pohiva's approach, while advanced in good faith, is misconceived. As already pointed out, these were committal proceedings, held to determine whether there was sufficient evidence to send the Respondents for trial on the criminal charges laid against them. Those proceedings do not provide for oral evidence to be heard. Had the Respondents been committed for trial then Mr Pohiva would have been free to call his witnesses. Even then, however, none of the Respondents could have been compelled to testify or to produce such documents as the prosecution wished to see. This was a criminal prosecution, not a court of enquiry or a motion for judicial review. Therefore, the burden was always on the prosecution to show that there was a case to answer. The prosecution could not call upon the Defendants to bolster their own case. Grounds (a), (c) and (d) are founded on a misunderstanding of the applicable statutory provisions: the power of a Magistrate to exercise enhanced jurisdiction is dependent on the consent both of the prosecution and the accused, in this case the latter was not forthcoming. There is no power to compel the Attorney General to undertake a prosecution against his will. The Official Secrets Act has nothing at all to do with the charges filed by the Appellant. The Magistrate was fully entitled to taken into account document 288 when considering 111(2). Most fundamentally of all, however, it is simply not the case that secrecy or a failure to follow proper legal procedures, of themselves, are evidence of dishonesty. It must be borne in mind that the deliberations of Cabinet have traditionally, and for obvious reasons, been conducted on a confidential basis: even the most progressive Freedom of Information legislation does not allow instant untrammeled access to the inner workings of the executive. Furthermore, "proper legal procedures" frequently fail to be observed either from ignorance or inadvertence and in neither of these cases will dishonesty be disclosed.

[28] In my opinion, the Appellant's criminal cases against these four accused/respondents suffered from several fundamental flaws. First, no copy of the Satellite Agreement entered into between Tongasat and CECEC referred to in document 112 nor of the 14 July 2008 agreement (160A) nor the 30 April 2009 agreement (160) was produced. Since it is obvious from its contents that the agreement of 19 April 2011 (111) merely recorded a payment pursuant to a previous agreement containing all the agreement's essential terms and conditions, it is clear, in my opinion, that the Appellant failed to exclude the possibility, indeed the probability, that the payment to Tongasat was made pursuant to a perfectly valid inter-governmental agreement and was not, therefore, made "without color of right" or dishonestly.

[29] Secondly, it is far from clear to me that these monies were indeed public money as is claimed. If indeed, as was not excluded by the failure to produce the foundation agreements, the money was paid by the Chinese Government for a particular purpose, then it appears likely that these were moneys paid in trust: "money that belongs to or is due to any person and is collected by the Government under any agreement between the Government and that person" (Public Finance Management Act 2002-sections 2 and 9). In this context it has again to be emphasized that in criminal committal proceedings it is not for the accused to prove that they acted lawfully, rather it is for the prosecution to present a prima facie case that they did not. In discussion, Mr. Pohiva accepted that, as a matter of fact, a substantial portion of money spent by the Government of Tonga comes to Tonga in the form of overseas aid. Such grants in aid do not form part of the annual budget presented to Parliament for approval. It might well be argued that it would be highly desirable for the public to have greater knowledge of the sources and amounts of such aid and the way in which such aid is disbursed. It may well be that the obscure way in which these funds were handled (why, for example did Global Trading Company Ltd receive USD $500,000.00?) not unreasonably gave rise to concerns but criminal prosecution is not the correct way "to satisfy the curiosity and special interest of the people".

[30] The remaining ground of appeal, which is that the Magistrate was biased, is, in my opinion, a wholly unsubstantiated and deplorable slur on the integrity and reputation of a well respected Magistrate and should not have been advanced.

[31] Something must be said about the role of the Attorney General in relation to private prosecutions. The right to bring a private prosecution is protected by section 197 of the Criminal Offences Act (Cap 18). This section has been amended on several occasions (Act 18 of 2005; 8 of 1991; 20 of 2007) and currently reads as follows:

"All prosecutions under this Act may be brought by the Attorney General or the person aggrieved".

Mr. Stanton suggested that Mr. Pohiva was not a "person aggrieved" however, in my opinion, a prominent member of Parliament wishing to bring a matter of obvious public concern to this Court should properly be regarded as such a person. At the same time, however, I am of the view that the present statutory position is unsatisfactory.

[32] In September 2008 Crown Law Office published its "Crown Law Prosecution Code". This code, which is of a type widely accepted internationally, provides guidance to prosecutors on when, and when not, to prosecute. The guidelines are designed to ensure that the very serious step which is the decision whether or not to prosecute is not taken without the most careful consideration. It is obviously wrong for persons to be prosecuted when there is no realistic chance of obtaining a conviction.

[33] At the very beginning of his appeal book, Mr. Pohiva included a copy of a letter dated 29 October 2013 in which he writes to the Attorney General. From that letter it is clear that Pohiva, Stanton and the Attorney General had debated whether the Attorney General should take over Mr. Pohiva's private prosecution. There is a further reference to this issue in paragraph 4 of page 7 of the Respondent's appeal book. I presume that it has arisen from Clause 31 A of the Constitution which provides that the Attorney General shall:

"be in charge of all criminal proceedings on behalf of the Crown".

[34] In Blackstone's Criminal Practice 1993 paragraph D2.36, the main functions of the Attorney General in England and Wales are explained. These include instituting and conducting cases of exceptional gravity or complexity and the taking over of the conduct of private prosecutions. The Attorney General may also stop a prosecution without the need to provide any reason for doing so (R v Comptorller General of Patents [1899] UKLawRpKQB 75; (1899) 1 QB 909). One of the main reasons justifying the stay of a private prosecution is perceived abuse of process (see R v Moxon-Tritsh [1988] Crim. L.R. 46)

[35] I have already pointed out that Mr. Pohiva's impression that the Attorney General could be obliged to conduct his private prosecution is mistaken. Rather, it is the other way around: if the Attorney General is concerned that a private prosecution may violate the principles embodied in the Crown Prosecution Code then he should wish to consider whether he should take it over and discontinue it.

[36] As presently defined by Clause 31 A, the Attorney General's duties in this area seem to me to be somewhat unclear. Does the Clause mean that the Attorney General is in charge of all criminal proceedings, including private prosecutions, on behalf of the Crown, or does it mean that he is only in charge of criminal proceedings actually commenced by the Crown? If the latter, then there has been a constitutional departure from the position explained in paragraph 34. Given the very wide ambit of section 197 I am of the opinion that all prosecutions, whether private or not, should be within the purview of the Attorney General in order to avoid prosecutions being commenced which clearly do not conform with the Crown's prosecution policy or which, for other good reason, are not in the public interest.

Result

While I accept that Mr. Pohiva launched these prosecutions because of his genuine concern at the way these funds had been disbursed I am satisfied that the evidence that he was able to present, taken at its highest, was not such that a jury properly directed could convict. In other words, there was no case to answer on any of the charges laid. The Magistrate arrived at the correct conclusion and therefore the appeal is dismissed.

DATED: 17 January 2014
CHIEFJUSTICE